Am I writing answers correctly? Any help appreciated!

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Diet_Coke
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Am I writing answers correctly? Any help appreciated!

Postby Diet_Coke » Thu Dec 09, 2010 12:36 am

I received a B on a CivPro practice midterm earlier in the year, and I can't seem to figure out how to break into the A's. My professor commented that my midterm was "written like a treatise" in that it exhibited a thorough understanding and explanation of the law, but didn't analyze the facts deep enough. There were paragraphs she said were correct, but didn't receive any points because they discussed what the law was instead of analyzing the facts.

We constantly hear "Apply the law to the facts," but what does this really mean!? I DID apply the law to the facts, in the sense that I described how the facts satisfied the elements required by the law, but I guess this isn't what the professors have been talking about.

Sometime between then and now, I think I may have found my answer: I haven't been trusting my natural analysis because I'm too concerned with making it clear! As such, I get hung up on my form and style which costs me time, content, and is just generally restricting. For example: when I was on the debate team in high school other kids spent a ton of hours researching, writing, and practicing the delivery of their cases. Honestly, I really put little effort into it and didn't do much work at all. Instead I would just bullshit with my friends during our practices. At tournaments these kids were rigid in their style, where as I just relied on arguments that flowed naturally. As it turned out, I won my first tournament and wound up with the winningest record in the state by season's end.

Now I'm not thinking I should through out form completely, but maybe I should take a more casual approach when writing my answers. To the people that have succeeded on the exams, what do you think?

Anyway, I attached two sample answers to illustrate the general difference I'm talking about. The first I wrote in a manner similar to what I've been doing, the other I wrote as ideas just flowed into my head. If you have the time, check them out and let me know which is more similar the ones you've found successful. Ignore the issue spotting, it's not intended to be a thorough answer to the question. I just quickly wanted to write up something so you had an idea of what I was talking about.

Thanks in advance for your help! I have my first exam (Torts) on Friday, so the quicker the better! :lol:


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Question:
Jim yelled at Amy “Get away or I’ll punch your face!” As he yelled, he put his hand in her face and flicked his wrist in a “dismissing” motion. Does Amy have a claim for assault?



Answer #1 emphasizing form:
The theory of Amy’s case is that Jim assaulted her by threatening that he would punch her.

For a plaintiff to establish a prima facie claim for assault, they must establish the following elements:

1. Apprehension
2. Intent
3. Causation

APPREHENSION: The plaintiff’s apprehension must be reasonable, and over an immediate harmful or offensive contact.

The reasonableness of the apprehension is determined by the “reasonable person standard.” Generally verbal threats alone are insufficient to establish apprehension, and must be accompanied by some overt act. In our case, Jim not only verbally threatened to harm Amy, he also overtly motioned his hand within close proximity to her face. This would likely make a reasonable, ordinarily prudent person apprehensive over a potential punch to the face. As such, a court would likely find that Amy was reasonably apprehensive.

Contact is considered harmful if it is likely to result in harm to the plaintiff, and offensive if it has not been expressly or impliedly consented to. Given the facts, Amy did not consent to potential contact either expressly or impliedly. Any contact to the face is likely to result in some degree of harm. Accordingly, a court would likely find that Amy’s apprehension was over the immediate possibility of harmful contact.

INTENT: The defendant must intend to cause the apprehension experienced by the plaintiff. In our case, Jim yelled at Amy that he would punch her face if she didn’t “get away.” He went on to flick his wrist close to her face, which could scare Amy as she may interpret the beginning of his movement to actually be a punch. Additionally, Jim intended his statement to result in Amy “getting away.” His behavior could only achieve this if it caused Amy to actually expect the punch. Because he threatened to harm, and physically motioned toward her, a court is likely to find that he intended to cause apprehension.

CAUSATION: The defendant’s act must be the legal cause of the apprehension. There is an obvious casual connection between Jim’s act, and Amy’s supposed apprehension. The facts suggest no possible intervening force. This is unlikely to be disputed by the defendant.

CONCLUSION: Because all of the elements of an assault have been met Amy likely has a claim against Jim for assault.






Answer #2 emphasizing free-flowing analysis:
Amy’s theory of the case is that Jim assaulted her by threatening to punch her in the face.

