I have kids. (Hang on — you’ll see what this has to do with the standard of care soon.)
My kids are sometimes clumsy and have accidents. (Like any kids who are not partly genetically cats.)
They will trip and fall . . . over their own feet. Or my feet. Or my wife’s. Or each other’s (although I think that’s kind of on-purpose tripping.)
And I like to think of myself as an enlightened father — kind, strong, wise . . . and most of all cool, like Phil Dunphy from Modern Family.
Until they trip and suddenly I find myself screaming useless things like “Don’t fall!’ when they fall or “Don’t drop shit!” when they drop shit.
Anyhoo, I’ve noticed — grading a lot of 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.)
The next thing you is to formulate a standard of care that is the basis of the duty that the defendant owes the plaintiff.
But when most students do this, they tend to use a simple formula, which apparently is borrowed from my Cool Dad Playbook:
Standard of care = “Don’t do [Harm identified in fact pattern.]”
That is, most students take exactly the approach I do in my dumb moments with my kids: “Don’t [fall!] Don’t [drop shit on my head!] Don’t [leave toxic waste in my swimming pool for my guests to choke on]!”
There is a different, better way.
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: