Tuesday, February 6, 2024
Every first-year law student knows (or should know) the terms “actual cause” and “proximate cause.” In a tort claim for negligence, a plaintiff must prove actual cause, that the plaintiff's injury would not have occurred but for the defendant's negligence. A plaintiff must also show proximate cause, that the injury was the foreseeable consequence of the defendant's negligence. But when underperforming1 students try to figure out why they received unwelcome grades, they often forget the nooks and crannies of causation, leading them to bad decisions.
What do I mean?
When the Registrar enrolls students in my second-semester class for those in the bottom 20% of their section, I send them a questionnaire that prompts them to think deeply about why they underperformed. I then construct the first individual meeting with each student around those responses so that we can build an improved learning plan. Students' answers often make a major mistake: they assume that a bad breakup, bad roommate situation, or serious illness was the only factor involved. In doing so, they rationalize that the results are extrinsic to themselves, unrelated to effort or not-yet-developed skills, and conclude that change is unnecessary. After all, now that the outside problems are gone (hopefully), the grades will magically improve, right?
These students are ignoring the tort concepts of concurrent causes, sufficient combined causes, and apportionment. Concurrent causes are those where an injury results from two separate acts. The classic example is when the construction worker leaves a maintenance hole cover open, a driver collides with the pedestrian plaintiff, and the plaintiff suffers injuries both from the collision and falling through the maintenance hole. Sufficient combined causes are those where two separate acts combine to cause an injury. The classic example here is two farmers separately lighting fires that combine to burn down another farmer's barn and either of the fires could have produced the same result. Lastly, apportionment examines the relative blameworthiness of multiple actors to assign damages based on each actor's contribution to the injury.
The student focusing solely on outside factors instead of examining other possible causes ignores the role of the driver and seeks to blame only the construction worker. The student also ignores Farmer #2, seeking redress only from Farmer #1 whose impact might have been equal to or less than that of Farmer #2. By ascribing causation only to one factor rather than to concurrent or sufficient combined causes, the student then attempts to apportion damages only to the external circumstances and not to the internal ones, such as using a suboptimal learning plan, inefficiency during the semester, neglecting to develop analytical skills, or expending insufficient effort.
It is incumbent on academic support faculty to encourage students to explore these issues. Maybe the "minuses" on those C's were due to the outside factor but the original drop from A to C occurred because the student merely read for class and nothing more. True, maybe the student is correct that the outside situation was indeed the sole cause of the underperformance. But I counsel that student that we should rather be safe than sorry and assume that changes are necessary. These changes might include a stronger learning plan, better exam prep methods, and/ or more hours devoted to law school.
This message acknowledges the psychology at play. Arriving at the conclusion that internal causes contributed to the underperformance is uncomfortable. Attributing the blame to external causes rationalizes the result as something DONE to the student rather than something they DID. This is all normal. But posing the solution as "let's make changes just to be safe rather than sorry," accounts for this psychology but also fosters the necessary consideration of concurrent causes, sufficient combined causes, and apportionment.
Louis Schulze (FIU Law)
1 I use this term instead of less helpful ones, such as "your bad grades," "your weak GPA," or "flunking out." I choose words carefully, having developed an almost Orwellian set of phrases that communicate a lack of judgment. The commonly used but dispiriting terms imply some form of wrongness or personal deficiency that may be unwarranted. By contrast, "underperforming" recognizes that the performance is not ideal but suggests that the student is capable of doing better. This gives them hope that they can improve instead of suggesting that their grades reflect a permanent condition attributable to something wrong with them. Other terms I avoid, for various reasons, include: "remedial class," "tutoring," and "failed the bar."