Going To Law School

If our library was ever open I'd probably be there right now. :{

I hate torts. Contracts and Civ Pro, we're good to go. All this analyzing of whether or not somebody had a reasonable duty of care due to special relationship of protection over x defendant for knowledge of something or another and because of the scope of risk analysis says that some other guy did something which was clearly foreseeable and that due to the fungibility of an attached plaintiffs product the second theory of market share liability can be applied but not strict liability because negligence is appropriate for economic policy concerns uuuhhhhhhhhhhhhrrrrrrrrrr

Now I know what my professor meant that the only way for us to do well on the exam was to ask questions. We have to take the ideas we learned here, and create ... new stuff with them. Like, create a self-devised relationship of duty in a problem and then argue for its validity or invalidity in a problem. Too bad I spaced out in half the classes.

Is that what you guys had to do on your torts exams?

Ok, let's see.

As far as how to study, I like to just give myself blocks -- I write them out on a pad I keep next to me and schedule breaks in between. Three hours outlining (or refining my outline) on a topic, break, three hours reading and doing hypos from a Glannon book, break, three hours doing questions from an old exam, etc.

Have you tried actually writing out an exam answer for an old exam? I find that really helpful - big difference between just looking at something and thinking you know what's going on and actually trying to put down an answer.

As far as how to approach an exam answer, remember that your prof wants you to spot problems every step of the way. That means your job is not to say "no duty" and be done. Your job is to go to the duty stage, examine any arguments for/against limited duty, and then go on to say "If the courts don't do away with the case on limited duty grounds..." and do your breach of duty, cause in fact, proximate cause, etc. (each step the same way, although obviously don't make something controversial if it isn't -- if A punches B in the fact on purpose and breaks his nose you don't have to make devil's advocate policy arguments about why the court might not find intent).

It's difficult to work on old exam questions because his exams are basically either one or two questions, and each question is about 5 single-space pages long, covering just about everything we learned, and each element is dependent on the other. If I can find Glannon tomorrow I might pick that up.

Right now I'm done with 50% of the syllabus ... just going through each case and rereading the damn thing and picking out all the good bits. The problem is, how to use these bits in order to create new, independent theories of tort liability? I mean, reading through these questions, nothing really resembles any of our cases ... but it's clear one could argue for against say, a duty. The professor said it's useless to mention any cases we read.

As for but-for causation, I'm not familiar with causation charts. I feel like but-for causation is straightforward -- "Would the harm have happened anyway?" If so, there's generally no liability for the harm (except in limited situations involving multiple tortfeasors). If not, you're far from done with your analysis -- but-for causation is obviously not enough for liability.

"Scope of risk" is the same thing as proximate cause. My prof has a nice easy way of explaining it. Say a speeding driver crashes into a truck parked in front of a building, and it turns out the truck is loaded with high-powered explosives, and the explosives destroy the building. Now when you tell a driver not to speed, and he says "Why not?" could you conceivably reply "Because you're going to blow up a building!"? If you can't conceive of saying that, it's generally not within the scope of risk. But there's no formula, and there are always going to be policy considerations, not to mention sheer arbitrariness. Which is great because it gives you lots of room to argue whatever you want on the exam.

As for what to do with cases, I don't spend a lot of time completely re-reading them unless they're especially important or I missed something. Otherwise I just try to combine my notes and my memory, skim very quickly, and distill it to a couple of lines. I think of them as reference points I can go to on my exam if I need to.

oh, actually I have Glannon for CivPro, not for torts. Don't know much about the study aids for torts.

Say a friend saw her friend completely intoxicated at the bar but instead of getting his keys she walks away and goes to bed ... and then she sues him for damaging her car in a drunk driving accident. Is her not taking the keys nonfeasance, or does she owe some kind-of duty to him because of her special relationship as a close friend and the loaner of the car, and thus might be contributory negligent in his accident by failing a reasonable duty of care since his drunk driving accident is foreseeable in the scope of risk analysis?

Does that sound any good?

Our exam is closed book so if I need to know something, I better know it.

If it were open book I'd be in bed right now.

"It's difficult to work on old exam questions because his exams are basically either one or two questions, and each question is about 5 single-space pages long, covering just about everything we learned, and each element is dependent on the other."

Yeah, my prof also does long issue spotters like those. You have to break them up into parts. For example the ones our prof gives usually involve a lot of different parties, so you just have to break it down into why each defendant might/might not be liable, after which you can examine any joint liability issues, comparative fault, damages, etc.

