1L Exam Prep and Motivation Thread

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BlueDiamond
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Re: 1L Exam Prep and Motivation Thread

Postby BlueDiamond » Wed Dec 14, 2011 4:28 pm

can anyone explain the loss of chance doctrine to me? or lost chance.. whatever its called

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Eugenie Danglars
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Re: 1L Exam Prep and Motivation Thread

Postby Eugenie Danglars » Wed Dec 14, 2011 4:34 pm

BlueDiamond wrote:can anyone explain the loss of chance doctrine to me? or lost chance.. whatever its called


You generally have to show a causal link between D's negligence and the lost chance. It applies only to medical malpractice, and the majority view for damages is % of chance lost times value of life/limb/whatever. There's a couple other ways to calculate (all or nothing and more likely than not, I think, but I'm not sure). You can also get damages for increased future likelihood of harm based on the % chance that you'll be hurt in the future by D's negligence. You also pretty much always need expert witnesses for these ones.

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Re: 1L Exam Prep and Motivation Thread

Postby BlueDiamond » Wed Dec 14, 2011 4:39 pm

Eugenie Danglars wrote:
BlueDiamond wrote:can anyone explain the loss of chance doctrine to me? or lost chance.. whatever its called


You generally have to show a causal link between D's negligence and the lost chance. It applies only to medical malpractice, and the majority view for damages is % of chance lost times value of life/limb/whatever. There's a couple other ways to calculate (all or nothing and more likely than not, I think, but I'm not sure). You can also get damages for increased future likelihood of harm based on the % chance that you'll be hurt in the future by D's negligence. You also pretty much always need expert witnesses for these ones.


okay so like doctor gives patient xray and finds nothing, 9 months later gives xray and finds tumor that had to have been there at least 2 years (which would have to be shown through expert testimony).. had it been diagnosed 9 months ago patient had a 60% chance to live.. now patient has a 20% chance to live.. so loss of chance becomes 40% and then theres all the alternative ways states handle it to see what plaintiff recovers?

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johansantana21
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Re: 1L Exam Prep and Motivation Thread

Postby johansantana21 » Wed Dec 14, 2011 4:47 pm

I have a question.

For design defects, are companies liable if the design was made in 1990, and it was the best design available back then, and in 1995 they come out with a new design that's much safer.

Does the company have a duty to warn? Or upgrade?

BlueDiamond
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Re: 1L Exam Prep and Motivation Thread

Postby BlueDiamond » Wed Dec 14, 2011 4:48 pm

johansantana21 wrote:I have a question.

For design defects, are companies liable if the design was made in 1990, and it was the best design available back then, and in 1995 they come out with a new design that's much safer.

Does the company have a duty to warn? Or upgrade?


with my torts exam about 40 hours away i really wish i knew how to answer this

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Eugenie Danglars
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Re: 1L Exam Prep and Motivation Thread

Postby Eugenie Danglars » Wed Dec 14, 2011 4:50 pm

BlueDiamond wrote:
Eugenie Danglars wrote:
BlueDiamond wrote:can anyone explain the loss of chance doctrine to me? or lost chance.. whatever its called


You generally have to show a causal link between D's negligence and the lost chance. It applies only to medical malpractice, and the majority view for damages is % of chance lost times value of life/limb/whatever. There's a couple other ways to calculate (all or nothing and more likely than not, I think, but I'm not sure). You can also get damages for increased future likelihood of harm based on the % chance that you'll be hurt in the future by D's negligence. You also pretty much always need expert witnesses for these ones.


okay so like doctor gives patient xray and finds nothing, 9 months later gives xray and finds tumor that had to have been there at least 2 years (which would have to be shown through expert testimony).. had it been diagnosed 9 months ago patient had a 60% chance to live.. now patient has a 20% chance to live.. so loss of chance becomes 40% and then theres all the alternative ways states handle it to see what plaintiff recovers?


Hm...the case we read involved a guy who died and likely would have died anyhow but lost a small chance of recovery due to negligence. It seems like it could be applied in your hypo but I'm not sure. I also suck at probability, but I think it might be a 67% lost since he was deprived of 2/3 of the chance he would have otherwise had? Don't quote me on this.

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Eugenie Danglars
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Re: 1L Exam Prep and Motivation Thread

Postby Eugenie Danglars » Wed Dec 14, 2011 4:52 pm

johansantana21 wrote:I have a question.

For design defects, are companies liable if the design was made in 1990, and it was the best design available back then, and in 1995 they come out with a new design that's much safer.

Does the company have a duty to warn? Or upgrade?


