Introduction to Legal Methods – Summer 2007
Lustbader / McAllister
Introduction to Legal Methods
Summer 2007
Course Materials for Students
(Evening Students)
By now, you should have received a copy of the course syllabus in the mail. This
packet contains all in-class exercises and handouts that we will review in the
Introduction to Legal Methods course. Page two contains instructions for your first
writing assignment, which is due in your first class Tuesday, August 7, 2007. You will
receive additional instructions for the remainder of your assignments in class.
TEXT: The required text for this course is Michael H. Schwartz, Expert Learning for
Law Students (Carolina Academic Press 2005). As of July 24, 2007, the Titan Book
Store on the Cal State Fullerton campus does not yet have this text. You can
therefore purchase this text from “The Law Bookstore,” which is located on La Palma
Ave. in Anaheim. To order the text, simply go to www.thelawbookstore.com, and click
on the “Student Books” link, and then click on “Legal Writing.” Scroll down to the
bottom of this page to find the text. You can also call The Law Bookstore directly at
(714) 491-2665, and they can arrange to ship you the text.
I will personally be teaching the evening class, so I look forward to meeting you all
shortly! - Professor McAllister
©2007
Paula Lustbader / Marc McAllister
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Welcome to Law School and to the Profession
Welcome to law school and the legal profession. You have chosen to embark on a career path
that can be personally and professionally rewarding. Because of their understanding of the
legal system, their good communication and advocacy skills, and their strong analytical skills,
lawyers are in a unique position to affect positive change in this society, both on a systemic
level and an individual level. In their capacity as judges, lawmakers, and government
executives, lawyers are powerful influences in shaping our culture. Of the 42 past and present
United States Presidents, 26 were lawyers. As of 2002, 53 out of 100 United States Senators
are lawyers. 32% of our United States Representatives are lawyers.
In their capacity of serving individual clients, lawyers can help heal conflict and help clients
positively deal with adversity. They can also be advocates for justice and models of good
citizenry. There are common characteristics among many of these lawyers. They have made a
difference. They have passion for their work. They lead meaningful, satisfying, and complete
lives; and they know their work is about something bigger than themselves. Many successful
lawyers view their vocation as a calling. They find satisfaction in being of service.
As a first-year law student, you are entering a profession where you, too, can share these
positive and altruistic characteristics. The habits and attitudes you carry through your law
school experience will follow you throughout your career. This is why it is important to begin
from the first day of class to be conscious of those ideals and personal characteristics that you
want to retain as a central part of yourself. Unfortunately, it can be easy for law students and
lawyers to forget these ideals. Recently, numerous articles and books have been written that
discuss lawyers’ declining professionalism and civility.
Many of these writings assert that lawyers experience dissatisfaction with the profession. This
dissatisfaction manifests itself in increased incidents of alcohol and substance abuse, and high
rates of clinical depression. There are a plethora of examples where lawyers have escalated
rather than healed conflict; where their focus on status and materialism has caused them to
lose sight of justice; where their advocacy skills have been used so aggressively that they act
uncivilly. It is critical to keep a positive outlook on the profession you are about to enter. One
way to do this is to be aware of potential dangers so you can develop strategies and habits in
law school that will assist you in avoiding the pitfalls you may encounter on the outside.
Assignment #1: Drafting Your Personal Statement
Your first assignment is to draft a short personal statement describing why you chose to
come to law school. Your personal statement should be typed and double-spaced, and
should be no longer than two pages. You must turn in a hard copy of your personal
statement at the start of the first class, Tuesday, August 7, 2007.
In drafting your personal statement, you might consider the following questions: What
difference do you want to make as a lawyer? When you are finished with law school, what
adjectives do you want your colleagues, personal friends, and family to use when they
describe you?
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Class Session #1
Tuesday, August 7, 2007
6:00 p.m. – 9:45 p.m.
Topic: Introduction to Legal Analysis Through Hypothetical Case
STUDENTS: In our first class session, you will be introduced to the process of legal
analysis. This introduction will include a discussion of the entire legal analysis
schema, which includes the role of IREAC in legal analysis and the various types of
authority lawyers use. In this first class session, we will be discussing the following
hypothetical, entitled “Failure to Stop at a Red Light.” Please read this hypothetical
before class begins, and think about the questions that follow.
HYPOTHETICAL: “Failure to Stop at a Red Light”
Facts
Client, who is new to Seattle, was out on a Friday night with a friend. Around 11:30
p.m. that night, Client drove her friend to the ferry dock in Seattle, Washington. After
dropping her friend off, Client proceeded to drive herself home. As she drove along the
waterfront, she became a bit confused because in the darkness of the night (there was
no moon or street lights) she did not recognize anything. She came to a red light and
stopped. She noticed that there was no sign of life in the area, no cars, nothing. After
she waited at the light for a while, she heard a car and saw car lights reflected in her
rearview mirror. The car stopped behind her. Client felt anxious and did not know what
she should do. Finally, she cautiously looked both ways, did not see any other traffic,
and then she drove forward even though the light was still red. As it turned out, the car
that had pulled up behind her was a police car. The officer pulled her over and wrote
her a ticket for violating SMC 46.333: Failure to Stop at a Red Light.
Client has one moving violation on her record and knows that her insurance company
will increase her premiums if she gets another violation, so she wants to contest this.
Ordinance
Seattle Municipal Code section 46.333: Failure to Stop at a Red Light:
A person who sees a red traffic light and fails to stop in the City of Seattle
shall be fined $ 150.00. Failure to Stop at a Red Light is a violation.
Questions to Consider
What is the issue?
What are the elements of the rule?
What arguments can the state make? What arguments can you make on behalf of your client?
What is the purpose of the statute? Can arguments be made using policy?
What is the court likely to conclude?
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STUDENTS: You find the following three cases that appear pertinent to this issue. In
tomorrow’s class, we will discuss how to read and apply these cases. For now, please
read each of these cases.
QUESTIONS TO CONSIDER WHEN READING THE CASES BELOW
What was the issue in the case?
What is the procedural history?
What court decided the opinion?
What rule(s) did the court consider?
What rule did the court decide to apply?
Why did it choose that rule? (Policy)
What was the court’s analysis?
What did the court conclude?
What is the rule future cases will apply?
Brown v. City of Seattle
Washington Court of Appeals, Division I
June 24, 1958
Brown was driving a car in Seattle. When he reached a stoplight, he put his foot on the
brake, but the brakes failed and he rolled through the traffic light. He was cited for violation of
SMC 46.333. At the municipal court level, Brown contested this citation and claimed that his
failure to stop was not intentional. He claims that because he intended to stop, he should not be
fined. The court found Brown violated the SMC 46.333. Brown appealed to King County
Superior Court, which concurred with the Municipal Court. Brown appealed to this court
claiming that a fundamental principle in criminal law is the requirement of a mental state. While
Brown is correct in his assertion that generally, principles of criminal law require a mens rea,
most jurisdictions allow for strict liability for regulatory ordinances. We think that when the
legislators enacted this statute, it was concerned with safety and with regulating traffic; thus, the
driver’s mental state is not relevant. Whether a driver intends to stop or not is not the issue. A
car going through a red light poses a safety hazard and could create chaos with traffic flow. For
this reason, we hold that the intent of the driver is not relevant. The fine should stand.
Green v. City of Seattle
Washington Court of Appeals, Division I
December 2, 1995
On March 5, 1994, Green, a Seattle native, was cited for violating SMC 46.333.
Apparently, Green was driving on 3rd Avenue, which is a one-way street in downtown Seattle
during rush hour. Traffic was in grid-lock. He was preparing to turn left at the “T” intersection of
West St., which is also a one-way street. He was following the flow of traffic. A police officer
was driving in the lane next to Green. He was entering into the intersection before he realized
the green light had turned yellow. The police officer stopped at the intersection. Green was
stuck in the middle of the intersection as the light turned red. Green could not back up. Not
wanting to block oncoming traffic, he proceeded through the intersection. At trial, Green
argued that although technically he was in violation of SMC 46.333 because he did not stop
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when the light turned red, under the circumstances, his not stopping furthered the purposes of
the ordinance. It would have been less safe and interfered more with the flow of traffic if he
stopped in the middle of the intersection. The municipal court found against Green. Green
appealed and King County Superior court concurred with the municipal court. Green appealed
to us.
There is no doubt that it would have been unsafe and interfered with traffic if Green had
stopped in the middle of a four-way intersection where traffic was moving at a reasonable
speed. However, the language of the statute is clear: failing to stop at a red light is a violation.
We think failing to stop means failure to stop at any point of the cycle once the light turns red
and as long as it remains red. Thus, Green is in violation because he did not stop or remain
stopped in the middle of the intersection. The police officer testified that the light had turned
yellow before Green entered the intersection. Given the slowness of the traffic, Green should
have heeded the yellow light and stopped in order to keep the intersection clear. A yellow light
is always quickly followed by a red light. In was unsafe for Green to proceed into the
intersection with a yellow light, and it most certainly could have disrupted the traffic flow.
However, the risk to safety and disruption of traffic flow must be actual and imminent. In this
case, because Green was turning from a one-way street to another one-way street, at a “T”
intersection, he was not actually interfering with the flow of traffic, because the traffic was
stopped and he was not blocking any passage. Furthermore, no actual or imminent safety
hazard was present because the traffic was stopped. For these reasons, we uphold the
municipal court’s ruling.
State v. Purple
Washington Court of Appeals, Division I
March 20, 2000
On September 14, 1998, Purple was driving her 14 year old son, Blue, to the emergency
room. Blue had severed his finger while operating a table saw. Purple wrapped Blue’s hand
and put the finger in a cup of ice. She got Blue into the car and had him keep his hand above
his head. She placed the cup of ice and finger in the cup holder of the car. As she was driving
down Madison, she had to swerve between lanes so she would not get stuck in traffic. When
she reached the intersection at Broadway, the light had turned yellow and the car in front of her
put on its brakes. She swerved into the other lane and drove through the light just as it was
turning red. As she swerved, the finger bounced out of the cup. A police officer saw her go
through the light and pulled her car over. Understanding the urgency of the situation, the police
officer quickly issued a citation to Purple and warned her to drive more calmly the rest of the
way to the hospital. He wished Blue luck with his finger and drove away. Blue screamed that
his finger had rolled under the brake pedal just as Purple was about to press on the brake and
start the car. She reached down and put the finger back in the cup of ice. She looked at Blue,
who was beginning to look blue. Purple, told Blue to put his head between his legs, with his
hand still elevated. She then drove to the hospital, where after several hours in surgery, Blue’s
finger was successfully reattached to his hand. The Seattle Municipal Magistrate found that
Purple violated SMC 46.333. Purple appealed. The King County Superior court found that
Purple was in violation. Purple appealed that decision. We disagree with the Municipal
Magistrate and King County Superior court and find that Purple was not in violation.
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SYNTHESIS: QUESTIONS TO CONSIDER WHEN READING THREE CASES TOGETHER
STUDENTS: After reading the above cases, think about the following questions.
We will discuss these points in class.
1. What is the rule from Brown?
2. What is the rule from Green?
3. Does the rule from Green add, take away, or over turn the rule from Brown?
What is the synthesized rule from Brown and Green?
4. What is the rule from Purple?
5. Does the rule from Purple add, take away, or overturn the rule from Brown
and Green? What is the synthesized rule?
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Professional Skills I
Handout #1 – California Court System
http://www.courtinfo.ca.gov/reference
California Supreme Court
(State court of last resort)
↑
California Courts of Appeal
First District: San Francisco, 20 justices
Second District: Los Angeles, 28 justices in LA and 4 justices in Ventura
Third District: Sacramento, 11 justices
Fourth District: 10 justices in San Diego, 7 justices in Riverside, and 8
justices in Santa Ana
Fifth District: 10 justices in Fresno
Sixth District: 7 justices in San Jose
↑
California Trial Courts
California Superior Court = primary trial court in 58 counties.
400 courts locations with roughly 1,500 judges; 435 commissioners and referees.
↑
(Can appeal to Superior Courts)
Municipal Courts and Justice Courts
Courts of limited jurisdiction
SAMPLE CASE: California’s Second Appellate District includes the counties of Los Angeles,
San Luis Obispo, Santa Barbara, and Ventura. The California Court of Appeal for the Second
Appellate District would hear appeals from the decisions of the California Superior Court in
those counties. A litigant disappointed by the decision of the Court of Appeal for the Second
Appellate District could then appeal to the California Supreme Court or petition it for
discretionary review.
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Professional Skills I
Handout #2 – United States Court System
For a map of the various Federal Circuits, see http://www.uscourts.gov/images/CircuitMap.pdf
United States Supreme Court
(Federal court of last resort)
↑
United States Courts of Appeal
First Circuit Court of Appeals
Second Circuit Court of Appeals
Third Circuit Court of Appeals
Fourth Circuit Court of Appeals
Fifth Circuit Court of Appeals
Sixth Circuit Court of Appeals
Seventh Circuit Court of Appeals
Eighth Circuit Court of Appeals
Ninth Circuit Court of Appeals
Tenth Circuit Court of Appeals
Eleventh Circuit Court of Appeals
D.C. Circuit Court of Appeals
Federal Circuit Court of Appeals
↑
United States District Courts
(Federal trial courts)
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IN-CLASS EXERCISE: Relationship of Statutes and Case Law and
Mandatory and Persuasive Authority1
1.
In 1980, in Case A, the supreme court of your state set out a common law rule. In 1986, in Case B, the
supreme court of your state changed that rule. In your state, which case would be binding on a trial court:
Case A or Case B?
Case A
Case B
2.
State Supreme Court
State Supreme Court
State Court of Appeals
1980
1986
1991
Same facts as in #2 except that in 1996 your state legislature enacted a statute that completely changed the
common law rule. What is now mandatory authority: the statute or the case(s)?
Case A
Case B
Case C
State Statute
4.
1980
1986
Same facts as in #1 except that in 1991, in Case C, your state court of appeals modified the test set out in
Case B, adding a requirement. In your state, what test would a trial court in the geographic jurisdiction of
the court of appeals that decided Case B use: the test set out in Case A, the test set out in Case B, or the test
set out in Case C?
Case A
Case B
Case C
3.
State Supreme Court
State Supreme Court
State Supreme Court
State Supreme Court
State Court of Appeals
1980
1986
1991
1996
Same facts as in #3 except that in 2000, in Case D, a case involving the application of the 1996 statute, the
court of appeals gives one of the words in the statute a broad interpretation. (The word was not defined in
the statute itself.) In applying the statute, which courts are bound by the court of appeals decision in Case
D:
(Bound/Not Bound)
(a) a trial court within the geographic jurisdiction of the court of appeals that decided Case D?
(b) a trial court outside the geographic jurisdiction of the court of appeals that decided Case D?
(c) the division of the court of appeals that decided Case D?
(d) a division of the court of appeals other than the division that decided Case D?
(e) the state supreme court?
1
Hypotheticals adapted from Laurel Oates, Anne Enquist, and Kelly Kunsch, The Legal Writing Handbook 28-30
(2d ed. 1998).
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5.
In 2001, in Case E, a different division of the court of appeals applies the 1996 statute. In reaching its
decision, the court declines to follow the decision in Case D. Instead of interpreting the word broadly, the
court interprets it narrowly. The losing party disagrees with this decision and files an appeal with the state
supreme court. In deciding this appeal, is the state supreme court bound by the decision in Case D? In
Case E?
Case D
Case E
6.
Lustbader / McAllister
State Court of Appeals
State Court of Appeals
2000
2001
Same facts as in #5 except that in 2002, the state legislature amends the statute, explicitly defining the word
that was the subject of debate in Cases D and E. The legislature elects to give the word a very narrow
meaning. In Case F, brought before a state trial court in 2003, what would be controlling:
The 1996 version of the statute?
The 2002 version of the statute?
Case D?
The court of appeals’ decision in Case E?
The supreme court’s decision in Case E? (Assume the supreme court defined the term broadly).
State Statute
Case D
State Court of Appeals
Case E
State Court of Appeals
Case E
State Supreme Court
Amended version of the statute
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Sleeping in the Park Exercise
STUDENTS: Read and consider the following precedent case:
City of Tacoma v. Andrews
321 Wash. App. 1998
Mark Andrews works for a bank. At 1:00 p.m. on May 4, l989 a Tacoma police
officer saw Andrews lying on the grass in Wright Park. Andrews had his eyes closed
and he was snoring. An empty lunch bag was next to him. Wright Park is a park owned
and operated by the City of Tacoma. The police officer observed Andrews for about five
minutes. The police officer then approached Andrews and woke him. He then arrested
Andrews and cited him for violating Tacoma City Ordinance 0.00.000, which states that
it is unlawful for any person to sleep in a park. Andrews was convicted and he now
appeals.
At trial, the state argued, and the trial court agreed that the ordinance should be
interpreted by its plain meaning. Since Andrews was sleeping, he clearly violated the
plain meaning of the ordinance. On the other hand, Andrews' attorney argued that the
ordinance should be interpreted to fulfill its purpose, and that a literal construction did
not fulfill such a purpose. After all, surely the city did not intend to prohibit babies from
sleeping in the park. We agree with the defense, and reverse the trial court.
In two recent cases, we had the opportunity to review the ordinance in question.
In City v. Matthews, the defendant was found sleeping under a picnic table in a city
park during the early morning hours. The trial court found the defendant guilty, and the
defendant appealed. In deciding the appeal, we applied the plain meaning rule and
found that the language of the ordinance is clear: it is unlawful for any person to sleep in
a city park. Because the evidence supported the trial court's findings that the defendant
was a person and that he was asleep in the park, we affirmed the trial court's decision.
In City v. Wilson, the defendant was an insomniac. He only slept a couple of
hours every night. The defendant was found lying on a park bench, his head on his
knapsack and a blanket over his body, during the early morning hours. Wilson was not
asleep. Although Wilson testified that he may have slept on the bench for a short time,
he was not asleep at the time he was arrested.
In deciding the appeal, we held that although Wilson was not asleep at the time
he was arrested, the evidence was consistent with a finding that at some time during the
evening defendant had been asleep on the bench. We also said that in enacting the
Ordinance "the City sought to ensure that the park would be used only for the purpose
for which it was intended: the park was designed as a place where people could picnic,
play, and relax and not a place for people to sleep." Id. Thus, because defendant was
using the park as a place to sleep, we found that defendant had violated the Ordinance.
In looking at the Ordinance and our previous decisions, it is our opinion that the
City did not intend for a person like Andrews to be found guilty. The Ordinance should
only be applied to people who use the park as a place to spend the night. Because
Andrews was having lunch and merely took a nap in the middle of the day, he was not
using the park as a place to spend the night. Therefore, Andrews is not guilty.
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Introduction to the Legal Memorandum
The purpose of an objective legal memorandum is to tell the reader (usually a
supervising attorney) the relevant legal issues, the significant facts, the rules and cases,
and what will be the likely outcome. The memo is objective and explores all angles,
making arguments both for and against your client.
Components of the Legal Memorandum
1.
2.
3.
4.
5.
6.
Heading
Statement of Facts
Issue Statement/Question Presented
Brief Answer
Discussion (see IREAC component chart below)
a.
Introduction
b.
Roadmap
c.
Rule(s)
d.
Case Descriptions (“RE”s)
e.
Analysis
(1) Plaintiff’s arguments
(2) Defendant’s arguments
f.
Mini-conclusion (as appropriate) for each part of the analysis
Conclusion
Parts of a Memo’s Discussion Section and Corresponding IREAC Analytical
Function
Parts of the Discussion Section in a
Legal Memorandum
Issue (“I”)
Issue (“I”)
Rule (“R”)
Rule Explanation (“RE”)
(Application of rule to facts in prior cases)
Application of rule (to facts in your case)
(“A”)
Application of rule (to facts in your case)
(“A”)
Conclusion (“C”)
Introduction
Roadmap
Statute and/or other General Rules
Descriptions of Analogous Cases
Plaintiff’s arguments
Defendant’s arguments
Conclusion
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STUDENTS: We will review the following material in greater detail in class
Monday, August 13, 2007. For now, please familiarize yourself with this handout.
STEPS TO WRITING THE DISCUSSION SECTION OF AN OFFICE MEMO
1.
Define the scope or issue.
2.
Determine whether there is an applicable statute.
a.
If there is an applicable statute, find it and find cases that interpret the
statute.
b.
If there is no applicable statute, research cases to find an applicable
common law rule or rules.
3.
Write working briefs of the relevant cases.
4.
Synthesize the rules from the cases.
5.
Complete case analysis sheets for the cases.
a.
Compare or distinguish the facts.
b.
Compare or distinguish the reasoning.
c.
Compare or distinguish the policy considerations.
6.
Determine which cases you will use and how you will use them.
7.
Write descriptions for each case, including only the facts relevant to the issue(s)
raised in your memo problem.
8.
Analyze and write the arguments each side will make. Be sure to draw
appropriate analogies to the cases. Be explicit.
9.
Write a mini-conclusion that makes a prediction as to what will be the likely
outcome regarding the issue raised by your memo problem.
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Professional Skills I
Handout
Sample Memo Demonstrating IREAC Format in Predictive Writing
Professor Marc McAllister (August 22, 2006)
ISSUE:
The issue in the instant case is whether an employee is acting “within the scope of his
employment” so as to make his employer liable for the employee’s negligent conduct under the doctrine
of respondeat superior when the employee is always on call and has official work hours from 8:00 a.m. to
5:00 p.m., but who, on the morning in question, dropped his children off at school, caused a collision upon
returning home, and had intended to read the paper and make a business call upon returning home and
before heading to work for the day.
RULE:
In New Jersey, an employer is liable for the torts of its employees only when an
employee is acting within the scope of his employment at the time of the employee’s negligent conduct.
See Gilborges v. Wallace, 396 A.2d 338 (N.J. 1978). According to the New Jersey Supreme Court, an
employee acts within the scope of his employment only if his conduct (a) is of the kind he is employed to
perform; (b) occurs substantially within the authorized time and space limits of his job; and (c) is actuated,
at least in part, by a purpose to serve the employer. See GEICO v. United States, 678 F.Supp. 454, 456
(D.N.J. 1988) (citing RESTATEMENT (SECOND) OF AGENCY § 228 (1958)).
RULE EXPLANATION:
In GEICO, while driving back to work from lunch, Dunne, an employee
of the United States, collided with a vehicle driven by the Kozels. Shortly thereafter, the Kozels filed suit
against Dunne seeking to recover damages for injuries allegedly sustained by Mr. Kozel. GEICO, the
insurer of Dunne’s automobile, filed a cross-claim against Dunne’s employer, arguing that the employer
was required to indemnify Dunne under the respondeat superior doctrine. Applying § 228 of the
Restatement, the court rejected GEICO’s claim. The court reasoned that (a) driving to lunch was not a
task that Dunne was employed to perform, as Dunne was not paid nor was he reimbursed for his lunch;
(b) the collision did not occur within the authorized time and space limits of Dunne’s job, as Dunne’s
employment duties did not include field work outside the office; and (c) Dunne’s conduct did not serve any
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business purpose, other than increasing his work efficiency. In reaching this result, the court also noted
that Dunne could have walked to nearby restaurants rather than driving.
APPLICATION (USING ANALOGICAL REASONING):
As in GEICO, a court would likely find
that Dennis, the employee in this case, was not acting within the scope of his employment at the time of
the accident. The first § 228 factor is probably not met because, in both the instant case and in GEICO,
the purpose of the trip was personal, and was not intended to effectuate a task that the employee was
hired to perform. The second factor is also probably not met because, as in GEICO, there is no indication
that Dennis’s collision occurred within the time and space limits of his job. While one could argue that
Dennis was on call at all times and that the collision thus occurred within the time and space limits of his
job, he had not in fact been called in to work at the time of the accident. Further, while one could argue
that Dennis intended to place a business call upon returning home and that therefore the collision did
occur within the limitations of his job, the same can be said of the employee in GEICO, who intended to
commence work upon returning from lunch; in GEICO, however, the court did not deem this fact
significant (and in fact did not even mention this fact in its analysis). The final § 228 factor is probably
also not met, as Dennis’s actions at the time of the accident were likely not intended to serve his
employer. Dennis was simply returning home after taking his children to school. Indeed, because Dennis
was actually returning home at the time of the accident rather than returning to work, as was the case of
the employee in GEICO, this factor cuts even more strongly in favor of the employer than it did in GEICO.
CONCLUSION:
In conclusion, a court employing § 228 of the Restatement would probably find
that Dennis was not acting within the scope of his employment at the time of the accident and that his
employer is therefore not liable for his negligence.
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SAMPLE OFFICE MEMORANDUM
TO:
FROM:
DATE:
RE:
Senior Partner
Associate
July 23, 2018
City of Tacoma v. Andrews
I.
Statement of Facts
At 1:00 p.m. on May 4, 2017, a Tacoma police officer observed our client, Mark
Andrews, lying on the grass in Wright Park, a park owned and operated by the City of
Tacoma. The defendant’s eyes were closed, and he was snoring. An empty lunch bag
was next to him.
After observing our client for about five minutes, the police officer approached
our client and woke him. He then arrested our client, citing him with violating Tacoma
City Ordinance 9.99.999.
Our client is a 40-year-old white male who is employed by a local bank.
II.
Question Presented
Under Tacoma City Ordinance 9.99.999, is a person guilty of sleeping in a park
when he is found lying in the grass in a city park at 1:00 p.m. with an empty lunch sack
next to him and with his eyes closed, snoring?
III.
Brief Answer
Probably not. Tacoma City Ordinance 9.99.999 makes it unlawful for a person to
sleep in a park. However, because our client is using the park as a place to picnic and
relax and not as place to spend the night, it is not likely that a court would find that he
violated the ordinance.
IV.
Discussion
Our client has been charged with violating Tacoma City Ordinance 9.99.999,
which makes it unlawful for any person to sleep in a park. The statute states that “a
person sleeping in a park in the City of Tacoma will be cited.”
To convict our client of violating this ordinance, the City will have to prove three
things: (1) that Wright Park is a park owned and operated by the City of Tacoma, (2)
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that our client was sleeping in Wright Park, and (3) that our client is a “person” as that
term is used in the ordinance.
The City should have no problem proving the first element, that Wright Park is
owned and operated by the City of Tacoma, because records show it is a Tacoma City
Park. However, the City may have problems proving the second element, that our client
was sleeping in the park and the third element that our client is the type of person that
this ordinance was directed toward.
When arguing the second element, for although in City v. Mathews, the court
indicated that the word “sleep” should be given its plain meaning, two years later, in City
v. Wilson, the court indicated that the ordinance should be interpreted in such a way as
to give effect to the City’s intent.
First, in City v. Mathews, the defendant was convicted of violating the ordinance.
Mathews was found sleeping in a sleeping bag, under a picnic table, in a city park
during the early morning hours. In deciding the appeal, the court applied the plain
meaning rule and found that the language of the ordinance is clear: it is unlawful for
any person to sleep in a city park. Because the evidence supported the trial court’s
findings that the defendant was a person and that he was asleep in the park, the Court
of Appeals affirmed the trial court’s decision.
Second, in City v. Wilson, the defendant was also convicted of violating the
ordinance even though he was not asleep at the time of his arrest. The defendant was
an insomniac who slept only a couple of hours every night. He was found lying on a
park bench, his head on his knapsack and a blanket over his body, during the early
morning hours. Wilson was not asleep. Although Wilson testified that he may have
slept on the bench for a short time, he was not asleep at the time he was arrested. The
Court of Appeals found that although Wilson was not asleep at the time he was
arrested, the evidence was consistent with a finding that at some time during the
evening Wilson had been asleep on the bench. Thus, Wilson had violated the
ordinance. The Court further stated that in enacting the ordinance, “the City sought to
ensure that the park would be used only for the purpose for which it was intended: the
park was designed as a place where people could picnic, play, and relax and not a
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place for people to sleep.” Id. Thus, because Wilson was using the park as a place to
sleep, the court found that defendant had violated the ordinance.
In our case, the City will argue that like the court in Mathews, this court should
give the words in the ordinance their plain meaning. The ordinance makes it unlawful
for a person to sleep in the park. The ordinance does not make it illegal to sleep in the
park only at night; it makes all sleeping in the park illegal. Andrews, like Mathews, was
sleeping in the park. Thus, the court find Andrews violated the ordinance.
We, on the other hand, will argue that like the court in Wilson, this court should
go beyond the plain meaning of the ordinance. In enacting the ordinance, the City had
intended that the park be used for the purpose for which it was designed, picnics and
relaxing, and not as a place to sleep. We would then argue that our client was using the
park exactly as the City had intended: Andrews was using the park as a place to picnic
and relax: he was not using the park as a place to spend the night.
We can also distinguish the facts in our case from the facts in Mathews and
Wilson. Unlike the defendants in Mathews and Wilson, our client was found in the park
not during the early morning hours but during the middle of the day. Further, unlike the
defendants in Mathews and Wilson, our client did not have a sleeping bag or blanket.
He was simply lying on the grass. Thus, unlike Mathews and Wilson, in our case, the
evidence does not indicate that our client was using the park as a place to spend the
night.
It seems unlikely that the court would be persuaded by the City’s plain meaning
argument. If it were, the court would have to find everyone, including small children
who fall asleep in their strollers, guilty of violating the ordinance. A plain meaning
argument simply goes too far. Instead, it seems more likely that the court will look at
the City’s intent in enacting the ordinance and find guilty only those people who use the
park as a place to get a night’s – or a day’s – sleep. Because there is nothing to
indicate that our client was doing anything but taking a short afternoon nap, if the court
does adopt this approach, the court would not find that our client was “sleeping” in the
park. It would find only that he was relaxing or napping.
At first blush, it would not appear that the City would have a problem proving the
third element, that our client is a person. Our client will not deny that he is a person.
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There may, however, be a question as to whether our client is the type of person that
the City had in mind when it enacted the ordinance. In all likelihood the City enacted
the ordinance as a means of keeping “drifters” out of the park; the City did not intend
that the ordinance would apply to local business people.
It is not clear whether this argument works for or against our client. If the court
finds that the ordinance was intended to apply to only one class of people, i.e., “drifters,”
then it could declare the ordinance unconstitutional, and our client would be acquitted.
However, the court could elect to interpret the ordinance in such a way as to ensure that
the ordinance is constitutional. If it takes this approach, the court would apply the plain
meaning rule and say that the ordinance applies to all persons, no matter what their
age, sex, race, or economic status. Moreover, if the court applies the plain meaning
rule to the term “person,” to be consistent, it may also give the word “sleep” its plain
meaning and hold that because our client was asleep he has violated the ordinance.
V.
Conclusion
The court will probably find our client “not guilty.” Although the City will be able to
prove that Wright Park is a city park, it will not be able to prove that our client was
“sleeping” in the park. Our client was not using the park as a place to spend the night.
He was using the park only for its intended purpose: as a place to picnic and relax.
Finally, although we might be able to persuade a court that our client is not the type of
person that the City intended to prohibit from sleeping in the park, such an argument
could backfire on us. I do not, therefore, advise that we argue this element. It seems
safer to concede elements one and three and focus our arguments on element two.
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Class Session #2
Wednesday, August 8, 2007
6:00 – 9:45 p.m.
STUDENTS: Please read the following interview notes. The facts contained
herein will form the basis for your final memo assignment in this course.
Mary Music – Interview Notes
On June 20, 2007, Mary Music and Ernie Ernest went to a party at 86 Void
Street. The party continued late into the night. At one point during the evening, a friend
of Ernie’s, Sam, came to the party. Ernie introduced Sam to Mary. Ernie explained that
Sam had just returned to town after completing a sentence in the county jail for burglary.
Mary and Sam danced a few dances. Mary commented to Ernie and Sam that
she really needed a new stereo. In fact, Mary explained that she had been looking for a
stereo just like the one at the party. This stereo sounded great, and it had pink knobs.
Pink is Mary’s favorite color. Mary had read in the newspaper that stereos with pink
knobs were becoming collectors’ items since the manufacturer discontinued making
them. According to the article that Mary read, the price of the stereo was rising and an
$800.00 purchase price would be a “steal.” Mary turned to Ernie and said, “I wonder if I
could steal this stereo?” To which Ernie replied, “Do you mean that?” Mary laughed
and said, “Yes, I’d steal it for $800.00.” Mary danced a few more dances, and then she
went home.
Several days after the party, Sam showed up at Mary’s home. Sam asked Mary
if she still was looking for a stereo with pink knobs. Mary said that she still wanted one.
Sam then told Mary that he had a stereo with pink knobs, and he would sell it to her for
$750.00. Mary asked Sam where he found the stereo. Sam just winked and said that
he had “connections.” Mary bought the stereo with pink knobs from Sam.
Mary immediately hooked up the stereo and tuned in to her favorite rock music
station. She was playing the music so loudly that she did not hear the police car drive
up. Apparently, the neighbors called to complain about the noise. The police officer
rang the doorbell, and when Mary answered, she invited the officer into her house. He
noticed the stereo and remembered a police report that a stereo with pink knobs had
been stolen from a house located on 86 Void Street. In fact, Sam’s fingerprints were
found on the windowsill of the house, and there is a warrant out for his arrest. The
police officer asked Mary where she got the stereo. Mary said that she got the stereo
from a friend and that she paid a fair price for it. The officer confiscated the stereo and
arrested Mary for possessing stolen property.
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STUDENTS: Please review the following handout:
Reading Statutes
STEPS TO READING A STATUTE (ENACTED RULE OF LAW)

Read the text carefully to know what it says. For example, what is the exact
conduct it prohibits, requires, or permits? How do the parts of the statute relate
to each other? What question is raised by the statutory language based on your
facts?

Look at the section of the statute within the context of the statute as a whole.
Read the title of the statute or chapter and read the titles of the surrounding
sections.

Look for a definitions section and determine whether any of the terms in the
section(s) that apply to your case are defined there.

IDENTIFYING ELEMENTS: Once you have determined which section(s) raise
questions based on your facts, read those sections more closely. Look for how
different parts of the statute relate to the other parts.
o Separate out the consequences of the rule. The consequence of the rule that is, what happens if the rule applies – is not an element.
o Look at the remainder of the rule and determine which portions (1) may be
conveniently discussed separately from the rest of the rule AND (2)
appear to be preconditions for the application of the entire rule. These are
elements of the statute. If one of the elements of the rule does not apply
to your facts, the entire rule does not apply.
o Look for the words “or” and the words “and.” The disjunctive word “or”
indicates the alternative – that is, only one of those parts needs to be
proven. The conjunctive word “and” indicates that both parts of the statute
must be proven.

CREATING A CHART: To determine whether the statute applies to your facts,
place the elements in a column. To the right, list the facts of your hypothetical
that relate to each element. If there is some ambiguity in your mind as to
whether the facts satisfy, or meet, the element, then at least consider that
element as one that may be in contention and may require further research and
analysis.
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STUDENTS: We will review the following two statutes in class.
EXAMPLE 1
Section 25-403: A pharmacist selling prescription drugs to a minor will be fined $5,000.

First, separate out the consequence if the statute applies:

Then, determine the elements:
-
-
-
-
If the statute above were applied to the following fact pattern, what would be the
possible elements in contention?
Facts: Sue Jones, a licensed pharmacist, gives away for free some Tylenol 3 to Fred
Boggs, a 19-year old male.
Element
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EXAMPLE 2
RCW 9A.52.03 Burglary in the second degree
(a)
A person is guilty of burglary in the second degree if, with intent to commit a
crime against a person or property therein, he enters or remains unlawfully in a building
other than a vehicle.

First, separate out the consequence if the statute applies:

Then, determine the elements:
-
-
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STUDENTS: Below is the relevant statute you will be working with in the Mary
Music problem. The following statute is the annotated version of the statute as it
would appear online in Westlaw.
West's RCWA 9A.56.140
West's Revised Code of Washington Annotated Currentness
Title 9A. Washington Criminal Code (Refs & Annos)
Chapter 9A.56. THEFT and Robbery (Refs & Annos)
9A.56.140. Possessing stolen property--Definition--Presumption
(1) "Possessing stolen property" means knowingly to receive, retain, possess, conceal, or dispose of stolen
property knowing that it has been stolen and to withhold or appropriate the same to the use of any person other
than the true owner or person entitled thereto.
(2) The fact that the person who stole the property has not been convicted, apprehended, or identified is not a
defense to a charge of possessing stolen property.
(3) When a person has in his or her possession, or under his or her control, stolen access devices issued in the
names of two or more persons, or ten or more stolen merchandise pallets, or ten or more stolen beverage
crates, or a combination of ten or more stolen merchandise pallets and beverage crates, as defined under
RCW 9A.56.010, he or she is presumed to know that they are stolen.
(4) The presumption in subsection (3) of this section is rebuttable by evidence raising a reasonable inference
that the possession of such stolen access devices, merchandise pallets, or beverage crates was without
knowledge that they were stolen.
(5) In any prosecution for possessing stolen property, it is a sufficient defense that the property was
merchandise pallets that were received by a pallet recycler or repairer in the ordinary course of its business.
************************
4. ---- Knowledge, nature and elements of offense
It is not essential in prosecution for possession of stolen goods to show actual knowledge of defendant that
goods were stolen when it is shown that he had knowledge of facts sufficient to put him on notice that they
were stolen. State v. Rockett (1972) 6 Wash.App. 399, 493 P.2d 321.
Knowledge that property possessed was wrongfully appropriated is essential element of crime of receiving
stolen property. State v. Hatch (1971) 4 Wash.App. 691, 483 P.2d 864. Receiving Stolen Goods
3
Element of guilty knowledge may be established by evidence that defendant himself participated in burglary,
in prosecution for receiving, concealing or withholding property known to have been wrongfully appropriated.
State v. Flint (1971) 4 Wash.App. 545, 483 P.2d 170.
To support conviction of crime of receiving stolen goods, state must show that defendant knew the goods
were stolen. State v. Mott (1968) 74 Wash.2d 804, 447 P.2d 85. Receiving Stolen Goods
8(1)
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Analyzing the Statute
Legally significant facts are those which the decision maker, whether it jury or judge, must weigh in
making a finding. To determine which facts are legally significant, it is helpful to create a fact tree for
each step of the analysis.
Legally Significant Facts: Elements of Possessing Stolen Property
Elements
Prosecutor
Knowingly to receive,
retain, possess, conceal,
or dispose of;
Stolen property;
Knowing that it has been
stolen; and
To withhold or
appropriate the same to
the use of any person
other than the true owner
or person entitled thereto.
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READING AND BRIEFING CASES
STUDENTS: We will conduct the following activities in class. You need not review the
following material prior to class.
IN-CLASS EXERCISE #1: BRIEFING A CASE2
STATE STATUTE 10.10.010: It is unlawful for any person to sleep in the picnic areas of a state-owned
park.
State v. Wilson, State Court of Appeals (2000)
The defendant, Jason Wilson, has appealed from a finding that he violated State Statute
10.10.010.
The case arises from an incident that occurred on June 6, 1999. Early in the morning on that
day, a police officer observed the defendant lying on a park bench in the picnic area of a park owned and
operated by the State. The defendant had his head on his knapsack and a blanket over his body.
Although the officer initially thought that the defendant was asleep, when he approached the
defendant he saw that the defendant’s eyes were open. Even so, he arrested the defendant, citing him
with violating State Statute 10.10.010. The defendant plead not guilty, and the case went to trial.
At trial, the defendant testified that he suffered from insomnia and that he usually slept only one
or two hours a night. The defendant also testified that he may have fallen asleep for a short time on the
night he was arrested.
The defendant is correct when he says that the evidence does not support a finding that he was
asleep at the time he was arrested. The evidence is, however, consistent with a finding that at some time
that night the defendant had been asleep on the bench.
Although we find that such evidence is by itself sufficient to uphold the trial court’s decision, we
believe that the defendant’s conviction can also be upheld on other grounds. In enacting the statute, the
State sought to ensure that its parks would be used only for the purpose for which they were intended:
The picnic areas of parks are designed as a place were people can picnic, play, and relax and not as a
place for people to sleep. Thus, even if the defendant did not actually sleep in the park, he was using the
park as a place to sleep, and this is unlawful under the statute. We do, therefore, affirm the holding of the
trial court.
AFFIRMED.
Adapted from Laurel Currie Oates and Anne Enquist, The Legal Writing Handbook Teacher’s Manual, Third
Edition, at 54 (2002).
2
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IN-CLASS EXERCISE #2
In your small groups, discuss the following questions for the case that follows, State v.
Rocket. Be prepared to discuss your answers.

What level court made the decision?

What headnotes are relevant to our case?

What were the issues addressed by the court?

Which issue(s) is(are) relevant to our case?

What were some of the key background facts?

How would you state the rule(s) we can use from this case?

What were the legally significant facts?

