TORT ANALYSIS

The plaintiff in a tort case must meet two tests. The Burden of Production requires the plaintiff to show enough evidence of a tort action to avoid a directed verdict. He must also meet the Burden of Persuasion by a preponderance of the evidence showing the liability of the defendant. This week as you take the Tort Law test, here are a few pitfalls to avoid.

A danger in tort law analysis is leaping ahead. It is very important to carefully read the scenario. Avoid letting your mind jump to deciding what type of proximate cause to pursue, before you have actually found all the elements of a tort. Refrain from adding anything to what you have read; all you have to work with is what is written down. Ask the following questions:

Is it a tort? The situation may be for the criminal courts, not civil. Remember also that torts can be actions or OMISSIONS.
What type or theory of torts? A grammatically perfect answer based on the negligence theory will not suffice if the scenario was an intentional tort.
What subcategory applies? A battery…a trespass…a nuisance…product liability…abuse of process…misrepresentation.
If a negligence tort, are all the elements there (duty, breach, causation, damages)? The defendant may have done wrong, but if no harm was sustained, then you cannot proceed. Or damages may have been sustained, but the defendant may not have had a duty in the first place.
Which type of damages can be requested? The plaintiff may be able to request more than one. (i.e. special and punitive)
What defenses might the defendant raise? If the plaintiff consented or assumed the risk, he is barred from recovering damages.

Another challenge is remembering the meaning of Latin phrases, and under what theory and element the phrase is pertinent. The theory of negligence has three Latin phrases.

“Negligence Per Se” may be used to show a breach of duty. If a harm was caused due to the violation of a state/federal statute, and the statute was designed to protect the person who was harmed, then negligence per se arises.

“Res Ipsa Loquitur” also applies to the element of breach. Use this phrase to prove the defendant is liable for the breach: the event normally only happens if someone is negligent; the plaintiff did not negligently contribute to his own injuries; the objects or situation were under the defendant’s exclusive control; or the defendant is better able to explain the events.

“Sine Qua Non” refers to the “but for” test. This concept is handy for trying to prove causation, in particular actual cause. Show Tony was the actual cause of Antonia’s head injury by explaining, “but for Tony negligently swinging his bat, Antonia would not have been hurt.”

Two other interesting phrases are:

“Respondeat Superior” means let persons higher up answer. This can be applied under nearly all of the theories. Once you have shown that the defendant has committed a tort action, and all the elements have been proved, then you can proceed to investigate if the defendant’s bosses/company can be held liable to pay the damages. If the tort was committed under the scope of the defendant’s work, the employer may be liable. This is called going after the deep pocket.

“Slander Per Se” falls under the category of defamation torts. This concept will simplify your answer greatly if it applies. If spoken defamation occurs towards a private person about a private matter involving an item on the list, then damages are presumed! The list includes: criminal behavior, loathsome disease, sexual misconduct, or unfitness to conduct business.

Best wishes on your tests. God bless.

Jessica

Elections and Law (Posted by Gabe)

While it's a question that has nothing to do with your studies, per se, it could have a lot to do with your future if you're planning to work in the legal profession. How will this election affect the law? I'd love to hear your thoughts.

There are the obvious connections - the President, with the advice and consent of the Senate appoints federal judges, including the Supreme Court.

But what about the more subtle ways? First, of course, there is all the electioneering - as I write this, it appears that we could be heading toward a legal battle to determine the results of the Senate election in Minnesota, for instance.

And then there is the fact that our President-Elect is a lawyer himself. What will his legal perspective do to change the law?

And then there is the economy, and how it affects lawyers. The legal job market has been very tight for the past year or so, due in large part to the economic changes. Will that change?

How do you think that elections will affect the law?

Thoughts on Family Law (Posted by Jenny)

Hi guys,

I know this post finds you buried under a mountain (or maybe more than one) of books, piles of papers, and a long list of things to do before finals start next week. However, I hope you'll take a minute in the midst of all the craziness to take a break, sip your favorite beverage, and read this post.

I have pondered the last couple of days what helpful tips I could give you about the area of family law. Complex, challenging, and very often utterly wrenching, (emotionally & spiritually) family law definitely pushes you to your limits and beyond. What could I tell you that will serve you well if you choose to work in this part of the legal field? Something simple, and I hope, something memorable.

Listen. Listen, listen, listen, and listen some more.

Listen as you sit in interviews with clients, listen as you talk to opposing counsel or (most often) opposing counsel's paralegal, listen to EVERYTHING your attorney says, listen as you sit in court for hearings (you can be an invaluable set of eyes and ears for you attorney), listen as you sit in on depositions, listen during the many phone conversations with your client, etc. and the list goes on...

For you will need every single bit of information you glean by listening. You will need it as you speak with your attorney, draft the 1,001 documents that will be needed, and prepare for the temporary orders and final orders hearings.

The more you have listened, the better prepared you will be to assist your attorney in carrying out your client's wishes. You will be able to remind your attorney of important details, piece together what is really going on after listening to your client and opposing counsel's versions of a particular event, and draft pleadings that are effective and complete.

Don't ever underestimate your importance as you sit in a corner taking notes, or in the back of a courtroom watching a hearing, or standing in the office listening to your attorney talk about the ins and outs of a case. You are an invaluable asset.

A family law attorney can't survive without an excellent right hand paralegal. Other attorneys in other areas of the legal field can make it with a lesser degree of assistance, but not family law attorneys.

One last thought: When you finish finals and are wrestling over whether you chose answer a or b and how many points you could have gotten or lost, remember this:

You should always strive for excellence during your paralegal studies. Study and learn as much as you can. But remember, when you begin to work as a paralegal GPAs will become less and less important in the practical world of the law office. So don't beat yourself up too much, all right?

Blessings on your finals!!