Alumni Update – Issue Spotting

Student question: I took your July Law Preview course at Columbia.  I did decently well during my first semester, but would like to improve.  I’m currently in the top 1/3 of my class, but would like to do better. After meeting with my professors regarding my exams, I’ve discovered that my weakness is issue spotting.  It was the difference between an A and an A- in Contracts for me and an A-/B+ in Torts. Is there something you can suggest to help me work on this specific skill?

OUR RESPONSE

First of all, super job visiting your professors and going over your exams.  Now you’re able to go into your Spring Semester exams with a firm understanding of what you need to do in order to improve.

Now to your question.

Issue spotting is a skill that comes from a complete mastery of the legal rules being tested.  By knowing the doctrine (rules), their elements (facts), and the reasoning (purpose) for the doctrine itself, you’ll be able to walk into an exam and literally have issues “jump” off the page while you read the hypo.

Say, for example, you’re looking at the five statutory duties in Torts that give rise to a duty of rescue because of a “special relationship” – you’d want to know the doctrine itself, the elements that impose a duty of care and, finally, the rationale for why society would want such a rule in the first place.

For example, take the parent-child relationship — it’s not enough that a person is a biological parent to impose a duty to rescue; rather, you’d want to examine whether the facts describe a relationship that would make an argument for the application of the parent-child duty because one party (the child) is vulnerable and in the care of the other party (the parent).

Now, you may recall the following example on page 70 of the Law Preview Coursebook:

TORTS SHORT ANSWER HYPOTHETICAL

(20 MINUTES)

Alice, a feeble 88-year-old widow, was placed in Pleasant Pastures Nursing Home by her son, Charlie, and his wife, Barbara. For years, there had been intense animosity between Barbara and Alice, and Charlie sometimes thought it would be easier if his mother were to simply “pass on.” In one of his biannual trips to visit Alice at Pleasant Pastures, mother and son strolled the picturesque grounds of the compound. As Alice bent over the railing of a small wooden bridge, the railing broke and she tumbled, landing face down in the shallow water below. Although he could have easily rescued his mother without any risk to himself, Charlie chose to do nothing and watched as Alice took her final breaths underwater.

You have been retained to represent Alice’s estate and have joined Charlie in a wrongful death action you filed against Pleasant Pastures. In your complaint, you allege Charlie’s inaction caused his mother’s death. Charlie’s answer contends that he had no affirmative duty to rescue Alice. Putting aside any other claims that you may have against Charlie, what is the result?

Clearly the “easy” answer to this question is that that a child does not owe a parent a duty of rescue; however, easy answers rarely result in top grades.  By contrast, a law student who has a mastery of the parent-child duty rule, understands the operative facts that give rise to its application and, most importantly, understands the underlying reasoning for the rule can make an argument why, under these circumstances, a child may owe a duty to feeble parent under his care.

See: Sample Response on page 71 of the Law Preview Coursebook:

Whether Charlie (“C”) is liable for Alice’s (“A”) wrongful death because of his failure to rescue her.

While as a general rule a person does not have an affirmative duty to rescue another, a person’s nonfeasance (inaction) may still be tortious if there is a special relationship between the defendant and victim.

C will argue that while the nature of the parent-child relationship does impose a duty on the part of the parent to protect the interests of the child, it does not operate in the reverse and impose a duty on a child to rescue a parent in distress. Even if the rule were extended to cover this situation, C may assert that inherent in the special relationship is that there exists an actual “relationship.” He would argue that he was A’s son by blood only, which is illustrated by the fact that he only visited her twice a year and wished her dead.

A’s estate has a compelling argument that the duty to rescue should extend to C in these circumstances. Clearly, the parent-child relationship is present in these facts and when one looks to the rationale behind such a rule, a solid argument exists for the rule’s extension to cover this situation. The rule is designed to protect the interests of those who, because of age or incapacity, are unable to protect themselves. Here we are told that A was “feeble” and presumably unable to adequately take care of herself (she is living in a nursing home). A strong argument can also be made that, like a parent looking after a child, A was in C’s care during this stroll, thereby imposing a duty on C to rescue A regardless of whether they had a close familial bond.

Because of the societal interest in preserving life, a court will probably find that A’s estate has the more compelling argument and find that a special relationship existed, thereby imposing a duty on C to aid in A’s rescue.

Having this kind of clarity surrounding the rules you learn is the “issue spotting” skill you desire to hone.  You’ll notice that the ability to spot this issue stems from:

  • A mastery of the doctrine (rule)
  • A mastery of the factual elements of the doctrine (this is going to help identify when doctrines will be triggered to solve problems); and
  • A mastery of the reasoning underlying the rule being tested (what societal purpose does this rule serve and why would courts impose this rule on some people but not others?).

To help you with all three parts, I would suggest using the Law-In-A-Flash flashcards during your weekly review. By going over (and over) those flashcards, you’ll cement the elements and, consequently, the facts that trigger the application of those rules.

In addition to the flashcards, I’d also suggest that, for each legal rule you encounter, you may consider making a list of factual scenarios that that might trigger the rule.  Here you’d want to be careful and not only list the facts that came from the case(s) the professor used in class to illustrate the rule. As you’ve seen from your fall exams, you’re unlikely to encounter exam hypos that mirror the facts of the cases from which you learned them.  More likely, your professors will be drafting hypos with some facts (elements) that could trigger the application of a rule, but either omit or provide ambiguous facts (elements) that may dissuade the average student from digging deeper. Consequently, while you’re listing triggering factual scenarios during your study, you’ll want to “think outside the box” a bit.

I hope this has been helpful.