Convince State Rep Beaty from Legal AND Policy perspectives a tort making person liable for offensive words and conduct is appropriate legislation. 1. Explain if the suggested language meets the University’s goals AND is consistent with constitutional requirements. Redraft if necessary and explain how those changes improve the legislation to meet the University’s goals AND are consistent with constitutional requirements. 2. Prepare a letter to Beaty that addresses his concerns AND will persuade him of the need for legislation creating a civil action for racist speech. Convince that the problems we face are serious AND the tort approach is necessary AND will be effective.
LECTURE # 2 Put in obvious statement of facts at the top. One or two sentences. State the controversy. Lead with the UCC or a case, do not lead with Restatement (secondary authority). Use the facts and load up. Repeat the facts over and over. Issue statement should be loaded with facts. Lay out a rule, it does not need to be a correct rule. If you are not sure to use a case, just mention it.
FACT GATHERING What is the ultimate fact or theory that you are trying to prove? In accident it is liability or fault or negligence. Go through each factor or element and gather facts. Three kinds of facts: 1. Documentary 2. Physical 3. Testimonial Organize it element by element.
Also identify the sources for each of the facts that are being gathered. Possibly will ask you what discovery devices to use. Everybody in the file knows something or has something, that is why they are mentioned. Make a list of all the people when you are reading the file. Every document mentioned in the file you have to gather unless you actually have it. If they mention a letter or a will or a receipt then gather it. Every piece of physical evidence that you don’t yet have, you gather. Gather evidence about the treadmarks on the street, or the damage to the car. Verify major facts that are given to you from another source. Find out about background as well. Don’ worry about admissibility of evidence. Interrogatories are written questions to a party, not your client and not regular witnesses. Depositions are to parties and to witnesses. They can be written but are usually oral.
FACT ANALYSIS Don’t argue the law, argue the facts as you understand them to help support the different elements. Closing argument – Go element by element. Use the facts from the trial transcript as apply them to each element. Rebut facts that go against you by showing bias, or inconsistent statements, or gaps in testimony (logic missing), or perception or memory issues. Tone is critical. If the closing is to the judge then pay attention. If the judge is acting solely as a fact finder then the argument should be the same to the jury. If the judge is finding law and facts then you may need more law analysis. Opening This happens before the trial and presents the evidence as you see it and how it will fit in the case. You want the jury to hear a story. It should be a narrative story. Jury Instructions There are three parts.
Identify the ultimate fact or theory. Identify the elements. Make the elements particularized to the facts of the case. Affidavit or Declaration One person’s testimony in support of an accompanying document. The person is either a client or a witness. Every affidavit or declaration needs to identify the declarant in line 1. Also must establish a basis for knowledge in line 2. One fact per numbered line. If task memo conflicts with the instruction sheet, then the task memo trumps. Redrafting transactional documents All documents regulate behavior. Ask, who am I regulating, and how should they be regulated to meet the client’s goals.