Author: Beau Baez

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law school academic success Study Technique

Deep Learning with Elaborative Interrogation

Elaborative Interrogation Exemplified with question mark in maze

The elaborative interrogation technique may sound like a spy how-to manual, but it is used to go beyond simply memorizing difficult concepts to understanding them. For example, you may be able to recite the three elements for res ipsa loquitur, but have no idea what they mean or how to apply them in a fact pattern. This method helps you remember and understand by having you ask how and why questions, thereby allowing you to see connections between the various concepts.

Compare and Contrast

As you use this technique you will compare and contrast ideas by asking how two concepts are similar and how they are different.

Let’s go back to our res ipsa loquitur example. You’ve memorized the three-part test for this concept and that is where most students stop. So when they get to the exam, they don’t do well because they really don’t understand how to apply res ipsa loquitur to get the maximum number of points.

In reality, these students learned how to recite a test that they did not truly understand.

Res Ipsa Loquitur Example

So step one is to connect res ipsa loquitur to what we do know. You might ask yourself, how does it connect to negligence? You then answer: it is connected to breach of duty.

Now go deeper. Ask yourself, how does res ipsa loquitur connect to breach of duty? It helps us determine if somebody breached their duty of care.

Go even deeper. Why do we need res ipsa loquitur? When the evidence against the defendant is circumstantial and not direct.

Don’t stop there; go deeper. What is circumstantial evidence? It is evidence that can be inferred from a fact that I know to be true. What is the effect of using res ipsa loquitur at trial?

Keep interrogating yourself and you will establish connections between interrelated concepts. Soon you will understand the concept better and expose gaps in your knowledge that will encourage you to do more research.

By the way, I strongly recommend that you go through this process in writing. It’s just too easy to skip steps or not see the gaps without writing it down or typing it out on your computer.

This technique will work very nicely with the Feynman technique, which I discussed in the episode “Learn Law Faster: The Feynman Technique.”

International Shoe v. Washington Example

Let’s try another example, this time using everybody’s favorite topic, civil procedure. You just read International Shoe v. Washington.

First questions: what is this case even about? How is it similar to Pennoyer v. Neff? How is it different from Pennoyer v. Neff?

Next questions: in real life, how does this case affect people? Do I still need personal jurisdiction after International Shoe?

More questions you could ask: what is personal jurisdiction? How does this case change personal jurisdiction?

See what we’re doing? We’re making multiple connections that will help you understand all the various aspects of the case.

Puzzle pieces held by hands demonstrating elaborative interrogation

Rationale

So why do you even need to use this technique? The reason you need it is because you don’t know what you don’t know. You need a process to move beyond knowledge to comprehension. By creating those connections between different concepts, you won’t be fooled by some strange fact pattern on exam day. Your professor sees those connections and will test you on your ability to see those connections, not on your ability to memorize a rule statement.

Don’t misunderstand me; you still need to memorize the rules–I recommend the Leitner box flashcard method. But law school exams require you to move beyond memorization into analysis—the kind of analysis that is only possible if you truly understand the material. For an interesting article on how students learn, check out this article on how students learn. Also, if you need help, you may want to look into working with a law school tutor.

 

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Classroom

Cold Calling Survival Tips

Scared woman at being cold called in class

Cold calling is a technique used by professors to randomly call on students during class and ask them questions about the assigned reading. Though fear is not the best motivator, it does remain an effective tool in the teacher’s arsenal. Questions can deal with assigned cases, including the facts, procedure, policy, law, or the dissenting opinions. Professors also might ask hypothetical questions, forcing you to apply new facts to the law you are learning.  Here is an article on the pros and cons of cold calling.

Reasons for Cold Calling

There are several rationales for cold calling. First is the rarely used boot camp approach. This is when the professor’s sole purpose is to keep asking you questions until you get a question wrong. As in boot camp, the professor will destroy you so that you can be rebuilt.

Second, cold calling is a means to ensure that you have read the material. This type of professor may call on many people during each class and ask each student a question or two.

Third, a professor might want to keep everyone engaged, so they ask questions to ensure that everyone has a chance to talk.

Fourth, some professors take a more practical, skills-based approach, asking questions so that you get used to thinking on your feet—a skill that will help you in the courtroom.