For a plaintiff to establish a prima facie case against a defendant, they must establish that the defendant (1) intended to (2) cause (3) a reasonable apprehension of immediate harmful or offensive contact in the plaintiff.

APPREHENSION: Amy’s going to argue that it was reasonable for her to apprehend Jim’s punch in the face which would obviously harm her, because he yelled that he would and put his hand in her face. Jim will likely argue that this apprehension wasn’t reasonable because the threatened punch was conditional on her future behavior, and his arm motion was essentially body language intended to reiterate that condition.

The issue is whether Amy’s apprehension was reasonable. The court will consider how a reasonable person who is of like mind and physical ability would have responded in this particular situation.

Would this reasonable person have been apprehensive over Jim’s behavior? Possibly. Jim let Amy know in no uncertain terms that he would punch her if she didn’t move, a clear indication that she should expect such a punch if she only had this verbal threat to consider. However, under common law a verbal threat alone is insufficient in establishing reasonable apprehension over harmful contact—it must be accompanied by some overt act. Fortunately for Amy’s claim, Jim put his hand in her face and flicked his wrist in a dismissing motion. It isn’t a punch or even an attempt, but Amy may not have known that immediately. When Jim raised his arm to put his hand in her face, it may have not been distinguishable from Jim raising his arm to put his fist through her face. Although the threat of this punch was conditional, apprehension can often be a “knee-jerk” reaction to a situation. Additionally, the arm motion was made AS Jim was yelling, leaving zero time to consider “getting away,” or if Jim was even honestly offering her the chance to avoid receiving a punch.

Because of the verbal threat, similarity in motion, and limited reaction time afforded to Amy, a court probably wouldn’t consider it unreasonable to expect a punch in this situation.

INTENT: Amy will argue that Jim had every intention of at least causing apprehension of a punch, if not a punch itself. Jim will probably argue that it was an empty threat said out of frustration and that he would never have punched Amy, meaning that he never intended her to expect a punch.

The issue is whether Jim intended to cause Amy’s APPREHENSION of harmful contact, as opposed to actual harmful contact.

Under common law, the defendant’s actual ability to act in the manner apprehended is irrelevant, so long as there is a reasonable belief by the plaintiff that the defendant is capable of acting in that manner.

In our case, there is nothing in the facts to suggest that Amy should have known Jim would never punch her. Without any evidence establishing Jim’s threat as insincere, it is reasonable in the circumstance to believe that Jim was sincere in his threat to punch her. What else could she believe? Without any other facts, you can only infer that a threat of a punch, means the possibility of a punch.

Further, Jim’s threat was conditional. What Jim wanted was for her to move. In order to achieve this, Jim utilized an ultimatum intended to exploit Amy’s interest in freedom from physical harm. The effect of his ultimatum rested on Amy’s belief that physical harm was to be expected. As such, Jim must have at the very least intended to cause Amy’s apprehension over the punch otherwise his ultimatum would have been completely ineffective. In other words, Jim WANTED Amy to believe that he was capable of punching her, and that she WOULD be punched.

Accordingly, a reasonable person would likely become apprehensive in such a situation, and a court would probably find that Jim intended to cause that apprehension.

CAUSATION: Amy will argue that there is an obvious casual connection between Jim’s conduct, and her apprehension. Nothing in the facts suggest an intervening force, and this element is unlikely to be disputed.

CONCLUSION: Because the facts suggest it’s more likely than not that Jim (1) intended to (2) cause Amy’s (3) reasonable apprehension, Amy likely has a claim against Jim for assault.

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schmohawk
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Re: Am I writing answers correctly? Any help appreciated!

Postby schmohawk » Thu Dec 09, 2010 5:47 pm

Wow, your professor is right that is basically a 1L treatise. You spent four paragraphs talking about assault? That sort of analysis should be handled in three sentences, maybe four, at the absolute most.

Basically every single sentence you have in there that does not include facts is just about worthless. Not saying you can't have the "rule" sentence stand alone as a general definition, but I usually try to state the rule by incorporating the actors into the definition also. I don't use IRAC because it's a straight jacket. My finals are done but obviously I won't know my grades for a few more weeks, but throughout the semester the feedback for my analysis was always positive, minus the annoying 2Ls who kept telling me during "use IRAC". Let go of IRAC if you want the A, you seem to know the law well enough.

