A Note on Essays

There is less than a week before the bar, so I thought I'd share a few brief tips on essays.  There are certain mistakes that all of my students tend to make, and it matters not what state you are in!

The point of the bar, besides torturing you and taking away your summer, is to test whether you can be a lawyer. Not whether you know the law, that is what your Juris Doctorate signifies.  So how does one prove that you are capable of practicing law? First, issue spotting. The bar overseers want to ensure that when a client comes to you, telling you about their no good very bad day, you don't skip over some of their problems. Your first job as a lawyer is to identify the claims, or legal problems, since your clients aren't going to do it for you.

Next, lawyers analyze. Or, if you listen to lawyer jokes, we argue.  Yes, you need a conclusion, but it's not the most important part of your essay.  Focus less on the conclusion, and more on how you get there. Look at it as a "it's the journey not the destination" type of cliché!  In addition, remember that we all have a different perspective, and we all might view facts differently, so explaining how you get to a certain conclusion is going to help you gain points. It also shows the examiners that you can advocate for a certain point of view, which is what they are looking for.

Last, don't be afraid to write simply and use plain language. This isn't a law review article, and you're not going to win a Pulitzer. Ditch the flowery and overly verbose language. Think "how can I get my point across and move on", especially since the graders are reading your essay VERY quickly. You want your essay to be easy to read, because that makes them happier! It also makes things easier on you. It's ok to be repetitive, or to use a formula. I can assure you that if an English teacher would be horrified by your writing, you are likely on the right track!

Most importantly, this weekend do something  relaxing and nice for yourself. The bar exam is not something you cram for. You need to be well rested, both physically and mentally, for this marathon of an exam.  Get some sleep, clear your head, eat well......and then go kick butt!

Passachusetts No More!

By Tania N Shah, Esq. President, LawTutors, LLC
The July 2012 Essay portion of the MA Bar Exam renders the commonly known nickname “Passachusetts” no longer applicable. Compared to the last thirty bar exams, these essays were by far the most issue-laden and challenging, especially with respect to the time given to answer each question.  With 36 minutes per essay (to issue-spot, outline and write), Massachusetts is definitely making their bar students rise to the type of challenge we see in states like New York, California and Florida. 

For example, in Question 7 of the Afternoon Session of the Essay Exam, a student is asked to analyze the various issues surrounding a domestic relations question. In the past, these usually focused on straight forward pre-marital agreements, support and custody issues. This essay, while involving  agreement and support issues, also included capacity to marry, void and voidable marriage (drunk impotent creepy CEO husband who marries 16 year old), interesting contractual  issues, issues surrounding modern conception (IVF), and issues surrounding forcing someone to be a baby-daddy.  While the concepts themselves are not too difficult, two significant changes must be noted from the Domestic Relations question of the past:

1.       Instead of just a few issues to focus on, just about every Domestic Relations issue one can imagine was tested in this essay.

2.       The issues involving capacity, contract, support, ante-nuptial agreements, and divorce were numerous, not always straight forward and very dependent on one another.

3.       A student still has only 36 minutes (not a change).

Question 8 in the Afternoon Session was a mix of torts, ethics, contracts, corporations, and, just for the heck of it, criminal law.  This poor lady who used to be the VP of a corporation has everything in the world happen to her in the above-mentioned essay question. She is recruited by another corporation, told she must steal the secrets of her old corporation “or else”, she calls the lawyer of her old corporation who doesn’t care what she does, she calls her own boss who threatens her, and once she gives the information to her new boss, the new boss fires her and then both bosses attempt to defame her in all sorts of ways. Of course our poor ex-VP gets depressed, drinks too much, the bartender makes her take a cab home, and the cab driver has a record.  And, just to make things more tragic for our victim, she ends up getting beaten by the cab driver. But wait, you want to hold the cab company responsible since they never checked the cabbie’s record, but alas, the record is based on speeding, not beating passengers.  And the bartender…poor guy was just trying to be a good guy, wasn’t he? So what to do with all of this? And only in 36 minutes?

Question 3 in the Morning Session was another issue-laden essay involving just about everything that can be tested in a property essay. For starters, a student must understand that MA is a title theory state, and what that means. Then, they must also discuss:

·         Everything on easements (express, implied, prescription, merger, written)

·         Mortgages and the laws of foreclosure, what happens with recording and the difference between  Subject to and Assuming the mortgage

·         Equitable Servitudes and Restrictive Covenants

·         Nuisance

·         Fraudulent Conveyance and After-acquired title

·         Impact of Title Theory on all above issues

One must note, every  property issue in this essay seems to depend on how one analyzed the issues before that. And the seventh issue may be dependent on the first issue, which may or may not affect the outcome of the third issue (if you could even find the third issue). It is not just the numerosity of the issues, but the complexity in the ways that they are tested that has significantly changed in the last couple of years. So, you know, perfectly doable in 36 minutes right?

