LAWYERING FUNDAMENTALS
1. INTRODUCTION TO THE COURSE, LAWYERING, AND THE LEGAL
SYSTEM
a. Pre-course Survey
i.
I felt really good about my survey answers.
b. Introduction to Lawyering Part 1 Lecture
i.
GOALS:
1. to prepare you for the law school experience
2. Reveal what you can expect during law school
3. simulate classes
4. building important lawyering skills
a. case briefing
b. outlining
c. essay writing
5. demystify traditional law school teaching methods
6. acclimate sooner
7. succeed faster
ii.
“your success and enjoyment are proportional to the effort and attention you
put into it..”
iii.
OBJECTIVES:
1. you should be able to answer the following questions after this module:
a. how does law school prepare you for the work of a lawyer?
b. what is legal analysis?
c. what is legal ambiguity?
d. how do lawyers use questions to solve legal problems?
e. what is the ‘BAE Check?’
2. POP QUIZ:
a. PURPOSE:
i.
reading comprehension abilities
ii.
basic grasp of some of the rules we will cover in class
iii.
ability to identify and resolve legal problems
iv.
ability to follow directions
b. QUIZ QUESTIONS
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i.
Harry Potter suffered from a severe stuttering problem. Severus
Snape, Harry’s potions teacher, approached Harry over thirty times
in a semester and verbally and physically mimicked Harry’s
disability. Harry dreaded attending Severus’s class. Severus never
touched or threatened to touch Harry. Cause of Action by Harry:
Intentional Infliction of Emotional Distress (IIED)
ii.
Cookie Monster pointed an unloaded gun at Grover and said “I am
going to kill you if you eat my cookies.” Grover feared Cookie
Monster would shoot. Grover did not know the gun was unloaded.
Cause of Action by Grover: Assault
iii.
Cookie Monster pointed an unloaded gun at Grover and said “I am
going to kill you if you eat my cookies.” Cause of Action by Grover:
Assault
iv.
Cookie Monster pointed an unloaded gun at Grover and said, “I am
going to kill you if you eat my cookies.” Grover knew the gun was
unloaded. No liability
v.
Maria von Trapp was sitting in the first row of a play. As the lead
actress, Julie Andrews, burst into a song, a large fleck of phlegm
flew from her lips and landed on Maria von Trapp’s face. Cause of
action by Maria: negligence?
vi.
Mary Poppins and Julie Andrews were coworkers. Julie Andrews
always entertained her friend by imitating Mary Poppins’s
mannerisms. One day, MP caught JA imitating her. Mary was so
mad she placed a tack on Julie’s chair. Julie sat on the tack. Cause
of Action by Julie: Battery
vii.
Before they were acquainted, Danny and Sandy happened to be
eating lunch at the same table. Danny had heard that Sandy
hated vegetables. Danny, who also knew Sandy was shy,
attempted to tease Sandy by putting his arm around Sandy’s
neck and pulling her face towards a piece of broccoli. Sany
suffered a sharp pain in the back of her neck, which paralyzed
the left side of her face. Cause of Action by Sandy: Assault and
Battery.
viii.
Banana - Fruit
ix.
Tomato: thing, fruit, veggie
3. Steven Covey’s 7 Habits of Highly Effective People:
a. be proactive
b. begin with the end in mind
4. Activity - What attributes make a good song? describe 4 or 5 attributes that
make a good song.
iv.
What are lawyers trained to do?
1. Why does a hair dress go to a hairdressing school?
a. knowledge
i.
chemicals, shampoos, relaxers
ii.
hair types
iii.
hot tools, etc.
b. skills
i.
cutting
ii.
styling
iii.
counseling
iv.
flexibility
c. Many of these things are not connected to hair - lawyers require robust
knowledge and the ability
2. Why does want to be lawyer go to law school?
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a. knowledge
i.
rules
1. substantive rules (codes, common law, statutes, etc.)
2. Procedural Rules
ii.
legal terminology
iii.
licensing requirements
b. skills
i.
reading comprehension
ii.
critical and creative thinking
iii.
logical reasoning
iv.
knowing how to formulate and ask questions
v.
communicating effectively
vi.
management (time, people, business, accounting)
vii.
grit, persistence, self-discipline
viii.
a want to serve, ethics
c. your legal training is designed to develop critical skills that lawyers use
to solve client problems.
i.
your professors will expect you to learn how to teach yourself the
material.
ii.
they will trust that you are doing the work assigned.
iii.
think of yourself as lawyer-in-training.
iv.
the goal of law school is to teach you how to be a lawyer.
v.
training you to think like a lawyer.
vi.
At the end of course - they want you to see yourself as more than
just a law student.
c. Introduction to Lawyering Part 2 Lecture
i.
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A lawyers work is really about resolving client problems - how do we do that?
1. Legal Analysis
a. definition: examine methodically and in detail the constitution or
structure of something, especially information. It is typically used for
purposes of explanation and interpretation.
i.
Examining it from all sides.
ii.
examining a problem methodically and in detail for purposes of
interpreting that problem in the terms of the law.
iii.
multi step process that lawyers use to solve a problem
b. How do lawyers analyze legal problems?
i.
to analyze methodically and in detail.
1. how would a lawyer analyze the viability of a client’s claim?
2. lawyers use questions as to tools to analyze legal problems
a.
questions help break the problem into small pieces, examine
from angles, and identify what additional info she needs.
b. smaller questions help inform how the lawyer will respond
to the larger question - is this client going to win her case?
3. questions are the primary tool lawyers use to analyze legal
problems. to examine it methodically and in detail, you have to
break the larger question into smaller questions that can be
more easily addressed.
c. what is happening in your brain during legal analysis?
i.
the process of legal analysis is really just categorization.
1. categorizing the problem broadly, and ultimately, all the way
down to categorizing the facts within the specific rules specified
by our law.
a. ability to eliminate is legal analysis
2. categorizing the facts of the problem within the rule of lawconnecting rules and facts.
a. to analyze viability of the case we need to determine whether
we can prove each of the elements of a specific law using the
facts of the subject action.
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3. example- call of the question (question that covers the fact
pattern): What cause of action should sandy bring?
a. Danny and Sandy were eating lunch. Danny knew that S was
shy and hated veggies. D attempted to tease S by putting his
arm around S’s neck and pulling her face towards a piece of
broccoli. Sandy suffered a sharp pain in the back of her neck,
which paralyzed the left side of her face.
4. questions to ask i.
whose sandy? - can tell she’s the plaintiff because she’s
bringing the action.
ii.
what happened to her?
iii.
what cause of action does she have?
iv.
what area of law does her claim fit?
5. using questions is categorizing - connecting the problem to an
area of law and connecting the words and phrases in the story to
the words and phrases in the applicable rule.
6. Connecting the rule of battery to the Danny and Sandy Hypo:
a. Battery: a defendant is liable for battery when he
intentionally causes a harmful or offensive contact with the
plaintiff’s person.
i.
defendant: danny
ii.
with the plaintiff’s person: sandy
iii.
harmful or offensive contact: sharp pain in the back of
her neck.
7. learning how to do legal analysis means becoming aware of what
your brain is NOT doing or not doing.
8. its important to know what legal analysis entails because
ultimately, you’re going to have to communicate your analysis,
usually in writing.
9. legal analysis requires you to dig into everything in a granular
level. must connect all pieces of the rule from facts with the fact
pattern.
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2. Legal Ambiguity
a. the tomato question from the quiz - categories - analyzed from a legal
standpoint:
i.
why are we trying to categorize the tomato in the first place?
ii.
could it fit in one ore more categories?
iii.
are there implications if the tomato is placed in one category and not
the other?
1. ^^^^ Nix v. Hedden
a. tariff act of 1883 required a tax to be paid on imported
vegetables, but not fruit. the nixes imported tomatoes- were
forced to pay tax. sue to get back taxes.
2. tomato yes, but also about money.
b. the answer to legal problems isn’t always clear.
i.
most things are not black an white.
ii.
most things are susceptible to multiple meanings.
iii.
reasonable minds can and do disagree. usually arguments on both
side of an issue.
c. grapple with the gray areas of the law
i.
think about and grapple with another argument
ii.
contemplate other arguments to move you beyond the black and
white.
d. Nix Argument: the court should use the traditional dictionary definition
of a fruit; which is the sweet and fleshy product of a tree or other plant
that contains seeds and can be eaten as food.
i.
tomato is sweet, seed bearing edible that produce by a plant.
ii.
Questions to think about to challenge the Nix argument:
1. is there an alternate definition that would result in the tomato
getting classified as a veggie?
2. work to resolve client’s problem.
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e. Government’s Argument (Defense):
i.
notwithstanding the traditional definition, the popular perception is
that tomatoes are vegetables, supported by how tomatoes are used
in the household as veggies.
ii.
within the tariff act, the government intended to tax certain types of
foods based on how they were commonly used, not on the technical
bio definition.
f. Court ultimately sided with Gov. Tomatoes are veggies within the
meaning of the Tariff Act.
g. ambiguities create opportunities for arguments.
h. depends on what definition and what rule you are using - this is
ambiguity.
i. legal education designed to train you to find and attack issues from all
angels
j. be more interested in the analytical process than getting to the right
answer
3. IRAC: Structuring Legal Analysis (structure of analysis of any legal
question around a specific paradigm or template.
a. the specific way lawyers structure and communicate legal analysis.
b. “Is Whatever It Takes?” by Imagine Dragon a good song? Exercise i.
takeaway: ultimately there is no right answer- there are no “correct”
criteria for analyzing what makes a good song a good song.
ii.
there is still a way to a logically analyze (in this case if it’s a good
song):
1. identify the issue that you will be addressing- whether
“Whatever It Takes” is a good song.
2. specify the criteria that all good song share- the rules that will
guide your analysis
3. appy each of those criteria to “whatever it takes”
4. make a conclusion that logically follows
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iii.
there are answers that are more logically structured and
communicated than others.
iv.
in the world of the law - unsupported opinions are irrelevant.
v.
conclusion is meaningless without the rules and an application of
those rules
c. ISSUE
i.
distill the issue: the specific question that must be resolved.
ii.
whats the issue here?
d. RULE
i.
provide the controlling law: what criteria are we using to answer this
question.
ii.
whats the controlling rule of law?
e. APPLICATION
i.
apply the criteria to the facts: make arguments explaining why the
rule is or is not met given the facts of the problem we are solving.
ii.
what happens when i apply the criteria?
f. CONCLUSION
i.
logically follows
g. EXAMPLE: Lindsey walked through the grocery store to buy some
fruit. She first put two apples in her basket, and then she added three
oranges. Later, she realized that she did not have enough apples, so she
added four more, along with six bananas. She then dropped the orange
on the floor, so she had to add one more orange to her basket. Lindsey
finally decided that she had enough fruit. How many apples and oranges
does Lindsey have in her basket?
i.
I: how many apples and oranges in the basket?
ii.
R: addition and subtraction to find out many apples and oranges.
1. addition is the process of adding something to something else.
subtraction is the process of subtracting something from
something else. find the sum of all the things added and then
subtract the number of anything else.
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iii.
A: facts - how did you get to the rule?
1. lindsey had two apples, then added four more. six apples. lindsey
originally placed three oranges in basket. lost one. subtract one.
2 oranges left. she put one more orange to replace the one she
lost.
iv.
C: six apples, three oranges.
h. read the call of question first. the question told you what was important.
apples and oranges.
i. what criteria or rules are we going to use to answer the question?
addition and subtraction.
j. show our work- unsupported answer without explanation isn’t
sufficient. prove your conclusion.
4. BAE CHECK - grasping the concepts is vital to your success in law school.
a. BE ABLE TO EXPLAIN: you can test your understanding of any
material you’re studying by trying to explain it in your own words
clearly and accurately.
i.
for example: electricity- do you understand it? could you explain to
a BAE how it powers your computer?
b. familiarity is not the same as understanding.
5. Law School is Different:
a. familiarity or even memorization of terms and concepts isn’t sufficient
b. you have to understand what you are learning
c. law school exams require you to apply your knowledge to new examples
6. self assessment tool to continually check your understanding.
ii.
KEY TAKE AWAYS:
1. emphasized that lawyers are problem solvers
a. use questions to obtain a better understanding
2. legal analysis is a structured logical approach to resolving problems
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a. conclusions to any question must be supported by a rule or a set of rules
that when applied to the facts of the case, help you explain the
conclusion.
3. test your understanding of the rules with the BAE check
a. clear and concise method
d. “The Four Anchoring Principles of Lawyering Fundamentals” Reading
i.
There is always a method to the madness
1. the song problem
a. identify the issue that you will be addressing
b. specify the criteria on which you plan to analyze that question
c. provide an application why or why not a particular song or songs
whereby you explain why or why not a particular song is a good under
the criteria specified
d. culminate in a conclusion that tells the reader or listener that the song
analyzed meets or fails to meet such criteria.
2. an answer that sets forth criteria but fails to incorporate the criteria in the
explanation or analysis fails to make out a logical argument.
3. To make the argument in a logical, legal-like fashion, you must state the
criteria or rules you are using to form such a conclusion. But that is not
enough. You must close the loop. To close the loop, apply the
mathematical rules (or whatever criteria you used) to the facts.
ii.
question-the-question, everytime
1. you are going to law school o learn the skills and the knowledge necessary
to practice law. the practice of law is about how you think; thus, law school
is primarily designed to train your mind how to think like a lawyer.
2. law school endeavors to help you discover how to think on your own.
“hiding the ball.”
3. question everything. lawyers use questions to “pick apart” or “break
apart” large questions to help them get a better idea of how to identify
and resolve the pertinent issues in a way that is correct and responsive
to their client’s needs.
a. The lawyer uses questions to unpack the issues. It is only after
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unpacking the issues that the lawyer can determine the rules, set of
rules, or criteria that will best shape the response to the question asked.
iii.
legal ambiguity- reasonable minds can and do disagree
1. a lawyer is trained to think about the arguments one can make either way,
as opposed to the so-called “correct answer”.