Getting to Maybe teaches this. Invest in that book if you're having trouble with analysis. Also, if you have Glannon's Torts E&E, his sample answers in the back do the same thing--right to the point.

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seespotrun
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Re: Am I writing answers correctly? Any help appreciated!

Postby seespotrun » Thu Dec 09, 2010 6:51 pm

The second approach is way better in my opinion.

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uwb09
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Re: Am I writing answers correctly? Any help appreciated!

Postby uwb09 » Thu Dec 09, 2010 7:18 pm

I only have one professor who preaches IRAC like it's the bible, another who has straight up told us that maybe 5% of his A answers use IRAC, and two others who like the basic approach of IRAC, but don't want you to strictly adhere to it.

Personally I think IRAC is useful when you are first practicing to write out exams, kind of like training wheels serve those looking to ride a bike.

If you want to win a bike race though, you gotta ditch those things. Sure you can still complete a race with them on, maybe even in the top half, but the guy without the training wheels is hitting those curves way faster, and coming out of them ahead of you, he's also way more able to blend multiple issues together in his arguments into one long readable and understandable pattern of thought.

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uwb09
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Re: Am I writing answers correctly? Any help appreciated!

Postby uwb09 » Thu Dec 09, 2010 7:21 pm

PS - two of my professors were upfront is telling us that the readability of our exams can have a up to a 10% difference on our score, one even said he has thrown out 1 or 2 bonus points to exams that include quips/humor where appropriate to help out the exam grading process and making reading your response easier, especially when it's the 30th one he's read that day.

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OGR3
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Re: Am I writing answers correctly? Any help appreciated!

Postby OGR3 » Thu Dec 09, 2010 7:28 pm

Getting to Maybe should be every 1L's best friend. Reading that helped me to not only structure answers in a way that is concise and readable, it also taught me how to quickly and easily find ambiguities in the facts and the law.

Do practice exams and then read them to a friend. Reading it aloud should help you identify weaknesses in your analysis and your friend will be able to tell you if its too wordy or circular.

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OGR3
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Re: Am I writing answers correctly? Any help appreciated!

Postby OGR3 » Thu Dec 09, 2010 7:29 pm

uwb09 wrote:PS - two of my professors were upfront is telling us that the readability of our exams can have a up to a 10% difference on our score, one even said he has thrown out 1 or 2 bonus points to exams that include quips/humor where appropriate to help out the exam grading process and making reading your response easier, especially when it's the 30th one he's read that day.


I like this. If I were a professor I would actively mark down if people used straight IRAC.

Diet_Coke
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Re: Am I writing answers correctly? Any help appreciated!

Postby Diet_Coke » Thu Dec 09, 2010 11:59 pm

Thanks guys. I'm going to trust my gut and just ditch IRAC. Between the professors mentioning it, and the 2L's/TA's constantly telling us to use it, I was weary but it seems to be the right choice.

I have read most of Getting To Maybe, and the practice exams in E&E Torts. Unfortunately I only found Maybe a couple weeks ago and didn't have the time to fully process it, but it definitely seemed helpful and I took from it what I could retain--I'll be more prepared for second semester exams.

My first exam is tomorrow at 1:30, so I'm about to turn in. Tomorrow I'll run over a quick hypo to warm myself up, but otherwise I think I've done all I can. I guess at this point all I can do is trust my ability and hope for the best!

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thexfactor
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Re: Am I writing answers correctly? Any help appreciated!

Postby thexfactor » Fri Dec 10, 2010 12:07 am

Diet_Coke wrote:Thanks guys. I'm going to trust my gut and just ditch IRAC. Between the professors mentioning it, and the 2L's/TA's constantly telling us to use it, I was weary but it seems to be the right choice.

I have read most of Getting To Maybe, and the practice exams in E&E Torts. Unfortunately I only found Maybe a couple weeks ago and didn't have the time to fully process it, but it definitely seemed helpful and I took from it what I could retain--I'll be more prepared for second semester exams.

