3L Post: What Courses Do I Enroll In For My Last Semester of Law School.

The answer is that basket-weaving is not offered in law school, so you will not be able to enroll in that course. Also, this last semester is not the best time to take five (5) "easy" courses (if there is such a thing in law school), or five (5) seminar courses, either. Yes, you are winding down, but you are also ramping back up, too. You are getting ready to do the bar exam.

Therefore, you should enroll in bar exam courses and enroll in as many of them as you can tolerate. You may have a series of back to back exams in late April, or early May. You can handle it. I can tell. Now, what courses are available to you in the last semester that you do not want to have to learn for the first time during the bar exam study period?

1. Commercial Paper: This course is not too difficult to learn for the bar exam, but it really is not a course that you want to learn during the bar exam study period. Let us look at the title of the subject.

Commercial (commerce) + (institutions) Paper (money) & (letters of credit)& (foreign currency) & (other funding sources) = a lot of ways to exchange or transfer paper money from one lending source to a paying source to another lending source, etc. There are a lot of ways in which a party can loan money to another person and just as many ways for the other person to pay it back.

However, what happens if that money is stolen, lost, given to the wrong party, not endorsed properly, someone gives the other person the wrong amount, or some person fails to transfer money when that person or entity is required to do so? Who is liable for what amount? Although you won't hear this in a commercial paper course, the question also arises - who is responsible for the interest that failed to accrue on the instrument because it is lost, stolen, etc. This is a question that you would probably encounter in a finance or banking course, however, liability will likely be established in commercial paper. Of course, if someone is responsible for doing something a certain way, which is deemed incorrect (wrong), that person is likely to scream out to the world that the person or entity has some type of defense.

In commercial paper there are a lot of defenses to learn, so you need to know that they are and how to apply them to certain situations. Sounds interesting, though, doesn't it. The exchange of paper money.

So, you have to own the paper first, transfer it to someone, the other person gains control over it in the bank (or, some other financial institution)(which bank or financial institution has its own set of rules in commercial paper), then the money is transferred to someone else, and it no longer belongs to the original owner. As you can see "the paper trail" (a/k/a the money) can go from one person or bank to another person or entity as many times as the paper can travel from one set of hands to another.

Your job will be (in, part) to track the paper on the examination and explain where things went wrong and what must be done in order to make things right again. What happens if . . . is your question on the bar examination? It is your job to answer that question. It is so much easier to learn it from a professor than a commercial bar prep course representative. I'm not ragging on the bar prep course people, but you can learn it in two days for a couple of hours. Or, you can try to learn it over an entire semester, ask questions, take practice exams, discuss with colleagues and do the same stuff above over again until the last day of class for that semester.

You choose.

Subjects for discussion: Family Law, Wills & Estates, Secured Transactions.

Prof. Smith

Part II - - Let's Post Up a Perfect Paper: A Post for Everyone Pushing Up Papers Due At The End of the Semester

13. THREE THOUGHTS PER SENTENCE. Do not include more than three thoughts per sentence (write in a format that produces a trilogy [of thoughts]) (eg., lions, tigers or bears), or (apples, oranges or pears). Too much information at one time makes it difficult for the reader to digest the material in the sentence. You run the risk that the reader will give up on the sentence, and read only the the information in the beginning of the sentence.

14. TURNING IN A FINAL DRAFT THAT IS DUE AT THE CLOSE OF THE SEMESTER? Don't be afraid of the red pen. It is just a pen, people. Studies have shown that professors that grade with a red pen make students more anxious. That, I believe, is probably true. It is also probably true that professors who have not read the study will continue to use a red pen to make markings on a page. What can we do? Run away? There is your answer. We will have to work with the pen until something else comes along.

15. A TOPIC SENTENCE, THESIS STATEMENT, OR CONCLUSION. Every paragraph in a law school paper should start with one of the referenced beginnings. If it is a persuasive piece, start with a conclusion or a thesis statement. If it is not persuasive, but informational, please use a topic sentence. The reader needs to know what your major premise is so that she can follow your logic throughout the paragraph. Your job is to spend the entire paragraph proving up (or, supporting) your conclusion, and the logic behind your statement(s).

16. EXPLAIN IT AWAY. Sometimes, people in the legal profession write a conclusion, and then leave it to the reader to make a judgment call about who is right and who is wrong. Don't do it. Take the guesswork out of the question. Look at every fact and tie the fact to some area of law in the discussion and argue that the law is correct.

You must stand BESIDE the statute if you believe it passes constitutional muster. You cannot stand BEHIND the statute and hope for its constitutionality. You have to articulate it, using words (I know, a bold idea) to convey the message.

17. THERE SHOULD BE A LOGICAL UPGRADE OR TRANSITION FROM ONE SENTENCE TO THE NEXT SENTENCE. No two sentences should say the exact same thing. The next sentence should add something to the previous sentence. However, that next sentence should make a logical jump to the next thought to be discussed (a few inches), and not a huge, gigantic leap (10 feet) beyond the idea in the prior sentence. As you move from one sentence to the next, look to include explanations for the information you have provided. Seek to clarify data and case law. Provide examples that make your point. Distinguish situations that may, in fact, have some bearing on the issue, but, actually contain different facts, or allow for a subtle slant in the law that makes the analysis different than your position.

18. WOW (WASTE OR WORDS). My favorite, fingernails scratching on the board, phrase is, "due to the fact that." I have no idea where this phrase came from, but learn how not to use this one. If you write active sentences, you will not fall prey to words that allow for too much transition.

This an example of a lot of words that don't say anything:

"Although the language in the statute applies to people that choose not to write a contract, based on the law in the Maryland and the District of Columbia, a written contract is not needed for a person to be liable for damages, if the person intended to enter into a contract."

This is a made up sentence that I run into from time-to-time. Don't let a sentence like this one run into you. Be direct. Forthcoming. State the law.

19. SYNTHESIZE CASE LAW WHERE APPROPRIATE. Don't waste all of your precious writing skills naming one case at at time and one rule at a time in a particular document. It will take you forever to explain facts, and then explain the law. Blend the law from the various cases (where appropriate) to show the extension of the rule as it applies today.

20. DON'T USE $10.00 WORDS WHEN A $1.00 WORD WILL DO. You are smart. We know that. There are ways to showcase your brilliance and there are ways that showcase the 40 watt lightbulb in you. You do not have to use multiple, "big" words in a sentence that require the professor to keep a dictionary handy as she courses through your paper. That is so not necessary. Often, I see students make several infractions of "big-word, usage" on every page of his or her paper. It is like walking through a minefield in a thesaurus. You have to jump over words just to get to the end. Don't we say all of the time, "explain it to me like I am a three-year, old." Well, I really mean toddler age. Simple words are not that difficult to follow, and thus do not require unnecessary clarification. Most of us use small, plain words everyday. Incorporate basic simple, easy to understand information, in our papers.

21. NO VALUE LADEN MODIFIERS: Describe your work to the reader. If you describe it, the person will (naturally) create a picture of what you have to say in his head. You need the various pictures to get through to your audience. You cannot say that the defendant was ugly, or that the plaintiff was beautiful. The value in these words is independently assessed based on who we are as individuals; personally. There are no two people that think the exact same way on matters of beauty, and there are no two people that think the same about a so-called, ugly person. You will have to describe characteristics that make a person beautiful or ugly. Then step back and allow the reader to come to his or her own conclusion.

22. SECONDARY SOURCES ARE USEFUL FOR INFORMATIONAL PIECES; NOT NECESSARILY PERSUASIVE DOCUMENTS. Law review articles, books, magazine articles, restatements, treaties, hornbooks, etc., add a great deal to our understanding and knowledge of the law, but they are not considered our primary source, particularly in pleadings.

Stop students treat this information like it is okay to rely on, and place it on a pedestal on par with the United States Constitution, a Federal or state statute, a municipal regulation, rule or policy. It is not. It is what it is. It is a secondary source.

It is not the opinion of the government. It is often (not always) used to bolster policy driven statements, and, as persuasive authority, a court can adopt the position of the author of the article, which would convert it from secondary to primary authority.

