Fundamental Skills for First-Years

1. Fundamental Skills for First-Years Exam Taking Tips & Tackling Essay Questions October 23, 2010

2. Agenda for Session • Tools for preparing for exams • General tips - Exam Prep • Types of exams • General tips – Exam Taking • Time allocation for exams • Tackling the Essay/Hypo question • Spotting the issues • Organizing your answer • Other exam details

3. Preparing for Exams – How? • Reading, briefing, & synthesizing • Attending class & incorporating information • Developing a study plan/calendar • Creating your own outline • Studying the material • Identifying professor interests • Practicing with the material • Practice Questions • Study Groups (optional)

4. General Tips • Time Management is key now! • Think about how you are going to manage the rest of your semester. • Now Thanksgiving: focus on seeing the forest & • Refine (start) outlines, identify problem areas you need more time with, use outside resources to clarify/further understanding, identify areas of professor interest • Last two weeks: focus on studying to take the test • Practice questions, commit black letter to memory, review, create checklists/ flowcharts/condensed outline

5. General Exam Prep Tips • Practice, Practice, Practice • Do the questions your professor may share • Write out actual answers under time pressures • Adopt a Winning Attitude • Maintain Your Health/Life • Don’t want to burn out emotionally or physically just before exams. • Tired mind & body do not respond well to a three hour exam. • Vitamin C & don’t get sick. • No cramming – leaves you too sleepy & how much really sticks.

6. Exam Question Types and Formats • Types: • hypothetical, • direct question, or • policy analysis or theory. • Formats • essay, • short answer, • multiple choice, or • quick question.

7. Large Hypotheticals (essay) Alton Brown produces some of Vermont's finest maple syrup. His farm normally produces between 4,000 and 4,800 gallons for raw sap, which makes from 1,000 to 1,200 gallons of pure, table-ready syrup. For twenty years, Log Cabin Industries, the country's largest distributor of maple syrup and related products, has bought all of Brown's syrup. Each year the company sends Brown a letter giving the address to which the syrup is to be consigned, with a request that he notify them if he does not want to sell his syrup to them that year. Each year, Brown ships his syrup to the address, and receives a check by return mail in payment for his syrup at the prevailing rate. In 2003, Brown purchased the Snodgrass' farm next to his, which also had "sugar bush" as fine as his own. At the end of the year, he received the usual letter from Log Cabin. At that time, the prevailing price for maple syrup was $20 per gallon in bulk. While Brown was tapping trees, however, the price plummeted to $2 per gallon on news that two university researchers had been able to synthesize "real" maple syrup from corn stalks and a very common species of seaweed. The trees were good to Brown that year - he got 5,200 gallons of sap from the trees on his farm and 3,200 from that he bought from Snodgrass. When he finished boiling it down, he had 2,100 gallons of syrup which he shipped by tank truck to Log Cabin. Two days later, the truck was at his door again. It seems that Log Cabin refused the shipment, and sent back a xeroxed explanation that they were no longer buying maple syrup. Brown looked for another buyer, but was unable to find one. Since he was paying $100 per day rental on the truck, he dumped the syrup in the woods and went to see his lawyer. If Brown files a breach of contract action against Log Cabin, what result? Explain fully.

8. Direct Question (multiple choice) If an offeree gives a rejection to the offeror, which of the following is true at this point? a. The offeree is still able to accept the original offer until its original expiration time. b. The offeree has made a counteroffer. c. The offeree can now transfer the rejected offer to a different party who becomes the new offeree. d. The offeree has lost the ability to accept the original offer. Direct Question (quick question) “If O has a life estate and conveys to A, and A dies leaving..., etc” who has what? - “What is specific performance?”