I'm not sure...good question. What I do know: If they do warn, it can be used as proof of a defect. Also, a failure to warn does not incur liability unless the warning would have prevented the injury.

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crossarmant
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Re: 1L Exam Prep and Motivation Thread

Postby crossarmant » Wed Dec 14, 2011 4:53 pm

johansantana21 wrote:I have a question.

For design defects, are companies liable if the design was made in 1990, and it was the best design available back then, and in 1995 they come out with a new design that's much safer.

Does the company have a duty to warn? Or upgrade?


From my understanding that is the state of art defense. As long as the benefit of the product outweighed the risk. If they continued to sell the more dangerous model after 1995 despite being able to make it safer, then it could be product defect.

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orm518
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Re: 1L Exam Prep and Motivation Thread

Postby orm518 » Wed Dec 14, 2011 5:07 pm

Arbiter213 wrote:Another example: making someone clean a machine with gasoline in a closed space with an open flame (pilot light) is negligent because it's likely to cause an explosion. The fact that the explosion is caused by a rat catching fire and running into the gasoline is immaterial.


This case made first semester worth it and I didn't even read the whole thing, just Glannon's treatment in the Torts E&E.

There's a reason they say the only reason Torts stays in the 1L curriculum is so we have something funny to read.

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orm518
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Re: 1L Exam Prep and Motivation Thread

Postby orm518 » Wed Dec 14, 2011 5:16 pm

Eugenie Danglars wrote:
BlueDiamond wrote: had it been diagnosed 9 months ago patient had a 60% chance to live.. now patient has a 20% chance to live..


Hm...the case we read involved a guy who died and likely would have died anyhow but lost a small chance of recovery due to negligence. It seems like it could be applied in your hypo but I'm not sure. I also suck at probability, but I think it might be a 67% lost since he was deprived of 2/3 of the chance he would have otherwise had? Don't quote me on this.


The case you're referring to is Herskovits v Puget Sound Health from WA, no? Chance was 39% to survive and it was reduced to 25%, causing a 14% loss of a chance. This case was tricky, a plurality suggested the case go to the jury on a lesser standard of proof the so-called substantial factor test. If the jury decides the negligent diagnosis, which caused a 14% decrease if chance of survival was a "substantial factor" than P could recover FULL WRONGFUL DEATH.

That's not the majority view though, as some people have pointed out. For states that proportion wrongful death damages to the loss of a chance the proportion is the loss of total chance, not loss of chance from the prior state. So in your case if the survival was 60% if diagnosed properly and 20% if diagnosed when it was, the jury can award 40% wrongful death damages.

However, I think your hypo is flawed. When the chance of survival before the negligent condition is greater than 50% it can go to the jury on a standard "more probable than not" chance that the negligence caused the death. Think about it, before the negligence you had a more probable than not chance of survival (60%) now it's 20%. The doctor's negligence more probably than not caused your death, FULL damages.

The loss-of-a-chance stuff is really only radical because it allowed Plaintiffs who had a less than 50% chance of survival anyways to sue for damages. If the standard proof burden applies somone who has a 49% chance of survival, a doctor's negligence even bringing it down to 5% would not "more probably than not" cause the death.

Phew.

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Eugenie Danglars
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Re: 1L Exam Prep and Motivation Thread

Postby Eugenie Danglars » Wed Dec 14, 2011 5:20 pm

orm518 wrote:
Eugenie Danglars wrote:
BlueDiamond wrote: had it been diagnosed 9 months ago patient had a 60% chance to live.. now patient has a 20% chance to live..


Hm...the case we read involved a guy who died and likely would have died anyhow but lost a small chance of recovery due to negligence. It seems like it could be applied in your hypo but I'm not sure. I also suck at probability, but I think it might be a 67% lost since he was deprived of 2/3 of the chance he would have otherwise had? Don't quote me on this.


The case you're referring to is Herskovits v Puget Sound Health from WA, no? Chance was 39% to survive and it was reduced to 25%, causing a 14% loss of a chance. This case was tricky, a plurality suggested the case go to the jury on a lesser standard of proof the so-called substantial factor test. If the jury decides the negligent diagnosis, which caused a 14% decrease if chance of survival was a "substantial factor" than P could recover FULL WRONGFUL DEATH.

That's not the majority view though, as some people have pointed out. For states that proportion wrongful death damages to the loss of a chance the proportion is the loss of total chance, not loss of chance from the prior state. So in your case if the survival was 60% if diagnosed properly and 20% if diagnosed when it was, the jury can award 40% wrongful death damages.