23. KNOW IT (WRITE IT/SAVE IT) BEFORE YOU GO TO BED: Julius Toneli, Esq., a former professor at a local law school used to say "know it" before you go to bed. He meant the law. Allow the law to soak in your mind while you sleep. I am asking you to save your work as often as you can and send it to yourself in an e-mail so that you won't lose it. I also am asking you to do as Professor Tonelli suggests and write it before you go to bed. If you are on a roll and your paper is flowing effortlessly, then why would you stop. Use that momentum to push to get three or four or fifteen pages written.

24. CONCLUDE, PROPERLY. I know. It is the end of the paper. You are tired, weak, weary, worn, but at the same time you are ready to celebrate and you probably have some party scheduled three (3) minutes after you turn in the paper, or once you press send. I am going to hold off your party a little bit longer because when you get to the end of the paper, I want you to walk away for 30 minutes. You should walk away because if you don't, then you will write anything for your conclusion (eg., I conclude that ice cream only comes in two flavors: strawberry and chocolate). My point is that you will do anything to finish a paper, and believe me, when I tell you this . . . the reader wants to know, after 5, 10 or 25 pages, how you have summed up everything. Walk around the block a few times, clear your head, come back and knock out a paragraph or two for the conclusion. Otherwise, you may write, "Jack and Jill went up a hill, and all the king's horses and all the king's men, couldn't put Humpty Dumpty together again." Yes, it can happen to you, too.

These are a few tips that I hope will help you put the finishing touch to your paper. Do you want to add anything? If so, please write.

Prof. Smith

Let's Post Up a Perfect Paper: A Post for Everyone Pushing Up Papers Due At The End of the Semester

1. INDENT: I want five space indents to signify the start of a paragraph, and not a two space indent. You only have to press tab (indent). Voila! Five spaces automatically. No manual spacing (pressing the space bar and counting) is necessary.

2. PUNCTUATION: Commas and semi-colon's require one space. Colons and and periods require two spaces. All of the time. I don't care where you are, or what region of the country you "come from," the rule is the same across the United States. Get used to it, and don't tell me what you did in college. You're not in college any longer.

3. COLONS AND COMMAS, PART I: Independent clauses require a semi-colon to separate the two clauses because each clause can stand alone as a sentence. Sometimes you will write sentences that can stand alone as a sentence, but for another reason, you decide to include a stand alone clause to accompany a second stand alone clause. That is okay. Please, separate the two clauses with a semi-colon (;).

4. COLONS AND COMMAS; PART II: Dependent clauses require a comma to separate the clauses because the clause cannot stand alone as a sentence. There will be circumstances where you must separate the clauses by a comma because the clause cannot stand alone, as a sentence, by itself. These clauses are called dependent clauses, and a comma separates one dependent clause from another dependent clause.

5. CITATIONS ARE SINGLE SENTENCES: A citation standing alone is considered a single sentence. You must place a period after the citation. No excuse. If you don't believe me, believe the bluebook. If you fail to place a period in the citation sentence, and if you blow the citations, that could hurt your overall score/grade on the paper. You may be graded down an entire letter grade. Also, an employer needs someone who can write citations and check citations. Be good, or at least decent, at both.

6. DO NOT INCLUDE FOUR LINES BETWEEN PARAGRAPHS: No double-double spacing on a page. If you are writing a paper and the requirement is that the paper be double spaced, that is okay. That means that there should only be two spaces between each double spaced line. You are not to add two additional spaces between paragraphs (eg., 4 spaces). Only one set of two spaces between paragraphs.

7. WIDOWS; DON'T LEAVE A LINE ALONE AT THE END OF A PAGE: When you do that, it is called a widow (you are leaving a line alone by itself, while the rest of the paragraph is somewhere else - - on the next page). If you begin a paragraph at the end of a page, then you must include at least two lines of that paragraph at the bottom of the page. It is improper to allow the very first line of a paragraph to remain on the bottom of the page by itself. Move the last line to the next page and introduce the entire paragraph properly.

8. STAY ACTIVE: Active sentences rule the day. Passive sentences have their place, but if you really want to tell a story (if YOU want to tell a real story), then you must be certain that the subject is driving the sentence. That is it's place on this earth.

