OFFICIAL 1L Exam Prep & Motivation Thread (CSWS) Forum

[Dead Parrot]

Oh, and someone tell me if my negligence set up is acceptable:

A v. B

1) Define negligence + elements
2) Duty owed: Cardozo/Andrews or landowner duty
3) Standard of care: Reasonable person or higher standard of care
4) Breach: Reasonable person test, BPL (trying to avoid this), res ipsa, negligence per se
5) Causation: Actual - But for/substantial factor, Proximate causation - Cardozo/Andrews/superseding events
6) Harm: Did not do damages in my class. Just need to list injury.

*Defenses to bar recovery/reduce damages: Contributory negligence defenses, comparative negligence defenses

Having trouble figuring out where to put defenses. Is it better to argue at the end or within breach?

Keep breach and defenses separate. You want to focus your analysis in your breach section on whether or not the defendant was reasonable under the circumstances. Whether the plaintiff was contributorily negligent or not has nothing to do with the defendant's breaching his duty. Think of it like a trial. First the plaintiff puts on evidence and proves his case, and then defendant puts on his evidence and tries to prove otherwise.

Also I wouldn't waste too much time with the Andrews' dissent for Duty analysis. Almost no one follows it, so you'll be scoring brownie points at best (unless your professor really likes Andrews).

[LetsGoLAW]

Oh, and someone tell me if my negligence set up is acceptable:

A v. B

1) Define negligence + elements
2) Duty owed: Cardozo/Andrews or landowner duty
3) Standard of care: Reasonable person or higher standard of care
4) Breach: Reasonable person test, BPL (trying to avoid this), res ipsa, negligence per se
5) Causation: Actual - But for/substantial factor, Proximate causation - Cardozo/Andrews/superseding events
6) Harm: Did not do damages in my class. Just need to list injury.

*Defenses to bar recovery/reduce damages: Contributory negligence defenses, comparative negligence defenses

Having trouble figuring out where to put defenses. Is it better to argue at the end or within breach?

Keep breach and defenses separate. You want to focus your analysis in your breach section on whether or not the defendant was reasonable under the circumstances. Whether the plaintiff was contributorily negligent or not has nothing to do with the defendant's breaching his duty. Think of it like a trial. First the plaintiff puts on evidence and proves his case, and then defendant puts on his evidence and tries to prove otherwise.

Also I wouldn't waste too much time with the Andrews' dissent for Duty analysis. Almost no one follows it, so you'll be scoring brownie points at best (unless your professor really likes Andrews).

My professor talked about Andrews for 2 days. Plus, I guess, where in there should I throw in defenses? At the end?

[swimmer11]

I would think at the end after you state the plaintiff's injuries the defendant will counter and say that she was contrib negligent, or she assumed the risk, etc.

[SportsFan]

Oh, and someone tell me if my negligence set up is acceptable:

A v. B

1) Define negligence + elements
2) Duty owed: Cardozo/Andrews or landowner duty
3) Standard of care: Reasonable person or higher standard of care
4) Breach: Reasonable person test, BPL (trying to avoid this), res ipsa, negligence per se
5) Causation: Actual - But for/substantial factor, Proximate causation - Cardozo/Andrews/superseding events
6) Harm: Did not do damages in my class. Just need to list injury.

*Defenses to bar recovery/reduce damages: Contributory negligence defenses, comparative negligence defenses

Having trouble figuring out where to put defenses. Is it better to argue at the end or within breach?

Just wanted to say thanks (to you and the people who have been helping you) since its helped clear up negligence to me. My question/concern is being able to tell apart the duty owed and the breach of duty. Like for negligence per se, I have that as creating a duty. Or is it just both? Since it creates the duty and would tell when its breached? Also, maybe (well, probably hah) its just my professor being confusing, but does BPL only deal with breach of duty, or does it also deal with creating a duty (that is, if the burden is low enough, they should have been protecting against the potential liability)?

Sorry if this doesn't really make any sense, torts is DEFINITELY my weakest subject (and my professor is heavily concerned with policy in addition to BLL; really wants like a 50/50 mix).

[Nova]

Just wanted to say thanks (to you and the people who have been helping you) since its helped clear up negligence to me.