Cold Calling Survival Tips

Large courtroom to illustrate need for cold calling skillsLet’s move on to some tips you can use to survive the cold call.

Tip 1

One, be prepared. This means reading the assigned materials and preparing a short case brief. But make sure you prepare the right kind of case brief as I describe in my episode on “How to Brief a Case.”

Tip 2

Two, if you don’t understand the question, ask the professor to rephrase the question. Sometimes the professor asks the question in a way that just doesn’t make sense. Also, if the question is confusing, you can rephrase it and verify that is what the professor is looking for.

Tip 3

Three, if the professor starts to move to another student before you’ve answered the question, tell the professor that you are prepared but you just need another minute to think about it.

Tip 4

Four, act with confidence. Students that fumble around and act like they are not prepared, even when they are, will be perceived as not being prepared. Also the professor is likely to give the confident student the benefit of the doubt when you provide a wrong or so-so answer.

Tip 5

Five, relax and trust yourself. Many students crash and burn because they are nervous. I’ve had dozens of students come to me after class, telling me that they knew the answers but were afraid to answer the question for fear of getting it wrong. It is better to go down in flames than to never have tried at all.

Tip 6

Six, show your professor respect, as professors tend to have huge egos. When I was a student, I was in class with an older student who had real-life experience in the area we were covering. The student told the professor that a question he had just asked was stupid and it would never happen in the real world. The professor got furious, and I thought there was going to be a fist fight. If you show disrespect, you may find the professor asking questions designed to humiliate you.

Tip 7

Seven, stay on target. By this I mean answer the question you were asked and don’t go off on any rabbit trails.

And finally, admit when you are not prepared. When a student can’t answer my question, I ask them more questions to determine if they are unprepared. This may go on for a few minutes, which can be painful for everyone in the class, including you. By the way, some professors will keep asking questions as a way to humiliate the unprepared student. Take your medicine, move on.

Unprepared

Consequences for not being prepared can include shaming, being marked absent, a lower course grade, being thrown out of class, humiliation, and continued cold calling by the professor throughout the semester. If there is a grade reduction possibility, that should be posted in the syllabus.

If you need help with cold calling, our tutors are available to help.

 

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Essay Exam Exam Preparation Study Technique

How to Make a Law School Outline

Coffee and notepad for making a law school outline

Do you need to learn how to make a law school outline? Your outline is, nothing more and nothing less, than your blueprint for doing well on the exam. This means understanding law school exam grading, which I cover in detail in the episode called Law School Exam Grading.

First, let’s discuss what you should NOT do when creating a law school outline. A mistake that many law students make is to take their class notes, rearrange them a bit, and then place them into their outline. That is not an outline, but rather a rearranged set of notes.

Also, do NOT include facts from cases discussed in class. The only thing you need from cases discussed in class are the rules from those cases.

So now let’s talk about what should go into an outline. The first thing you need is a framework for the course. I recommend that you take the table of contents from your assigned book, or the course syllabus, and use that as a starting point. You might change the format as you go along, but you need to have something to get you going.

The Rules

Second, place the rules that you learned into the outline. The rules and exceptions to the rules need to be as concise as possible, and written in your own words. For example, suppose you have a case from 1894 and the case states the rule as follows: the wrong inflicted, when the defendant so did with intent, and with force that contacted the victim’s person, must result in adequate compensation for that injury. Now let’s take that archaic language and write something like this: A defendant’s intentional action will result in the defendant paying for all damages. So see what I did there? I took that old language, rearranged it, and turned it into something that we can understand today. Generally, law school exams will only test you on the black letter law.

Third, if the professor tells you, or strongly hints that something is going to be on the exam, then make a note of that in your law school outline.

Fourth, if you know your professor will test you on policy, place the policy arguments in the outline. More on what to transfer from your class notes in the episode “Taking Notes in Law School: The Content.”

Fifth, think about the size of your outline. Since the outline is the primary tool you’ll be using to crush your final, it must be useable. This means short and to the point rule statements that you can use on the exam. Think about it. You will remember a 15-word rule statement a lot better than a 22-word rule statement. This article provides a good example of what an outline could look like.

