Hawkins: Am I getting to maybe and arguing both sides right? Forum

[nyc2020]

Like everyone, I read GTM this summer. Now I figure that, since classes are starting, I should try to see if I have made any progress in developing the exam skills of (1) identifying first, second, and third-order issues related to fact patterns from cases for class and (2) arguing both sides effectively and to exhaustion. From what I've read here, these are the skills I need to develop to succeed on exams (and maybe as a lawyer broadly).

To test these exam skills, I decided to take the facts of the classic Hawkins case from my readings and argue both sides as if I don't know the court's opinion. For the sake of time, I outlined an essay below in bullet points instead of writing out full paragraphs.

For those of you have gotten lots of A's in law school, I would appreciate any feedback you have on the following questions:

1. What would an A/A+ student have written that I didn't?
2. Did I go deep enough into second, third, fourth-order issues? Is there such a thing as overkill, or will professors award points to fourth and fifth-order issues?
3. For the exam, is it a helpful and efficient use of time to do things like this to prepare?

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General overview

Parties: Hawkins (kid whose hand was injured), McGee (the Doctor)

Situation:
- 1929. Doctor utters a promise of either "I guarantee a 100% perfect hand" or "I guarantee a 100% good hand"
- Hand is generally functional (substantially more than before), but patchy hair ends up growing on the kid's palm
- Kid's family alleges a gap between the work promised and the work delivered. The kid's family is suing for compensation.

Exam question: What are the contract implications of the doctor's alleged utterance of the terms "100%” and "guarantee" ?

Is there a valid contract?

- Kid's family will argue yes. They'll say they signed up for the procedure specifically because of this guarantee.
- Doctor will dispute that the utterance "guarantee" (even if it was said, which the doctor disputes) was said or received as a serious, literal guarantee of an outcome. Doctor will argue that any reasonable person understands that there is nothing in life that has a 100% chance of occurring, much less a surgical procedure.
- In response, kid's family will argue that the doctor is the expert and that, as reasonable people do, they trusted the doctor's certainty on this medical issue. They would argue that there is a contract and that they would not have entered into the contract without the guarantee of the promised outcome as a precondition. They'll further argue that a doctor has a special duty to be forthright about the odds of success and that it would be unreasonable to expect patients to engage in unsophisticated speculation about a procedure's odds of success.
- The doctor will argue that, if the doctor's unserious utterance of a "100% guarantee" is interpreted as a legal guarantee by the Courts, it will have a chilling effect on the normal conversations between doctors and patients because doctors will be so fearful of inadvertently veering into a contract that they will avoid certain forward-looking projections altogether. Conversations that would be beneficial to patients might be avoided by doctors and public health (an end broadly agreed upon to be desirable) would suffer from overly tight-lipped doctors.
- The kid's family will respond that, if the Court finds a valid contract here, doctors in the future will avoid loose and poorly considered prospective judgments -- and as a result more accurately communicate their expectations of a procedure's potential benefits and risks.

If a contract exists, was there full performance?

If there is a valid contract, there is another conflict: Is the hand the doctor delivered less than the hand the doctor promised to deliver?

- Doctor will argue that, if he uttered the terms "100%" or "guarantee".. it was referring to a "good" not "perfect" hand.
- Kid's family will argue that there is no distinction between good and perfect. If the hand has no defects, the contract's conditions were met. If it has defects, it is not met.
- Doctor would probably concede that the hand is not perfect but would argue that the hand is indeed good. He will argue a hand is "good" when it functions like hands are ordinarily expected to function. And the facts indicate that the kid can operate his hand essentially normally despite the unsightly appearance of hair on his palm.
- Kid's family will argue the hand was neither perfect nor good. Even if "good" were a lower standard than "perfect," they would argue that that "good" means free of defects. Clearly the kid's hand is not free of material defects.
- There will likely be argument between the two sides over definitions and usages of the word "good" -- whether "good" refers to the ability to do essential day-to-day functions or whether it refers to a hand that is in both function and appearance undistinguishable from the average hand.
- The doctor will argue that in medical settings, "good" is really referring to whether something is functional.
- Kid's family will argue that for lay patients (normal people in society) something is good only when it is free of material defects. Even the doctor may concede that hair growth on one's palm is strange and unsightly enough to be material.
- Resolution of the "good" definition likely hinges on whether a doctor is expected to use terms like "good" in the medical or lay context when discussing a procedure with a patient. Both sides could bring doctors to testify that "good" in doctor-patient conversations when referring to outcomes is commonly used in a way that favors them. If the jury determines that the word "good" and not "perfect" was uttered, it would likely be a close call whether "good" should be defined as function or both function and appearance.

[cavalier1138]

I would advise taking a breath and remembering that you literally just started school.

This is not how you want to practice for exams. First, cases in case books often give very abbreviated fact patterns and include only the relevant information. Your professor won't be so kind. Second, even if you're pretending you never read the opinion, you did. That opinion basically told you both sides of the issue. So you're not getting any practice identifying things on your own. And most importantly, it's way too early to be doing this.

You need to give yourself time to get used to law school and classes. You don't know nearly enough about contracts (or anything) to attempt practice exam questions, and you will benefit far more from staying on top your reading, briefing your cases, and paying close attention in class. Once you hit October, you can start thinking about outlining. Once you're past the Thanksgiving break, then you can start doing practice exams.

It's natural to freak out and think that everyone already knows how to do this (they don't) or has already read GTM and unlocked its secrets (they haven't). Take a breath and focus on the tasks in front of you right now.

[nyc2020]

I appreciate that. I’ve definitely felt a bit concerned about my ability to apply the skills discussed in GTM to the cases I’m reading.

This didn’t turn out to be a huge time sink (took 20-25m). Basically I was hoping to ease myself into the (new) mental process of imagining and arguing both sides with limited facts.

To me, this exercise felt like that tricycle in the park hypo. Of course I don’t know any contract rules (or anything about city parks laws), but I do want to start practicing thinking like a lawyer. I assume that identifying contracts issues is an issue identification skill specific to my contracts prof. But I’m hoping that I can practice and eventually master the more general skill of considering and writing out what both P and D might argue and respond to each other. Is there a way I develop those general skills better?

[cavalier1138]

Just do the work. Prep for class, read the cases (and notes), brief the cases, pay attention to what the professor is asking.

You will start to figure this out as you go. And cold calls aren't just for pleasure; the professor is usually showing you how they like to think about issues.

[nixy]

Wait till you have a larger base of knowledge and then use old exams (toward the end of the semester) or E&E’s (earlier on) to respond to hypos. Hawkins has been edited for your case book to highlight one specific point. You will get a much messier more complicated set of facts to pull out various doctrines, so practicing on individual cases is of limited value.

[dvlthndr]

Basically I was hoping to ease myself into the (new) mental process of imagining and arguing both sides with limited facts

This is the problem right here. Maybe that will come up on some short-answer or policy questions, but the whole point of an issue spotter is to be several pages long and bake in a mind-blowing number of facts. The skill is knowing how to sort out the important things from the unimportant things quickly and efficiently. If there are 20 issues in a given prompt, you goal should be to (1) touch on all of them; (2) say something intelligent on each; and (3) move on.

It's good to know how to see both sides of an issue and come up with a conclusion quickly. But if you are actually wasting time on "third-order issues" you probably aren't getting an "A".