Lecture

Lecture for Legal Writing and Research 8/26/03 The American Legal System p.22 in Calleros US CONSTITUTION Legis Enacts the law Executive Enforces the law Judicial Case law Case law Interpret law Common law (State) California Cons. 1. Exec (governor) 2. Legis (Assembly + House) 3. Judicial The Court System 1) Trial Court – Fact finding court, 2) Court of Appeals – Issues of Law 3) Supreme Court – Law Federal System 1) U.S. Supreme Court 2) U.S. Court of Appeals (13 Circuits) 3) U.S. District Courts State System 1) California Supreme Court 2) California Court of Appeals (6 Districts) 3) California Superior Court (58, by county) Exercise It is unlawful for any person to sleep in the picnic-areas of a state owned park. Elements – Rule 1) Any Person 2) Is Sleep 3) In a Picnic Area 4) State-owned park State v. Matthews D is Matthews (22 year old white male). He is arrested at 2:30 am in the morning claiming to be a graduate student traveling for a year. Officer saw the D in a bad under a picnic table at Malibu-State Park. Officer saw his eyes closed and he was snoring. He observed the behavior for 5 min and then arrested the individual. 1) Person 2) He was not sleeping. Our client was cold and resting in his bag. He was meditating. Officer never said anything to him to determine his state. As for the snoring, just quiet down and listen in this courtroom today. Our client has palpatitis, a condition which causes his epiglottis to flap against the back of his throat. 3) He was not in a picnic area, there were no signs posted referring to the particular area as a picnic area. There was a table in the area but there is also a table in my dining room. A FEW WORDS ON THE BLUEBOOK Parallel Citations: 1) Not in federal court 2) Not when citing to an Out-of-State Court Opinion 3) Yes when, and only when, you are citing to an In-State opinion to a State Court; also review Local Rules Short Forms of Cases: Party Name, Vol. Reporter at Pg. 1) 2) 3) 4) 5) 6) Heading Issues/Questions Presented Brief Answers Statement of Facts Discussion (IRAC) Conclusion Outline – The Game Plan Issue a. Draft b. Read cases and brief them c. Re-Draft i. Be Fact specific ii. Concepts 1. More than a pecuniary loss; 2. Defendant knew of special/emotional circumstances of the contract Brief Answer a. Probably yes or no I. II. III. b. Brief statement of the rule i. Emotional distress damages allowd where the contract makes it foreseeable that the breach of contract will cause distress for reasons other than pecuniary losses c. The contract here meets/does not meet these requirements because. . . Facts (usually in chronological order) a. Introduce client and Quinceanera ceremony b. Contract c. Meeting with Udave d. The breach e. Consequences Issue: Is the supplier of gowns for a formal Quinceanera ceremony liable for the emotional distress caused by her breach of contract where the supplier most likely knew that her breach would cause distress for reasons other than pecuniary losses? LEGAL RESEARCH Start with secondary sources. p. 27 Law books are kept up to date with Supplements usually called pocket parts. Remember “Bieber” HeinOnline – helps citations Ask a reference librarian Printed versions of the federal code: USC, USCA, USCS CIS Mircofiche set – Reports and hearing of congress Congressional Universe (CIS) – Payson library 9/30/03 I. The Outline 1. OWN Outline – Review Calleros Ch. 8 pp. 135-145 a. Topic (Consequential Damages) i. Rule (no consequential damages in breach in K) 1. Rule Explanation (cases) ii. Exception One (ok when unrelated to pecuniary interests) 1. Explanation of exception II. The Exam 2. Taylor to Prof’s style 3. Don’t write, first issue spot and or outline 4. Now write, remember IRAC THE RESEARCH PLAN To figure out the “R” in IRAC Define the Issue Jurisdiction Define Search Terms o Secondary Sources  Treatises  Law Review Articles o Statutes and Annotated Codes o Cases (Federal