2. We will take you beyond the cliché black-and-white thinking into the grey
area where strong legal arguments also reside.
3. you work to resolve your client’s problem. (Of course, the other side will
also be making arguments that are opposite to the ones you made on behalf
of your client.)
iv.
the BAE test is one of the most important test you will ever face
1. you should be able to explain everything you read, hear or learn in a clear
concise manner. Naturally, your communication might be incomplete, but
it should be clear that a person of reasonable intelligence can understand
it.
e. Introduction to the Legal System Lecture: give you context before you read and
discuss cases in the legal system.
i.
OBJECTIVES:
1. basic court systems
2. set of law controls a given dispute
3. evaluate cases under stare decisis
4. a disputes way through the court system
ii.
TOPICS:
1. branches of government
a. judicial - interprets and resolves disputes involving these laws. decides
whether the laws or actions by the president are constitution. However,
judges within the judicial branch depend on the executive branch, like
the Justice Department, to enforce court decisions.
b. legislative - federal rules are passed here - congress.
c. executive - federal rules are enforced here - the president.
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2. court system (part of the judicial branch): Constitution authorizes congress
to create a system of lower courts - 94 district level trial courts, 13 court of
appeals
a. federal
court
system - resolve
disputes
involving the
US
Constitution,
Federal
Statutes,
and
Federal
Regulations.
Jurisdiction to
resolve
state
disputes when
the parties meet
special criteria
(i.e. different
states)
i.
supreme
1. acts as a final arbiter of law
2. court of last resort for cases within its jurisdiction
3. job is to determine whether the district and circuit court of
appeals applied the law correctly
4. may or may not be required to hear cases.
5. there are 9 justices on the supreme court.
6.
ii.
each term, but the supreme court agrees only to hear about 80
of the 8,000 cases it receives.
appeals
1. job is to determine whether or not the district court made any
error in deciding the case.
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2. since the appeals court determines questions of law, they consist
of multiple judges and do not use the jury.
3. the 94 federal judicial districts are organized into 12 regional
circuits each of which has a court of appeals. court of appeal for
federal circuits in DC - the number of federal appellate courts is
13.
iii.
district courts
1. trial court.
2. federal cases start here.
3. resolve disputes by determining the facts of the case and
applying the law to decide who is right.
4. judge- tries the case and interprets the law
5. jury - interpretes the case and ultimately decides the facts
iv.
special court
1. US Claims Court. bankruptcy, tax (courts of original
jurisdiction)
b. state court: main difference is the type of cases heard. hear most tort
cases, contract cases, family law matters, probate issues, and criminal
cases. most states have a similar three-tired court system (each state has
its own structure).
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i.
Trial Courts: parties bring the claim here.
ii.
Intermediate Courts of Appeals: parties dissatisfied by the decision
of trial court may bring their case to the an intermediate court of
appeals.
iii.
Appeals Court: second court of appeals - parties dissatisfied with the
intermediate court of appeals decision.
1. often the state supreme court.
2. these appellate courts of last resort are the final arbiters of state
laws and constitutions.
a. may or may not be required to hear a case.
iv.
Supreme Court
c. The court names at the state level vary and are often different from the
court names in the federal system. For example, in some states the trial
court is the "circuit court" and the intermediate court is the "district
court." Also, in some states like New York, the intermediate appellate
court is the "Supreme Court" and the highest appellate court in the state
(the court of last resort) is the "circuit court." Therefore, as you read
cases by a state court, it will be helpful to look up the state court
structure for that state to understand which court is issuing the opinion.
3. applicable law: which set of law controls a given dispute
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a. US CONSTITUTION
i.
the US Constitution defines the structure of the national government
and dictates the scope and limitation of its powers.
ii.
supreme law of the land - all other laws measured against it.
iii.
applications of articles and amendments of the Constitution
compromise constitutional law.
b. STATE CONSTITUTIONS
i.
they outline the state government’s structure of legislative,
executive, and judicial branches as well as contain a bill of rights.
c. STATUES
i.
the legislative branch of the government creates law by enacting
statues that govern the rights and duties of the people within
jurisdiction.
ii.
legislators also authorize administrative agencies to create
regulations that help interpret and clarify what a statute means.
d. COMMON LAW
i.
laws that evolve from court decisions.
ii.
“judge-made” law - a body of law derived from judicial decisions.
iii.
This method of reasoning by analogy is still the primary means by
which lawyers evaluate cases and predict what the law might say
about their client’s conduct.
e. Secondary sources: materials that discuss, explain, analyze and critique
the law.
i.
restatements
1. seek to restate the legal rules that make up the common law in a
particular case.
2. American Law Institute
ii.
law journals
iii.
treatises
4. Stare Decisis - “to stand by that which is decided.”
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a. a legal doctrine that obligates courts to follow historical cases when
making a ruling on a similar case.
b. binds courts to follow legal precedents set by previous decisions.
i.
what makes precedence? a unique case with hardly any past
reference material may become a precedent when a judgement
ruling on it.
c. courts are obligated uphold their previous ruling or the rulings made by
higher court within their same court system
d. a higher court, or the same court that made the precedent, may choose
to over rule the law of a previous case, which establishes a new
precedent.
i.
brown v. board of ed 1956 held that racial segregation laws were
unconstitutional overturned plessy v. ferguson (1896) separate but
equal
e. when is a court obligated to follow precedent?
i.
Horizontal stare decisis
1. state appellate court must follow their precedent
ii.
Vertical stare decisis
1. state appellate court must follow state supreme court precedent,
and the US supreme court precedent
f. QUESTIONS:
i.
1. A plaintiff has sued a police officer, both citizens of Texas, for
violating her civil rights by falsely arresting her based on federal
statute. Although the plaintiff could have brought her claim in
federal court, the plaintiff appropriately filed the lawsuit in Texas
state court since the state court has concurrent jurisdiction with the
federal court. Which prior court’s opinions would be more
precedential?
1. All state supreme courts, or for that matter any state court, must
follow a United States Supreme Court decision if the decision
involved the interpretation of the federal Constitution as it
applies to actions by the states. Since the Texas Supreme Court
has concurrent jurisdiction with regards to this issue based on
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federal statute, the Texas state court must follow the United
States Supreme Court.
ii.
The United States Court of Appeals for the Fifth Circuit will be
hearing an appeal based on a civil rights violation. The case is based
on facts almost identical to an appeal in which the United States
Court of Appeals for the Sixth Circuit recently ruled in favor of the
respondent. Must the Fifth Circuit Court of Appeals follow the
earlier Sixth Circuit Court of Appeals decision?
1. Courts on the same judicial level—such as the 13 federal courts
of appeals—are not bound to follow each other’s decisions since
they are on equal footing. While the Fifth Circuit Court of
Appeals is not obligated to follow the earlier Sixth Circuit Court
of Appeals decision, the Sixth Circuit Court of Appeals decision
may be looked upon as persuasive authority.
iii.
A trial court in Minnesota is hearing a case in which a plaintiff is
suing the defendant for breach of contract. Coincidentally, the same
trial court heard a similar case raising identical issues two years
ago—the only other time the issues have been examined by the
court—and ruled in favor of the plaintiff in the earlier case. The
defendant did not appeal that earlier trial court decision. Must the
Minnesota trial court follow its earlier decision?
1. All courts are bound by their own earlier decisions, unless
reversed by a higher court or by themselves later on. Therefore,
the Minnesota trial court is not bound by its earlier decision (it
could reverse), but the doctrine of stare decisis provides that the
court should follow its previous decision.
iv.
The United States Court of Appeals for the Sixth Circuit has
jurisdiction over federal appeals arising from the states of Kentucky,
Michigan, Ohio, and Tennessee. On one particular issue dealing
with securities fraud brought by the Securities Exchange
Commission, every circuit court in the United States—except the
Sixth Circuit Court of Appeals—has ruled against the SEC. The
same issue is heard by a federal district court in Tennessee. May the
Tennessee district court look at all of the other circuit court decisions
as persuasive authority?
1. A federal court is bound to follow the rulings of the court of
appeals encompassing the circuit in which the federal court is
located. Therefore, the Tennessee district court must follow the
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Sixth Circuit Court of Appeals even though every other circuit
court has ruled otherwise.
v.
A trial court in Minnesota is hearing a case of first impression—the
particular issue has never been litigated before in the state. An
identical issue, however, has been litigated in a trial court in
Minnesota’s neighboring state of Wisconsin and ultimately
appealed to the Wisconsin Supreme Court, who decided the issue in
favor of the respondent. May the trial court rely on the Wisconsin
Supreme Court’s decision in resolving its case of first impression?
1. Lower courts follow only the rulings of higher courts in their
jurisdictions. However, they may look to other courts for
persuasive—not controlling—authority, especially when the
particular issue has not yet been addressed in the jurisdiction
where the lower courts are located. Therefore, the Minnesota
trial court may rely on the Wisconsin Supreme Court’s decision
in resolving its case of first impression.
5. The Legal Process: how a dispute makes its way through the court system
a. complaint
i.
a document that lays out the claims that the Plaintiff (the person or
business bringing the lawsuit) has against the Defendant (the person
or business defending against the lawsuit).
b. answer
i.
says what portions of the Complaint, if any, the Defendant admits
to, what the Defendant contests, what defenses the Defendant may
have, and whether the Defendant has claims against the Plaintiff or
any other party.
c. discovery
i.
exchange of documents and other information about the issues
relevant to the litigation
ii.
written questions, in-person interviews, and production of items.
The information obtained through discovery is used in preparing the
case for trial.
d. pre-trial motions
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i.
the parties present to the court those issues that are not in dispute,
either because the parties agree as to the facts, or because application
of the law to the facts dictates a result.
ii.
The theory is that, if a claim or lawsuit cannot possibly win, it is
better for the judge to deal with it before wasting time or money.
e. alternative dispute resolution
i.
parties can voluntarily resolve all their issues through alternate
dispute resolution such as mediation, arbitration, or even
settlement
1. If a settlement is reached, the settlement agreement resolves all
issues between the parties. Typically, the court is either not
involved or is involved only informally.
f. trial
i.
the attorneys (or the parties, if they’re not represented) present
evidence and arguments for each side, and the judge or jury decides
the unresolved issues. Once the judge or jury has reached a decision,
the judge will order that judgment be entered for the party who wins.
g. appeal
i.
either party or both parties can appeal a judge’s decision to a higher
court, like the court of appeals, as we examined earlier.
f. FINAL KNOWLEDGE CHECK QUESTIONS:
i.
HYPO:
1. You represent Client, who has asked for your advice concerning a potential
lawsuit against Davenport, Davis, & Dodge, an accounting firm in
Minnesota (hereinafter “Davenport”). After meeting with Client, you
learned the following facts:
a. Client was employed as an account executive with Tyler & Associates,
an investment company in Michigan (hereinafter “Tyler”).
b. Client was assigned to work with employees at Davenport.
c. Client had a medical condition that makes it impossible for him to walk
long distances and he sometimes parked in spaces approved for drivers
with disabilities, even though he did not have an approved parking
permit issued by the government.
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d. After being assigned to work with Davenport employees for three
months, Davenport informed Tyler that Client had continuously
engaged in verbal altercations with one of Davenport’s employees over
parking spaces.
e. Tyler terminated Client shortly after receiving this information from
Davenport
2. After talking with Client, you have pursued the possibility of filing a lawsuit
on Client’s behalf alleging two separate claims for relief.
a. The first claim would allege that Davenport engaged in tortious
interference with a contractual relationship by intentionally causing
Client’s wrongful discharge from Tyler.
b. The second claim would seek damages against Tyler for discrimination
in violation of the Americans with Disabilities Act, which makes it an
unlawful employment practice for an employer to discharge an
employee based on a disability.
ii.
QUESTIONS:
1. Is this claim based on constitutional, statutory, or common law? - The
Americans with Disabilities Act (ADA) is a federal civil rights law that
prohibits discrimination against individuals with disabilities in all areas of
public life, including jobs, schools, transportation, and all public and private
places that are open to the general public. The ADA claim is based on
statutory law.
2. Would you file this claim in federal court or state court?
a. Federal courts and state courts have concurrent jurisdiction to hear many
types of actions, including claims based on the Americans with
Disabilities Act. In such situations, the state court has “concurrent
jurisdiction” with the federal court and enforces the federal law as it
would a state law. Therefore, Client can go “forum shopping” and file
in either federal or state court.
3. You conducted some initial research to investigate the viability of Client’s
ADA claim. The only case you found in Minnesota was a 2009 case in
which a federal appeals court held that another individual with the same
medical condition as Client had an ADA cause of action against her
employer when her employer fired her for parking in spaces approved for
drivers with disabilities. Must the court in which you file this claim follow
the 2009 case as precedent?
21
a. Yes- The 2009 federal appeals court decision must be followed by the
court in which the claim is filed, regardless of whether the claim is filed
in federal or state court. The state court has “concurrent jurisdiction”
with the federal court and enforces the federal law as it would a state
law.
4. After more exhaustive research, you were able to find only one other case
in the country that involved a claim by an individual with the same rare
medical condition against a former employer. In this second case, a 2015
case, a federal appeals court in California held that the plaintiff did not state
a valid ADA claim because the employer had a valid business reason for
firing the plaintiff. Must the court in which you file this claim follow the
2015 as precedent?
a. No- A federal court is bound to follow the rulings of the court of appeals
encompassing the circuit in which the federal court is located. Since the
federal appeals court in California is located in a different circuit, the
Minnesota court is not bound by the California decision. However, the
California court may be looked upon as persuasive authority by the
Minnesota court.
5. Consider the following questions concerning the tortious interference with
a contractual relationship claim:
a. Is this claim based on constitutional, statutory or common law?
i.