Was there a dissent?
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FOR EDUCATIONAL USE ONLY
6 Wash.App. 399, 493 P.2d 321
Court of Appeals of Washington, Division 1,
Panel One.
STATE of Washington, Respondent,
v.
Ralph Ray ROCKETT, Appellant.
No. 925-I.
Jan. 31, 1972.
Defendant was convicted in the Superior Court, King County, Richard F. Broz, J., of
grand larceny by possession of stolen automobile seats, and he appealed. The Court of
Appeals, Horowitz, C.J., held that evidence that small foreign automobile bucket seats
were stolen April 16, 17, 19 and 22, 1970, that defendant made sale of bucket seats to
retail dealer which resold seats to another dealer which installed them in victim's
automobile, that defendant's explanations to police concerning seats were inconsistent,
and that defendant's alleged dune buggy business, which inferentially generated a
surfeit of stock automobile seats, could not be located upon police investigation was
sufficient from which jury could find that defendant knew that seats were stolen or had
sufficient facts to put him on notice that they were stolen.
Affirmed.
West Headnotes
[1] KeyCite Notes
324 Receiving Stolen Goods
324k3 k. Knowledge of Theft and Intent. Most Cited Cases
Actual knowledge on defendant's part that objects, for possession of which he was
convicted of grand larceny by possession, had been stolen was unnecessary; it was
sufficient if he had knowledge of facts sufficient to put him on notice that they were
stolen. RCWA 9.54.090.
[2] KeyCite Notes
324 Receiving Stolen Goods
324k8 Evidence
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324k8(3) k. Weight and Sufficiency in General. Most Cited Cases
Possession of recently stolen property is evidence of larceny when possession of such
property is coupled with other indicatory evidence. RCWA 9.54.090.
[3] KeyCite Notes
324 Receiving Stolen Goods
324k9 Trial and Review
324k9(1) k. Questions for Jury. Most Cited Cases
Evidence that small foreign automobile bucket seats were stolen April 16, 17, 19 and
22, 1970, that defendant made sale of bucket seats on about April 20 to retail dealer
which resold seats to another dealer which installed them in victim's automobile, that
defendant's explanations to police concerning seats were inconsistent, and that
defendant's alleged dune buggy business, which inferentially generated a surfeit of
stock automobile seats, could not be located upon police investigation was sufficient
from which jury could find that defendant knew that seats were stolen or had sufficient
facts to put him on notice that they were stolen. RCWA 9.54.090.
[4] KeyCite Notes
324 Receiving Stolen Goods
324k8 Evidence
324k8(3) k. Weight and Sufficiency in General. Most Cited Cases
Evidence that replacement cost of one larceny victim's automobile seats was about
$300, that late model seats for small foreign vehicle such as owned by victims and sold
for about $325 at retail, and that seats allegedly sold by defendant in connection with
his alleged dune buggy business to automobile retailer cost retailer $190 per set was
sufficient from which jury could find that seats stolen had value in excess of $75
required for conviction under grand larceny by possession statute. RCWA 9.54.090.
[5] KeyCite Notes
110 Criminal Law
110XXIV Review
110XXIV(Q) Harmless and Reversible Error
110k1169 Admission of Evidence
110k1169.5 Curing Error by Withdrawal, Striking Out, or Instructions to Jury
110k1169.5(4) k. Immaterial or Incompetent Evidence in General. Most Cited
Cases
(Formerly 110k1169(5), 110k169(5))
Where court struck statement of police detective that defendant, while being questioned
about stolen automobile seats, “immediately advised us that he did not wish to say
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anything further on this matter,” and defendant, had he been dissatisfied with instruction
to disregard, could have but did not request a more adequate protective instruction
informing jury that answer was not to be considered as admission of any kind, error, if
any, could have been cured by protective instruction and presumptively was cured by
instruction to strike answer.
[6] KeyCite Notes
110 Criminal Law
110XX Trial
110XX(H) Instructions: Requests
110k829 Instructions Already Given
110k829(1) k. In General. Most Cited Cases
110 Criminal Law KeyCite Notes
110XXIV Review
110XXIV(G) Record and Proceedings Not in Record
110XXIV(G)15 Questions Presented for Review
110k1113 Questions Presented for Review
110k1122 Instructions, and Failure or Refusal to Give Instructions
110k1122(5) k. Necessity of Setting Forth Instructions Given or Refused. Most
Cited Cases
Where proposed instruction was not contained in statement of facts as required by rule
but in addition, substance of proposed instruction was contained in instructions actually
given, failing to give proposed instruction instead of instruction actually given was not
error, even though language used in two instructions differed somewhat.
*400 **322 James A. Alfieri, Seattle, for appellant.
Christopher T. Bayley, King County Pros. Atty., James E. Warme, Deputy Atty. Gen.,
Seattle, for respondent.
HOROWITZ, Chief Judge.
Defendant was convicted of four counts of grand larceny by possession of stolen
Volkswagen bucket seats and other personal property taken from each of four
Volkswagen cars. He appeals.
The jury could have found the facts to be these. On April 16, 17, 19 and 22, 1970, in
King County, Washington, four sets of bucket seats were stolen from four Volkswagen
cars, model years 1968 to 1970, each respectively owned by others, namely, Messrs.
Gremmels, Handel and Wilson, and by Elaine Roxi Ewing.
About April 20, 1970, defendant telephoned a Mr. John D. Fisher, parts manager for
Freeway Volkswagen in Seattle, Washington. He stated in substance that he was
building dune buggies in California and was coming up from California to start a dune
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buggy manufacturing plant and could supply Freeway with Volkswagen seats. Mr.
Fisher bought three sets of such seats from the defendant. About the same time, the
defendant also dealt with a Mr. Mike McDonald, parts manager for Metro Volkswagen.
He sold Metro six sets of Volkswagen seats.
*401 On April 24, 1970, defendant Rockett was arrested for grand larceny of
Volkswagen bucket seats and rear bench seats. That evening co-defendant Larson, not
involved on this appeal, assisted by one William G. Bassett, used a U-Haul van to
remove approximately 22 bucket seats from the defendant Rockett's house. Upon
removal, the van was then taken to a house in which Bassett was living with his fiancee.
There the seats were unloaded and placed in the basement of the house. Because of
the fiancee's objection to the seats remaining in the house, a day and half later codefendant Larson, with Bassett's help, loaded them in a van, covered or caused the
bucket seats to be covered with a bedspread, and drove the van with the seats to a
multiple garage. There the seats were unloaded and covered with the same bedspread.
At the end of May 1970, by use of a search warrant, 21 Volkswagen seats were found in
that garage still covered with the bedspread. The seats and the bedspread were
removed to the property room of the Seattle Police Department. There the victims David
C. Wilson, David Handel and Elaine Roxi Ewing respectively identified the bucket seats
that had been stolen from their Volkswagen cars. Meanwhile, Mr. Gremmels' stolen
bucket seats had been reacquired and installed about April 23, 1970 by Metro
Volkswagen in his Volkswagen car at a cost of approximately $300.
Defendant, after arrest and following receipt of warning of his constitutional rights, gave
two explanations of how he came into possession of the bucket seats he sold to
Freeway Volkswagen. His first explanation was that the Volkswagen seats had been
shipped up by a Mr. Kinser of Compton, California. Then, in an effort to explain why he
had no bills of lading, he stated that the seats were some he had brought up with him
when he originally came from California. When questioned on April 27, 1970 in the city
jail concerning the 1967 and 1969 bucket seats sold to Volkswagen agencies around
the Seattle area, he stated that he had the Volkswagen seats shipped up from
California; that they had come through German Imports, an Oregon establishment;*402
and that from there they had been shipped to Fitz Auto Wrecking in Seattle.
Defendant contends that the court erred in refusing to grant defendant's challenge to the
sufficiency of the evidence at the end of the state's case. Defendant rested at the end of
the state's case. In that connection he contends, first, that the state failed to prove that
the defendant Rockett had any knowledge that the Volkswagen seats in question were
stolen at the time he was alleged to have them in his posession. He further contends
that the state failed to prove that the value of the seats involved exceeded $75 as
required by RCW 9.54.090.
**323 [1] [2] [3] On the question of whether the defendant had knowledge that the
bucket seats involved in the instant case were stolen, actual knowledge is unnecessary.
It is sufficient if he had knowledge of facts sufficient to put him on notice that they were
stolen. State v. Rye, 2 Wash.App. 920, 471 P.2d 96 (1970). See 50 Am.Jur.2d, Larceny
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s 163 (1970, Supp.1971). In the instant case there was sufficient evidence from which
the jury could find that he knew that the bucket seats were stolen or had knowledge of
facts sufficient to put him on notice that they were stolen. The possession of recently
stolen property is evidence of larceny when the possession of such property is coupled
with other indicatory evidence. State v. Haverty, 3 Wash.App. 495, 475 P.2d 887
(1970). If the possession is not satisfactorily explained, ‘the jury may be justified in
returning a verdict of guilty.’ 50 Am.Jur.2d, Larceny s 163 (1970, Supp.1971). A short
period between the theft and the possession strengthens the inference that the
possession is unlawful. See State v. Dancyger, 29 N.J. 76, 148 A.2d 155, cert. denied,
360 U.S. 903, 79 S.Ct. 1286, 3 L.Ed.2d 1255 (1959); 50 Am.Jur.2d Larceny s 162 (1970
Supp.1971).
In the instant case the bucket seats were stolen April 16, 17, 19 and 22, 1970.
Defendant made a sale of bucket seats to Freeway Volkswagen about April 20, 1970,
and Freeway Volkswagen resold the seats to Metro Volkswagen so that the latter could
install them in Mr. Gremmels'*403 Volkswagen from which they had been stolen.
Included in the 22 seats taken from defendant Rockett's house on the evening of April
24, 1970 were three sets of stolen seats, one belonging to David C. Wilson, one
belonging to David Handel, and one belonging to Elaine Roxi Ewing. Defendant's
explanations made to the police officers, both at the time of the arrest and three days
thereafter, were not the same. None of the explanations accounted for the presence of
the three sets of bucket seats stolen from the Wilson, Handel and Ewing Volkswagen
cars. Furthermore, the officer assigned to investigate the existence of defendant's
claimed dune buggy business in Pasadena, California, was unable to locate any such
business. As stated in State v. Green, 2 Wash.App. 57, 466 P.2d 193 (1970):
The rule as stated in State v. Douglas, supra (71 Wash.2d 303, 428 P.2d 535 (1967)),
and State v. Portee, supra (25 Wash.2d 246, 170 P.2d 326 (1946)), is that possession
of recently stolen property in connection with ‘slight corroborative evidence of other
inculpatory circumstances tending to show guilt,’ is sufficient to convict. The other
corroborative evidence can consist of a failure to explain, a false or improbable
explanation, or an explanation that cannot be checked or rebutted.
2 Wash.App. at 68, 466 P.2d at 200. In our opinion, there was sufficient evidence from
which the jury could find that the defendant knew that the bucket seats in the instant
case were stolen, or that the defendant had knowledge of facts sufficient to put him on
notice that the bucket seats were stolen.
[4] The second ground advanced in support of the claim that the evidence was
insufficient is that the evidence is insufficient to show that the bucket seats in each of
the counts had a value in excess of $75. We do not agree. In addition to the testimony
of each of the four victims from whom the bucket seats were stolen, photographs of the
bucket seats in each of the cars were received in evidence. The photographs show that
except for color the general style of the bucket seats is similar in each of the model
years of the Volkswagens involved. The replacement cost of William Gremmels' seats
was about $300, his seats being those actually*404 stolen, repurchased and re-
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installed. Furthermore, the parts manager of Metro Volkswagen testified that late model
Volkswagen seats sold for about $325. Elaine Roxi Ewing paid $150 for older seats
which were not as good as the seats stolen from her car. David Handel's bucket seats
for his 1968 Volkswagen were similar to Gremmels' seats replaced at a cost of $300.
David Wilson paid $57.50 for old seats taken from a wreck which were **324 not the
original high-back seats and were not in good condition. His Volkswagen was a 1968
model and it is a reasonable inference that the replacement costs of his seats would
have been substantially the same as the replacement cost of Handel's seats.
Furthermore, the evidence showed a billing from Rockettes Dune Buggies, operated by
defendant, to Freeway Volkswagen under date of April 19 and April 20, 1970. The billing
showed a price of $190 charged for each set of seats. This price was confirmed in a
formal biling of ‘Rockettes Dune Buggies' at its Seattle address on May 1, 1970. In our
opinion, there was substantial evidence from which the jury could find that the seats
stolen had a value in excess of $75. See State v. Toliver, 5 Wash.App. 321, 487 P.2d
264 (1971); State v. Melrose, 2 Wash.App. 824, 470 P.2d 552 (1970); Maisel v. People,
166 Colo. 161, 442 P.2d 399 (1968).
[5] Defendant next contends that the court erred in refusing to grant defendant a
mistrial. The error assigned is based upon the following occurrence when Detective
Patrick Dempsey was questioned by the state on direct examination:
Q Did you have any other conversations about the delivery of the seats or did he say
anything else about it?
MR. ALFIERI: I'm going to object to the form of the question.
THE COURT: The form of the question, yes. It is a multiple question.
Q What happened next, Detective?
A He immediately advised us that he did not wish to say anything further on this matter.
MR. ALFIERI: I'm going to object to that and move it *405 be stricken, Your Honor. It is
not proper to say the defendant refused to make any further statements. Clearly that is
improper. In fact, I'll move for a mistrial at this point.
The court granted defendant Rockett's motion to strike the admission, but refused to
grant a mistrial. Defendant contends that the defendant had a right to refuse to speak
and that it was improper to permit his silence to be used against him. No doubt had the
testimony been used for the purpose of establishing defendant's guilt-the issue of the
statement's voluntariness not having been raised at trial-it would have been improper to
introduce testimony that he did not wish to say anything further. State v. Tembruell, 50
Wash.2d 456, 312 P.2d 809 (1957); State v. Redwine, 23 Wash.2d 467, 161 P.2d 205
(1945). In the instant case, however, we find no prejudicial error. In the first place, the
court struck the admission and we must assume that the jury disregarded the answer in
accordance with the court's instructions. See State v. Priest, 132 Wash. 580, 232 P. 353
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(1925). Furthermore, if the defendant was dissatisfied with the adequacy of the
instruction to the jury to disregard the answer, he might have requested a more
adequate protective instruction by which the jury would be informed that the answer was
not to be considered as an admission of any kind. The error here, if any, could have
been cured by a protective instruction and presumptively was cured by the instruction to
strike the answer. See State v. Green, 70 Wash.2d 955, 425 P.2d 913 (1967); State v.
Flanagan, 223 Tenn. 134, 443 S.W.2d 25 (1969). Furthermore, it may well be doubted
whether an answer, which appears to have been given in good faith to an unobjected-to
question which could reasonably call for the kind of an answer given, may be said to be
improper. The answer was not only not used as an admission of guilt, but it was
stricken, presumptively removing any prejudice therefrom.
[6] Defendant finally contends that the trial court erred in giving instruction No. 14 and
failing to give defendant's*406 proposed instruction. Instruction No. 14 given reads:
Mere proof of possession of stolen property cannot of itself establish a prima facie case
of larceny.
Possession is only a circumstance which may be considered with all other facts in
determining guilt or innocence.
**325 The requested instruction added:
The State must show that the accused must have known that the property had been
appropriated in such a manner as to constitute larceny and that the property must have
been received by the accused with the felonious intent to deprive or defraud the owner
thereof.
In the first place, we cannot consider the error assigned because the proposed
instruction in question is not contained in the statement of facts as required by CAROA
34(8). See State v. Moxley, 6 Wash.App. 153, 491 P.2d 1326 (1971); Porter v. Chicago,
Milwaukee, St. Paul & Pac. R.R. Co., 41 Wash.2d 836, 252 P.2d 306 (1953).
Furthermore, the substance of the last paragraph of the proposed instruction is
contained in the ‘to convict’ instructions No. 3, 4, 5 and 6, as well as in instruction No. 7,
and no error has been assigned to the giving of these instructions. The jury having been
adequately instructed on the point, it is not error to refuse a requested instruction in
language proposed by the defendant on the same point, even though in words
somewhat different from the instructions given. State v. Caril, 4 Wash.App. 683, 483
P.2d 870 (1971).
The judgment is affirmed.
WILLIAMS, J., concurs.
END OF DOCUMENT
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Legal Writing Revision Strategies
Revising at the Paragraph Level
1. Readers expect to find an issue/topic and a point (i.e., specific support or
elaboration on the topic) in each paragraph. Sometimes the issue and the point
appear together in the same sentence.
-
Take each paragraph in your paper and identify the issue and the point.
-
Ask yourself whether the issue and point are related. If they are separate, unrelated
concepts, you probably need to make two paragraphs.
-
Ask yourself whether you have related issues or points in more than one paragraph.
If so, consider whether the points need to be combined into one longer paragraph or
whether a series of paragraphs is the most effective means of presenting the points.
2.
Readers expect information to be presented in a logical order.
-
Ask yourself whether the paragraphs appear in a logical sequence, i.e., does one
idea or point flow logically into the next. You may need to re-order your paragraphs.
-
What are some familiar ways to organize information?
-
Create a reader expectation, then fulfill it. In other words, present a “roadmap” and
use “signposts” along the way to tell the reader where you are in the discussion. For
example, list factors, elements, or issues.
3.
-
Readers expect that the issue/topic of each paragraph will be expressed at
the beginning of the paragraph, in one or more sentences.
For each paragraph in your paper, make sure that your issue appears at the
beginning of the paragraph.
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REVISING AT THE SENTENCE LEVEL
1. Readers expect that the agent of the action will appear in the subject position
and that the action of the sentence will appear in the verb position.
a. Identify the agent of the action and place it in the subject position.
b. Identify the action of the sentence and place it in the verb position.
c. If the original sentence contains more than one potential agent and action, you
may need to create more than one sentence or put the agent and action that you
want to emphasize in the main clause.
Example: The policy for criminal law is that individuals who exercise free will in
committing a crime should be punished in order to prevent future harm from affecting
society as a whole in exercising their individual liberty, personal autonomy, and the right
to be left alone.
Sentence 1
agent:
action:
policy of criminal law
to prevent
Sentence 2
agent:
action:
individuals
are punished
Sentence 3
agent:
action:
individuals
have rights
agent:
action
society
must be protected
Revised example: The policy of criminal law is to prevent future harm to society.
Individuals who exercise free will and choose to commit a crime are punished.
Individuals have rights to liberty and personal autonomy, but society must be protected
from crime.
2. Readers expect that the verb will arrive almost immediately after the subject
and that the complement (or object) will arrive almost immediately after the
verb. Keeping the subject and verb as close together as possible will help the
reader use his or her reader energy efficiently.
Identify the subject, verb, and complement of the sentence or main clause, then
place them together.
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Example: The policy of criminal law is to prevent future harm to society. Individuals
who exercise free will and choose to commit a crime are punished. Individuals have
rights to liberty and personal autonomy, but society must be protected from crime.
3. Readers expect that parallels in substance will be reinforced by parallels in
structure. Parallelism will help the writer meet this expectation.
Use the same subject and verb combination, and use the same buzzwords where
appropriate.
Example: The policy of criminal law is to protect society from future harm. Individuals
are punished when they exercise free will and choose to commit a crime. Individuals
have rights to liberty and personal autonomy, but society also has rights to be
protected from crime and chaos.
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Class Session #3
Thursday, August 9, 2007
7:00 p.m. – 9:45 p.m.
THREE USES OF CASES IN LEGAL WRITING: In legal analysis, you may use cases
for one of the following purposes:
(1) To provide a rule or test that can be applied to your facts.
(2) To help identify how a rule should apply to your facts, by comparing or
distinguishing facts in the analogous case.
(3) To provide policy or reasoning that can be applied to your facts.
You may use one case for all three purposes, or for only one of the above purposes.
The important thing is to have a purpose for including a case in your memo.
STEPS IN DETERMINING PROPER USE OF CASES
 The first step in using cases is to write out a working brief.

Next, you need to extract the rules from the cases and synthesize them into
one rule.

Then, you need to determine whether the case can be used to help apply the
rule(s) to your facts – i.e., in conducting the analysis in your case. To make this
determination, it is useful to fill out a case analysis sheet.

