TORTS MIDTERM PRACTICE EXAM



TORTS MIDTERM PRACTICE EXAM

PROFESSOR COOMBS

OCTOBER 9 2005

MODEL ANSWER & EXAM COMMENTS/COMMON ERRORS

This memo consists of two parts.

First, I sketch out the kind of answer that would be ideal. This is NOT a model answer in the sense that I expected an asnwer like this or even that this is my template for an “A” answer. Indeed, it took me more than an hour to write this, despite having written the question. Rather this is to show you both the many issues lurking in almost any question and to point you to the content and organization of an answer.

Second, I provide, in a numbered list form, a discussion of some of the common kinds of errors that students made in approaching the exam. On the individual exams, I have provided brief summary comments. I have also indicated which of those errors appeared on that particular exam by cross-referencing to the exam-taking technique errors indicated in the numbered paragraphs.

I. Model Answer and Substantive Issues

There are two somewhat distinct issues in this problem: a) the error in what the tattoo says and its consequences, and b) the problem in the blotchiness and fading (the "ugly" problem), along with c) a separate, relatively easy, legal issue regarding Jerry’s actions.

As to the Jerry/Terry problem: One can analyze this as negligence or as battery, since she did not give consent for a tattoo that said Terry. On a negligence theory, Tom may have been negligent in not writing the name clearly, which was clearly a but for cause of the harm. Carl may also have been negligent in going forward when he was not sure of what was supposed to be done. Furthermore, Tom is arguably liable for what Carl did or didn't do wrong on two different theories. First, this may be a case of negligent hiring if he was aware that Carl lacked certain essential skills (or, perhaps, as discussed below, a license). Second, he, or more precisely the business, Tom’s Tattoo Parlor, may also be liable on a vicarious liability theory. If Carl is an employee, this is easy; less so if he is seen as an independent contractor (this would turn on the extent to which Tom has control of how Carl carries out the work). Even if he were an independent contractor, by analogy from Share, there may be apparent authority, if Sally reasonably believes the tattoo will be done by Tom or an employee and relies on that in agreeing to have it done.

One can also see this as a battery: there was a touching and the particular touching was not consented to. (There was not an assault, since she had passed out before the tattooing started.) One could argue that Carl did not commit battery since he reasonably believed the consent to "Terry" existed and the question, under O'Brien, is the reasonable perception of the defendant, not the subjective desire of the plaintiff. On the other hand, drawing an analogy from medical malpractice, one could argue that there was no emergency, and thus that he had a duty not to "operate" where he was unsure if he had the proper consent. Note that he had other options: not tattoo until Sally could clarify or reach Tom and see if Tom could clarify.

In any event, there is also arguably contributory negligence or assumption of the risk by Sally. Depending on the rules of the jurisdiction, if she were negligent it could either eliminate her claim (contributory negligence) or reduce the damages available (comparative negligence). Arguably under Machin she had a duty to look over the order form to be sure it was correct and readable. It's less plausible that this constitutes assumption of the risk, since she probably didn’t realize that there was a risk of a mistake in the tattoo (compare the "flopper" case), and assumption of the risk requires subjective awareness.

What are the damages caused by the Jerry/Terry error? In one sense, they are quite minor: it would not be hard to correct the tattoo to say what she wanted (though she may no longer want a Jerry tattoo, either!!)

Could one view this action as the “cause” of the slap by her boyfriend, Jerry? Probably not: although it is a cause in fact, his act would probably be seen as not merely intervening but superceding and thus would cut the causal chain.

Second, although Sally may or may not wish to sue him, she does have a claim in battery and perhaps assault against Jerry. The slap qualifies, and therewas clearly not consent; one could argue whether this was a harmful or an offensive battery – the facts may not yet be sufficiently clear. Again there are questions of what the damages are: does her emotional upset count? Can it be viewed as the "cause" of her later behavior? Neither is strongly likely at this point, but you can raise them as issues for further factual development.

Finally there is the question of a claim for the ugliness of the tattoo. A res ipsa does not work here: there is an alternative explanation that may not involve any negligence by the tattooist. There is also the question of contributory/comparative negligence here. But you must be clear that her behavior was only a lack of adequate care for herself if she knew/had reason to know that laying out in the sun was a problem. Thus the prior question is whether the warning on the back of the form was sufficient in general? for Sally? Did Tom/ should he have pointed out the warning to her? explained it orally? had her sign something that was evidence that she had read it? Then, given what she knew or should have known, was she negligent in spending a considerable time on the beach the day after the tattoo was done, which could have caused or exacerbated the problem?

