« on: May 07, 2005, 08:53:36 AM »
The answer above also illustrates some other points about law school exam writing. I don't mean to pick it apart. I'm aware that it's not as though the answer written above is the answer that a law student would have written had this been a real exam. However, just for the sake of discussion, let's focus on what is known as the CALL OF THE QUESTION.
In the fact pattern as presented, the call of the question is as follows: Now the issue is, can Baker recover against his injuries against the Driver. Discuss..
So we are only to focus on whether Baker can recover from his injuries against the driver. What exactly do the facts say about that? Baker was injured when the driver lost control of his car and crashed, injuring Baker. Baker now wants to sue the driver. We are not to address Abel's injury (the broken leg). Nor are we to discuss how Baker may be liable to Abel. The call of the question asks for a very specific discussion. Again, a common trap in issue spotter exams is that it's easy to stray from the Call of the Question. Yes, a discussion of the legal issues concerning how Baker undertook to rescue his friend would be interesting. But that is not what the Call of the Question asks.
The fact pattern says there is only one law you need to be concerned with in this region--All those who knowingly and voluntarily assume a risk of danger cannot recover. It appears to be a statutory codification of the common-law assumption of the risk doctrine. So, is Baker barred from recovery as against the Driver by this statute? How do we go about answering this question?
Remember, it is highly unlikely that this question would be the only question on a two or three hour Torts exam (your grade for the entire course, by the way, hinges upon how well you answer this question and the perhaps two or three other questions). More than likely, this answer is worth 20 percent of your grade, and if so, you would allot 20 percent of the two or three hours you have to complete the exam to this answer. Again, without any other information, attempt to write an IRAC-style answer.(ISSUE, RULE, APPLICATION, CONCLUSION)
Can you identify the issue? If you can, state it, very clearly. What is the rule of law? Apply the rule to the facts and reach a conclusion.
The author of the answer directly above this post writes: "Going back to the first of knowingly and voluntarily. I'll argue that #1 Able did not knowingly and voluntarily accept the risk of his friend breaking his leg in the woods, and for that reason #2 Able is compelled to accept the risk of incident from the drunk driver so it is not am action taken voluntarily."
NOTE: The author notes in a footnote that he/she is bad with names and we are directed to switch the names. A footnote like this won't work on a law school exam. The Professor will not "fix" your exam for you. Try something like this on a law school exam and it could mean a failing grade.
So that I may continue, I'm going to do what a law professor would not do and transpose the names and "fix" the problem:
IT SHOULD READ:
"Going back to the first of knowingly and voluntarily. I'll argue that #1 BAKER did not knowingly and voluntarily accept the risk of his friend breaking his leg in the woods, and for that reason #2 BAKER is compelled to accept the risk of incident from the drunk driver so it is not am action taken voluntarily."
There is some good analysis going on here, but it gets lost in its focus. For example, the #1 and #2s and "the first of knowingly and voluntarily." Is the first of knowingly and voluntarily, "the question" of knowingly? Well, how is "knowingly", by itself, a question? Knowingly is not a question, it's an adverb. You need to spell out what the question is. This writer has already used a " #1 " and a " #2 " in what he says are the questions, assigning #1 as knowingly and #2 as voluntarily. Now, in the aforementioned statement, this author is introducing "reasons" #1 and #2. These "reasons" are apparently different from the aforementioned and numbered "questions." Logically, shouldn't we have answers, and not "reasons", to questions? The approach is unnecessarily confusing.
Law professors are busy people, and have to grade stacks of exams. They don't appreciate you making their job harder.
Furthermore, look how this statement is worded: "BAKER did not knowingly and voluntarily accept the risk of his friend breaking his leg in the woods, and for that reason #2 BAKER is compelled to accept the risk of incident from the drunk driver so it is not am action taken voluntarily." As to the first part, could you say that there is no risk of breaking your leg at all when hiking in the woods? I think it would be hard to make this claim. There is always a risk of this happening. We don't have anything in the facts to suggest that BAKER went hiking unknowingly and involuntarily. Therefore, we presume BAKER went knowingly and voluntarily hiking. As a result, he assumed the risk that either he or his friend could fall and break a leg. So the logic of the first part of that quoted statement has serious flaws. But the author gives that flawed statement as THE REASON for the second part of this claim ( see "and for that reason, #2"). The second part of the claim concerns the author's claim that BAKER was "compelled" to accept the risk incident from the drunk driver. Note that the author has not defined what he or she means by compelled. The common sense meaning of the verb "compelled" would not mean both involuntarily and unknowingly. Unexplained assumptions can kill you on a law school exam.
BAKER may have accepted the risk of getting into the car with the drunk driver, and I think you would want to argue his acceptance was not voluntarily, but the author has tied this reasoning to a specific statement that is hard to defend (i.e., he didn't knowingly and voluntarily accept the risk of a broken leg while hiking). This flaw could mean points on an exam. Also, we don't have much in the way of a discussion of the rule. You would have to discuss assumption of the risk (volenti non fit injuria).
The author reaches a conclusion. That's good, but it's a little conclusory and perhaps, too absolute. Rather than writing BAKER can sue the driver, it's always better to hedge your bets just a little in case the Professor doesn't agree with you. Just imagine if in the Professor's mind, there is abolutely no way BAKER can recover because of that rule and you end your otherwise decent answer saying BAKER absolutely can recover. Again, you are making it even harder for that Professor to give you the grade you want. It doesn't take much to hedge your bets and conclude as follows: "Baker MAY be able to recover from the driver."