And for each defendant, it's really helpful to just do it in order -- Duty, Breach of Duty, Cause in fact, proximate cause, harm. "There is a duty because x...there might be a breach of duty if the court finds y, there might not be because z... even if the court finds a breach of the duty/standard of care, it might be difficult to show cause in fact because ... if the court finds cause in fact..." etc.

Did my little tidbit up there sound plausible? That was in response to one of the mini-questions on a huge problem.

Say a friend saw her friend completely intoxicated at the bar but instead of getting his keys she walks away and goes to bed ... and then she sues him for damaging her car in a drunk driving accident. Is her not taking the keys nonfeasance, or does she owe some kind-of duty to him because of her special relationship as a close friend and the loaner of the car, and thus might be contributory negligent in his accident by failing a reasonable duty of care since his drunk driving accident is foreseeable in the scope of risk analysis?

Not sure I follow -- is this her car or his? And is she suing him for damage to the car or is he suing her for injuries?

There is no "close friend" special relationship. The only special relationships I can think of off hand are parent-child, spouse-spouse and contractual.

She lent him the car and is one of his close friends. She's suing him for damaging her car in a drunk driving accident that happened because he was drinking at the bar she saw him at.

Did you read Farwell v. Keaton? The judge in that case pulled a special relationship right out of his ass ... friends on a night out.

he argued that for friends on a night out, if one noticed another in potential peril, that person had an affirmative duty to come to his aid. in the question I wrote above, the drunk dude's friend noticed him in a foreseeably perilous situation: she had lent him his car, she knew he was going on a trip that night, and she saw him dead drunk. Did she have an affirmative duty seeing a friend in peril to come to his aid and take his keys?

Is that OK?

and in failing that duty, she's contributorily negligent in his accident that damaged her car?

The professor, thank god, said he is going to reuse one old question on the exam. So that's a relief. :[]

So if all that happened is she saw that he was drunk at a bar and didn't stop him from driving, it's unlikely that a court will find she breached any standard of care. And do we really want to impose liability on any friend who fails to stop a drunk friend from driving? What about an acquaintance? What about strangers at the bar with whom he had chatted? But you could make an argument for breach of standard of care if you wanted.

Now If she loans him HER car knowing he's drunk and then tries to sue him for damaging the car, he's certainly acted negligently and he's certainly a but-for and a proximate cause of the harm. But she has also acted negligently and is also a but-for and proximate cause of the harm. She has actively enabled and encouraged him to drive knowing the state he's in. And on comparative fault before a jury I don't think her case looks very good -- I'm guessing she recovers little or nothing for her car damage.

If she loans him her car knowing he's drunk and then he injures himself and he sues her, again both parties have acted negligently and are the but-for and proximate cause of the harm. At that point I'd argue that it depends on how drunk he was -- was he still somewhat capable of making a rational decision? Was he blitzed out of his mind? If he was blitzed out of his mind, I'd say a lot of the fault is going to be put on her since she actively loaned him the car. Either way I think she's going to get some of the fault in comparative analysis, and he probably will too (juries don't like drunk drivers). But my prof always warns us not to play jury on an exam.

No, she had lent him the car that day, but later saw him drunk.

ah ok, no we didn't have Falwell. Remember, it's common law -- judges pull things out of their asses all the time. So on an exam you could say, "Most courts do not recognize a special duty between friends. But in Falwell v. Keaton, blah blah blah." and then you can just make an argument one way or another.

Yeah, the dissent in Farwell covered a lot of what you said ... not coming to the friends aid was nonfeasance and imposing a duty on the friend would be akin to allowing "moral law" to rule, which is an impossibility, etc. The professor was pretty skeptical about the whole friends on a night out thing. But it shows that these relationships can be created through argument, I guess, since in this case it worked.

Hmm, ok, that's tougher. But if she's suing him for her car damage, it shouldn't even matter whether she had a duty to rescue him -- that's more relevant to his claims for injuries. The question is whether she was contributorily at fault for her OWN damages by failing to take the keys from him.

Yeah, that's the question we have to answer ... she's suing him for damaging the car, but she had an opportunity to prevent it when she saw him dead drunk, and it's foreseeable that he'd you know ... he could crash her car.

Yeah. I'd argue that she's partially at fault. Bottom line is just be prepared to argue it and know how to go through the steps.

But your special duty to another person should only be relevant when that person is the one suing you, not the other way around. So if the judge brought up her duty to HIM, he's confused.