If one assumes that the facts would permit a jury to find that the tattooist caused the problem, is this negligence? First, a jury might (this is unclear) find that it is more likely than not that the harm was caused by careless tattooing. There might be more information that one could develop to help prove this. Second, could one use negligence per se? Carl is not licensed and doing a tattoo without a license violates state law. But Brown v Shyne (the chiropracter case) indicates that one cannot assume that the "negligence per se" in not being licensed caused the harm: if that case is good law in New Florida, one would have to show that the defendant failed to meet the standards of the reasonably careful tattooist. This legal rule isn't universal (there was a dissent in Shyne) but this might be a good case for using it, since the defendant's not having a license doesn't seem to reflect inability to qualify for one.

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Note that there are a variety of ways to approach this problem: by kind of harm, as above; by cause of action (negligence claims separately from intentional tort claims); or by defendant (claims against Jerry, against, Carl and against Tom). None is obviously right or wrong; whichever one chooses, organization and avoiding repetitiveness matter.

II. Part Two: Frequent Errors

[NOTE: These are of varied significance. For example, errors in spelling are relatively unimportant, while errors in providing conclusions without analysis, or failing to explicate both sides of a hard question are very important. In grading an exam, I (or most professors) would consider a) the quality and quantity of positive things about the exam and b) the quality and quantity of defects, so that, for example, one would be substantially harmed in grading if there were many misstatements of legal rules, and lose something, but not much, if there were an occasional such misstatement, interspersed with a large number of correct statements. Misspellings and poor grammar are less important than misstatements of rules; but an exam that was extremely well-written but had a couple of rules misstated would likely receive a higher grade than one which never misstated a rule but whose grammar was sufficiently bad that it was frequently difficult to determine precisely what the author was trying to communicate.

1. Lack of Any Organization: some exams read like a kind of stream of consciousness (“here’s a point I thought of -- here’s another one -- oh, here’s something else about a point I wrote about before”). When you do this there are two serious negative consequences. First, it makes it extremely difficult for the reader to follow you and to figure out how much you know and whether you have seen the interrelationship among different facts and issues. Second, it makes it much more likely that you will fail to put on paper points that you in fact have seen. Even if you do not have time specifically provided for listing what you want to say before blue books are distributed, you should take time to do this. It needn’t, and probably shouldn’t, be a formal outline, but a list of issues, perhaps numbered to indicate which fit together, that you can use as a checklist as your write.

2. Poor Organization: In any exam there are usually one or two natural ways of organizing an answer. Picking the right way creates a natural flow that makes the writing easier. Probably the most typical in an “issue-spotter” are 1) chronological -- event-by-event 2) by character, or 3) by cause of action. Depending on the fact pattern and the subject matter any of these may be sensible. What is almost never right, unless it happens to match one of these is to simply reproduce the order of the question, sentence by sentence or paragraph by paragraph. Here, Jerry is a separable issue. For the tattoo parlor one could either organize by character (probably Carl first, since that makes it easier to see how Tom might be liable both directly for his own actions, for “negligent hiring” and on a respondeat superior theory) or by claim (issues relating to the erroneous transcription separated from issues relating to the blotchiness).

Similarly, once you have an organization, use it not just to define the order in which you discuss things but to break your answer into paragraphs. Each paragraph should discuss a particular issue, arising from an event and its impact on a character. You can discuss affirmative defenses together with the causes of action or as a separate section. If you to the latter, it’s probably wise to signal to the reader up front that you are doing so (so they don’t wonder why you haven’t discussed the defenses.)

3. Read the question and the directions. Follow directions. This may sound obvious, but in every exam, people don’t and they send themselves seriously astray.Some people read the problem too quickly/carelessly. If you conflate two characters or misstate the facts, you risk losing points that were embedded in a word/sentence/paragraph you skipped or misread.

4. Incorrect/incomplete statements of the legal rule. [self-explanatory] – this is sometimes a variation of conclusoriness: you fail to see that some aspect of the rule you have stated is unclear on the facts. If you state the rule but then assert that the application is clear, that’s “conclusoriness;” if you simply fail to state the problematic aspect of the rule, it fits here. (For example, referring to vicarious liability without mentioning the question of whether Carl was an employee.) This number was also used when the rule was correctly stated, but wasn’t relevant to the facts you were discussing (for example, discussing custom in the context of providing the warnings.)

