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!
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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.