9. SUBJECTS & VERBS ARE RELATIVES: Speaking of driving the sentence - subjects and verbs love each other. They will also love you if you decide to include both in your sentences. Subjects and verbs are very particular. They like to be very close together. Subjects and verbs don't believe in being too far apart from one another; otherwise, how will you know that they are related to one another. It is hard for the subject to have a relationship with a verb or the verb to have a relationship with the subject when one or the other is far away from the other.

10. PARAGRAPH - PARAGRAPH - PARAGRAPH. White space is necessary on the page. Remember, our eyes have been trained to read words on the paper in a certain manner. You, as a writer, must give the reader's eyes a break. You offer the eyes a break when you end one paragraph and begin the next paragraph. White space (space between paragraphs) allows the reader to digest what was said in paragraph X, before moving to paragraph Y. You need the reader to allow the information in the previous paragraph to start coursing through the "brain's digestive tract," then provide the brain with another paragraph of information. One paragraph at a time.

11. VARY THE LENGTH OF SENTENCES: Sentences can be long, short or of medium length. Do not be afraid to vary the sentence length as often as possible. Remember, you are trying to keep the reader's attention. Mix it up. You cannot keep a person's attention when you write sentences that are so long that the reader cannot follow your direction. Keep the reader on her toes. Yell a single word out in a sentence.

Like, now.

"Stop!"

"Go."

"Move!"

Then tell the reader where she should go.

"Stop. Turn around and return home. Immediately. If you do not return home right now, there will be a full scale attack on the number of people that come here to buy wine and eat at home."

Yes, you can still be demanding and persuasive at the same time.

12. NO SENTENCE SHOULD BE LONGER THAN THREE LINES IN LENGTH. If one sentence is more than three lines on a page, then the sentence is just too long for your reader to hold on to AND fully comprehend the very first time she reads it. You want the reader to get the gist of what you say the first time, and not the second time he reads it. Why? Well, every reader won't try to read the sentence again. That is why you want him to get it right the first time. Now, if the sentence is more than three lines, then it does not mean that the reader cannot fully comprehend the sentence. You do run the very real risk that the reader may have to return to the sentence and read it again for clarity. To have to read something again, in the sentence writing world, is like dipping one's hand in acid. You know it will burn and it will burn badly. Clarity is something the reader purchases from you with his first read of the sentence. You want the reader to purchase your lines, to buy your paragraphs, to take ownership of your work. It is a testament to your ability to convey information as the author, when the person reading your work only has to read a sentence you wrote one time, and one time only.

Let's come back tomorrow for a post with another twelve (12) tips.

Prof. Smith

1L Post - Here Is A Portion of Mr. David's Negligence Outline; Why You Should Simplify Concepts In The Outline To Prepare for The Final Exam.

A Negligence Outline - Thoughts and Changes

I received a Negligence outline from a first-year student, and this post will provide some comments on the outline. I will share with you a few pages of the outline in its original form, then I will share my changes to the outline, and tell you: (1) what I changed in the outline, (2) why I made certain changes, and (3) what I would add to the outline, and why.

General comments: The outline that I received was comprehensive and easy to understand. The other initial comment I can make on the outline is that it is a document that someone else could understand - - another person who is not attending law school and does not know anything regarding the law can follow this student's outline. It is a good thing that someone else, who is not an attorney can follow your outline. You don't have to strive for this. You do, however, want to know that someone else could follow your outline, if necessary.

A Legend. I believe that every outline should include a reference to abbreviations that will be referred to in the outline. I also suggest that the student place the legend in the top right hand corner of her exam booklet. This prevents you from writing out full names of actors, the legal designation of parties (plaintiff & defendant, appellant & appellee, petitioner & respondent). When you have to write out the same information over and over again, it eats up your analysis time. That is time you do not have on an exam. Okay. So, let’s look at an example of a legend.

Legend
P-------------Plaintiff.