When to Look at Another Outline

Finally, when you have worked as hard as you can and you believe you have the perfect law school outline, then, and only then, look at an outline that someone else created. As I noted in my last episode, “Why Create Your Own Law School Outlines,” it is critically important that you first work on the outline by yourself because that will help you learn the law better. When you see the differences in the two outlines, don’t just make the changes. Think about the differences. Ask yourself, why is there a difference? You may find that your outline that you wrote is better in a particular area, or, you may find that you missed something. Once you’ve discovered your errors, go back and find out why you made those errors as that will reveal gaps in your knowledge, and potentially in your understanding of the law. If you stop and reflect, you will learn the law in a way that will help you get a higher score on the exam.

Those who rely solely, or heavily, on commercial outlines created by others create the illusion that they know the law. But they are failing to make the connections that are necessary to get high grades.

Categories
Study Technique Time Management

How to Remember Better

Finger on brain, helping to remember better

If you want to improve your memory and remember better, try the spacing effect. The spacing effect is a scientifically documented phenomenon where people learn better when they learn material over time. The opposite of spaced presentation is massed presentation, which we call cramming. Many students wait till a week or two before the exam to really begin studying. And then spend the night before the exam reading the material over and over again. Though cramming works up to a point, studies confirm that students who use spaced repetition outperform those that cram. By the way, if you cram the night before an exam, you might want to watch my episode 10 Exam Day Tips.

In legal education, spaced learning is extremely important because of the bar exam. In college you could take a course and never again be tested on the date that Rome fell or on the innerworkings of a cell. But the material in your first semester of law school will be tested again on the bar exam. By studying the material throughout the semester, not only will you do better on the final but you will also perform better on the bar exam.

How to Remember Better

You are probably asking, “How do I do this?” One technique for incorporating spaced repetition is through the use of Leitner boxes, which I describe in detail in my post on memorizing information.  This flashcard technique incorporates spaced learning into your daily study routine. You create four boxes, or stacks of cards if you don’t have actual boxes. Then you regularly look at the flashcards reviewing information you don’t know well often, and information that you’ve mastered less often. This technique has been proven to reduce the overall amount of time you study.

Wrist watch to help remember better over timeIn 1885, German psychologist Julius Ebbinghaus published his work called “On Memory.” For the first time in history, he quantified how quickly we forget by charting the “forgetting curve.” The most drastic forgetting occurs within the first hour and then begins to level off after one day. The good news is that you can benefit from Ebbinghaus’ breakthrough study. Given the rapid decline in our memory, the optimal time to review information is within the first 24 hours of first learning it. If you review your notes within 24 hours after class, you will make a stronger mental connection to that knowledge. This will help keep it in your memory longer. By repeating this process, not only will you retain the knowledge for the final, but also for the bar exam. For additional interesting information on how memory works, here is an article on long term memory retention.

Bart & Lisa

Let me end with a short apocryphal story. Bart and Lisa were both in the same Torts class, each struggling to understand proximate cause. On the final exam, both got an A on the proximate cause question. But Bart spent 20 hours learning the concept while Lisa spent 15 hours on it. Lisa was able to accomplish this by starting earlier in the semester using spaced repetition. Bart waited until two weeks before the final and then he crammed. Three years later, Lisa quickly picked up proximate cause while Bart spent hours relearning it.

The moral of the story is this: if you start studying right after class, and keep reviewing up to the final, you will take less overall time mastering the material and retain it in long-term memory. Cramming may help, but in the long run it won’t help you remember better.

 

Categories
Essay Exam law school academic success

Black Letter Law

Black letter law with know the rules on chalkboard

What do professors mean when they say you need to know black letter law, or hornbook law? Black letter laws are the legal rules and principles that are so well accepted across the country that there is no longer any basic disagreement as to what they are. But keep in mind many states have slight variations on how they articulate the rules. Also, states may define certain key terms slightly differently. So when you become a lawyer, or if a professor asks for a certain state’s rule, make sure that you use the variation in your state.

With that slight caveat, no one would dispute, for example, that a tortious battery requires the intentional harmful or offensive contact of another. That is black letter law, as noted in my book on the intentional torts.