Lastly, Essay Question 1 in the Morning Session should make law schools in Massachusetts seriously consider making First Amendment a significant portion of their Constitutional Law Class (1^st Amendment is often offered as a separate class and not part of the curriculum in a “regular” Constitutional Law class. In fact, some schools do not require constitutional law at all). It is not just this bar exam: Massachusetts LOVES the First Amendment, especially in the context of a school setting.  I have this listed as the most highly tested Constitutional Law topic in Massachusetts since 2002, with equal protection (especially in the context of affirmative action) following as a not-so distant second. But I have seen the First Amendment come up more in the last few years than ever before, and it seems like it is always going to be a hot topic. On the bright side, this is way better than getting stuck with, say, the Habeas Corpus question they tested once or the Eminent Domain question tested another year.

The Massachusetts Bar Exam has changed. So what? Well, take California for instance: nobody has ever called California’s bar exam “Passachusetts” (not just because it doesn’t rhyme). California’s exam has always been extraordinarily hard to pass. 30% pass rates are no surprise. And Florida, for example, has always had those maddening Florida- specific multiple choice questions that could be based on seven topics, but always on four for sure, and sometimes on the other three. But regardless of their difficulty, students know what to expect.

The Moral of the Story: Massachusetts is an evolving exam, and, as evidenced by this summer’s exam, it is not evolving into something that makes life easier on law students.  Hence, it is crucial that bar programs designed to teach to the Massachusetts’ Bar Exam evolve with it, or else our students will find themselves in a difficult disparity between what they might expect and what they actually get on exam day.

So you failed the MPRE?

So you didn’t pass the MPRE the first, or second, or fifth, time around. What did you do wrong? What can you do differently?

First and foremost, do NOT beat yourself up. This does not mean you didn’t study hard enough (though maybe it does!), or that you’re not ethical, or that you don’t know the rules. It could be that you didn’t study the RIGHT way.

1) What you needed for professional responsibility class is not identical to what you need for the MPRE: The course that many of you are required to take, called professional responsibility or ethics, is not necessarily geared towards helping you master the MPRE. Some professors may bring up the MPRE, or give you practice MPRE questions, but most are geared towards discussions, towards the gray area and towards what we SHOULD do as professionals. The MPRE tends to focus on where the rule draws the line.
2) Pay Attention to Key Words: Sometimes it’s not that you don’t know the rule, or even how to apply it, but you misread the question. Maybe the question asks about civil liability, which means was the attorney negligent, versus is the attorney subject to criminal sanctions, litigation sanctions or discipline. The difference is very distinct, and sometimes the answer can change drastically based on those little words.
3) Study by practicing, and learning from the questions: The MPRE is a test that you master by practice, not by continually reviewing substance. Yes, you DO need to know the rules, but merely reviewing the rules over and over again will not do the trick. You need to practice the questions, and learn from those questions. Master the way the rule is applied, and why one question turned out one way, while another turned out to have a completely different answer. Students are tempted to assume that they don’t know enough rules, but that’s not necessarily the case, sometimes it’s the way those rules are applied.
4) Pay attention to nuances: One thing to learn from the questions is the tiny nuances you might not pick up studying the rules. For instance, you might master the rule that you can not comingle funds, and even have the exact rule number memorized verbatim. However, only the questions will show you the various ways that rule gets applied, and that’s how you REALLY master the MPRE

LawTutor's President gets Young Lawyer's Chair

Which, is an ACTUAL chair. So, pretty soon we will have an actual Captain's chair in the LawTutor's office, to commemorate all of the wonderful work Tania Shah, our fearless leader, has done!

What NOT To Do In Law School , Free Pre Law Workshop

Join us for a FREE workshop on What NOT to do in law school, or rather, how to succeed your first semester of law school without losing your mind!

When: September 12, 2010.
Time: 12-3pm
Where: LawTutors’ office
1674 Beacon St, Suite 2
Brookline, MA 02445
Cost: FREE, and materials will be provided.


This workshop will be given by LawTutors’ President Tania Shah, and Vice President Melissa Gill, who are also adjunct professors at the University of Massachusetts Dartmouth School of Law, and who also teach the Law School Prep Course available on eCasebriefs.com (http://www.ecasebriefs.com/blog/category/law-school-prep-course/).

The seminar will go over:
• How to prepare for class in a time effective manner
• The importance of your first year grades
• How to brief a case, and make that brief work for you
• Demystifying the outlining process
• How to synthesize your notes, and how to USE your outline.
• Time management skills (ie, how not to become a hermit or lose your mind!)
• Using practice exams to your benefit
• Finally, what is IRAC and why it should be your new best friend!