9. Policy/Theory questions (short answer) Contracts -- Being an expert in contract law, you are helping to draft the Restatement (3rd) of Contracts. You have been asked to consider expanding the category of "incapacity" to include poverty and lack of education. Discuss whether or not you think this is a good idea and why. Torts -- In which of the following three categories of cases would a utilitarian Tort theorist who believes in the validity of the Coase Theorem be least concerned about the legal rules governing liability: (A) cases involving damage to homes caused by collisions between automobiles and those homes (B) cases involving damage to homes caused by smoke from factories adjacent to or across the street from those homes; (C) cases involving damage to homes from intentional vandalism, such as breaking of windows, while those homes are unoccupied. Explain your answer.

10. General Exam Taking Tips Do not panic! Allocate your time mindfully. Read the exam instructions carefully. Read each question’s call of the question carefully. Actively read the facts/hypo. Answer only what is being asked. Organize before you answer! Do not start writing right away!

11. Read the Instructions The length and detail of instructions for an examination will depend on the instructor. Read them thoroughly. You do not want to lose points because of a careless error/failure to follow instructions. Examples: Fail to apply rules that professor says governs Fail to see the questions which you must answer

12. FINAL EXAMINATION CONTRACTS - Closed Book Professor X December 11, 2007 - 3 hours READ ALL THE FOLLOWING INSTRUCTIONS CAREFULLY (i) Write/type your examination number on the first page of this examination. Use only your examination number, not your name. (ii) This is a closed book examination. You MAY NOT use any materials. (iii) Statutory, case and restatement citations may be used but are not required. The better answers will include a thorough analysis of the issues presented rather than a string of citations. (iv) Conciseness and clarity of expression, organization and clarity of presentation, while not separately taken into account in the grade, necessarily have some impact on the grader's evaluation of your understanding of the subject matter. (v) This examination has 11 pages. Check that you have a complete examination. (vi) This examination consists of 8 questions. You should answer 6 of the 8 questions. ALL ANSWERS MUST BE EXPLAINED. Your grade will be based on your analysis of the issues rather than your ability to come to a single "correct" solution. (vii) Remember that this is an examination of your understanding of the material covered in Contracts. Answer the questions based upon the Contracts readings and class discussions and not on the basis of material discussed or read in your other classes.

13. Assume that the following American common law rules apply unless the question indicates otherwise: • 1. Rule in Shelley’s Case • 2. Doctrine of Worthier Title • 3. Destructibility of Contingent Remainders • 4. Merger • 5. Rule Against Perpetuities • 6. Dower, on lands owned by husband during marriage • 7. Nontransferability of PARs and Rts/Re. • 8. Rebuttable presumption of tenancy-by-the-entireties for real property conveyances to spouses; inalienability of any present possessory interest in a tenancy-by-the-entireties during the joint lives of the spouses unless both agree. • Unless otherwise noted, this exam is set in modern times — in fact, today. In this jurisdiction, the rules of the common law generally apply; the statute of limitations for adverse possession, unless otherwise noted, is 15 years, and does not require intentional "hostile" adversity; for prescription the statute is seven years; and all landowners hold fee simple absolute unless otherwise stated. • (Pulled from the cover sheet of a Boston College Law School Property examination)

14. Time Allocation for exams • Incredible time pressure on exams. • Hours for exam usually equal to credit hours for the course. • Up to 1/3 of students will not complete an exam – Warning: you can’t do well if you don’t complete the exam. • No “halo” effect • Each question has maximum value • Before beginning any exam you should determine how you will divide your time on the questions and stick to this plan.

15. How to begin • Should you read the entire exam first? • Read the “call of the question” first. • If you know the question that is being asked it will inform your reading. • Ex. Discuss all claims which P may bring and the likelihood of success. • Now actively read the question. • Read once carefully • Re-read call of question • Read again, underlining/circling relevant facts, making notes of legal ideas or terms. Diagram if you need to (helpful in multiple party questions).

16. Structure your Answer –Outline before you start writing • Why? • What form should it take? By party or by issue/cause of action? • If multiple parties in question/organize by transaction. A v. B; B v. C; C v. A; etc. • If two parties, then organize by legal issue. Ex. Contract question – offer, acceptance, breach, remedy. • Present in a logical order. • Write clearly & concisely. • Time allotment for this?

