Legal Creativity Archives

Standard of care: nail negligence issues on a torts exam

Larry Law Law on July 13, 2018

I have kids. (Hold on– I’ll get to the standard of care and negligence and how to use them on a torts exam soon.)

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

They trip and fall . . . over their own feet. Or mine. Or my wife’s.

I am a super cool dad, like Phil Dunphy from Modern Family!

Self-awareness is hard. Really, I am not calm 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 duty 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 a practice law school exam that many students take the “don’t drop shit!” approach with negligence issues on a torts exam.

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 of care that the defendant owes the plaintiff) by reverse-engineering the harm.

But most students do this in way that is too simple and too cookie-cutter.

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

For instance, here are the types of duty of care they identify:

Duty not to [accidentally crash into my car]!
Duty not to [drop shit on my head!]
Duty not to [leave toxic waste in my swimming pool for my guests to choke on]!

The right way to write the standard on a torts exam

There is a different, better way to articulate a good duty of care.

In short three tips will help you both find the standard of care and get it right on a law school 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 duty of care in the affirmative (i.e., say 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:

Law School Exam Tips: What Is Issue Spotting? What Is An Issue?

Larry Law Law on May 19, 2016

I am stuck in a mantra-rut if you haven’t noticed. It goes like this:

Getting a good job requires getting good grades in law school.
Getting good grades in law school requires killing it on your final exams.
Killing on your law school exams requires you to master the skill of issue spotting.

But wait, Larry Law Law, what the hell is issue spotting?

What the hell is an “issue,” for that matter?

Lucky, I will show you instead of telling you. Two videos for you today.

The first video concretely describes what an “issue” may look like on a law school exam (including my own drawings of Smurfette and Papa Smurf with beer and a shotgun.)

The second video explains the subtle threshold for identifying an issue. Before law school, the law seems like a black and white thing, like a science. But in law school, you recognize shades of grey (ha ha), and that law is more of an art. (Certainly, on law school exams this is true.)

The key word — almost guaranteed to be new to you if you have not gone to law school, and absolutely guaranteed to be important — is colorable:

In short: welcome to the mind of a law student.

One word to prepare for law school success

Larry Law Law on May 11, 2016

To prepare for law school success, easy-to-remember advice is best.

Like Jon Snow’s sword-fighting advice to Arya when he gifts her Needle:

“First lesson: stick ’em with the pointy end.”

That’s it.

That is the essence of sword-fighting.

Of course, sword fighting is nuanced. But if you panic in a fight and can’t remember the nuanced stuff, what can you do? Stick ’em.

Ned Stark, no sword-slouch, agrees that “stick ’em with the pointy end” is the essence of sword fighting.

Good gravy does Arya follow Jon’s advice.

So, what is the law school equivalent of “stick ’em with the pointy end”?

If I could reduce law school success to a single word, it’s this:

TAPEAD.

I cheated. This is an acronym made up of 6 words:

Take A Practice Exam A Day.

That is it.

TAPEAD.

Say it out loud.

TAPEAD.

Silly right?

It sounds like “tapenade”, or maybe a portmanteau for “a tapestry that you see at the French business school INSEAD” (Tap-EAD?).

If it helps (for those of you who think visually), imagine — to lock this in your head — yourself naked, covered in olive TAPEAD, while speaking business French and casually leaning on a tapestry that you are totally ruining because of the tapenade.

I won’t draw that for you.

So, TAPEAD: Take A Practice Exam A Day.

Simple advice. Easy-to-remember advice.

Why will this lead to law school success?

If you take a practice exam every day, you are actively exercising your issue-spotting muscle, the one skill upon which your grades depend (but that law school does not teach you directly).

If you follow this simple, easy-to-remember advice, you will survive law school. (Meaning: everyone passes, but you will do well.)

Now, TAPEAD does not contain every nuance on law school success.

When to start? When is “every day”?

Well, as soon as you can. Maybe starting the summer before law school.

In any case, no later than September or early October of your first year — do it every day.

I set out “the essence of it” in the video embedded below (I don’t call it “TAPEAD”, but you get the point):

Remember: even Jon Snow (who knows nothing) says “you have to work at it every day.”

Which is why the daily practice — to take a practice exam a day — is the essence of your law school success.