Here are some materials I put together for my first-semester torts students, aimed at explaining some things that students often find mystifying and frustrating about law school (such as, why aren't we just learning the rules?). My thinking is that students are generally happier if they understand that we have good reasons for certain pedagogical choices, and that they often accept the validity of those choices once we tell them what the reasons are. Maybe I'm living in a fool's paradise on this, but that's been my sense from when I've done this before.
I thought I'd also pass these thoughts along here, in case some of you find them interesting. And if you have some more items along these lines that you think first-year students would find helpful, please do mention them.
What will you be asked to learn in the next three years, and in this class in particular?
1. The Law: Many class sessions — both in torts and in other classes — will be spent learning particular legal rules. And these rules may well prove useful in your future practice, even if you don’t become what most people think of as a “tort lawyer,” which is to say someone who does personal injury law. Lots of business litigation involves torts, such as misrepresentation, interference with business relations, trade libel, and the like. And many of the concepts from traditional personal injury torts cases apply to business torts cases as well.
2. Concepts: A second answer is basic legal concepts, reusable modules that come up in many contexts: negligence, causation, joint liability, mental state, and the like. You’ll see them again in criminal law, in First Amendment law, in the law of copyright damages and contributory infringement, and elsewhere.
3. Skills: You will also be learning legal skills.
a. Reading cases: One important skill is reading cases. This is what you need to do to figure out what the rules are. We can teach you California tort law as it is in 2009; but what if you need to give legal advice ten years from now, in another state, about some subject matter you never studied in law school (for instance, employee benefits law)? Learning the skill of reading cases is therefore more important that just learning the rules.
Moreover, even if you think you know the rule, you’ll need to read the cases to figure out what the elements of the rule really mean in a particular situation. We can teach you that the tort of “disclosure of private facts” consists of “giv[ing] publicity to a matter concerning the private life of another ... if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.” But what do those terms actually mean? Would, for instance, an 11-year-old girl’s giving birth to a child be “of legitimate concern to the public”? You can only answer the question by looking at how cases have interpreted the vague “legitimate concern” language.
And you’ll need to read the cases to figure out how best to argue in the direction that your client needs you to argue. Sometimes there might not be a clear answer given by the cases. You’ll therefore need to argue by comparing your scenario with those in past cases.
b. Analogy and distinction: The last point about reading cases leads us to a separate skill: making analogies, and drawing distinctions, between the case before you and past precedents. This is a quintessentially lawyerly skill (at least in countries which use the Anglo-American legal system). Math classes, for instance, generally call on you to solve a problem by applying basic mathematical principles, or deriving the principles and then applying them. It’s helpful to see the similarities and differences between this problem and past ones, but chiefly because seeing them can help point you towards the right principles to apply.
But in law, there sometimes won’t be a basic principle you can appeal to, or the principle may be so abstract (e.g., “breach of duty”) that it won’t give you much guidance. That’s when drawing analogies and making distinctions between your case and the precedents becomes very important. Often, the strongest argument you have is not “My client should win because defendant’s conduct satisfied the elements of the test for liability,” but “My client should win because defendant’s conduct is very close [for these reasons] to what led to liability in X v. Y, and very far [for these other reasons] to what led to a finding of no liability in Z v. W.”
Torts classes are especially focused on teaching analogy and distinction, and this is especially true for this class in particular. You’ll be reading many more cases (though in shorter chunks) in this class than in most of your other classes; and often the questions you’ll have to answer are — to quote the textbook — “What is the superficial similarity between [these two cases]?,” and “What is the distinction between them?”
I’ll say some more on analogy and distinction at p. S7.
c. Reading statutes: Reading statutes is also a very important legal skill. We won’t focus on it much in this class, since torts is a mostly nonstatutory field. But pay close attention to learning how to read statutes in your other classes (such as contracts, criminal law, and civil procedure). Much of a lawyer’s life is spent reading statutes.
d. Thinking about how the law affects prospective litigants (and others): In law school classes, we’ll often talk about the results in particular cases, and about whether those results seem right. But most people don’t view the law looking backward this way. They need to view it looking forward, by asking what they should do to avoid liability.
This is how you’ll need to advise them when they ask you for advice. “What, if any, security precautions should I take to prevent my being held liable if my customers are attacked by a criminal?,” a business owner might ask you. “Juries award liability if reasonable precautions aren’t taken” isn’t very helpful. Neither is “In this case, which had the following facts, a jury awarded liability.” On the other hand, “if there have been no criminal attacks on your property yet, and you don’t hire a security guard, you will almost certainly be able to get the case thrown out of court before trial even if there is a later criminal attack” would be pretty useful advice (assuming it’s accurate, of course).
Relatedly, when you’re arguing about what the law ought to be, you should be ready to explain how the law will affect people’s incentives up front, rather than just explain why the law seems fair in apportioning liability after the fact.
Imagine, for instance, a proposed legal rule which simply says, “act reasonably.” One problem with the rule is that juries might not do a good job of applying something this vague. But even if we’re sure that juries will usually properly sort the reasonable (who will properly be found not liable) from the unreasonable (who will properly be found liable), this will give little guidance to people who need to know up front how they should be acting.