D------------ Defendant

CL ---------- Common Law

F -------------Factor

N------------- Note

GR----------- General Rule

XC----------- Exception

XT----------- Extension

P------------- Policy

The student whose outline I am reviewing included designations of PTF for Plaintiff and DFT for Defendant. I think those designations are too long. I feel comfortable using only P and D as a reference for Plaintiff and Defendant. If I need to refer to other Plaintiffs or Defendants in an answer, then I will add P1 and D1, etc., accordingly. One thing that you should decide prior to exam time is how you will approach the exam procedurally and substantively. That is another post. So know that this is an example of a Legend for your professors to refer to when you write the exam. You are not writing anything they haven’t seen before. I would be surprised to hear faculty tell me that they have never encountered some reference to a few abbreviations in a student’s exam booklet. You should feel free to use your own designations, or a symbol that your professor has used throughout the semester to discuss a particular issue, sub-issue, or set of circumstances.

What you will find below are two outlines: (i) a partial Negligence outline from Mr. David; and (ii) a rendition of an outline, discussing the same information, from me.

The Changes:

(1) Do Not Be Repetitive: I did not repeat anything more than one time. If it was discussed in the outline more than one time, I synthesized the two thoughts and placed the information in one sentence. Even before including the information in a single sentence, I surveyed what I had, first, and determined if I was actually (i) saying the same thing twice, or (ii) saying anything important at all.

(2) Changed Phrases To Sentences: Write an outline in the same manner in which you would speak to someone about a topic or a piece of information. Don't include "just words" in the sentence because you are in a hurry, and don't be over-inclusive. Write the sentence just like you would if you were writing the sentence on the exam. Once you use this technique over and over again, your sentences will be second nature (in the the outline and on the exam).

(3) Began Sentences With a Noun or Pronoun: A student promotes active writing when her sentences are direct, to the point, and include subject/verb agreement, followed by some object. A sentence with action is, by far, the easiest sentence to read, and to interpret. It is also a faster sentence to write, particularly on a handwritten exam, when you know that you must use your time judiciously.

(4) Kept Sentences Extremely Simple: Contrary to popular belief, an outline is not an Executive Order, a Treaty, or, Treatise, for that matter. Sentences transferred from an outline to the exam booklet don't have to be Pulitzer Prize winning, $10.00 word sentences. Simple sentences with simple concepts actually do work on a final exam.

(5) Special Categories: Often, an element will have a number of sub-categories. For example, there are many different "duties" for different groups of people, in Negligence. The duty that is highlighted on this post today is the duty to rescue. When creating a category and a set of rules for the Duty To Rescue, your goals is to include the words and terms of art that properly describe the duty to rescue and any extensions, or exceptions to the general rule. Look at the notes below in Mr. David's outline, then look to see how I have changed the format, the words, and the sentence structure. The sentence structure is appropriate. I do not, however, use many words to describe duty, and I don't use many words to describe whether or not a person has a duty to rescue. However, you will be able to detect immediately, the rules (guidelines) governing one's duty (or, lack therof) to rescue.

(6) Place Policy Considerations, Last: Use a P in your legend as a category for policy considerations. Now, listen (read) carefully. Most of every reason that you provide for an element of the law is or should be considered policy. Make certain that you separate the rule of law from a policy consideration. A policy consideration is the reason why the law was created. There may be tons of reasons why the law is the law, but generally, there is only one rule of law, usually followed by exceptions of the law or extensions of the law. So, return to your outlines. All of the many reasons that you have written into the outline, near the rule of law, are just policy considerations.

Yes, you may actually use some policy in the first-year courses, but policy is not the sole, or even the main basis for your answer. Your answer is generally based on a specific rule of law. So, look through these two outlines. You will see a lot of reasons why the law is the law in the first outline. In the second outline, I have taken a lot of those reasons out of the outline. You do not have to; again, you can place policy considerations at the end of a category or an issue. It can serve to just remind you of the reasons, or you may find yourself battling a policy concern on an exam. Policy is useful, but you must be careful not to cloud the general rule, the exceptions to that rule, or the extension of that rule, with policy. Policy is not the law. It drives the direction of the law, but it is not the law.

(7) Describe The Exact Facts & Law That Make Up The Holding: I just read a 130 page Con. Law II outline. I can guarantee you that I would not remember that document and I am not trying to remember it. An outline is not a book; it is document that highlights the relevant law and cases that support the law for the subject for which you are studying. It is incumbent upon you to write a document that you can learn in a relatively small period of time, that is not a memoir. Thus, look for the very basic and exact facts that mesh (or, control) the holding.

