undamentals of Legal Practice
October 29, 2009
Sidenote: Need to look at Chapter 7 and review notes, he went through things quickly.
1. Duty: The obligation to conduct your activities so as not to harm, injure or damage others
2. Breach: Conducting one's activities "below the standard of care", defined as what TARP would do in the SOSC
3. Causation: The proximal link between the breach and the harm. The harm that resulted must be foreseeable not to attenuated "Proximate cause" is required not mere "actual cause" (but for)--Palsgraf
4. Damages: There must be actual harm/damage/injury of some sort
-Do not use the word negligence until you go through all four and prove them
(Breach Issue)
Strict Liability: Ultra hazardous act, even if act is performed prudently and someone is hurt, you are liable. It is liability without culpability.
--like fireworks
--products
--dog bites
--worker's comp.
L'etat c'est moi - Louis XIV "I am the state"
Can't sue these people:
Tort Immunities (largely abolished)
-Govt.
-Charities
-Spousal/Family
----rend the fabric of society, destroy nuclear families
-Diplomats (eroding)
Litigation Page 219
Rules of procedure
1. Federal
2. State
3. Local -- all of the counties have their own rules
-The state rules can deviate from the federal rules
-Always check the rules everywhere
Pleadings are meant to frame the issue.
¢ complaint
π plaintiff
∆ defendant
T/P third party
Basic complaint is Plaintiff v. Defendant
Counterclaim: Defendant v. Plaintiff
¢
π v. ∆
counter ¢
∆ v. π
cross-claim
∆ v. ∆
third party ¢
∆ v. ∆ (not named by π)
-Pleadings should be simple and concise, simple allegations
-Federal Rules of Civil Procedure (FRCP)
Notice
-just put them on notice FRCP 10(6)
-WA is one of these states
Summons
-they are being sued
-default can be against them
-time to respond
-every summons is identical
---the purpose of the summons is procedural due process
5th A (1791)
14th A (1868)
Substantive? No, it's procedure. Your right to know. Not the law, the method.
-Need to have a properly filled out summons with the properly filled out procedure of due process
-Right to protect yourself in court
Summons & Complaint are served together!
-Otherwise they are not valid
Server must be over 18 and not a party to the action
-Paralegals and Lawyers are not party of the action, only the people suing
-Do not ever serve since it can cause issues
-Separate summons for each person being sued
--everyone is entitled to know about due process
-Serving out of state
--can't service a WA summons
--long arm statutes: how out of state plaintiffs sue out of state
-Serving in federal courts
--in State courts it's still very archaic
--federal courts waive the right to service and then things are mailed
---when you don't waive the right of service
-------the amount of money spent on service is on you and 20 days to answer
---if you do waive, you get 60 days to answer
Complaint
-initiates a lawsuit
-pleadings
-critically important that they be perfect
--no typos, grammar, spelling, make sure to edit
--Court rule 12 (subjective to challenge)
-These go to the court
-find out WA pleadings formula
-Must do a summons, complaint, and answer for the next homework
-does not argue the case, don't need details, nothing about damages
-the more stuff in the complaint, the more you must prove
Needs to be in the Complaint:
1. Intro paragraph
-who is suing who
2. Statement of jurisdiction
-this court has jurisdiction-- for state
-federal needs to know why
3. Domiciles
-establishing venue
-Need to have statement of venue, why it is
4. Facts
-multiple counts of action
-having more theories are better
--in case they drop off ones
5. Demand or Wherefore Clause (aka prayer)
-what the plaintiff is seeking
-if you don't ask, you don't get
-judgment
These are good to ask for:
1. Attorney fee and costs
2. Equitable
3. For such other and further relief as the court deems proper
The Answer Page 233
1. admit, deny, deny lack of info & belief
--just respond to each allegation
----WA requires an answer to each paragraph of allegations
--I admit this, and deny everything else (use if something is true)
-one word answers are fine
Affirmative Defense
-even if everything the complain says is true, the plaintiff loses anyway
-statute of limitations (personal injury WA is 3 years)
---you can't sue me even if I am in trouble
There are lots of affirmative defense
Res Judicata - released the case
Release- already agreed to release
Contributory Negligence-
4 Affirmative Defenses to always include:
1. Fails to state a cause of action
------(wore leopard shoes that offended someone) Admitted everything was true
2. Fault of Plaintiff
------ Other person's fault
3. Fault of Another
------ Someone else
4. Failure to Mitigate
----did not reduce injury or damage
Counterclaim
1. Compulsory
---must bring a counterclaim or will never be allowed to do so
---when it arises from the same nexus of operative facts
---from the same facts from previous case
------must be done during case because of judicial economy (burden on courts)
2. Permissive
Motions
-requests for the court
--asking them to compel, extend, withhold, etc.
Subpoenas
(spelled subpena)
-subpoena duces tecum (SDT)
-commands issued with the power of the court
Dismissals
-voluntary
-involuntary
-with prejudice
-without prejudice
voir dire
-to see and to say
-speak the truth
Peremptory Challenge
Opening Statements
Leading Question
-May not ask these
--can not put words
Unless they are:
1. hostile witness
---cross examination
2. experts
3. foundation
4. kids
Saturday, October 31, 2009
Tuesday, October 27, 2009
October 27th Notes
Fundamentals of Legal Practice
October 27, 2009
Homework #2:
-All you need to do this assignment is in the book
-Intentional? How is that an accident? You are acting volitional but was it intentional
-Harry was hunting and shot at what he THOUGHT was a quail
--No idea what he was hunting, does not say he was hunting quail
--He could have been hunting panthers
-Break down word for word (state game preserve area) that's 4 elements
Torts Chapter 7 page 213
-"Wrong"
-Torts are civil wrongs, between or amongst ourselves
-Society as a whole is not diminished by it
-Not contractual
Intentional Torts
Property
1. Conversion
---Interference with personal property is complete and total
---You break it, You buy it!
2. Trespass to Land (if you just say trespass, assume it is about land)
---Interference with the use and enjoyment of property
3. Trespass to Chattel
---Interference with personal property is brief (lesser interference than conversion)
---Needs to still have value (borrowed textbook, returned after test)
4. Nuisance (2)
---Does not have a substance (light, sound, smell)
--Public: affects multiple people
------must be abated by city, state, county, by the government
------no private right to sue
---Private: just affects you
------can sue, needs to be a unique harm
Emotional
1. Outrage: intentionally interference with emotional distress
---causes average person to say "Outrageous!"
----example: showing women her aborted fetus, taking gold fillings from corpses
--Utterly intolerable in a civilized society
----example: throwing ashes in garbage not at sea,
Legal Process
1. Abuse of Process
---use the legal system to cause most harm to someone, inconvenience, malicious prosecution
2. Malicious Prosecution
---causing frivolous lawsuits
Business
1. Interference with Contract
---trying to break contracts with others
2. Interference with Prospective
---preventing contract formation
3. Business Advantage
4. Product Disparagement
---run down someone's product
---Lanham Act if Commercial- defamation for products
Personal
1. Fraud (7 elements)
---1. Intentional misstatement of material fact
---2. False
---3. Scienter (Knowledge of falsity; its the tort of "misrepresentation" and no punitive damages if in a state that allows them)
---4. Intent to induce reliance
---5. Does induce reliance
---6. Reliance is reasonable
---7. Damages
----Need to prove all elements to be fraud
----Is an extremely difficult tort to prove
2. False Imprisonment - with no SAFE means of escape & must be aware of loss of freedom of movement
--Usually a shoplifter case
--Must be reasonable
3. Battery
--Battery means harmful or offensive touching non-consented to touching
--All the law requires is volition(the physical act), doesn't matter if you did not intend
--There is no Assault & Battery (this is civil)
--Of the person or something intimately connected to the person (like purse, car, clothes)
--Intentional = Volitional
4. Assault
--Apprehension of an imminent battery, needs to have the physically ability and an overt act to solidify
--Imminent needs to be happening now, not later
--Also needs to physically be able to happen (paraplegic threating to kick you)
--Overt act, needs to have a physical act to back it up (clench fist, threatening stance)
--Apprehension does not mean fear, It is still assault because you have awareness of battery
--Assault and no battery when there is no touching, just a threat to injure
--No assault when there is no awareness, just battery, like when you come up behind someone unsuspecting
5. Invasion of Privacy
-Relatively new tort, came about from "can't be true" clause in defamation
--This is about true facts being spread
---1. Intrusion on Seclusion (high powered photograph, hidden cameras, hidden recorders) The right to be let alone
---2. Publication of Private Facts (health records, student records) Not public records
---3. False Light (giving the impression) Seen at abortionist office, hate rally
---4. Appropriation (image used to sell something) Here's Johnny Portapotties (Johnny Carson)
6. Defamation
-Can be defaming or spreading untrue rumors
-The two types: slander verbal or libel in writing
-Needs to be severed enough to have people to shun you
-Apprehension = awareness
-Publication = telling someone , communicating
-Malice = knowledge of falsity
-Nature of the harm, there must be a loss to the person
-Protects your reputation
-If it is true, then they would already be ruining their reputation
-Public figures have access to the media that can clear their reputations
---1. The average, reasonable person needs to shun you
---2. Must be communicated to a third person, published
---3. Can't be true, with malice
7 Major Torts
"All torts can be fun, including old torts"
Assault
Trespass to land
Conversion
Battery,
False Imprisonment
Outrage
Trespass to Chattel
Unintentional Torts
Negligence
1. Duty
-can not be negligent if you had no duty to act
-we all have a different duty
-children, are not fully functioning adults (child standard), lower standards
-no negligence under 6
-physical handicap are lower standards
-there is no "stupid" standard or elderly standard
---example: "social contract"
2. Breach
-Breaching of the Duty
-TARP in SOSC = the average reasonable person in the same or similar circumstances
3. Causation
-Did the breach of your duty lead to the harm?
--Approximate: requires a link from activity to result, foreseeable
---Actual: "but for" - attenuated
---Most Famous Case of Causation: Palsgraf v. Long Island Railroad (1928),
------Scale falls on Palgraf after fireworks go off on platform
---Benjamin Cardozo and William Andrews disagreed on foreseeable
----Andrews: negligence in the air, enough to be stupid
----Cardozo: negligence in the air is not enough, not fair to see specifics
---Legal standard is reasonably foreseeable, not elaborate
--Chaos Theory
4. Damages
-Did that cause damages?
Comparable Negligence
--Supposed the infered party is responsible for their own harm
3 forms
1. Pure
-recover up to % you were not at fault
--99% at fault, you can recover 1% of damages (WA is one of these states)
2. 50-50
-as long as you are not more at fault
-plaintiff is 50% or less they can sue
3. 49% or less
October 27, 2009
Homework #2:
-All you need to do this assignment is in the book
-Intentional? How is that an accident? You are acting volitional but was it intentional
-Harry was hunting and shot at what he THOUGHT was a quail
--No idea what he was hunting, does not say he was hunting quail
--He could have been hunting panthers
-Break down word for word (state game preserve area) that's 4 elements
Torts Chapter 7 page 213
-"Wrong"
-Torts are civil wrongs, between or amongst ourselves
-Society as a whole is not diminished by it
-Not contractual
Intentional Torts
Property
1. Conversion
---Interference with personal property is complete and total
---You break it, You buy it!
2. Trespass to Land (if you just say trespass, assume it is about land)
---Interference with the use and enjoyment of property
3. Trespass to Chattel
---Interference with personal property is brief (lesser interference than conversion)
---Needs to still have value (borrowed textbook, returned after test)
4. Nuisance (2)
---Does not have a substance (light, sound, smell)
--Public: affects multiple people
------must be abated by city, state, county, by the government
------no private right to sue
---Private: just affects you
------can sue, needs to be a unique harm
Emotional
1. Outrage: intentionally interference with emotional distress
---causes average person to say "Outrageous!"
----example: showing women her aborted fetus, taking gold fillings from corpses
--Utterly intolerable in a civilized society
----example: throwing ashes in garbage not at sea,
Legal Process
1. Abuse of Process
---use the legal system to cause most harm to someone, inconvenience, malicious prosecution
2. Malicious Prosecution
---causing frivolous lawsuits
Business
1. Interference with Contract
---trying to break contracts with others
2. Interference with Prospective
---preventing contract formation
3. Business Advantage
4. Product Disparagement
---run down someone's product
---Lanham Act if Commercial- defamation for products
Personal
1. Fraud (7 elements)
---1. Intentional misstatement of material fact
---2. False
---3. Scienter (Knowledge of falsity; its the tort of "misrepresentation" and no punitive damages if in a state that allows them)
---4. Intent to induce reliance
---5. Does induce reliance
---6. Reliance is reasonable
---7. Damages
----Need to prove all elements to be fraud
----Is an extremely difficult tort to prove
2. False Imprisonment - with no SAFE means of escape & must be aware of loss of freedom of movement
--Usually a shoplifter case
--Must be reasonable
3. Battery
--Battery means harmful or offensive touching non-consented to touching
--All the law requires is volition(the physical act), doesn't matter if you did not intend
--There is no Assault & Battery (this is civil)
--Of the person or something intimately connected to the person (like purse, car, clothes)
--Intentional = Volitional
4. Assault
--Apprehension of an imminent battery, needs to have the physically ability and an overt act to solidify
--Imminent needs to be happening now, not later
--Also needs to physically be able to happen (paraplegic threating to kick you)
--Overt act, needs to have a physical act to back it up (clench fist, threatening stance)
--Apprehension does not mean fear, It is still assault because you have awareness of battery
--Assault and no battery when there is no touching, just a threat to injure
--No assault when there is no awareness, just battery, like when you come up behind someone unsuspecting
5. Invasion of Privacy
-Relatively new tort, came about from "can't be true" clause in defamation
--This is about true facts being spread
---1. Intrusion on Seclusion (high powered photograph, hidden cameras, hidden recorders) The right to be let alone
---2. Publication of Private Facts (health records, student records) Not public records
---3. False Light (giving the impression) Seen at abortionist office, hate rally
---4. Appropriation (image used to sell something) Here's Johnny Portapotties (Johnny Carson)
6. Defamation
-Can be defaming or spreading untrue rumors
-The two types: slander verbal or libel in writing
-Needs to be severed enough to have people to shun you
-Apprehension = awareness
-Publication = telling someone , communicating
-Malice = knowledge of falsity
-Nature of the harm, there must be a loss to the person
-Protects your reputation
-If it is true, then they would already be ruining their reputation
-Public figures have access to the media that can clear their reputations
---1. The average, reasonable person needs to shun you
---2. Must be communicated to a third person, published
---3. Can't be true, with malice
7 Major Torts
"All torts can be fun, including old torts"
Assault
Trespass to land
Conversion
Battery,
False Imprisonment
Outrage
Trespass to Chattel
Unintentional Torts
Negligence
1. Duty
-can not be negligent if you had no duty to act
-we all have a different duty
-children, are not fully functioning adults (child standard), lower standards
-no negligence under 6
-physical handicap are lower standards
-there is no "stupid" standard or elderly standard
---example: "social contract"
2. Breach
-Breaching of the Duty
-TARP in SOSC = the average reasonable person in the same or similar circumstances
3. Causation
-Did the breach of your duty lead to the harm?