5. Incorrect choice of legal rule. You must determine from the facts what legal rule is most appropriate to apply. You will receive no points for telling me correctly the elements of a legal rule which does not apply to the factual context in which you are stating it. For example, some attempted to cram the blotchy tattoo into res ipsa [presumably in a variation of ‘outline dump’/the desire to fit what you know somewhere in the exam]; given that the facts noted two distinct possible causes, only one of which could possibly be attributed to Carl, the doctrine is irrelevant.

6. A related problem involves the use of legal rules by analogy. It is fine to do so, but you need to be explicit in recognizing that the legal rule formally doesn't apply, but that you are seeking to use it by analogy. For example, one could argue that the rules regarding informed consent that apply in malpractice apply here. A tattooist is not a medical professional and one should at least recognize that you are extending the scope of the rule and explain why that extension is appropriate in light of the reasons behind the rule.

7. Law without facts

Disconnected statements of legal rules: first briefly indicate the situation in the exam that calls for a rule (i.e. why this legal rule is important for this exam); then apply it. The best answer will integrate the statement of the rule with the application, being sure not to leave out any of the elements of the rule. Telling me “there are four elements of negligence, they are . . .” doesn’t get you any real points until you tell me why and how that rule applies.

8. facts without law

I’ve given you the facts. It’s a waste of your writing time and my reading time to lay them out for me as if this were a memo to a partner who didn’t know them. Use the facts in your analysis, of course, but there is almost never any reason to have two consecutive sentences that are just facts.

9. Conclusoriness

Don't give a conclusion without an adequate foundation. If your analysis shows that two of the three criteria for an application of a rule are met, don’t then conclude that the rule is met. (You may be less likely to do this if you briefly state the rule, e.g. "a battery requires a touching, plus the intent to touch, plus harm or offense") If your analysis gives two reasons why a rule might apply and one reason why it might not, don’t conclude that it does. The conclusion should follow necessarily from the premises. And this may mean that the right conclusion -- and certainly the right conclusion from what is in this particular paragraph -- may well be “This rule may or may not apply. In order to decide whether it does, we would have to know X.” Many of you lost points by failing to recognize the ambiguities.

10. Repetitiveness in analysis: You may lose points and, perhaps more important in this context, you lose a lot of time, when you repeat an analysis. If two characters are similarly situated in relation to a particular issue (for example, each has arguably committed negligence per se), discuss the meaning and application of this rule ONCE. You can say explicitly in that discussion that it applies to both characters or, just as easily, you can discuss it in relation to the first event/character for whom it matters and, when you get to the second event/character just cross-reference or explain how the rule’s application varies (e.g. “one might extend negligence per se from Carl, who is directly in violation of the statute, to Tom who hired him, aware of the statutory violation.” or “we should check if the statute also forbids employing an unlicensed tattooist”)

Some people combined repetitiveness with overly inventive stretching to find a claim for IIED. This is pretty implausible, and certainly doesn’t need to be discussed twice. This is a classic example of “outline dump” – stretching the facts to try to tell me about something in your outline.

11. Not arguing both sides. On the hard issues, there will be plausible arguments for the application of more than one rule or for the correct outcome under a particular rule. You should lay out as thoroughly as possible the arguments on each side, including arguments for applying or distinguishing particular precedents, arguments about fairness to the particular parties, arguments about the broader implications of stating the rule in a way that does or does not apply to the facts of a particular case, etc. [For example, in this exam, considering how one should approach the blotchiness where one explanation might be the negligence of Carl in applying the tattoo, while another might be the effects of the sun: as to that, Sally needs to show that Tom failed to adequately inform her of this risk, while Tom will argue that she should have read the warnings on the back. There are plausible arguments both ways, dependent, in part, on future fact development. Too many of you fell into the trap of deciding what conclusion you wanted to reach and then neglecting to present the best case for the other position]. The conclusion one reaches is far less important than the full development of the arguments.

Note however, that whether one calls it part of the arguments or the conclusion, you should indicate what difference it makes for the particular situation in the exam which rule one adopts. For example, you could say “if we held that the implicit rules of haunted house tours include scaring the wits out of the participants, and participants know this, then none of the plaintiffs should recover unless the defendants did things that were “outside the rules and norms of the ‘game.’”

12. Don’t presume facts not in evidence. When you realize that the “right” answer turns on a fact you don’t know, you are at the heart of good exam taking. What you should do now is signal that you know how important that fact is and explain why it is important. For example, one should not say “Tom did not get informed consent” or even “Sally’s consent is invalid since she didn’t know what she was signing,” but either “if Sally did not realize that there were warnings on the back of the form [and the defendant realized this], then her consent is invalid” or “we would have to find out whether Tom adequately ensured that she was aware of the warnings, because it would affect whether Δ could claim valid consent.”