Common law is the body of law derived from judicial decisions. In
the absence of any statute providing for a viable action for a tortious
interference with a contractual relationship claim in the facts,
Client’s claim is based on common law.
b. Is this a criminal or civil suit?
i.
A lawsuit based on tortious interference with a contractual
relationship is a civil action. Civil cases involve disputes between
(usually) private parties, while criminal cases are considered acts
against the city, state, county, or federal government. Since Client
wants to bring suit against Davenport, this would not be a criminal
case.
c. The 2009 federal appellate court case in Minnesota that held the plaintiff
had a valid ADA cause of action also considered the plaintiff’s claim
that a third party illegally interfered with the employment contract by
convincing the employer to fire him. In this case, the court held that the
plaintiff did not state a valid claim for tortious interference with a
22
contractual relationship. Must the court in which you file this claim
follow the 2009 case as precedent?
i.
it depends - State courts need not follow federal courts when it
comes to the meaning of state law. However, federal courts must
follow the precedent set by the highest court in the state on such
questions. If Client were to bring her action in state court, then the
court need not follow the 2009 case precedent. However, if Client
were to bring her action in federal court, then the court would have
to follow the 2009 case as precedent.
g. Discussion Board Post #2: Learning Outcomes
i.
For this activity, carefully review the six “Learning Outcomes” identified in the
“Welcome – Start Here” module (link below). Take some time to think about
what each Learning Outcome means and what each might entail to achieve.
These Learning Outcomes serve as a guide for the course and allow you to
monitor your progress as we move through each module.
ii.
Procedures
1. Step 1: Discuss at least two Learning Outcomes.
a. Based on the limited information and material you have reviewed so far
in this course, select at least two Learning Outcomes that you are most
interested in, that you think will be most valuable for you personally, or
that you are most concerned about. Then, explain why you have
identified these Learning Outcomes, and discuss how you hope this
course will address those Learning Outcomes.
iii.
Step 2: Read and respond to your peers' posts.
1. After you have posted your discussion, please read and respond to at least
two fellow class members' posts (certainly you can do more if you wish to).
iv.
My response:
1. The first learning outcome I have selected is "students will have a basic
understanding of some of the differences between law school and their
undergraduate experience, including the daily workload." For me, this
learning outcome is a concern; however, I know it will be valuable in the
end. This learning outcome is a concern to me because I am a nontraditional law student. I graduated undergrad in 2016 and have been in the
legal profession ever since. I am also an adult with responsibilities (i.e.
family, mortgage, etc.). Thus, not only do I have to reacclimate to being a
student, but I also have to juggle school with a full-time career, a husband,
23
and all that comes with it. I tend to put pressure on myself to be perfect
which makes me concerned about my mental health during this acclimation
period. However, I am trying to be nicer to myself and take one day at a
time. This course will be valuable to me in regards to this learning outcome
because it will help me transition into an evening law student a little more
slowly. It will help me pave the way to creating and maintaining a schedule
that works for me, my family and helps facilitate a healthy lifestyle.
2. The second learning outcome I have selected is "when given a legal problem
to solve, students will be able to identify the legal doctrines implicated by
the facts; create basic arguments by applying the facts and rules; write a
legal answer organized around IRAC through which they will communicate
their reasoning." This learning outcome will be very valuable to me and
important for me to accomplish early on. Sometimes, my familiarity with
the law and experience as a paralegal clouts my ability to see gray. Working
in a law firm, most of the time you are generally always handling one side
of an issue more than the other side (meaning, most of the incoming cases
are plaintiff-oriented or defense-oriented). Consequently, you begin to think
a certain way because of how impactful it is in your life. I'm at work 40
hours a week, that's a lot of time thinking one way. This course will help
me begin to learn legal ambiguity and how to push myself to think in the
gray. The Socratic Method will help me better understand an issue and
consider arguments from all sides. Practice, discussion, and studying will
help me strengthen my legal writing skills and enable me to communicate
clearly and effectively through IRAC.
2. SOCRATIC DISUSSION: INTENT, DEMYSTIFICATION PART I, &
INTRO TO CASE READING AND BRIEFING PARTS I & II
a. Legal Reading and Case Briefing FAQ Reading
i.
why do we read cases?
1. teach you the law
2. introduces you to speaking legalese
3. prepares you for law school exams and practicing law
4. prepares you to interact with your professor
ii.
How long should it take to complete my reading?
1. consider the following:
a. size of the reading assignment
24
b. reading speed
c. vocabulary
d. level of focus
iii.
will your professor know if you have not read?
1. Everyone can tell the difference between one who has diligently prepared
and a slacker. The key is to be diligent and to always go back and correct
your notes and case briefs after class.
b. Case Reading and Briefing Part I Lecture
i.
in this unit, you will:
1. Understand the Importance of Case Briefing
2. Examine the components of a case brief
3. Learn how to effectively read and identify key information from cases
ii.
INTRODUCTION:
1. strong reading/case briefing skills will save you time and make your first
year easier.
2. identify and analyze issues.
3. tips that you will use at every stage of your legal career.
4. INDISPENSABLE PART OF YOUR TRAINING
a. CASE METHOD is designed to help you gain skills at reading cases,
distilling rules from those cases, and learning to apply those rules to
solve clients’ problems.
b. WHAT IS A CASE BRIEF?
i.
a short summary of the most significant portions of a reported legal
decision.
ii.
systematically captures and condenses relevant information and
places it in a format that makes it easy to understand and recall.
iii.
case briefing serves two purposes:
1. it teaches you how to read critically and dissect case claw
2. a good case brief provides you with a case summary that is
infinitely useful for class discussion
c. WHY SHOULD YOU BRIEF CASES?
25
i.
case briefing is an analytical exercise that stimulates your ability to
think like a lawyer, and the steady development of this ability is
critical to your overall success.
d. WHAT INFORMATION GOES INTO A CASE BRIEF?
i.
case name
1. at the top of the case
ii.
court and date
1. the court writing the opinion
iii.
procedural history (can be short or long)
1. how the defendant wronged the plaintiff
2. what the parties argued in the lower court
3. how the lower court ruled
4. how and why the case moved from the lower court ot the higher
court
iv.
question presented (i.e. the issue)
1. a legal or procedural question that the appellant wants the higher
court to answer.
2. the reason the why the case moved from the lower court to the
higher court
3. pay attention to where you are in your case book- often a chapter
subject will give you clues as to the legal issue that will be
emphasized in the case.
v.
trigger (legally relevant) facts
1. brief summary of the relevant legal facts of the case
2. once you identify the question, the rules, and the legal holding,
you should have a better sense of which facts are truly important.
3. draft your own summary using the BAE check.
4. the facts of the case are distinct from the court’s opinion.
vi.
Rule (i.e. the law)
1. the legal principle or black letter law upon which the court based
its decision in the case
26
a. a succinct statement of the governing legal principle that the
higher court uses to decide the case (ab a sentence in length)
b. a sentence or paragraph where the higher court answers the
question presented
c. a paragraph that describes the circumstances under which a
person is liable
2. the rule may be presented in one or all three formats
3. a single legal opinion may contain numerous rules of law or legal
principles - for case briefing, your task is to determine the rules
of law that are pertinent to the issues raised in the case and then
formulate those rules into an easy-to-digest statement.
vii.
reasoning
1. the court’s reasoning is where the court explains how and why
it answered the question in the way that it did.
viii.
holding
1. the holding is the court’s answer to the question presented.
2. narrow procedural holdings (i.e. case reversed and remanded)
OR
3. broader substantive holdings that might deal with the
interpretation of the Constitution, statutes, or judicial doctrines.
ix.
main take away
1. questions to ask yourself why you read:
a. what is the main takeaway of this case?
b. why have the authors included this case in the book?
c. why have they placed the case in this particular section?
2. Sometimes professors will use a case for different or additional
reasons beyond what the casebook author intended.
c. Case Briefing Template “Cheat Sheet”
d. Garrat v. Daily – class discussion lecture
i.
Objectives:
1. familiarize students with the different components of a case brief
27
2. help students identify the key information that should be extracted from a
case
3. give students an opportunity to practice the BAE check by condensing
information from a case by using language and a format that is recallable
and understandable for later use, including in the classroom discussion and
review.
ii.
LECTURE:
1. Intentional Torts - Garrat v. Daily
a. plaintiff - Garrat, defendant- Dailey
b. explain facts in your own words - but explain them like a lawyer.
c. The plaintiff did not testify at trial - it was the sister.
d. the court wrote that def was unable to move the chair in time due to his
small size and lack of dexterity
e. do you agree with the court in that assessment?
f. devil is in details!!!
g. CRITICALLY ASSESS WHAT YOU ARE READING? do you agree
with the p or d argument? do you agree with the courts decision?
h. the only claim is for battery
i.
flesh out the elements of the claim
i. FACTS OF THE CASE:
i.
two different versions
1. Garrat - deliberately moved the chair
2. Dailey - tried to move the chair back to where ruth was
ii.
who won at the trial court? - brian dailey
iii.
Garrat’s appeal:
iv.
the original plaintiff is not always called the appellant - the person
who appeals is called the appellant - the other person is called the
respondent, they are the one responding to the appeal.
1. its so important to understand who the parties are
v.
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Battery - in this case - the intentional affliction of the harmful bodily
contact of another.
1. what requirement of the cause of action for battery does this
particular case focus on? INTENT
2. how do we know the case is about intent?
a. chapter title
b. cases states that it is considering intent
3. the difference of intent between trial court and supreme court
a. the trial court focused on the bad motive
b. the supreme court the motive isn’t relevant
4. distinction between motive and intent
a. motive is concerned with the actors reasons
b. intent goes to an actors state of mind to the consequences of
an act
5. is an actor's motive ever important to tort law? thinking about it
like a lawyer.
a. if you rep pltf in b action - why might you want to show a
defendant caused a harmful action because he was enraged?
i.
may justify an award of punitive damages
ii.
tortfeasors motive may also prove self-defense - less
money for the plaintiff
6. Supreme Ct of Wash def of INTENT
a. purpose
i.
the defendant has a purpose or desire to bring about an
outcome (specific intent)
b. substantially certain
i.
defendant knows with substantial certainty that his
conduct would put the plaintiff in apprehension of a
harmful act. (general intent)
c. specific intent: an actor intends the consequences of his
conduct if his purpose in acting is to bring about those
consequences.
d. general intent: the actor intends the consequences of his
conduct if he knows with substantial certainty that their
actions will result in a particular outcome.
29
7. Have I acted with intent if I fire a bullet into a dense crowd while
fervently praying that the bullet not hit anyone? Briefly explain.
a. my answer: Yes, you have acted with intent. Fervently
praying that the bullet does not hit anyone does not mean
that you did not know with substantial certainty that firing
the bullet could cause severe consequences.
b. acted with intent as long as he knew with substantial
certainty that the bullet would hit someone.
8. What if, like Brian Dailey, i pull your chair from underneath you
as you sit- have I acted with intent?
a. my answer: Yes, you have acted with intent. While your
purpose may not have been to hurt the person trying to sit, it
can be argued that you knew with substantial certainty that
the act of pulling the chair from underneath someone could
result in negative consequences.
b. like the previous hypo, if i pull your chair from underneath
you as you sit, i have acted with intent. As long as I knew
with substantial certainty that you would fall down and hurt
yourself.
9. in this case- what did the supreme court of washington do with
this case?
a. the case was remained - send back to lower court for
additional action.
10. very important to take the time to look up words in a law
dictionary if you do not understand it- will help you become
familiar with the language of lawyers.
11. what further action did the supreme court remand the case?
a. the remanded the case with instructions to the trial court to
make a definite finding on whether or not the defendant
knew with substantial certainty that the plaintiff would try to
sit down and fall when he moved the chair.
b. it was remanded because appellate courts and supreme
courts do not do investigation.
12. trial court concluded that brian did have intent.
13. judge intent by what this defendant intended.
30
14. subjective inquiry and objective inquiry
a. when we peer into the intent of a particular person, that is
considered a subjective inquiry develop
b. if we are looking at intent by looking at similarly situated
defendants and what they would have intended, then that’s
an objective inquiry.
15. when it comes to examining and explaining intent, we apply the
subjective inquiry.
16. is the defendants age important?
a. The defendant’s age can be important. While age does not
negate intent (i.e., minors are held to possess the requisite
intent), age can be important to determine what the
defendant knew. As a result, the defendant’s age—along
with experience, capacity, and understanding—is important.
vi.
Should the defendant’s age here be an absolute defense to liability,
meaning we decide as a matter of policy that a five year old can
never be liable. Why or why not?
1. I do not think that the defendant's age should absolve him from
liability for his actions. However, I think the policy should allow
for the parents to be found equally liable for their child's actions.
At five-years-old, a child usually has a general grasp of right
from wrong, but it is the parents responsibility to make sure the
child is supervised and not acting in a liable manner.
vii.
If a four-year-old child strikes his babysitter in the throat and crushes
her larynx, would he be acting with intent? What do we need to ask
to determine whether to hold the four-year-old child liable?
1. the question is, was the 4 year old child’s purpose to cause a
harmful contact or did he act knowing with substantial certainty
that a harmful contact would result?
a. This answer choice appropriately asks whether the fouryear-old child had the requisite intent by specifically
addressing both specific intent and general intent For
specific intent, an actor “intends” the consequences of his
conduct if his purpose in acting is to bring about those
consequences. For general intent, the actor “intends” the
31
consequences of his conduct if he knows with substantial
certainty that those consequences will result.
2. What do you think is going to be the result with someone who is
mentally ill?
a. yes, mental illness is not an excuse. the proper question is
whether she intended the result.
3. TAKE AWAY:
a. in g v. d the proper question was not whether d intended to
break ruth’s hip - the proper question whether b knew with
substantial certainty that ruth was going to sit down.
e. “Preparing Yourself for Learning in the Socratic Class Room” reading
i.