However, I think your hypo is flawed. When the chance of survival before the negligent condition is greater than 50% it can go to the jury on a standard "more probable than not" chance that the negligence caused the death. Think about it, before the negligence you had a more probable than not chance of survival (60%) now it's 20%. The doctor's negligence more probably than not caused your death, FULL damages.

The loss-of-a-chance stuff is really only radical because it allowed Plaintiffs who had a less than 50% chance of survival anyways to sue for damages. If the standard proof burden applies somone who has a 49% chance of survival, a doctor's negligence even bringing it down to 5% would not "more probably than not" cause the death.

Phew.


Actually, I was talking about Matsuyama v. Birnbaum from MA, I think, and quite recent (2008?), but it's the same idea.

The issue with they hypo I was discussing from Blue Diamond is the guy didn't die (yet?), so the whole wrongful death thing is a no-go.

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Re: 1L Exam Prep and Motivation Thread

Postby orm518 » Wed Dec 14, 2011 5:31 pm

Eugenie Danglars wrote:Actually, I was talking about Matsuyama v. Birnbaum from MA, I think, and quite recent (2008?), but it's the same idea.

The issue with they hypo I was discussing from Blue Diamond is the guy didn't die (yet?), so the whole wrongful death thing is a no-go.


Ah, yeah I think my professor mentioned that MA had recently taken a loss-of-a-chance case, but he didn't include it in the curriculum.

As Blue Diamond's hypo the courts look at the loss of chance as the injury itself. So even if the P didn't die, they can sue for the negligence and be awarded the percent of full damages if they had died, in accordance with the percent loss of a chance. The P will argue that the negligence probably increased pain and suffering and medical bills, so they should get % loss of chance as an injury in itself, even though the negligence didn't cause them to die, since they didn't physically die.

From Matsuyama: "However, "injury" need not mean a patient's death."

edit: didn't know that "BlueDiamond" referred to a forum poster, whoops.
Last edited by orm518 on Wed Dec 14, 2011 5:33 pm, edited 2 times in total.

BlueDiamond
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Re: 1L Exam Prep and Motivation Thread

Postby BlueDiamond » Wed Dec 14, 2011 5:32 pm

yeah this discussion definitely just confused me even more haha

i was under the impression you can still sue for loss of chance even outside the wrongful death arena

like... if a woman had breast cancer and but for docs negligence she had a 70% chance of saving her breast with chemotherapy treatments and then X months later he diagnoses her and she has a 20% chance of keeping the breast with the same chemo treatments.. say the cancer is totally curable and the only issue is whether it can be cured and she can avoid this bodily harm

wouldnt you take the value of her loss which is 50% and discount it by the odds the doc's negligence made no difference? here, it seems more likely than not that his negligence made the difference (again assuming it could be cured when found) and then depending on state by state variations would determine whether she made a full recovery or a percentage-based recovery?

wishing i got put in a torts section that didnt have a tenured professor

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Eugenie Danglars
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Re: 1L Exam Prep and Motivation Thread

Postby Eugenie Danglars » Wed Dec 14, 2011 5:39 pm

BlueDiamond wrote:yeah this discussion definitely just confused me even more haha

i was under the impression you can still sue for loss of chance even outside the wrongful death arena

like... if a woman had breast cancer and but for docs negligence she had a 70% chance of saving her breast with chemotherapy treatments and then X months later he diagnoses her and she has a 20% chance of keeping the breast with the same chemo treatments.. say the cancer is totally curable and the only issue is whether it can be cured and she can avoid this bodily harm

wouldnt you take the value of her loss which is 50% and discount it by the odds the doc's negligence made no difference? here, it seems more likely than not that his negligence made the difference (again assuming it could be cured when found) and then depending on state by state variations would determine whether she made a full recovery or a percentage-based recovery?

wishing i got put in a torts section that didnt have a tenured professor


If I'm reading you correctly, you don't need to discount the 50% since if he weren't negligent, she would have had the 70% chance, and since he was negligent, she just has the 20% chance. I looked it up, and the three views are:
a) traditional- P must prove that D's neg deprived P of at least >50% chance of a more favorable outcome. If proved, damages are for entire injury. Problem here is it bars recovery for even super negligent doctors based on the illness, progression, etc.
b) increase in harm- P must prove that D's negligence "more likely than not" increased the harm or destroyed a "substantial possibiliity" of more favorable outcome. Damages is whole illness/harm. Very hard to apply/prove.
c) Lost chance-the loss of opportunity is itself the injury in question . Damages are % chance lost x value of limb/illness/whatever.

And, you can totally apply this outside of wrongful death- I was just saying that I had not personally done so. But now I have, so thanks!