If you do choose to include a full explanation of a case in your memo, then you
should convert your working brief into a mini-brief, or a “Rule Explanation”
paragraph (I-R-RE-A-C).
IN CLASS, WE WILL REVIEW EACH OF THESE STEPS IN DETAIL.
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STUDENTS: We will conduct the following activity in class.
Working Brief Exercise: Identifying Rules from Cases
Case Name: ____________________________
1.
What are the key background/procedural facts leading up to the opinion?
2.
What issues did the appellant/defendant raise? Which issue(s) are relevant to our case?
Now, focusing on the relevant issue in our case, answer the following questions:
3.
What rules did the court apply?
4.
What facts did the court consider?
a.
5.
What are the legally significant facts (specifically, what facts supported the court’s
reasoning on the relevant issue)?
What was the reasoning of the court?
a.
How did the court apply the rule to the facts?
b.
Did the court discuss policy?
6.
What was the holding?
7.
Did the court make up a new rule or elaborate on an old rule?
8.
Which rules from this case will be useful to help answer whether Mary Music knew she
possessed stolen property (what from this case will be in your rules section)?
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FOR EDUCATIONAL USE ONLY
4 Wash.App. 545, 483 P.2d 170
Court of Appeals of Washington, Division 1,
Panel Two.
The STATE of Washington, Respondent,
v.
Gerald FLINT, Appellant.
No. 683-I.
March 22, 1971.
Defendant was convicted for grand larceny by possession of two stolen rifles. The Superior
Court, Snohomish County, Thomas G. McCrea, J., rendered judgment, and defendant
appealed. The Court of Appeals, James, J., held that admission of evidence which
established that rifles found in defendant's possession were loot of recently perpetrated
burglary did not force defendant to defend against a crime with which he was not charged
and therefore did not prepare to defend.
Affirmed.
West Headnotes
[1] KeyCite Notes
110 Criminal Law
110XVII Evidence
110XVII(F) Other Offenses
110k369 Other Offenses as Evidence of Offense Charged in General
110k369.2 Evidence Relevant to Offense, Also Relating to Other Offenses in General
110k369.2(3) Particular Offenses, Prosecutions for
110k369.2(6) k. Burglary, Robbery, Larceny, and Embezzlement; Stolen Property.
Most Cited Cases
(Formerly 110k369(2))
In prosecution for grand larceny by possession of two stolen rifles, admission of evidence
which established that rifles found in defendant's possession were loot of recently
perpetrated burglary did not force defendant to defend against a crime with which he was
not charged and therefore not prepared to defend. RCWA 9.54.010(5).
[2] KeyCite Notes
110 Criminal Law
110XVII Evidence
110XVII(F) Other Offenses
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110k369 Other Offenses as Evidence of Offense Charged in General
110k369.2 Evidence Relevant to Offense, Also Relating to Other Offenses in General
110k369.2(1) k. In General. Most Cited Cases
(Formerly 110k369(2))
110 Criminal Law KeyCite Notes
110XXIV Review
110XXIV(Q) Harmless and Reversible Error
110k1169 Admission of Evidence
110k1169.11 k. Evidence of Other Offenses and Misconduct. Most Cited Cases
(Formerly 110k1169(11))
Evidence relevant and material in proving an element of a crime charged may also connect
a defendant with other crime; the admission of evidence of an accused's participation in an
unrelated crime is, however, prejudicial error, but such evidence is properly admissible if it
tends to prove some essential element of crime charged.
[3] KeyCite Notes
324 Receiving Stolen Goods
324k3 k. Knowledge of Theft and Intent. Most Cited Cases
Defendant's knowledge that rifles were stolen was an essential element of crime of grand
larceny by “possession” of the rifles. RCWA 9.54.010(5).
[4] KeyCite Notes
324 Receiving Stolen Goods
324k6 k. Persons Liable. Most Cited Cases
In prosecution for grand larceny by possession of two rifles which were loot of a recently
perpetrated burglary, defendant could not assert that one who himself “wrongfully
appropriates” property cannot be guilty of “receiving” the same property, where state did not
prove that defendant participated in burglary and defendant denied involvement in burglary.
RCWA 9.54.010(5).
*546 **170 Robert L. Milligan, Lynnwood, Court appointed for appellant.
Robert E. Schillberg, Snohomish County Pros. Atty., Allen J. Hendricks, Deputy Pros. Atty.,
Everett, for respondent.
JAMES, Justice.
Gerald Flint was found guilty of ‘grand larceny by possession’ of two stolen Winchester
rifles. The information, based upon RCW 9.54.010(5),[FN1] charged that Flint ‘with intent to
deprive and defraud the owner thereof, willfully, unlawfully and feloniously did then and
there receive and aid in concealing and withholding (the rifles) * * * knowing said property to
have been stolen, * * *’
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FN1. ‘Every person who, knowing the same to have been so appropriated, shall bring into
this state, or buy, sell, receive or aid in concealing or withholding any property wrongfully
appropriated, whether within or outside of this state, in such manner as to constitute larceny
under the provisions of this chapter‘Steals such property and shall be guilty of larceny.’
[1] [2] [3] Flint's principal assignment of error is that evidence was admitted which
established that the rifles found in his possession were the loot of a recently perpetrated
burglary. The evidence could circumstantially connect Flint with the burglary. Flint
complains that this forced him to defend against a crime with which he was not charged and
therefore did not prepare to defend.
**171 We find no merit in this contention. Evidence relevant and material in proving an
element of a crime charged may also connect a defendant with another crime. State v.
Rahn, 1 Wash.App. 159, 459 P.2d 824 (1969). The admission of evidence of an accused's
participation in an Unrelated crime is, however, prejudicial error. State v. Vindhurst, 63
Wash.2d 607, 388 P.2d 552 (1964). But such evidence is properly admissible if it tends to
prove some essential element*547 of the crime charged. State v. Dinges, 48 Wash.2d 152,
292 P.2d 361 (1956); State v. Hennings, 3 Wash.App. 483, 475 P.2d 926 (1970). Flint's
knowledge that the rifles were stolen is an essential element of the crime of ‘possession’
with which he is charged. ‘There could be no more convincing evidence as to the element of
knowledge that the property was wrongfully appropriated than proof that the defendant
himself had stolen it. State v. Kruger (1927), 145 Wash. 654, 261 P. 383.’ State v. Carden,
50 Wash.2d 15, 17, 308 P.2d 675, 677 (1957); See also State v. Regan, 76 Wash.2d 331,
457 P.2d 1016 (1969).
[4] Flint's principal argument is that under the statute one who himself ‘wrongfully
appropriates' property cannot be guilty of ‘receiving’ the same property.
According to State v. Hite, 3 Wash.App. 9, 12, 472 P.2d 600, 602 (1970), ‘It is the holding of
a majority of jurisdictions that one cannot be both the principal thief and the receiver of
stolen goods.’ Mr. Justice Frankfurter, dissenting in Milanovich v. United States, 365 U.S.
551, 558, 81 S.Ct. 728, 732, 5 L.Ed.2d 773 (1961), states that:
It is hornbook law that a thief cannot be charged with committing two offenses-that is,
stealing and receiving the goods he has stolen. E.g., Cartwright v. United States, 5 Cir., 146
F.2d 133; State v. Tindall, 213 S.Ct. 484, 50 S.E.2d 188; see 2 Wharton, Criminal Law and
Procedure, s 576; 136 A.L.R. 1087. And this is so for the commonsensical, if not obvious,
reason that a man who takes property does not at the same time given himself the property
he has taken. In short, taking and receiving, as a contemporaneous-indeed a coincidentalphenomenon, constitute one transaction in life and, therefore, not two transactions in law.
But, as Mr. Justice Frankfurter further points out, the severable ingredients of one
compound transaction may be outlawed and made punishable as separate offenses.
The holding of Milanovich is that an accused may be prosecuted in one cause on Alternate
counts for either the primary theft or the secondary receiving. In such event, the jury must
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be instructed that ‘a guilty verdict could be *548 returned upon either count but not both.’
Milanovich v. United States, Supra at 555, 81 S.Ct. at 730.
Here Flint was charged only with the secondary receiving. He did not admit that he
committed the burglary as did the defendant in Lindsey v. Commonwealth, 383 S.W.2d 333,
334 (Ky.1964), a case cited by Flint. The opinion in Lindsey is brief and instructive.
In his trial on a charge of feloniously receiving stolen property (KRS 433.290) the appellant,
Marshall Lindsey, took the witness stand in his own defense and testified that it was he who
had stolen the property. The Commonwealth responded to this unusual stratagem by
moving for and obtaining a dismissal of the indictment, after which Lindsey was indicted and
convicted on two counts charging felonious theft (KRS 433.250) of the same property.
The defense of former jeopardy was timely asserted and preserved, and it presents the only
question before us on this appeal.
Receiving stolen property is an offense separate and distinct from that of stealing the same
property, and under ordinary circumstances it would not be possible for a person to be
convicted of both, though he may be indicted and tried on alternative counts. Mercer v.
Commonwealth, Ky., 330 S.W.2d 734, 736 (1960). **172 By the same token, an acquittal on
one of these two charges is entirely consistent with a conviction on the other. Even,
therefore, had Lindsey been acquitted in the first proceeding, the subsequent indictment
and conviction for theft would have been proper.
Perhaps one charged solely with ‘receiving’ stolen property under RCW 9.54.010(5) could
avoid prosecution on that charge by admitting the primary theft of the property. Flint did not
choose, however, as did Lindsey, (Lindsey v. Commonwealth, Supra) to leap from the frying
pan into the fire. The state did not Prove that Flint participated in the burglary. In fact, Flint
denied involvement. The state's evidence concerning the burglary could, however, satisfy
the jury beyond a reasonable doubt that Flint knew that the rifles he possessed had been
‘wrongfully appropriated.’
We have considered Flint's further assignments of error *549 and find them to be without
substance or merit. State v. Travis, 1 Wash.App. 971, 465 P.2d 209 (1970).
The judgment is affirmed.
FARRIS, Acting C.J., and SWANSON, J., concur.
END OF DOCUMENT
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STEP 2 – RULE SYNTHESIS:
STUDENTS: We will review the following hypothetical in class.
Professional Skills I Handout
KEVIN BROWN HYPOTHETICAL
Kevin Brown entered Eastern State University and participated in a round of mixers and rush parties. He
received a bid to pledge Gamma Beta. All pledges were required to participate in “Hell Night.” Kevin,
who had done well in high school, was excited to attend Eastern State, as he had dreamed of being a
student there his entire life.
Kevin was excited but nervous when Hell Night arrived. The twelve pledges were herded into the small
downstairs room know as “Dungeon,” where they were divided into two teams that stood facing each
other in two lines, with their designated “Big Brother,” and other fraternity members standing behind them.
At a signal from the Hell Night Captain, drinking speed contests, or “boat races,” began. One by one, the
six pledges on each team had to guzzle a beer as quickly as possible. As soon as all the team’s
members had finished drinking one beer, the team’s next round began. During the contest, the fraternity
members heckled the drinkers, threatening to “de-pledge” any pledge who threw up, passed out, or quit
the race. At the end of the race, the pledges on the losing team had to bend over and be “paddled”
(smacked on the buttocks with a polished wooden plank) by their Big Brothers.
Although he never liked to drink, Kevin wanted to join the fraternity and he wanted to avoid the
embarrassment of de-pledging Gamma Beta. He desperately tried to drink each beer as quickly as
possible. In the din of shouted taunts and curses, the walls of the Dungeon seemed to swirl around him,
and he passed out.
Humiliated by his poor performance on Hell Night, Kevin became depressed, dropped out of college, and
had to be hospitalized. He now wants to sue the fraternity on a claim of intentional infliction of severe
emotional distress. Generally, to recover for intentional infliction of emotional distress, a plaintiff must
demonstrate that the defendant’s conduct was “extreme and outrageous” (among other elements). In
this hypothetical memo, you would be asked to analyze whether the State Appellate Court, using the
following case precedents, is likely to find that the conduct was sufficiently “extreme and outrageous” so
as to satisfy that element of a cause of action for intentional infliction of emotional distress.
Able v. Zandor (State App. Ct. 1992)
In trying to collect a debt owed by Able, Zandor made threatening phone calls to Able at all hours of the
night and notified Able’s employer that Able was “a dishonest deadbeat.” The court dismissed the case
because Able was unable to establish that he had suffered severe emotional distress, although it agreed
that Zandor’s conduct was extreme and outrageous. “A claim for intentional infliction of severe emotional
distress requires a showing that the defendant’s conduct was ‘extreme and outrageous,’” stated the court.
“Actionable behavior is distinguishable from minor annoyances or insults. Conduct qualifies as extreme or
outrageous when the defendant has engaged in an extended course of hounding the plaintiff by means of
a variety of severe methods, such as abusive language, shouting, and repeated threats.”
Carlin v. Soames (State App. Ct. 1994)
Carli, who rented an apartment in a building owned by Soames, organized a tenant rent strike to force
Soames to make repairs to the building’s heating and plumbing systems. Angered by the strike, Soames
rang Carlin’s doorbell. Carlin opened the door and Soames screamed at her: “Better watch your back,
lady! We know how to get rid of your kind here!” Every day after that, Soames rang the doorbell
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repeatedly. Carlin refused to answer the bell, whereupon Soames shoved hostile notes through the mail
slot in the door. Soames also began making harassing telephone calls to Carlin in the middle of the night.
Carlin successfully sued Soames for intentional infliction of emotional distress. “To qualify as ‘extreme
and outrageous conduct,’” ruled the court, “the defendant’s behavior must go beyond the bounds of a
civilized society. Where a tenant engaged in a lawful rent strike is virtually held captive in her home by the
landlord’s incessant threatening activities, that boundary line has been passed.”
Baker v. Trueblood (State App. Ct. 1996)
Baker worked on the assembly line at Racecars, Inc., an automobile parts manufacturer. He got along
well with his coworkers, but not with his supervisor, Trueblood, who thought Baker made too many
mistakes and worked too slowly, holding up the production line. Almost daily, Trueblood would walk up
behind Baker and watch him work. Over the din of the machines, Trueblood would shout: “Move it, you
slug! You’re the slowest damn worker on this whole (*&%$#@!) line! If we come in below quota I’m telling
‘em it’s your fault!” After Baker suffered a nervous breakdown and had to be hospitalized, he sued
Trueblood for intentional infliction of severe emotional distress. The court dismissed the claim, ruling that
Trueblood’s behavior was not ‘extreme and outrageous.’ The court stated that the character of the
conduct depends upon the context in which it occurs. “Swear words may be seen as ‘extreme and
outrageous’ if they are shouted at an afternoon tea party, but would not likely be actionable if yelled by a
drill sergeant during basic training.”
Dobson v. Gentry (State App. Ct. 1998)
Dobson and Gentry both auditioned for the lead in their college play. Dobson won the lead while Gentry
was chosen for a small part. Gentry was convinced that Dobson had been selected only because
Dobson’s parents had made a generous donation to the college’s theater arts program. Envious and
embittered, Gentry decided to sabotage Dobson’s performance. Several times, he created backstage
distractions to make Dobson miss his cue to go on stage. Gentry also glued obscene pictures onto the
documents Dobson was supposed to hold and read during his biggest scene. Before each rehearsal,
Gentry pasted posters on Dobson’s dressing room door that said, ”MONEY CAN’T BUY TALENT.
DOBSON IS A HACK!” The court dismissed Dobson’s claim for damages for severe emotional distress.
“Under the rule of Carlin v. Soames, behavior must be beyond the bounds of civilized society to be
considered ‘extreme and outrageous conduct.’ Is the behavior complained of here immature? In a word,
yes. Is it ‘beyond the bounds?” In a word, no.
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STEP 3: USE A CASE ANALYSIS SHEET TO DETERMINE WHETHER TO INCLUDE
A CASE IN YOUR MEMO (i.e., IN THE “RE” PORTION OF IREAC)
Once you have written your working brief of the cases that you read, it is useful to fill out a case
analysis sheet to help you determine whether you want to include the case in your memo.
A case analysis sheet is like a fact pattern tree in that it forces you to connect the facts in each
case with the elements of the rule. Sometimes this is difficult because the court is not always
explicit about what element of the rule it is addressing, or how the fact(s) satisfied the element,
but with time and practice, you will soon be able to infer the connections between the facts and
the elements of the rule.
To create a case analysis sheet, follow these steps:
1.
First, identify the elements of the rule. This may require you to write a synthesized rule
drawn from all of the cases that you read.
2.
Place the elements of the rule vertically on the left side of the page.
3.
In the next column, place the fact(s) that the court used to determine whether the
element was satisfied.
4.
In the next column, place the fact(s) from your problem that are most like the fact(s) in
the case. This will be the basis for side A's arguments.
5.
In the next column, place the fact(s) from your problem that show how the fact(s) in the
case are not similar. This will be the basis for side B's arguments.
6.
Note that there may not be facts for every element of the rule, or for each side's
arguments.
Once you have completed a case analysis sheet for each case, ask yourself whether there are
sufficient facts that are analogous to the facts in your problem to warrant a full “Rule
Explanation” paragraph, or a “Mini-Brief.”





