Topic 6: How to answer a baby bar exam essay question
Here, we walk through how to answer a baby bar exam essay question. We will look at the Torts essay question from June 2018, which you can find on The State Bar of California’s website.
We’ll discuss the proper approach to this essay question and give you tips for approaching others. To make the most of this exercise, we recommend you bullet point an answer to this question. Then, read our tips on how to answer a baby bar exam essay question such as this one.
In July 2015, Carole broke her neck and became disabled when she dove into a swimming pool manufactured by Swim Wonder and struck the bottom.
In September 2016, Carole hired Larry, a lawyer, to negotiate with her health insurer, which was slow in paying her medical bills. Larry suggested filing a claim against Swim Wonder for negligence in its design of the pool. Carole agreed.
In September 2017, Carole, who had heard nothing about the negligence claim, contacted Larry. Larry informed Carole that he intended to file her claim, but recently learned that her claim was barred by the two-year statute of limitations.
Carole has sued Larry for legal malpractice.
- Is Carole likely to prevail? Discuss.
- If Carole does prevail, how will her damages be determined? Discuss.
Suggested baby bar essay exam approach
Tip: pay close attention to the call of the question.
Here, Carole is suing for legal malpractice (a.k.a. negligence). Structure your entire answer around these two issues. See below.
Question 1 asks if Carole is likely to prevail. Start by discussing negligence. Remember to connect every dot for the grader—so discuss all elements of negligence. In particular, discuss duty, breach, cause, and harm.
- Did the lawyer have a duty to act as a reasonably prudent lawyer?
- Here, you will also want to discuss the duty owed by professionals—i.e., their superior knowledge is taken into account.
- Did Larry breach his duty? Not filing a claim within the statute of limitations, when the lawyer had a year to file it, likely constitutes a breach of duty because a reasonably prudent lawyer would have filed the claim earlier.
- Tip: Always make it a point to use the word “because” in your bar exam essay! Don’t just say “Larry breached his duty.” Instead say, “Larry likely breached his duty because although he had a year to file the negligence claim, he failed to do so. A reasonably prudent lawyer would have filed the negligence claim within the year.”)
- The difficult element to prove is whether Larry caused harm. Here, Carole essentially has to prove a “lawsuit within a lawsuit” because she has to show that Larry’s actions (failing to timely file the lawsuit) caused her harm. If she wouldn’t have won the lawsuit against the pool manufacturer anyway, the lawyer’s failure to file the lawsuit wouldn’t have caused her any harm. She has to show by a preponderance of the evidence that she would have won the lawsuit against the pool manufacturer. (You can think about it this way: if she would have lost her lawsuit, the attorney didn’t cause any harm by failing to file it!)
- So, she would have to win her lawsuit against the pool manufacturer. This is where you want to discuss:
- Strict products liability. The focus is on the product itself, rather than the manufacturer’s action. So you would want to discuss how a design defect caused her harm.
- Negligence. You would also mention that if the pool manufacturer was negligent, she could sue for negligence. Tip: there is no need to restate all the elements of negligence here.
- As noted above, in order to prevail in a negligence lawsuit, the plaintiff must show that the defendant caused her harm.
With negligence, you also want to discuss the following issues in every bar exam essay (even if they are not necessary issues. Remember that you want to connect every dot for the grader!):
Tip: practice a lot of essays so you discuss relevant topics in response to specific issues.
- Comparative negligence: judge or jury weighs the plaintiff’s negligence against the defendant’s. Percentages of fault are assigned to all of the parties involved.
- Pure comparative negligence: the plaintiff can recover no matter how negligent he is
- Partial comparative negligence: if the plaintiff was more at fault than the defendant (or in some states, if they were equally at fault), the plaintiff cannot recover
- Contributory negligence: This is an old common law doctrine that completely bars the plaintiff’s right to recover if he was negligent unless the defendant had the last clear chance to avoid the injury
- Assumption of risk: A plaintiff may be denied recovery if she “assumed the risk” of the defendant’s negligence. The defendant has to show that the plaintiff both knew of the risk and voluntarily assumed it.
Question 2 asks about damages. So, next discuss damages.
You can note that in a negligence lawsuit, Carole will not recover punitive damages. Tip: When you write a bar exam essay question, pretend that the reader knows nothing about the law. Explain what punitive damages are (i.e., they are damages meant to “punish”) and that punitive damages are not recoverable in a negligence case.
But, she will recover her actual damages (i.e., those she would have won if the lawsuit had been successfully filed).
When you answer a baby bar essay question, the structure is so important. If you have the proper structure, and you know what issues to discuss, then it is just a matter of using the rule-analysis-conclusion format for each issue.
This should give you a good general overview of how to dissect a baby bar exam essay question!
Go to the next topic, Topic 7: How is Torts tested on the baby bar exam?
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