+1

[JRustle]

Oh, and someone tell me if my negligence set up is acceptable:

A v. B

1) Define negligence + elements
2) Duty owed: Cardozo/Andrews or landowner duty
3) Standard of care: Reasonable person or higher standard of care
4) Breach: Reasonable person test, BPL (trying to avoid this), res ipsa, negligence per se
5) Causation: Actual - But for/substantial factor, Proximate causation - Cardozo/Andrews/superseding events
6) Harm: Did not do damages in my class. Just need to list injury.

*Defenses to bar recovery/reduce damages: Contributory negligence defenses, comparative negligence defenses

Having trouble figuring out where to put defenses. Is it better to argue at the end or within breach?

Just wanted to say thanks (to you and the people who have been helping you) since its helped clear up negligence to me. My question/concern is being able to tell apart the duty owed and the breach of duty. Like for negligence per se, I have that as creating a duty. Or is it just both? Since it creates the duty and would tell when its breached? Also, maybe (well, probably hah) its just my professor being confusing, but does BPL only deal with breach of duty, or does it also deal with creating a duty (that is, if the burden is low enough, they should have been protecting against the potential liability)?

Sorry if this doesn't really make any sense, torts is DEFINITELY my weakest subject (and my professor is heavily concerned with policy in addition to BLL; really wants like a 50/50 mix).

someone can correct this if its wrong as I am super tired but here is my NPS for dummies (me)... i look at negligence as 4 distinct steps:
1. Duty - standard of care. normally ordinary reasonable, but some variations (child, blind = lower generally) (doctor, lawyer = higher generally)
2. Breach of Duty - how did defendant fail to live up to his duty. there can be tons of different ways to breach one's duty
3. Causation - even if you breached, you wont get held liable if it didnt cause the incident
4. Damages - we dont do damages, so no idea

Duty is sort of like a general baseline for ordinary reasonable. NPS creates a guideline for that. So "not driving too fast" might be a duty, but NPS would let us amend it to "not driving over 55mph." so if you are driving at 60mph then you breached your duty.

breach of duty is literally "was action X negligent?"

so if a judge wants, he can simply say "if you believe the police officers testimony that he was driving 60mph, then he was negligent" so in this way it establishes breach, just under normal cirumstances. you CAN violate a statute without necessarily being negligent, if there are extenuating circumstances. and finally if its hazy enough the judge might just let the jury use your violation as evidence in determining if you were negligent.

if you ARE negligent in NPS though, you can still get away with being negligent.. you need to then go step 3 and determine if driving over 60 mph actually caused the incident or was simply happenstance. and finally NPS only protects the class of victims intended from the type of injury intended, so you can get away with it like that too.

edit: sorry didnt even answer BPL. that is indeed only regarding breach. so if the burden is more than the probability of a loss, and that probability hits, BAM negligence (aka breach of duty, which is established in step 1).

[Dead Parrot]

Keep breach and defenses separate. You want to focus your analysis in your breach section on whether or not the defendant was reasonable under the circumstances. Whether the plaintiff was contributorily negligent or not has nothing to do with the defendant's breaching his duty. Think of it like a trial. First the plaintiff puts on evidence and proves his case, and then defendant puts on his evidence and tries to prove otherwise.

Also I wouldn't waste too much time with the Andrews' dissent for Duty analysis. Almost no one follows it, so you'll be scoring brownie points at best (unless your professor really likes Andrews).

My professor talked about Andrews for 2 days. Plus, I guess, where in there should I throw in defenses? At the end?

I would put them at the end after Duty, Breach, Cause, and Harm because that's the order my professor taught them. Go by your professor. If he/she taught them last then put them last. If he/she mixed defenses with breach then you should mix your defenses with breach.

On another topic:
Can anybody explain the level(s) of review an appelate court gives a JMOL/RJMOL decision?

[Benjamin1987]

Oh, and someone tell me if my negligence set up is acceptable:

A v. B

1) Define negligence + elements
2) Duty owed: Cardozo/Andrews or landowner duty
3) Standard of care: Reasonable person or higher standard of care
4) Breach: Reasonable person test, BPL (trying to avoid this), res ipsa, negligence per se
5) Causation: Actual - But for/substantial factor, Proximate causation - Cardozo/Andrews/superseding events
6) Harm: Did not do damages in my class. Just need to list injury.