17. Formulating an Answer • No surprise, the heart of a good answer for an Essay/Hypo begins with IRAC. • Issue: can you identify the legal issues in the question? [issue spotting] • Rule: can you select and recite the relevant rules of law? • Application: can you apply the relevant facts of the question to the rule cited? • Conclusion: can you come to a concise legal conclusion?

18. (I) Issue Spotting • You have to be able to read a question and identify the legal issues. • No key! • Think of yourself as an attorney now! This case comes walking in your door, what are all the possible issues. • Triggering Facts - read the facts carefully, things are usually there for a reason.

19. (R) Rule selection & interpretation • Know the black letter law • Remember that rules aren’t always straightforward, they often require interpretation. • X court may have said they were following a certain rule and interpreted it to lead one result, Y court may have reached an alternative result in a similar case with the same rule. • Do not assume that the professor knows the law.

20. (A)Application of Rules to Facts • The “show your work section.” • You have to apply the relevant facts in the question to the stated rule. • Where there is more than one interpretation of the rule, apply facts to all interpretations.* • If more than one possible rule, then apply facts to both. (ex. contributory vs. comparative negligence)* • If facts are ambiguous, identify the ambiguity and apply the alternatives. • If it’s “X” then this result, if “Y” then this result.

21. Example – Show how the law and the facts interact “Bob’s estate will likely be successful on a negligence claim. Under the doctrine of Res Ipsa Loquitur – “the thing speaks for itself”, juries can infer negligence on the part of a defendant if the plaintiff is hurt in an accident that does not normally occur in the absence of negligence by someone in a class of actors within which the defendant falls. The piano’s fall from the 2nd story window onto Bob on the sidewalk was an event that would not occur absent negligence, similar to Byrne, so even if the exact negligent act can’t be identified (was the piano not secured safely, was it pushed by an employee, etc.) a jury will likely infer a breach of duty on the part of the defendant.”

22. Add Policy Considerations if Applicable…. • Depends on your professor. • Weave them into your answer – in analysis or shortly thereafter. • Will not be present for every question. • Don’t force it.

23. (C) Conclusion • Succinct concluding statement • Not too strong… (“Clearly…) • Is there a “right” answer? Yes and No • Yes - you have to know the rules and how to apply them. • No - fact patterns often complex so there is no “right” finding on liability. • Argue all sides, all angles (unless instructed otherwise) • Special note on questions looking for a final answer/ruling recommendation.

24. A Simple Example Five-year old Bill was in the driveway of his parents’ house riding his tricycle when Jane came home from school. She was the six-year-old youngest child of Bill’s next-door neighbors. Her three older brothers had great influence on her and a reputation in the neighborhood for being aggressive. Although Jane’s parents knew of their children's aggressive behavior, they did nothing to control them. Bill was at the end of his driveway as Jane was walking home. As Jane passed him she knocked him off the tricycle and kicked him. Last month Jane pushed another child off of a tree swing on her walk home from school. Jane’s parents scolded her for the swing incident. Discuss the possible tort claims.

25. Five-year old Bill was in the driveway of this parents’ house riding his tricycle when Jane came home from school. She was the six-year-old youngest child of Bill’s next-door neighbors. Her three older brothers had great influence on her and all four children had a reputation in the neighborhood for being aggressive. Although Jane’s parents knew of their children's aggressive behavior, they did nothing to control them. Bill was at the end of his driveway as Jane was walked home. As Jane passed him she knocked him off the tricycle and kicked him. Last month Jane pushed another neighborhood child off of a tree swing on her walk home from school. Jane’s parents scolded her for the swing incident. Discuss the possible tort claims.