Law is All in Statutes) o Digest Redefine the Issue Research Specific Statute/Cases      COURTS Trial Court – Facts Federal -- US District Courts, 3 in Cal Cal – Superior Court, 58 by county Court of Appeal – LAW Federal -- US Court of Appeals (13 circuits) Cal – Cal court of appeals (6 districts) Supreme Court – LAW Federal -- US Supreme Court Cal – Cal Supreme court ANATOMY OF A CASE WEST (Sloan pp. 78-79) Published v. Unpublished Opinions (only published is law, unpublished is persuasive) Judge decides (unless court of last resort) Judge sends it to publisher Editor pulls out the headnotes DIGEST  John West – Stationary salesman with a vision  Arranges and summarizes cases by category  West assigned a KEY NUMBER to each topic 5 KINDS OF DIGESTS  Federal  State (includes federal in that state)  Regional  Combined (all state and federal) How to use a digest, Sloan p. 105-113 HOW TO SEARCH ONLINE p. 304 has the terms and connectors for Westlaw and Lexis 1. Define the Issue (Does Calkins have a claim for NIED) 2. Jurisdiction 3. Define Search Terms and Start the Research a. Secondary Sources b. Constitution and Statutes and Annotated Codes c. Cases 4. Redefine the Issue 5. Research Specific Statute/Cases 6. Know when to stop Pick a case to analogize and to distinguish FOR THE FINAL KNOW Secondary Sources 7 Types 1. 2. 3. 4. 5. 6. 7. 8. Legal Encyclopedias Treatises Legal Periodicals and Law Reviews American Law Reporters Restatements Uniform laws and model acts Dictionaries Important California Secondary Sources Legal Encyclopedias – just like a normal encyclopedia, but it is not specific to jurisdiction. Examples – (1) Corpus Juris Secundom by West. It cites every relevant case so it is too much info but a good start. (2) American Jurisprudence 2 nd (Am. Jur. 2d) Treatises – a bunch of books. Examples (1) E. Allen Farnsworth, Contracts. (2) Oscar S. Gray, et. At, The Law of Torts, 2d Ed. (Sloan at 33-34). (3) Hornbooks. (4) Nutshells Legal Periodicals and Law Reviews – Scholarly articles in Law Reviews or Law Journals, footnotes. Examples (1) most common listed in Bluebook, T14. (2) Also listed on Westlaw and LexisNexis. Legal Periodicals are newspapers. Examples (1) Legal Times. (2) National Law Journal. (3) The American Lawyer, kind of like a tabloid. (4) The California Daily Journal. American Law Reports – Summary of cases from a variety of jurisdictions, Six Series but stick to series 3 and later. Restatements – restatements of the common-law rules, published by the American Law Institute. Examples (1) Contracts, Torts (Sloan at 43). Uniform Laws and Model Acts – Proposed statutes that can be adopted by the legislature. Examples (1) Uniform Commercial Code. (2) Model Penal Code Dictionaries – learning vocabulary. Examples (1) Black’s Law Dictionary CALIFORNIA SECONDARY SOURCES 1. The Rutter Group – California Practice Guides 2. Witkin – Summary of California Law 3. The California Forms of Practice & Pleading – Summary of California Law MEMO IRAC STRUCTURE RULE ANALYSIS – Compare specific facts BLUEBOOK CITATIONS – Know how to use the signal, See. With no direct quote you use see. 10/21/03 Draft an Issue Statement Make a Research Plan and Research  Stay Organized Re-Draft the Issue Statement Outline Write The Research Plan Define the Issue Jurisdiction Define Search terms and Start the Research  Secondary Sources o Restatements, A.L.R. o Key-Cite, Shepardize  Statutes and Annotated Codes  Cases Redefine the Issue Stay Organized – Calleros at 128 Case --- Relevant Facts ---- Relevant Issue ---- Holding & Analysis ---- How will I use it. When to stop researching? You Know the rule. You know how the rule has been applied in different fact patterns – for and against. You have site checked. FORMULA for Issue Statement. Under [insert reference to applicable law] Does/was [insert legal question] When [insert legally relevant facts]? Under CA law, Was the farther