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