--Approximate: requires a link from activity to result, foreseeable
---Actual: "but for" - attenuated
---Most Famous Case of Causation: Palsgraf v. Long Island Railroad (1928),
------Scale falls on Palgraf after fireworks go off on platform
---Benjamin Cardozo and William Andrews disagreed on foreseeable
----Andrews: negligence in the air, enough to be stupid
----Cardozo: negligence in the air is not enough, not fair to see specifics
---Legal standard is reasonably foreseeable, not elaborate
--Chaos Theory
4. Damages
-Did that cause damages?
Comparable Negligence
--Supposed the infered party is responsible for their own harm
3 forms
1. Pure
-recover up to % you were not at fault
--99% at fault, you can recover 1% of damages (WA is one of these states)
2. 50-50
-as long as you are not more at fault
-plaintiff is 50% or less they can sue
3. 49% or less
October 26th Notes
Legal Research & Writing
October 26th
Official Citation: Larson v. Zabroski, 21 Wn.2d 572, 152 P.2d 154 (1944).
Review of Larson v. Zabroski case:
-If the plaintiff follows the process of service, then the defendant is considered served.
Legal Memo Exercise page 52
-there should never be a surprise in the memo
-needs to be repetitive and concise
Issue Statement needs relevant law, question and facts.
-Allows a lawyer to target a client appropriately
Discussion
-Has the rules that apply to the facts
-Only apply the portion of the statute that applies to the case
-Explain why the facts won't be disputed
-Raise and dismiss the undisputed elements
-Subheadings: can be disputed elements
---makes it easy to find and discuss
Three types of arguments
1. Plain language argument: third paragraph
---very simple language to define terms
2. Analogous case arguments:
---comparison cases
3. Policy Argument:
---Brown v. Board of Education (separate but equal)
Always show jurisdiction cases first. Even if they don't agree.
First impression cases can have cases brought from out of jurisdiction.
It's only persuasive arguments, nothing binding.
-Your last sentence needs to mention the solution for that element. How the court usually rules on a particular element. Use hedge words. (likely, probably)
-Even on hot topic issues you need to provide information on cultural ideas, judgements and how they may react about the element being pushed. Perhaps research judges.
-Make sure the conclusion echoes the issue statement. Try to use the same words from the issue. Answer this right away in the first sentence.
-Read the issue then read the conclusion and make sure it sounds like a question with appropriate answer.
-The last few sentences will be the advice we want to give the client
IRAC
issue
rule
analysis
conclusion
Memo
statement of fact
issue statement
discussion
conclusion
Legal Reasoning
-Look at the rules and come out with particulars
-Deductive
-General to Facts of current case to specific
Memo
-Draft
---Revision with highlighter (editing)
---Make sure it flows and makes sense
-Check your task at hand
Discussion Section
-Usually written first before the issue statement
-Legally significant facts, background facts
-Emotionally significant facts
Outline for discussion
-general rules
-transition sentence
-disputed element discussion
--mini conclusion for element discussed
Rule:
Quote the statute, use the RCW 4.28.080(15). one of the memo
-Put elements of statue in your own words afterwords.
---you can change the order and also use the undisputed elements
Next...
-Ruling from Larson in your own words. Every time you provide a rule, you must cite it.
Larson v. Zabroski, 21 Wn.2d 572, 152 P.2d 154 (1944).
Next...
Who has the burden of proof?
The person who is challenging the service is the one who has to prove.
Level of proof- amount of proof needed to support claim
Two levels of proof in civil
1. pre ponderous of the evidence
2. clear and convincing
Washington Practice
15A Wash.Prac., Handbook Civil Procedure § 10.17 (2007 ed.)
10.17 Burden of proof regarding service of process
Cases at the the bottom
-Coughlin: dictum, but is before judgment
-Woodruff: after judgment
Results: requires clear and convincing either before or after
The person challenging the rule needs to have clear and convincing evidence.
What to do with this...
The person challenging...must show clear and convincing evidence that... end of sentence with have RCW with semicolons separating, with Miebach citation
Provide a roadmap to the legal reader.
Transitional sentences
-the undisputed elements and why with the facts and that leads into the disputed element
Do the first element
Then second element
Then mention the rule from Larson about not needing to be a relative
Then the only element with can dispute
Disputed element
-specific rules
-use facts (legal analogy)
-mini conclusion
Compare on Samatra Phillips to Kathy Berger
-do a few sentence comparison, Samatra needs to be mentioned first
Mini conclusion that she is of suitable age and discretion
After writing the discussion
-Look at the issue, then write your conclusion
---Use the same words
-Was the service upon Kathy Berger in lieu of Julia Richmond effective?
-The service upon Kathy Berger was effective for Julia Richmond.
-Issue Statement
(several formats in book)
-This memo used Under/does/when Method
Under Washington substitute service of process is service effective when the summons was given to .....?
-Issue statement needs a ? at the end
-§ 27.7 in LWH Powerpoint was wrong
Parallelism
-Accomplished by:
---matching words
matching introductory words
-each clause begins with a verb
Wait an hour to a day before editing.
Serial comma
-comma placed preceding the coordinating conjunction at the end of a list of items
and, or, but
Statement of Facts
-you do not need to give details about the case, select from the background facts what you need to give it logical cohesion
-Need facts about Kathy Berger
--Paragraph or two
-story with legally significant facts
-from the decided case to the current case is the sentence structure used
--Samatra is first then Kathy
-We should advise building a defense for her instead of the validity of the service
Citations
1. Name of case
2. Where case can be found
3. Court decided case
4. Year of decision
Parallel Citation
-bluebook does not require this, only regional reporter for state cases
-WSS requires it for all cases (for our memos we are using this)
--to both Washington reports, and to the Pacific Reporter
Other states: consult their rules in Bluebook Table BT.2
Where there are two reporters, they both must be reported
--official reporter is first, then regional
missing period on bluebook abbreviation on powerpoint
Full Citation:
-Needs court and year at the end
---when the decision is from the state's highest court then just Wash.
When out:
(Wash. Ct. App. 1985)
--when appellate court at the ct. and app.
with WSS make sure to change Wash. in the cite to Wn.
-Only one reporter for federal
--so for citing F.3d (3rd version)
Circuits are the # by Cir.
US Supreme Court Case
-3 Reporters
--Bluebook: single citation, US Reports
--WSS: wants all 3
Watch the spacing on everything!
Westlaw: use the whole date, month/day/year
Homework
Project 2 (3 pages long double space)
Cite 3
October 26th
Official Citation: Larson v. Zabroski, 21 Wn.2d 572, 152 P.2d 154 (1944).
Review of Larson v. Zabroski case:
-If the plaintiff follows the process of service, then the defendant is considered served.
Legal Memo Exercise page 52
-there should never be a surprise in the memo
-needs to be repetitive and concise
Issue Statement needs relevant law, question and facts.
-Allows a lawyer to target a client appropriately
Discussion
-Has the rules that apply to the facts
-Only apply the portion of the statute that applies to the case
-Explain why the facts won't be disputed
-Raise and dismiss the undisputed elements
-Subheadings: can be disputed elements
---makes it easy to find and discuss
Three types of arguments
1. Plain language argument: third paragraph
---very simple language to define terms
2. Analogous case arguments:
---comparison cases
3. Policy Argument:
---Brown v. Board of Education (separate but equal)
Always show jurisdiction cases first. Even if they don't agree.
First impression cases can have cases brought from out of jurisdiction.
It's only persuasive arguments, nothing binding.
-Your last sentence needs to mention the solution for that element. How the court usually rules on a particular element. Use hedge words. (likely, probably)
-Even on hot topic issues you need to provide information on cultural ideas, judgements and how they may react about the element being pushed. Perhaps research judges.
-Make sure the conclusion echoes the issue statement. Try to use the same words from the issue. Answer this right away in the first sentence.
-Read the issue then read the conclusion and make sure it sounds like a question with appropriate answer.
-The last few sentences will be the advice we want to give the client
IRAC
issue
rule
analysis
conclusion
Memo
statement of fact
issue statement
discussion
conclusion
Legal Reasoning
-Look at the rules and come out with particulars
-Deductive
-General to Facts of current case to specific
Memo
-Draft
---Revision with highlighter (editing)
---Make sure it flows and makes sense
-Check your task at hand
Discussion Section
-Usually written first before the issue statement
-Legally significant facts, background facts
-Emotionally significant facts
Outline for discussion
-general rules
-transition sentence
-disputed element discussion
--mini conclusion for element discussed
Rule:
Quote the statute, use the RCW 4.28.080(15). one of the memo
-Put elements of statue in your own words afterwords.
---you can change the order and also use the undisputed elements
Next...
-Ruling from Larson in your own words. Every time you provide a rule, you must cite it.
Larson v. Zabroski, 21 Wn.2d 572, 152 P.2d 154 (1944).
Next...
Who has the burden of proof?
The person who is challenging the service is the one who has to prove.
Level of proof- amount of proof needed to support claim
Two levels of proof in civil
1. pre ponderous of the evidence
2. clear and convincing
Washington Practice
15A Wash.Prac., Handbook Civil Procedure § 10.17 (2007 ed.)
10.17 Burden of proof regarding service of process
Cases at the the bottom
-Coughlin: dictum, but is before judgment
-Woodruff: after judgment
Results: requires clear and convincing either before or after
The person challenging the rule needs to have clear and convincing evidence.
What to do with this...
The person challenging...must show clear and convincing evidence that... end of sentence with have RCW with semicolons separating, with Miebach citation
Provide a roadmap to the legal reader.
Transitional sentences
-the undisputed elements and why with the facts and that leads into the disputed element
Do the first element
Then second element
Then mention the rule from Larson about not needing to be a relative
Then the only element with can dispute
Disputed element
-specific rules
-use facts (legal analogy)
-mini conclusion
Compare on Samatra Phillips to Kathy Berger
-do a few sentence comparison, Samatra needs to be mentioned first
Mini conclusion that she is of suitable age and discretion
After writing the discussion
-Look at the issue, then write your conclusion
---Use the same words
-Was the service upon Kathy Berger in lieu of Julia Richmond effective?
-The service upon Kathy Berger was effective for Julia Richmond.
-Issue Statement
(several formats in book)
-This memo used Under/does/when Method
Under Washington substitute service of process is service effective when the summons was given to .....?
-Issue statement needs a ? at the end
-§ 27.7 in LWH Powerpoint was wrong
Parallelism
-Accomplished by:
---matching words
matching introductory words
-each clause begins with a verb
Wait an hour to a day before editing.
Serial comma
-comma placed preceding the coordinating conjunction at the end of a list of items
and, or, but
Statement of Facts
-you do not need to give details about the case, select from the background facts what you need to give it logical cohesion
-Need facts about Kathy Berger
--Paragraph or two
-story with legally significant facts
-from the decided case to the current case is the sentence structure used
--Samatra is first then Kathy
-We should advise building a defense for her instead of the validity of the service
Citations
1. Name of case
2. Where case can be found
3. Court decided case
4. Year of decision
Parallel Citation
-bluebook does not require this, only regional reporter for state cases
-WSS requires it for all cases (for our memos we are using this)
--to both Washington reports, and to the Pacific Reporter
Other states: consult their rules in Bluebook Table BT.2
Where there are two reporters, they both must be reported
--official reporter is first, then regional
missing period on bluebook abbreviation on powerpoint
Full Citation:
-Needs court and year at the end
---when the decision is from the state's highest court then just Wash.
When out:
(Wash. Ct. App. 1985)
--when appellate court at the ct. and app.
with WSS make sure to change Wash. in the cite to Wn.
-Only one reporter for federal
--so for citing F.3d (3rd version)
Circuits are the # by Cir.
US Supreme Court Case
-3 Reporters
--Bluebook: single citation, US Reports
--WSS: wants all 3
Watch the spacing on everything!
Westlaw: use the whole date, month/day/year
Homework
Project 2 (3 pages long double space)
Cite 3
Thursday, October 22, 2009
October 22nd Notes
Fundamentals of Legal Practice
October 22, 2009
How to win arguments
-Keep it short
-Lead with your strongest argument
-Use the facts
*Really wants you to know these duties (will be on test)*
10 Duties of a Paralegal Chapter 6
1. Achieve & maintain a high level of competence & personal integrity
2. Report non-privileged workplace malfeasance (fraud, deceit, dishonesty, misrepresentation)
3. Serve the public & improve the community
4. Preserve client confidences & secrets, before, during & after the representation
5. Never use client info for personal gain or to detriment of client
6. Avoid compromising influences & conflicts
7. Loyalty
8. Disclose title & capacity
9. Avoid unauthorized practice of law
10. Avoid impropriety or the appearance of impropriety
Big 3 of the unauthorized practice of law Page 172
1. Attorney is ultimately responsible for the work
2. Attorney supervising
3. Client knows you are not the/a lawyer
-you can initiate new business but not solidify it
-you can quote fees but you can't set fees
-can only bill substantive costs, meaning filing, typing, phones are not billable
-Kentucky was the first state to have a paralegal code
-There is a difference between confidences and secrets
---confidences: related to the representation
---secret: anything the client tells you whether or not it applies
Concerning legal opinion, if it affects the:
-Value
-Merit
-Strategy
-Outcome
of the case then you are practicing law and can not do so.
-Never give independent judgment or opinion
Malpractice: goal is money from client
Disciplinary: punishment from bar association (punching your ticket)
-can not fee split, it appears to be a partnership
"capping"- lawyers paying fees for people drumming up business
-if you submit something to the court, you are appearing in court
Ethical Importance page 187
As a paralegal, I need to keep a relationship or trust and confidence with a client.
spoliation of evidence: destroying evidence, avoid paperwork, hide clients
-can pay the witnesses expenses and compensate an expert
-subornation of purgatory: can not tell people to lie
Tarasoff v. UC Regents
-Psychiatrist should have gone to police to protect woman who was attacked after client said he would attack this woman.
-you waive the attorney/client privilege if it is publicly displayed (leave open file, computer screen, file on bus)
-do not threaten action against the other side, even if you can report it legally
On exam:
spotting the violation is easy. tell why it is, what duty is violated, and what conduct violated the duty. or what they should have done instead.
October 22, 2009
How to win arguments
-Keep it short
-Lead with your strongest argument
-Use the facts
*Really wants you to know these duties (will be on test)*
10 Duties of a Paralegal Chapter 6
1. Achieve & maintain a high level of competence & personal integrity
2. Report non-privileged workplace malfeasance (fraud, deceit, dishonesty, misrepresentation)
3. Serve the public & improve the community
4. Preserve client confidences & secrets, before, during & after the representation
5. Never use client info for personal gain or to detriment of client
6. Avoid compromising influences & conflicts
7. Loyalty
8. Disclose title & capacity
9. Avoid unauthorized practice of law
10. Avoid impropriety or the appearance of impropriety
Big 3 of the unauthorized practice of law Page 172
1. Attorney is ultimately responsible for the work
2. Attorney supervising
3. Client knows you are not the/a lawyer
-you can initiate new business but not solidify it
-you can quote fees but you can't set fees
-can only bill substantive costs, meaning filing, typing, phones are not billable
-Kentucky was the first state to have a paralegal code
-There is a difference between confidences and secrets
---confidences: related to the representation
---secret: anything the client tells you whether or not it applies
Concerning legal opinion, if it affects the:
-Value
-Merit
-Strategy
-Outcome
of the case then you are practicing law and can not do so.
