How to do analysis in baby steps

Okay, this will probably make the A students and the top 25 law school students laugh, but here is my advice for analysis. This isn’t what you will be doing in legal practice but what you need to approach for exams.

Argue like a four year old.

Yes, I stole that from Getting to Maybe. (Great book: go buy it. Read it at the beginning of the semester and then read it over Thanksgiving before your finals. Read it and use it while you are doing your first practice exams.) Basically, if you tell a four year old to follow a rule what will he do? Argue with you.

Rule: Don’t hurt the cat

4 year old: I wasn’t hurting it, I was playing with it.

Rule: don’t track mud into the house

4 year old: It isn’t mud, its dog poop.

The next thing to do is to turn this around and think how an adult (a real parent) would argue in response.

Adult: Twisting the tail of the cat is NOT playing with it. That is hurting the cat.

Adult: While I said mud, you should know that I don’t want my carpets to be dirty.

So how does this work with an argument?

In Torts, for example, with certain exceptions, everyone has a duty of reasonable care in their actions. If you are walking down a street swinging a baseball bat, you need to exercise reasonable care that you don’t hurt someone. One of the exceptions to this is the duty of the “common carrier.” A common carrier has a duty that is higher than reasonable care. A common carrier is a someone like a bus company, a railroad, a taxi driver or an airline. Someone who takes money and, in return, transports people.

Hypothetical: David is going to drive across country after finals. He posts on a bulletin board that he will take passengers if the passengers will help pay for gas.

Question: What duty does David have towards any such passengers? One of reasonable care or something higher?

You will need to argue as if you were David and you will need to argue as if you were one of the passengers. Here is where the 4 year old argument will come in: if can counter any of these arguments, do so. It doesn’t matter which side, try and counter both. Depending upon time and points allotted to the problem, you should do this even if it seems obvious what the answer is. Like here, David is obviously not a common carrier.

David: I’m not in the business of transporting people for money. Therefore I’m not a common carrier and I only have a duty of reasonable care.

Passenger: David accepted money to transport me. Therefore he is a common carrier and does have a higher duty of care.

David (4 year old): But I only accepted money to pay for gas, not for profit. And I was only doing it on one trip. This doesn’t make me a common carrier.

Passenger (4 year old): But you still accepted money to transport someone you didn’t know (me) like a common carrier does.

Thus, you see both sides can, at the very least, attempt an argument and a possible counter argument. Sometimes the argument or counter argument will be lame like the Passenger’s counter argument

Also, don’t be attached to one side or the other. You may think that David should have a higher duty of care. That SHOULD NOT stop you from arguing David’s side. Maybe you come to a different conclusion about David’s duty. However, still argue David’s side.

And: If you come to a part like this where it may be unclear about what the conclusion will be, do not forget to continue on with your analysis of other elements or factors. The example here is negligence. You would thus continue on and argue breach. For lots of analysis points, you would argue both (1) if David only owed a standard of reasonable care and (2) if David owed the common carrier higher standard of care.

However: pay attention to the call of the question and pay attention to the amount of time or amount of points for the part of the exam. If this part of the exam is only supposed to be 10 minutes, or 10 points out of 200, a long and tortured analysis is WASTING TIME AND LOSING POINTS because you should be spending more time elsewhere. If this is a 30 minute or 50 out of 100 point part of the exam, analyze every nook and cranny.

How I would write the answer above:

The first issue is what level of care David (D) owes Passenger (P). While P might argue that D accepted money to drive P and thus is a common carrier with a higher standard of duty, D will argue that he is not in the business of transportation and therefore not a common carrier. Furthermore, D will argue that he only took money to help pay for gas, and certainly not to profit himself making him even less like a common carrier. Therefore, D will argue that he is NOT a common carrier and only owes a duty of reasonable care.

The next issue is breach …

That is a bit of a hackneyed response but you’ll only have time for something in that manner.