*Defenses to bar recovery/reduce damages: Contributory negligence defenses, comparative negligence defenses

Having trouble figuring out where to put defenses. Is it better to argue at the end or within breach?

Just wanted to say thanks (to you and the people who have been helping you) since its helped clear up negligence to me. My question/concern is being able to tell apart the duty owed and the breach of duty. Like for negligence per se, I have that as creating a duty. Or is it just both? Since it creates the duty and would tell when its breached? Also, maybe (well, probably hah) its just my professor being confusing, but does BPL only deal with breach of duty, or does it also deal with creating a duty (that is, if the burden is low enough, they should have been protecting against the potential liability)?

Sorry if this doesn't really make any sense, torts is DEFINITELY my weakest subject (and my professor is heavily concerned with policy in addition to BLL; really wants like a 50/50 mix).

Negligence per se does not create a duty. The duty must already exist. For example, in the classic car accident tort hypo, the duty is not created when a person speeds or drives the wrong way. Driving is a risk creation activity. In all risk creation activities (barring a public policy exception - utilities, children and alcohol, intergenerational healthcare, etc.) we owe a duty to avoid unreasonable risks of injuries to third parties. The statutory violation autos the breach. Thus, if the P can show that the D violated a relevant safety statute (i.e. designed to protect this class of people, from this type of harm) then the D auto breaches their duty (unless they can argue an exception - emergency, safer to break law, incapacity, etc.).
You cannot breach a 'relevant' safety statute without already having a duty. The safety statute must be designed to protect a particular class of people from a particular type of harm. Thus, the duty is inherent in the statute.

Sounds like you may be having trouble grasping duty and when it arises. My advice to all, borrow an E&E from a friend or the library and read the chapter of duties. The E&E seperates duty into three categories: Risk creation, culpable omissions, and exceptions. It also, does a great job of laying policy considerations for determining duty: morality, foreseeability (key), burden, alternatives, increased safety, chilling effects, and administrability. My prof. starts all exams by giving us a wacky scenario where almost certainly no duty should exist (e.g. suing the mexican drug cartel) and we have to argue in favor of their being a duty, or point out the obvious reasons there shouldn't be a duty. Then move on, arguendo, and assess the other components of the hypo. This is common to a lot of professor from what I've seen in practice exams.

BPL - again, BPL does not create a duty. BPL is a method of determining breach. Its a simple concept.
Burden > P*L = breach
Burden < P*L = no breach
If the steps necessary to prevent harm would be more costly than the cost of the actual harm itself, than a person would not be acting unreasonably to not take those steps. The key is efficiency. There would be no sense in building a train over-pass that would cost a city 20 million dollars over 10 years if it would only prevent 5 million dollars in train related damages over that same time period. No unreasonable behavior, no breach.
However, you don't have to think about BPL in strict calculus. Think about the world in terms of BPL. When in doubt on your exams think BPL. What was the parties burden? How likely was an accident/harm (foreseeability)? What was the magnitude of the potential damage? Now, was the party acting reasonably?
Be careful with BPL though. Use creative thinking when accessing a parties burden. A tortfeasor doesn't have to spend 10k filling in an unreasonably dangerous backyard pond when he could spend 1k to put a fence and signage.

Max the check marks out. Hope this helps. Good luck!

[greenchair]

My Civ Pro prof is trying to start and finish joinder (including INTERPLEADER - WTF) into the last two lectures of the semester.

Of all things to exclude, I think interpleader tops the list. The E&E didn't even think it was worth putting in their damn book!!!!

[jgc02a]

Oh, and someone tell me if my negligence set up is acceptable:

A v. B

1) Define negligence + elements
2) Duty owed: Cardozo/Andrews or landowner duty
3) Standard of care: Reasonable person or higher standard of care
4) Breach: Reasonable person test, BPL (trying to avoid this), res ipsa, negligence per se
5) Causation: Actual - But for/substantial factor, Proximate causation - Cardozo/Andrews/superseding events
6) Harm: Did not do damages in my class. Just need to list injury.

