In previous posts, I have discussed reasons why students underperform in law school. Sometimes underperformance arises out of outside issues, misunderstanding how law school learning works, insufficient time dedicated to law school, or a mix of these and other factors. This post introduces the “Plaintiff Must Always Win” Syndrome.
When I review underperforming students’ Fall 1L exams with them in early January, I often see essays that conclude that each of the plaintiffs’ claims is successful. Sometimes altogether ignoring facts in favor of the defendant or employing tortured logic, these essays artificially go out of their way to get the plaintiff in front of the jury.
Of course, this ends up costing students points because ignoring facts suggesting self-defense undermines the quality of the analysis of a battery claim. The professor’s grading rubric (or gestalt-ish grading feeling) no doubt allocates points towards the self-defense argument, and the failure to spot that issue puts students behind others who analyzed the issue.
Why do students do this?
As a few students have explained, they mistakenly believe that a professor would not put a claim in an exam if it was not successful. If they did, they reason, how could one possibly analyze the absence of something? This would be like asking for visual proof of a black hole.
Those of us who work with underperforming students can help them fix this problem fairly easily; by simply telling students to analyze reasonable “loser” issues as well as winners. Just explaining that professors are looking for analysis and not merely answers seems to clarify the broad scope of what should end up in an essay response.
But that all begs the question about how far they should go. What is the line between loser issues for which points are available and non-issues? This is tricky, but I suggest two broad guidelines.
First, I encourage students to ask whether the proposed issue is one that a competent lawyer might genuinely raise in litigation. Is it even marginally legitimate? Is it at least plausible, such that an opposing lawyer should be prepared to rebut it if raised?
Second, I stress the concept of the straw man logical fallacy. Logical fallacies are arguments that seem on their face to refute an idea but which are patently invalid. They occur when the opponent of a proposition refutes not the actual proposition but a watered-down, exaggerated, or wholly manufactured version of the proposition that the proponent actually made.
I use this idea to show students which arguments they should not make. Let's say that a Criminal Law exam tests actus reus with a fact pattern where defendant lifeguard sits and watches a person drown in the pool they are guarding. If the student analyzes actus reus by omission, whether a failure to act can be criminal, they would score points by noting that there is no general duty to render aid. The student would score further points by noting the exception to the rule, that those with contractual duties, including lifeguards, can be criminally liable when they fail to act. However, the student would not score points by analyzing whether the defendant's actions met the requirements of a voluntary affirmative act or were instead involuntary. Because the fact pattern does not implicate that issue, an argument by defendant on that point would constitute a straw man logical fallacy.
These are simple examples, but they help students understand that their future clients want answers only on their cases and not fictional ones conjured up to answer questions that do not exist.
