MBE Strategies Tip #1 – Torts

Answer to Torts Question:

A common mistake in Torts MBE questions: Students forget that just because there is a “really guilty” party does preclude a person from suing the “less guilty” party.
Here is our analysis of this Torts question:

Subject: Torts

Legal Issue: Is the friend liable for negligence?

Legal Rule and Analysis: The elements of negligence are: duty, breach, cause and harm. You need all four elements to prevail.

• Did the friend have a duty to watch the laptop? Yes, because he volunteered to and the law student relied on him. (Normally one does not have a duty to watch the items of others, but reliance created the duty.)
• Did the friend breach his duty? Yes, when he got up to fill the coffee mug.
• Was the breach an actual cause of the harm? Likely yes, since the laptop likely would not have been stolen had the friend been watching it.
• Was the breach a proximate cause of the harm? Likely yes. This is the exact kind of foreseeable harm that comes with leaving a laptop unattended in a high crime area. Ask yourself, “When you see what the friend is doing to breach his duty, what are you worried will happen?” Pretend you are watching a movie and pause the movie as soon as you see the breach occurring. What would you predict would happen as soon as you saw the friend leave the computer unattended? You would likely predict the theft of the laptop! (Note: It doesn’t matter if the law student could sue the thief too – he can technically go after both the friend and the thief (but only recover once).
• Was there harm? Yes. The harm is the value of the laptop.

Conclusion:  Yes, the friend is liable. The friend had a duty and breached it. (D) is therefore the correct answer.

(A) is incorrect. The friend did have a duty to watch the laptop computer. This duty was created when the friend agreed to keep an eye on the computer.

(B) is incorrect. The friend’s breach of duty was the proximate cause of the harm suffered because this is the exact type of harm that one would worry would occur if the computer was left unattended in a high-crime area.

(C) is incorrect. The law student does not have to try to recover from the thief first. He can seek damages from his friend based on the friend’s negligence.

Answering a question slowly and methodically like this (i.e., by forcing yourself to identify the issue, rule, analysis, etc.) can be extremely helpful for the following reasons:

First, by answering them slowly you will be truly thinking through the answer. When you see this issue again, you will not have to spend all of this time thinking about it since you have already put a lot of time, thought, and energy into it. You will just know it!  (I call this “prethinking” about answers to questions!)

Second of all, when you answer them slowly, paradoxically, you will speed up! Again, this is because you will not have to spend as much time on the question if you have already spent a lot of time dissecting the issues. (Timed exams are always a good idea, but slowing down can truly be key to speeding up!)

This is why many researchers do not advise students to answer 30 or 50 or 100 questions a day. Many MBE researchers advise students to answer six questions a day (and say that it should take students an hour to do them!) We do not quite advise six, but their point is well-taken. If you do less questions, but do them right, you will see your score increase.

So instead of quickly answering 50 questions a day and then checking your answer for all 50, our tip today is to try answering questions one-by-one, slowly and methodically. (This is not to say there is something wrong with answering questions in a timed setting–indeed you will need to! But slowing down is key to improving.