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Secondary: is not the law, but talks about the law (do not cite ever)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