Revision Comments Torts
Issues Covered:
You missed major issues.
You missed important sub-issues.
You need to address the call of the question.
Law Knowledge and Use:
You didn’t provide enough law or legal definitions to key terms.
You provided too much recitation or discussion of the law in general, rather than applying laws to the facts.
You need to focus on proving or disproving the elements of the rules of law in your analysis.
Argument and Analysis:
You were too conclusionary and did not provide enough argument for both sides of the issues. You need to play with the facts more and adequately explain the arguments both sides would be expected to make.
You need to explain why you believe the facts lead to the conclusion you reached.
Format and Structure:
You need to use the IRAC format.
Your essay would be improved with more white space. Skip lines between issues and skip lines within the sections, following the issue statement, rule, and analysis.
You need to label the issues discussed with an issue statement framed as a yes/no question or with the legal topic covered. This may help you focus your analysis on answering the question, as opposed to simply telling what you know about a topic.
Writing Style:
Mechanics:
Additional Comments
Teddy,
Your essay shows that you have learned the foundations of tort law and that you understand the basis behind the laws. Unfortunately, the primary purpose of a law school exam is to apply that knowledge in a way that accurately evaluates the legal issues raised by a hypothetical fact pattern.
In this case, you were tasked with evaluating Ken’s claims of negligence, battery, and assault against Larry — as well as Larry’s claims of negligence, battery, and assault against Ken. Because the call of the question only asked you to evaluate these six claims, Jane’s actions are irrelevant and immaterial for this essay.
Remember also that conclusions are only effective if they are supported with proof.
In this case, effective analysis of the issues required you to individually analyze and prove whether the elements of the claims have been met under the facts presented.
For example, in order for Larry to prevail in his negligence claim against Ken, he needs to prove that Ken owed a duty, that Ken breached his duty, that Ken’s breach was both the actual and proximate cause of the harm suffered, and that Larry actually suffered harm. Those are the particular elements that you needed to methodically evaluate and thoroughly prove in your essay before you could arrive at a conclusion as to whether Ken was negligent.
In doing this, consider whether Ken owed a general duty and/or a special duty —as well as why. This proof is built by explaining what the legal rules are for these various standards of duty and then evaluating whether and how they apply to the situation involving Ken.
As a matter of law, the general duty owed is that of a reasonable person under the same or similar circumstances. That means in order to prove that a general duty was breached, you need to establish whether the defendant acted as a reasonable person would have under the circumstances. As well as why or why not.
Both actual and proximate causation have their own legal rules and standards for proving — which means that they need to be individually IRAC’d and evaluated. This is a fact specific inquiry that requires nuance and depth to establish.
And then, this same approach is what you would need to do, separately, in order to determine whether Ken could prevail in his negligence claim against Larry.
Evaluating and proving the intentional torts requires a similar approach.
For example, as it relates to battery by Ken, your analysis might look something like the following:
“Did Ken commit battery?” (Skip a line) “Battery is the intentional, harmful or offensive touching of another.” (Skip a line) “In this case, the facts show that Ken grabbed Larry’s driver’s license from his hand and ripped it in half. Grabbing something from another is an intentional act. It is not something that can be done by accident. In order to grab the license, Ken had to make a series of sequential movements targeted at accomplishing a particular outcome. That is the definition of intentional. There is no evidence that Larry was harmed as a result of Ken’s actions. But it is very likely Larry can prove that Ken’s actions were offensive. A reasonable person would be offended if a total stranger moved aggressively to grab a personal possession out of your hand without consent. Larry’s actions of shoving Ken in return indicate he was, in fact, angry and offended by the incident. Finally, even though the facts do not show a physical touching between the two mens’ bodies, the requisite touching element is likely met. On the one hand, the facts only indicate that Ken touched the drivers license that Larry was holding — not Larry’s physical body. Under general language usage, that would not be enough to constitute a “touching of another”. But that the law supports an alternative construction of the term. General battery law considers a touching to occur if the contact is with anything closely connected to the victim’s body. In this case, Larry was holding the license in his hand at the time it was grabbed. Because the law will recognize that as being an extension of Larry’s body, it is sufficient to meet the element of a touching.” (Skip a line) “Because each of the elements set forth in the rule for battery have been met, Ken will be liable for battery.”
Then, you would undertake the same approach and individually IRAC the remaining issues identified in the call of the question: Did Ken commit assault? / Did Larry commit assault? / Did Larry commit battery?
As you learn how to craft effective legal analysis and to present your essay in a way that thoroughly evaluates each of the issues raised, I have no doubt that you will succeed in your studies. These are skills that come with time and practice. But there are a number of 1L writing classes offered throughout the year that can help you with this.
