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

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.

Law School Exam Tips: Structuring contracts exams and consideration as an issue

A short post today.

I want you to see the specific tactical advice I offer on Larry Law Law and in depth in my premium course Kick The Crap Out Of Law School.

Now, at this point, maybe you know nothing about law school exams, or contracts law.

No worries.

I just want you to see what my stuff is like.

Watch these two videos on how to take contracts law exams.

This first one is on how to structure a contracts law exam:

This second one is on how consideration is likely to appear, practically speaking as an issue on a law school exam:

Again, you don’t have to understand what I am saying completely at this point.

Just notice a couple of things about my videos (in comparison to other videos on law school, or even your prof’s lectures):

  • They are bite-sized.  I don’t do videos that are longer than 10 minutes.  You don’t want to watch something longer than 10 minutes.  Many of my videos are shorter than 5 minutes.   Do you want to sit through 40 minutes of talking talking talking?
  • They are visual.  Most of my videos are not pictures of me and my face just talking at your like Big Brother.   I write and and I draw and I scribble because I want you to see with your eyes what I am trying to say and what I am thinking.  I do not just read a script or page through a power point while droning on and on and on and on.  (On the other hand, I could probably use drawing lessons.)
  • They are relentlessly focused on the exam.  Note that my point — even if you still learn a bit of substantive law on the way– is not for me to tell you what contracts law is.  Instead, I am trying to focus you on how to apply contracts law on a contracts law exam.  Surprisingly, this is not what your law professors do, even though your entire grade depends on your ability to do this thing that they don’t tell you how to do.

Most importantly, before and during law school, you should be relentlessly focused on the final exam.

Can I succeed in law school if English is not my first language?

Here is a question I get pretty frequently from my readers:

“Can I succeed in law school even if English is my second language/I am a bad writer?”

Here is a more specific example of this I got a couple of weeks ago:

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Apparently, a lot of Larry Law Law readers are not from the US.

Actually I address two questions.

First, if English is your FIRST language AND you were/are a terrible writer in college, I would say two things:

  • Your writing can always improve with deliberate practice, i.e., someone giving you feedback, and you working hard to respond to that feedback; BUT
  • You are facing an uphill battle. If you are a terrible writer — or worse, hate writing — why you are pursuing a career in the law, which is entirely based on expressing complex ideas with writing?

Second, I have different things to say if you are worried about your writing because English is your second language (and you are otherwise pretty bright),  OR if you are a native English speaker but you rate your writing ability as just so-so — not terrible, but not awesome.

Here is the key and the good news.

Legal writing is its own thing. And law school exam writing is even more narrow and specific.

Law school exam writing has its own rules.

If you understand those rules and can apply them — or understand those rules faster than other students in your class — you will do well in law school, even if you are just a so-so or not-great “general” writer.

On the flip side: even if you are a very good “general” writer, if you do not learn the rules of law school writing, you won’t do well.

*   *   *

Law school exam writing gives life to the late Justice Scalia’s recital of an old aphorism about legal writing (which is expressed in the form of an SAT-like analogy):

“Legal writing is to writing as military music is to music.”

What he meant was: legal writing follows its own narrow form and logic.

No piece of legal writing will approach the beauty or lyricism of The Master and Margarita, Ulysses, or The Great Gatsby. Or A Song of Ice and Fire, for that matter (since I am obviously obsessed with Game of Thrones).

In fact, it is beside the point if you do.

Literature is art.  Maybe a particular book has a purpose (exploring the ultimate ambiguity or simplicity of this life, shedding light on social issues, entertaining, uncovering the absurd, etc.).  Maybe it is an end in itself.

Legal writing (by lawyers) is not art.  It is functional. It has one purpose and one purpose only (“We’re gonna do one thang, and one thang only — killing Nat-zeesss….“): to persuade a decision maker (judge or jury) to make a particular decision within a framework of competing arguments.

Law school exam writing is functional.  It is also not art.

Law school writing has a different purpose from general writing or even professional legal writing by lawyers.

The purpose of law school exam writing is to persuade your professor that you have spotted more legal issues, more thoroughly and creatively, than 90% of the other students in your class.

That’s it.

You must write well within these confines to get a good grade.

This is bad news for good general writers who don’t take the time to know what the confines of good law school writing are.

This is great news for anyone who is a mediocre writer or does not speak English as her first language.

IF you master the confines, the unspoken rules of law school exam writing, you will do well in law school.

Even if you make grammar or usage mistakes in English.

