Standard of care: nail negligence issues on torts exams

I have kids.  (Hold on – I’ll get to the standard of care soon.)

My kids, like all kids, are sometimes clumsy and have accidents.

They trip and fall . . . over their own feet.  Ormine.  Or my wife’s.  (Each other’s feet is more on-purpose tripping, natch.)

I like to think of myself as an enlightened father — super cool, like Phil Dunphy from Modern Family!

But self-awareness is hard.  I am less than cool when they trip.  I find myself shouting useless things like “Don’t fall!’ when they fall or “Don’t drop shit!” when they drop shit.

What students get wrong about the standard of care

What does my shitty parenting have to do with the standard of care (or the duty of care as it is also known)?

I’ve noticed in grading practice law school exams that many students take the “don’t drop shit!” approach with negligence issues on torts exams.

That is, the way you spot a negligence issue is noticing some kind of harm (someone falls or drops shit.)

So what students do is they march through the elements of negligence.

They formulate a standard of care (the basis of the duty that the defendant owes the plaintiff) by reverse-engineering the harm.

But most students do this too simply.

They borrow from my Cool Dad Playbook and write “The standard of care is NOT doing [the injury from the fact pattern.”

For instance:

  • Don’t [accidentally crash into my car]!
  • Don’t [drop shit on my head!]
  • Don’t [leave toxic waste in my swimming pool for my guests to choke on]!

The right way to do the standard of care

There is a different, better way to deal with the standard of care.

In short three tips will help you both find the standard of care and get it right on an exam.  In short:

  • Find harm: identify the specific action that caused the harm.
  • Get 1-2 levels more abstract:  Draft a standard of care by identifying what the defendant should have done in language that is 1 or 2 levels more general or abstract than the specific action that caused the harm.
  • Be affirmative: formulate a standard that is in the affirmative (i.e., says what the defendant should have done or how he should behave), not negative (i.e., “Don’t do what you just did!”)

Watch this video for a deeper dive on these three tips on the standard of care:

Law School Success Tips: In class, listen for 3 key things

Law school success depends, in part, on you focusing on the right things in class.

But what are those things?

Watch the video below, and then read a bit more of the text.

Listening for law school success

In short, listen carefully for three things:

FIRST, look for your professor’s specific wording of the rule of general application of any case that is discussed.

You might read about the elements of battery in Emanuels. Your professor might have a different way to word it or even different elements.  Use your professor’s exact wording (if she even tries to describe or define the black letter law.)

The example I use is my 1L crim law professor.  The defense of being “intoxication sufficient to negate specific intent for crimes of specific intent” was, for him, “Leningrad drunk” or even “LD.” He insisted you use that specific wording on the exam.

SECOND, listen carefully for what I call “fact triggers.”  That is, when a professor is grilling a student in class with hypothetical variants of the cases you were supposed to read.  Watch for the professor’s reactions to student attempts to grapple with them.

Usually you will know when your professor says “Suppose . . . we change one fact in this case” or “what if we changed this one fact…”

THIRD, listen carefully to forms of general argumentation the professor likes.  What does your professor respond (happily) to when she is listening to students talk about cases? (This is whether or not they are discussing hypos or fact triggers.)

Watch carefully his or her reactions to student arguments.

  • Does your professor like counter-intuitive arguments?
  • Does your professor like law & economic arguments?
  • Is your professor into fairly academic or theory-based arguments?
  • Is your professor very practice-oriented (i.e., lived in the trenches of litigation for many years)?

To succeed, do not waste time on these things:

  • Use class discussion to obtain general understanding of cases (you should study the black letter law directly to do that.)
  • Write down very much of what other students say (unless the professor says something like “did everyone here what Ms. Smith said?”).
  • Write down anything that is clearly unusable – really general history, procedural posture, stupid trivia, non-famous precedent the case follows.  Anything, in short, that you know you will not be able to use.

For more law school success tips, check out links to:

Law school success depends, in part, on you focusing on the right things in class.

But what are those things?

Watch the video below, and then read a bit more of the text.

Law School Success Tips, Part 4 of 10: The Black Letter Law

This is Part 4 of 10.  These are links to Part 1, Part 2, and Part 3.

Last time we discussed how to study the law — not by reading cases, but by studying the law more directly.

The “law” I refer to here is the black letter law — the most stripped down form of the law.  I set out more in the following video:

When I mention that it is necessary to focus on or memorize the black letter law, I am talking about several things here.

