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:

Iron Chef and the Law: Recipes & Ingredients Are Like Claims & Elements

So previously, we discussed (1) an overall strategy for how to do well law school and (2) what NOT to do in law school.

I promised not to be so negative, but to tell you what you should do.

This time — the third part of a five piece series — I focus on the first pillar to success: master the law.

I have got a practical video on this below.

(Yes, I did those awesome drawings myself.)

Once you are done with the video, please read the below.  (It is different that what is in the video and, if anything, will make the video make more sense.)

Mastering the Law and the Three Pillars of Law School Success

Let me get even more basic for a second.

As I mentioned before, there are 3 components of studying law you must focus on to succeed in law school: mastering the law, mastering issue-spotting, and mastering your professor.

In what follows, I talk in detail about issue spotting just so I can explain why you need to “master the law” more clearly.

Now, of the Three Pillars of Law School Success, mastering issue-spotting is the most critical by far.

It is the skill, I would argue, that makes you a lawyer.

Issue-spotting, to me, can be reduced to this: a friend tells you a crazy story about something badhappened to her and asks you “can I sue?” If you can answer that question accurately, with proper care, nuance and creativity, you are issue spotting. (Honestly, if you can do that, you are a motherf-ing lawyer in my book.)

BUT – big “but” there – before you can issue-spot, you need to know what the law is.

What do I mean by “master the law”?

To “master the law” in a given subject area (for instance, “criminal law,” “torts,” “tax”) means: to memorize (1) all the major claims and defenses of a major area of law; and (2) all the elements of each major claims and defenses in that area of law.

Now, what is a “claim or defense”? (I am being a little casual here, but you’ll forgive me later.)

It is the legal basis of lawsuit or criminal charge: “intent to kill murder” or “battery” or “negligence.”

And what is an “element” of a claim or defense?

The elements of a claim are every point you need to prove with facts to win a case.

A single element is a building block of the legal basis of a law suit or criminal charge: For instance: “intent,” “killing,” “caused apprehension of imminent harm, etc.”

(This is an oversimplification, but one you need right now).

A food analogy…

Think of claims or defenses as “legal recipes” and elements as “ingredients.”

You want to win a lawsuit (you want to eat a dish of something yummy).

You have to follow the recipe and have every ingredient to have that dish of food.

Think of something simple.

A root beer float.

The recipe for a root beer float requires: (1) 12 ounces of root beer; and (2) 1 scoop of ice cream (usually vanilla, but if you want to make a mess, please, be my guest, scoop and dump that Phish Food into your frosty mug of Mug).

Now, you can have varying amounts of root beer and ice cream. But you have to have both to say, with a straight face, that you’ve got an ice cream float.

No root beer? Not a root beer float. You’ve just got ice cream. You don’t even have a “root-beer-free root beer float.” That is nonsense.

No ice cream? You’ve just got root beer. You don’t even have a “low-cal, ice-cream-free root beer float.” That is equal nonsense.

Let’s not take that analogy too far. You get my point.

To have a prima facie case (your hot dish of yummy food), a chef (lawyer) started with a legal claim or defense (recipe), and met every element (added each and every necessary ingredient).

BUT BUT BUT: Law school is not that simple.

Because with law school exams, it’s not like you study recipes, and your test is to go to the store and buy the ingredients and make the dish.

NO. It is much harder than that.

A law school final exam is like the TV show Iron Chef.

For those of you who don’t know:  On Iron Chef, you are given surprise ingredients and a limited amount of time, and have to make dishes using only the recipes (claims and defenses) you have in your head.

What is going on in the head of the Iron Chef contestant at the beginning of the hour?

She is reviewing the ingredients (what do I have?) and thinking “what can I make?”

But to do that well, she needs to have lots of recipes in her head, and she needs to be able to use them actively. She is not holding recipes in her hand to go shopping. The shopping has been done by some asshole TV produces.

She has to mentally review the recipes in her head and think: what combinations of individual ingredients allow me to create what dishes?

What am I going to make?

Seth Rogan, A Bong, and What It Means to “Master the Law”

So let’s use a non-food example.

Pretend for a moment:  Seth Rogan looks me in the eye, swings at my beautiful (Bat-masked) face with his 6-foot tall glass bong, and makes contact. I am bleeding. Badly.

(But please, don’t mind me. Keep reading. I’m fine.)

Can I sue? Would I win?

How do I know the answers to those questions?

In casual conversation, we might think he owes me some kind of money. The dude hit me. The worst person in the world hit me.

How would a lawyer treat this?

A lawyer would not let me go to court and scream, “Waaaaaaaah, the star of The Interview hit me in the face with a bong and I am bleeding, GIVE ME MOOOOOONEEEEEEYYY!!!”

No. I have got to speak the language of the law. A court hears me say that and hears a toddler’s babble: “Gah goo goo blah boo boo MOOOOOONEEEEEEYYY!!!”