13. Lack of Judgment/ not focusing on the most improtant and contested issues. Like most exams, this had more issues than anyone [including me] could have discussed thoroughly in the time allotted. One therefore had to make choices about where to focus one’s attention. The right answer is to(a) touch very briefly on the obvious but easy issues (e.g. Jerry’s battery), (b) spend no time on issues that weren’t raised by the issues [the standard form of this can be abstracted as “if some fact for which there is no evidence whatever were true, then this legal rule that I want to tell you that I know would apply”] or spending too much time on marginal issues [some people did a ½ page “outline dump” on the various rules regarding comparative and contributory negligence and/or allocation among multiple tort-feasors and (3) spend most of your time on the hard issues [for example, is her coming back drunk a form of comparative negligence? was Carl negligent/ unreasonable in doing a tattoo once she had passed out?]

14. if you miss issues/ fail to discuss plausible claims or defenses you lose lots of points in an “issue-spotter” exam such as this one. The most obvious here is the claim against Jerry

15. when there are multiple issues, you need to see them in an integrated way, not seriatim. Most obviously are thinking about how the various possible reasons for the blotchiness fit together in terms of her ability to establish all the elements of a cause of action, including causation, against any defendant.

16. Using/Misusing legal terminology

Don't throw vocabulary at a problem. Even more, don't throw vocabulary that you derived from secondary sources rather than casebook or class. For example, people simply assumed that the warnings on the back of the form were an indemnity, or an assumption of risk, or a talked about implied warranties. These terms have fairly precise meanings (some of which you could not yet be expected to know). When your statements don’t match those meanings, you lose points. Better to discuss the issue with ordinary lay language than to (mis)use legal terminology, especially where that language, in effect, becomes a substitute for analysis.

17. handwriting/spelling/grammar

a. write only on the right hand pages [an application of the general rule “follow directions”] -- it’s hard to read when writing from the other side of the page is bleeding through. If you make a mistake, though, don’t wast time copying -- just write “oops” or “sorry” and an arrow to where you keep going on the right hand page. Also, it’s ok to use the left hand page if you suddenly realize you left something out and you want to go back and put a sentence or two in a particular spot -- better to put it on the appropriate left hand page with an arrow than in cramped handwriting in the margin or between the lines [I am glad to say that no one made this particular error this year!!]

b. spelling -- consistent misspellings -- especially of legal terms like "counsel" [a lawyer is a "counsel" or "counselor;" if she were elected to city office she would be a "councilor" sitting on the city "council"] are irritating

c. grammar – similarly, errors such as mismatched tenses [mixing up past and present] or number [use of a plural verb with a singular noun] irritate. other grammatical errors can be even more serious -- when I can’t parse your sentence and figure out which clauses belong where, I will not [and other professors and people to whom you will provide legal writing will not] assume that you must have meant the interpretation that is legally correct when your bad grammar makes another, legally incorrect, reading of the sentence equally plausible. I know that time pressures are operating here, but at this point in your careers good basic grammar should be instinctive. If it is not I strongly urge you to seek help with the writing center.

18. Other time-wasters

a. Don’t do paragraphs or even sentences that are simply filler. Examples might be “In the next part of this answer I’m going to discuss what happened at the club” or “since Sally didn’t read the consent form which was printed on the back of the order,” as the opening clause of the paragraph, followed two sentences later, “there is no defense because Sally didn’t read the consent form, which was printed on the back of the order.”

b. Use “shorthand” for the names of parties, initials are fine if there’s only one character whose name begins with “A,” or you can use Π or Δ if there’s only one possible plaintiff or defendant to whom you could be referring.

c. Use “shorthand” for case names: Similarly, if you are referring to a case, use just enough of the name or defining situation so I will know what case you are referring to (Brown, not “Brown v Shyne” or “if you forgot the name, “the chiropractor case,” not the New York case where the chiropractor was accused of practicing medicine without a license”).

d. Use “shorthand” to introduce issues: for the headings to discussions, it’s enough to say “transferred intent?” rather than “can intent be transferred among offensive battery, harmful battery and assault?” as long as in the discussion you lay out what the rule is and how it applies or doesn’t on these facts.

e. Don’t start with a conclusion [within paragraphs]: Having defined an issue, analyze how the relevant law applies to the relevant facts. You can put a conclusion at the end of the paragraph but don’t begin with one -- it tends to cut off analysis, which is the heart of a good answer.

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