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61
Acceptances / Re: TEST FOR INCOMING 1L's
« on: May 07, 2005, 02:53:58 PM »
HERE'S ANOTHER TORTS FACT PATTERN:

Frank decided to go fly-fishing in the mountains.  Frank loved the mountains and as he drove up into the high green hills, he turned off his cell-phone so he wouldn't get any calls from work. Rolling down the window and breathing in the cool, crisp air, Steve reached inside his cooler and opened the first of the four beers he consumed before he reached a parking spot near a brook.  After he got out of his SUV and hiked about half a mile, Frank came upon a stranger that was later identified as Steve. Steve had apparently been attacked by a mountain lion. Steve was seriously injured, covered in animal bites and claw marks. Dropping his fly- fishing rod, Frank bent down and carried Steve back to Frank's SUV. Frank put Steve into the SUV. Then Frank raced down the mountain until he got on the public road, where he exceeded the speed limit, took a turn too fast, lost control of the SUV and crashed. Emergency personnel were in the area and saw the accident. They stopped to render aid. Frank had no injuries and Steve had been adequately strapped in and suffered no injuries due to the SUV accident. But the emergency personnel took one look at all the blood covering Steve, and shouted, "We'll take him from here." The EMS personnel raced Steve to the hospital. But the doctor at the hospital committed medical malpractice and made things a lot worse for Steve.

Now, Steve has a lawyer and wants to sue Frank and hold him liable for his injuries.


What was the standard of care that Frank owed to Steve and why did Frank owe that standard of care? Discuss.

Because Frank acted in the way he did, can he be held strictly liable for Steve's injuries that resulted from the doctor's malpractice? Discuss.


62
Acceptances / Re: TEST FOR INCOMING 1L's
« on: May 07, 2005, 12:39:20 PM »
Please don't think I meant anything like a "beatdown." In fact, thanks for putting your analysis out there. If anything, I thought the previous poster was beating down the IRAC method by saying it's a great way to be a B or a B-student.   

The real benefit of all of this is recording a discussion of how to approach law school exam writing. Devoting a little time BEFORE you get into law school about how to approach exam writing is a good thing even if you modify your approach after you get into law school and have talked to older students who have had the professors whose exams you will have to take.

There are many books that address the topic of exam writing. I mentioned in an earlier post the Charles Whitebread book, Eight Secrets of Top Exam Performance in Law School, is a good short read.  You can finish the entire book in less than two hours. It's a little basic and there are other books that build on the techniques that Professor Whitebread explains in his short book. Most books mention IRAC and then some of them try to modify it (sometimes it seems to justify the price of the book). But BAR-BRI teaches the IRAC method in its law school prep course and just about every ONE-L in the nation hears about it, so it's good to at least understand it even if you later decide it's not for you.


Here's a link to Professor Whitebread's site, look on the left side of the page and look for Test Taking Tips from an Expert:

http://lawweb.usc.edu/admissions/curriculum/pages/faculty/cwhitebread.html#


Also, I am a fan of the Examples and Explanations series, which, as its name implies, explains the law and then takes you through examples (short fact patterns) with explanations of how the law operates.  The explanations of the examples are written in a form very similiar to IRAC, so you can learn the broad concepts and then practice applying it to specific fact patterns.


63
Acceptances / Re: TEST FOR INCOMING 1L's
« on: May 07, 2005, 10:53:36 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."
 

 

64
Acceptances / Re: TEST FOR INCOMING 1L's
« on: May 07, 2005, 09:21:29 AM »
You hear it said that "there is no correct answer" to law school examinations. This statement is really very superficial and in my opinion, not that helpful as a guide to approach law school examinations.

In the movie, The Paper Chase, Professor Kingsfield says in the context of his Socratic questioning:

"At times you will feel that you have hit upon the correct answer. My questions show you that this is a total delusion on your part.  You will never find the absolute, correct answer.  There will always be another question. Question and answer followed by another question. Why don't I just give you lecture? Because through my questioning, we seek in you the ability to analyze that mass of facts between your ears. My little questions are the fingers probing your brain. We do brain surgery here. You come in here with a skull full of mush and come out thinking like a lawyer."