Factual and procedural questions (FBQs)
1. flesh out story of the case
ii.
Rule-related questions (RRQs)
1. questions about the rule or legal principle you are studying
a. ie what is the difference between a subjective standard and an objective
standard?
2. Rule Statement/ Rule Term Questions: questions to elicit a precise rule
statement
a. ie how did the washington supreme court define intent?
32
3. Rule Explanation Questions:questions to narrow or expand the rule
a. ie can you explain the difference between a subjective and objective
standard? what’s the difference between motive and intent?
4. Rule Exception Questions: questions to narrow or expand the rule
a. ie to constitute an assault and battery, is it necessary that the defendant
touch the plaintiff’s body or even his clothing?
5. Majority/Minority rule questions: questions on jurisdictional splits
a. ie what narrow exception have several jurisdictions carved out to the
general rule that the mentally disabled can be liable for intentional torts?
6. Rule Application Questions: questions that show what the rule means and
how it works; they sharpen and deepen your understanding of the rule.
a. ie did prince charming commit an offensive contact when he kissed
sleeping beauty? what if sleeping beauty enjoyed the kiss?
iii.
Policy based questions (PBQs)
1. explore and highlight the purpose of the rule and show you the kinds of
problems the rule is intended to tackle.
a. ie should we as a society hold small children or the mentally ill liable
for their intentional conduct?
iv.
Case comparison questions (CCQs)
1. ask you to compare/contrast the reasoning, holding, etc. from one case to
another case or to another source of law (e.g., how the case fits into the
context of other cases or how a case connects to a statute or code provision.)
a. ie how does the definition of intent in garratt v. dailey differ from the
definition of intent in spivey v. battaglia?
v.
Hypothetical/ application questions (HAQs)
1. present you with new facts and/or that alter the facts from a case you studied
earlier, and ask whether you, as the judge, would have decided the case
differently. they develop/extend your understanding of what the rule means
and they help you see rule exceptions, and nuances of the rule, etc. Many of
these questions come from the notes that follow the cases.
a. ie could sleeping beauty have sued prince charming for kissing her?
what result if the defendant made an honest mistake?
vi.
33
Lawyer development questions (LDQs)
1. questions that are not necessarily connected to the particular rules you are
studying, but they connect you to knowledge, skills, and abilities a lawyer
needs to develop.
a. ie why did the defendant, Mr. Battaglia argue that his hug was an assault
and battery as a matter of law?
f. Demystification Part I Lecture
i.
introduction
1. demystify the socratic classroom experience
2. explain the purpose of using questions to teach you the law and how to think
like lawyers
3. share tips to help you thrive in the socratic classroom
ii.
socratic demystification
1. why so many questions?
a. dates back to ancient greeks - greek philosopher socrates - socratic
method
b. professors use the socratic method to teach you how to think like
lawyers
c. forces you to critically ab the topic, and your own understand or
misunderstanding, and prospective you bring
d. allows you to discover answers on your own
e. holds you accountable for developing, articulating, and defending your
positions.
f. ingrains how lawyers problems solve
g. the law is an ever changing, ever evolving web of principles.
2. the challenges
a. carefully read and understand assigned cases; ready to discuss with the
class.
b. professors ask questions primarily on the assigned reading materials to
clarify and strengthen your understanding of the material
c. some students struggle to grasp with this type of teaching
34
i.
fail to grasp the meaning of the professor’s questions
ii.
pressure of having to think quickly
iii.
obsess over the right answer instead of focusing on the question and
the purpose of the question
iv.
many struggle to stay fully engaged.
v.
strong class preparation enables you to listen, think, answer, take
notes, and ask questions to maximize the benefits of your legal
training.
3. six question types (see above)
a. FPQ:
i.
case brief should provide you with what you need to answer these
questions.
b. RRQ
c. PBQ
d. CCQ
i.
help you develop critical lawyering skills - specifically, the ability
to synthesize rules from multiple cases or sources, and analogical
reasoning- arguing by example.
e. HAQ
i.
very valuable - give opp to apply your understanding of a concept
the same way you’ll do on the exam.
ii.
try to answer on you own even if you aren’t on the hot seat
iii.
many of these questions come from the notes after the case.
f. LDQ
g. when reading cases, use your own questions to fire up your imagination
and curiosity
h. make a list of your own questions as you read
4. demystification 1- going over questions the professor asked in garrat v.
dailey
a. Whats this case about?
i.
extract and summarize facts
ii.
BAE Check the facts
5. question 1
a. Do you agree with the court’s assessment?
35
i.
lawyering development question
6. demystification 2
a. how the trial court defined intent?
i.
rule related and factual procedural question
ii.
professor wants you to see that there is a real difference between
how trial court and washington
iii.
think about the different meanings of intent
iv.
help you recognize that we might need to study to get a more
complete definition of intent.
v.
the supreme court’s definition of intent is the correct definition.
7. demystification 3
a. bullet question
i.
hypo app question.
ii.
test understanding of concepts we are learning
b. question regarding whether we look at this defendant or other
defendants regarding intent
i.
this is a rule based question - get you to think more deeply about
what we mean when we say a defendant “intended” his conduct and
to discuss the standard by which we evaluate whether a defendant
acted with intent.
8. question 2
a. Is intent a subjective or objective inquiry?
9. demystification 4
a. it is a subjective inquiry. - what brian Dailey intended.
b. subjective inquiry: what this specific defendant was thinking when he
acted.
c. objective inquiry: what a reasonable person would have been thinking
under similar circumstances.
d. is the defendants age important?
i.
rule related question - to see if you pulled the rule from the case.
e. whether a mentally ill individual can form intent
i.
36
rule related question or hypo
iii.
conclusion
1. recap and take-aways:
a. identified 6 types of questions professors ask
i.
try to think of the questions that the professor will ask during class
while reading the case
b. professors questions helped flesh out your understanding of intent
c. what should you be doing during socratic discussion?
i.
this is the main way 1L class will be conducted
ii.
stay engaged throughout the convo and understand why the
professor is asking those questions
iii. connect the questions to the doctrine you’re studying
iv.
think about questions before you respond
v.
listen carefully and listen to classmates responses
vi.
speak up and clearly
vii.
gauge the professor’s response how she uses follow up questions or
comments
d. what to do when you’re not being questioned?
i.
follow convo and listen to what your peers and professors are saying
ii.
take notes
iii. write and ask your own questions in the margin
iv.
figure out the purpose of each question
g. Case Reading and Briefing Part II Lecture
i.
introduction:
1. reinforce understanding of the importance of case briefing
2. continue to learn how to effectively read and identify key information from
cases
3. compare and evaluate your case brief for garratt v. dailey
a. case name or caption:
i.
first name is the party who initiated the legal proceedings
1. plaintiff - trial court
2. state or fed government - criminal
3. appellant- the person who lost in the trial court
ii.
second name is the one defending himself
1. defendant- trial court
2. appeal - appellee or respondent
37
b. court & date:
i.
always under case name
ii.
give you context
iii.
helpful to know if the court is an intermediate appellate court, state
supreme court, or us supreme court
iv.
wrap your head around facts and procedural history more easily
c. procedural history:
i.
explains how the dispute between the parties worked its way thru
the legal system
ii.
how did we end up here?
iii.
not every case in the text book contains procedural history
1. sometimes its not relevant
2. procedural history and facts may be intertwined.
d. question presented:
i.
legal question that the court is asked to answer
ii.
can be multiple questions
iii.
what question is the court answering?
iv.
is it explicitly identified?
v.
chapter title or topic heading provide any clues?
vi.
is the question presented implied in the rule provided by the court
vii.
can i drive the question presented from the holding?
e. trigger facts:
i.
A concise but sufficient description of the pertinent facts forces you
to identify the key facts driving the court’s decision.
ii.
facts are relevant when they raise and answer legal questions; when
they had an impact on the court’s reasoning
iii.
facts are the very first thing you will read in the case
iv.
do facts last
f. rule entry:
g. reasoning:
38
i.
reasoning is generally several paragraphs following the rule where
the court answers why and how it ruled the way it did
ii.
blend of facts and legal language
iii.
pay close attention to this- as you will have to show your reaspoing
when answering essay questions
iv.
to understand the courts reasoning, ask yourself:
1. did the court explain the out come it reached? that is, did the
court say how and why it arrived at its decision based on the
facts of the case?
2. did the court explain why and how this rule is important to this
decision?
3. did the court explain why the rule is better than the other rule?
4. did they discuss policy by explaining how its rule is best for
furthering societal interest?
5. explain the strengths and weaknesses?
v.
look for the courts because statements
1. we arrived at this outcome because…
2. we made this decision because…
3. here is our justification for the ruling…
vi.
don’t try to pinpoint the exact paragraph where it provides its
reasoning
vii.
BAE check the court’s reasoning based on your understanding.
h. holding:
i.
court’s answer to the question presented
ii.
“we hold” “we have held”
i. main take away:
ii.
i.
make sure you’re able to articulate the main takeaway for each case
ii.
rule based takeaway
conclusion
3. SOCRATIC
DISCUSSION:
INTENT
(CONTINUED),
DEMYSTIFICATION PART II, CASE READING AND BRIEFING PARTS
III
39
a. Spivey v. Battaglia – read and brief
b. Spivey v. Battaglia – class discussion lecture
i.
objectives:
1. help students understand how pre-class preparation enhances learning;
2. reveal how effective reading is the foundation to effective case briefs;
3. explain how students reconcile and synthesize legal concepts from multiple
cases and legal authorities.
ii.
LECTURE:
1. RECAP 1st CLASS
a. key legal principle: intent
b. the two ways intent can be established
i.
specific
ii.
general intent
iii.
did you understand that general intent can be established when a
person acts with knowledge that the contact or apprehension is
substantially certain to happen?
1. yes - Correct- That’s great! Intent is perhaps the most important
element to understand since each intentional tort requires intent.
Without a good understanding of intent—both specific intent
and general intent—you run the risk of establishing that an
intentional tort exists (or doesn’t exist).
iv.
intent can be established when a person acts with knowledge that the
contact or apprehension is substantially certain to happen.
v.
two ways to establish intent:
1. specific intent:
a. when a person has a purpose or desire to bring about the
outcome
2. general intent
a. acts with knowledge that the contact or apprehension is
substantially certain to happen
40
vi.
intent must exist in one of these two ways
vii.
intent is the common element across all intentional torts
2. Spivey v. Battaglia
a. facts of the case
i.
my answer: Petitioner, Spivey, and defendant, Battaglia, were coworkers at Battaglia Fruit Co. Spivey was known to be shy. The
defendant, to tease Spivey, intentionally put his arm around her and
pulled her head toward him. The “friendly unsolicited hug” caused
a sharp pain in the back of the petitioner's neck, ear, and base of her
skull. Subsequently, the petitioner was diagnosed as paralyzed on
the left side of her face and mouth. Petitioner claimed that the
defendant committed negligence, assault and battery. Defendant
filed a Motion for Summary Judgment arguing that his actions
constituted assault and battery as a matter of law; thus, the action
should be barred as the two (2) year prescriptive period had elapsed.
The trial court granted the defendant’s Motion for Summary
Judgment. The appellate court affirmed. Petitioner is seeking
review.
b. who is a petitioner? who a respondent?
i.
petitioner - the person who is bringing the action
ii.
respondent - responding to the petition
c. If we’re using the party designations that the Washington Supreme
Court used in Garratt v. Dailey, how might the petitioner and
respondent be identified?
i.
In Garratt v. Dailey, the appellant is the petitioner, and the appellee
is the respondent.The petitioner is also called the appellant. The
petitioner or the appellant generally is the party who lost in the lower
court and who filed the appeal. It’s the petitioner or the appellant
who wants the higher court to reverse or modify the judgment of the
district court or agency.
The respondent is also called the appellee. The respondent or the
appellee is generally the party who won in the lower court. It’s the
appellee or the respondent who generally wants the higher court to
affirm the decision of the lower court.
d. on what basis did Mr. Spivey have a cause of action?
i.
Mr. Spivey was suing for the deprivation or emotional loss (loss of
consortium), which as a close family member he suffered due to the
injury sustained by the victim (Mrs. Spivey) from a third party such
as Mr. Battaglia. This is a tort cause of action which must be brought
41
by an immediate family member of the victim—like Mr. Spivey, the
husband in Spivey v. Battaglia.
e. What is the significance of that phrase, "whom he knew to be shy"?
i.
my answer: Yes, the phrase “whom he knew to be shy” is significant
because it can be used to argue that the defendant knew with
substantial certainty that his “unsolicited hug” would tease the
petitioner.
ii.
The phrase—"whom he knew to be shy"—signifies that Mr.
Battaglia was on notice of Mrs. Spivey’s shyness. This is important
because knowing that Mrs. Spivey was shy gives insight into Mr.
Battaglia’s intent. If Mr. Battaglia knew Mrs. Spivey was shy and
didn’t want to be touched, then Mr. Battaglia had the intent to cause
an unwanted contact by putting his arm around her.
f. sued on negligence and assault and battery
i.
negligence intendicates an unintentional act.
ii.
the defendant cannot act both intentionally and unintentionally at the
same time.
g. defendant argued that he committed assault and battery
i.
Mr. Battaglia seems to readily shout: "Yes! That was my intent—I
had the purpose or desire or I knew to a substantial certainty that a
harmful or offensive contact would result." Why did Mr. Battaglia
make this argument? Select all that apply.
1. if Mr. Battaglia was found to have committed a battery, then he
could not have been found to have committed negligence.
2. Even if Mrs. Spivey could establish all of the elements of a valid
battery claim; she would be barred from recovery because the
two-year statute had run.
ii.
did the fl supreme court get this case right?
1. reasoning question
iii. does anyone have a problem with the fl supreme court stated?
1. they differ in definition
iv.
