Hello California baby bar exam applicants,
Welcome to the latest installment of our California baby bar exam (FYLSX) newsletter. In this issue, we consider:
- Important Upcoming FYLSX Dates
- FYLSX Essays In-Depth: Common Negligence Problems, Duty
- Newsletter-Only Discounts
Important Upcoming FYLSX Dates
- FYLSX Exam Date: June 28, 2011
FYLSX Essays In-Depth: Common Negligence Problems, Duty
Negligence is, perhaps, the most frequently tested claim/issue presented on any bar exam, including the FYLSX. In an FYLSX essay context, Torts is the most frequently tested subject. Typically, 2 of the 4 FYLSX essays are devoted to Torts (on occasion, 2 Contracts essays will appear). Moreover, ordinary Negligence, and its' derivatives like Products Liability Negligence, is the most frequently tested claim on FYLSX Torts essays. Given the relative importance of Negligence, individuals preparing for FYLSX essays should consider, and avoid, several common, recurring Negligence problems. In this issue, we focus upon two of the most common Duty problems in the context of a prima facie case of ordinary Negligence.
2 Common, Recurring Negligence Duty Problems on FYLSX Essays
As demonstrated below, in the context of a prima facie case of ordinary Negligence (Duty, Breach, Actual Cause, Proximate Cause, and Damages), Duty should be the first element of the Negligence case that you evaluate in any FYLSX essay when the question presented raises a possible claim of ordinary Negligence.
Considering the above prima facie case of Negligence, there are 2 major, common mistakes that many individuals make when addressing the element of Negligence Duty:
- Individuals fail to recognize that Duty consists of 2 parts: a) whether a Duty is owed in the first place and b) the scope of such a Duty (i.e., the standard of care).
- Individuals provide a premature discussion of Breach instead of addressing the question of Duty.
To prevent these common mistakes in your FYLSX Torts Negligence essays, employ the following solutions.
Solution: Negligence Duty Consists of 2 Parts: 1) Whether a Duty is Owed and 2) the Standard of Care
First, your statement of the law, and subsequent analysis, for Negligence Duty should explain and address whether a Duty is owed by the Defendant to Plaintiff (use the competing Cardozo and Andrews viewpoints). Far too often, individuals overlook this key aspect of Duty. Instead, individuals consistently exhibit a tendency to skip directly to discussing the appropriate standard of care.
Second, your statement of the law, and subsequent analysis, for Negligence Duty should also explain and address the appropriate standard of care after you examine whether a Duty was owed in the first place. Your standard of care discussion should always address the ordinary standard of care ("reasonably prudent person under like or similar circumstances") and any special duty, if applicable. If a special Duty applies (e.g., Invitee), you should still examine the ordinary standard of care in addition to the applicable special Duty.
Solution: Avoid the Tendency to Evaluate Whether a Duty is Violated (i.e., Breached) in Your Duty Analysis
Remember, strictly limit your Duty analysis to whether 1) a duty is owed and 2) the appropriate standard of care. Reserve any discussion for whether the Duty was, in fact, violated for the subsequent issue of Breach, as noted in the model approach above.
Model Approach for Negligence Duty
Keeping these common problems and their solutions for Negligence Duty in mind, let's review a Model approach for the sub-issue of Duty in the context of an ordinary case of Negligence on a FYLSX Torts essay:
Please keep in mind, the above discussion is limited to two of the most common Negligence Duty problems individuals face on FYLSX essays. Of course, any effective discussion of Negligence should consider and address all the elements of a prima face case of Negligence plus any possible defenses. We address all of your individual Negligence problems, and provide steps and suggestions to correct them in our 1-on-1 FYLSX essay preparation programs.
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Study smart,
-The BarReviewSolutions.com Team