It's a great speech. I still like it. But remember, that speech is about the Socratic method, not exam writing. Most law school exams are "issue spotters." You have to spot the issue hidden in all those facts. There may be 10 issues, there may be 20 issues, there may be 40 possible issues. You are under time pressure. You have to identify the issue, state the rule, apply the rule to the facts and then reach a conclusion. You've got to do that quickly and efficiently. The logic to your analysis may be great. Your logical analysis might even make Aristotle proud. But if you only analyze 2 of the 10 possible issues in the fact pattern, guest what? You fail. Scott Turow discusses this challenge in One-L where he complains that law school exams don't seem to test what was taught. At least, they don't test you on how the Socratic method works. Turow also complains that law school exams seem to reward those who are best at the "quick draw." He means that many professors give the higher grades to those who quickly IRAC the issue and then move on and get to the next issue even though their analysis wasn't really very deep.

For the reasons above, I would caution against taking too literally the overly broad statement that there is no correct answer to a law school exam.  There are black-letter rules. Your logic won't save you if you are arguing that the statute of limitations for a breach of contract action is 7 years, when it's 4 years.  A better guiding principle in law school is that you take the professor, not the course. Talking to students who have had the professor in question is a recommended course of action. Try to find out what kind of exam writing the Professor prefers.  Maybe the professor is into policy and doesn't like IRAC.  If you have good information on that point, by all means, take advantage of it. But IRAC is a starting point, a point of reference.  Most students are at least familiar with it and then they customize their styles later on.   

65
I think you give credit where credit is due, and Texas Tech had the best pass rate, hands down. Texas Tech was Number One this time around on the statistic that mattered.

66
Well, actually, on the July 2004 Texas Bar Exam, UT was number one. Baylor came in second. 

67
General board for soon-to-be 1Ls / Texas Law Schools' Bar results
« on: May 06, 2005, 08:08:27 PM »
The results are in from the February 2005 Texas Bar Exam.  The results for the Texas Law Schools are listed below:

1. Texas Tech [Passed 90.63 percent--9.37 percent failed]
2. Baylor [Passed 90.38 percent--9.62 percent failed]
3. UT Law [Passed 87 percent--13 percent failed]
4. SMU [Passed 84 percent--16 percent failed]
5. UH [Passed 81 percent--19 percent failed]
6. Tex. Wes. [Passed 73 percent--27 percent failed]
7 St. Mary's [Passed 72 percent --28 percent failed]
8 South Texas [Passed 70 percent--30 percent failed]
9 Texas Southern [Passed 60 percent--40 percent failed]

Congratulations to Texas Tech for the highest bar passing rate.

68
Acceptances / Texas Schools' Bar Exam results
« on: May 06, 2005, 08:04:39 PM »
The results are in from the February 2005 Texas Bar Exam.  The results for the Texas Law Schools are listed below:

1. Texas Tech [Passed 90.63 percent--9.37 percent failed]
2. Baylor [Passed 90.38 percent--9.62 percent failed]
3. UT Law [Passed 87 percent--13 percent failed]
4. SMU [Passed 84 percent--16 percent failed]
5. UH [Passed 81 percent--19 percent failed]
6. Tex. Wes. [Passed 73 percent--27 percent failed]
7 St. Mary's [Passed 72 percent --28 percent failed]
8 South Texas [Passed 70 percent--30 percent failed]
9 Texas Southern [Passed 60 percent--40 percent failed]

Congratulations to Texas Tech for the highest bar passing rate.

69
Acceptances / Re: TEST FOR INCOMING 1L's
« on: May 06, 2005, 07:57:26 PM »
Be careful about taking what you've heard from other 1Ls as the absolute truth. If you trust these individuals, then fine. IRAC is just a method, a form, nothing more, nothing less. By itself, it's not "a great way to get a B or a B-" just as, by itself, it's not a great way to get an A or an A-. 

Studying harder than you've ever studied before is the method that you have to use to get the top grades. IRAC is just a guide to organize specific sections of the massive amount of material contained in any full semester law school course. Maybe you'll find IRAC too structured and it won't work for you. It's true that some never get the hang of it.  If you're into coming up with some form of your own, go right ahead. If it works, keep doing it. But I'd also advise against falling into the trap that many fall into of just writing in a kind of stream-of-consciousness information dump that wanders all over the place and misses the issues the professor believes are there in the fact pattern and need to be discussed.     