How did the Florida Supreme Court in Spivey v. Battaglia define
intent differently from the Washington Supreme Court in Garratt v.
Dailey?
1. The Florida Supreme Court in Spivey v. Battaglia defined intent
only as the "substantial certainty" of the outcome. Whereas, The
Washington Supreme Court in Garrat v. Dailey defined intent as
an act done to cause the contact or with knowledge on the actor's
part that such contact is substantially certain to occur.
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c. Demystification Part II Lecture
i.
Socratic Demystification:
1. demystification: spivey v. battaglia
a.
2. question
3. part 1
a. key legal principle that we discussed in the first class
i.
something you want in your notes
1. shows that you understand why the case was included in
discussion
2. something you will need to create your course outline
3. shows that you are beginning to develop your lawyering skills
ii.
Key legal principle:
1. specific intent can be established when a person has a purpose
or desire to bring about the consequence
2. general intent can be established when a person acts with
knowledge that outcome is substantially certain to happen.
iii.
you begin to understand a concept by learning a general rule
4. part 2
a. who, generally speaking, who is a petitioner? and who is a respondent?
i.
if you don’t understand a term or concept, look it up. (blacks law
dictionary)
ii.
in light of these facts, did the florida supreme court get this case
right?
1. lawyering development question
2. if you can identify when the rule is being used incorrectly, it
truly means you understand.
3. in Spivey the FL supreme court got it wrong because the court
defined intent objectively
a. intent is not an objective standard, it’s subjective.
5. part 3
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a. Mr. B had as his desire or purpose to bring about an offensive contact,
or at least he knew with substantial cert that Spivey would find hug
offensive.
i.
B knew spivey was shy , hugged her anyway - he did it to bring
about embarrassment
1. thus, it is a battery
ii.
Conclusion:
1. Sometimes the court gets it wrong
2. intent is a subjective inquiry
3. knowledge on the part of the defendant might impact whether the conduct
is offensive.
d. Ranson v. Kitner – read and brief
e. McGuire v. Almy – read and brief
f. Talmage v. Smith – read and brief
g. Ranson v. Kitner, McGuire v. Almy, and Talmage v. Smith – class discussion lecture
and post class activity
i.
The socratic discussion of three different cases and the accompanying postclass activity are designed to:
1. reveal how strong class preparation maximizes engagement and learning in
the classroom and impacts the necessary post-class work;
2. help students build upon their understanding of the concept of intent by
synthesizing rules from multiple cases discussing intent;
3. Assist students with predicting and grappling with the types of questions
that will be asked in class (i.e. learning how to foreshadow class dialog to
enhance in-class takeaways).
ii.
LECTURE:
1. each case gives a small part of the complete roll, still trying to get a full
picture of intent
2. common cause of action in both dailey and spivey
a. cause of action - claim plaintiff brings against defendant
b. garrat didn’t realize there was a missing chair - her cause of action was
battery - both cases are regarding battery
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c. battery requires 3 elements - act, intention, causation
i.
act by defendant that brings about harmful or offensive contact to p
person
ii.
intent on part of defendant to bring about harmful or offensive
causation
iii.
defendant is liable if he intentionally sets in motion a harmful or
offensive contact to the p’s person.
d. all cases focus on INTENT i.
rarely will a single case present a complete picture of a cause of
action
ii.
you will have to add pieces of cases together to develop a complete
rule
iii.
rule synthesis ^^^^
e. Talmage v. Smith
i.
Questions about the facts- Smith threw a stick at Byron Smith to
scare him
ii.
What did talmage sue for?
1. battery - even though the case does not mention this, recognize
that these two claims were discussed extensively in the case.
iii.
Do you agree with Mr. Miller’s response—"Talmage said that Mr.
Smith committed a battery because he meant to hit the other boy but
missed. But since Mr. Smith intended to hit the other boy, but hit
another person, then Mr. Smith should be found to have committed
a battery?”
1. correct answer - no
2. Mr. Smith only intended to scare B. Smith. - Assault
3. Mr. Smith committed a battery against Talmage- Battery
iv.
how did the court rule?
1. ruled in favor of talmage
v.
why wasn’t the supreme court persuaded by Mr. Smith’s argument?
1. Bc Mr. Smith did an unlawful thing and he should be held liable
for what he did.
vi.
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Can you explain the doctrine of transfer intent?
1. My answer:Transferred intent regarding intentional torts means
that when an intentional tort and unreasonable force upon a
person inadvertently occurs to an unintended person, the
defendant is still liable for his actions.
2. student answer: someone who has the intent to commit an assault
but actually commits a battery will be found liable for the
battery, even if that person didn’t have the same intent to commit
a battery in the first place.
vii.
Transfer Intent Doctrine
1. applies where the defendant intends to commit a tort against one
person but instead
a. commits a different tort against that person
b. commits the same tort as intended but against a different
person, or
c. commits a different tort against a different person
2. A defendant is liable when he intends to commit a tort and in
fact accomplishes it.
viii.
What is the policy rationale for the doctrine of transferred intent?
1. punish and deter tortious acts.
ix.
What if Mr. Smith, in fact, intended to hit B. Smith by throwing a
stick directly at him, but he still wound up hitting the Talmage boy?
Would the doctrine of transferred intent be broad enough to cover
this particular situation?
1.
x.
NOTES AFTER CASE: transferred intent applies to battery,
assault, false imprisonment, trespass to land, and trespass to
chattels.
Trial court’s instructions:
1. Jury Charges:
a. first: if you conclude that Smith did not know the Talmage
boy was on the shed, and that he did not INTEND to hit
Smith, or the young man that was with him, but simply, by
throwing the stick, intended to frighten Smith, or the other
young man that was there and the club hit Talmage, and
injured him, as claimed, then plaintiff could not recover.
46
i.
Please explain the jury instructions.
ii.
MY ANSWER : If the defendant did not intend to hit
either boy and bring about harm to their person, the
plaintiff would not be able to recover damages.
iii.
Was this jury instruction accurate?
iv.
MY ANSWER: No. (correct)
v.
the intention follows the stick - that’s why the trial
court’s instructions were wrong.
vi.
Does it make sense based on what you’ve already
learned?
b. second: if you conclude that Smith threw the stick or club at
Smith, or the young man that was with Smith, intended to hit
one or the other of them, and you also concluded that the
throwing of the stick or club was under the circumstances,
reasonable and not excessive, no recovery by this plaintiff.
c. third: if you conclude from the evidence in his case that he
threw the stick, intending to hit smith or the young man with
him- to hit one of them,- and that the force was unreasonable
force, under all the circumstances, then the defendant would
be doing an unlawful act, if the force was unreasonable,
because he had no right to use it. He would be liable then for
the injury done to this boy with the stick.
2. would his bad aim be a defense?
a. we need to show that the defendant had the intention to do
the act, i.e. throw the stick, and the intention to bring about
the consequences, which was the contact with the stick.
b. as long as he had the intent to commit a battery - intent to
throw the stick and make contact with that person- his intent
to commit the battery would flow to the person that he
actually hit. transfer his intent to whomever he actually hit.
keep eyes on Mr. Smith’s underlying intent.
3. If you mistakenly run over a random person whom you
mistakenly thought was your worst enemy, whom you did intend
to run over, did you have the requisite intent to commit a battery?
a. YES, you are liable.
47
b. shouldn’t the mistake negate your intent? no, if one intends
to commit a harmful act and they are successful, they should
be held liable.
c. mistake as to the identity of the person does not negate
intent. you act with intent if it is your desire or purpose to
bring about a given consequence, or you act knowing a
consequence is substantially to result.
d. Good faith mistakes do not negate the intent to commit the
prohibited action.
4. HOLD TRUE TO THE RULE
a. don’t change the facts.
b. note cases after reading are a great source of application
hypos.
xi.
RANSON v. KITNER:
1. first question - re facts.
2. why were the hunters liable?
a. mistake as to the identify of a person or thing does not negate
intent.
3. what was the dog owner actually suing for?
a. trespass the chattels or conversion.
b. understand that this tort requires an intentional interference
with someone else’s property.
4. why did the court call the killing a mistake rather than an
accident
a. Using the definitions for specific intent and general intent,
did the hunters have intent to kill the plaintiff's dog?
48
i.
MY ANSWER: While the defendants may have
mistakenly killed the plaintiff's dog, they did have the
intent to kill. Their purpose in hunting was to bring about
the consequence of death and they knew with substantial
certainty that the action of shooting an animal would
bring about death.
ii.
it was there purpose to interfere with someone else’s
property - the law says too bad, so sad.
b. why wouldn’t we want to put the responsibility on the actor
to make sure they are not mistaken before they take some
action that would constitute an intentional tort?
i.
they acted with specific intent, would general intent exist
also?
ii.
to establish general intent the plaintiff would have to
show that the defendants had substantial certainty that
they were interfering with his property.
iii.
can’t make that here because how much the dog looked
like a wolf.
iv.
they probably had substantial certainty it was a wolf and
therefore not the plaintiff’s property.
v.
make sure you make the distinction between a mistake
and an accident.
vi.
a person involved in an accident had no intent, specific
or general, to bring about the prohibited results. an
accident would occur if the defendant unintentionally
discharged the gun.
vii.
a person acts with intent if that person acts with purpose
to bring about the prohibited result or acts with
knowledge to a substantial certainty that the prohibited
result will occur.
c. What about the fact that the hunters were not shooting the
dog because they disliked it or disliked its owner? Would
this negate intent?
49
i.
no. - CORRECT
ii.
motive is irrelevant to prove intent.
iii.
a p doesn’t need to show that the d had a particular
motive to show that he he acted with intent.
iv.
intent is more concerned with consequences, motive is
more concerned with reasons for desiring certain
consequences.
v.
motive can be helpful to prove intent. For example, if
ones motive in hitting someone was because they wanted
to hurt them, that probably establishes that one acted
with specific intent.
xii.
vi.
motive may be important when they jury considers the
amount of damages to be assessed. A defendant who
acted with an egregious motive may have to pay more
money to the plaintiff.
vii.
bad motive is not necessary to establish intent to
commit an intentional tort.
viii.
Doctors who are trying to help a patient can be liable for
a battery just as much as someone trying to hurt
someone.
MCGUIRE V. ALMY
1. menally ill woman in care of plaintiff, d became violent and
dangerous - what happened then?
a. the plaintiff entered he room and saw the defendant holding
a chair by the leg as if she was going to strike her because of
htat the plaintiff attempted to remove the chair from her
hand. however, the defendant managed to strike her.
2. what was the cause of action?
a. assault and battery
3. what happened at the trial court?
a. directive verdict - a ruling entered by a trial judge after
determining that there is no legally sufficient evidentiary
basis for a reasonable jury to reach a different conclusion.
b. become familiar with the terms of art.
4. Explain in your own words the following definition for directed
verdict: A directed verdict is a ruling entered by a trial judge
after determining that there is no legally sufficient evidentiary
basis for a reasonable jury to reach a different conclusion.
a. MY ANSWER: A directive verdict is a jury verdict directed
by a judge when a party has not proved its case as a matter
of law.
b. student answer: if the evidence weighs so heavily on one
side, there is no need to go through the trouble of jury trial,
since the jury has no other option but to reach the same
conclusion.
50
xiii.
xiv.
51
5. The trial court ruled in favor of the defendant, who’s the
mentally ill patient ,saying that she was not liable. what
happened on appeal?
a. the supreme court ruled that mental illness does not negate
intent.
6. isn’t this rule similar to the rule from garrat v. dailey? There we
said that age is not an excuse to intentional tort liability. children
are liable for their intentional tort, just like adults.
7. does it matter why the mentally ill person struck the nurse, what
if the patient was delusional and thought that the nurse was
trying to kill her?
a. doesn't matter- the law will not inquire further into his
peculiar mental condition with a view to excusing him, if it
should appear that delusion or other consequence of his
affliction has caused him to entertain that intent or if a
normal person would not have entertained it.
8. did the person intend to cause the harmful or offensive contact
or did they carry it out with substantial certainty that the harmful
or offensive act would follow?
9. what is the policy rationale for this rule?
10. Can you identify at least two policy reasons supporting the
general rule that mental illness does not negate intent?
a. My answer: If an insane person is financially able to to pay
for his support, he is liable to pay for the damage he does.
Mentally disabled persons may be held responsible for their
intentional torts as long as the plaintiff can prove that they
formed the requisite intent.
b. teachers rationales: imposing liability makes legal guardians
more watchful. If those responsible know that lawsuits for
intentional conduct could diminish the estate of their
relatives, then they will probably be more watchful.
c. as a society we believe that its better to hold the wrongdoer
liable than to place the burden on the injured party.
d. it's difficult for courts to determine mental capacity.
i.
exceptions to mental illness: several jurisdiction have
carved out narrow exceptions for patients who cannot
control or appreciate the consequence of their action.
MENTAL ILLNESS DOES NOT NEGATE INTENT.
h. Case Reading and Briefing Lecture: Part III
i.
Objectives:
1. understand the importance of critical reading skills in law school and the
practice of law.
2. examine various reading strategies that you can incorporate when reading
cases
3. learn a four-step reading approach to improve reading comprehension.
4. Complete an exercise based on your reading of Wallace v. Rosen.
ii.
Read comprehension for law students
1. excellent reading skills are core for attorneys
2. acquire information and knowledge through reading
3. the successful law student and lawyer reads actively, critically; interprets
the intended meaning and communicates analysis clearly and powerfully.
4. lawyers have refined their skills through practice, reading with more
precision and effectively.
5. lawyers read critically by:
a. evaluating whether information aligns with their understanding or
whether they agree or disagree.
b. assessing relative strength or weakness of arguments and conclusions.
c. contemplate arguments that challenge the reasoning presented.
d. determining how the reasoning would apply to other factual scenarios.
6. successful law students read judicial opinions differently from less
successful students.