This seminar is absolutely FREE, you just need to RSVP by September 9th, by emailing info@lawtutors.net or calling the LawTutors office at 617-738-4800.

Read this book before you start law school

I'm serious. Pick up Nancy Rapoport's Law School Survival Manual. I can't recommend this book enough, it really does tell you all you need to know about your first year, and beyond, in a witty and easy to read way. In fact, as I read this book I kept thinking "I ALWAYS tell my students that, and they NEVER listen" - so pick up this book and LISTEN to Nancy, she knows what she's talking about, and you will benefit your first year by taking her advice.

I'll leave you with a blurb from the book, because it can not be stressed enough that, yes, you need to know EVERYTHING your professors say. Now click on the above link and buy the book!

“want to give a law professor an honest to goodness nervous tic? All you have to do is raise your hand in class and ask the question that didn’t seem to bother your lecturers in undergraduate classes; “Do I need to know this?”

FREE Online Pre Law Course

So, yours truly, along with our fearless leader, Tania Shah, recently filmed an online course about what to expect your first year, and how to succeed your first year.

The course has study tips about how to prepare for your classes, what to expect in class, how to read and brief cases, how to write in IRAC form, what to expect on exams and last, but certainly not least, a substantive overview on the topics you are most likely to see your first year.

Best of all, this is all free! Just go to http://www.ecasebriefs.com/blog/category/law-school-prep-course/, create and account, and start watching! There are over 20 hours of video, and practice questions. And yes, since this is free, Tania and I do accept gifts, preferably chocolate and wine! You know, after you have an awesome first semester with fantastic grades, thanks to us!

FREE BAR EXAM SEMINAR

FREE
BAR EXAM WORKSHOP

Failed the bar and don’t know why? Or what to do next? Or maybe you’re a first time taker that is worried about how to approach studying?

We have an answer!

Join us for a FREE LawTutor’s Bar Exam Workshop.

When: Saturday, May 22, 2010 12 noon -2pm

Where: LawTutor’s Brookline Office (1674 Beacon St)

Who: Anyone who is a bit curious about what they can do differently for a second bar, or first time takers that want to make sure they study effectively.

What: Get tips and advice on how to how to study differently than you have before, how to study more effectively, how to apply the law and not just memorize it and much more! For instance, learn how to tackle MBE questions by learning from your mistakes, how to “track” MBE questions, and the benefits of learning from your past essays! Also, learn how to look at the law through a “Big Picture” so you do not get overwhelmed!

For more information or to sign up call 617-738-4800 or email info@lawtutors.net

This seminar is FREE, but will not be held if less than 8 people RSVP. You MUST RSVP to attend.

Things You Should Know About Con Law

If you are a first year law student, most of you are most taking constitutional law. At first glance, this might seem like something you learned in high school civics. However, as it has become clear by now, that’s not the case. So, a few tips on what you need to know for constitutional law!

I. Equal Protection and Due Process are different. Sure, they overlap a lot, but you absolutely need to understand the difference. When we classify people, by any classification (race, alienage, hair color, profession) we are in equal protection territory. If, however, you are dealing with something that applies to everyone, and is a “right”, we are dealing with Substantive Due Process (ie, abortion). Sure, there can be overlap – with the issue of same sex marriage, we have equal protection issues (sexuality) and rights (marriage), but you STILL have to take one issue at a time.
II. Know your scrutinies. Don’t paraphrase them, know them, memorize them, tattoo them on your forehead. Strict scrutiny means that the government has the burden of proving the statute is narrowly tailored to a compelling government interest. Intermediate scrutiny means that the government has the burden of proving that the statute is substantially tailored to meet an important government interest. In rational basis the plaintiff has the burden of proving that the statute is NOT rationally related to a legitimate government interest. Know who has the burden, make a chart to when these apply and memorize it.
III. Don’t dismiss an issue. A lot of my students fail to bring up certain issues because they think the plaintiff will not prevail. This is not a good idea. For instance, they see someone classified based on hair color, correctly assume that, in that case, rational basis would apply, then never bring up equal protection since the government would most likely win. This may be very true, however, I am almost certain your professor STILL wants you to bring up the claim, and explain WHY the plaintiff would not win.
IV. Congress can’t do anything it please. Know that Congress has limited powers, namely the power to regulate interstate commerce and the power to tax and spend. If you see a fact pattern where Congress is acting, make sure they actually have the power to do so.
V. Don’t invent rights. We honestly don’t have that many, so don’t make them up. I would make a chart, outlining the rights we DO have (the fundamental rights, like the right to privacy, to marry and to vote) and then highlight those rights with examples from cases you read in class. Don’t assume we have rights that were NOT mentioned in those cases.