70
Acceptances / Re: TEST FOR INCOMING 1L's
« on: April 30, 2005, 06:38:37 PM »
Here's my PETITION IN INTERVENTION and Motion to Consolidate (I'm not sure why there were two identical topics posted in different areas of this board and this one was under Acceptances)

Yes, the common-law doctrine of assumption of the risk has been largely abrogated by comparative negligence schemes. That's why the question would be a little odd on a law school exam. However, I think you would approach it as follows:

ISSUE: The issue is whether a person attempting a rescue who enters into a vehicle when the driver has informed the person that the driver has been drinking would be barred from recovering for injuries caused by the driver by the assumption of the risk statute. 

RULE:  The rule is that where a plaintiff voluntarily and knowingly assumes a risk, the defendant has a defense of assumption of the risk that precludes the plaintiff from recovering. The statute creates no exceptions for minors. However, one exception where the assumption of the risk defense does not apply has to do with an emergency situation. The emergency exception is reflected in the language of the statute because B did not voluntarily assume a risk created by the emergency.

APPLICATION: Here, based solely on the facts presented, an emergency exists because A has a broken leg and is incapable of walking and is helpless in the wilderness as night is falling. B, who has no other alternative because it is a lonely road and B has already waited for a long time before this one car has appeared, is reacting to that emergency and is trying to rescue A.

CONCLUSION: Therefore, because an emergency exists in a rescue situation, the assumption of the risk defense may not apply to B and B may seek a recovery from the driver for B's injuries.


Now, I'm not saying that the person who posted the hypothetical "fact pattern" above wrote the perfect Torts question. However, it does show that sometimes test questions, when you're confronted with them under time pressure, seem ambiguous and you want more information.

You may ask yourself: well, is it an emergency, was the femur broken, how far were they from a ranger station? But all you have are the facts as presented and perhaps 30 minutes or so to write an answer. And remember, there is just one exam determining your whole grade for the semester. I've even been told that some law professors say before the test, you have all the facts you need to answer the question. So, you just have to take the facts as presented and try your best to come up with an answer.


You can also see how hard it is to stay on topic. Inevitably, you get out of the test wondering if you addressed all the issues, and you start to worry.

Then another student comes up to you and says, "Did you get the strict products liabilty issue?"

You say, "What strict products liabilty issue?"

And the other student says, "The car went out of control, strict products liability."

For a moment, you panic. Could the other student be right? Of course, you don't have the exam with you because you had to turn in both your blue book and the test question to the professor. You seem to remember that the call of the question asked you to address whether B could recover for his injuries against the driver. But the call of the question had some kind of typo in it (something like, "against his injuries"). You just ignored the typo because it was just a typo. Or was it? Did you just make a horrible mistake? Could the other student be right? You don't know.  Then you start to convince yourself you blew it.  And you won't know for several weeks if you did blow it--until the grade comes back. But tomorrow, you have your Contracts final and you've got a 50 page outline and you'd better get to studying.



It has been said by others that when students use the IRAC method (Issue, Rule, Application, Conclusion) to write their answers, the area where most students fall down is the APPLICATION section.  The Application needs to apply the law to the facts.  Now, there are some law school professors who want to see a policy discussion, but many advise not to assume that the professor cares about policy.  Many do not. If you spend your precious time writing about policy on an exam given by a law professor who doesn't care about policy, your grade suffers.  Many issue-spotter exams test exactly what their name implies, the ability to spot issues. Often, the conclusion that you reach is not the most important part of the exam; but you should reach a conclusion.  See Eight Secrets to Top Exam Performance in Law School, Charles Whitebread. 

Again, I'm not saying that the person who wrote the fact-pattern above wrote a great law school exam question.  However, sometimes the most brief, the most ambiguous, the most sketchy, fact pattern can be the most difficult.   That's why in ONE-L, the feared Contracts professor who always wanted to be known as the most difficult professor at Harvard Law School gave his students for their one and only final exam "a disordered series of phrases of various nursery rhymes." Scott Turow, One-L, (Warner Books 1977) p. 268. 

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