7. there is a correlation between reading strategies of top law students and
their first-semester grades.
iii.
reading in college vs. law school
1. you read cases to learn rules and observe how courts apply those rules to
specific facts.
52
2.
iv.
why are cases so difficult to read?
1. you are a novice (lawyer in training)
2. reading the law is like reading a foreign language
3. reading the law is a time-intensive task, especially when you’re first
learning.
4. cases are written for other judges and lawyers- not for law students.
5. cases are filled with unstated assumptions.
6. in addition, most of the cases have been edited by the casebook authors to
help you focus on specific aspects of the case relevant to your study.
v.
critical reading success strategies
1. read as advocate or judge
a. read with purpose by taking the role of an attorney or judge
b. When you read with a purpose, you are actively evaluating, analyzing,
and synthesizing what you read.
2. understand context of case
a. refer back to the table of contents and the course syllabus to identify
the doctrine this case is assigned to teach you. if the cases you’ve been
assigned fall under the intent section of the intentional tort chapter,
you will know that your assigned reading will flesh out your
understanding of the intent element in an intentional tort claim.
53
b. ready any material that precedes the case in your text. your casebook
often will provide some preliminary information on the text. this
information might provide you with the elemental structure of a rule or
it might be an introductory chapter that provides you with a better
understanding of the cases that follow.
c. read the case name and note the court- state or federal, and what level.
note the date to get a sense of historical text.
d. read the first paragraph or two to identify the parties and the basic
issue.
e. read the first sentence of every paragraph to get a sense of direction of
the opinion, the flow of the discussion, and the structure of the
arguments.
f. read the last couple of paragraphs for the holding and the disposition
of the case.
3. create a mental picture of the facts
a. creating a mental image helps you remember the narrative and case
better.
b. connect with the case by associating your own images with it.
4. read and re-read
5. Evaluate decisions
a. understanding what you read is not sufficient
b. evaluate the merits
c. question the reasoning
d. determine if you agree or disagree
e. hypothesize different scenarios
f. consider implications
vi.
bad reading habits
1. merely read for class rather than to sharpen skills
2. skim over the facts
3. highlight and underline too much
4. don’t read critically and question the result
5. take notes with their thoughts and then brief the case
54
6.
vii.
treat cases briefs as a perfunctory, fill in the blank exercise.
improve reading comprehension
1. a 4-step reading approach to improve reading comprehension
a. pre-reading
i.
read for purpose
ii.
get context
iii.
preview the case
b. read for overview
i.
skim the entire case from beginning to end
ii.
remember the structure of cases - look for previous legal
proceedings, facts, rules, issue, reasoning and holding. usually the
last paragraph of a case can provide helpful context, so you may
choose to read that first.
iii.
focus on the parties- who won, and what is the case generally
about?
c. read for understanding
i.
understand the facts completely- practice creating a mental image
of the facts.
ii.
look up unfamiliar words.
iii.
read to understand the issue, holding, and reasoning/policy
iv.
reread and analyze confusing parts of the case
v.
read each part of the case in the context of the entire decision to
understand the main ideas.
vi.
make notes in the margin with you reactions to the case and
questions you may have
vii.
if the rule is not explicitly stated, make inferences to identify the
rule.
d. Post-reading
55
i.
compile questions
ii.
evaluate the decision and result
viii.
iii.
think about how the case might be different if the facts were
different or how the decision could be applied to a slightly
different set of facts
iv.
synthesize to determine how the case fits with the other cases you
have read
v.
predict the type of questions you professor might ask during class
vi.
brief the case.
conclusion
1. just like any endeavor, you will improve over time.
2. apply the 4 step reading approach as you read wallace v. rosen.
4. SOCRATIC DISCUSSION: BATTERY, DEMYSTIFICATION PART III,
INTRODUCTION TO OUTLINING PART I
a. Wallace v. Rosen – case briefing exercise
b. Cole v. Turner – read and brief
i.
objectives:
1. provide continued reinforcement of students’ familiarity with and
understanding of the different components of a case brief.
2. give students an additional opportunity to identify key information from a
case and to condense that information using language (BAE check) and a
format (case brief) that is recallable and understandable for later use,
including classroom discussion and review.
3. reveal that cases may not contain information that corresponds to each
component of a case brief.
c. Wallace v. Rosen – read and brief
i.
objectives:
1. provide continued reinforcement of students’ familiarity with
understanding of the different components of a case brief;
2. give students an additional opportunity to identify key information from a
case and to condense that information using language (BAE Check) and a
format (case brief) that is recallable and understandable for later use,
including classroom discussion and review.
d.
56
Cole v. Turner and Wallace v. Rosen – class discussion lecture
i.
objectives:
1. help students resolve legal questions (hypo scenarios) under two different
definitions of battery and understand that different conclusions may result
from the the same fact pattern;
2. reveal the ambiguities of legal terms and rules;
3. assist students with anticipating key class takeaways so as to maximize
their preparation prior to and for class.
ii.
RECAP
1. intent
a. specific intent or general intent
i.
either specific intent or general intent must exist for the element of
intent to be established.
b. transferred intent
c. mistakes - does not negate intent
d. mental illness - does not negate intent
e. garratt v. daley - age does not negate intent
f. a mistake is not a defense to intent
g. mental incapacity is not a defense
h. being a minor is not a defense
i. you act with intent if it is your desire or purpose to bring about a given
consequence or you act knowing that a given consequence is
substantially certain to result .
2. LECTURE
a. Cole v. Turner
57
i.
the chapter is battery - look at the table of contents. gives you a
heads up that we are switching topics.
ii.
looking at the table of contents reveals that battery will be the topic
of the next 4 readings.
iii.
read the case caption beforehand- give you context.
iv.
policy questions - courts examined these same kinds of questions
when they reach their decisions. policy questions are often
influenced by the current state of affairs.
v.
Nisi Prius, 1704.
1. latin for unless first
2. the original trial court which heard the case is distinguished
from the Court of Appeals
3. very old case, trial court decision
4. is it still american law? was rendered before america was
established.
5. why are we even reading this old case?
a. maybe because this was the first battery case?
vi.
examples ?
1. have i committed a battery if i punch you in the nose?
a. under the cole case yes - anger, violence, hurtful struggle
b. under the second restatement?
i.
it depends on whether you had the intent to cause a
harmful or offensive contact.
c. restatements - a collection of rules about an area of lawsets of treatises on legal subjects that seek to inform judges
and lawyers about general principles of common law.
i.
THE RESTATEMENTS BY THEMSELVES HAVE
NO LEGAL AUTHORITY!!!!
ii.
why are we reading them?
iii.
help influence the court when making a decision.
iv.
the court can reference or incorporate a restatement as
legal basis for their decisions, if this is done then the
restatement becomes a controlling law.
d. the second restatement - incorporates intent
e. the cole case does not incorporate intent
2. an example if when i punch someone in the nose that would not
be a battery
a. possibly if you consent to it? affirmative defense- negates a
valid cause of action. consent does not necessarily negate
intent.
58
b. if someone likes to be punched in the nose - then no intent
to cause a harm or offensive contact.
3. what if i spit in your face?
a. what’s the result under cole - it depends.
i.
if i purposely on you then the spitting is the touching of
another out of anger.
ii.
if i’m a loud talker - spittle- then it would not be
considered a battery.
b. what’s the result under the restatement?
i.
most likely yes - if you meant to spit on someone, then
you meant to cause offensive contact because no one
wants to be spit on.
ii.
what about in the spittle scenario? if you know you
spittle, and you know you’re a close talker, then you
had the intent for the spit to land in ones face.
c. tying the spit to intent
i.
would it be specific or general intent? general. if i am a
chronic spittler and spoke to close to you anyway, i
knew with substantial certainty that the spit would
cause an offensive contact because i do not want to be
spit on.
d. spitting or punching can lead to a valid battery claim under
either case.
e. what interest are we, as a society protecting by recognizing
this cause of action?
i.
battery protects us from contacts we don’t want and the
contact could either be harmful or offensive. A punch is
harmful while spit is gross, it might not be harmful.
f. couldn’t spitting on someone be harmful too?
i.
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student gives scenario: what i someone had a bad
disease that could be passed on thru saliva, then
wouldn’t the spit be harmful?
ii.
if the spit causes a disease then that would be a harmful
contact, but the contact needs only to be harmful OR
offensive, it doesn’t have to be both.
g. whether the contact was harmful or offensive, the result
would not change.
h. Why can you recover on a battery claim even though there
might not be any actual damages?
i.
my answer: You can recover on a battery claim even
though there may not be any actual damages because
someone has intentionally made harmful or offensive
contact to your person in a way that the law forbids.
ii.
actual damages are not required for most intentional
torts.
i. what if you do suffer damages?
i.
bizzare results like Ms. Spivey - what if my spit causes
you to the ground, vomit, and bang your head on a rock
which in turns causes severe bleeding and scarring? am
i liable for these bizarre results? - YES
j. Wallce v. Rosen
i.
first question is on the facts.
ii.
assuming the trier of fact credits Rosen’s version of
events, was a battery committed?
iii.
no - the court holds that everyday contacts are not
offensive contacts within the meaning of the law.
k. what if wallace didn’t like being touched, it just bugged
her. does that matter?
i.
the answer is no, but why?
ii.
what standard do we use to determine what is
offensive?
iii.
objective standard - what would a reasonable and
ordinary person find offensive, to be an affront to her
personal dignity.
l. exception to objective standard re offensive:
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i.
why did Ms. Spivey have a claim? because Battaglia
hugged her knowing she was shy and would not like it.
ii.
arguing for an exception when the defendant knows of
the plaintiff’s particular vulnerabilities.
iii.
Battaglia was on notice of Spivey’s vulnerabilities, thus
he should be held liable.
m. Is a kiss a battery if the reason the person kissed you was
because the person thought that you would like it?
i.
under the restatement but not cole, the kiss would be a
battery.
ii.
the person intended to cause an offensive contact, and
an offensive contact resulted
n. Cole Case vs. Restatement
i.
the plaintiff does not have to prove that the touching
was in anger. Today it is enough to prove that the
defendant intended to cause a harmful or offensive
contact and a harmful or offensive contact resulted.
ii.
the defendant’s motive is not relevant - doesn’t help
that he thought the plaintiff would like the kiss.
o. BATTERY
i.
a person commits a battery if he acts intending to cause
a harmful or offensive contact
ii.
a harmful or offensive contact occurs.
p. harmful contact - anything that is painful
q. offensive contact- something that is rude, insolent, or an
affront to personal dignity.
i.
offensiveness is measured by an objective standard.
r. an harmful contact is anything that is painful. an offensive
contact is something that is rude, insolent, or an affront to
personal dignity. What phrase from the quoted restatement
language is missing?
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i.
“...an imminent apprehension of such contact…”
ii.
why do you think this phrase is omitted?
iii.
my answer: the phrase “an imminent apprehension of
such a contact” is omitted because making someone
fearful or anxious does not mean that the harmful or
offensive contact will result. The “imminent
apprehension of such contact” is an assault.
iv.
it was left out because of transferred intent. if you
intend to commit an assault then you intend to create an
imminent apprehension of a harmful or offensive
contact and you in fact cause a battery, then you are
liable for a battery.
v.
if I threw a stick at A intending to frighten him, but I hit
B. I am liable to B for battery. This is an example of
intending to commit one tort and committing another
tort than I intended on a different person.
vi.
Left the statement out to keep the definition simple. A
good lawyer will remember that we can use the doctrine
of transferred intent to hold the defendant liable like in
Tallmadge v. Smith.
s. Should it matter if the defendant is trying to help the
plaintiff?
i.
what if a woman falls at a skating rink and, over her
protest, an employee tries to manipulate her arm back
into place? is this a battery under our definition?
ii.
yes, this would be a battery. the defendant should
understand that the touching is offensive because of the
plaintiff’s protest. remember that intent is different
from motive, and good faith is not a defense. So, if the
plaintiff is saying don’t touch me, then to touch her
would be an offensive contact.
t. what if you are unconscious when the contact takes place?
doctor performs a surgical procedure while you’re
unconscious.
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i.
is the doctor’s liability for battery dependent on
whether the surgical procedure was successful? NO.
ii.
battery is the unauthorized touching which an ordinary
person would find offensive.
iii.
it makes no difference whether you’re conscious or
not. likewise, it makes no difference if the touching
was beneficial or not.
u. What is the Restatement’s 18(2) all about?
i.
my answer: it explains that offensive contact without
intent is negligence.
ii.
distinguishes the intentional tort of battery from a
negligence claim.
v. if a defendant runs a red light - he is negligent.
e. Demystification Part III Lecture
i.
introduction
1. battery is said to be the easiest tort but it is full of edges.
ii.
socratic demystification
1. Legally Blonde Clip (elle’s first day of class)
a. listen to how the professor responds to each students response
b. is the professor agreeing or disagreeing wit the student?
c. does the professor take the time to clarify any concepts?
d. does the professor explicitly answer the hypo?
e. specific teaching point in mind when asking the questions:
i.
flesh out a nuance of a rule
ii.
solidify your understanding of a concept
iii.
illustrate how the rule might operate in a new fact situation
f. anything the professor emphasizes, explains or clarifies should be in
your notes.
2. discussion of how cole v. turner and the restatement differ
a. battery → defendant intended to cause a harmful or offensive
contact and a harmful or offensive contact resulted
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i.
look at the spitting - done with specific or general intent - make
sure it's in your notes
ii.
clarifies that contact can either be harmful OR offensive but
doesn’t have to be both
iii.
damages are not required for most intentional torts
iv.
with intentional torts, the court is much more willing to hold the
defendant liable for unintended and unforeseen consequences.
3. wallace v. rosen
a. we are all expected to put up with some of life’s inconveniences,
including the ordinary contacts which are customary and reasonably
necessary to the common intercourse of life
b. how do we decide what is offensive? objective standard - what would
a reasonable and ordinary person find offensive? or to be an affront to
her personal dignity.