Above all else, do not be afraid to ARGUE. That is mostly the point of training to be a lawyer!

Exams Just Around the Corner!!!!!!!

Yippee? I know, not quite. And no, I’m not going to lie and tell you “it’s not that bad” or anything else equally as ridiculous. It IS bad, BUT, there are certainly ways to deal. So, what are those ways to deal?

1) Be calm. Hey, I can see you rolling your eyes at me! Stop that. I’m serious, remain calm. Anxiety and stress are yet two more foes for exams, so please do not indulge them. The more anxious and stressed you are, the less likely you are to remember things. Who wants that?

2) Take One Thing At A Time. This is part of the answer to “ok fine Melissa, but HOW do I remain calm? Have you TAKEN law school exams? Do you KNOW what kind of pressure I am under?” Yes and yes. And honestly, If you feel yourself becoming overwhelmed; stop, breath, grab some chocolate and make a to do list. Then, tackle one thing at a time. That’s all you can do. Stop stressing about how many exams you have, and how many more cases you have to read, and how you haven’t started outlining and oh my god I haven’t even done a practice hypo yet………and just resolve to tackle all of this one step at a time. That’s all you can do, AND once you resolve to do that, you will feel calmer, and trust me you will get more done. Because stressing about how much you have to do doesn’t ACTUALLY get any of it done.

3) Practice, Practice, Practice. Yes, I know how much work you have to do. Yes, I know that writing out practice exams is not exactly your idea of fun. Well, suck it up. However, please believe me when I say that nothing prepares you for your final exams like practicing for them. You wouldn’t go on stage and sing without first practicing (drunken karaoke aside! And really, let’s not treat exams like karaoke!), if you were on a sports team and had a game coming up, again, you’d practice. So why are exams any different? Some schools have exam banks where professors put up old exams – use them, practice them, love them. If your school does not, seek out upperclassman, or look to books like Examples and Explanations (or LawTutor’s own Big Pictures, Little Essays) for help. But the key is, you have to practice issue spotting, practice writing the rules out, and practice the analysis. There are no short cuts to this.

4) Outlining. There is no perfect outline. You don’t get extra points for completing one, or for color coding it. The purpose of an outline is to help you review. You probably have about 100 pages, give or take, of class notes. You can’t just sit there and re-read them, not only is that boring, but it’s not of any help. You need to DO something with those notes. Outlining is that process; take the class notes and condense them, figure out what is important, etc. You can also use, as part of this process, charts, flashcards, flowcharts. All of those things help you review and condense the information you have. Also, think about what your exam will look like, and what your professor is expecting, and prepare accordingly. For instance, for my constitutional law course I had a professor that really liked it when you argued both sides, and really really REALLY liked when you could compare and contrast her facts to previous cases (in the legal world we call that an ANALYSIS). So, how did I prepare? I made a list of cases, arranged by topic, including a few lines of important facts, as well as the holding. My entire list was about 5 pages long: it wasn’t intended to be comprehensive, but merely to give me a quick reference guide when I was reviewing the night before.

5) Don’t Memorize. Sure, some rules you have to memorize, and some language is important – this is a given. But this is not college or high school – merely memorizing rules or cases will not get you that A exam. What WILL get you that A exam is knowing what to DO with the rules and cases. Again, we call that an analysis. This means you can’t just memorize words, you have to understand them. A little trick I learned – if you can’t explain it to someone else, you don’t know what it means. So, what I would do is take your class notes (which should have applicable rules in them), and rewrite them, in your own words. Or, rewrite them with examples. If you can’t paraphrase something, or think of your OWN example, you probably don’t get it as well as you need to, so this is an area you should focus on. If you can’t “get it” on your own, seek out a professor, a TA, a tutor (like me!) or an upperclassman. Even classmates can help, but be weary, they don’t always know more than you!

So, hopefully that will help you survive until June! Good Luck!

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!

So You Failed The Bar?

It’s not the end of the world. Trust me on this. And yes, I know you’ve all heard stories about successful attorneys that failed the bar the first time around. Hey, If JFK jr couldn’t pass………but it doesn’t make you feel any better. I know. So, take a day or two to wallow. You have my permission. Turn on silly movies, grab the Ben and Jerry’s, and curl up on the couch.

But then stop. And realize this is not the worst thing that could ever happen to you. And realize that there are PLENTY of people in the same boat as you, and ALL of you will do just fine.

I know this because most of the students that come to me for private tutoring are repeat takers. And those students end up passing the bar. And they end up getting jobs, and then no one cares that they failed, or how many times they failed. You just have to pull yourself up by your boot straps, realize that you need to do something differently, and try again. I had a student take the bar 13 times, come to me for the 14th, and finally pass. Talk about dedication! If he can tough it out, so can you!