My first exam is tomorrow at 1:30, so I'm about to turn in. Tomorrow I'll run over a quick hypo to warm myself up, but otherwise I think I've done all I can. I guess at this point all I can do is trust my ability and hope for the best!


Remember one thing. Analysis= facts + rules.

Diet_Coke
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Re: Am I writing answers correctly? Any help appreciated!

Postby Diet_Coke » Sat Dec 11, 2010 12:26 am

Ahhh shit. I totally blew my torts exam, and I knew it was going to happen just this way.

I was definitely feeling good going in: confident and focused. I get the exam, open it up, and I'm relieved to see that I know the law on pretty much all of the issues--then I start to write out an answer. Not good enough, so I delete it and start over. Not good enough, start changing paragraphs and sentences. I keep telling myself to just move on, that I put down the analysis and it's good enough. Can't pull away. I don't know why, but I'm so fucking meticulous about everything and it kills me. Word spelled wrong? Gotta change it. Word not the exact one I want to use? Gotta change it. Sentence doesn't sound just right? I've GOT to change it...

I know this about myself. I ran into the same issue on practice exams and I tried to get over it before today. I told myself I wasn't going to let it happen, and I even kept reminding myself during the exam. I was even yelling at myself in my head to just move on, but I couldn't do it. It's like some obsessive compulsive disorder, and I don't know why I can't let it go.

Anyway, the exam had two questions, with the second being broken up into two sub questions. I knew the issues a bit better and found the Question 2 hypo a bit easier to address, so I started with that. Got through most of it before I started to get really hung up on myself, so I moved on to the other question. Spent forever writing and rewriting 2 issues for a claim, and decided to go back and finish the second question. Wrapped that up and went back to question one. Decided to start working on the second claim and got about 1/3 through it before the same thing made me go back to work on the first claim. Realize that I just have to fucking move on and I only start addressing the third claim before running out of time.

All in all, I feel pretty good about the second question, but I failed to even BEGIN addressing 3/4 of the first question. I can obviously kiss that A goodbye, and I don't even think a B is possible for such an incomplete paper. I hate this feeling, hate it! I can't stand losing like this. Waking up early tomorrow to go hard on contracts and make sure this doesn't happen again.

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uwb09
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Re: Am I writing answers correctly? Any help appreciated!

Postby uwb09 » Sat Dec 11, 2010 12:38 am

haha, welcome to my contracts exam today.

Honestly, you just have to realize that professors have to set the curve somehow, and they are just going to make up the most convoluted, messed up, filled with overlapping issues thing ever.

Those "model answers" you see that come with old exams/practice exams are either written meticulously by the professor, or by the genius savant wonder kid who got 90% on the exam, when the second highest score was 70%. I Was having the same issues going into my torts exam (first one I took). It took me awhile to realize that I don't have all day to write a model answer like the professor, and I'm not a super boy genius who can whip out amazingly organized answers like some of these model answers, I can only do what I can do.

The sooner you can learn to be comfortable with your own style and what you offer, the better you'll do on exams. Don't put so much pressure on yourself to write a perfectly formed essay, trust me, 95% of the class isn't doing it either.

Diet_Coke
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Re: Am I writing answers correctly? Any help appreciated!

Postby Diet_Coke » Sat Dec 11, 2010 12:41 am

Pretty much. I couldn't believe it when some people turned in their exam with over an hour left. I needed an EXTRA hour durrrrr.

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PDaddy
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Re: Am I writing answers correctly? Any help appreciated!

Postby PDaddy » Sat Dec 11, 2010 12:52 am

Analyzing the facts and applying the law to them means three things:

1) It means analyzing the facts from multiple perspectives.

2) It means being able to point out the subtle nuances that preclude applying other laws to the facts.

3) it also means being able to not only extrapolate in a vacuum how the law applies to the facts as they are, but how certain changes in the facts might affect the application of the law.

If you PM me, I can give you a very detailed example of this. It just so happens that I am assisting with a real case that involves much interpretation. There are also some sublte nuances that, if examined from two points of view, bring different outcomes that still support the same conclusion. That's the "depth" that the prof is referring to. Look at as many possibilities as you can, don't just evaluate the scenario in front of you because, in real cases, the "facts" aren't always what you think they are...as opposing counsel in our case is learning the hard way.




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