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:

How To Ace A Law School Exam . . . While Drunk?

Can you really ace a law school exam while drunk?

Don’t be silly.

Does this make sense:  “Drunk person + law school exam = A”?

No, of course not.  THAT DOES NOT COMPUTE.

But maybe an A-?

Well…  that, at least, is possible.

I know . . . because I did it.

I got an A- on a constitutional law exam, a 72-hour take home exam.

This despite the fact that I was drunk for basically the first 24 hours of the test, and horribly hung over the remaining 48 hours.

How was this possible?

I am not saying this to brag. Well, kind of, but not really.  It was really stupid.

I am telling you this story so you know a couple of things:

  • Law school is not fair.
  • If you want to get As, you need to focus on certain skills (because EVERYONE in law school is smart and hard-working).
  • If you have those skills, you will get As, even in less-than-ideal circumstances.

To paraphrase Forrest Gump: I am not a smart man, but I know what law school exams were.

If you know what works — and just as importantly, what does not work — in law school to get you good grades, those skills stay with you.

(Just like, this one time when I was at Starbucks, and someone dropped an oatmeal chocolate chip cookie — wtf, oatmeal and chocolate chips? — and my ninja training took over, and I nearly caught the cookie before it shattered into a million sad little pieces.)

The right training — that builds muscle memory, or what feel like automatic reflexes — lets you perform well, even when you take exams under conditions that are not ideal.

But you have to develop these skills in your first year of law school.

The wrong training will mean that you will spend years frustrated — no matter how hard you work at the WRONG THINGS.

(Like, without ninja training like mine, you would have had no chance to catch that oatmeal chocolate chip cookie at Starbucks that I almost caught but didn’t, but either way, my non-catching was more full of ninja-like reflexes than your hypothetical… but I digress.)

In fact, that whole semester — spring of my 2L year — was not ideal for me.

I had what I felt were overwhelming responsibilities on law review.

I was the designer and writer of the horrible law review write-on competition, in addition to editing each and every student-written note.

I was a teaching assistant.

I was a research assistant.

And — not having been terribly cool in college, or high school for that matter — I liked going out a lot.

Waaaay too much non-law school stuff.

In short: I had totally violated my own advice not to do too many extracurriculars in law school (law review is a huge exception).

But I survived — and got good grades — because of the skills I learned my first year.

(And what I want to do with Larry Law Law is to pass on these skills to you.)

Before I tell you what happened, or why I got an A- (and why I am disappointed I got an A-), let me take a step back.

You might be asking yourself, what is so special about getting an A-?

Well, most people who go to law school got excellent grades in college.

But there is a forced curve in law school.

Not just some, but MOST people who were A-students in college end up becoming B-students in law school.

That is by design. Law school is sort of harsh that way. Only 10-15 percent of people are supposed to get an A or A- of any sort in any given class.

Yet weirdly, to the victor go the spoils.

Many smart, hard working people never get As at all.

Law students who in theory should have been at the top of my class — they got into Harvard and Yale law schools but came to my only somewhat less prestigious law school because they got full ride scholarships.

These students were consistent B-students. (Don’t worry, they are all fine now.).

Meanwhile, some other group of students were grabbing all the As like teenagers grabbing candy from toddlers trick-or-treating.

Now, if you haven’t gone off to law school, or are super confident about repeating your awesome college academic performance, you might be thinking “Pfffffshaw! I got As all the time! Drinking, asleep, whatevs. I am awwweeessome!”

OK, so what I am going to say is not you. The other guys or gals are going to eat the Bs, not you.

But read on if you are a little worried about law school.  (Also feel free to read on if you are not the kind of person who say things like “whatevs” and “I am awessooomme!”)

What Happened

I wouldn’t call what happened a miracle — it was basically a lot of panicking while drunk and hungover.

Basic problem was that I picked up my 72-hour take home exam at 3pm on a Friday and went to the Law Review office to work on it, just as a dozen or so 3Ls had just finished their last exams of any kind, ever.

They kindly invited me to have a beer or two with them, then a margarita or five, and suddenly I woke up the next day, still drunk, face down on the couch in the Law Review office instead of my bed.

I had vague memories of dancing badly in a really dark, but colorfully decorated Mexican place in Turtle Bay.

And then almost screamed when i woke up and realize that I’d slept though much of the exam.

(Looking back, I wish I’d had less to drink in law school. My dear first-year roommate — who had lived above a beer factory during his Mormon (Latter-Day Saints) mission in Germany — was incredibly kind and tolerant of my behavior, but he did say I would be a cautionary tale to his future children. He managed never to lose his cool even when I peed on his bedroom door one night.)

Two frantic days and nights (I didn’t sleep the last 24 hours), and the exam got done.  (During that sleepless 24 hours, a friend — who I went on a food run with — sighted Alicia Silverstone, and I did not, at 4am on our way to a Korean bodega to get potato chips).

Why did I STILL get an A- despite being drunk?

Okay, slight cliff-hanger here.  I won’t be able to articulate it all at once.  I will post more on this point in coming days.

For now, I leave it to a video to give you an overview of the skills I focused on way, way before getting drunk before my con law exam.

In short, there are three basic pillars of law school that I focused on.  As the video will tell you.  And subsequent blog posts (or emails if you are getting this by email).

Why was I disappointed that I got an A-?

Basically, because under any other circumstances — had I not gotten so drunk — I would have gotten a flat A in.

One advanced tactic — once you have mastered the basic skills of learning the law itself and issue spotting — is to get inside your professor’s head.

My con law professor was the same guy I had for first-year criminal law, a class I got a flat A in.  I became his teaching assistant for criminal law the year after.

I was Patton and he was Rommel.  That magnificent bastard, I read his damned book!

I knew him — I really knew him, how to write for him, what he liked, what he didn’t like.  His exams were famously difficult — this was no easy A — but there was a curve, and I had the benefit of knowing his mind very, very well (compared to other students, anyway).

But in one respect, law school is fair — exams are graded blind.

My exam got the treatment it deserved.  I wrote a good, but not outstanding exam, even though I had every means of writing one of the best.  This happened because I drank away 33% of my allotted time on my exam (and marred the remaining 67% of my time with a horrendous hangover and — how you say? — and upset stomach.).

Thanks 3Ls:  You helped me level the playing field to my disadvantage.

Who am I kidding?  I did that to me.

Thankfully the inner law school ninja kicked in.

NEXT TIME:  More on the three pillars of law school, and how buy yourself time by avoiding time-sucks.

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