I’ve often used the old school grading system in my trials in several ways. When I went to school the grades were A, B, C, D & F. Of course, there were grade variations such as B+ or B- as well, but those were the basic grades. I’ve used this as an analogy to the conduct of the defendant. "Should the defendant get a passing grade for their conduct? What grade does this defendant deserve for the effort made to exercise the duty of care?" I’ve used it as a contributory negligence or comparative negligence analogy as well. "Joe, here, isn’t required to be an A student or even a B student. All he has to do is get a passing grade. But, these defendants are claiming he has to be perfect. Pass with a 100% grade and that’s not the law." I’ve used it in cross examination of a defense expert. For example, in a medical negligence case "If this were a medical school exam test, just what grade would you give the defendant doctor for their conduct? An A? A B? A C? or a failing grade? Jurors understand grading systems and seem to respond to this kind of approach.
Now, the New York Times reports that the Mount Olive, New Jersey school district as decided to eliminate the D grade completely. You either get an A, B or C or you fail with an F, period. The superintendent says:
"D-s re simply not useful in society. It’s a throwaway grade. No one wants to hire a D-anything, so why would we have D students and give them credit for it?
It seems to me this is a helpful example for adaption of the approach I’ve described above. One can argue that if you fail to meet the standard of care which is average anything less then that is a total and complete failure. You either exercise ordinary care and above or you have failed to do so. Close doesn’t count and you are as responsible for your less then average conduct as if you failed completely.
The school district policy may offer new ways of applying this established analogy for trial lawyers. Give it some thought.