26. Issue Spotting • Bill vs. Jane - claim for battery • Bill vs. Jane’s parents (?)

27. Bullet Outline - First issue • (I) Jane’s liability for battery - INTENT • (R) Battery is an (1) intentional (2) touching of another person in a (3) harmful or offensive manner, and (4) with no defense. • Others - don’t need to elaborate on rule more. • Touching of Another Person - facts show • Harmful or offensive - facts show • Defense - facts show none • Intentional - can children have intent to commit intentional tort • Majority Rule - child’s intent determined on case by case basis • Minority Rule - child under seven immune - “tender years” • (A) Application of Law to Facts • In majority jurisdiction - Will be able to argue she formed intent - reputation in the neighborhood, prior actions – knew wrong • In minority jurisdiction - Jane will be immune, only 6 • (C) Conclusion • Majority • Minority

28. An answer – Bill v. Jane Bill would have a claim of battery against Jane. Liability for battery requires the intentional touching of another person by a defendant in a harmful or offensive manner, with no defense. Here the “touching” element is satisfied, because Jane knocked Bill down and kicked him. Knocking down and kicking someone is certainly “harmful or offensive” conduct. The element at issue here is intent. In a minority of jurisdictions children under seven are immune from tort liability because they are deemed to be unable to form the requisite intent (tender years doctrine). In these jurisdictions Jane would not be liable as a matter of law since she is only six. However, in a majority of jurisdictions a child’s ability to form the necessary intent is determined on a case by case basis. Although it could be argued that Jane at six is too young to form the requisite intent to commit battery, given the existence of the minority rule, the better argument is that she did form intent. She has a “reputation in the neighborhood for being aggressive” and recently engaged in aggressive conduct that she was scolded for by her parents. Therefore, Jane is probably liable for battery.

29. What about second issue? • (I) Jane’s parent’s liability – • Vicarious Liability for Jane’s act • Parents Own Negligence • (R) • Vicarious liability? Under CL parents NOT vicariously responsible for torts committed by their child. • Note – CL modified in some states by statute, so vicariously liability will be imposed in certain circumstances. CA code examples. • Parent’s own negligence • failure to exercise reasonable care to protect against child’s dangerous tendencies (maybe) may support negligence claim • (A) Application of Law to Facts • Vicarious liability, unless there is a statute imposing VL, the CL will not support such an action. Our facts do not indicate the presence of such a statute. • Negligence of parents – The facts show Jane’s parents knew of her aggressive behavior and did nothing. Incident in previous month, scolded her so knew of it. Compare to case where child who had previously caused fire was allowed access to matches. • (C) Conclusion • VL – no, absent state statute • Negligence - maybe

30. Answer – Bill v. Jane’s Parents Jane’s parents also might be liable due to their daughter’s actions in a negligence action. It should first be noted, that is it unlikely that the parents could be held vicariously liable for her action because under the common law parents are not vicariously liable for the torts of their children. Some state statutes expressly set up such liability, but our facts do not indicate the presence of such a statute here. Therefore, the strongest claim for Bill to pursue is a negligence claim. In some states failing to exercise reasonable care to protect against a child’s dangerous known tendencies will support a negligence claim. In this case Jane’s parents “knew of their children’s behavior” and “did nothing” to control them. Moreover, there was a similar incident in the previous month when Jane pushed another neighborhood child. It could be argued that this is like the Linder case where the parents were found negligent because they failed to restrict their child’s access to matches, even though he had previously started a fire. Since Jane had engaged in similar behavior before and her parents knew of the behavior, it could be argued that Jane’s parents should have taken greater care to protect others from her known behavior. A negligence action against Jane’s parents should certainly be pursued and may be successful.

31. Exam Pitfalls • Getting question/facts wrong • “I ran out of time.” • Issue spotting is not enough • The unjustified conclusion. • Wordiness or “the lovely essay” • Disorganization • Joking within the examination • “Clearly…” • A word on assuming facts…

32. Gaming Exams • Difficult to do during your first semester • Professor is your best guide. • Focus of class discussions • Time spent on material • Recent writings

33. What do exams measure? • They principally measure your ability to: • spot the legal issues, • apply the relevant legal rules to the relevant facts, • reach the most defensible conclusion on the issues presented, • write in an organized, clear, and coherent fashion, and • perform well under pressure. • They cannot measure the full range of skills that equal success in practicing law. • They do not measure your worth as a person.