My lawyer has to present a dish, identifying a recipe and presenting each and every ingredient required by the recipe. to mix metaphors, my lawyer must say something to the court that is complete according to the rules of legal grammar (at least subject and verb, let us say).

Seth Rogan’ physical violence here is only the beginning: it starts us on our search for legal theories (claims) that we can win on and that a court can recognize.

So, my lawyer starts like the Iron Chef contestant, in search of a claim to
apply (issue spotting), and then we need to apply it (issue analysis).

Sounds like . . . well, what torts deal with hitting someone?

  • Assault? No, under the law, assault is “almost hitting someone or pretending to hit someone.”
  • Intentional Infliction of Emotional Distress? No, that’s not it either.
  • Negligence? Maybe. Hitting is sometimes involved. You know, the State Farm commercials seem to involve a lot of stuff being wrecked. Maybe people. Gotta think more about that.
  • Battery? Yes, that sounds more like it. Battery is “hitting someone on purpose.”

Now we know we need to do issue analysis.

Analysis means seeing if we can identify facts (or make factual inference) that match each and every element of the claim.

But we need to know what every element of battery is to do this analysis.

We need the “recipe.”

And not only that, but we need enough recipes to find the right one.

(By the way, I realize you are pretty chill and probably stoned, but if Seth Rogan’s people are reading this, SETH ROGAN NEVER HIT ME IN THE FACE WITH HIS BONG. I SHOULD BE SO HONORED. THIS IS A WORK OF FICTION – CRAPPY FICTION – WRITTEN PURELY FOR PEDAGOGICAL ENDS THAT YOUR FREAKS AND GEEKS PERSONA SHOULD SURELY APPRECIATE. OR NOT. DIDN’T WATCH THAT SEMINAL SHOW. YES, SETH, I SAID “SEMINAL.” JACKASS.)

So here is a simple definition of battery, which has five elements:

“A battery is (1) an intentional (2) offensive (3) impermissible (4) touching (5) that caused harm.”

There are other formulations of battery – just as there are sometimes different recipes for even simple dishes. When you are in school, use exactly the definition your professor gives you. But this will be pretty close to what you learn.

Each element may seem clear, but we should discuss each one further.

And after that explanation, let’s see how the facts (or inferences I can make) fit the elements of law:

(1) Intentional

  • Definition: “Whatever you did, you did it on purpose, not on accident.”
  • Facts: Seth Rogan eyeballed me [fact], which is strong evidence that meant to hit me [conclusion]. If it were an accident, maybe he wouldn’t have looked at me [factual inference].

(2) Offensive

  • Definition: “This thing you did is generally recognized as not so nice as we normally understand it.” (Super technical, right?” Not a light pat on the back.
  • Facts: This is easy, no one thinks getting hit with a ridiculously oversized “I am compensating for something” bong is nice.

(3) Impermissible

  • Definition: “You did not have permission.”
  • Facts: In the facts as given, I did not turn to Seth Rogan and say “please hit me with your bong” or even “I don’t mind if you hit me with your bong.”

(4) Touching

  • Definition: means “made physical contact with me.”
  • Facts: I am a human being, and Seth Rogan’s bong made contact with me.

(5) That Caused Harm

  • Definition: this means “it hurt me in some way” (but the law of battery recognizes some dignitary harms that don’t require broken bones or blood being drawn). Spitting on someone is sufficient harm, as is an unwanted grope in an erogenous zone (no harm to the tissue, but clearly unwanted and terrible for the person).
  • Facts: Yup, that hurt.
  • Note: Sometimes this is an optional element for proving liability. Sometimes the extent of harm goes to how much I can collect in damages.

Now, if I am missing proof on any of these elements, I can’t even make out a case.

In a full trial, if Seth Rogan can prove that I am simply wrong about a fact I offer as to just one of these elements – JUST ONE – then I lose the claim.

If I lied, and in fact, I told Seth, “No, please, hit me really hard with that bong, Seth Rogan!”, then I lose.

Just as a root beer float is not a root beer float without root beer and ice cream.

Recap:  Why You Need To Master the Law

We need to know claims and defenses (defenses – like intoxication or self-defense – have elements and must be proven just the way a claim must be proven).

So let’s back up.

You need to master the law so you can master issue spotting, the very skill your law school grades depend on.

Specifically, you need to know enough law so you can pick out facts that are “issue hooks” that would trigger a deeper look at a particular legal claim or defense.

Once you decide you need to look deeper at a set of facts to see if a claim or defense matches the facts, you need to know all of the elements of the claim or defense to do the analysis.

Then, repeat this exercise  until YOU BECOME THE IRON CHEF!

Next time: Part 4 on Mastering Issue Spotting.

Also: I am having some technical difficulties. I do plan on opening up sales to my course, Kick the Crap Out of Law School in my next post.

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