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Re: 1L Exam Prep and Motivation Thread

Postby orm518 » Wed Dec 14, 2011 5:39 pm

BlueDiamond wrote:i was under the impression you can still sue for loss of chance even outside the wrongful death arena


You can. The loss of a chance is the injury in itself.

However, your breast cancer hypo might need tweaking, most cancers are deadly, period. So, a plaintiff might just go ahead and find fatality statistics for the two time points at which the diagnosis occured: the standard of care timepoint and the later negligent timepoint. From that she'd have a loss of a chance to sue upon.

If she's forced to get a mastectomy, that I think would be an injury in itself the plaintiff could include in her suit, both physically and a big "non-economic damage" (pain and suffering from being disfigured).

Bottom line: I'm pretty sure, you wouldn't take a suit and sue on the chance of her losing her breast versus not, you'd do the math and find fatality rates and bring a suit for that percentage of the wrongful death damages. AND you'd add in any damages if she was forced to lose her breast, above and beyond the loss of chance.

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Re: 1L Exam Prep and Motivation Thread

Postby orm518 » Wed Dec 14, 2011 5:43 pm

Eugenie Danglars wrote:a) traditional- P must prove that D's neg deprived P of at least >50% chance of a more favorable outcome. If proved, damages are for entire injury. Problem here is it bars recovery for even super negligent doctors based on the illness, progression, etc.


Oh, yeah went back into my notes and saw basically this. So on Blue Diamond's 60% survival to 20% survival, I was wrong. It wouldn't satisfy the standard "more probable than not" since the doctor only caused a decrease of 40% chance of survival. I think that the 60-->20% would be of the "super negligent" types that the traditional rule wouldn't reach.

I already had torts, someone want to learn me some property?

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Re: 1L Exam Prep and Motivation Thread

Postby Gemini » Wed Dec 14, 2011 6:01 pm

BlueDiamond wrote:
Eugenie Danglars wrote:
BlueDiamond wrote:can anyone explain the loss of chance doctrine to me? or lost chance.. whatever its called


You generally have to show a causal link between D's negligence and the lost chance. It applies only to medical malpractice, and the majority view for damages is % of chance lost times value of life/limb/whatever. There's a couple other ways to calculate (all or nothing and more likely than not, I think, but I'm not sure). You can also get damages for increased future likelihood of harm based on the % chance that you'll be hurt in the future by D's negligence. You also pretty much always need expert witnesses for these ones.


okay so like doctor gives patient xray and finds nothing, 9 months later gives xray and finds tumor that had to have been there at least 2 years (which would have to be shown through expert testimony).. had it been diagnosed 9 months ago patient had a 60% chance to live.. now patient has a 20% chance to live.. so loss of chance becomes 40% and then theres all the alternative ways states handle it to see what plaintiff recovers?


Well the 60% would have meant that, more likely than not, the plaintiff would've survived. The 20% chance may be 40% less but it's actually 3 TIMES less of a chance to survive than if it was found 9 months ago. The rest, I agree with Eugenie.

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Re: 1L Exam Prep and Motivation Thread

Postby TatteredDignity » Wed Dec 14, 2011 6:02 pm

Last exam tomorrow morning. My total lack of studying today has been fed by the lie that I'll do better tomorrow if I'm fresh and don't burn myself out today.

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Re: 1L Exam Prep and Motivation Thread

Postby homestyle28 » Wed Dec 14, 2011 6:13 pm

orm518 wrote:
Eugenie Danglars wrote:a) traditional- P must prove that D's neg deprived P of at least >50% chance of a more favorable outcome. If proved, damages are for entire injury. Problem here is it bars recovery for even super negligent doctors based on the illness, progression, etc.


Oh, yeah went back into my notes and saw basically this. So on Blue Diamond's 60% survival to 20% survival, I was wrong. It wouldn't satisfy the standard "more probable than not" since the doctor only caused a decrease of 40% chance of survival. I think that the 60-->20% would be of the "super negligent" types that the traditional rule wouldn't reach.

I already had torts, someone want to learn me some property?


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Re: 1L Exam Prep and Motivation Thread

Postby northwood » Wed Dec 14, 2011 6:21 pm

johansantana21 wrote:I have a question.

For design defects, are companies liable if the design was made in 1990, and it was the best design available back then, and in 1995 they come out with a new design that's much safer.