-Never give independent judgment or opinion
Malpractice: goal is money from client
Disciplinary: punishment from bar association (punching your ticket)
-can not fee split, it appears to be a partnership
"capping"- lawyers paying fees for people drumming up business
-if you submit something to the court, you are appearing in court
Ethical Importance page 187
As a paralegal, I need to keep a relationship or trust and confidence with a client.
spoliation of evidence: destroying evidence, avoid paperwork, hide clients
-can pay the witnesses expenses and compensate an expert
-subornation of purgatory: can not tell people to lie
Tarasoff v. UC Regents
-Psychiatrist should have gone to police to protect woman who was attacked after client said he would attack this woman.
-you waive the attorney/client privilege if it is publicly displayed (leave open file, computer screen, file on bus)
-do not threaten action against the other side, even if you can report it legally
On exam:
spotting the violation is easy. tell why it is, what duty is violated, and what conduct violated the duty. or what they should have done instead.
Tuesday, October 20, 2009
October 20th Notes
Fundamentals of Legal Practice
October 20, 2009
Homework #2
due Nov 3rd
Review on Homework #1
-Double space work
-Cite case properly with date
-Issues need to be about the law, needs to be broader than the case
-Watch spelling
-Always write brief in past tense
-Be careful with words, the best word for the situation
-The conclusion is the judge's dicta (why the court ruled as it did)
-Need to use legal terminology
-No points off for style
Writing Skills Page 159
-Preparing an outline is important
---Plan what you are going to say
---Takes less time to write when you plan
Why you Outline
1. Arguments are put in the proper order
---Lead with your best argument first
1. No one reads past page 2
2. Weak arguments make a poor impression
2. Flow and pace
- --Easier to read
3. Redundancy
---Wasting time on points already covered
4. You won't forget your points
---Write out your arguments for a case
5. Readability
-It's what you do with the Law that matters.
-Organizational Format
--Just start with the issue and conclusions
--Your choice on organization
-Use of examples
--"For example, ..." shows you understand and can explain
-Efficient use of time
For his tests:
--Look at the amount of points and determine
--Dates, Quotes, Adjectives, and Adverbs (are facts you need to use)
--Look at the facts and details that are asked (apply)
--"on the other hand" argue both sides
-Avoid assumptions
---Always state the law, then write about the issues and facts
Tips to Help
Guessing your way through an objective test:
1. On true/false Answer is usually true
2. Beware of absolutes - always, only, never (usually false)
3. Look for qualifiers - tend, sometimes, can, could, frequently, usually (true)
4. The more complete info is usually correct
5. None of these - almost always wrong
6. All of these - tends to be more right, but watch out for 2 that are correct
7. When 2 answers mean the same thing eliminate them
8. Unfamiliar technical terminology
9. Guess with a system
Ethics
--The nature and justification of conduct
--Internal
---Multiple
---The Great Philosophers and modern philosophers
-No need to remember the ethical codes and cites
Page 164
1. Responsible for criminal violations
-Can not commit criminal violates for your job, Can not shelter boss
2. Personally responsible for torts
-Can not do it simply because boss said so
3. Code of ethics for paralegals NALA, NFPA
4. Guidelines and rules to use for lawyers, can read those too
The 4 Learned Professions
1. Spiritual Needs - Ministry
2. Security Needs - Military
3. Physical Needs - Physicians
4. Societal Needs - Law
Brief Overview of Ethics for Paralegals
-ethical duty to remain competent with continuing education
-can't call clients on other side
-bundling charges in the smallest increments (.1)
Impropriety- inappropriate conduct
Appearance of impropriety- it looks inappropriate
-can not do either
-important to do pro bono work for the community
-confidential information
-conflict of interests
-always include paralegal title
-do not engage in in unauthorized practice of the law
Morality
--Conforming one's conduct to social norms
--External
---Only one answer
October 20, 2009
Homework #2
due Nov 3rd
Review on Homework #1
-Double space work
-Cite case properly with date
-Issues need to be about the law, needs to be broader than the case
-Watch spelling
-Always write brief in past tense
-Be careful with words, the best word for the situation
-The conclusion is the judge's dicta (why the court ruled as it did)
-Need to use legal terminology
-No points off for style
Writing Skills Page 159
-Preparing an outline is important
---Plan what you are going to say
---Takes less time to write when you plan
Why you Outline
1. Arguments are put in the proper order
---Lead with your best argument first
1. No one reads past page 2
2. Weak arguments make a poor impression
2. Flow and pace
- --Easier to read
3. Redundancy
---Wasting time on points already covered
4. You won't forget your points
---Write out your arguments for a case
5. Readability
-It's what you do with the Law that matters.
-Organizational Format
--Just start with the issue and conclusions
--Your choice on organization
-Use of examples
--"For example, ..." shows you understand and can explain
-Efficient use of time
For his tests:
--Look at the amount of points and determine
--Dates, Quotes, Adjectives, and Adverbs (are facts you need to use)
--Look at the facts and details that are asked (apply)
--"on the other hand" argue both sides
-Avoid assumptions
---Always state the law, then write about the issues and facts
Tips to Help
Guessing your way through an objective test:
1. On true/false Answer is usually true
2. Beware of absolutes - always, only, never (usually false)
3. Look for qualifiers - tend, sometimes, can, could, frequently, usually (true)
4. The more complete info is usually correct
5. None of these - almost always wrong
6. All of these - tends to be more right, but watch out for 2 that are correct
7. When 2 answers mean the same thing eliminate them
8. Unfamiliar technical terminology
9. Guess with a system
Ethics
--The nature and justification of conduct
--Internal
---Multiple
---The Great Philosophers and modern philosophers
-No need to remember the ethical codes and cites
Page 164
1. Responsible for criminal violations
-Can not commit criminal violates for your job, Can not shelter boss
2. Personally responsible for torts
-Can not do it simply because boss said so
3. Code of ethics for paralegals NALA, NFPA
4. Guidelines and rules to use for lawyers, can read those too
The 4 Learned Professions
1. Spiritual Needs - Ministry
2. Security Needs - Military
3. Physical Needs - Physicians
4. Societal Needs - Law
Brief Overview of Ethics for Paralegals
-ethical duty to remain competent with continuing education
-can't call clients on other side
-bundling charges in the smallest increments (.1)
Impropriety- inappropriate conduct
Appearance of impropriety- it looks inappropriate
-can not do either
-important to do pro bono work for the community
-confidential information
-conflict of interests
-always include paralegal title
-do not engage in in unauthorized practice of the law
Morality
--Conforming one's conduct to social norms
--External
---Only one answer
Issues with Taped Lectures
There still seems to be some issues with the taped lectures. Many of them are throwing back Forbidden errors. I'm still researching the problem. It may have something to do with the amount of lectures on there.
Until I find an answer, I'm going to try to keep the most current lectures for both classes available on here and change them out each week.
If you need a past lecture, leave me a comment.
Until I find an answer, I'm going to try to keep the most current lectures for both classes available on here and change them out each week.
If you need a past lecture, leave me a comment.
October 19th Notes
Legal Research & Writing
October 19th
Due Process: Mullane v. Central Hanover Bank
-Part of the Project 1 Assignment
Where were the trustors? Various states
Published in the NY newspaper
Service of Process
-parties of interest in a case can not serve
-no intentions, a neutral party is best
-can use a personal service, certified mail, serve by publication
----personal service is the prefered
----certified mail and publication
-------need judge's permission to use these forms and explanation of why
"An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."
~Mullane v. Central Hanover Bank
"But when notice is a person's due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee reasonably adopt to accomplish it."
~Mullane v. Central Hanover Bank
Project 1
-She only wanted the 3 Elements relevant to the case
1. At the house of the defendant's usual abode
-Need to define abode
2. With person of suitable age and discretion
3. Then resident therein
Which elements are satisfied?
1. Yes. It was delivered to her apartment
2. Uncertain. What does this mean?
3. Yes. Facts make us believe the daughter was a resident.
WPIC
Washington Pattern Instructions Criminal WPIC
Washington Pattern Instructions Civil
-When you are unsure on the definition of a statute, look at the jury instruction in WPIC
These will have the major statutes.
-Code Reviser: Where does this new law belong? There job is to put it in the right category. Finds all the definitions for a term. They are at the beginning on the statute. The .010 part of the statute. These will show you what words are defined by the legislature.
Primary Authority
Case Law
-Mieback v. Colasurdo
-Larson v. Zabroski
-The year is important because it puts the decision in context of the period.
3 Reasons to Use a Case
1. For the rules it presents
2. As an analogy
3. it does both 1. and 2.
Looking at the Miebach Case
-Any rules that help you dispute the element?
-Describe the person who accepted the service
--Sumatra Philips: a 15 year old, foster child, rebellious, does poor in school, familiar with court system, leader of peer group
--Court thought she was acceptable
-Was is proper?
-Legally analogy: the facts in both cases are nearly identical meaning that the outcomes should be the same
---make a list of the facts from one case and then the other
---compare the list to make your assessment
Do not just list the facts on each. You need to compare them in a paragraph.
Use words of comparison: like, similar to, as in, just like
*There is a lot of extra training on Westlaw. Feel free to look.*
HOMEWORK
Read through the Appellate Court version of the Miebach case and determine who had the Burden of Proof in the Richmond case.
(The appellate case is here: 35. Wn App. 812page in Pacific Reporter)
-Clearly identifies a rule about the burden of proof
-The case appears in both:
Supreme Court
Washington Reports
1. Bluebook
---Wash. (first series)
---Wash.2d
2.Washington Style Sheet
---Wash. (first series)
---Wn.2d
Appellate Court
Washington Appellate Reports
1. Bluebook
---Wash. App.
2.Washington Style Sheet
---Wn. App.
Case Citation:
Requires
1. Name of Case
2. Where case can be found (what reporters)
3. Court deciding case
4. Year of decision
Kramer v. Kramer,
In re Wilson,
(in the matter of Wilson)
-need to underline but not the commas or use italics
-commas follow case name
-drop jr, sr, roman numerals
-if the abbreviate has an apostrophe it doesn't have a period at the end
-Abbreviate all words in table T.6
-Only use the first party names on the left of the v. and the first party names on the right
-Use only the first v.
-United States does not get abbreviated take away "of America"
-et al. is dropped
-Famous corporation you can drop Corp.
-Minors are only first and last initials
-if state is out of jurisdiction, abbreviate
-use ampersand sign
WA State Court
-use blue book rules with WA style sheet overlay
---except what's on the sheet
Federal Court
-use blue book with Circuit in which you are writing exceptions
Other State Court
-Find their rules
October 19th
Due Process: Mullane v. Central Hanover Bank
-Part of the Project 1 Assignment
Where were the trustors? Various states
Published in the NY newspaper
Service of Process
-parties of interest in a case can not serve
-no intentions, a neutral party is best
-can use a personal service, certified mail, serve by publication
----personal service is the prefered
----certified mail and publication
-------need judge's permission to use these forms and explanation of why
"An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."
~Mullane v. Central Hanover Bank
"But when notice is a person's due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee reasonably adopt to accomplish it."
~Mullane v. Central Hanover Bank
Project 1
-She only wanted the 3 Elements relevant to the case
1. At the house of the defendant's usual abode
-Need to define abode
2. With person of suitable age and discretion
3. Then resident therein
Which elements are satisfied?
1. Yes. It was delivered to her apartment
2. Uncertain. What does this mean?
3. Yes. Facts make us believe the daughter was a resident.
WPIC
Washington Pattern Instructions Criminal WPIC
Washington Pattern Instructions Civil
-When you are unsure on the definition of a statute, look at the jury instruction in WPIC
These will have the major statutes.
-Code Reviser: Where does this new law belong? There job is to put it in the right category. Finds all the definitions for a term. They are at the beginning on the statute. The .010 part of the statute. These will show you what words are defined by the legislature.
Primary Authority
Case Law
-Mieback v. Colasurdo
-Larson v. Zabroski
-The year is important because it puts the decision in context of the period.
3 Reasons to Use a Case
1. For the rules it presents
2. As an analogy
3. it does both 1. and 2.
Looking at the Miebach Case
-Any rules that help you dispute the element?
-Describe the person who accepted the service
--Sumatra Philips: a 15 year old, foster child, rebellious, does poor in school, familiar with court system, leader of peer group
--Court thought she was acceptable
-Was is proper?
-Legally analogy: the facts in both cases are nearly identical meaning that the outcomes should be the same
---make a list of the facts from one case and then the other
---compare the list to make your assessment
Do not just list the facts on each. You need to compare them in a paragraph.
Use words of comparison: like, similar to, as in, just like
*There is a lot of extra training on Westlaw. Feel free to look.*
HOMEWORK
Read through the Appellate Court version of the Miebach case and determine who had the Burden of Proof in the Richmond case.
(The appellate case is here: 35. Wn App. 812page in Pacific Reporter)
-Clearly identifies a rule about the burden of proof
-The case appears in both:
Supreme Court
Washington Reports
1. Bluebook
---Wash. (first series)
---Wash.2d
2.Washington Style Sheet
---Wash. (first series)
---Wn.2d
Appellate Court
Washington Appellate Reports
1. Bluebook
---Wash. App.
2.Washington Style Sheet
---Wn. App.
Case Citation:
Requires
1. Name of Case
2. Where case can be found (what reporters)
3. Court deciding case
4. Year of decision
Kramer v. Kramer,
In re Wilson,
(in the matter of Wilson)
-need to underline but not the commas or use italics
-commas follow case name
-drop jr, sr, roman numerals
-if the abbreviate has an apostrophe it doesn't have a period at the end
-Abbreviate all words in table T.6
-Only use the first party names on the left of the v. and the first party names on the right
-Use only the first v.
-United States does not get abbreviated take away "of America"
-et al. is dropped
-Famous corporation you can drop Corp.
-Minors are only first and last initials
-if state is out of jurisdiction, abbreviate
-use ampersand sign
WA State Court
-use blue book rules with WA style sheet overlay
---except what's on the sheet
Federal Court
-use blue book with Circuit in which you are writing exceptions
Other State Court
-Find their rules
Sunday, October 18, 2009
Update on Taped Lectures
I have fixed most of the issues with the lectures. All of the current lectures should be working. I find the it is better to listen to them with headphones to understand them clearly.
There are some issues with Oct 1st and Oct 5th lectures. It appeares the first part of the lectures work but the rest will sometimes throw Forbidden errors. I don't have the time to figure out what the problem is, but if you do need those lectures please feel free to leave a comment here and I will try to arrange a way for you to get the whole lecture.
Also, I revamped the layout for easier navigation. Hope it helps.
There are some issues with Oct 1st and Oct 5th lectures. It appeares the first part of the lectures work but the rest will sometimes throw Forbidden errors. I don't have the time to figure out what the problem is, but if you do need those lectures please feel free to leave a comment here and I will try to arrange a way for you to get the whole lecture.
Also, I revamped the layout for easier navigation. Hope it helps.
Thursday, October 15, 2009
October 15th Notes
Fundamentals of Legal Practice
October 15, 2009
Homework #2
Question 5 page 95
Harry is hunting in the Everglades. He shoots at what he believes to be a quail, but instead, he hits and kills a Florida panther. Quail hunting is permissible in the Everglades. Harry is arrested and charged with violating State Statute § 14.82, which states that it is unlawful "for any person to intentionally injure or kill any animal native to Florida in a state-designated game preserve areas."
Please write an interoffice memorandum on the subject of whether Harry who has retained the law office where you are employed is or is not likely to be convicted of violating State Statute § 14.82.
