My Torts Midterm: The Shortest 75 Minutes of My Life

Most of the time, stressful experiences tend to drag. Minutes pass like hours. Hours pass like days. It is a sensation of time slowing down that we all know. Well I have just discovered it's inverse: a law school midterm.

Let me start out by saying that I studied. A lot. I know the elements of battery, assault, intentional infliction of emotional distress and trespass well enough to recite in my sleep. I actually woke up doing that the morning of the exam.

But being able to spit out legal jargon is only half the fun. You have to know how to spot it.

OK so a law school exam goes something like this: You are given a fact pattern. You get 15 minutes to read it, spot and outline ALL of the issues on your scratch paper and then about 60 minutes to write your answer out. Sounds easy, right?

Law school instructors take a lot of time carefully crafting their fact patterns. They chose their words very carefully, because ONE WORD can add another issue to a fact pattern, and if you just read right over it, you will miss all of the points for that issue. For example, consider this: "Joe is riding one of Paul's horses. Paul intentionally startles the horse, causing it to kick and buck and eventually throw Joe off, where he falls and breaks his leg." Without any real legal training, most people might read that and think "battery" for the fall from the horse to the ground. They would spend 10 minutes crafting an answer for that sentence that talked about Paul intentionally and indirectly causing Joe a harmful contact with the ground and move on. And if the entire exam was just that sentence, they would have just gotten a 30% on it. Maybe less.

You see, Paul's battery on Joe from causing the fall off the horse is only 1 of 3 Torts in the fact pattern listed above. It is also the most obvious Tort in that fact pattern, and law school instructors would regard it as "low hanging fruit." You'll get points for talking about it, but not that many.

So what are the other 2 Torts? This is where the choice of words by the instructor comes into play.

The words "kick and buck and eventually throw" are where the other 2 Torts are hidden. Picture Joe on the horse. It is kicking and bucking. What happens to someone on a horse that is kicking and bucking? He is being jostled and bounced up and down on the saddle while trying to hold on. This alone could cause sprains to the neck or a dislocated arm, and at the very least a sore groin from having it slammed into a saddle multiple times. There's your 2nd battery: Joe being jostled and bounced around and slammed into the saddle on the horse.

What else happens in the mind of someone on a horse that is kicking and bucking? "Oh sh*t, I'm about to fall! I hope I don't fall!" The word "eventually" tells us that Joe was not thrown from the horse immediately, and since the fact pattern doesn't say that Joe lost consciousness before falling off the horse, we know Joe was aware of the fact that he was about to be thrown off a horse. Here is your 3rd Tort: Joe's awareness of an imminent harmful contact is an assault, and if you just glanced over the word "eventually," you will have missed that.

Those other 2 Torts are the "not-so-low-hanging-fruit" where you'll wrack up the most points. A fact pattern on a law school exam may be anywhere from a few paragraphs to 2 pages worth of sentences like the example I just used. An hour may seem like a long time to take an essay exam, but when that kind of analysis is involved, it is sometimes not enough to finish talking about everything you find in a fact pattern. Law school professors know this, and that is why there is "low hanging fruit" and "not-so-low-hanging-fruit": you want to spend the bulk of your time on the stuff that isn't so obvious. A bad answer is one that is consumed pointing out the obvious issues. The points are in the hard stuff, hidden in the details that your professor took the time to weave into the fact pattern, and they appreciate it when you don't overlook those hidden nuggets.

But the "obvious" is not always your friend. Part of what professors want in an exam answer involves what most people find to be obvious inferences. It is not enough to say that someone in a locked interior room meets the criteria for "physical boundaries" with "no reasonable means of escape" in order to prove up those elements for false imprisonment. What if the room has windows? What if there is no roof? What if it can be unlocked from the inside? You have to go a step further and point out that the interior room is a finite space secured on all sides by windowless walls, a ceiling, and a floor, and that the only means of egress from this room is the door, and that once the door is locked, the room is a secure space which creates a large box around whatever is inside. You would also need to point out that the room can't be unlocked from the inside or it is STILL not enough. You're reading this and you think "Well, DUH, obviously all of these things are true" but if you forget to point them out in your analysis, your professor will dock you heavily for it. It is not enough to make your point. You have to prove it, and you have to pretend you are proving it to a 3 year old. It makes sense if you think about it though. Say there's a baby in a locked car. This scenario takes on a whole new meaning if that car is a convertible, doesn't it? What the professor wants to know is WHY. You will kill a lot of your exam time answering "why."

So in my Torts exam, I had to read a 1 page fact pattern and a paragraph of instructions, spot all the issues (I found 10) and explain "why" for each of them. Some of those issues were low hanging fruit, and some weren't. I am confident that I spotted all of the issues. The only thing I am not 100% sure about is if I gave enough "why" for my instructor. I wrote the equivalent of about 8 or 9 pages. I finished just in time to go back and proof-read, but again, you can never really be sure until you get your exam back.