What might be unacceptable for literary writing or even normal legal writing — some level of typos, grammatical mistakes, unexplained or uncommon abbreviations — can be tolerated by law professors (“Professors are used to typos and grammar mistakes.”)

Want some proof?

Enter D., a law student at Berkeley Law.  She was not born or raised in the United States (I won’t say where she grew up. I can say, confidently, not Mauritius).  She did go to college in the U.S.

D. started KTCOOLS the summer before she started law school.   She finished almost all of the hypos for several subjects before she went to law school.

When I had issue-spotting contests ($20 Starbucks cards as rewards), she won one contest and was runner up in another. (A lot of Starbucks gift cards I gave away…).

She won even though her submissions had some syntax or grammar mistakes that a native English speaker would not make.

But it did not matter.  Her answers were superior to those of other students because she was absolutely fluent in the specific language of law school issue spotting and exam writing.

And her professors evidently felt the same way I did.

I caught up with her after her first semester, and this is what she wrote:

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Think about that.

D. did well in her courses — and she had the second best grade in her whole class in torts.

She did better in torts than all but one person in a room full of students born and raised in the United States.

Now, she is off to a Vault Top 10 law firm in New York for the summer. (Actually, it is a Vault Top 5 firm, but who’s counting?)

D. was prepared, and excelled despite not being a native English spaker.

* * *
So, why is law school like this?

(And is this bad news if I am an excellent writer?)

Oooh, I feel another analogy coming on!

Think of the sports ice hockey and water polo.  Both sports combine a variety of skills, but each has a single foundational skill.  Meaning, there is one skill you have to at least be competent at to play at all:

  • You must be able to skate to play ice hockey.
  • You must be able to swim to play water polo.

But these foundational skills just enable you to play at all.   If you are an awesome skater or awesome swimmer, it helps, but it’s not the point of these sports (Aren’t there separate sporting events dedicated to just skating and just swimming, right?)

You only need to swim or skate well enough to score goals:

  • Wayne Gretsky, the greatest hockey player ever, was not the fastest skater (orbest shot, or biggest, toughest player, for that matter).  He skated well enough.
  • Despite having played water polo myself, I can’t name a single famous player.  There is the Hungarian Men’s National Team.  No famous swimmers amongst these players.  Yet these guys swam well enough to win nine (9!!!) Olympic Gold Medals.
  • Meanwhile, Michael Phelps — the most decorated swimmer ever — may or may not be a great water polo player.  He might beat everyone else to the ball, but what can he do with it?  Will he score?

It is the same with law school and writing.  Writing is a foundational skill, but not an end in itself:

  • You must be able to write to do well in law school.
  • But you don’t need to be the best (general) writer in your class to grab all the As.
  • You just need to write well enough to show you can spot issues better than everyone else.

That’s it.

*   *   *

One other story, in the opposite direction, about an awesome law student who was a terrible writer in other contexts:

I became the Senior Notes Editor of New York University Law Review late in my 2L year.

I had to edit the student notes (academic law review article written by a current law students who are on Law Review) of both 2Ls and 3Ls.

One unnamed 3L was ranked, if memory serves, in the top 10 students in his class (not 10%, top 10, Mitch McDeere style).

He was headed to a super prestigious Second Circuit appellate clerkship. He had attended a top-3 Ivy League college.

And oh, boy could he write well for his law school exams. (His class rank and clerkship showed that he was absolutely awesome at that.)

But when I got his student note, it was . . . at best profoundly confusing.

I had to work with my best editor to untangle the confused 100-page hedgerow of a word-collage, only to ultimately publish a somewhat-less-confusing melange of purported-English-language sentences.

To this day, I STILL do not understand how he did so well in law school.

But he did.  And if the note was a fair sample of his writing, that boy could not write.

But he got As.

To my eternal confusion.

*  *  *

TL;DR version:  Not-great writers can kill it in law school.

Even non-native-English-speakers can be top law students.

IF they deliberately practice the right thing: law school exam writing and issue spotting.

A single word to prepare for law school success

When it comes to law school success, easy-to-remember advice is the best.

It is the only advice we act on.

For instance:  Jon Snow’s sword-fighting advice to Arya when he gifts her the sword:

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

That’s it.

That is the essence of sword-fighting.

Of course, sword fighting is more nuanced than that.

But at the end of the day, what do you do with a sword, when you can’t remember anything else?

Ned Stark — no slouch with a sword — agrees with Arya when she repeats what Jon said: “Stick ’em with the pointy end” is the essence of sword fighting.

And this general advice points Arya in the right general direction.

I mean, 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.

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 the “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 of TAPEAD is the essence of your law school success.

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