-Read several times before you start writing
-What questions do you want to ask Harry?
-Intentionally does it mean both injure and kill? He pointed his gun and intentionally targeted his prey.
-Harry wants to know if he is going to prison
-Need to find the vagueness in the statue and what they are and how they apply to Harry
-What kind of gun did he have, how did he mistake the cat for a quail, did he have a license?
-Read it carefully.
-Length should be 4-5 pages double spaced.
-Argue the interpretations and why one interpretation will work and another will not.
-Statute must be verbatim
-Always a good idea to start with a summary and what you are doing
This is Harry and this is what happened and this is what I'm doing for him.
-What is your opinion on this case?
DO NO RESEARCH!
-explain what research you would do
***There is GIANT hidden issue***
Legal Research
Primary: is the law, cases, statutes
-Mandatory: same system, higher court (always cite)
-Persuasive: not same system, not a higher court (rarely cite)
Secondary: is not the law, but talks about the law (do not cite ever)
examples: Law Review, Hornbooks, Encylopedia
--Can only be used if there is no other primary information
Every state has its own Reporter. There are some reporters that are groups of states.
Pacific Reporter: Page 101
P.3d includes Alaska, Arizona, California, Colorado, Hawaii, Idaho, Kansas, Montana, Nevada, New Mexico, Oklahoma, Oregon, Utah, Washington, Wyoming
There states are not in the 9th Circuit (federal)
---Colorado Kansas New Mexico Oklahoma Utah,Wyoming
Parallel Citations:
-In formal citing, you must cite both the Pacific Reporting and Washington Reporter. Most law offices do not carry the Pacific Reporter. They would rather have the state reporter but need both in case.
-There are always parallel citations, no exceptions.
Secondary sources are good and often lead to persuasive authority.
Table of Cases Page 120
-Great for getting details in cases
Example: want to find a case but only have one name in the case
Descriptive Word Index Page 120
-Great for finding words and details on cases
Shepard's Citations: Page 126
-always shepardize cases in all legal work: briefs, memos, cases
-Need to look for o (overruled) and r (reversed)
-Gives parallel cites
--gives you every case that has cited another case (need more like it)
Shepard's Abbreviations Page 130
-c is criticized
-ca is conflicting authorities
-d is distinguished:
-e is explained
-f is followed
-h is harmonized
-j is dissenting opinion
-~ is concurring opinion
-L is limited
-o is overruled
-op is overruled in part
-q is questioned
-su is superseded
Reversed: affects the parties
example: Smith sues Jones. Smith wins. If reversed. Jones wins.
Overruled: precedent value of the case, can happens decades later
example: Plessy v. Ferguson
Remanded: sending it back to lower court to be fixed
You should use the tools you like and understand first and then double check with others. Best to know what is available to work with.
The Importance of a Clearly Defined Issue:
-Always answer the question
Becoming Better Writers: Chapter 5
-You need to find your own
--Example: you can not own something abandoned
-precise and accuracy with your thoughts
Eschew Obfuscation: avoid concealment
Bad writing to avoid:
1. Egregious- conspicuously bad and offensive, overused
2. Bottom line- slang
3. Vis a vis- French slang
4. In order to- too busy to use
5. Heretofore- that which proceeds, too hard to understand
(never let your reader slow down)
6. Here and after- sounds like talking to dead
7. In terms of- too vague
8. It must be remembered that- dumb phrase
9. Clearly- probably is not clear if you are using it
10. Are in accord- just say they agree
11. Former/Later- be clear on who you are talking about
12. Prior/Subsequent- slows reader down
13. Instant- pretentious way to say this
14. Impact- it is a noun NOT A VERB
15. Is violative of- just say violates
16. Manifest- means obvious
17. Not un____- double negatives
18. Obtain- means to get
19. Utilize- just say use
20. Irregardless, Whole nuther, All of a sudden, Exact same thing- NOT WORDS
--avoid all slang
-Simple language is legal writing
Organization:
-the longer your work, the less organized you are
-you must plan and organize in advance
-accurate, short, pithy analysis
Need to Become POD People:
Prepared, Organized, Discipline
How to organize an essay Page 155
-Never turn in an outline for anything
1. First paragraph establishes organizational pattern followed. Hooks the reader.
2. Discuss first category
3. Discuss second category
4. Discuss third category
5. A summary of all the points. Leaves a final impression.
-Good introductory sentence is extremely important. Hook the reader immediately.
-Conclusions need to bring something new and wraps everything together
-Remember the topic and make sure your essay reflects that
-Need to read carefully!
-Don't need to continually include question in the answer
-Never get in trouble for analytical, examine every angle
-Just wants to see that you are reading and analyzing everything
October 15, 2009
Homework #2
Question 5 page 95
Harry is hunting in the Everglades. He shoots at what he believes to be a quail, but instead, he hits and kills a Florida panther. Quail hunting is permissible in the Everglades. Harry is arrested and charged with violating State Statute § 14.82, which states that it is unlawful "for any person to intentionally injure or kill any animal native to Florida in a state-designated game preserve areas."
Please write an interoffice memorandum on the subject of whether Harry who has retained the law office where you are employed is or is not likely to be convicted of violating State Statute § 14.82.
-Read several times before you start writing
-What questions do you want to ask Harry?
-Intentionally does it mean both injure and kill? He pointed his gun and intentionally targeted his prey.
-Harry wants to know if he is going to prison
-Need to find the vagueness in the statue and what they are and how they apply to Harry
-What kind of gun did he have, how did he mistake the cat for a quail, did he have a license?
-Read it carefully.
-Length should be 4-5 pages double spaced.
-Argue the interpretations and why one interpretation will work and another will not.
-Statute must be verbatim
-Always a good idea to start with a summary and what you are doing
This is Harry and this is what happened and this is what I'm doing for him.
-What is your opinion on this case?
DO NO RESEARCH!
-explain what research you would do
***There is GIANT hidden issue***
Legal Research
Primary: is the law, cases, statutes
-Mandatory: same system, higher court (always cite)
-Persuasive: not same system, not a higher court (rarely cite)
Secondary: is not the law, but talks about the law (do not cite ever)
examples: Law Review, Hornbooks, Encylopedia
--Can only be used if there is no other primary information
Every state has its own Reporter. There are some reporters that are groups of states.
Pacific Reporter: Page 101
P.3d includes Alaska, Arizona, California, Colorado, Hawaii, Idaho, Kansas, Montana, Nevada, New Mexico, Oklahoma, Oregon, Utah, Washington, Wyoming
There states are not in the 9th Circuit (federal)
---Colorado Kansas New Mexico Oklahoma Utah,Wyoming
Parallel Citations:
-In formal citing, you must cite both the Pacific Reporting and Washington Reporter. Most law offices do not carry the Pacific Reporter. They would rather have the state reporter but need both in case.
-There are always parallel citations, no exceptions.
Secondary sources are good and often lead to persuasive authority.
Table of Cases Page 120
-Great for getting details in cases
Example: want to find a case but only have one name in the case
Descriptive Word Index Page 120
-Great for finding words and details on cases
Shepard's Citations: Page 126
-always shepardize cases in all legal work: briefs, memos, cases
-Need to look for o (overruled) and r (reversed)
-Gives parallel cites
--gives you every case that has cited another case (need more like it)
Shepard's Abbreviations Page 130
-c is criticized
-ca is conflicting authorities
-d is distinguished:
-e is explained
-f is followed
-h is harmonized
-j is dissenting opinion
-~ is concurring opinion
-L is limited
-o is overruled
-op is overruled in part
-q is questioned
-su is superseded
Reversed: affects the parties
example: Smith sues Jones. Smith wins. If reversed. Jones wins.
Overruled: precedent value of the case, can happens decades later
example: Plessy v. Ferguson
Remanded: sending it back to lower court to be fixed
You should use the tools you like and understand first and then double check with others. Best to know what is available to work with.
The Importance of a Clearly Defined Issue:
-Always answer the question
Becoming Better Writers: Chapter 5
-You need to find your own
--Example: you can not own something abandoned
-precise and accuracy with your thoughts
Eschew Obfuscation: avoid concealment
Bad writing to avoid:
1. Egregious- conspicuously bad and offensive, overused
2. Bottom line- slang
3. Vis a vis- French slang
4. In order to- too busy to use
5. Heretofore- that which proceeds, too hard to understand
(never let your reader slow down)
6. Here and after- sounds like talking to dead
7. In terms of- too vague
8. It must be remembered that- dumb phrase
9. Clearly- probably is not clear if you are using it
10. Are in accord- just say they agree
11. Former/Later- be clear on who you are talking about
12. Prior/Subsequent- slows reader down
13. Instant- pretentious way to say this
14. Impact- it is a noun NOT A VERB
15. Is violative of- just say violates
16. Manifest- means obvious
17. Not un____- double negatives
18. Obtain- means to get
19. Utilize- just say use
20. Irregardless, Whole nuther, All of a sudden, Exact same thing- NOT WORDS
--avoid all slang
-Simple language is legal writing
Organization:
-the longer your work, the less organized you are
-you must plan and organize in advance
-accurate, short, pithy analysis
Need to Become POD People:
Prepared, Organized, Discipline
How to organize an essay Page 155
-Never turn in an outline for anything
1. First paragraph establishes organizational pattern followed. Hooks the reader.
2. Discuss first category
3. Discuss second category
4. Discuss third category
5. A summary of all the points. Leaves a final impression.
-Good introductory sentence is extremely important. Hook the reader immediately.
-Conclusions need to bring something new and wraps everything together
-Remember the topic and make sure your essay reflects that
-Need to read carefully!
-Don't need to continually include question in the answer
-Never get in trouble for analytical, examine every angle
-Just wants to see that you are reading and analyzing everything
October 13 Notes
Fundamentals of Legal Practice
October 13, 2009
Legal Analysis Page 80
-the book does not provide good examples
Statute:
-always quote it verbatim in quotes
-long statutes you may have to use ...
Facts:
-like the briefing with details on the important facts
Question:
Analysis:
This is where the book fails!
-Subdivision of the Statute of Elements:
--do not lump phrases together
--really watch the commas, "and", and pronouns
--statutes are drafted for the broadest group, badly written
The more elements there are the more apt we are to get out client off
Example on page 81
Should be 11 elements actually
1. strikes, beats, or willfully injuries
is actually 4 elements
-strikes
-beats
-willfully
-injuries
2.the person or apparatus
is 2 elements
3. news reporter or news photographer
is 2 elements
4. during the time when such...
2 here
5. in public place of gathering
-define gathering
Never write in one word sentences! Assume nothing.
Never say "Research is needed" at a minimum, say what you are going to do about it.
Always be proactive, have a plan.
"clearly" is a bad term to use.
Example on page 82
-do not assume the camera is an apparatus
--find a case that supports this
---the extra work can be the difference for a client winning
-if it says it is something, it is! The camera is really a camera
-legally engaged in his pursuit (not the invasion of property)
-Tell where the research is coming from, looking up legislative history or interview witnesses and clients
-Read the words "As he leaves.." they are probably on his property
-Don't tell that it needs more information, find it or figure out how to obtain it
--Why do we need this information
---very important on making a good case
Example on page 84
-probably established? could be a security guard. find out if it's wrongful
-what is the value
-nighttime don't get too crazy on that point
-we don't know if she lives at the store, or if it is a railway car
--look for the issues, don't be over analyzing unimportant details
Example on page 85
-Bear Hunting
--what is hunting: is it the whole time? walking in the woods to the site? camping?
-does not say she is hunting. is she target practicing? or repairing?
-a crossbow is not a long bow
-negligent? why didn't she check the landscape? being attack? on her property?
--is it just negligence? or is it recklessness?
-dies? if they die of the wound or an infection (a year and a day since injury)
--how long? you would find that in RCW statute
---where you would do the research, when you are doing an assignment provide the answer, why you would go there.
Example on 86
-the definition of aircraft, it doesn't move, or what type
-it's a mock-up and a space shuttle
--she crawled? is she a toddler/child? or is the craft simply small?
-Any liable, legally responsible, culpable person
-insane people, mentally deficient, children
--under 8:
mens rea- guilty mind
actus reus- guilty act
Do not let details slip by you. Analyze all the words!
-stringing together words does not help, answer questions, don't ask more that are not answered
-tampering is a vague term
--it could mean deliberate vandalism or physical interference
Example on page 88
willful
-intentional, volitional action
malicious
-deliberate causing of evil or harm
-blasphemous to who?
--does he want to harm them or cause evil
---seems like he wants to help them (also assumption), what does harm mean
-another string of words without answers
--if you need to find out religious affiliation, research it
Example on page 90
-definition of substantial
-is she mentally stable? (she's writing her name on something)
-maybe look up desecrates
--case about a monument
Example on page 92
-where is the place of confinement? the basketball court? The courtyard? the prison?
-if it doesn't say anything about weapons, there are not weapons
-don't challenge the facts, if it says he attempts to escape, it is true
-did he break the place of confinement?
--what does the term mean? we are not sure.
--how the different definitions impact the case is an A, telling me the term is vague is a C, telling me the term is vague and what that vagueness constitutes, is a B
October 13, 2009
Legal Analysis Page 80
-the book does not provide good examples
Statute:
-always quote it verbatim in quotes
-long statutes you may have to use ...
Facts:
-like the briefing with details on the important facts
Question:
Analysis:
This is where the book fails!
-Subdivision of the Statute of Elements:
--do not lump phrases together
--really watch the commas, "and", and pronouns
--statutes are drafted for the broadest group, badly written
The more elements there are the more apt we are to get out client off
Example on page 81
Should be 11 elements actually
1. strikes, beats, or willfully injuries
is actually 4 elements
-strikes
-beats
-willfully
-injuries
2.the person or apparatus
is 2 elements
3. news reporter or news photographer
is 2 elements
4. during the time when such...
2 here
5. in public place of gathering
-define gathering
Never write in one word sentences! Assume nothing.
Never say "Research is needed" at a minimum, say what you are going to do about it.
Always be proactive, have a plan.
"clearly" is a bad term to use.
Example on page 82
-do not assume the camera is an apparatus
--find a case that supports this
---the extra work can be the difference for a client winning
-if it says it is something, it is! The camera is really a camera
-legally engaged in his pursuit (not the invasion of property)
-Tell where the research is coming from, looking up legislative history or interview witnesses and clients
-Read the words "As he leaves.." they are probably on his property
-Don't tell that it needs more information, find it or figure out how to obtain it
--Why do we need this information
---very important on making a good case
Example on page 84
-probably established? could be a security guard. find out if it's wrongful
-what is the value
-nighttime don't get too crazy on that point
-we don't know if she lives at the store, or if it is a railway car
--look for the issues, don't be over analyzing unimportant details
Example on page 85
-Bear Hunting
--what is hunting: is it the whole time? walking in the woods to the site? camping?
-does not say she is hunting. is she target practicing? or repairing?
-a crossbow is not a long bow
-negligent? why didn't she check the landscape? being attack? on her property?
--is it just negligence? or is it recklessness?
-dies? if they die of the wound or an infection (a year and a day since injury)
--how long? you would find that in RCW statute
---where you would do the research, when you are doing an assignment provide the answer, why you would go there.
Example on 86
-the definition of aircraft, it doesn't move, or what type
-it's a mock-up and a space shuttle
--she crawled? is she a toddler/child? or is the craft simply small?