(8) Now, I want you to compare the two components of this outline, and try to look at how I shortened the outline, but managed to keep the essence of it (eg., the law & policy) as part of our learning tools.

Please write with your questions. Again, the first outline is from Mr. David's Negligence class. The second outline is the document I prepared where I took information from Mr. David's outline and made a shorter, outline with less material.

Let me know if you have any questions. Thank you.

(A) Mr. David's Negligence Exam Outline:


(Duty)


I. Negligence Elements:


a. To recover in a negligence action, pft must prove each element by a preponderance of the evidence (i.e., by more than 50%).


b. P must prove

c. Simplified Elements
(1) A duty of reasonable care
(2) Breach of that duty
(3) Causation (both actual & proximate)
(4) Resulting damaged


d. Expanded Elements
(1) Duty: that there is a legally recognized relationship between dft & pft
(2) Standard of Care: relationship designates a legal measure of appropriate conduct that dft must comport to

(3) Breach: that dft breached the duty owed to pft bt falling below the required standard of care
(4) Actual Cause: that there is a causal nexus between dft’s breach of duty & the injury suffered by ptf
(5) Proximate Cause: that there are no policy reasons to exculpate dft from liability notwithstanding the fact that dft breached a duty owed to ptf & that this breach caused ptf’s harm – proximate cause or legal cause; &
(6) DAMAGES: that ptf suffered a legally cognizable injury.

II. Duty
a. Intro: Duty focuses on the legal relationship between the parties – whether law obligates dft to act or not in certain ways vis-à-vis ptf. As Q of law, duty issues are determined by judges not juries. Norm, law imposes upon everyone a duty to use due care whenever he is engaging in any conduct which creates a risk of harm to others. As gen proposition, there is an obligation in law to avoid acting in manner that creates foreseeable risks of harm to foreseeable ptfs. In vast maj of tort cases, duty issue presents no prob whatsoever. However, the debate about who is a foreseeable ptf for purposes of duty has engendered serious debate.

i. Pointer: Duty is rarely key issue if dft causes the ptf personal injury or prop damage. Conversely, duty is usually a major issue where: ptf suffers harm other than personal injury or prop damage, where the dft is a land possessor or a gov entity, or where ptf is basing claim on the dft’s failure to intervene for ptf’s benefit. Duty issues may also arise where it is unforeseeable that ptf would have been inured by the dft’s conduct.

b. The Unforeseeable Ptf Prob

i. Palsgraf v. Long Island Railroad – railroad employee tried to help passenger to board moving train & dislodged package from passenger’s arms. Package had fireworks that caused scales to drop 30 ft away which fell on Mrs. Palsgraf. While employee was negligent, the debate was over whether there was negligence towards Mrs. Palsgraf.

1.Cardozo & Maj View - No Duty If Outside Zone of Risk: there’s no duty owed to someone not in the zone of risk. The railroad was not liable for it’s employee’s conduct b/c his conduct, while negligent, created no foreseeable risk of injury to harm Mrs. P. Zone of risk is an issue of place & time that depends on dft’s neg act; the ptf’s safety must be reasonably threatened or there is no duty to her

2. Andrews View - “Neg in the air:” Dissenting Andrews, stated that dft owed duty of care to society, not just to specific individuals. Thus, if dft is neg towards anyone, he owes a duty to the injured ptf.

3. Modern Interpretation of Palsgraf – while often discussed & cited, don’t rely to heavily on this case b/c modern tort principles has moved far beyond the views in this case. Many crts today would use proximate cause as the brake on liability & would have little trouble finding a duty to Mrs. P based on special relationship of common carrier & a passenger.