Does the company have a duty to warn? Or upgrade?



design defects- if the product the consumer used was the one built in 1990 ( before the new design) they are still liable for their dsign defect. using hte consumer expectations tests, did hte consumer use the product in a way that a reasonable consumer would have used it? did the defect hurt the consumer? most likely yes. The new design could be viewed as evidence of another design that was cost effective to the company, and would be justifiable to build. another issue would be statue of repose- where the comopany would not be liable for injureis resulting after a set period of time after product was manufacturered. however, dpending on when the exam was written ( look at the years, it needs to be under 15 or so, dpending on statue) the claim may or may not work. IF the design was so inherently dangerours then they had a duty to warn unless it was an open and obvious danger ( like a knife). however, if they did not design it, and did not warn, then that could be another issue, but it may come down to testing and how much is known that the manufacturer knew about the design issue, and if the specs were right ( thats a manufacturing defect by the way, which is different from design defect, because the product was not built according to specs- still is strict liability)

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Eugenie Danglars
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Re: 1L Exam Prep and Motivation Thread

Postby Eugenie Danglars » Wed Dec 14, 2011 6:24 pm

northwood wrote:
johansantana21 wrote:I have a question.

For design defects, are companies liable if the design was made in 1990, and it was the best design available back then, and in 1995 they come out with a new design that's much safer.

Does the company have a duty to warn? Or upgrade?



design defects- if the product the consumer used was the one built in 1990 ( before the new design) they are still liable for their dsign defect. using hte consumer expectations tests, did hte consumer use the product in a way that a reasonable consumer would have used it? did the defect hurt the consumer? most likely yes. The new design could be viewed as evidence of another design that was cost effective to the company, and would be justifiable to build. another issue would be statue of repose- where the comopany would not be liable for injureis resulting after a set period of time after product was manufacturered. however, dpending on when the exam was written ( look at the years, it needs to be under 15 or so, dpending on statue) the claim may or may not work. IF the design was so inherently dangerours then they had a duty to warn unless it was an open and obvious danger ( like a knife). however, if they did not design it, and did not warn, then that could be another issue, but it may come down to testing and how much is known that the manufacturer knew about the design issue, and if the specs were right ( thats a manufacturing defect by the way, which is different from design defect, because the product was not built according to specs- still is strict liability)


Is this the consumer expectations test? I thought that it was whether the product was as safe as a reasonable as reasonable consumer using it in a reasonable manner would expect it to be.

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northwood
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Re: 1L Exam Prep and Motivation Thread

Postby northwood » Wed Dec 14, 2011 6:25 pm

Eugenie Danglars wrote:
northwood wrote:
johansantana21 wrote:I have a question.

For design defects, are companies liable if the design was made in 1990, and it was the best design available back then, and in 1995 they come out with a new design that's much safer.

Does the company have a duty to warn? Or upgrade?



design defects- if the product the consumer used was the one built in 1990 ( before the new design) they are still liable for their dsign defect. using hte consumer expectations tests, did hte consumer use the product in a way that a reasonable consumer would have used it? did the defect hurt the consumer? most likely yes. The new design could be viewed as evidence of another design that was cost effective to the company, and would be justifiable to build. another issue would be statue of repose- where the comopany would not be liable for injureis resulting after a set period of time after product was manufacturered. however, dpending on when the exam was written ( look at the years, it needs to be under 15 or so, dpending on statue) the claim may or may not work. IF the design was so inherently dangerours then they had a duty to warn unless it was an open and obvious danger ( like a knife). however, if they did not design it, and did not warn, then that could be another issue, but it may come down to testing and how much is known that the manufacturer knew about the design issue, and if the specs were right ( thats a manufacturing defect by the way, which is different from design defect, because the product was not built according to specs- still is strict liability)


Is this the consumer expectations test? I thought that it was whether the product was as safe as a reasonable as reasonable consumer using it in a reasonable manner would expect it to be.


yea you said it more concisly than i

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Re: 1L Exam Prep and Motivation Thread

Postby johansantana21 » Wed Dec 14, 2011 6:29 pm

Assuming that at the time of the sale, it met both the consumer expectation and the risk utility test..then what?

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Re: 1L Exam Prep and Motivation Thread

Postby cinephile » Wed Dec 14, 2011 6:29 pm

So, I did what I knew I shouldn't have done. I talked the exam over with a couple of people today and realized a couple of big things I missed. Now I hate myself. Great motivation for the next exam.

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Re: 1L Exam Prep and Motivation Thread

Postby johansantana21 » Wed Dec 14, 2011 6:30 pm

cinephile wrote:So, I did what I knew I shouldn't have done. I talked the exam over with a couple of people today and realized a couple of big things I missed. Now I hate myself. Great motivation for the next exam.


It's ok bro, at Yale you can fail and still get Skadden.




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