-Any liable, legally responsible, culpable person
-insane people, mentally deficient, children
--under 8:
mens rea- guilty mind
actus reus- guilty act
Do not let details slip by you. Analyze all the words!
-stringing together words does not help, answer questions, don't ask more that are not answered
-tampering is a vague term
--it could mean deliberate vandalism or physical interference
Example on page 88
willful
-intentional, volitional action
malicious
-deliberate causing of evil or harm
-blasphemous to who?
--does he want to harm them or cause evil
---seems like he wants to help them (also assumption), what does harm mean
-another string of words without answers
--if you need to find out religious affiliation, research it
Example on page 90
-definition of substantial
-is she mentally stable? (she's writing her name on something)
-maybe look up desecrates
--case about a monument
Example on page 92
-where is the place of confinement? the basketball court? The courtyard? the prison?
-if it doesn't say anything about weapons, there are not weapons
-don't challenge the facts, if it says he attempts to escape, it is true
-did he break the place of confinement?
--what does the term mean? we are not sure.
--how the different definitions impact the case is an A, telling me the term is vague is a C, telling me the term is vague and what that vagueness constitutes, is a B
Tuesday, October 13, 2009
October 12th Notes
Legal Research & Writing
October 12th
WSPA CLE Washington State Paralegal Association
Friday Oct 23
8am-4:45pm SU Law School
www.wspaonline.org/2009cle
Difference between the Pacific Reporter and Washington Reporter
Pacific Reporter
-Has key numbers
-The physical size and print
-Double columns
-More detail in case caption
-Summary of case, then headnotes
-The only thing identical is the actual case (the text of the opinion)
Editorial Differences are in both
-came about as a result of the publisher adding something around the actual decision
--case caption: who the litigates were
Washington Reporter
-Headnotes have brackets
--in the actual case facts
If you have a preference, use the one you like for your research.
WestLaw
-Use on the First Project
--you can use either Westlaw or the reference library
--definitely explore Westlaw while you are a student to become familiar with it
Print out a copy of the Westlaw Web based Training from the class website
-Under other resources
--Sign on for training
----click on the training for paralegals
----separate registration (another password you make up) Does not work for researching
----print out the certificate of training for Westlaw, add it to your resume
---15 hours of time the 1st to the last of the month
-----from the time you hit the go button to the time it takes to get a results (3-5 seconds)
Legal Memos
-Memorandum banks are made at law firms
--Memos are not cheap, they take research and time
--Always spell client's name right
--Actually answer the question
Parts of the Legal Memorandum
Her style if different from Bruce's IRAC. Her style is the most formal, so you are prepared for every situation.
Heading
Statement of Facts
Issue Statement
Brief Answer
Discussion
Conclusion
Elements of a Statute:
Element: absolutely must be proven by state or plaintiff
Factor: optional
Statutes only have elements. And statutes are required.
Breaking down the elements of a statute:
-Start at the beginning and go to the end
-Look for and/or and the pieces come together or the pieces are choice
-Look for commas and semicolos Notice they create breaks in elements
-In criminal statutes there is always an Intent element
-Agreement element
-Engage element
-Substantial step
Breaking down criminal conspiracy
1. a person (low IQ or minor may not count)
2. with intent that conduct constituting a crime be performed
3. he or she agrees with one of more persons
4. engage in or cause the performance of such conduct
5. any one of them takes a substantial step in pursuance of such agreement
Does the person charged have to do all four to be convicted?
YES! Elements require satisfaction. You can only pick and choose if there is an "or"
Vehicle Prowling Statute
1. A Person
2. With the intent to commit a crime against a person or property therein he enters or remains unlawfully in
3.motor home or vessel with cabin for sleeping and cooking
Citation:
Wash Rev. Code is the code we use 99% of the time.
-Never worrying about trying to create small caps
§ section symbol ¶ paragraph symbol
x.x.x
1st Title
2nd Chapter
3rd Section
4th Subsection
After 3rd x it goes in ( )
Wash.Rev.Code § 4.04
if it uses hyphens use hyphens
if commas use commas
16.238.129(b)(ii)
Writing Moment
Legal Writing is formal writing
-no contractions, wasn't, couldn't
It's = it is never used because it is a contraction
Its = possessive
HOMEWORK
Project 1:
Service of Process Case
Fact's of Ms. Richmond's case
-auto accident (probably at fault)
-lawsuit filed against her and insurance company
--needed to serve insurance and Richmond
----served Kathy Berger instead (15 year old daughter of Carol Berger (roommates))
-------Kathy is average intelligence, head cheerleader, minor, repeated grades, took US government class, community involved with Girl Scouts, her mother is away on business overnight
(data received from interview with Kathy and local resources that know her)
Was the paperwork improperly served?
-summons used to let her know she was being sued
--lets her know so she can defend herself
---possible default if you don't know (automatic loss)
-if you don't serve properly the lawsuit is gone, you lose the right to the lawsuit when improperly filed
Plaintiff is Mr. Tony Watson
-case is dependant on both being served
-he could attempt to just sue the insurance company but the case would fall apart without the other party involved
-he did not attempt to refile and submit before the limit on the term
--Read the precedent setting case
--Find the Statute on Process of Service
Research Plan for Homework:
1.Identify legal issue
Was the service on the 15 year old girl who resided with the defendant but was not related to her effective?
2.Determine governing law
Where did the act take place? WA Make a list of sources like statutes, rules, cases, constitution. Every hint your boss gives you take! -there is a statute
3.Determinate sources of the law
RCW, RCWA, WA Case Law, Washington Practice (hit an element that makes you wonder) Check the case law to check that element
4.Develop search terms
What are your search terms?
Service of process, starting an action, beginning a lawsuit, commencing a lawsuit
RCW website: online
Title 4 RCW Civil Procedure
-Commencement of actions 4.28 looks good
---read through the sections and find the one that matches the case
---read exactly how Kathy got the papers handed to her to find which of the sections to pick
----break that section in the elements
http://www.apps.leg.wa.gov/rcw
What isn't available in the RCW that is in the RCWA?
-The notes of decision. In the case law.
---Substitute service of statute will show you need the case laws
---Use the RCWA to find them
------Note 23 Personal Service in General
---------lots of cases to look at, see if any of them matches (2 of them will help)
-------------"Debtor's 15 year old" and "Substitute service does not" PULL THESE CASES in the reporter and copy them ( you can print them from Westlaw or one reporter
Bring the Supreme Court Case and the Appellate Court decision to class.
October 12th
WSPA CLE Washington State Paralegal Association
Friday Oct 23
8am-4:45pm SU Law School
www.wspaonline.org/2009cle
Difference between the Pacific Reporter and Washington Reporter
Pacific Reporter
-Has key numbers
-The physical size and print
-Double columns
-More detail in case caption
-Summary of case, then headnotes
-The only thing identical is the actual case (the text of the opinion)
Editorial Differences are in both
-came about as a result of the publisher adding something around the actual decision
--case caption: who the litigates were
Washington Reporter
-Headnotes have brackets
--in the actual case facts
If you have a preference, use the one you like for your research.
WestLaw
-Use on the First Project
--you can use either Westlaw or the reference library
--definitely explore Westlaw while you are a student to become familiar with it
Print out a copy of the Westlaw Web based Training from the class website
-Under other resources
--Sign on for training
----click on the training for paralegals
----separate registration (another password you make up) Does not work for researching
----print out the certificate of training for Westlaw, add it to your resume
---15 hours of time the 1st to the last of the month
-----from the time you hit the go button to the time it takes to get a results (3-5 seconds)
Legal Memos
-Memorandum banks are made at law firms
--Memos are not cheap, they take research and time
--Always spell client's name right
--Actually answer the question
Parts of the Legal Memorandum
Her style if different from Bruce's IRAC. Her style is the most formal, so you are prepared for every situation.
Heading
Statement of Facts
Issue Statement
Brief Answer
Discussion
Conclusion
Elements of a Statute:
Element: absolutely must be proven by state or plaintiff
Factor: optional
Statutes only have elements. And statutes are required.
Breaking down the elements of a statute:
-Start at the beginning and go to the end
-Look for and/or and the pieces come together or the pieces are choice
-Look for commas and semicolos Notice they create breaks in elements
-In criminal statutes there is always an Intent element
-Agreement element
-Engage element
-Substantial step
Breaking down criminal conspiracy
1. a person (low IQ or minor may not count)
2. with intent that conduct constituting a crime be performed
3. he or she agrees with one of more persons
4. engage in or cause the performance of such conduct
5. any one of them takes a substantial step in pursuance of such agreement
Does the person charged have to do all four to be convicted?
YES! Elements require satisfaction. You can only pick and choose if there is an "or"
Vehicle Prowling Statute
1. A Person
2. With the intent to commit a crime against a person or property therein he enters or remains unlawfully in
3.motor home or vessel with cabin for sleeping and cooking
Citation:
Wash Rev. Code is the code we use 99% of the time.
-Never worrying about trying to create small caps
§ section symbol ¶ paragraph symbol
x.x.x
1st Title
2nd Chapter
3rd Section
4th Subsection
After 3rd x it goes in ( )
Wash.Rev.Code § 4.04
if it uses hyphens use hyphens
if commas use commas
16.238.129(b)(ii)
Writing Moment
Legal Writing is formal writing
-no contractions, wasn't, couldn't
It's = it is never used because it is a contraction
Its = possessive
HOMEWORK
Project 1:
Service of Process Case
Fact's of Ms. Richmond's case
-auto accident (probably at fault)
-lawsuit filed against her and insurance company
--needed to serve insurance and Richmond
----served Kathy Berger instead (15 year old daughter of Carol Berger (roommates))
-------Kathy is average intelligence, head cheerleader, minor, repeated grades, took US government class, community involved with Girl Scouts, her mother is away on business overnight
(data received from interview with Kathy and local resources that know her)
Was the paperwork improperly served?
-summons used to let her know she was being sued
--lets her know so she can defend herself
---possible default if you don't know (automatic loss)
-if you don't serve properly the lawsuit is gone, you lose the right to the lawsuit when improperly filed
Plaintiff is Mr. Tony Watson
-case is dependant on both being served
-he could attempt to just sue the insurance company but the case would fall apart without the other party involved
-he did not attempt to refile and submit before the limit on the term
--Read the precedent setting case
--Find the Statute on Process of Service
Research Plan for Homework:
1.Identify legal issue
Was the service on the 15 year old girl who resided with the defendant but was not related to her effective?
2.Determine governing law
Where did the act take place? WA Make a list of sources like statutes, rules, cases, constitution. Every hint your boss gives you take! -there is a statute
3.Determinate sources of the law
RCW, RCWA, WA Case Law, Washington Practice (hit an element that makes you wonder) Check the case law to check that element
4.Develop search terms
What are your search terms?
Service of process, starting an action, beginning a lawsuit, commencing a lawsuit
RCW website: online
Title 4 RCW Civil Procedure
-Commencement of actions 4.28 looks good
---read through the sections and find the one that matches the case
---read exactly how Kathy got the papers handed to her to find which of the sections to pick
----break that section in the elements
http://www.apps.leg.wa.gov/rcw
What isn't available in the RCW that is in the RCWA?
-The notes of decision. In the case law.
---Substitute service of statute will show you need the case laws
---Use the RCWA to find them
------Note 23 Personal Service in General
---------lots of cases to look at, see if any of them matches (2 of them will help)
-------------"Debtor's 15 year old" and "Substitute service does not" PULL THESE CASES in the reporter and copy them ( you can print them from Westlaw or one reporter
Bring the Supreme Court Case and the Appellate Court decision to class.
Sunday, October 11, 2009
Helpful Law Links
These are just a few links that I have been finding helpful. I'll add to it as I find more. If you want to add to the list please add it in a comment and I'm make sure to add it to the full list.
Washington Administrative Code (WAC
http://apps.leg.wa.gov/wac/
Revised Code of Washington (RCW)
http://apps.leg.wa.gov/rcw/
Supreme Court Hallmarks
http://library.thinkquest.org/11572/cc/
The U.S. Constitution Online
http://www.usconstitution.net/const.html
Washington Administrative Code (WAC
http://apps.leg.wa.gov/wac/
Revised Code of Washington (RCW)
http://apps.leg.wa.gov/rcw/
Supreme Court Hallmarks
http://library.thinkquest.org/11572/cc/
The U.S. Constitution Online
http://www.usconstitution.net/const.html
Friday, October 9, 2009
Taped Lectures
I've been taping the lectures of both Fundamentals of Legal Practice and Legal Research & Writing Monday's class. The first lecture didn't tape too well but is better with headphones. And a few of the early lectures are in parts since I was still learning the recorder.
They can be found here:
http://www.soulee.net/Paralegal/
These are in mp3 format. They might not all work right now as I am working through some issues with the upload. I hope to have these all up and working shortly and will update as needed.
October 8th Notes
Fundamentals of Legal Practice
October 8, 2009
Paralegal Google Group email: jeffreywelling@gmail.com
Homework #1 Due Oct. 15th
-prepare legal brief of Katko v. Briney
-handed down from Iowa Supreme Court in 1971
-Pages 61-62
-or @ 183 NW2d 657
-Only 1 page
-substance counts
IRAC
__________
Issue: What problem/dispute/question is the Court being asked to resolve?
Rule: (Answer goes here YES or NO) What law/policy/principle applies to the situation?
Analysis: What key facts in the problem/dispute/question will most influence the outcome?
Conclusion: After applying the Rule to the Analysis, how did the court resolve the Issue, which competing position prevailed, and why?
Substantive Law: the law itself, 5th and 14th Amendments (We have a right for laws that are fair)
Procedural Law: the way that law is enforced and applied, Right to a hearing
-When you do research in the real world, photocopy the cases. So you are ready to hand the lawyer the full case.
Smith v. Jones Page 49
-Smith was the plaintiff and is the appellant since the case is Smith v. Jones.
-Pi symbol is plaintiff
-Delta is the defendant
-Smith is the Appellant and Loser
-Jones is the Appellee and Winner
-Look at what the law is protecting
-example: defamation, no physical harm to you but protecting your reputation
emotional distress, property rights, your interests
-Direct quotes are better than paraphrasing. It helps the lawyer understand what the court has said and it's easier for him to grab the quote.
Example Brief Page 50
-Don't care who won
-use names
-quote "the degree of property..."
IRAC this example on Page 50:
I: Does the tort of trespass require damage or injury to the property itself?
R: No. The tort of trespass protects the owner with exclusive use and enjoyment of property.
A: use Facts in piece
C: Lack of physical damage is not grounds for suing.
-Add nothing to the brief, such as law or opinions
-Beware of "stolen" quote on quote
Inchoate Crimes (incomplete)
1. Conspiracy
2. Attempt
3. Solicitation (asking someone else to commit crime)
-You only get prosecuted for only one thing
-Attempt merges
-Solicitation merges
-Conspiracy does not merge
-Why? Likelihood of success, the more people, the more likely success
Hargrave v. Brock Page 58
-False Imprisonment
-Constrained movement
-Protecting freedom of movement
I: Does the tort of false imprisonment require physical confinement or restraint?
R: No. Any unconsented prevention of freedom of movement is false imprisonment
A: Hargrave set up a motor boat for himself and left Brock in a row boat over 25 miles from shore without oars. Brock does not swim.
C: It is not necessary to prevent physical freedom of movement to confine someone. freedom of movement was deprived.
