Semester 2, Week 13: How to Write a Law School Exam

I thought I might not write a blog post this week. I don’t know why I’m so tired, but I am! I think I haven’t fully recovered from the extended Spring Break festivities/ongoing carnival of visitors (my wife and I took a weekend away, but we made what was in retrospect the mistake of driving nearly three hours to do it).

But then I just now finished writing a practice exam for Civ Pro, and I thought it would be useful to you to think about how you’ll write your exams once you start law school. I won’t use the essay I just wrote, because it hasn’t been assessed by my professor. I think it’s pretty OK, but you’re not interested in my opinion here. Instead, I’ll use a practice exam from Torts, which has been assessed, and for which I received full marks (10 out of possible 10).

I’ve pasted it below. As you read, notice three things:

1. I know the law on these questions. There’s just no substitute for knowing what the courts have said. Use the cases you read to understand what the law is. That’s what they’re for.
2. I have carefully applied the law to the facts (partly what I mean by this is that you can almost see the prompt just from my essay. I did not rewrite the entire fact pattern (that would be a dumb waste of time), but I did include the relevant facts that helped me make a decision). I have not included the actual prompt, because it isn’t my own work. But you can just about imagine what it said if you extrapolate from the material I have included. Your essays should serve a similar function.
3. I used a clear organizational system. I’ve here generally employed what people call CREAC: a Conclusion, followed by a Rule of law, followed by an Explanation of that rule, then an Application of the rule to the facts of the case, and I finish each portion with a reiteration of my Conclusion. As you read, notice that you could label each sentence with one of the foregoing: everything is a C, R, E, or A, or possibly a combination of two of them (the second sentence of the whole is both a statement of Rules and an Explanation of them).

Sample Torts Practice Exam

1. Mr. Jones is unlikely to prevail against Kodak on a defective design action. To sustain an action for defective design, the plaintiff must show that the product fails the “Consumer Expectation Test”—that the product was more dangerous than a normal consumer would expect, or that it fails the “Prudent Manufacturer Test”—that it was so dangerous that a prudent manufacturer would not introduce it to the market. Here, the former test cannot apply, because as per Soule, the product is too technical for an ordinary consumer to have an expectation about its function. Instead, the question is whether the product contained an excess preventable danger. It is not likely that a court would find the product excessively dangerous in a design defect action if there is no existing Reasonable Alternative Design and if the danger came from misuse and not the inherent nature of the product. Here, it appears that there is no RAD; it’s been rated the highest quality machine for a decade. And the injury occurred as a result of Medford’s misuse; she circumvented the safety system by adding a weight to the technician pad. Kodak knew about such modifications, so this is an instance of foreseeable misuse. However, rulings like the one in Jones suggest that foreseeable misuse is a complete defense to design defect claims. Since Mr. Jones’s injury here was the result of Medford’s misuse, Kodak will probably escape liability.

2. Mr. Jones is much more likely to prevail in his action against Kodak on a failure to warn theory. To win a failure to warn case, the plaintiff must show that the manufacturer did not provide adequate warning of a foreseeable danger. Kodak did supply a sticker warning generally of the danger of its product. However, (1) that sticker was inaccessibly located, such that it’s unlikely any patient would ever see it; (2) the sticker indicates that “misuse could result in serious injury,” (emphasis added) which provides no warning at all to Jones, who did not misuse the machine in any way; and (3) the sticker provides no warning about the type of foreseeable injury that could occur as a result of the misuse; it does not effectively show what the danger really is. 

Further, unlike in the defective design action, foreseeable modification or misuse—even by a third party—does not bar recovery in failure to warn cases, as per Liriano. The foreseeability issue is key: under X.C.A. § 29-28-108, unforeseeable modification does supply the defendant with a complete defense against a failure to warn claim. However, since the record shows that Kodak knew about the kind of misuse undertaken here by Medford, the modification was foreseeable, and the company cannot escape liability on the failure to warn action.

3. Jones’s likelihood of prevailing in his suit against ETMH under a theory of vicarious liability is contingent on the question of additional key facts. The initial question is whether Jones can prevail because ETMH vested Dr. Medford with apparent agency, despite the fact that Medford is not an ETMH employee. In the context of a hospital/independently-contracted doctor relationship, apparent agency is the creation of an appearance that the doctor is an agent of the hospital, whether she is in fact such an agent. This appearance is created and maintained by the actions of the hospital: the test is whether (1) the hospital presents itself as available for public service; (2) the patient sought care from the hospital, rather than from a particular doctor within the hospital; and (3) whether the patient accepted treatment in the reasonable belief that the treating doctor does in fact work for the hospital. Since the hospital allows Dr. Medford to be physically present at the hospital, and to conduct treatment within the hospital, it is possible that Jones has the reasonable belief that Dr. Medford is an agent of the hospital. However, it would be necessary to know whether Medford identified herself in any way as being not an ETMH employee: did she have a name tag? A uniform? Did those items appear to place her as an agent of ETMH or as an employee of some other entity? If there were no distinguishing marks to identify Medford as not being an employee of ETMH, it’s more likely that a court would find Jones’s reliance on her care to be in the reasonable belief that she was an agent of the hospital.

However, the hospital can still escape liability under an apparent agency argument if it provided Jones with adequate written notice that Dr. Medford is not an employee. However, the two sentence disclaimer to that effect on the back of the consent form does not likely suffice as “adequate” notice under Boren v. Weeks. There, the family signed multiple forms containing a similar disclaimer of liability, and the court found that those notices were not adequate. To be adequate, the hospital would have to call attention to them in some conspicuous way. Since ETMH did not take any steps to conspicuously demonstrate to Jones that Medford is not an ETMH employee, they will not be likely to escape liability by their printed disclaimer.

/essay

Anyway, that's an example of a successful partial final exam (that essay took me one hour. The final for this class will be two hours). Hope it's helpful.

Hours for the week: Class = 13.25 / Study = 3.5 / Other = 3.5 / Total Time on Schoolwork = 20.25 / Total Time on Campus = 30 (three classes have ended for the semester, so I've got less time that I have to spend on campus now)

Questions? Comments? Complaints? Post them below, or shoot me an email.

Be good to one another, for we need it now more than maybe ever,

d

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