But why is she partially at fault? Without establishing duty, there's nothing. What duty did she owe him? As a friend? As a loaner of the car?

If she had no duty at all in the situation, then it means nothing she didn't take the keys away ... and so could be free to collect sweet, sweet damages.

Every person always has a duty to act reasonably under the circumstances, and a violation of that duty is negligence. My professor just calls this general duty "standard of care" to make it less confusing. She doesn't have to owe him any duty because he's not the one damaged, she is. I know it's awkward to say she's comparatively at fault because it implies that she owes HERSELF a duty, which seems nonsensical. But when you argue that someone is comparatively at fault for their own damage, that's kind of what you're doing.

Here's that full paragraph.

"Around 8:00 pm Jill entered the bar. She was walking home from a company dinner and intended to get a drink. When she saw her friend, however, she changed her mind and quietly slipped out into the street. Walking home, and seeing her car still parked in the adjoining lot, Jill wondered whether she shouldn't return to the bar, confront her intoxicated friend, and demand her keys back. She did none of these things, however, but merely walked home and went to bed. At her deposition, Jill explained she didn't want to 'create a public scene' by demanding the return of her keys. She believed her friend would probably not comply with such a request unless she called the police. She also reasoned that Dionne was 'an adult, able to take care of himself', that he had a spotless driving record (which was true), and further, that she had promised him the car, and 'after all, a promise is a promise'"

Yeah, I was thinking she owed herself the duty to protect her car. General duty sounds much better to argue with

But yeah, tomorrow I'm going to sort out all the steps in torts. We read about 150 cases in this class, plus all sorts of weird abstract formulas and theories, so we never actually talked about ... how to approach torts cases. He said we had to figure that out on our own.

Sometimes stepping back to common sense helps. Do we really want to let this lady off completely for doing the dumb think of letting a drunk drive her car?

Yeah. I would think that she would argue nonfeasance to collect $$$ and the defendant would argue some kind-of duty of reasonable care under the circumstances to mitigate damages.

150 friggin cases. Damn. and I've reread almost all of them. :[

We had our last class this Friday, and so we're supposed to be boned up on 150 torts cases, closed book, for an exam on Wednesday. Law school is great. Of course my friends are already on Civ Pro, so I'm probably just an idiot.

But what are the steps again in approaching a tort question?

First, establishing duty ...

Well, I'll get it down on my own. Did your torts class make you read a similar number of cases?

hmm. 150 full cases? I don't think so. Maybe 120?

Eh, same shit then.

All I dreamt about during the night was duty ... causation ... breach ... damages ... and then how strict liability removed privity from duty and made it just about causation, which was a failed argument for duty in Strauss v. Belle Realty. Stupid brain.

burt you are going to be fine

All I dreamt about during the night was duty ... causation ... breach ... damages ... and then how strict liability removed privity from duty and made it just about causation, which was a failed argument for duty in Strauss v. Belle Realty. Stupid brain.

Products liability is weird because historically there have been approaches from both the contract/warranty side (where the privity came in) and from the negligence side. But today it has more to do with negligence and not much of anything to do with warranty.

Did you guys do RAD and the consumer expectations test and all that? My professor loves RAD. He was one of the reporters on the third products liability restatement, or rather the, ahem, "Restatement Third."

I think I dreamed about the Calder "effects" test and the stream-of-commerce-plus theory and what targeted wrongdoing into a state means for personal jurisdiction. CivPro is a bitch. Today my day consists of outlining the FRCP.

Nah, we only did 2 or 3 absolute liability cases, and we ended at... Posner, and one of his decisions where he states strict liability is OK for x circumstances, and negligence is better for y due to economic interests, etc.. Most of our time was spent on the theoretical underpinnings of negligence, duty, causation, etc. Only now I'm starting to see how it all works together.

Civ Pro is going to be way easier to study for than torts.

ok, Hurting or others who remember torts, is this right ... for each problem you first establish duty, then see if that duty was breached, then run that through the causation to see whether or not it survives the but-for or proximate cause tests or whatever, and then assess the damages.

sounds about right.

ok, good. Now I just need to reread the rest of duty and causation, and then go back to negligence and other stuff. Now that I'm starting to "get it all", it adds a lot to look over the cases again. :[]

well the case books break it down. duty cases. breach cases. causation cases, etc.

Yeah, but nobody tells you how to make it all work together in your own arguments.