Torts Tips!

For most of you that are in your first year, finals are coming up, and torts is of great concern. The bad news? Before law school, you didn’t even know what a “tort” was. The good news? It’s the one subject in law school you’ve probably heard a lot about – everyone has seen those “Have you been injured in a slip and fall accident?” commercials!!!

So – how to succeed on your exam? I’ve decided, in the Thanksgiving spirit, to compile some Torts Tips, and then you guys can be thankful when exams are done!

1) Issue Spotting: for many, the tricky part of torts is issue spotting. Remember that most facts are in the hypo for a reason, so what I do to spot issues is line up important facts on one side, and then on the other side, write the tort. This way, you know you are not missing anything. Also, if you forget a tort, and this will happen, you don’t just disregard the facts. For instance, you see that Bob punched Jim, so you write that down in one column, but then you forget that hitting is usually battery. This way, you can at least mention that Bob punching Jim is a tort, even if you can’t articulate that it’s batter. You won’t get the full amount of points, but you will get some credit for knowing that the facts are important.

2) Intent v Negligence: An intentional tort can not be done negligently. Negligence can not have intent. There are no exceptions. Negligence is always an accident, that’s why we call it negligence. If there is any intent, it is an intentional tort.

3) Vicarious Liability. It is very important to understand this concept, so important that I wrote an entire article on it! Go here http://thebarexamdossier.blogspot.com/2009/10/vicarious-liability-what-it-is-what-it.html

4) Torts before defenses. Think of your exam like going into court; you have to first establish the prima facie claim before bringing up any defense. So many people want to just state “Bob did not commit battery because there was self defense…”. You have to FIRST establish there was a battery, THEN establish a defense. It makes sense, if you are a defense attorney, why would you bring up a defense before the plaintiff made out a claim?

5) Bad things happen to good people. And sometimes no one is responsible. It’s so tempting to think that everything that goes wrong is automatically a tort. It isn’t. Not every car accident is a result of negligence. You need to meet all elements of the tort, and sometimes an accident does not meet the requirements of negligence.

6) Negligence, negligence, negligence. This will most likely be heavily tested. Remember that to prove a claim of negligence, the defendant has to have a duty (usually you can put in “duty to be a reasonable…whatever it is that they’re doing”), they have to breach that duty (remember, no breach, no negligence!), that breach has to cause an injury (both the actual and proximate cause) and there has to be an injury.

7) Strict liability is rare! It only occurs in 3 ways – wild animals, products, ultra hazardous activities.

On top of all of that, just remember to always explain WHY. This is the most important part of any exam; do not just restate rules, but explain why those rules are applicable to the current fact pattern.

GOOD LUCK!