*Defenses to bar recovery/reduce damages: Contributory negligence defenses, comparative negligence defenses

Having trouble figuring out where to put defenses. Is it better to argue at the end or within breach?

your approach is almost verbatim on how i approach negligence.

to prevail the plaintiff must prove duty, breach of that duty, actual and proximate causation, and damages.

1. duty.

2. breach. (unreasonable person, res ipsa, hand test, hand test + utility) **try and discuss all of these and get more points!

3.acutal causation (but for test/substantial factor)
4. Proximate causation
5. damages **u said you don't have to discuss

6. defenses (contrib neg, comparative neg) I always discuss both defenses at end of negligence discussion!!!!

[Benjamin1987]

Averaging 1600 words per Tort essay. That's just shy of 5,000 words per exam. What do you guys think? I feel like this may be low.

[SportsFan]

Oh, and someone tell me if my negligence set up is acceptable:

A v. B

1) Define negligence + elements
2) Duty owed: Cardozo/Andrews or landowner duty
3) Standard of care: Reasonable person or higher standard of care
4) Breach: Reasonable person test, BPL (trying to avoid this), res ipsa, negligence per se
5) Causation: Actual - But for/substantial factor, Proximate causation - Cardozo/Andrews/superseding events
6) Harm: Did not do damages in my class. Just need to list injury.

*Defenses to bar recovery/reduce damages: Contributory negligence defenses, comparative negligence defenses

Having trouble figuring out where to put defenses. Is it better to argue at the end or within breach?

Just wanted to say thanks (to you and the people who have been helping you) since its helped clear up negligence to me. My question/concern is being able to tell apart the duty owed and the breach of duty. Like for negligence per se, I have that as creating a duty. Or is it just both? Since it creates the duty and would tell when its breached? Also, maybe (well, probably hah) its just my professor being confusing, but does BPL only deal with breach of duty, or does it also deal with creating a duty (that is, if the burden is low enough, they should have been protecting against the potential liability)?

Sorry if this doesn't really make any sense, torts is DEFINITELY my weakest subject (and my professor is heavily concerned with policy in addition to BLL; really wants like a 50/50 mix).

someone can correct this if its wrong as I am super tired but here is my NPS for dummies (me)... i look at negligence as 4 distinct steps:
1. Duty - standard of care. normally ordinary reasonable, but some variations (child, blind = lower generally) (doctor, lawyer = higher generally)
2. Breach of Duty - how did defendant fail to live up to his duty. there can be tons of different ways to breach one's duty
3. Causation - even if you breached, you wont get held liable if it didnt cause the incident
4. Damages - we dont do damages, so no idea

Duty is sort of like a general baseline for ordinary reasonable. NPS creates a guideline for that. So "not driving too fast" might be a duty, but NPS would let us amend it to "not driving over 55mph." so if you are driving at 60mph then you breached your duty.

breach of duty is literally "was action X negligent?"

so if a judge wants, he can simply say "if you believe the police officers testimony that he was driving 60mph, then he was negligent" so in this way it establishes breach, just under normal cirumstances. you CAN violate a statute without necessarily being negligent, if there are extenuating circumstances. and finally if its hazy enough the judge might just let the jury use your violation as evidence in determining if you were negligent.

if you ARE negligent in NPS though, you can still get away with being negligent.. you need to then go step 3 and determine if driving over 60 mph actually caused the incident or was simply happenstance. and finally NPS only protects the class of victims intended from the type of injury intended, so you can get away with it like that too.

edit: sorry didnt even answer BPL. that is indeed only regarding breach. so if the burden is more than the probability of a loss, and that probability hits, BAM negligence (aka breach of duty, which is established in step 1).

Oh, and someone tell me if my negligence set up is acceptable:

A v. B

1) Define negligence + elements
2) Duty owed: Cardozo/Andrews or landowner duty
3) Standard of care: Reasonable person or higher standard of care
4) Breach: Reasonable person test, BPL (trying to avoid this), res ipsa, negligence per se
5) Causation: Actual - But for/substantial factor, Proximate causation - Cardozo/Andrews/superseding events
6) Harm: Did not do damages in my class. Just need to list injury.

