« on: December 17, 2004, 01:48:29 PM »
If any of you have read the E&E for Torts by Glannon then skip this post, b/c I'm pulling the following bad examples out of that book for things you should avoid doing on your exam. I wish I had found them earlier b/c I've been guilty of doing a couple of them a little bit on some of my exams already! But I guess its good I discoverd it before I take my Torts exam. So here goes, the 6 biggest mistakes 1L's make when writing exams:
These 6 mistakes are all in response to the following question: Please discuss the claims that the J, H, and G might assert against the possible defendants. What problems do you see with the plaintiff's claims and how do you think the court is likely to rule on them?
#6 - THE ABSTRACT EXPRESSIONIST'S ANSWER:
This fact pattern raises issues of negligence liability. Tort law provides that parties can be held liable for their negligence under certain conditions. However, defendants are not always held liable simply because they cause injury. Sometimes they are not liable even if they negligently cause injury. In order to recover, the plaintiff must establish that the defendant owed her a duty of care, breached that duty of care, that is, was negligent, and that the defendant's negligence caused resulting injury to her. If all these elements are satisfied, the plaintiff may recover in tort from the defendant...
HOW THE PROFESSOR SEES IT - The sky is blue and the grass is green and cat starts with the letter C...no *&^%! This student has wasted time on an exam writing an entire paragraph on what tort law is instead of answering the question. Nothing said here is wrong, but at the same time, this student isn't talking about anything important.
#5 - THE BACK AND FORTH ANSWER:
In this case, J will argue that A was negligent for failing to inspect the stands after the repairs were completed. A will argue, however, that he had no duty to inspect the stands, and that even if he had, he would not have discovered the defect that caused the collapse. J will argue that G was negligent, because he replaced the wooden beams with the metal "I" beams. G will argue, however, that he was not negligent because the beams were the same as the ones that had been used before. J will also argue...
HOW THE PROFESSOR SEES IT - This student sees the issues, which is good, but they don't do the analysis. They just say A will argue, this, but B will argue that, and they never expand on either side. Notice they never make a conclusion about anything either. They just keep pointing out what each side would argue. This is the #1 pitfal for law students who think that they are "arguing both sides". You are not arguing either side this way, you are merely pointing out both sides.
#4 THE REITERATOR's ANSWER:
In this case, A, the athletic director, noted the problem and hired H to inspect and repair the problem. When B found weakened beams he ordered G to replace the beams with metal "I" beams, but G used wooden beams like tht old ones instead. Later, that section of the stands collapsed, and J was injured in the collapse...
HOW THE PROFESSOR SEES IT - Stop wasting my time telling me the facts. I wrote the facts. I don't need to hear exactly what happened because I'm the one who made it up. The only time you should be talking about the facts is when you are doing your analysis. Then you NEED to talk to about the facts. but simply reciting the facts back just to tell the story of the fact pattern all over again is a waste of time on the exam.
#3 THE TANTALIZER's ANSWER:
J might try to prove that H was negligent using the doctrine of res ipsa loquitur. If J can prove that the accident that happened to her was the type of accident that does not ordinarily happen without negligence, and that, if someone was negligent, it was probably H, then she can recover on a res ipsa theory. J might also try to recover from A, the athletic director, for failing to inspect the beams after the work was done. If A owed a duty to inspect the stadium after completion of repairs, he could be liable for her injury. B may sue H for negligent infliction of emotional distress...
HOW THE PROFESSOR SEES IT - Yes that's true, if the elements are satisfied then J might win on res ipsa...so what are you waiting for? Are the elements satisfied or not? Make your analysis already. This student has spotted the issues, and has found the rules of law that COULD apply, but has not applied them. There's no analysis and no conclusion. They bring up a rule and move on before exploring if it applies or not, thus teasing the professor who's waiting to hear the good analysis.
#2 THE OVERKILL ANSWER:
J may decide to sue H for negligence in repairing the stands. However, courts do not always hold negligent actors liable in tort. the defendant must also owe a duty of care to the plaintiff. H will only be liable if it owed a duty of care to J to exercise care in doing the inspection and repairs. Generally, parties owe a duty of care to others who might foreseeably be injured from conduct that creates a risk of injury to others. For example, in driving a car we create the risk of an accident to those around us; thus we owe them a duty to drive with reasonable care. A second source of duty arises from special relationships between the victim and the defendant. In many situations actors assume a duty of care, as by taking a patient or a client, or by taking charge of a person in need of assistance. In this case, H engaged in risk-creating conduct by undertaking to repair the stands. by working on the stands, it created risks of injury if the repairs were faulty. they could foresee injury to patrons at the game if they negligently supported the stands or otherwise failed to exercise due care...
HOW THE PROFESSOR SEES IT - Everything said here is true, however, the problem is that this student has belabored the obvious, spent a lot of valuable time arguing at great length stuff we already know is true before they even started talking about the instant case. Everybody should know that J has a duty to exercise due care in doing repairs. I can't give a student a lot of credit for recognizing that fact. this usually happens to students on an exam when they finally reccognize something that they know and figure that they're going to talk about it and only it for as long as they can talk about it, because they don't know what to say about anything else. don't do that.
#1 THE EDITOR'S ANSWER:
J may try to sue H for her injuries. If H's employees had replaced the beams with smaller beams which were too weak to do the job, they would be found negligent and could be held liable for her injuries. G may try to recover from H. If H had been told that there was a problem, they would foresee injury to G from negligent repair and could be liable for it. B may sue H and G for negligent infliction of emotional distress. He would be entitled to recover for such distress under the XYZ case if he had been sitting with J in the stands and had actually seen her fall...
HOW THE PROFESSOR SEES IT - stop editing the exam with your own fact pattern. stick to the facts. Don't say, well IF this would have been different....its not different. stick to the facts. Distinguish this bad idea of saying what things would have been under DIFFERENT FACTS from a good answer that points out how a case may have been decided differently under different doctrines, such as if MPC applies in Crim Law, or if UCC applies in Contracts, or if the Restatements approach to Torts is persuasive. those are good "IF's". changing the facts is a bad "IF".
ALSO NOTE - Often the instruction paragraph in the question will ask you to discuss a subset of possible claims. Like what can A claim against B, C, and D. Don't go off on a tangent about what D can claim against Z. Stick to the question.
Hope these help. Good luck to everybody.