Law School Exams

Almost all law professors will require you to learn black letter law for exam purposes. This is because law schools, except in Louisiana and Puerto Rico, are preparing you to practice anywhere in the country. Also, the uniform portions of the bar exam will test you on these rules.

Many of you are wondering where to find these black letter rules. As I mentioned earlier, these rules are also called hornbook rules because you can find them in hornbooks. A hornbook is a book that attempts to capture the most important rules in a single area of law. Some examples include Criminal Law by LaFave, Torts by Dobbs, and Contracts by Perillo. The hornbook writers are able to determine the black letter law by reading cases and legislation from all fifty states, and then distilling them down into a single volume of law.

I do not recommend that students purchase hornbooks because they provide too much information for the typical student. One reason why the hornbooks are so big is because they have extensive footnotes to many cases and legislative enactments. I do recommend that you consider buying concise hornbooks, which condense hornbooks into a more readable size, for example, from 1,000 pages to 250 or 300 pages. For years I assigned concise hornbooks, along with a casebook, as the concise hornbooks provide the most important rules without going into detail about more obscure rules or minority positions.

Bar Exam

Person preparing for bar exam studying the black letter lawIf you are preparing to take the bar exam, the bar prep companies do a decent job in providing you with the black letter law. They do this by distilling the law found in hornbooks into something more manageable. But the law doesn’t always have a clear majority rule amongst the states. In that case, you are unlikely to find those rules on the uniform portions of the bar exam. For a few tips on what not to do more bar exam tips, check out this video on what not to do on bar exam day.

Several years ago I noticed one of these unclear areas in tort law. So I called the National Conference of Bar Examiners, the group that creates the uniform bar exam. I was trying to figure out what rule they would use on the bar exam for that issue. I was told that they don’t test these areas because there is no broad agreement on the rule.

Dissents

Finally, keep in mind that your casebook will have a mix of black letter law and minority positions. This is done for various reasons, such as helping students see two sides of a legal problem or to provide you with a historical progression of a rule. In the words of Charles Evans Hughes: “ A dissent . . . is an appeal . . . to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed . . . .” This article on dissents is lengthy but a good discussion on the importance of dissenting opinions.

 

Categories
law school academic success Physical

How the Brain Benefits from Exercise

Brain benefits from exercise as woman exercises a brain by her leg

Recent studies indicate that the brain benefits from exercise. We all know we need to exercise!  And we all know that there are physical health benefits from exercising. But did you know that exercise will help you in the classroom and while studying, as well? While reading Spark: The Revolutionary New Science of Exercise and the Brain, written by Harvard professor John Ratey, M.D., I discovered that modern science is confirming what the ancients understood thousands of years ago. Dr. Ratey begins by quoting from Plato’s Republic:

Plato in bronzeIn order for man to succeed in life, God provided him with two means, education and physical activity. Not separately, one for the soul and the other for the body, but for the two together. With these two means, man can attain perfection.

-Plato, Republic, Book 3, 411e

Dr. Ratey makes the startling claim that exercise has the primary effect of improving brain function, and secondarily, cardio vascular and muscle improvement. In one long-running experiment at an Illinois high school, physical fitness was incorporated into the curriculum. The result was a 17% increase in reading and comprehension. Do you know how many teachers would kill to see that kind of improvement?! At the same high school, students took an international math and science test, in which the Asian countries typically outperform the rest of the world. The students at this American high school came in first place for science and sixth place for math, in the entire world. Not bad for a world-wide competition! This and many other studies demonstrate a strong connection between physical fitness and academic achievement.

Additional Benefits

In addition to academic achievement, studies have found other beneficial results. People who exercise can lower depression, reduce violence, and help increase focus for those with attention disorders. (Researchers in this article state, “Health experts often remark that if exercise came in pill form it would be the most sought-after drug on the market.”) For example, one inner city school that added a physical fitness component to their curriculum saw a significant decrease in fighting. By the way, these studies have been replicated at schools in more financially stable neighborhoods as well as disadvantaged neighborhoods. In other words, regardless of your socio-economic condition or current class standing, you should see an improvement in your academic results by incorporating exercise into your routine.