contemporaneously aware that his daughter was thrown and trampled by a sheep When he heard her cry for help, but did not see the accident, so that he can recover for (“NIED”) General Rule  Make it simple by restating the rule  See Bird, use this signal see if not a direct quote and making a legal proposition. Rule Explanation – case chart  Holding & Analysis  General Factual context  Specific Fact (1-2) that the case turns on. Analysis  Set out a road map  Use specific facts of cases  Compare to specific facts of case here  Conclude The Statute of Limitations issue on the memo should be about one paragraph. Issue Did D violate the Californai Civil Code when he failed to submit responses to interrogatories within 30 days? Rule Califorinia Civ Code section 123 requires responses to interrogatiores withing 30 days Analylsis Here, defendant was served with the request I. II. III. IV. Issue Statement A. Under. . . B. Under . . . Brief Answer A. Statute of Limitations B. NIED Statement of Facts – only one set, no A and B. Just the legally relevant facts. Discussion (each issue gets its own IRAC) A. Statute of Limitations (for the open memo you can do a mini IRAC for the statute of limitations issue) B. NIED – Full blown IRAC, pick 2 cases for the NIED claim. SMASH Surplus words, get rid of them Mind the gap Active Voice Short Sentences Hereinafter Simplify 11/20/2003 Exam next Tuesday, 60 min. Bring #2 pencil and Bluebook In Calleros review the “Summaries” for each chapter Use the Checklist at the end of Sloan Types of lawyers – Civil Litigator, Civil Corporate Attorney (create contracts), Government Attorney, In-House, Discovery is fact investigation before trial. Trial is where the fact finding takes place (the judge or jury is the fact finder). Types of discovery: Interrogatories – Written questions to the other party Requests for Admissions – To make the other party admit something Request for Documents – Asking for documents Depositions – Oral questions of a witness or other party with court reporter Finder of Fact – Judge or Jury Summary Judgment – Demurrer/Motion to Dismiss FRCP 12(b)(6) – Demurrer is in state court and motion to dismiss is in federal court. Parts of the case Synopsis Headnotes Name of the Attorneys and judge Opinions Stare Decisis – to abide by precedent Issue – Specific issue before the court Rule – The law, either common law or statutory Holding – Courts answer to the specific question Dicta – Remark by the court that does not necessarily decide the case Common Law Primary Authorities – Sloan Ch. 1, Calleros Ch. 6 – state the law Secondary Authorities – commentaries on the law Mandatory Auth Persuasive Auth Reporters Code – Organized by statutes Annotated Code – Has notes and cases, and cross-references Pocket Part/Slip Covers Titles of the United States Code Publishing a Law First congress publishes it in a slip cover, then they list that slip cover cronologically in a book called statutes at large, then every now and then they will codify it. Restatement – secondary until a court adopts as law Treatise – just a book Legal Encyclopedias – American Jurisprudence and CJS ALR – Summary of cases from a variety of jurisdictions Digests – Published by west Legal Dictionary – Blacks Law Dictionary Popular Calif. Secondary Sources – Witkens, Rudders Citators – Provides subsequent history of cases Colors of flags, red stop sign (some part of the case has been overturned), Shepards (lexis) Key Cite (westlaw) Key Number on Westlaw Direct History on Westlaw – History of the case you are reading Indirect History on Westlaw – Where you case shows up in every other case IRAC and WRITING IRAC SMASH, surplus words, mind the gap, active voice, shorter sentences, hereinafter simplify TEC – Topic sentences, explanation, conclusion Legal memo – Issue, Brief Answer, statement of facts, discussion, conclusion 10 commandments of Grammar Parallel Citing – State Reporter First