Deadly Force
-If there is an imminent threat to life/grievous bodily injury/felony of violence
Reasonable Force
-To defend property
Excessive Force
-May never be used, ever.
-Once the threat is neutralized you can not continue using deadly force.
HOMEWORK CASE:
__________________________
Katko v. Briney (famous true case)
-excessive force can never be used, deadly force is not alway excessive
-spring guns are not excessive force because of the circumstances
-deadly force was not happening not life or felony
-it was set for property, spring gun to protect life is fine
-unhappy with indiscrimination of the spring gun (could shoot police)
The law says property has a lower value than life.
Obert v. Baratta Page 71
-reckless or negligence
-reckless above negligence (likely outcome)
-negligence: you assume the risk
-Assumption of the Risk: you know of the risk and accept that risk
-public contract of "rough and tumble" sports
-normal participation = some risk of predictable injury
-True case is that this is procedural law
I: Was the lower court judgment correct? (this is an appeal)
R: Yes. Because of the risk in sports, injuries must be due to reckless conduct not mere negligence in order to sue.
A: Facts
C: Recklessness was not established and the lower court was correct in its judgment.
-When you brief a case do not put your opinion in it. Do not vary.
Chapter 3
______________________________________
Legal Analysis
-includes opinion
-take these briefs and form a case
-this is the thinking process
-words are stock and trade, that is why you are hired
-mean what you say, you must think of words as words, not clumps
-care what the statue means not what it says
October 8, 2009
Paralegal Google Group email: jeffreywelling@gmail.com
Homework #1 Due Oct. 15th
-prepare legal brief of Katko v. Briney
-handed down from Iowa Supreme Court in 1971
-Pages 61-62
-or @ 183 NW2d 657
-Only 1 page
-substance counts
IRAC
__________
Issue: What problem/dispute/question is the Court being asked to resolve?
Rule: (Answer goes here YES or NO) What law/policy/principle applies to the situation?
Analysis: What key facts in the problem/dispute/question will most influence the outcome?
Conclusion: After applying the Rule to the Analysis, how did the court resolve the Issue, which competing position prevailed, and why?
Substantive Law: the law itself, 5th and 14th Amendments (We have a right for laws that are fair)
Procedural Law: the way that law is enforced and applied, Right to a hearing
-When you do research in the real world, photocopy the cases. So you are ready to hand the lawyer the full case.
Smith v. Jones Page 49
-Smith was the plaintiff and is the appellant since the case is Smith v. Jones.
-Pi symbol is plaintiff
-Delta is the defendant
-Smith is the Appellant and Loser
-Jones is the Appellee and Winner
-Look at what the law is protecting
-example: defamation, no physical harm to you but protecting your reputation
emotional distress, property rights, your interests
-Direct quotes are better than paraphrasing. It helps the lawyer understand what the court has said and it's easier for him to grab the quote.
Example Brief Page 50
-Don't care who won
-use names
-quote "the degree of property..."
IRAC this example on Page 50:
I: Does the tort of trespass require damage or injury to the property itself?
R: No. The tort of trespass protects the owner with exclusive use and enjoyment of property.
A: use Facts in piece
C: Lack of physical damage is not grounds for suing.
-Add nothing to the brief, such as law or opinions
-Beware of "stolen" quote on quote
Inchoate Crimes (incomplete)
1. Conspiracy
2. Attempt
3. Solicitation (asking someone else to commit crime)
-You only get prosecuted for only one thing
-Attempt merges
-Solicitation merges
-Conspiracy does not merge
-Why? Likelihood of success, the more people, the more likely success
Hargrave v. Brock Page 58
-False Imprisonment
-Constrained movement
-Protecting freedom of movement
I: Does the tort of false imprisonment require physical confinement or restraint?
R: No. Any unconsented prevention of freedom of movement is false imprisonment
A: Hargrave set up a motor boat for himself and left Brock in a row boat over 25 miles from shore without oars. Brock does not swim.
C: It is not necessary to prevent physical freedom of movement to confine someone. freedom of movement was deprived.
Deadly Force
-If there is an imminent threat to life/grievous bodily injury/felony of violence
Reasonable Force
-To defend property
Excessive Force
-May never be used, ever.
-Once the threat is neutralized you can not continue using deadly force.
HOMEWORK CASE:
__________________________
Katko v. Briney (famous true case)
-excessive force can never be used, deadly force is not alway excessive
-spring guns are not excessive force because of the circumstances
-deadly force was not happening not life or felony
-it was set for property, spring gun to protect life is fine
-unhappy with indiscrimination of the spring gun (could shoot police)
The law says property has a lower value than life.
Obert v. Baratta Page 71
-reckless or negligence
-reckless above negligence (likely outcome)
-negligence: you assume the risk
-Assumption of the Risk: you know of the risk and accept that risk
-public contract of "rough and tumble" sports
-normal participation = some risk of predictable injury
-True case is that this is procedural law
I: Was the lower court judgment correct? (this is an appeal)
R: Yes. Because of the risk in sports, injuries must be due to reckless conduct not mere negligence in order to sue.
A: Facts
C: Recklessness was not established and the lower court was correct in its judgment.
-When you brief a case do not put your opinion in it. Do not vary.
Chapter 3
______________________________________
Legal Analysis
-includes opinion
-take these briefs and form a case
-this is the thinking process
-words are stock and trade, that is why you are hired
-mean what you say, you must think of words as words, not clumps
-care what the statue means not what it says
October 6th Notes
Fundamentals of Legal Practice
October 6, 2009
Review of Last Class
-There is no big book of law.
-Law comes from statues, constitutions, case law, ordinances, etc.
-Supreme court requires writ of cert with federal issue/public policy
-Federal court requires issue of federal law, diversity of citizenship, & $75,000
-You must go to the appropriate court with your case.
-Mandatory precedent:
-in the same system
-must be a higher court
-same facts
-Supreme court judges are called justices (both state and federal)
-are not all powerful (checks & balances)
-Dred Scott v. Sandford 1857(proper action of judge)
-Capital Punishment (death penalty)
- Justice Roger Brooke Taney
-showed restraint in his decision of Dred Scott v. Sandford
-2/3 required for constitutional change
-27th amendment 1992 pay raises
-26th amendment 18 to vote
___________________________________________________________
Trial Courts Page 20
-Issues of Fact
-decided by jury
-handles actual facts example: speeding, drunk, view obscured
-Issues of Law
-decided by judge
-handles the law example: competency, rules on objections, evidence
-Appeals
-almost always panels who hear transcript of trial
-3 judges (div I, II, III)
-Only hear appeals if:
1. about an issue of law
-can not appeal issue of fact
-something the judge messed up
2. prejudicial error, not a harmless error
-affect the outcome
-harmless errors do not affect outcome
-prevention of bureaucracy
Civil v. Criminal Law Page 25
-Civil
-concerned with rights and remedies of the law
-example: breach of contract
-tends to only be about money (no longer with battle)
-compensation
-only remedy available is money
1. Compensatory Damages
-most losses are about money
-objective is making the plaintiff whole (bringing back to previous state)
1.General Damages
-puts a $ amount on something
-example: pain,suffering,emotional, disfigurement, reputation
2. Special Damages
-easy to quantify
-example: wage loss, medical bills, auto damage,
2. Punitive or Exemplary Damages
-designed to punish the defendant's conduct and deter others from conduct
-Richard Grimshaw v. Ford Motor 1981 Exploding Pinto case
-WA does not offer these damages
-Why?
-What about all the other victims?
-Already have general damages money
-OR has punitive but 40% must go to public good
-Punitive means punish
-criminal system takes care of that side of case
-Disproportionate towards to damages
-Liebeck v. McDonald's 1994
-millions on hot coffee case
-The jury makes the determination
3. Nominal Damages
-Token damages
-Preserves a principal
-example: sue for $1 on trespassing
-the right for assembly, ACLU cases
-Non-profit organizations
-Class Action can be either compensation or punitive
-collection of smaller suits tied together
-Equitable Remedies
-Only judges no jury
-Must have "clean hands"
-example: secret contract breached can not come to court
-Constructive Trust
-Getting the particular outcome
-example: getting back a necklace
-Campbell v. Wentz 1948
-Output contract: we will buy all your carrots regardless of amount
-Wentz upped price during blithe wanted to breach contract
-Campbell didn't want money, wanted carrots
-Injunctions
-example: tuba @ 3am needs to stop
-Resending Contracts
-Restitution
-example: clock fixer has clock but didn't fix, just want clock back
-Criminal
-certain conduct hurts everyone
-society cares
-diminish society
-Terminology
-Guilty not used in class
-Liable is used in class
1. Felonies
-punished by more than a year
-go to prison
-loss of civil rights/liberties
-ineligible for licenses
2. Misdemeanors
-punished less than a year
-go to jail
-Civil and Criminal Cases that are both
-theft and murder
-example: murder of breadwinner, theft of wallet
-in prison but need money or wallet back
-double jeopardy case
-can't have the same case
-hung juries do not apply
-state/federal court can have same case does not apply
Landmark distinctions between Criminal v. Civil
-Burden of proof (Latin: onus probandi)
-obligation to shift the assumed conclusion away from an oppositional opinion to one's own position
-only be fulfilled by evidence
-Civil
-Burden of Proof
-beyond a reasonable doubt
-Jury 9/10 WA 10/12
-Right to Appeal
-Level Field (no presumtions)
-Criminal
-Burden of Proof
-preponderance of evidence
-Unanimous Jury 12/12
-No Appeal of acquittal
-Presumed innocent
-We like the unlevel playing field in criminal.
-Better that they are free than one unfair punishment
-Two outcomes in a criminal case
-Guilty "You did it"
-Not Guilty "We can't prove you did it"
Definitions Page 29
-Study these terms
-Jurisdiction
-refers to the power of the court to hear a case
-which is the proper one to bring the case to
-Depends on:
-Subject Matter
-Geography
-Venue
Chapter 2 Page 39
-Briefing Cases
-will be covered in other class
-Judges don't agree most of the time
-Per Curiam
-it speaks for the entire court
-Concuring Opinions
-agree with outcome, not the reasoning
-should win but for another reason
-Dissenting Opinions
-agree with outcome, not the reasoning
-shouldn't have one but for another reason
-Read these opinions, you can cite these
-tend to be used in appealing cases
-Pro Se
-representing themselves
-Amicus Curiae Brief
-"friend of the court"
-C.J. means Chief Justice
-Judges can join in opinions, generally written by the most senior judges
-Brief
-short summary of a case
-find cases that support both opinions
-Most Important Case of All
-Marbury v. Madison 1803
-1800 Adams leaving office appointed judges
-Marbury was told no position so he:
-found Judiciary Act of 1790
-writ of mandate for the position
-Chief Justice Marshall still said No
-found Judiciary Act unconstitutional
-Allowed (Article III in Constitution)
-means Judges can find Congress unconstitutional
-defined checks & balances
"It is emphatically the province and duty of the judicial department to say what the law is. . . . If two laws conflict with each other, the courts must decide on the operation of each. . . . This is of the very essence of judicial duty."
--John Marshall's quote from the Marbury v. Madison case
-He does not care about the format of your brief. He will teach his method.
-No one cares what form it is in with the real world.
-Form is almost never elevated over substances.
-IRAC Method of Briefing (his prefered)
4 Steps
1.Issue
-what the court is being called upon to resolve
-one sentence
2.The Rule of Law
-rule that applies to the fact
-one sentence
3.Analysis
-Who did what, to who, and why
-Paragraph 2-3 on important ones, less on less important
4.Conclusion
-What was decided and why
Just make your briefs simple, pithy, and accurate. Always ask "Why do we need this?"
The Book's Methods Page 41
Format #1
1.Case Name and Cite
2.The Remedy
-what the result was, not what was asked for
3.Cause of Action
-what they are suing for
-does not feel it is important to mention
-assume it's about similar case
-need for brevity
-assume your audience is well educated (lawyer)
4.The Facts
-Analysis of critical facts on the issue, law, conclusion
-relevant to the determination of the case
-be careful with language (his/her use terminology)
-not always clear who plaintiff/defendant is
-Appeals
example: Smith v. Jones - Smith wins
-Jones appeals
-Case becomes: Jones v. Smith
-Same last names, use the first names
-avoid excessive facts
5.Procedural History
-how the course came
-trial court proceedings and appellate court proceedings
-he does not agree on this
-all you need is the higher court, not the lower court
6.The Issue
-the main legal question
-does not always need to be stated as whether
-examples:can you state action, will there be a remedy, should the court
-the rule of law answers with yes or no (literally)
-always answer your issue
example: the issue is unconstitutional? Yes it is. Power of Article III
7.The Finding
-Who won and why?
-Interested in the prevailing position
-Example: Can not expand the position of the Supreme Court for more power in Marbury v. Madison Not that Madison won
8.The Reason
-Why the court reached this conclusion?
October 6, 2009
Review of Last Class
-There is no big book of law.
-Law comes from statues, constitutions, case law, ordinances, etc.
-Supreme court requires writ of cert with federal issue/public policy
-Federal court requires issue of federal law, diversity of citizenship, & $75,000
-You must go to the appropriate court with your case.
-Mandatory precedent:
-in the same system
-must be a higher court
-same facts
-Supreme court judges are called justices (both state and federal)
-are not all powerful (checks & balances)
-Dred Scott v. Sandford 1857(proper action of judge)
-Capital Punishment (death penalty)
- Justice Roger Brooke Taney
-showed restraint in his decision of Dred Scott v. Sandford
-2/3 required for constitutional change
-27th amendment 1992 pay raises
-26th amendment 18 to vote
___________________________________________________________
Trial Courts Page 20
-Issues of Fact
-decided by jury
-handles actual facts example: speeding, drunk, view obscured
-Issues of Law
-decided by judge
-handles the law example: competency, rules on objections, evidence
-Appeals
-almost always panels who hear transcript of trial
-3 judges (div I, II, III)
-Only hear appeals if:
1. about an issue of law
-can not appeal issue of fact
-something the judge messed up
2. prejudicial error, not a harmless error
-affect the outcome
-harmless errors do not affect outcome
-prevention of bureaucracy
Civil v. Criminal Law Page 25
-Civil
-concerned with rights and remedies of the law
-example: breach of contract
-tends to only be about money (no longer with battle)
-compensation
-only remedy available is money
1. Compensatory Damages
-most losses are about money
-objective is making the plaintiff whole (bringing back to previous state)
1.General Damages
-puts a $ amount on something
-example: pain,suffering,emotional, disfigurement, reputation
2. Special Damages
-easy to quantify
-example: wage loss, medical bills, auto damage,
2. Punitive or Exemplary Damages
-designed to punish the defendant's conduct and deter others from conduct
-Richard Grimshaw v. Ford Motor 1981 Exploding Pinto case
-WA does not offer these damages
-Why?
-What about all the other victims?