So, why did you fail and what can you do differently?

1) Didn’t put in enough time. This is rarely why students fail. Trust me. Most of my students put in PLENTY of time the first time, and I’m sure you did as well. But, on the off chance that you feel you just didn’t work hard enough, work a bit harder next time. (but please trust me when I say this is RARELY the case).
2) Did not study effectively. You might have put in HOURS and HOURS and HOURS in the library, on your couch, and everywhere else, but perhaps you were doing the wrong thing. I had a student who literally spent 12 hours a day in the library reviewing outlines her first time. Didn’t pass. Why? She was JUST reviewing outlines. Nothing else. This is not effective studying. You need to be doing something active, and merely reviewing outlines time and time again won’t cut it.
3) Your bar review didn’t work for you. Everyone learns differently. There is no “right” way to learn, and thus, no one size fits all bar review. Maybe you need more hands on, one on one help. Maybe you need live lectures instead of a video, or vice versa – maybe you need a video or dvd you can rewind. Maybe you need to spend more time doing questions and less time listening to lectures.

Those are the common themes I see, and most often it’s #2 and #3 that are the problem. How to change?

1) Capitalize on what has worked for you in the past. No, that doesn’t mean that studying for the bar exam is exactly the same as studying in law school. But you know yourself well enough to know what works.
2) Find our how you study best. Are you a visual learner? Audio? Do you need to draw lots of charts and graphs? Figure this out and then run with it. If you’re not sure, then seek out a private tutor (they can also help you figuring out where you went wrong – one read of my student’s essays, and I can figure out how to direct them)
3) Most importantly – DO SOMETHING DIFFERENTLY. The definition of insanity is repeating the same behavior and expecting different results. No one needs insane lawyers, so do something different! Shake it up – find a new bar review, find a tutor, find a new place to study, find new books, try to do more practice questions and less reviewing of your outline.

Whatever you decide, the important thing is to not give up. You can and will succeed.

How To Study For Exams

Most of you have completed midterms by this point, if your professor gives them. You are also probably starting to get into study mode for finals.

So, in the Halloween spirit (because it’s my favorite holiday), I’ve decided to give you some treats. Now, while I can’t give candy over the internet, I’ll give you study tips instead.

1. Use old exams from your professors. Most professors have these available either online, or through your library. If they are not available, talk to your professor, ask if you can practice with old exams. There might be a good reason why he or she hasn’t made them available, or, perhaps it slipped their mind and your request may impress them! Either way, this is the best way to prepare for your exams. First and foremost, you need to practice your writing. Secondly, using your professor’s old exams will give you a good idea of how they write fact patterns and what they are looking for.
2. Use your professors. Go talk to them. Ask for feedback. It is their job. If they were kind enough to give you a midterm or any practice exams, pay attention to the feedback and even ask them to expand. I give my students practice essays before the actual exam, and I always give a great deal of feedback. If your professor does this, thank them and take it seriously. Visit them during their office hours and ask how you can improve. If they don’t give you midterms or practice exams, write something on your own and ask for feedback. They are your best resource, so use them!
3. Do not listen to classmates. They might mean well, they might not. Either way, everyone is different, and they don’t necessarily know anymore than you. Just because the guy that sits next to you in Torts spends 12 hours in the library doesn’t mean that will work for you. Everyone has different learning styles, so don’t try to mimic someone else.
4. Practice makes perfect. Just like I said in 1, practicing your writing is the best way to prepare. Reviewing outlines and notes will only get you so far. If your professor doesn’t have old exams, find something like LawTutor’s Big Pictures, Little Essays or Examples and Explanations. These are books that have sample hypotheticals and sample answers.
5. Learn to apply facts. Learning the law is only the first step. Applying it is the most important step. Take the books I mentioned in 4, or make up fact patterns with your study group, and practice your analysis. The more you do this, the easier I gets. When I was taking constitutional law, I used to meet with my professor and run different fact patterns with her. Not only was it actually fun, but it helped me fine tune my skills. This is what a lawyer does; a client comes in, and gives you facts. You need to then apply those facts to the law. This is also what you need to do on exams.

So, Happy Halloween, and Happy Studying!

Vicarious Liability; what it is, what it isn’t

So many students, by the time they get to me when taking the bar, are horribly confused on vicarious liability. (It should be noted that this is the same thing as respondeant superior, but I find vicarious liability easier to spell, so that’s what I’m using!) So many first years are confused about it as well. If this describes you, do not be alarmed, you are not alone! Also, do not distress, it’s one of the more difficult aspects of Torts to grasp, so your confusion does not make you an inept or incapable law student. It makes you normal! (well, as normal as any of us law types can be anyway!)