Are the facts similar to your facts?
Was the issue similar to your issue?
Is(are) the rule(s) applicable to your case?
Is the court's reasoning helpful in resolving your case?
Does the case add any new information or any new angles to your analysis?
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STUDENTS: We will complete the following case analysis sheet in class.
CASE ANALYSIS SHEET
Case name and citation:
Issue relevant to our case (be as specific as possible):
Holding on issue relevant to our case:
Parts of the rule(s) set out
in case
Facts in cited case
that supported
finding rule was
satisfied or not
Knowledge can be shown
by
A: Evidence that D participated
in original theft
B:
1)
2)
Actual possession of
recently stolen property AND
Inculpatory evidence, such
as
a) Failure to explain OR
b)
False or improbable
explanation OR
c)
Explanation that cannot
be checked or rebutted
C: Constructive knowledge can
be shown if D had knowledge of
facts sufficient to put him on
notice that they were stolen (This
rule not analyzed by court)
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Similar facts in our
case
Different facts in our
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STEP 4: LOOKING AHEAD TO THE MEMO-DRAFTING STAGE, BRIEFS OFTEN
BECOME “RULE EXPLANATION” PARAGRAPHS
Recall that there are three possible uses of cases: (1) to provide a rule or test that can
be applied to your facts; (2) to help identify how a rule should apply to your facts by
comparing or distinguishing facts in the analogous case; and (3) to provide policy or
reasoning that can be applied to your facts.
Option 1: If you are using a case only for a rule, you do not need to provide a full
discussion of the case in your memo.
Options 2 and 3: However, if you are using the case for policy or analogous facts, you
need to provide a summary of that case in the memo. Your summary of each case is a
separate “RE” paragraph, which we also refer to as a “mini-brief.”
Drafting the “RE” Paragraph:
A mini-brief should contain enough information about the case so the reader can make
an independent decision about how that case relates to, or helps you analyze, the facts
in your case. Thus, the mini-brief should contain the following:





Facts that give the reader a context of the case (the “story”), along with
only the “legally significant” facts – i.e., those facts that the court
considered in deciding the outcome on the particular issue.
The issue before the court;
The court's holding;
The court's reasoning
The result of the case (i.e., motion dismissed, defendant convicted, case
reversed and remanded, etc.)
This is termed the “FIHRR” approach (pronounced, “fire”)
In your case description, be sure to include all of the facts from the analogous case that
you could compare or distinguish from facts in your case. These are the facts you will
use in sections setting out the parties’ arguments. Use you case analysis sheet to
check if you have included all of the necessary facts.
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CASE CITATIONS HANDOUT3
EXAMPLES OF PROPER CASE CITATIONS:
Trowbridge v. Torabi, which was decided by the Indiana Court of Appeals in 1998 and can be found at 693 N.E.2d
622, becomes:
Full Citation:
Trowbridge v. Torabi, 693 N.E.2d 622 (Ind. Ct. App. 1998).
Short Citation:
Trowbridge, 693 N.E.2d at 625.
Id. Form:
Id. (refers to page 625 of Trowbridge).
-ORId. at 622-23 (refers to different pages of Trowbridge).
United States Supreme Court: Chimel v. California, 395 U.S. 752 (1969).
United States Court of Appeals: United States v. Turner, 926 F.2d 883 (9th Cir. 1991).
 Spell out the words “United States.” Do not write U.S.
 In the parenthesis, be sure to include both the court and the year.
United States District Court: Jackson v. Metro. Edison Co., 348 F.Supp. 954 (M.D. Pa. 1972).
State Supreme Court: State v. Andrews, 549 N.W.2d 210 (Wis. 1996).
 Note that the case is not “Wisconsin v. Andrews,” but rather “State v. Andrews.”
3
This portion of the notes was created by Professor Marc McAllister for use in the WSU Professional Skills
program.
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CASE CITATION EXERCISE4
(1) Write the proper citation for a case decided by the District Court for the
District of Puerto Rico, entitled Savis, Inc. v. Warner Lambert, Inc. The
case is found in volume 967 of the Federal Supplement Series. It begins
on page 632. The case was decided in 1997.
_____________________________________________________
(2) Write the complete cite for the case below (below is how the case caption
appears in Westlaw):
_____________________________________________________
640 N.E.2d 67
Court of Appeals of Indiana,
Fourth District.
BAGKO DEVELOPMENT COMPANY, Robert E. Longwith, and Cathy Longwith, Appellants
(Plaintiffs Below),
v.
Charles T. DAMITZ and Nila J. Damitz, Appellees (Defendants Below),
v.
JIM BAGLEY CONSTRUCTION COMPANY, INC., James B. Bagley, Jr., and James B.
Bagley, III, Appellants (Third Party Defendants Below).
No. 34A04-9309-CV-338.
Aug. 23, 1994.
SHORT FORMS FOR CASES:
(3) Now, reference the case from question (2) above using three different
short forms. When would you use each?
1.
____________________________________________
2.
____________________________________________
3.
____________________________________________
4
This exercise was adapted by Professor Marc McAllister from materials prepared by Laurel Currie Oates
and Marilyn Berger.
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Class Session #4
Friday, August 10, 2007
6:00 p.m. – 8:30 p.m.
REVISING THE RULES SECTION
CONTENT: Have you included the necessary rules?
□
Is the content complete? Have you included the following rules from the cases?
□ Knowledge can be shown with evidence that the defendant participated in the
original theft. (Flint)
□ Actual knowledge is not necessary; knowledge can be shown with evidence
that the defendant possessed recently stolen property coupled with other
inculpatory circumstances, such as when the defendant fails to explain
possession or gives false, improbably, and unverifiable explanations.
(Rockett)
□ Knowledge can be shown when the defendant was aware of facts and
circumstances that would put a reasonable person on notice that the goods
were stolen. (Rockett, Rye).
□
Have you stated the rule accurately and precisely, neither too broadly nor too
narrowly?
TIP: Consider how the rule would apply in different circumstances if another
court stated it the way you have stated it. Would the outcome make sense, or do
you need to adjust the statement of the rule to make it more precise?
□
Have you included only relevant rules from the cases?
□
Have you used a citation for each separate rule to indicate the source of the
rule?
□
Have you eliminated unnecessary language introducing a rule that is
conveyed by the citation? (e.g., “The court found in State v. X that . . . .“)
READER EXPECTATIONS: Can a reader easily understand your purpose in
setting out the rules section and how the rules relate to the issue presented?
□
□
□
Does the topic sentence adequately cue the reader by stating what the reader
will find in the paragraph? In other words, does it identify the issue to which the
rules relate?
Have you used grammatically correct sentence structure?
Have you ordered the rules in a logical fashion (e.g., general to specific) and
used techniques to show relationships between the rules?
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Review the Revision Strategies for techniques on making your writing "reader
friendly" at both the sentence and paragraph levels. For example, you can use
parallelism, dovetailing, and transitions to enhance the coherence and unity of
your rules section.
Read the synthesized rules paragraphs regarding the knowledge element set out
below. Identify any problems or concerns that you might have about this
paragraph and how you would address them.
Sample 1:
The state will have more difficulty proving the second element, that Mary Music
"knew that the property was stolen." The court in Rockett held that actual knowledge by
the defendant that the goods were stolen is unnecessary. It is sufficient if it can be
shown that he had knowledge to put him on notice that they were stolen. Along the
same lines, the court in Rye held that is not essential that the defendant have actual
and positive knowledge that the goods were stolen. It is sufficient if there is
constructive knowledge through notice of facts and circumstances from which guilty
knowledge may be inferred. The court in Flint held that there could not be more
convincing evidence of knowledge that the property was wrongfully appropriate than
proof that the defendant himself had stolen it.
Sample 2:
As to whether Mary Music had knowledge that the stereo was stolen, the statute merely
states that the defendant must know that the property was stolen. Knowledge can be
established if the defendant has knowledge of facts sufficient to put him/her on notice
that the property is stolen or that knowledge can be inferred. Knowledge may be
established by showing that the defendant participated in the underlying crime.
Knowledge may be established where the defendant possesses recently stolen property
coupled with other inculpatory evidence, such as inconsistent explanations. Finally,
knowledge that goods are stolen can be proved with evidence of actual knowledge;
however, actual knowledge is not necessary to show that the defendant had knowledge
that property is stolen.
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STUDENTS: We will complete the following exercise in class.
IN-CLASS EXERCISE: SAMPLE CASE DESCRIPTIONS
You have been presented with the following facts:
Your client, Zhaylo, recently quit her job as a maid at a hotel because she was passed
over for a promotion to management-trainee. Although she had received stellar
evaluations in the two years she worked there and was qualified for the position, the
hotel promoted three Caucasian women instead of her. Zhaylo is of Puerto Rican
heritage and speaks with a slight accent. The hotel claims it had a legitimate reason for
not promoting her because one of the criteria for the management-trainee position is the
ability to communicate with the public.
ISSUE: The specific issue you are researching is whether the hotel can show that it
had a legitimate reason for not promoting Zhaylo.
RULE: Assume you have already drafted the following rules section:
Generally, an applicant may not be rejected for a job or promotion merely
because that applicant speaks with an accent. Case X. However, an applicant’s accent
may be a legitimate reason for rejecting an applicant, but only when such an accent
materially interferes with job performance. Case A. An individual’s accent and national
origin are intertwined, so in cases involving accents, the court must look closely to
ensure that the person was rejected because of his or her inability to communicate
effectively, and not merely because he or she has an accent. Case A.
If you were reading a research memo on this issue, which of the following case
summaries would you find most helpful? What are some of the characteristics
that make it helpful?
1.
In a recent case, an applicant for a civil service position with the City of Honolulu,
Mr. Poblete, was not hired. The position required dealing with up to 300 disgruntled
members of the public each day. The plaintiff brought suit under Title VII based on
national origin discrimination. The City of Honolulu argued that because of his heavy
Filipino accent, the plaintiff could not communicate clearly and effectively. This
rendered the plaintiff unqualified for the position. The plaintiff’s accent was noted on the
interviewers’ notes. The plaintiff contended that he was qualified because he received
an exceptional score on the written examination and that this speech was
comprehensible. The court found that the plaintiff was not discriminated against.
2.
In Case A, the court recently held that an applicant’s accent may be a legitimate
reason for rejecting the applicant if the applicant’s accent materially interferes with job
performance. Citing Case X, the court stated that generally, an applicant cannot be
rejected for a job or promotion merely because the applicant speaks with an accent.
However, the court noted that an individual’s accent and national origin are intertwined,
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so in cases involving accents, the court must look closely to ensure that the person was
rejected because of his or her inability to communicate effectively and not merely
because he or she has an accent. In this case, the court found that the applicant’s
accent was pronounced and that it could have interfered with his ability to communicate.
According to the interviewers’ notes, the applicant’s accent made him difficult to
understand. Thus, the court found that the applicant had been rejected because of his
inability to communicate effectively, and that such an inability would materially interfere
with his job performance.
3.
In Case A, the court found that the applicant’s heavy Filipino accent constituted a
legitimate reason for his rejection because his accent would have materially interfered
with his job performance. The applicant applied for a civil service job in consumer
relations, which required good oral communication skills. The applicant was a first
generation Filipino who had recently emigrated from the Philippines. Although the
applicant had received the highest score on the written examination, because his accent
was pronounced, because the interviewers noted that the accent made him difficult to
understand, and because the job required good communication skills, the court found
that the applicant’s accent would materially interfere with his job performance.
Therefore, the employer rejected the applicant because of his inability to communicate,
not because of his national origin.
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REVISING THE CASE DESCRIPTION
CONTENT: Have you included the necessary information in your case
description?
□
Is the relevant part of the rule that the court considered in its analysis clearly and
accurately articulated?
□
Did you use the “buzzwords” from the rule?
□
Did you make sure you did not simply repeat a rule from the rules section,
but instead explain how the rule applied? (Remember, each sentence
should add new information).
□
Did you clearly articulate what the outcome was regarding the relevant issue
(whether there was proof of knowledge that the goods were stolen) and the
court's reasons for that holding?
□
Did you include all of the legally significant facts that the court considered?
NOTE: Legally significant facts are those facts that the court relied on in making
its ruling and/or those that you use in making the arguments for both sides.
□
Have you stated the legally significant facts accurately?
□
Have you included sufficiently specific facts to explain to the reader what
happened in this case?
□
Did you omit information that is not either relevant to the issue of knowledge, or
otherwise helpful to explain the context of the court’s decision?
□
Did you demonstrate a connection between the legally significant facts to the key
“buzz words” of the applicable rule?
TIP: Use your case analysis sheet as a checklist to make sure you have included the relevant
rules and related facts. When reviewing your case descriptions, you can make sure that you
have thoroughly explained the court's analysis by underlining the rules the court considered and
circling the matching legally significant facts. There should be both circles and underlines in
each section that explains the court's analysis (rules + LSF).
CHECK YOUR WORK WITH “THE SCISSORS TEST:” Your description of the precedent case
should be complete in and of itself. I should be able to take scissors and cut this paragraph out
of your memo, hand the sheet of paper to someone else, and that person should be able to fully
understand the case, the issue, the result the court reached, and why.
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READER EXPECTATIONS: Can a reader who is unfamiliar with the case
understand what happened in the case?
□
Does the topic sentence give the reader sufficient context to understand why you
are discussing this case? In other words, does it identify the issue and the
outcome in this particular case?
TIP:
Try using the word “because” in the topic sentence to connect the rule to
the key reasoning or facts.
□
Have you included sufficient background facts to tell the reader the context in
which the issue arose?
□
Have you explained the facts in sufficient detail so that the reader understands
the terms you have used, rather than assuming the reader can fill in missing
facts?
□
Have you avoided using just names or labels and instead explained the
underlying facts necessary to identify the persons in the story? (e.g., instead of
“Wettle,” identify the person as the one for whom defendant claimed to be storing
the goods, or the friend from whom defendant received the goods).
□
Are there sufficient reader cues (i.e., use of key terms and buzzwords from the
rules) to keep the reader focused on the issue?
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Class Session #5
Monday, August 13, 2007
6:15 p.m. – 9:45 p.m.
NOTE: This class begins with a tour of the WSU library. Students will meet on
the first floor of the WSU library at 6:15 p.m. Class will begin at 7:15 p.m. in our
regular classroom.
STEPS TO WRITING THE DISCUSSION SECTION OF AN OFFICE MEMO
1.
Define the scope or issue.
2.
Determine whether there is an applicable statute.
a.
If there is an applicable statute, find it and find cases that interpret the
statute.
b.
If there is no applicable statute, research cases to find an applicable
common law rule or rules.
3.
Write working briefs of the relevant cases.
4.
Synthesize the rules from the cases.
5.
Complete case analysis sheets for the cases.
a.
Compare or distinguish the facts.
b.
Compare or distinguish the reasoning.
c.
Compare or distinguish the policy considerations.
6.
Determine which cases you will use and how you will use them.
7.
Write descriptions for each case, including only the facts relevant to the issue(s)
raised in your memo problem.
8.
Analyze and write the arguments each side will make. Be sure to draw
appropriate analogies to the cases. Be explicit.
9.
Write a mini-conclusion that makes a prediction as to what will be the likely
outcome regarding the issue raised by your memo problem.
Today, we will discuss step 8 above…
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USING CASES TO DEVELOP AND SUPPORT THE ANALYSIS (ARGUMENTS)
Now that you have identified rules from cases and have worked on writing case descriptions, you
need to explain how the rules apply to your facts. This is the analysis, or application section (the
“A” in “IREAC”). In the format that you will be using for the objective memo analyzing Mary
Music’s charge, we will also refer to this section as the “argument” section because you set out
the different ways the opposing parties (the prosecution and the defense) could argue that the
same rule should apply to the facts. The method of separating out the parties’ arguments will
help you to develop a thorough analysis and to reach an objective conclusion.
Use the rules to develop the outline for the analysis
One method of analyzing facts is to simply connect the rules to legally significant facts.
Rule + Legally Significant Facts in your case = Analysis/Argument  Conclusion
To ensure that you have considered all possible arguments and included the key content in your
arguments, refer back to your case analysis chart setting out the parts of the rule. Then,
brainstorm about what facts each side would use to support its argument that the rule is satisfied
or not satisfied.
Parts of the rule(s) set out
in case
Facts supporting State’s
argument that rule is met
Facts supporting
Defendant’s argument
that rule is not met
Rule 1
Rule 2
(a) sub-rule
(b) sub-rule
Another way to develop the outline for your arguments/analysis is to turn the rules into a list of
questions. Then, use the answers to those questions to develop your topic sentences for the
arguments/analysis. Either way, the goal is to consider how each rule could be applied to your
facts.
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EXAMPLE:
Rule: Knowledge can be proved by facts and circumstances that should have put a
reasonable person on notice that the goods were stolen.
Step 1: Turn the rule into a question about the facts in your case, using the “buzzwords” from
the rule.
Question: In this case, were there facts and circumstances that would have put a
reasonable person on notice that the goods were stolen?
Step 2: Create topic sentences for the paragraphs containing the parties’ arguments, again using
the “buzzwords” from the rule. Consider how each party would answer to the question.
State’s preferred answer: In this case, [the State can argue that] there were facts and
circumstances that would have put a reasonable person on notice that the goods were
stolen.
Defendant’s preferred answer: In this case, [Mary Music can argue that] there were
not facts and circumstances that should have put a reasonable person on notice that the
goods were stolen.
To avoid being too conclusory, you must then support the answers with legally significant facts.
State’s argument: In this case, there were facts and circumstances that would have put a
reasonable person on notice that the goods were stolen. Such facts included the fact that
…
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Using cases to support your analysis
You can strengthen the analysis by not only linking each rule to the legally significant facts in
your case, but also comparing and distinguishing the facts that were legally significant in other
cases in which the same rule(s) applied. In other words, use analogous cases to further your
analysis of how the rules should apply to the facts in your case.