-Already have general damages money
-OR has punitive but 40% must go to public good
-Punitive means punish
-criminal system takes care of that side of case
-Disproportionate towards to damages
-Liebeck v. McDonald's 1994
-millions on hot coffee case
-The jury makes the determination
3. Nominal Damages
-Token damages
-Preserves a principal
-example: sue for $1 on trespassing
-the right for assembly, ACLU cases
-Non-profit organizations
-Class Action can be either compensation or punitive
-collection of smaller suits tied together
-Equitable Remedies
-Only judges no jury
-Must have "clean hands"
-example: secret contract breached can not come to court
-Constructive Trust
-Getting the particular outcome
-example: getting back a necklace
-Campbell v. Wentz 1948
-Output contract: we will buy all your carrots regardless of amount
-Wentz upped price during blithe wanted to breach contract
-Campbell didn't want money, wanted carrots
-Injunctions
-example: tuba @ 3am needs to stop
-Resending Contracts
-Restitution
-example: clock fixer has clock but didn't fix, just want clock back
-Criminal
-certain conduct hurts everyone
-society cares
-diminish society
-Terminology
-Guilty not used in class
-Liable is used in class
1. Felonies
-punished by more than a year
-go to prison
-loss of civil rights/liberties
-ineligible for licenses
2. Misdemeanors
-punished less than a year
-go to jail
-Civil and Criminal Cases that are both
-theft and murder
-example: murder of breadwinner, theft of wallet
-in prison but need money or wallet back
-double jeopardy case
-can't have the same case
-hung juries do not apply
-state/federal court can have same case does not apply
Landmark distinctions between Criminal v. Civil
-Burden of proof (Latin: onus probandi)
-obligation to shift the assumed conclusion away from an oppositional opinion to one's own position
-only be fulfilled by evidence
-Civil
-Burden of Proof
-beyond a reasonable doubt
-Jury 9/10 WA 10/12
-Right to Appeal
-Level Field (no presumtions)
-Criminal
-Burden of Proof
-preponderance of evidence
-Unanimous Jury 12/12
-No Appeal of acquittal
-Presumed innocent
-We like the unlevel playing field in criminal.
-Better that they are free than one unfair punishment
-Two outcomes in a criminal case
-Guilty "You did it"
-Not Guilty "We can't prove you did it"
Definitions Page 29
-Study these terms
-Jurisdiction
-refers to the power of the court to hear a case
-which is the proper one to bring the case to
-Depends on:
-Subject Matter
-Geography
-Venue
Chapter 2 Page 39
-Briefing Cases
-will be covered in other class
-Judges don't agree most of the time
-Per Curiam
-it speaks for the entire court
-Concuring Opinions
-agree with outcome, not the reasoning
-should win but for another reason
-Dissenting Opinions
-agree with outcome, not the reasoning
-shouldn't have one but for another reason
-Read these opinions, you can cite these
-tend to be used in appealing cases
-Pro Se
-representing themselves
-Amicus Curiae Brief
-"friend of the court"
-C.J. means Chief Justice
-Judges can join in opinions, generally written by the most senior judges
-Brief
-short summary of a case
-find cases that support both opinions
-Most Important Case of All
-Marbury v. Madison 1803
-1800 Adams leaving office appointed judges
-Marbury was told no position so he:
-found Judiciary Act of 1790
-writ of mandate for the position
-Chief Justice Marshall still said No
-found Judiciary Act unconstitutional
-Allowed (Article III in Constitution)
-means Judges can find Congress unconstitutional
-defined checks & balances
"It is emphatically the province and duty of the judicial department to say what the law is. . . . If two laws conflict with each other, the courts must decide on the operation of each. . . . This is of the very essence of judicial duty."
--John Marshall's quote from the Marbury v. Madison case
-He does not care about the format of your brief. He will teach his method.
-No one cares what form it is in with the real world.
-Form is almost never elevated over substances.
-IRAC Method of Briefing (his prefered)
4 Steps
1.Issue
-what the court is being called upon to resolve
-one sentence
2.The Rule of Law
-rule that applies to the fact
-one sentence
3.Analysis
-Who did what, to who, and why
-Paragraph 2-3 on important ones, less on less important
4.Conclusion
-What was decided and why
Just make your briefs simple, pithy, and accurate. Always ask "Why do we need this?"
The Book's Methods Page 41
Format #1
1.Case Name and Cite
2.The Remedy
-what the result was, not what was asked for
3.Cause of Action
-what they are suing for
-does not feel it is important to mention
-assume it's about similar case
-need for brevity
-assume your audience is well educated (lawyer)
4.The Facts
-Analysis of critical facts on the issue, law, conclusion
-relevant to the determination of the case
-be careful with language (his/her use terminology)
-not always clear who plaintiff/defendant is
-Appeals
example: Smith v. Jones - Smith wins
-Jones appeals
-Case becomes: Jones v. Smith
-Same last names, use the first names
-avoid excessive facts
5.Procedural History
-how the course came
-trial court proceedings and appellate court proceedings
-he does not agree on this
-all you need is the higher court, not the lower court
6.The Issue
-the main legal question
-does not always need to be stated as whether
-examples:can you state action, will there be a remedy, should the court
-the rule of law answers with yes or no (literally)
-always answer your issue
example: the issue is unconstitutional? Yes it is. Power of Article III
7.The Finding
-Who won and why?
-Interested in the prevailing position
-Example: Can not expand the position of the Supreme Court for more power in Marbury v. Madison Not that Madison won
8.The Reason
-Why the court reached this conclusion?
October 5th Notes
Legal Research & Writing Monday Class
October 5th
Instructor: Judi Maier
Webpage: https://catalysttools.washington.edu/workspace/jam06/7598/
Westlaw: passwords next week
-small modules on the website
--research can be done browser however elearning needs Windows to run
Turned in Diagnostic Test
-she will be getting back about the results with helpful sections to read
Remember your audience, judges. Extremely narrow audience and well educated. They have a traditional way of thinking and reading that needs to be catered to. Researching is based on facts...not theory. We need to convince others that our client should win.
The location of resources is specialized. The syllabus has the library locations. The largest is the UW.
Homework: Find a law library
LAW LIBRARIES
Four law libraries are located in the Seattle-Tacoma area.
Gallagher Law Library – U of W Law School
Main Campus, William H. Gates Hall, Floors L1 & L2
Web Site: http://lib.law.washington.edu/
Mon-Thur: 8am - 11pm
Fri: 8am - 6pm
Sat: 11am - 6pm
Sun: 11am - 11 pm
State Law Library – Temple of Justice, Olympia
415 12th St., Olympia
360.357.2136
Web Site: www.courts.wa.gov/library/
King County Law Library – Seattle
King County Court House, 6th floor, 516 3rd Ave., Seattle
206.296.0940
Web Site: www.kcll.org
Pierce County Law Library – Tacoma
Room IA-105 County City Bldg., 930 Tacoma Ave. S., Tacoma
253.798.7494
Web Site: www.piercecountywa.org/lawlibrary
51 Constitutions: Federal and States
-1960s: state rights can be more extensive than federal
--state laws began to review and enforce
3 Branches
-layers of federal, state, local
Legislative: makes laws
--enact statutes and ordinances compiled in codes (municipal, state, federal)
Judicial: interprets the law
--federal and state courts interpret and can be direct or indirect and are compiled in reporters
Basic Structure:
-Lowest level: Municipal/District court: handles cases under threshold and minor infractions, minor jail time
-Trial Courts: witnesses, jury, judge, evidence
-Appellate Courts: Loser can appeal decision, panels of judges or justices that hear the case only the verbatim transcript and paper documents, cold records (rarely see litigates) only attorneys
-Supreme Courts
State:
Supreme
Appellate 1, seattle, 2 tacoma, 3 spokane
Trail courts/Superior court
Municipal/District
Federal:
US Supreme Court
Appellate Courts: Circuit Courts
Trial Courts/District Courts
The Process:
-You have a right to a trial.
-You have a right of first appeal.
-Appeal to Supreme Court is by writ of cert ONLY (take about 20% of cases)
--required to hear death penalty cases
Reporters:
-Books of Judicial Opinions
-Sequenced by date of decision
State:
Trial Courts: Not Published
Appellate Courts: Decided by Judge
Supreme Courts:Published
--You can not rely on an unpublished intermediate Appellate court decision.
--You will find the unpublished and published in Westlaw.
--If the reasoning in an unpublished decision worked before, you can use the logic again. Just not cite it.
Federal:
Trial Courts: Published
Appellate Courts: Published
Supreme Courts: Published
Executive:
-Administrative Agencies are the biggest branch of government. They publish more law than any other branches.
-Promulgate rules
-Compiled in books federal: CFRs state: WACs
Authority:
-Courts bound by primary authority: constitutions, statutes, rules, prior case law
-Most federal laws are binding in federal court
--Stare decisis: precedent based system
--1954 desegregation law was overturned and set it all in motion
-Courts are persuaded by secondary authority
--out of jurisdiction
Primary (binding w/in jurisdiction)
then secondary (persuasive never binding)
Case Law: broad term, court opinions interpreting and applying enacted laws
Common Law: is a subset of Case Law
--narrower and makes law
--courts make laws on very few specifics: Property Law and Contract Law are the largest examples
---easements don't have statutes
Secondary:
-read more about, looking for more authority
-persuasive but not binding
-link to primary law
-smart researching and then get cases
Examples of Seconday:
Legal encyclopaedias
-American jurisprudence
-CJS corpus juris secundum
-Horn books are single volume on one type of law
-Treatises are multi volume on one type of law
-Law reviews periodicals
-ALR American Law Reports
-arranged topically and have case law imbedded
Loose leaf services
-CCH specific topics in the law that change
-IRS always changes to check up the new policies
Practice Books
-Called Desk Books in WA on all different areas of law
-Volumes of looseleaf
-for expertise with "how to"
-link to primary law
Third Category of Books
-Finding Tools
-Links to statutes, codes, cases
Examples of finding tools:
-annotated statutes/codes numeric by topic
-revised code of WA RCW Just the law nothing else
-RCWA the annotated version byWestlaw
--has more than the law very helpful
-Digests: arranged by topic
-Shepards and KeyCite
-Secondary sources links to case and statutes
Primary is #1 and binding
Secondary is educational and persuasive
Policy is why it is important
Hierarchy
-Federal and State Co-exist
but jurisdiction determinative
Jurisdiction
-determines who's law controls
-sets the platform for researching
HOMEWORK
_______________________________
-Mary was found on a street in Tacoma and brought to a western state hospital where she has been involuntarily confined for the past 10 days. Her sister Lilly believes that the States wants to extend her commitment. Lilly has come to our law firm to find out if the state can do this.
Your boss asked you to find out after Mary's initial 14 day period confinement where is the process to extend confinement and who bears the burden of proving it?
Who has the burden of proof? Can the state even do this?
-Use a Plan (logic puzzle)
1. Identify issue/legal question
After Mary's initial 14 day period of confinement,What is the process for extending an involuntary commitment following a 14-day commitment and who bears the burden of proving it?
2. Determine the jurisdiction / governing law that will apply
Mary was found in Tacoma
WA Law
-Tacoma or Pierce Country municipal code
-WA statutes RCW
--case law
-WAC
Federal law constitutional law
--pursuit of liberty right
99% of the time go to state statute
State seems to be a good place to start UNLESS its a contract or real estate law under common law
WA state statute RCW good place to start
3. Determine the sources of that law What books will help
a. Primary binding
-federal and wa constitution
-wa statutes GOOD
-WAC Nope
-Case Law
b. Secondary persuasive
-read it in a hornbook or practice book
-Washington Practice
4. Develop search terms
---commitment
---mental health
Where to begin?
--statutes best place to begin
-locate the statute/rule of involuntarily commitment
---who has the burden?
--courts interpretation of law
---find a case
---read them
Two kinds of statute books
Official vs Annotated
Pocket Parts are the updates
States have 2 sets of reporters
--Official
Washington Appellate Reports (green)
was app or wn app
Washington Reports (gold)
--Regional
Regional Reporter combined appellate and supreme
Pacific Reporter
Morris v. Blaker 118, Wn.2d 133, 821 P.2d 482 (1992)
Reads as:
volume Washington 118 and Pacific 821
beginning page is 133 and 482
October 5th
Instructor: Judi Maier
Webpage: https://catalysttools.washington.edu/workspace/jam06/7598/
Westlaw: passwords next week
-small modules on the website
--research can be done browser however elearning needs Windows to run
Turned in Diagnostic Test
-she will be getting back about the results with helpful sections to read
Remember your audience, judges. Extremely narrow audience and well educated. They have a traditional way of thinking and reading that needs to be catered to. Researching is based on facts...not theory. We need to convince others that our client should win.
The location of resources is specialized. The syllabus has the library locations. The largest is the UW.
Homework: Find a law library
LAW LIBRARIES
Four law libraries are located in the Seattle-Tacoma area.
Gallagher Law Library – U of W Law School
Main Campus, William H. Gates Hall, Floors L1 & L2
Web Site: http://lib.law.washington.edu/
Mon-Thur: 8am - 11pm
Fri: 8am - 6pm
Sat: 11am - 6pm
Sun: 11am - 11 pm
State Law Library – Temple of Justice, Olympia
415 12th St., Olympia
360.357.2136
Web Site: www.courts.wa.gov/library/
King County Law Library – Seattle
King County Court House, 6th floor, 516 3rd Ave., Seattle
206.296.0940
Web Site: www.kcll.org
Pierce County Law Library – Tacoma
Room IA-105 County City Bldg., 930 Tacoma Ave. S., Tacoma
253.798.7494
Web Site: www.piercecountywa.org/lawlibrary
51 Constitutions: Federal and States
-1960s: state rights can be more extensive than federal
--state laws began to review and enforce
3 Branches
-layers of federal, state, local
Legislative: makes laws
--enact statutes and ordinances compiled in codes (municipal, state, federal)
Judicial: interprets the law
--federal and state courts interpret and can be direct or indirect and are compiled in reporters
Basic Structure:
-Lowest level: Municipal/District court: handles cases under threshold and minor infractions, minor jail time
-Trial Courts: witnesses, jury, judge, evidence
-Appellate Courts: Loser can appeal decision, panels of judges or justices that hear the case only the verbatim transcript and paper documents, cold records (rarely see litigates) only attorneys
-Supreme Courts
State:
Supreme
Appellate 1, seattle, 2 tacoma, 3 spokane
Trail courts/Superior court
Municipal/District
Federal:
US Supreme Court
Appellate Courts: Circuit Courts
Trial Courts/District Courts
The Process:
-You have a right to a trial.
-You have a right of first appeal.
-Appeal to Supreme Court is by writ of cert ONLY (take about 20% of cases)
--required to hear death penalty cases
Reporters:
-Books of Judicial Opinions
-Sequenced by date of decision
State:
Trial Courts: Not Published
Appellate Courts: Decided by Judge
Supreme Courts:Published
--You can not rely on an unpublished intermediate Appellate court decision.
--You will find the unpublished and published in Westlaw.
--If the reasoning in an unpublished decision worked before, you can use the logic again. Just not cite it.
Federal:
Trial Courts: Published
Appellate Courts: Published
Supreme Courts: Published
Executive:
-Administrative Agencies are the biggest branch of government. They publish more law than any other branches.