  • The major rule, those that set out all of the elements or factors needed to make out a given claim or defense.
  • The network of sub-rules.  These sometimes set out exceptions or ways to apply a given element or factor.  They are often specific applications of certain fact scenarios, generalized to other scenarios (what I refer to as Rules of General Application.  This is, of course, redundant, because a rule should be generalizable).

This may seem a simple concept but it is important enough to understand that this is the what you are after when you are studying the law and reading cases.

What is funny to me is that few enough professors will define the black letter law for you.

They just mention it in passing.

Oh, and by the way, come exam time, professors assume you know it by heart– however little it is explicitly address in class.  Well enough to apply it on an exam.

Law School Success Tips, Part 3 of 10: Study The Law Directly

This is Part 3 of 10.  These are links to Part 1 and Part 2.

Last time we talked about avoiding case-related busy work.

The tip I offer below will help you immediately reduce your study time, while retaining just as much important information.

Watch the video and then read the rest of my explanation below.

You now know that the case method is a long, indirect path to learning the black letter law you need to do well on issue-spotting exams.

So judo-flip that shit.

Study the law directly: memorize the black letter law.  

By which I mean:  you can generally boil down a 2-3 page case on murder to a legal definition of murder (“the black letter law”).  Here is an example:

Intent-to-kill murder:  the (1) unlawful (i.e., without a legal excuse) (2) killing (3) of a human being; (4) committed with malice aforethought, which includes (a) intent to kill (b) intent to inflict severe injury or (c) reckless indifference to an unjustifiably high risk to human life.

Other cases you read do not set out a legal definition but rather apply a general principle to a specific case.  You can boil down such a case like so in an outline (I don’t go over every element here):

Intent to Kill Murder [definition]

. . . Malice aforethought . . . (a) intent to kill

Yes, guilty:  sudden impulse to kill, w/ no pre-planning, is enough intent for intent to kill (Commonwealth v. Carrol)

Now, this is a single sentence summary of Commonwealth v. Carrol, a case about a guy who saw his wife beat their children argued with her later and, consumed with anger later, shot her; he made no plans, before grabbing his gun, to kill her.  There is a lot said in the case.  

But for your purposes on an issue-spotting exam, the quick one-sentence summary of Carrol (“sudden impulse to kill = intent”) is all you need – it will help you make arguments on behalf of one party, and resolve claims.

There are other cases that create more specific principles that apply the general legal definition.  You just need a quick line that sets out those facts.

*  *  *

Now, you won’t find these legal definitions, or short case blurbs (that are specific applications of legal definitions), in your case book.  F’ing Chris Langdell made sure of that.

They are set out in commercial outlines (like Emanuel’s or Gilbert’s), the modern day treatise for students.  Outlines will save your life.

You can buy them new or used for $40 each.  Or you buy used.  Or buy a BarBRI Conviser Mini Review (available on Amazon or eBay), which is what people use on the bar exam and contain all 1L subjects.

Or you can print out free outlines you find on the web.

It doesn’t matter that much.

You can even buy old outlines (they are cheaper).  Don’t spend a fortune on them.  Borrow them from a friend.  

Read these outlines.  Memorize the “legal definitions” (the elements or factors of each claim, like murder, or defenses, like self-defense.).  Memorize the case blurbs that apply the definitions.

You can do this before law school starts.  You can do this during law school, studying the black letter law before reading cases.  Emanuel and Gilbert outlines are keyed to the most common casebooks you read.

Other tips:

  • You don’t have to master the law completely.  Read to understand so that (1) you can start atking practice exams (see Shortcut 3 below) and (2) so the key legal concepts are familiar when your professor discusses them or you come across them in your case book reading.
  • Don’t over do it.  I said not to re-read casebooks.  Similarly, you don’t need to buy Emanuels AND Gilberts.  Do not buy or read more than one outline per law school subject.  This will become   will either be repetitious or just make you confused.
  • Read short outlines.  I prefer Gilbert’s or Emanuel’s because they are brief.  I urge you to just study the summary outline in the front of the book, that usually runs 50-70 pages.  If you opt to study from a free outline, only do so if the outline is short, less than 50 pages.  You may be tempted to buy a big hornbook or treatise.  But these are very comprehensive and might give you so much to do, you are confused.  (Such books are really meant to help practicing lawyers research.)

As the semester progresses, your professor’s views will trump the outlines.  

Just use outlines to prepare for class and to learn enough law to take practice exams.  

But if your professor says something different about a law or a case than your outline, the prof’s words win.  

Your job in law school is to understand your professor’s view of the law and apply that to an exam if you want a good grade.

That’s it.

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