So, here is the nitty gritty on vicarious liability.

Basically, if vicarious liability applies, that means you are responsible for the torts of someone else. You do not have to be negligent in any way, you’re just on the hook. Think of what the term “vicarious” means outside of law school; when you say “oh, I want to live vicariously through you”, you mean you want to sit back and live that persons’ life, or reap the benefits, without doing anything. Same for vicarious liability – you get to sit back and be liable without doing anything.

So, how is this fair? Well, we only apply vicarious liability to certain relationships; the most common being employer/employee or agency relationships. For one to be vicariously liable for the torts of their employee, the person must 1) be an employee (do not forget to analyze this element. If they flat out tell you the tortfeasor is an employee, fine, no analysis needed, but otherwise in an exam you should show why the tortfeasor is an employee, not an independent contractor, since vicarious liability does NOT apply to independent contractors) and 2) acting within the scope of their employment. For an agency relationship it’s much the same; 1) is the tortfeasor an agent, 2) acting to benefit the principal.

That’s all you need. The employer or principal does NOT, let me repeat that again, does NOT need to be negligent in any way. Do not confuse this with negligent hiring or failure to supervise.

So, what does it mean to be “acting within the scope of your employment/agency?” Well, essentially, is the tortfeasor’s actions going to benefit the employer or agent? For instance, (ex 1) if I send my assistant to get me fountain soda down the street (I do this quite often as I have an unhealthy addiction to 32oz glasses of sugar) and he takes my car and hits someone, he was acting within the scope of his employment, since he was acting to benefit me. (Really, I’m not a good lawyer, professor OR tutor without that sugary caffeine). That means that I, as the employer (or more precisely, LawTutors, LLC) is responsible for his negligence. If you notice, the company did not do anything. LawTutors did not tell him to drive recklessly, nor was LawTutors in the car with him. But my assistant WAS acting within the scope of his employment, so by default, the employer (me or LawTutors) is vicariously liable.

Some people will tell you that vicarious liability only applies to negligence. This is not true. It is just true that it more commonly applies to negligence. This is because it is rare that an intentional tort is within the scope of someone’s employment. For example; (ex 2), what if you are on a plane, and the flight attendant comes by your seat, and not liking your wardrobe choice for the day, punches you? You would not be pleased. In fact, your first inclination might be to sue the airline. Well, the flight attendant is most definitely an employee, but was he or she acting within the scope of their employment? Certainly not. I would find it hard to believe that the flight attendant punched you to further the goals of the airline. If they did, the airline has really strange customer service, even for an airline. So, there is no vicarious liability in this example.

However, (ex 3) what if you are at a bar, (I know, law students are too busy studying for that, but go with me on this hypo…..) and the bouncer roughly “bounces” you, committing a battery. Is the bar vicariously liable? Well sure! The bouncer is an employee, and “bounced” you roughly to benefit the bar. That’s essentially what a bouncer does, so unlike the flight attendant example, the bouncer WAS acting within the scope of his employment. What if the bar specifically said “when bouncing people, don’t be too rough”? Well, the bar is STILL vicariously liable because you can not, as an employer, simply avoid vicarious liability because you tell someone NOT to commit a tort.

Now, going back to example 1. There is most certainly vicarious liability, but could there be other kinds of liability on the part of me or LawTutors? Potentially! What if I knew my assistant was an awful driver. I knew he got into accidents at least twice a year, that he never looked where he was going, constantly disobeyed traffic signs, and to top it all off, was constantly texting while driving. And I was perfectly aware of all of this when I handed him my keys. Now, not only am I vicariously liable (as discussed above) but I may also be liable for my OWN negligence; for giving car keys to someone I knew was an awful driver. This is the most important distinction to make – they are SEPARTE torts. DO NOT, under any circumstances, combine the two. I see students analyze vicarious liability all the time in a hypo similar to example 1 by saying “LawTutors is vicariously liable for assistant’s actions because he was an employee and they gave him the keys knowing he was a bad driver”. NO NO NO. TWO SEPARATE torts. DIFFERENT torts. Hammer that in now, and repeat with me- SEPARATE TORTS.

Let’s do another. In example 3 with the bouncer, we have already established that the bar would be vicariously liable since the bouncer was acting within the scope of his employment. Now, let’s add to the facts. What if the bar knew the bouncer had a history of violence? The bouncer’s background check revealed that he had been in and out of jail on several occasions for assault and battery, and was even ordered to take anger management classes. If that’s the case, perhaps the bar might also be liable for negligent hiring; which is DIFFERENT from vicarious liability. With me so far? Seeing how they are separate torts?