4. Prox Cause Remains a Separate Issue: Cardozo & Andrews disagreed about scope of duty. A separate basis for potentially limiting liability is prox cause. Thus, under either of their views they might have rejected liability based on lack of prox cause.

ii. The Rescuer Doctrine: Public Policy requires that potential rescuers be included in group of foreseeable ptfs. This has resulted in the maxim “danger invites rescue.” The rule has also been applied to when ptf was injured while attempting to rescue dft from her own neg. Accordingly, duty will be found owing to injured rescuer.

iii. Injuries to an Unborn Child: At common law, a child could not recover for injuries sustained prior to birth b/c an unborn child has no legal existence apart from mother. However, maj of jurisdictions has now hold that where child is viable, it can recover for its prenatal injuries. Some states allow recovery even before viable.

c. Nonfeasance & Special Duty Probs: Key distinction is made between affirmative acts (misfeasance) & failure to act (nonfeasance). In gen, nonfeasance is insufficient to impose liability on dft for injury thereby caused.

i. Duty to Rescue: Dft has no obligation to rescue even when dft could do so easily w/no risk (§314).

1. Growing # of Exceptions include: when need for rescue is caused by dft’s conduct, when there’s a special relationship, & when dft has undertaken to act (exceptions listed: §314A&B)

2. Neg to prevent another from taking action nec for aid or protection of another

3. Liable for intentionally preventing rescuer (§326, 327)

4. Liable for obstructing hwy & stopping rescue (§328)

B. Professor Smith's Changes for Negligence Exam Outline (Duty)

Duty
(a) P must prove D had a legal duty to a foreseeable P, that D breached the duty, D is the actual cause (nexus) of P’s injury, P’s harm was the proximate, foreseeable cause of D’s actions and that P suffered an injury.

(b) Duty: D owes duty of reasonable care to P which must be a legally recognized duty to P.

(c) Majority In the majority of jurisdictions, D owes no duty to P unless P is in the zone of danger, and there is a foreseeable risk of harm, where D's act, the time & place of the incident, and P's safety must be reasonably threatened (Cardozo).

Case: D had no duty to P when D’s employee caused package to dislodge & D’s property injured P who was not within the zone of foreseeable danger (Palsgraf).

(d) In the minority of jurisdictions, D owes a duty to every P because P has a duty to society, which includes every possible P (Andrews).

(e) Modern (Courts Today)
D’s liability likely based on proximate cause, not duty to determine liability.
D's liability imposed because of conduct, time & place.

(f) Duty To Rescue
GR: D has no duty to rescue
Exceptions
XC: D’s conduct requires rescue
XC: D has special relationship with P (eg., innkeepers & common carriers)
XC: D undertakes call to act with P
XC: D interferes with person already acting to assist P
XC: D intentionally prevents rescuer from rescue
XC: D obstructs highway & stops rescue

(g) Duty To Unborn Children
CL: D has no duty to unborn child because child does not exist.
XC: D has duty to child that is viable & can sustain life outside of mother’s womb
XC: D is liable to child for prenatal injuries
XC: D, in minority jurisdictions, liable for child that is not viable

N: Duty Is Major Issue If
(a) D is Government Entity
(b) D Land Owner/Possessor
(c) D does not intervene on P’s behalf

Duty Minor Issue If
(a) Physical Damage
(b) Property Damage

N. Due care required if engages in conduct creating risk of harm
N. Judge, not jury decides whether D had a duty to P

c. Breach
D falls below standard of care then D breaches duty to P

d. Actual Cause
P’s injury requires a causal nexus between D’s breach & P’s injury

e. Proximate Cause
N. No policy reasons to exculpate D from liability

f. Damages
P suffers legally recognizable injury
N. P must prove each element by preponderance (50%) in order to recover from D.

Send Me Your Partial, Incomplete Outlines, Too!

Ms. Deola and anyone else wondering: you may forward partial outlines, incomplete outlines or notes on an issue for a class that is special to you. It does not matter to me. If you have a question about the outline or find that you have some uncertainty regarding a particular issue, please ask the question.

Clarity is always better than complexity (that is a quote from someone).

It amazes me how many people don't ask questions, then later feel ashamed because they made a mistake for failure to "raise their hand." I cannot give you what you want if you don't ask for it. I am aware that the law school/lawyer experience does not allow many mistakes, but this is the forum where you can make the mistake. Even if it is the day before an exam, or if something is going on during study week, or anything, just ask me questions on any issue, and any topic.

No question is really a question; it is a statement about something in which you require a little guidance.

One L's - A Follow Up Post For Mr. David Regarding His Negligence Outline.