What You Can Do

Brain and heart on a board, showing how exercise benefits the brainSo what can you do to achieve some of these results? First, you need to get your heart rate up to 80-90% of its potential based on your age group. You can check this heart rate calculator to help you determine what is right for you, keeping in mind that you should discuss this with your doctor before embarking on a new physical exercise routine.

Second, doing exercise in the morning has a positive effect on your learning all day long.

Third, for maximum effect, work on your most difficult material right after you exercise. Time is of the essence here, so bring something with you and read it before you shower. The longer you wait after exercising to study, the less effective it will be.

Fourth, more complex exercise provides even more benefits than something like running. I suppose if you can find someone to do ballroom dancing with in the morning, that would be the most effective. Though, I’m not sure how many of us want to get up at 6 am to do the salsa or tango!

Finding Time

Now, some of you are thinking, sounds great, but I just don’t have time to exercise. So here’s my question to you: with a potential 20% increase in your scores, do you really have the time to NOT exercise? You will also find that exercise can help break mental roadblocks.

My recommendation is to start easy and at times that work with your schedule. Early morning may not work for you so try afternoon or evening. Going to the gym every day may be ambitious at the beginning, so start with exercising two days a week. The key is just to start and then gradually make it a habit. Also, make sure to study your most challenging material right after your workout for maximum learning. Also, check out this video on how to get through challenging material for even more ideas.

 

Categories
Classroom law school academic success Study Technique

8 Tips for Staying Awake and Engaged in Class

Bored student having problem staying engaged and awake in class

Here are 8 tips when you need help staying awake and engaged in class when you are zoning out, spacing out, distracted, daydreaming, or flat-out falling asleep! These are all real issues that every student faces. If you are having problems outside of class, you may want to learn how to use  mindfulness to improve concentration. Here are a few ideas to teach you how to pull your attention back to the important material being discussed in class.

Tip 1

One, turn off all electronic devices and put them away. Put your cell phone in a locker, the front of the room, keep it away from you so you’re not tempted. Recent studies show multitasking is ineffective. You do your best when you focus on one thing at a time. Electronics pull your attention away from the discussion and you might miss important information.

Tip 2

Two, sit as close to the front on the classroom as possible. Students who sit at the front score higher on tests for many reasons. There are fewer distractions from others, the material on the board is easier to read, and it is harder to fall asleep when you’re closer to the professor. Also, sound begins to dissipate at 8-12 feet away; so if you are beyond that range, your ability to understand is more difficult. Finally, those in the front are making a public commitment to learning, which actually results in more learning.

Tip 3

Three, recognizing that daydreaming happens to all of us, use a few strategies to get back on “To Do” list and then get back to paying attention. A second technique is to visualize you and your professor are in a one-on-one conversation. Focus on his or her eye, body language, and facial expressions just like you would in a one-on-one meeting.

Tip 4

Four, defer judgment. When you disagree with something that was said, write it down, mark it with a big “D”, then spend some time after class reflecting on the disagreement rather than focusing on it during class. Dwelling on it through the rest of the class is just going to take you away from the class and you are not going to be engaged with the discussion.

Raised hands for staying awake in class

Tip 5

Five, participate. If your professor asks for volunteers, then occasionally raise your hand. I know, I know. Most of you don’t want to be “that student” that is constantly raising their hand to hear themselves talk. But decide to raise your hand every other class or once per class. Regardless of whether you are speaking aloud or not, you should always be answering the professor’s questions in your mind.

Tip 6

Six, on days when you are really finding it hard to stay engaged, write your goals at the top of your notes. For example, your goal might be to get on Law Review. It might be to keep your scholarship money or just to make it through school. Write it at the top of the page as a reminder of why paying attention is important for you. This gives you a reward, something to look forward to for paying attention. Also, make sure you are taking notes the right way.

Tip 7

Seven, ignore the professor’s lecture style. Maybe your professor says “um” all the time and you start counting the number of times he or she says it. Don’t do that! You are missing the content of the class. If your professor rambles, mark down where you started getting confused and use that as a tool to organize your notes after class. You are going to learn the class better anyway if you do the organization yourself.