Last one – back to example 2. We established that the airline would not be vicariously liable (unless, in some strange customer relations fail, the airline decided to make it part of their policy to punch poorly dressed passengers as a way to get their flights looking a bit better), but does that mean the poor passenger is without a claim against the airline? Not at all. Perhaps there would be a negligence claim against the airline for failure to supervisor the flight attendant, or failure to properly train the flight attendant on how to deal with passengers, or maybe, if, like the bouncer, the flight attendant had a history of violence, perhaps a negligent hiring claim. But the important thing to remember is that none of these is vicarious liability.

So, remember ONE thing when analyzing vicarious liability. The plaintiff only need establish that the tortfeasor was an employee, acting within the scope of his or her employment, and then the employer is AUTOMATICALLY liable. It should also be noted that this does not let the tortfeasor off the hook, they are ALSO liable. So don’t go committing torts at work thinking you won’t be responsible.

I hope that helped clear up any vicarious liability confusion. Even if your first year does not test it often, it comes up on the bar exam ALL the time, so it’s a good idea to master it now!

MIDTERM SPECIAL

MIDTERM SPECIAL - from now until November 6th, 2009!!


For a limited time only, you can purchase “Big Pictures, Little Essays” AND the “Big Picture Cds” for ONLY $49.95. This is normally a $99.95 value, and the first time LawTutor’s materials have been half off!


If LawTutors is tabling at your school, you can make this purchase at the table. Or you can call the office at 617-738-4800, or email us at info@lawtutors.net. If you need the materials shipped, there will be a $10 shipping and handling charge.


In addition, we are running a midterm special on One on One Tutoring:

If you purchase a one on one tutoring package between now and November 6th, you will get extra hours!


If you purchase a 10 hour package, you will receive 2 hours for free. If you purchase a 20 hour package, you will receive 5 hours for free. The package will not expire for a year, so if you purchase 20 hours now, you will have a year to spread out those 25 hours. That’s why it’s such a great deal to get the extra free hours now!


In addition, the materials fee for first time students will be $99.95 instead of the normal $150. Again, the first time the materials have been on sale, so take advantage now!

MPRE SEMINAR DATE CHANGE

The LawTutor's MPRE seminar has been moved from October 11th to October 17th, due to Columbus Day Weekend.

New York What NOT To Write Available for purchase

Go here to buy!

MPRE Tips

One recurring observation I have of my MPRE students is that test takers fail to appreciate the specifity of the call of the question. What do we mean by that? The call of the question often helps you determine the subject, as well as the right answer. For example:

The MPRE, as you know, addresses areas of judicial canons and the Model Rules of Professional Responsibility, but it also revisits Torts? What? No one ever told me
torts was on the exam?! Okay, maybe not the whole gamet of torts, but
one particular area tested is negligence...

Consider the following fact pattern:

Prissy was injured in automobile accident by Dolly Drunk and hires attorney to litigate against Dolly Drunk. Prissy informs attorney that she is unwilling to accept less than $150,000.00 prior to trial and if the matter goes to trial she would want no less than $200,000.00 A week before trial Dolly's counsel offers to settle case for
$160,000.00 in exchange for a release and dismissal of Prissy's pending action against Dolly. Attorney rejects the offer. The matter goes before a jury, and the jury returns a verdict of $300,000.00. Prissy later learns that the offer of settlement was never communicated to her by attorney. Infuriated, Prissy brings suit alleging civil malpractice liability.

Did attorney's actions subject her to malpractice liability?

There are several options that the Examiners could provide as possible selections in a multiple choice set up. One's initial gut response is Yes,.... because one may remember reading Rule 1.2 which pertains to this question in pertinent part that the “...lawyer shall abide by the decisions concerning the objectives of representation and, as a result required by Rule 1.4. Rule 1.4 which further states that [a] lawyer shall (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these
Rules; (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; and (3) keep the client reasonably informed about the status of the matter.

In the above fact pattern, it is safe to say that the attorney did none of that. But, the answer is No, the attorney will not be subject to liability. How can that be? Look at the call of the question. The call of the question is asking whether the attorney is subject to liability. Liability should alert you to the fact that this is a civil claim, most likely based on negligence (legal malpractice) and negligence is premised on four elements (in the context of negligence actions) Duty; Breach; Causation; and Harm/Damages. Assuming Prissy could prove the first three elements, she cannot prove damages. Recall in the fact pattern that the jury awarded he $300,000.00. Therefore, Prissy was not damaged.

How might the result of this question been different if the call of the question was is Prissy subject to discipline? The attorney most certainly WOULD have been subject to discipline.