-Promulgate rules
-Compiled in books federal: CFRs state: WACs
Authority:
-Courts bound by primary authority: constitutions, statutes, rules, prior case law
-Most federal laws are binding in federal court
--Stare decisis: precedent based system
--1954 desegregation law was overturned and set it all in motion
-Courts are persuaded by secondary authority
--out of jurisdiction
Primary (binding w/in jurisdiction)
then secondary (persuasive never binding)
Case Law: broad term, court opinions interpreting and applying enacted laws
Common Law: is a subset of Case Law
--narrower and makes law
--courts make laws on very few specifics: Property Law and Contract Law are the largest examples
---easements don't have statutes
Secondary:
-read more about, looking for more authority
-persuasive but not binding
-link to primary law
-smart researching and then get cases
Examples of Seconday:
Legal encyclopaedias
-American jurisprudence
-CJS corpus juris secundum
-Horn books are single volume on one type of law
-Treatises are multi volume on one type of law
-Law reviews periodicals
-ALR American Law Reports
-arranged topically and have case law imbedded
Loose leaf services
-CCH specific topics in the law that change
-IRS always changes to check up the new policies
Practice Books
-Called Desk Books in WA on all different areas of law
-Volumes of looseleaf
-for expertise with "how to"
-link to primary law
Third Category of Books
-Finding Tools
-Links to statutes, codes, cases
Examples of finding tools:
-annotated statutes/codes numeric by topic
-revised code of WA RCW Just the law nothing else
-RCWA the annotated version byWestlaw
--has more than the law very helpful
-Digests: arranged by topic
-Shepards and KeyCite
-Secondary sources links to case and statutes
Primary is #1 and binding
Secondary is educational and persuasive
Policy is why it is important
Hierarchy
-Federal and State Co-exist
but jurisdiction determinative
Jurisdiction
-determines who's law controls
-sets the platform for researching
HOMEWORK
_______________________________
-Mary was found on a street in Tacoma and brought to a western state hospital where she has been involuntarily confined for the past 10 days. Her sister Lilly believes that the States wants to extend her commitment. Lilly has come to our law firm to find out if the state can do this.
Your boss asked you to find out after Mary's initial 14 day period confinement where is the process to extend confinement and who bears the burden of proving it?
Who has the burden of proof? Can the state even do this?
-Use a Plan (logic puzzle)
1. Identify issue/legal question
After Mary's initial 14 day period of confinement,What is the process for extending an involuntary commitment following a 14-day commitment and who bears the burden of proving it?
2. Determine the jurisdiction / governing law that will apply
Mary was found in Tacoma
WA Law
-Tacoma or Pierce Country municipal code
-WA statutes RCW
--case law
-WAC
Federal law constitutional law
--pursuit of liberty right
99% of the time go to state statute
State seems to be a good place to start UNLESS its a contract or real estate law under common law
WA state statute RCW good place to start
3. Determine the sources of that law What books will help
a. Primary binding
-federal and wa constitution
-wa statutes GOOD
-WAC Nope
-Case Law
b. Secondary persuasive
-read it in a hornbook or practice book
-Washington Practice
4. Develop search terms
---commitment
---mental health
Where to begin?
--statutes best place to begin
-locate the statute/rule of involuntarily commitment
---who has the burden?
--courts interpretation of law
---find a case
---read them
Two kinds of statute books
Official vs Annotated
Pocket Parts are the updates
States have 2 sets of reporters
--Official
Washington Appellate Reports (green)
was app or wn app
Washington Reports (gold)
--Regional
Regional Reporter combined appellate and supreme
Pacific Reporter
Morris v. Blaker 118, Wn.2d 133, 821 P.2d 482 (1992)
Reads as:
volume Washington 118 and Pacific 821
beginning page is 133 and 482
October 1st Notes
Fundamentals of Legal Practice
October 1, 2009
Chaya Siegelbaum, Associate Director, UW Extension, University of Washington
email: CSiegelbaum@extn.washington.edu
Webpage: http://extension.washington.edu/ext/certificates/pas/pas_gen.asp
-Registration forms will be emailed for the next quarters.
-To obtain a UW library card take the transaction form to the library.
_____________________________________________________________
Instructor: Bruce Wiener
How to be Successful in the program:
-Late arrivals are alright
-Boot camp style
--Need to be ready to work first day
--Practical application
--Ask questions immediately
-Assignments are not through email. Only printed and double spaced, turned in during class.
-If UW is closed, class is closed.
-Pet peeves:
--Sloppy unprofessional work (make it Supreme Court ready)
--Typos, grammar, stains, white out, professional stationary
--Late assignments (clients don't care about excuses)
--Make sure to proofread after class in order to get the optimal paper
--Lack of attention (his name is WIENER)
--Lack of critical analysis
-EXAMS:
--Concepts and application
--Essay usually
-Be a POD person (words to live by)
--Preparation
--Organization
--Dedication
Reading is about 25 pages a class, don't get too far ahead.
Three steps to being successful in law:
1. Identify the legal issues involved and the key facts
2. Explain the law that applies to the issues and facts
3. Apply the laws to the fact and reason to the conclusion that makes sense
--All hypothetical, no right answer only arguments
--It's about supporting your position not the "right" answer
--You get the problems thrown at you and must find a way to defend
INTRODUCTION
________________________________________
What is a Paralegal? page 3
States are just starting to make a difference between paralegal and legal assistant
-No training, just titles
-CA requires certification
--CLA: chapter 14 tells you how to
The Job-varies on the firm
-can attend trial, clients or just sit and analyse documents
-not all paralegals do the same thing
-need to have practical experience
-need to type, file but you are not a secretary
Paralegals are important because:
1.You free the lawyers up in order to prepare for court
-writing research, meet clients, filing
2.Cheaper for the clients
-bill at lower rate, clients don't to spend the big money on a lawyer
-available, know the case, they speak your language
Employment opportunities for paralegals page 11
Statutes
Laws are called Statues when they are passed by the government
-We don't have one government of checks and balances
-You have the Federal and State government
-Congress does not pass laws for details, they are basic structures for society
These are where to find those laws:
--State (WA) - RCW Revised Code of WA
--Fed (US) - USCA or USC United States Code Annotated
The Constitution is 7 articles w/ 27 amendments and 12 passed as the Bill of Rights.
-Writers of the US Constitution:
--James Madison 6th president 1808
--Alexander Hamilton was VP to Jefferson
--John Jay 1st Justice of the Supreme Court
Each state has a constitution. WA has broad privacy in it.
Administrative Regulations
-FDR w/ the new deal created many of regulations
-Sherman Antitrust Act 1890 was the first antitrust law
Treaties
-for the president to use Article 2
Case Law (where we will spend most of your time)
-Judge's make decisions
--they create binding laws through the doctrine of precedent
---PRESS-a-dent please say it right (not preceding)
-stare decisis: stand by it's decision
We are looking for predictability in law. We use these cases to predict how other cases will go. Why do we care?
-fairness
-efficiency in ruling
However, we need flexibility.
Flexibility versus Predictability
-we want our laws to reflect who we are as a society
-Prohibition is a good example
--Not all pornography is obscene
--once you are obscene you lose first amendment protection
Example: Roth vs. Miller
-where porn became obscene
-1964 Potter Stewart viewpoint on you know it when you see it
-1982 Child porn always defined as obscene
Flexibility Concepts
-Judicial Activism
-The US Constitution is a living document
Predictability Concepts
-Judicial Restraint
We have State and Federal government.
In both:
1. Supreme Court is the highest Court
2. Appellate Court
3. Trial Court
For Precedent
1. Must be the same Court system, either State or Federal
---only exception is the Supreme Court
2. Must be a higher Court
---division I, II, III within the courts
-----if II has a ruling, III does not have to follow it
Example: III-Appellate court in Olympia does not care what II or I did
3. Must be of same or similar facts
With all three existing, it is mandatory and must be followed. If not, it is not binding. Just because it is not mandatory precedent does not make it irrelevant.
Persuasive Authority (Precedent) prefers term authority rather then precedent
Are the facts identical? Can you distinguish them?
example: jaywalking incident between a 40 year old and a 7 year old
You can declare something unconstitutional.
Supreme Court Case:
1972 Furman versus Georgia 7-2
--Case that the death penalty was unconstitutional. Demeaned it cruel and unusual punishment. They could not agree on opinion. Two said it was cruel and unusual by definition five said other reaons. The reasoning was bad, the way it was applied was cruel and unusual. Typically applied to black, poor males, too much discretion. Everyone redrafted to take the discretion out and make it uniform death penalty.
1976 Gregg v. Georgia 7-2
-Constitutional death penalty, since they took the discretion out. But the Supreme Court does not condone death penalty. States must pass their laws and the Supreme Court must protect 8th amendant.
We interpret the laws, we do not make them.
-Example: Dred Scott v. Sandford dealing with slaves as property across Union lines.
Court Systems page 21
State
-Supreme Court
---Every state except NY(their supreme is appellate and superior is supreme)
---Must ask permission to enter Writ of ceriotati or writ of cert: Apply and 4 of 9 must agree to hear case
-Appellate
---WA system: Div I(western), II (central), III (eastern)
-Trial Court
---Superior unlimited amount of money but will take lower amounts too
---District $50,000 ceiling limited (faster, easier, cheaper)
-----only 6 jurors
-----You can hear anything here
Federal
-Supreme Court
---Same writ of cert here with 4 of the 9 agreeing to hear the case
-Circuit Court of Appeal
---in San Francisco
---WA in the 9th circuit Page 24 State Chart
---13 Circuits
-Trial Court
---94 of them in 50 states
---WA calls it District Court Page 22
-----WA has two district courts (western and eastern)
The 2 matters that can be heard federally:
1. Issue with federal law (over constitution or USC regulations)
2. Parties of the dispute are from different states (called diversity) with $75K on dispute
State judges serve for a period of time but Federal judges are for life. Unless there is extreme behaviour or retiree. Judges can move around in the system too.
October 1, 2009
Chaya Siegelbaum, Associate Director, UW Extension, University of Washington
email: CSiegelbaum@extn.washington.edu
Webpage: http://extension.washington.edu/ext/certificates/pas/pas_gen.asp
-Registration forms will be emailed for the next quarters.
-To obtain a UW library card take the transaction form to the library.
_____________________________________________________________
Instructor: Bruce Wiener
How to be Successful in the program:
-Late arrivals are alright
-Boot camp style
--Need to be ready to work first day
--Practical application
--Ask questions immediately
-Assignments are not through email. Only printed and double spaced, turned in during class.
-If UW is closed, class is closed.
-Pet peeves:
--Sloppy unprofessional work (make it Supreme Court ready)
--Typos, grammar, stains, white out, professional stationary
--Late assignments (clients don't care about excuses)
--Make sure to proofread after class in order to get the optimal paper
--Lack of attention (his name is WIENER)
--Lack of critical analysis
-EXAMS:
--Concepts and application
--Essay usually
-Be a POD person (words to live by)
--Preparation
--Organization
--Dedication
Reading is about 25 pages a class, don't get too far ahead.
Three steps to being successful in law:
1. Identify the legal issues involved and the key facts
2. Explain the law that applies to the issues and facts
3. Apply the laws to the fact and reason to the conclusion that makes sense
--All hypothetical, no right answer only arguments
--It's about supporting your position not the "right" answer
--You get the problems thrown at you and must find a way to defend
INTRODUCTION
________________________________________
What is a Paralegal? page 3
States are just starting to make a difference between paralegal and legal assistant
-No training, just titles
-CA requires certification
--CLA: chapter 14 tells you how to
The Job-varies on the firm
-can attend trial, clients or just sit and analyse documents
-not all paralegals do the same thing
-need to have practical experience
-need to type, file but you are not a secretary
Paralegals are important because:
1.You free the lawyers up in order to prepare for court
-writing research, meet clients, filing
2.Cheaper for the clients
-bill at lower rate, clients don't to spend the big money on a lawyer
-available, know the case, they speak your language
Employment opportunities for paralegals page 11
Statutes
Laws are called Statues when they are passed by the government
-We don't have one government of checks and balances
-You have the Federal and State government
-Congress does not pass laws for details, they are basic structures for society
These are where to find those laws:
--State (WA) - RCW Revised Code of WA
--Fed (US) - USCA or USC United States Code Annotated
The Constitution is 7 articles w/ 27 amendments and 12 passed as the Bill of Rights.
-Writers of the US Constitution:
--James Madison 6th president 1808
--Alexander Hamilton was VP to Jefferson
--John Jay 1st Justice of the Supreme Court
Each state has a constitution. WA has broad privacy in it.
Administrative Regulations
-FDR w/ the new deal created many of regulations
-Sherman Antitrust Act 1890 was the first antitrust law
Treaties
-for the president to use Article 2
Case Law (where we will spend most of your time)
-Judge's make decisions
--they create binding laws through the doctrine of precedent
---PRESS-a-dent please say it right (not preceding)
-stare decisis: stand by it's decision
We are looking for predictability in law. We use these cases to predict how other cases will go. Why do we care?
-fairness
-efficiency in ruling
However, we need flexibility.
Flexibility versus Predictability
-we want our laws to reflect who we are as a society
-Prohibition is a good example
--Not all pornography is obscene
--once you are obscene you lose first amendment protection
Example: Roth vs. Miller
-where porn became obscene
-1964 Potter Stewart viewpoint on you know it when you see it
-1982 Child porn always defined as obscene
Flexibility Concepts
-Judicial Activism
-The US Constitution is a living document
Predictability Concepts
-Judicial Restraint
We have State and Federal government.
In both:
1. Supreme Court is the highest Court
2. Appellate Court
3. Trial Court
For Precedent
1. Must be the same Court system, either State or Federal
---only exception is the Supreme Court
2. Must be a higher Court
---division I, II, III within the courts
-----if II has a ruling, III does not have to follow it
Example: III-Appellate court in Olympia does not care what II or I did
3. Must be of same or similar facts
With all three existing, it is mandatory and must be followed. If not, it is not binding. Just because it is not mandatory precedent does not make it irrelevant.
Persuasive Authority (Precedent) prefers term authority rather then precedent
Are the facts identical? Can you distinguish them?
example: jaywalking incident between a 40 year old and a 7 year old
You can declare something unconstitutional.
Supreme Court Case:
1972 Furman versus Georgia 7-2
--Case that the death penalty was unconstitutional. Demeaned it cruel and unusual punishment. They could not agree on opinion. Two said it was cruel and unusual by definition five said other reaons. The reasoning was bad, the way it was applied was cruel and unusual. Typically applied to black, poor males, too much discretion. Everyone redrafted to take the discretion out and make it uniform death penalty.
1976 Gregg v. Georgia 7-2
-Constitutional death penalty, since they took the discretion out. But the Supreme Court does not condone death penalty. States must pass their laws and the Supreme Court must protect 8th amendant.
We interpret the laws, we do not make them.
-Example: Dred Scott v. Sandford dealing with slaves as property across Union lines.
Court Systems page 21
State
-Supreme Court
---Every state except NY(their supreme is appellate and superior is supreme)
---Must ask permission to enter Writ of ceriotati or writ of cert: Apply and 4 of 9 must agree to hear case
-Appellate
---WA system: Div I(western), II (central), III (eastern)
-Trial Court
---Superior unlimited amount of money but will take lower amounts too
---District $50,000 ceiling limited (faster, easier, cheaper)
-----only 6 jurors
-----You can hear anything here
Federal
-Supreme Court
---Same writ of cert here with 4 of the 9 agreeing to hear the case
-Circuit Court of Appeal
---in San Francisco
---WA in the 9th circuit Page 24 State Chart
---13 Circuits
-Trial Court
---94 of them in 50 states
---WA calls it District Court Page 22
-----WA has two district courts (western and eastern)
The 2 matters that can be heard federally:
1. Issue with federal law (over constitution or USC regulations)
2. Parties of the dispute are from different states (called diversity) with $75K on dispute
State judges serve for a period of time but Federal judges are for life. Unless there is extreme behaviour or retiree. Judges can move around in the system too.
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