Tip 8

Finally, engage in active note-writing. This means listening and then capturing the important thoughts being discussed, though not a verbatim transcript. For example, perhaps the professor uses a hypothetical. Rather than capturing every single word, listen to the hypothetical, answer it in your mind, and then capture some ideas from the hypo. So your notes might go something like this: “hypo dealing with adverse possession and whether car parked on neighbor’s property once a week qualifies, NO!” There you go! You have the essence of the hypothetical and your answer. By the way, a verbatim transcript of class, which will keep you awake, will result in less learning, not more learning. You may wan to learn check out my video on handwriting vs typing notes during class.

 

 

Categories
Study Technique Time Management

Akrasia: How to Overcome Procrastination

Procrastination on an iphone with a computer

Procrastination

What’s the most creative excuse you’ve used for your procrastination? There is the usual: Facebook, surfing the net, checking your phone. Successful people do better because they put the important things, like studying, first and avoid the unimportant, like watching that 10,000th cat video.

Akrasia

Socrates called this problem akrasia, which is when someone acts against their better judgment. In the Bible, some English translations use the word self-indulgent. Regardless of the translation, the idea is that you know what is best for you and instead you do something else. For an easy-to-read article on why we procrastinate, read this article 0n procrastination.

100 Mile Hike

Last year I decided that I wanted to go on a two-week hike with the Boy Scouts at the Philmont Camp in New Mexico. But I had a problem: I needed to lose 75 pounds to be eligible to go. Over the course of 18 months, I experienced akrasia numerous times by indulging in several pizza buffets or eating ice cream. Each time I deviated, I knew I was hurting my chances to go on the hike.

I am glad to report I reached my goal and completed the entire two-week, 100 mile hike! To see how tan I got on this hike, and for some lessons I learned that apply to law school, check out my video on tips from hiking you can use in law school.

Tip #1

You need a commitment reminder system. I began doing this years ago by using a day planner. If you haven’t used one, this is a paper calendaring system where you place your activities into a schedule. Today you can  do this with any calendar app, or if you want something a little bit different there is an app called BeeMinder. This app allows you to track any goal that can be measured by numbers. For example, you may want to spend 60 minutes a day studying for Constitutional Law. BeeMinder will send you reminders, where you can input your commitment into the app.credit card use to stop procrastination But here’s the twist: the first time you don’t meet your goal, BeeMinder will ask you for a credit card. And if you get off track a second time, BeeMinder will charge you five dollars. By having a disincentive to lose five dollars, you are more likely to keep your commitment.

Tip #2

A second approach is for you to use short-term rewards to help you defeat akrasia. The part of teaching that I hate is grading exams. To force myself to grade, I place all the exams in stacks of five. When I grade five, I then have permission to go do something else, like get some coffee or talk to a colleague. Think about short-term rewards that will work for you. Maybe that means Facebook for five minutes or eating a chocolate kiss. Keep in mind that these have to be short-term rewards rather than long-term rewards. If you know that that 5 minute Facebook break will turn into a 60 minute Facebook break, then you should think about doing something else like going for a short walk. Exercise is a great way to get your blood flowing, which in turn helps you focus and retain information better. Watch this video on how the brain benefits from exercise if you want to learn more.

For more ideas, here are 10 more tips for overcoming procrastination. One good book you may want to read is Procrastination: Why You Do It and What to Do About it Now by Da Capo. If you need help with your procrastination, reach out to our tutors and let us help you overcome this bad habit.

 

 

Categories
Torts

Trespass to Land

No trespassing sign for trespass to land

Trespass to Land may seem unimportant, but let it serve as a reminder to all you 3Ls that you need to be reviewing early to prepare for the bar exam. And for the 1Ls and 2Ls, why not quiz yourself to see if you actually remember the four elements of this tort.  To review what you covered during your first few weeks of Torts, considering watching a video on the six intentional torts.

Definition

Trespass to land occurs when someone has the intent to enter the land in possession of another. The four elements of the tort trespass to land are intent, enter, land, and possession.

To meet the element of intent, the defendant must either desire or know to a substantial certainty that they will interfere with another’s right of possession. For example, Duffy is rushing home and decides to run though Neighbor’s yard as a short cut. Duffy has the requisite intent. Keep in mind that an honest but mistaken belief as to the ownership of the property is irrelevant, so long as there is the intent to enter the land of another.