For more advice on taking the MPRE, please contact LawTutors to learn more about their MPRE seminar, or working with Joe Keeney, the MPRE Attorney Instructor. (www.lawtutors.net, 617-738-4800)

The Trials Of Law School - a movie review

I came across a documentary called “Trials of Law School”, and decided that today was the perfect day to pop it in the DVD player and sit back with my dinner and watch it. Let me start by saying that, overall, I enjoyed the documentary, and I would highly recommend it to anyone considering law school. It gives a fairly good representation of the good and bad of law school, and I think anyone debating about whether law school is for them should take a look at this documentary.

The documentary, by Porter Heath Morgan, follows 8 students as they embark on their first year at The University of Oklahoma Law School. My first criticism is that not every law school is The University of Oklahoma, and every law school gives a slightly different experience; due to the faculty, the culture or the geography. For instance, it was said that classes consist of 40-45 students. This is starkly different from most law school, where a first year class typically consists of 150 students. Having said that, Mr. Morgan fills this gap by including interviews with faculty and administration from various law schools around the country. In addition, despite the fact that not every law school will not be identical to The University of Oklahoma, the film does a good job of capturing the typical experience that every first year shares.

First off, the good: The mix of students Mr. Morgan chose was excellent. They are of different age ranges and different backgrounds, all having different responsibilities and concerns outside of law school.

As stated above, Mr. Morgan included interviews with faculty and administration from all over. To be honest, this was my favorite part of the documentary, and I felt it was the most helpful for potential students. I was also impressed with the individuals that Mr. Morgan chose to include, since many of them, like Rich Freer and Eric Posner, are renowned in the legal field. I also found myself nodding in agreement with many of the interviews, since they were highlighting points that, as a professor myself, I am consistently stressing to my students. Many first year students currently going through the process, as well as incoming students, can benefit greatly from a lot of the advice doled out.

I found that the movie really captured the “essence” of law school, and the stress involved. I also loved the parts about finals, since again, it really captured what it is like to go through the stress of law school finals, which are nothing like anyone has ever been through before law school. I also loved a comment about law school being like high school, which, for good and bad, is completely on point!

It was also great how Mr. Morgan wrapped things up at the end, with the ability to show people that there IS life after your first year, and those first exams are NOT life or death. You can move on, you really really can!

I also found the bonus feature “Think Like A Lawyer”, is an incredibly bonus for current first years!

Now, for the not so good: I often found the narrative a bit choppy. It was really difficult to get invested in the lives of these students. I was also disappointed that Mr. Morgan did not dive as deep as I would have hoped into certain areas. For instance, some of the students were parents, and some were dating others in their group, and these would have been very interesting areas to dig just a bit deeper into, however, the viewer was only given a taste. So many of my students are “non traditional”, in that they have to balance families and, sometimes, full time jobs. I was so happy that Mr. Morgan included students that face those same challenges, however, so disappointed that we did not see more of how they balanced those responsibilities.

There were also some parts that I found did not make sense, or were just not relevant, like a student getting ready in the morning. I felt that time could have been better used to flesh out some of the other things that were only touched upon.

My only major issue, especially from the standpoint of a professor, is that there was a scene where one of the students contradicted the professor, and the movie never took the focus back to why she MIGHT be wrong, and the professor might be right. She was using real life experiences, and it would have been a PERFECT opportunity for Mr Morgan to discuss with professors about how students that come in with too much work experiences are often at a disadvantage, since they think they know things they do not. Many of my students work while in law school, or have had previous work experience. Even if that work experience is in the field of law, it does not always mean what they learned on the job was correct.

Again, overall I really enjoyed it, and felt it captured the essence of what it means to struggle through your first year of law school. I think this is a must see for anyone contemplating applying for law school, or, for that matter, any current first years!

Torts Tips

So, most of you first years are beginning to settle into classes, and for almost all of you, the first class you really need to tackle is torts. This will most likely be the first exam most of you take as well. Now, for some tortious tips!

1. ALWAYS establish a prima facie case before a defense. If you think about this, it just makes good sense. If the plaintiff's attorney has not established that your client committed battery, why would you bring up self defense? Just as the plaintiff needs to establish a prima facie case to bring a claim, so do you!

2. Remember that bad things happen to good people, and it's not always a tort. Even though we, as a society, as pretty litigious, you can't sue over EVERYTHING.

3. Remember that when establishing negligence, you need DUTY, BREACH, CAUSATION, INJURY. ALL of them. Don't skimp and fail to discuss one of the necesarry elements.

4. Remember that a battery doesn't always have to be HARMFUL. It can be offensive. Harmful OR offensive contact.

5. An assault is an intent to cause imminent apprehension of a harmful or offensive contact. Keep in mind that apprehension is NOT the same as fear.