A QUIZ DESIGNED TO DEMONSTRATE THAT KNOWING THE LAW ISN'T THE ONLY KEY TO PASSING.

Together, let's work through the following Torts mini fact pattern, thinking out loud:

On a cloudy, gloomy day, John, wearing gum-soled shoes, slowly snuck up behind Mary without making a sound, and hit her on the back of her neck. After doing so, John, a mean-looking man, just stood there.

Did John commit a Battery? Of course he did.

Was the touching "intentional"? "No facts indicate that John's striking was other than an intentional, volitional act." Not much thought on this element.

Was the touching "harmful"? Of course it was! Are you sure about that? Do we know how hard John hit Mary? If we don't know for sure, then we cannot conclude with certainty that the touching of Mary was harmful. Perhaps John did not hit Mary with very much force. Or, maybe he hit her with all of his might. But since we do not know for certain how hard John hit Mary, our analysis would have to be bifurcated: i.e., "If John hit Mary with all of his might, the touching of Mary was certainly harmful. If, however, John hit Mary with very little force, then the touching of Mary was not necessarily harmful."

Was the touching at least "offensive"? Few people would want to be hit from behind, don't you agree? Most people would find such an act offensive. On this fact, it does not matter how hard John hit Mary. All that matters is whether a reasonable person would find the touching offensive. Most unconsented touchings are offensive, no matter the force or lack thereof. If a man ever so slightly and purposefully grazed a woman's breast, it would certainly be offensive if unconsented, yes? Therefore, "John's touching of Mary, if not harmful, was likely offensive since most people do not want to be hit from behind without their consent."

Was the touching "without consent"? "Since John slowly snuck up behind Mary, we can reasonably infer that he did not have Mary's consent to hit her."

Was the touching "without privilege"? "Lastly, no facts indicate that John's striking of Mary was in self-defense, especially since John slowly snuck up behind Mary. Even if Mary had been the initial aggressor, John's privilege had passed since he struck Mary from behind in a deliberate and surprising fashion, which indicates that Mary, at that moment in time, did not pose a threat to John. Therefore, John should be found liable for Battery."

This is how you would need to think your way through the above Torts mini-fact pattern in order to write a superior response. Knowing the rule statement for Battery would not help you with the required thought process. Nor would having all of the elements memorized.

Let's continue.

Did John commit an Assault? No! Are you sure about that? Well, you're probably thinking Mary couldn't have seen John's menacing shadow approach her - it was a cloudy day after all, right? Mary couldn't have heard John sneak up behind her - John didn't make a sound, and he was wearing gum-soled shoes, right? Therefore, you are probably thinking, no way could Mary have been placed in apprehension of an imminent battery, right?
Actually, not necessarily.

Visualize the mini-fact pattern in your mind like a movie.

Think "reasonable inference".

Do not create facts, but make a "reasonable inference" to find an assault.

Would it be reasonable to assume that Mary turned around to look at who had just hit her? Would most people turn around if someone had just hit them from behind? Yes, they would.

So, then, if John, a mean-looking man was still standing there after having hit Mary from behind, would it be reasonable to assume that Mary, at that very moment, after turning around, was placed in apprehension of an imminent battery (i.e., placed in apprehension of being hit again, especially since John was so mean-looking)? Yes, it would certainly be reasonable to make such an inference.

Keep in mind, there is a significant difference between making a "reasonable inference" and "creating facts". An example of creating facts: "Since Mary went home and had nightmares that required psychiatric care, John should be found liable for Intentional Infliction of Emotional Distress." What?!?! Where did those facts come from?

The moral of this quiz? Legal knowledge, in and of itself, has little to do with the ability to think analytically and write analytically. At Barperfect, we do more than teach you black-letter law. We teach you how to think analytically. And we teach you how to write analytically. Our process involves the perfect blend of black-letter law and skill-enhancement activities. Our process prepares you for what the California bar exam really is: a problem-solving speed exam.