4. IMPORTANT POINT:
a. intent is measured by a subjective standard. we look at that particular
defendant’s purpose or what the defendant knew.
b. offensive contact is measured by objective standard. we look at what a
reasonable and ordinary person would find offensive.
5. exception: if the defendant knows of the plaintiff’s particular
vulnerabilities.
a. this was the exception raised in the spivey case.
b. battaglia was on notice- should be held liable.
6. ANYTHING THE PROFESSOR SPENDS TIME DEFINING OR
WRITES ON THE BOARD.
a. in the previous lecture, the professor spends times defining what is
harmful or offensive contact.
i.
harmful contact is anything that is painful
ii.
offensive contact is something that is rude, insolent, or an affront
to personal dignity.
7. Professor references notes in cases
a. read notes from cases!!!!
b. exam questions
c. test your own understanding
8. intent is different from motive, and a good faith motive is not a defense.
(skating rink case)
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f. Fisher v. Carrousel Motor Hotel, Inc. – read and brief
i.
Objectives:
1. provide continued reinforcement of students’ familiarity with and
understanding of the different components of a case brief;
2. give students an additional opportunity to identify key information from a
case and to condense that information using language and format that is
recallable and understandable for later use.
g. Fisher v. Carrousel Motor Hotel, Inc. – class discussion lecture
i.
if battery requires the intent to create a harmful or offensive touching to
plaintiff’s person, what else do we need to focus on in our rule that we haven’t
yet examined?
1. plaintiff’s person
ii.
cases discuss harmful or offensive contact
1. Cole v. Turner
2. Wallace v. Rosen
iii.
Intent cases
1. McGuire v. Almy
2. Spivey v. Battaglia
3. Garratt v. Dailey
4. Ranson v. Kitner
5. Talmage v. Smith
iv.
why did the Fisher case go up to the Supreme Court of Texas?
v.
the hotel employee’s behavior was offensive
vi.
considering the case falls under battery, the issue is whether we have a battery
- did the defendant make direct contact with Fisher’s body?
1. no- she grabbed the plate, she made indirect contact with his body.
vii.
Why did the Texas Supreme Court hold the hotel liable for this indirect
contact?
1. held that it is not necessary that the plaintiff’s body be distrubed.
2. that the defendant intentionally contact anything so connected with the
body as to be customarily regarded as part of the other person.
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viii.
what do we need to consider the plaintiff’s person element?
1. objects held in the plaintiff’s hand or worn by the plaintiff are clearly part
of the plaintiff’s person.
ix.
what if person A is standing with his arm around person B’s shoulder - person
C passing by violently jerk’s person B’s arm, as a result person A falls down,
to whom is person C liable?
1. in this situation, since A had his arm around B, A was so connected to B,
and B was so connected to A. So if B was touched, then A was touched
too. Therefore, both A and B would be liable to C.
a. the interest to be protected includes all of those things in contact or
connected with the person
2. how important was it that the hotel employee made the racist remarks as
he was grabbing the plate?
a. its not because there was still an offensive touching with or without the
racist remark.
3. what if she did not pull the plate, would we have a battery claim?
a. no- because contact is required.
4. what if someone kicked the plaintiff’s car while the plaintiff was in it, is
this a battery?
a. no- the person isn’t part of the car- they are just sitting it in passively .
5. what if, instead of kicking the plaintiff’s car, someone tried to open the car
door while the plaintiff was trying to prevent the door from opening by
holding onto it? is this a battery?
a. in this case, there would be a battery claim because the person is
actually holding onto the door, and the other person is trying to open
the door from the outside. think about the car door being the same as
the plate in the Fisher case.
6. what if the defendant poisoned the plaintiff’s food? what previous case
supports the conclusion that a battery exist even though the employee did
not grab the plaintiff’s plate, but poisoned his food instead?
a. Garratt v. Dailey - he set in motion the chain of events that made
Garratt fall
7. is it a battery if i dig a hole and the plaintiff walks into it?
a. is there intent? YES
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b. was there a harmful or offensive contact? YES
c. was there contact to plaintiff’s person? YES
h. Introduction to Outlining Part I Lecture
i.
Outlining Part 1
1. what is a course outline?
a. an organized summary of the information you covered in a course
b. it is a compilation of definitions, rules, cases, policy rationales, etcs.
c. personal study guide for your exam
d. how the info is organized and presented
i.
use the outline to visually depict connections between rules and
concepts
2. why should i outline?
a. the benefits of outlining are earned through struggling to make your
own outline.
b. teaching you how to teach yourself is a foundational part of your legal
training
c. outlining process is a process that teaches you how to effectively learn
the law
d. there is no one “right” way to outline.
3. how do i make a course outline?
a. gather the materials you will need to create your outline
i.
case book
ii.
syllabus
iii.
class notes and notes from when you read
iv.
case briefs
v.
class handouts
vi.
any outside sources - as a reference
b. create the skeletal structure of the big topics and subtopics using the
main headings from your course syllabus and casebook table of
contents
c. insert rules from cases discussed
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d. flesh out rules with black letter law
e. incorporate other important information from class notes (policy,
hypos, additional rules, discussions, etc)
f. continue to edit and refine your outline
4. what rules do i include in an outline?
a. extract what main rule or concept you learned about was derived from
that case
b.
make associations - between cases and rules
5. how to flesh out the rules
a. black letter law
b. incorporate cases as examples under the rule that was derived
6. why can i use someone’s outline?
a. the real learning come as we work to create it.
b. use commercial outlines to help you make your outline, but
commercial outlines are not adequate by themselves.
7. when should i begin outlining?
a. wait until you have completed a testable chunk of material - i.e. in this
course you can start outlining after intent.
b. make sure your outline is complete at least 2 weeks before final
exams.
c. block off a few hours each week to outline the week of classes.
5. MULTIPLE-CHOICE QUIZ #1 AND REVIEW, SOCRATIC DISCUSSION:
ASSULT, INTRODUCTION TO OUTLINING PART II, AND
INTRODUCTION TO ESSAY WRITING PART I
a. Intent & Battery Quiz #1 Lecture
i.
multiple-choice questions will be designed to test the sub-issues that parties
might litigate
ii.
this makes sense because you are a lawyer-in-training now.
iii.
sub issues in intent
1. specific intent
2. general intent
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3. motive
4. children forming intent
5. mentally ill forming intent
6. transferred intent
iv.
systematic problem solving
1. multiple-choice questions based on the idea that questions are written to
test narrow issues of law
2. sub issues
3. to help you pin point the narrow issue the question was written to test so
you can answer the question without having to overly rely on the answer
choices.
4. find the narrow issue - you’re golden
5. understand the problem you are solving and what type of answer you need
to give
6. for multiple choice questions this means starting with the call of the
question
7. a lawyer uses a flexible system when she problem solves
8. a good lawyer is efficient and cautious
9. always try to improve your understanding of the rules
10. it is not necessary for the defendant to intend the specific injury.
11. contact in battery can be direct, or indirect. - this means the plaintiff will
still be liable if he sets in motion the thing or event that causes the contact.
12. contact can be with something intimately associated wit the plaintiff, the
defendant will still be liable.
b. Intent & Battery Quiz #1 Explanatory Answers
c. I de S et. ux. v. W de S – read and brief
i.
provide continued reinforcement of students’ familiarity with understanding
of the different components of a case brief;
ii.
give students an additional opportunity to identify key information from a
case and to condense that information using language and a format that is
recallable and understandable for later use.
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d. Western Union Telegraph Co. – read and brief
e. I de S et. Ux. V. W de S and Western Union Telegraph Co. – class discussion lecture
i.
objectives
1. Explore a court’s rationale for developing a new cause of action based on
the inadequacies of then-existing legal remedies.
2. help students understand that professors do not assign cases in isolation
and independent of one another- instead professors assign cases so
students can synthesize these cases to create an intersecting map of the
law;
3. assess students’ understanding of the two cases by allowing them to
answer and ask questions based on modifications of the facts contained in
those readings.
ii.
LECTURE
1. W de S
a. what does the fact that the case is from 1348 tell us?
i.
this case created the tort of assault.
b. Question of facts
c. why allow the action if there was no physical contact?
i.
recovery is allowed because the d put the p in apprehension that an
imminent bodily contact. the apprehension is the damage. this was
the birth of the cause of action of assault.
d. an assault is the intent to create a reasonable apprehension of an
imminent harmful or offensive contact to another’s person.
e. assault is different from battery - but specifically how is it different?
i.
a battery requires contact, but an assault only requires
apprehension.
f. a battery is a completed assault.
g. assault is the first cause of action to recognize that mental injury, as
opposed to physical injury, is an element of damages for which there
should be a remedy.
h. what do you think the policy rationale for for allowing a claim for
assault?
i.
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society wants to discourage such antisocial behavior.
i. what if the defendant argues that he never intended to plaintiff with the
hatchet- that he only intended to swing it close enough to “persuade”
her to open the door. would this negate an assault?
i.
motive does not matter - irrelevant to establishing intent.
ii.
an assault is complete whether or not the defendant actually
intends the contact. it it is enough that she intends to create an
apprehension of the contact in the plaintiff.
j. will the defendant prevail by saying that he did not intend to put the
plaintiff in apprehension of imminent bodily contact? i mean, what
doctrine could the plaintiff rely upon to overcome this defense?
i.
transferred intent - the defendant could still be liable for assault
even if he was trying to break the door down and she happened to
stick her head out of the door.
2. Western Union
a. what was the cause of action?
i.
assault, there was no physical contact.
b. what are the elements of assault?
i.
the defendant intends to cause a reasonable apprehension of an
imminent harmful or offensive contact.
c. was the wife put in apprehension?
i.
the def argued that he couldn’t reach the wife from behind the
counter - that it was physically impossible to touch her.
d. actual ability vs. apparent ability
i.
as long as she believed that the defendant could touch her thats
enough to prove assault.
e. if i point an unloaded gun at you, have i committed an assault? even if
the gun is unloaded and i cannot actually harm you?
i.
yes- you could still have believed that i could shoot you - apparent
ability even if the actual ability did not exist.
f. does assault require the plaintiff to fear fear?
i.
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no- it is not necessary that the plaintiff believes that the
defendant’s actions will be effective in inflicting the harmful or
offensive contact. it is enough that the plaintiff believes that the
defendant is capable of immediately inflicting that contact.
g. in what way would the amount of damages matter?
i.
if the plaintiff is afraid, the amount of damages would be higher
but if the plaintiff is less afraid then it will be lower.
ii.
p still entitled to nominal damages.
h. is it an assault if a d makes kissing sign at the p without anything else?
i.
no- the plaintiff was likely not in apprehension of contact.
i. what if i threaten a baseball at you and then leave the room wit the
express purpose of getting ball?
i.
no assault because there was no reasonable apprehension of
imminent contact. you left the room to get the ball.
ii.
mere preparation for future contact is not enough.
j. is it an assault if i say i am going to find out where you live and kick
your ass
i.
no- threats of future action are not enough
k. what happens when i show up or reenter the room with a baseball bat
i.
yes when you come back there is an assault
l. is it an assault if the plaintiff finds out that earlier in the day, the
defendant pointed a bat and sung it at his back?
i.
no assault - the plaintiff couldn’t have been in a reasonable
apprehension of contact. the event already happened.
m. is it an assault if i make a threatening gesture and say were you not an
old man, i would knock you down.
i.
no assault - words can negate the imminence of the bodily contact.
f. Introduction to Outlining Part II Lecture
i.
apply best practices for developing your own course outline
ii.
create a framework to outline intent and battery
iii.
practice expanding the framework with explanations and examples.
g. Introduction to Essay Writing Part I Lecture
i.
essay writing
1. legal analysis part i
a. the tool lawyers use to solve legal problems
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b. it requires examining a problem methodically for the purposes of
interpreting that problem through the lens of the law
c. examining a factual scenario using the applicable rules to make logical
arguments and conclusions.
d. one day, your client mary comes to see you. She is very upset about an
interaction between herself and a coworker named Julie. Apparently,
Julie was imitating Mary’s mannerisms all day while Mary was trying
to work. Mary told Julie to stop, but she wouldn’t. Finally, Mary was
fed up. She waited for Julie to look away. Then, in front of her other
coworkers, Mary slapped Julie in the face, resulting in a painful bruise.
Julie is now threatening to sue Mary. Mary wants to know if Julie has
any possible causes of action. What legal issues are raised by these
facts?
i.
Did Mary commit a battery?
2. leal analysis part ii
a. need to show how each element of battery is satisfied or not
b. a defendant is liable for battery when
i.
the defendant intends
ii.
to cause a harmful or offensive contact
iii.
with the plaintiff's person
iv.
and harmful or offensive contact results.
c. rule explanation bridge: carefully matching the applicable legal rules
to the relevant facts in a sound, logical manner.
d. because - “the element of harmful contact is satisfied because Mary
made contact with Julie’s face when she slapped her, resulting in a
bruise.
3. the IRAC Paradigm
a. ISSUE:
i.
it can be stated as a sentence or a question
1. the first issue is whether julie has a cause of action against
mary for battery.
ii.
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identifying the issue is similar to the “question presented” in a
case.
iii.
many essays will have more than one legal issue to discuss.
b. RULE
i.
introduce the rules you plan to use.
ii.
discuss general principles first, with smaller secondary
components, such as definitions, illustrations, and examples to the
rule following afterward.
iii.
should include two parts
1. rule statement: a defendant is liable for battery when the
defendant intends to cause harmful or offensive contact to a
plaintiff’s person.