*Defenses to bar recovery/reduce damages: Contributory negligence defenses, comparative negligence defenses

Having trouble figuring out where to put defenses. Is it better to argue at the end or within breach?

Just wanted to say thanks (to you and the people who have been helping you) since its helped clear up negligence to me. My question/concern is being able to tell apart the duty owed and the breach of duty. Like for negligence per se, I have that as creating a duty. Or is it just both? Since it creates the duty and would tell when its breached? Also, maybe (well, probably hah) its just my professor being confusing, but does BPL only deal with breach of duty, or does it also deal with creating a duty (that is, if the burden is low enough, they should have been protecting against the potential liability)?

Sorry if this doesn't really make any sense, torts is DEFINITELY my weakest subject (and my professor is heavily concerned with policy in addition to BLL; really wants like a 50/50 mix).

Negligence per se does not create a duty. The duty must already exist. For example, in the classic car accident tort hypo, the duty is not created when a person speeds or drives the wrong way. Driving is a risk creation activity. In all risk creation activities (barring a public policy exception - utilities, children and alcohol, intergenerational healthcare, etc.) we owe a duty to avoid unreasonable risks of injuries to third parties. The statutory violation autos the breach. Thus, if the P can show that the D violated a relevant safety statute (i.e. designed to protect this class of people, from this type of harm) then the D auto breaches their duty (unless they can argue an exception - emergency, safer to break law, incapacity, etc.).
You cannot breach a 'relevant' safety statute without already having a duty. The safety statute must be designed to protect a particular class of people from a particular type of harm. Thus, the duty is inherent in the statute.

Sounds like you may be having trouble grasping duty and when it arises. My advice to all, borrow an E&E from a friend or the library and read the chapter of duties. The E&E seperates duty into three categories: Risk creation, culpable omissions, and exceptions. It also, does a great job of laying policy considerations for determining duty: morality, foreseeability (key), burden, alternatives, increased safety, chilling effects, and administrability. My prof. starts all exams by giving us a wacky scenario where almost certainly no duty should exist (e.g. suing the mexican drug cartel) and we have to argue in favor of their being a duty, or point out the obvious reasons there shouldn't be a duty. Then move on, arguendo, and assess the other components of the hypo. This is common to a lot of professor from what I've seen in practice exams.

BPL - again, BPL does not create a duty. BPL is a method of determining breach. Its a simple concept.
Burden > P*L = breach
Burden < P*L = no breach
If the steps necessary to prevent harm would be more costly than the cost of the actual harm itself, than a person would not be acting unreasonably to not take those steps. The key is efficiency. There would be no sense in building a train over-pass that would cost a city 20 million dollars over 10 years if it would only prevent 5 million dollars in train related damages over that same time period. No unreasonable behavior, no breach.
However, you don't have to think about BPL in strict calculus. Think about the world in terms of BPL. When in doubt on your exams think BPL. What was the parties burden? How likely was an accident/harm (foreseeability)? What was the magnitude of the potential damage? Now, was the party acting reasonably?
Be careful with BPL though. Use creative thinking when accessing a parties burden. A tortfeasor doesn't have to spend 10k filling in an unreasonably dangerous backyard pond when he could spend 1k to put a fence and signage.

Max the check marks out. Hope this helps. Good luck!

Thanks guys! The first month or so of my torts class was a bit of a clusterfuck since my professor began by giving a general overview of the entire course (but went into detail on a few things like BPL and vicarious liability, randomly...) and then went through into duty (then breach). She also never really separated owing a duty from the standard of care, which kinda confuses me now.

So looking back through my outline/notes, my professor said that a Foreseeable Risk to a Foreseeable Plaintiff + Policy = Duty. So (correct me if I'm wrong, obviously!) that'll be the main way for me to analyze if there was a duty owed, but there could also be a duty owed from landowners. So creating a duty is relatively limited just in terms of the number of available tests/rules/whatever, am I correct? Then these things that I thought may have been associated with creating a duty (like negligence per se or whatever) are probably going to be breach? My professor specifically told us there are 4 categories to figure out the standard of due care owed (flexible standard aka the PL side of BPL, community norms, group custom, and statutes, plus subjective factors like age or disability). I think part of my problem is since my professor never really clarified the standard of due care as a separate thing from owing a duty, which meant that it all kind of ran together in my head. Now I understand thats a separate thing, its definitely all becoming more clear to me.

