Lawyers are constantly chided about “legalese,” a phrase that has come to mean verbosity and pomposity. There is a one- word response to these gripes, however, that even the most ardent lawyer-hater cannot argue with: precision. Yes, we would like our contracts to read as smoothly as an Elmore Leonard thriller. But it’s much more important that they accurately reflect the parties’ understanding. Doing this sometimes takes more words and a construction more awkward than high school English teachers would like.
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Don’t try to read the question and answer it. In fact, don’t even pay much attention to what the real answer to the question is. This article isn’t meant to teach you contracts and torts; its goal is to familiarize you with law school exams and to teach you how to recognize issues and organize answers. When you are an exam question the first time, you should have been circling:
- the parties
- those facts that are legally significant (and noting in the margin the issues those facts give rise to)
- pivot words (“but,” “not,” “however,” etc.)
Once you finish reading, go back and read the material again, marking facts and issues you may have missed. A marked copy of the exam question, upon completion of two readings.
The whole question comes down to these three points. You will have framed the issues very generally during your reading. Essentially they are in the areas of contract consideration, the statute of frauds, and the statute of limitations. Of course, if you start scribbling about consideration and the statutes right away, you’re not doing a complete job. What is the specific question? A client wants an answer.
So you start with the basics:
Is there a contract that can be enforced in court?
And specifically: How do consideration, the statute of limitations, and the statute of frauds affect the creation and enforceability of that contract?
On scratch paper you outline your answer in very brief terms.
- Contract Created?
Consideration Problem Past Consideration—Good Defence Reaffirming Prior Promise—Not Good Defence
Now you are ready to write the answer:
- Statute of Frauds—Writing Not Necessary
- Statute Of Limitations—Suit Okay, Statute Runs From Time of Second Promise
- Are the elements of a contract present?
- Is the consideration substitute of reaffirming a prior promise sufficient?
- Is the statute of frauds a valid defence?
- Is the statute of limitations a valid defence?
Please prepare a memorandum for the judge, discussing what causes of action exist, the defences thereto, and who will prevail and why. But please do so briefly; the judge is also county fire marshal and owner of the local general store and doesn’t have much time for such silly litigation.
A breach of that duty occurs when the defendant does not meet the standard of care of a reasonably prudent person, an objective level of conduct.
Causation is a two-step analysis. First, is there cause in fact? That is, would the plaintiff’s harm have occurred but for the defendant’s act? Here, that test is met. Second, was there proximate cause? This asks the court to decide whether—once it has been shown that the defendant’s act was a cause in fact of the harm—the law wishes him to be liable for the harm. There are two tests for proximate cause: the foreseeable risk test (proximate cause is found only if the harm was a foreseeable consequence of the defendant’s act), known as the Palsgraf rule, and the direct consequence, or liability-beyond-risk test (proximate cause is found if the harm, even if unforeseeable, is a direct consequence of the defendant’s action).
Damages require some harm more than nominal damages, such as might be recovered in a suit for battery or assault. Here, Hank’s personal injury is sufficient to qualify for damages. Thus, a claim for negligence exists.
- Generally, a plaintiff will be barred from recovery if he assumes a risk—that is, if with actual knowledge that he might be harmed, proceeds anyway to risk getting hurt.
- A plaintiff can agree to waive a claim for negligence against someone else prior to the time an injury occurs. These “exculpatory agreements,” however, are actual contracts and aren’t enforceable unless all the requirements for a valid contract exist. Here Hank was below the age of capacity to enter a valid contract.
- A plaintiff’s own negligence will completely bar recovery in those states that do not have a new comparative fault rule.
Although the analysis of this cause of action speaks in terms of emotional distress “damages,” the context is actually a duty issue. Does the seller have a duty to protect a person from emotional distress?
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A duty issue is to be resolved by the court. Here the court will have to consider conflicting policies. On the one hand, strict products liability arose to protect injured consumers who had no other redress against manufacturers. The rules recently have been very liberally construed to favor such consumers—so much so that some courts are beginning to worry about the economic impact on manufacturing in this country caused by the volume of products liability litigation. On the other hand, this is not the traditional sort of harm that strict products liability was meant to remedy.
- Read and reread your master outline until you know the rule upon glancing at the heading. Do not memorize the outline.
- Make an exam outline, covering the general topics you will be responsible for on the exam, in the order in which you feel they should be addressed. This should be no more than one or two pages in length. Memorize it.
- Learn this or a similar answer format you will follow in answering your questions:
- [Short answer]
- Issues presented
First issue Second issue Final issue
- Other considerations
- Get plenty of sleep the night before the exam.
Taking the Exam
In your final years in school, however, you should take at least one paper course. Writing is such a vital skill for lawyers, one that pervades all aspects of their work, that you need as much experience as you can get. You also should have at least one writing sample to take with you to job interviews. If you don’t publish a journal article, a class paper will come in handy for this purpose.
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- Read the instructions.
- Read the question twice, visualizing the facts. Circle key events, people, and pivot words. Take notes in the margin about issues you spot.
- Outline the answer on scratch paper in very brief phrases. Do not rewrite the question.
- Write your answer according to the answer format you have determined. When you begin, leave the short answer section blank. Take a definite stand. Don’t restate the question. Be succinct. When you’ve finished with the analysis, show off a little in the other considerations section of your answer. When you have finished, go back and provide a response in the short answer section.
- Use the same approach in item 4 above for each different cause of action, even within the same question.
- Don’t cross-reference outside of each question. Be moderate with abbreviations your professor has approved.
- Budget your time.
- Be prepared to improvise; use the exam outline for emergences.
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