Hello, Mr. David. Thank you for the negligence outline. I honestly think it is very well done and comprehensive. I am working on a few pages that I think will help you transfer information from the outline to your head and onto the exam paper, quickly.

I am changing a few things for you and can get the outline to you sometime this week. I want more structure to the outline, so I'll work on that you can tell me whether you like it or not. I will say this - some information is just that; information. It's just good to know; it is not required for an exam. However, I still would not remove it from the outline. I would just place it somewhere else for informational purposes.

We will talk soon. Thanks again for working with me to include your outline as part of our Academic Support lifeline.

Prof. Smith

3L Post - How To Prepare for the Bar Exam (Now) Without Answering A Question.

Mental Focus: You should learn to be focused now in order to be ready to focus on 17 to 30 subjects starting May 2011. How can you start that process today? As our lives become busier, we learn how to multi-task. Multi-tasking, in its basic form, is the ability to do more than one thing at a time (and somehow do those two or three things on a level that is on par with doing each one at a time). Studying for the bar examination is not really a multi-tasking event – you have a lot of things to do in a short period of time, however, the studying/testing part of preparation is not a multi-tasking event. Not at all.

You have to work on a variety of subjects, issues and sub-issues over an eight to ten to twelve week period. You cannot study torts, wills & estates and tax all at the same time. Each substantive issue requires your undivided attention. Undivided. Your time becomes even tighter, especially when you are studying for a subject in the summer that you are not familiar with because you did not enroll in that course while in law school. You are now in a position where you must concentrate on a topic with a number of substantive issues and sub-issues, and now you must get a hold on the information the very first time you read it, outline it, and use it on an exam question.

Unnecessary Anxiety: I do not want you to become nervous or display too much anxiety because you are in a new place (learning material in a very short time with no reading period). I want you to take on the challenge of being focused for short periods of time. You can begin that challenge now, while you study for the first set of your last year of exams. How, you might ask, should you approach this mental preparation?

Study One-Hour; Non-Stop. No bathroom breaks. No cell phone. No food. No water. No hello’s or good-bye’s. No wait-a-minute’s – I’ve got something to tell you. No xeroxing, no texting, no google, Facebook or Twitter. No, “I’ll be back in a minute,” situations. No, and I repeat, no internet. I’m talking about peace and quiet for one hour. Some of you are reading this thinking, “she must be crazy.” How could she think that I cannot sit down for an hour and study? Okay, big shot. Do it.

I walk through the library, classrooms and clinics all of the time and it is rare that I can find a person (student or faculty) that is not engaged in some verbal exchange with another person about something. Please remember that if you hear someone else recommend that you start your focus with a one-hour study period that you tell them that you heard about it on this blog, first. Don’t let anyone steal my thunder.

It is harder than you think being alone with a book and absolutely nothing else for one hour. You need to try it because now is the time to find out the nature of all of your “study” habits and get a hold on them, so that you may do whatever you need to in order to correct the problem. You have about six months before it is time to dig into bar study and if you just try to recognize why you do what you do before graduation, you will be just a little (a little) ahead of the game.

Go on. Read, write, outline, or think for an hour. Find a corner on a floor in a building, the law school or public library, a living room, study, or den, your bedroom, or a desk, or just a table. It does not have to be a special place, or it can be a special place. The bottom line is that I want you to experience quiet and learn how difficult or easy it is for you to learn in an undisturbed environment for 60 minutes. Also take note of how much or how little you get done in a timeframe of only 60 minutes.

Once you determine how much time 60 minutes really means (in terms of how much you can accomplish during that time), you will view the hour with a new found respect. You may also learn how precious time is to the person studying for the bar exam and examine not only your relationships with other people, but your entire relationship (as it relates to studying) with law school. Hopefully, you will begin to incorporate the one-hour study period at least once a day. Yes, seven, one-hour study periods. Again, one hour means no nothing – no communication and no movement for an hour. It doesn’t require a lot of effort, but you will recognize that time moves quickly when you have a lot to learn or a lot of practice tests to manage.

The Next Three-L Post: How to prepare for the bar exam without lifting a pen. Sit Down/Stay Down.