Baseball glove demo of trespass to landThe next element is to enter. The entering of another’s land results in trespass to land, including a single footstep that results in no actual damages. Entering can occur when: (1) a person enters the land; (2) a person refuses to leave the land after he was invited onto the land; (3) a person causes another person to enter the land; (4) a person causes an object to enter the land; or (5) a person fails to remove his personal property from the land.

Land is defined as the ground, the air space above the ground, and the material beneath the ground. It also includes anything attached to the land. Examples of things attached to the land include buildings, trees, or flag poles.

Possession means that the property must be in the lawful possession of another person.

To recap, trespass to land occurs when someone has the intent to enter the land in possession.

Outline

When you create an outline for Trespass to Land it should look something like this:

Trespass to Land

  1. Intent: the defendant must either desire or know to a substantial certainty that he or she will interfere with another’s right of possession.
    1. An honest but mistaken belief as to the ownership of the property is irrelevant, so long as there is intent to enter the land of another.
  2. Enter: entering of another’s land
    1. enters the land,
    2. refuses to leave the land after he or she was invited onto the land,
    3. causes another person to enter the land,
    4. causes an object to enter the land, OR
    5. fails to remove his personal property from the land
  3. Land: ground, airspace above the ground, and material beneath the ground
    1. Could also be anything attached to the land (buildings, trees, flag poles, etc.)
  4. Possession: the property is in the lawful possession of another person.

Trespass to Land Resources

Don’t forget to check out my ebook on the intentional torts. And if you really want to challenge yourself, try out some of the free exam questions that I used in actual law school exams.

If you’re interested in some of the remedies available for the plaintiff when recovering from the trespass to land, here is an article on trespass to land remedies.

Categories
Torts

Intentional Torts

Intentional torts checklist

If you are a first semester law student taking a midterm exam, intentional torts are likely on the exam. This means you will likely see some questions on Intentional Torts. In this blog post I will help break down what you should write about on an essay exam. Also, what to keep in mind on a multiple choice question.

Intentional Torts

These six torts require an intentional act directed at a victim or a victim’s property. Intent in this context requires that the wrongdoer either committed the act on purpose (or desired the outcome). A second way of establishing intent is when the wrongdoer knew to a substantial certainty that the result would occur. The intent requirement is different from the two other types of torts, negligence and strict liability.

Negligence and Strict Liability

Negligence focuses on the unreasonable conduct of the wrongdoer, while strict liability looks at certain activities that the law classifies under the strict category. For example, keepers of wild animals, products liability, or those that use explosives. For some interesting statistics, you may want to read about the different type of tort actions brought in the United States.

Once a plaintiff is successful in establishing that an intentional tort has occurred, the defendant can avoid liability by proving that there is an affirmative defense that applies. An affirmative defense is a legally recognized excuse for a person that committed the act to avoid liability. These defenses include consent, necessity, self-defense, defense of others, and defense of property.

Court gavel coming down intentional torts case

Damages

Once a jury determines that a person is guilty of committing a tort, the final step is for the jury to determine the amount of damages that should be awarded.  Tort law is very generous and attempts to place the victim back into the place they would have been if the injury had never occurred. This means that a plaintiff may recover all damages that are reasonably related to his or her injury.

Summary

The topics you could discuss on an intentional tort exam question:

  1. Intent: unless the essay indicates that intent is present, then you absolutely need to establish the intent element. Intent requires that the wrongdoer either committed the act on purpose, desired the outcome, or that the wrongdoer knew to a substantial certainty that the result would occur.
  2. Elements of the tort: this will depend on the tort. For example, here is a video on battery.
  3. Affirmative defense: a wrongdoer will argue this to avoid liability even though he or she did in fact commit the tort of which he or she is being accused. These defenses include:
    1. Consent
    2. Necessity
    3. Self Defense
    4. Defense of Others
    5. Defense of Property
  4. Damages: the jury will determine the plaintiff’s recovery. The general rule is that the plaintiff should receive an amount that will place them in the position he or she would have been if the injury had never occurred.

Good luck on those midterms!

For a better understanding of the intentional torts, you can check out our book on the intentional torts or our course: Introduction to the Intentional Torts. If you want something that is covers all of Torts, you will want to look at Understanding Torts by Diamond, Levine, and Bernstein.

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