2. rule explanation:
a. intent:
i.
the defendant has the required intent if it was the
defendant’s purpose to cause the harmful or offensive
contact (known as specific intent) OR
ii.
the defendant has the required intent if the defendant
knew with substantially certainty that his actions would
result in a specific consequence (general intent).
iii.
the defendant need not intent the specific harm that
results- only the contact.
b. harmful or offensive contact to a plaintiff’s person
i.
harmful or offensive contact to a plaintiff’s person
means the defendant physically touched the plaintiff’s
body or something intimately connected with the
plaintiff’s body.
ii.
harmful contact is anything that is painful. an offensive
contact is something that is rude, insolent, or an affront
to personal dignity
iii.
contact is harmful if it causes actual injury, pain, or
disfigurement.
iv.
contact is offensive if it would be considered offensive
to a reasonable person.
c. APPLICATION
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i.
connect the rules to the facts tracking the language of the rules you
introduced.
ii.
Here, mary likely acted with specific intent because it was her
purpose to slap Julie in the face. Mary waited until Julie looked
away, which shows she thought about the timing of the slap and
that it was not in anyway accidental.
iii.
mary also contacted person because mary’s hand contacted julie’s
face and julie’s face is part of her person. the contact was harmful
because mary’s slap caused julie physical pain in the form of a
bruise. Teh contact was also offensive because mary slapped julie
infront of her coworkers.
iv.
include counter arguments: mary might argue that she did not
know the harm would cause a bruise and that she only wanted julie
to stop imitating her. This argument will fail because mary need
not intend the exact harm that results, only the contact.
d. CONCLUSION
i.
your conclusion should mirror the the language of the issue you
stated earlier.
1. Therefore, Julie has a cause of action for Battery against Mary.
h. Practice Essay #1
i. Discussion Board Post #3: Quiz Self-Reflection
6. MULTIPLE-CHOICE QUIZ #2 AND REVIEW, SOCRATIC DISCUSSION:
IIED, INTRODUCTION TO ESSAY WRITING PART II
a. Battery & Assault Quiz #2
b. Battery & Assault Quiz #2 Lecture
i.
construe the call of the question
1. what should your answer address?
2. what additional information do you, the lawyer, want to know before
answering the question?
ii.
questioning the question
iii.
initial questions help you focus your reading of the facts by giving you
something concrete to look for.
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iv.
to be liable for an intentional tort, you have to intend the consequence. no
intent to cause the consequence, no liability.
c. Battery & Assault Quiz #2 Explanatory Answers
d. State Rubbish Collectors Ass’n v. Siliznoff – read and brief
e. State Rubbish Collectors Ass’n v. Siliznoff – class discussion lecture
i.
first question is regarding facts- how did the case end up in court?
ii.
who was the defendant in this case?
1. Siliznoff
iii.
who was the plaintiff?
1. state rubbish
iv.
the plaintiff brought a breach of contract suit.
v.
what cause of action did Siliznoff bring?
vi.
what arguments did Siliznoff make to defend against the Association’s breach
of contract claim?
1. First he argued that there was no valid contract in the first place, and that
there was no consideration to the contract.
2. he was coerced into signing the contract. (duress)
vii.
Counterclaim for assault - Siliznoff claimed that he suffered a reasonable
apprehension and immediate harmful or offensive contact when the
association threatened to beat him up and that he was so fearful that he threw
up several times and had to miss several days of work.
viii.
Why didn’t the court agree with Siliznoff that he suffered an assault?
1. because the association's threats were for future action.
ix.
what issue is the court grappling with?
1. whether the plaintiff had another cause of action under IIED.
x.
what does “individuals should have the right to be free from serious and
intentional invasions of mental and emotional tranquility” mean?
1. my answer: Individuals should have the right to be free from serious and
intentional invasions of mental and emotional tranquility" means that an
individual should not have to endure intentional conduct from another that
would erupt their emotional peace.
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2. individuals should still be able to recover damages for emotional distress
even if there is no physical harm.
xi.
why would courts be reluctant to recognize a tort based solely on an emotional
injury?
1. the court suggested that doing this could open the flood gates of claims
2. might be hard to prove if there is no physical harm.
xii.
the court didn’t seem to worry that this would open the door to unfounded
claims and a flood of litigation. why not?
1. the defendant's conduct has to be extreme and outrageous.
xiii.
what is extreme and outrageous?
1. conduct that shocks the conscious- goes beyond all bounds of societal
norms.
xiv.
any other safeguards in place?
1. the emotional has to be severe -
xv.
the dual requirement of the conduct being extreme and outrageous and the
harm requiring some severe emotional distress will limit the potential claims
that plaintiff’s bring.
xvi.
how is extreme and outrageous judged? subjective or objective?
1. is examined under a reasonable person standard - objective.
xvii.
when we might use a subjective standard?
1. when the defendant knows of the plaintiff’s sensitivity - ex. phobia of
snakes, putting a fake one in their bed as a practical joke - causes severe
emotional distress- this conduct is extreme and outrageous - knew and
exploited the plaintiff’s fears, the conduct then becomes extreme and
outrageous.
xviii.
who makes the determination whether conduct is extreme and outrageous
1. the jury is in the best position to determine what is extreme and
outrageous.
xix.
supreme court agreed that Siliznoff did not have a valid assault claim, but it
did not leave Siliznoff without recourse. it adopted a new tort - intentional
infliction of emotional distress.
xx.
elements of IIED:
1. an act by the defendant amounting to extreme and outrageous conduct
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2. intent OR recklessness
3. causation
4. severe emotional distress.
xxi.
extreme and outrageous conduct
1. usually must transcend all bounds of decency, being rude is not extreme
and outrageous conduct. however, conduct that is not normally extreme
and outrageous may become so under certain situations.
2. if the conduct is continuous in nature a. ex may be extreme and outrageous - bill collectors, calling 10 times all
hours of day and night.
3. when the conduct is directed towards a certain type of person (i.e.
children, eldery, pregnant women, super sensitive adults)
4. when conduct is committed by a certain type of defendant
a. like common carriers or innkeepers - these may be liable even for
gross insults.
xxii.
bystander rule: when the defendant intentionally causes physical harm to a
third person and the plaintiff suffers severe emotional distress because of it,
the plaintiff may recover by showing either the prima facie case elements of
emotional distress or that:
1. she was present when the injury occurred
2. she’s a close relative of the injuried person
3. the defendant knew facts one and two.
xxiii.
IIED is a fall back tort- so if another alternative in your exam question is a tort
that will also allow plaintiff to recover, discuss that tort first, most of the time
IIED is something you tack on to the other claims.
f. Introduction to Essay Writing Part II Lecture
i.
call of the question: the call of the question is the question that allows the fact
pattern- that is, the ultimate question you are asked to discuss. its important to
being with the call first because it may hep you identify the issue or issues you
need to discuss. if you have a better idea of what you are looking for, you will
be able to read the facts more purposefully and efficiently.
1. explain fully means to provide a complete, in-depth response in which you
analyze all of the issues reasonably raised by the facts. it also means that
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you should provide much more than a conclusion. your response should
also state and explain the applicable rules and clearly connect the rules to
the specific facts in the form of arguments. your objective is to explain
your thought process in a clear and logical manner-walking the reader
through each part of the journey, from identifying the issue to reaching a
conclusion. you should close every loop and connect every dot.
ii.
identify the issues: a strong understanding of the legal rules will help you
determine which facts are important or legally significant, meaning that they
trigger the legal issue.
iii.
organize your thoughts: make an ISSUE-T (draw a vertical line and on the
left side list the issues you will discuss, on the right side jot down the
applicable rules and the facts that connect with those issues.)
iv.
draft your rule statements:
v.
develop your analysis
vi.
provide a conclusion
g.
Practice Essay #2
h. Discussion Board Post #4: Essay Self-Reflection
7. SOCRATIC DISCUSSION: CONSENT, INTRODUCTION TO OUTLINING
PART III, ESSAY PRACTICE, AND LAW SCHOOL SKILLS REVIEW
a. O’Brien v. Cunard S.S. Co. – read and brief
b. Hackbart v. Cincinnati Bengals – read and brief
O’Brien v. Cunard S.S. Co. and Hackbart v. Cincinnati Bengals – class discussion
lecture
c.
i.
consent is the willingness or agreement for conduct to occur.
ii.
it may be expressed verbally or it may be implied through the conduct of the
parties.
iii.
consent operates to negate the tort
iv.
the law won’t hold a defendant liable for what is ordinarily tortious conduct if
you can show that the plaintiff consented.
v.
think of consent like the defense of voluntary assumption of the risk. They
both suggest either a willingness on the plaintiff’s part to incur an invasion or
a willingness to allow the defendant to engage in conduct that brings about an
invasion.
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vi.
consent is a valid defense to intentional torts where as, assumption of the risk
is a valid defense to negligence.
vii.
What if O’Brien could have proved to the jury, judge, and everyone involved
that she had no doubt that in her own mind that she never consented. Would
that have made a difference?
1. the doctor cannot read her mind.
2. if the plaintiff’s words or conduct are reasonably understood by another to
be intended as consent then the defendant is privileged to act even if the
plaintiff’s actual but undisclosed state of mind was to the contrary.
3. the plaintiff’s conduct in extending her arm was such that a reasonable
person would understand it to mean that she was consenting.
4. her actual state of mind becomes irrelevant.
viii.
what if the defendant announces that he’s going to punch the plaintiff in the
nose, and the plaintiff stands his ground and says nothing. has the plaintiff
consented? in other words, would a reasonable person look upon the
plaintiff’s silence as consent?
1. how do we determine whether someone’s conduct indicated consent? a
reasonable person standard.
2. would a reasonable person think the plaintiff consented to getting punched
in the nose by standing his ground silently?
a. no, consent to such an unreasonable demand should not be presumed
by the plaintiff’s silence.
3. instead of vaccinations, the doctor went down the line of women kissing
them. when he tried to kiss pltf, the pltf submitted without protest although
she secretly did not want him to do it. has a plaintiff consented through the
act, through silence?
a. silence should not operate as consent, which no reasonable person
would interpret it that way.
4. whether it was reasonable for the defendant to believe the plaintiff was
consenting.
5. objective standard - what were looking at is what a reasonable person
would think, not what this particular person thought. in judging what is
reasonable we have to look to the circumstances that surround the
defendant’s actions.
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6. one who without a privilege - a person who acts without the consent of the
p will be held liable for his battery because he had no privilege to act
intentionally against the plaintiff (garrat v. dailey).
ix.
Hackbart v. Bengals
1. was the hit intentional or accidental? clark was acting out of anger and
frustration but without a specific intent to injure.
2. if ^^ is true, then why are we in court? don’t we need as part of a prima
facie case a battery and intent to injure the plaintiff? don’t we need to
show the defendant acted for lawful purpose?
a. no, there needs to be intent only to cause a harmful or offensive
touching for battery.
b. intent to injure goes to motive - irrelevant.
c. you act with intent if you have in mind a desire or purpose to bring
about a given consequence, or you know that the given consequence is
substantially certain to result.
3. here the p had to show that the d had in mind to bring about a harmful or
offensive touching, his motive in doing so, to injure him, was not relevant
to liability. motive affects the amount of damages, the worst the motive
the higher the damages, but motive is NOT REQUIRED to establish
intent.
x.
if motive is not important, and only intent is, and by tackling someone you
intentionally bring about a harmful contact, the why is tackling during a
football game not a battery?
1. when playing a game or sport, consent is assumed for all contacts that are
consistent within those understood rules of the game.
xi.
one who enters into a sport, game, or contest, may have been assumed to have
consented to the ordinary contacts consistent with the understood rules of the
game.
xii.
why did the 10th circuit reverse the trial court?
1. the contact went beyond the rules of football; the hit also took place after
the play had ended.
xiii.
now what if another player clips another, is there a battery? what if a player
makes an illegal block to the legs, battery?
1. yes because it is outside of the rules but players don’t sue all the time
because as a practical matter players tend not to sue because there are no
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damages. most players do not have an unlawful motive, which isn’t
required, but which may justify a larger damage.
xiv.
Theismann’s (washington football team) career ended when another player
broke is legal with a tackle, why wasn’t this a battery?
1. because it was a legal tackle within the rules of the game. player consented
to physical contact within rules of the game.
xv.
what if in a family softball game involving children and adults, an ultra
competitive uncle injures the plaintiff by sliding into second base.
1. what is the uncles best argument to avoid liability? sliding is a part of
softball thus, the plaintiff consented to being injured by a slide.
2. What is the plaintiff's best argument for proving that he did not consent to
being injured by a slide during the softball game? since the softball game
was informal and it was at a family event with children playing, it is
outside the custom game, and since the sliding is outside of the custom of
the game, the plaintiff did not consent to being slid into.
xvi.
any consent fact pattern raises the following inquiries
1. first - was valid consent given?
a. when might a defendant be liable if the plaintiff expressly consented to
the act?
i.
consent induced by fraud will be invalidated but only if it goes to
an essential matter. if it only goes to a collateral matter then the
consent will be valid.
ii.
mistake will undo express consent if the defendant knew of and
took advantage of the plaintiff’s mistake.
iii.
consent obtained by duress will be invalidated unless the duress is
only threats of future action or future economic deprivation.
2. second - did the defendant stay within the boundaries of the consent?
a. other sporting situation - mike tyson biting the ear off the guy he was
fighting. there was no implied consent because it fell outside of rules
of boxing. a reasonable person would not expect to get their ear bitten
off.
3. individuals without capacity, for example drunk people or very young
people, are deemed incapable of consent.
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a. the capacity requirement differs from the capacity for intent in
intentional torts. when establishing liability for an intentional tort,
incapacity is not a defense. for intentional torts, everyone has the
capacity to commit a tort, but not everyone has the capacity to consent
to a tort.
d. Introduction to Outlining Part III Lecture punitive
i.
e. Practice Essay #3
f. Law School Skills Review Lecture
g. Discussion Board Post #5: Learning Outcomes Reflection
8. FINAL EXAM AND POST COURSE SURVEY
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