34. Reading & Taking Exams Don’t forget • Read the instructions • Allocate your time • Look at the call of the question first • Read to understand – parties, facts, claims • Re-read and circle, underline, highlight - whatever! • Create an outline for your answer • For Essay/Hypos remember to IRAC • Add in policy arguments and connect to cases • NEVER START WRITING RIGHT AWAY!

35. More examples Essay/Hypo

36. First, four caveats: (1) These sample exam questions are simple, in that, they test your knowledge of only one or two elements. The fact patterns are also very short. Actual exam hypos are likely to be more complex and longer. (2) In most of the model answers on these slides there are no cites or comparisons to cases or restatements. These are an important part of your answer as well, do not forget to use them.

37. (3) The rules/law used in my answers may not be exactly the rules and law that you’ve learned in class. Please rely upon what you’ve learned from the textbook and in class - not my statements of the rules. (4) If your professor gives you different instructions as to what he/she wants on an exam, follow their instructions!

38. Sample Contracts Question

39. On May 1, 2003, Sam Smith received a one-year teaching contract from Washington-Lee High School. On April 1, 2004 Sam received a letter signed by both the superintendent and the principal of the high school which stated that his one-year teaching contract would not be renewed. He immediately filed a grievance, but it was denied by the principal in May. The matter was a hot topic of discussion among both the teachers and administrators for the remainder of the school year. In July a new employee in the school’s personnel department (who didn't know of Sam's termination) typed Sam's name on a form employment contract previously signed in bulk by the superintendent and sent it to Sam. Sam immediately signed and returned it. When the school department refused to honor the contract, Sam sued. What result?

40. On May 1, 2003, Sam Smith received a one-year teaching contract from Washington-Lee High School. On April 1, 2004 Sam received a letter signed by both the superintendent and the principal of the high school which stated that his one-year teaching contract would not be renewed. He immediately filed a grievance, but it was denied by the principal in May. The matter was a hot topic of discussion among both the teachers and administrators for the remainder of the school year. In July a new employee in the school’s personnel department (who didn't know of Sam's termination) typed Sam's name on a form employment contract previously signed in bulk by the superintendent and sent it to Sam. Sam immediately signed and returned it. When the school department refused to honor the contract, Sam sued. What result? O A CL - services Secretary error? Knowledge?

41. What result? Will Sam be able to enforce the contract? • First things first - UCC or C/L • Question seems clear there is offer, acceptance, consideration • School doesn’t want to honor this contract so they need a defense - what one? • What kinds of arguments will Sam raise against that defense? • How effective will the defense and counter-argument against it be? • What cases can I use in my answer?

42. Bullet point outline • Facts indicate written contract exists (offer, acceptance, consideration), but school has defense of unilateral mistake • UM Rule (CL) - when one party is mistaken about the facts relating to the agreement, that adversely affected party can void the contract only if the other party had reason to be aware of the mistake. • NOTE - RESTATEMENT DIFFERENT • Where is Mistake in Facts - new employee, bulk contract signed by superintendent • Did Sam know of mistake? • Yes - original K not renewed, grievance denied • No - so much public knowledge of termination, how could it be a mistake • Cases to use to compare/contrast? • Predicted result - yes, school can avoid

43. The school department has the defense of unilateral mistake. When one party is mistaken about the facts relating to the agreement, that adversely affected party can void the contract only if the other party had reason to be aware of the mistake. In this case, the person in the school department’s personnel office sending out the form contracts was unaware of the facts relating to Sam’s termination. The contract can be avoided if Sam had reason to be aware of the mistake. Sam would likely argue that his termination was so well known that, if a contract was sent to him, it was deliberate. It was an indication that the superintendent decided to hire him without the principal’s approval. However, the school department has the better argument that, since Sam was denied his grievance and the contract he had received was a form contract, he should have had reason to be aware that his receiving the contract was a mistake. He should have been on notice to inquire. Instead he quickly signed and returned the contract without inquiry, indicating he likely knew it was a mistake. The school department would likely prevail and be able to avoid the contract.