[SportsFan]

Averaging 1600 words per Tort essay. That's just shy of 5,000 words per exam. What do you guys think? I feel like this may be low.

I'm aiming for 2000 words an hour on my exams. I can normally do ~1300-1600 right now, depending on what class it is or whatever, but I'm hoping to get up to 2000 as I learn the law more. Assuming you have a 3 hour exam, I'd try to get that up to 6000 words total, but I wouldn't feel bad at all about 5000.

[Nova]

Averaging 1600 words per Tort essay. That's just shy of 5,000 words per exam. What do you guys think? I feel like this may be low.

I'm aiming for 2000 words an hour on my exams. I can normally do ~1300-1600 right now, depending on what class it is or whatever, but I'm hoping to get up to 2000 as I learn the law more. Assuming you have a 3 hour exam, I'd try to get that up to 6000 words total, but I wouldn't feel bad at all about 5000.

OMG....

I need to get on yalls level

[SportsFan]

Averaging 1600 words per Tort essay. That's just shy of 5,000 words per exam. What do you guys think? I feel like this may be low.

I'm aiming for 2000 words an hour on my exams. I can normally do ~1300-1600 right now, depending on what class it is or whatever, but I'm hoping to get up to 2000 as I learn the law more. Assuming you have a 3 hour exam, I'd try to get that up to 6000 words total, but I wouldn't feel bad at all about 5000.

OMG....

I need to get on yalls level

Trust me, I can't even tell owing a duty apart from breaching a duty, the 1600 words I may type in an hour are just gonna be a lot of crap.

I am happy that I can still type at a speed thats considered fast enough for law school exams despite not using a proper typing technique (I never bothered learning how to type properly so I type mostly with my index fingers but use my others a lot too. It's weird...)

[swimmer11]

I was wondering this same thing. Assuming equal knowledge of the law and equal ability to spot the issues, is typing speed and word count a decisive factor?

Right now I can type around 5500-6000 words on a two hour criminal law exam and around 4000 on a two hour torts exam.

[SportsFan]

I was wondering this same thing. Assuming equal knowledge of the law and equal ability to spot the issues, is typing speed and word count a decisive factor?

Right now I can type around 5500-6000 words on a two hour criminal law exam and around 4000 on a two hour torts exam.

Everything I've read on here suggests that yes, it absolutely can be. But you don't need to be a typing expert, and somewhere on here I read something along the lines of "as long as you can type as fast as you think through issues, you'll be fine". I think the larger issue/problem is that you don't want to be sitting there at the end of the exam having spotted a few more issues you can talk about but not having been able to actually write about them because you couldn't type fast enough.

[Jsa725]

.

[greenchair]

Does anyone know if something can be a conversion, but not trespass to chattels?

It seems that if you meet whatever is necessary for conversion, you pretty much meet everything for trespass to chattels.

[Jsa725]

.

[LetsGoLAW]

Last stretch, but i'm feeling good boys. Attack outlines are done and just finishing PTs, hypos, and re-typing outlines. C'mon!

[Jsa725]

.

[LetsGoLAW]

Last stretch, but i'm feeling good boys. Attack outlines are done and just finishing PTs, hypos, and re-typing outlines. C'mon!

Beard, check.
Burrito for lunch, check.
Hypos, MC's, PT's, CSWS, check.

question. first exam this upcoming monday....should I start exclusive prep for exams 1 & 2 tomorrow or friday? once exam 2 is done, then exclusive prep for #3 & 4

Yes, I blocked off 3 days for each exam before the exam. And keep up the MCs. The more you do, the better. It's about eliminating the wrong answers, then finding the right one.

[Jsa725]

.

[Raiden]

Switching music between Kaskade and Chopin. It is getting crazy in here.

Keep on trekkin team.