Such absence of guidance is a good argument — though not always a dispositive argument — against the proposal. And you can’t think of this argument if you don’t think about how the law will practically affect people in the future.
e. Making policy arguments: A lawyer must sometimes advise a client whether certain conduct would lead to liability. We can call this the lawyer’s predictive function, because it involves predicting (whether confidently or tentatively) what a court would do.
But often a lawyer must make arguments about how a court should interpret a legal rule, which legal rule the court should apply, and sometimes even which legal rule the court should create or adopt. This is the lawyer’s persuasive function, and to perform it, a lawyer needs to know how to argue (1) why a court should adopt one or another reading of a precedent, (2) why some precedent is closer to or further away from a particular fact pattern, (3) why some statutory language should be interpreted one way or another, and (4) why a court should or should not adopt some rule that is within the court’s power to adopt or reject. Lawyers arguing outside court will also often have to argue (5) why a legislature should or should not adopt some rule, and (6) why executive agencies or other administrative agencies should or should not adopt some rule.
Arguments that fall within categories 4, 5, and 6 are often called policy arguments, as opposed to caselaw arguments (1 and 2) and statutory construction arguments (3). Many class sessions will be devoted to talking about policy arguments — what kinds of policy arguments have been made and accepted by judges and legislators in the past, what standard responses there are to those arguments, and so on.
Some people get impatient with those arguments, because they think they want to know what the law is, not what it should be. But that’s a mistake: The law is often vague, and sometimes unsettled; judges often have some flexibility in deciding which rules to adopt, or how to apply a rule. In such situations, judges may well be swayed by policy arguments.
I’ll say some more about making policy arguments at p. S8.
f. Talking in front of others. All lawyers have to be good at this. Even if you plan on being a transactional lawyer, you’ll have to give presentations to clients and potential clients. Moreover, many lawyers find they have to give talks to lawyer and business groups in order to spread their names and thus get more clients (or more referrals from other lawyers).
We don’t teach you this skill formally, outside a few clinical oral advocacy classes. But we do ask you to learn the skill by doing — by speaking in class.
Yes, speaking in class can be frightening, but remember that all you’re risking is a little embarrassment. How frightening will it be when your job prospects, your client’s money, or your client’s liberty is at stake? The way to reduce this fear is practice, which is what you’ll get by speaking in class. So please don’t ask me to exempt you from class participation, which is a requirement of this class. If speaking in public troubles you — as it troubles many people — you need to speak more, so as to overcome the fear.
We also often ask you to speak without advance notice, by calling randomly on you. This is not quite like practice, but it’s still helpful, because the possibility of being called on tends to focus students’ attention. In this class, I also try to make the experience easier for students by calling on two students at the same time. That way, if one student stumbles a little at the outset, the other can take the lead, and by the time I return to the first student, that student is likely to be ready to take up the challenge.
4. Habits and attitudes: So far, we’ve talked about knowledge and skills. But law school is also aimed at teaching you certain habits and attitudes that can help you succeed as a lawyer. Let me mention a few, which are closely tied to what we’ve said before.
a. Think dispassionately, and always examine the other side of the argument. You can’t be good at making arguments (caselaw arguments, statutory construction arguments, or policy arguments) if you aren’t willing to step away from your ideological and even moral commitments, and see the best argument that can be made on both sides.
You might think that big companies routinely profit by injuring consumers, that products liability law should be more plaintiff-friendly than it is, and that nearly all tort defendants are morally culpable. Or you might think that plaintiff’s medical malpractice lawyers are low-lifes who are ruining the lives and reputations of innocent doctors, and making good medical care much more expensive. You might be right, on either or both of these scores. But you can’t be an effective advocate for your perspective if you don’t fully grasp the strongest version of the other side’s arguments, and objectively see the possible weaknesses in yours.
Sometimes as a lawyer you’ll be obligated to argue in court for a position you disagree with. But even if you always argue for the side you believe in, you need to have earlier — in your head or in conversations with your colleagues — made the best argument for the other side. Don’t ignore your passions; they can energize you to work more effectively, and can help you derive satisfaction from your work. But don’t let them blind you.
In particular, you’ll often be called on in class to argue a particular position, even if you don’t believe in it, or sometimes even to argue against the very point you had just made. Don’t resist. Rather, cherish the opportunity to cultivate this important lawyerly habit.
b. Marry the abstract arguments and the concrete arguments. Effective legal arguments tie abstract rules to the concrete facts of a particular case. It’s not enough to present the concrete facts; however emotionally appealing the facts may be, you can’t persuade a court to give your client what your client wants unless you explain how the facts fit within a legal rule. But in my experience, most law students (and many lawyers) are good at pointing to legal rules — or to broad philosophical abstractions — but not as good at explaining why those rules or abstractions apply in this particular context.
For a concrete illustration of this, see the policy argument discussion at p. S8.
So keep in mind that this class is about learning many different things. If a class session is light on the legal rules, it may be heavy on the policy arguments. If we spend a lot of time with one doctrinal question that only rarely comes up in practice, the reason might be that we’re using it to study some broader principle, which comes up all the time. My hope is that by the time the semester is over, you will have learned a lot on all these topics.