44. I R The school department has the defense of unilateral mistake. When one party is mistaken about the facts relating to the agreement, that adversely affected party can void the contract only if the other party had reason to be aware of the mistake. In this case, the person in the school department’s personnel office sending out the form contracts was unaware of the facts relating to Sam’s termination. * The contract can be avoided if Sam had reason to be aware of the mistake. Sam would likely argue that his termination was so well known that, if a contract was sent to him, it was deliberate. It was an indication that the superintendent decided to hire him without the principal’s approval. However, the school department has the better argument that, since Sam was denied his grievance and the contract he had received was a form contract, he should have had reason to be aware that his receiving the contract was a mistake. He should have been on notice to inquire. * Instead he quickly signed and returned the contract without inquiry, indicating he likely knew it was a mistake. * The school department would likely prevail and be able to avoid the contract. C A

45. What’s the professor looking for? • My way is not the only way - other ways to structure and write the answer. • Based on C/L rule I pulled, if your professor focuses on the restatement, then discussion of §153 should be your rule (or both). • Possible Professor score sheet Legal Theory Unilateral mistake as a defense 1 Rule for UM 1 Discussion Elements Application of Facts Identify mistake of adverse affected party 1 2 Reason for Sam to be aware 1 2 School’s Arguments for 2 2 Sam’s Argument against 2 2 Use of case law to support 2 Policy argument supporting/against 1

46. Sample Torts Question

47. Tim's Towing (Tim's) had been called to an accident scene on the Blue Mountain Expressway at 10 p.m. Although the vehicle had been pushed into the median strip, the tow truck was stopped so that it was partially in the passing lane as the tow truck driver prepared to remove the damaged car. Suddenly Lorie drove into the back of the truck and was injured. It was established that the tow truck did not have its emergency lights on at the time of the collision. A state statute requires the use of emergency flashers when stopped at night. It was also established that Lorie had been properly in the passing lane and was driving at a steady speed. Two vehicles had been driving ahead of her just before the accident. Lorie sues Tim's for negligence. What result?

48. Negligence? Tim's Towing (Tim's) had been called to an accident scene on the Blue Mountain Expressway at 10 p.m. Although the vehicle had been pushed into the median strip, the tow truck was stopped so that it was partially in the passing lane as the tow truck driver prepared to remove the damaged car. Suddenly Lorie drove into the back of the truck and was injured. It was established that the tow truck did not have its emergency lights on at the time of the collision. A state statute required the use of emergency flashers when stopped at night. It was also established that Lorie had been properly in the passing lane and was driving at a steady speed. Two vehicles had been driving ahead of her just before the accident. Lorie sues Tim's for negligence. What result? Con/N? Per se! Probably not, but did those 2 get out of way? Lorie v. Tim’s

49. What result? Will Lorie prevail in suit against Tim’s? • Negligence - duty, breach, causation, damage - what is at issue here? • Duty & Breach • State statute at play so negligence per se doctrine must be considered. • When applicable? • Causation - drove into truck, not really at issue • Damage - says “injured” • Defenses Tim can raise? • What cases can I use in my answer?

50. Bullet point outline • Rule for negligence - duty to prevent foreseeable harm…. (causation, damage clear in problem) • Negligence per se • (1) statute provides for criminal penalty (traffic codes) • (2) statue formulated to prevent kind of harm suffered by P (seems like statute exactly designed to prevent rear-end collisions which we have here) • (3) P is member of class legislature intended to protect (Lorie drove into back of truck – designed to protect motorists.) • (4) Statute is clear as to what is expected. (turn on your emergency lights at night) • Defenses - • Contributory/Comparative Neg? - Tim’s could argue should always be able to stop b4 hitting car ahead. Facts may show other two cars in front of her didn’t hit – maybe she shouldn’t have if they moved. • Counter – facts show she was driving at steady speed, traffic (two cars ahead) and blinkers meant she could not see in time.