Remember that no two cases are exactly alike, but two situations may be analogous.
To accurately predict how a court would decide your client’s case, you need to persuade
the supervising attorney that a court is likely to view your facts as more similar to certain
decided cases and less similar to other decided cases.
The logic is that if the facts are similar, the outcome should be similar. By contrast, if the
facts are different, the logical inference is that the outcome should be different.
Keep in mind that a case can support an argument even if it has an outcome unlike the
one the party would prefer. For example,
o If the State is trying to prove that an element is satisfied, it can compare the facts
in its case to the legally significant facts in cases where the element was satisfied.
o The State can also distinguish the facts in its case from the legally significant facts
in cases where the element was not satisfied.
Case Name and outcome
Case A – element met
Case B – element not met
State – wants element met
Will compare Case A
Will distinguish Case B
Defendant – wants
element not met
Will distinguish Case A
Will compare Case B
Note that both parties have used both cases, even the one with the outcome opposite to the one it
wants. Incorporating both types of cases strengthens the analysis because this method does not
ignore certain seemingly unfavorable cases, but rather accounts for them and explains why the
cases, taken together, support a particular conclusion.
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Drafting effective analogous case comparisons and distinctions
To get a reader to “buy” your comparison to or distinction from another case is to do the
following:
Step 1: Assure the supervising attorney that the analogous case applied the same rule you wish
to apply and that the fact to which you want to analogize was a legally significant fact supporting
the court’s decision. This is done in the case description.
Step 2: Give the supervising attorney enough information to independently evaluate whether the
fact from the decided case really is similar to or different from the fact in your client’s case.
EXAMPLE
Assume one of the disputed issues is whether a burglary was of an “inhabited dwelling house.”
The case State v. Picaroni provides the following rule:
Rule: Burglary of a structure that is not attached to a residence does not qualify as burglary of
an inhabited dwelling house. Picaroni.
The rule is followed by descriptions of two cases in which this rule was applied:
In Picaroni, the court held that burglary of a garage was not burglary of an inhabited
dwelling house because it was not attached to the residence. The defendant appealed his
conviction for burglarizing the contents of a poorly lit garage, including two crates of
dishes later found in his truck. The court rejected defendant’s argument that this
conviction was inconsistent with the defendant’s acquittal for burglarizing the main
house. Instead, the court held that burglary of the unattached garage was a distinct crime
from burglary of the adjacent house because the garage and the house were unconnected
and were separated by a cement walkway.
By contrast, in Cook, the court held that burglary of an enclosed patio and a garage was
burglary of an inhabited dwelling house because the garage and patio were attached to the
main house. The defendant was convicted for burglary of two chairs, a clock radio, and a
tool box from the victim’s garage and patio. The court found that the garage and the
patio were both “integral parts” of the victim’s residence and, therefore, affirmed the
defendant’s conviction. The court reasoned that the attached garage was “simply one
room of several which together compose[d] the dwelling,” especially where the garage
could be reached through an inside door connecting it to the rest of the residence.
Next, in the analysis/argument section, the writer will discuss how the rule applies to the present
case, using comparisons and distinctions from the cases to support the analysis/arguments.
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SAMPLE COMPARISONS
Analogies must be explicit and obvious. In each example below, can you easily tell what
specific comparison the attorney is trying to sell to the busy partner?
1.
Here, the trailer was separate from Ms. Peluso’s main house.
2.
Like Picaroni, here, the trailer was separate from Ms. Peluso’s main house.
3.
Like the unattached garage in Picaroni, which was separated from the house by a cement
walkway, here, the trailer was separated from Ms. Peluso’s main house.
Which sample is most effective? Why?
SAMPLE DISTINCTIONS
Distinctions must be explicit and obvious. In each example below, can you easily tell what
specific distinction the attorney is trying to sell to the busy partner?
1.
Here, Ms. Peluso’s trailer does not share any door with the main residence, even when
parked in the driveway.
2.
Unlike Cook, here, Ms. Peluso’s trailer does not share any door with the main residence,
even when parked in the driveway.
3.
Unlike the attached garage and enclosed patio in Cook, which qualified as integral parts
of the main house because they were akin to additional rooms, here, Ms. Peluso’s trailer
does not share any door with the main residence, even when parked in the driveway.
Which sample is most effective? Why?
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Class Session #6
Tuesday, August 14, 2007
6:00 p.m. – 9:45 p.m.
Revising Discussion Section; Drafting Conclusion
MAKING EXPLICIT COMPARISONS AND DISTINCTIONS:
SAMPLE SENTENCE FORMATS
You know now that it is important to use cases not only to provide rules, but also, when
possible, to support the analysis of facts in your case. However, you may still be unclear about
how to write sentences that make those comparisons and distinctions.
Following are some examples of language you can use to make these comparisons and
distinctions. Try filling in the blanks for each sentence with specific facts from your case. Make
sure, though, that you are comparing like things; for example, don’t compare a case to a person.
Be specific about both the facts that you are comparing or distinguishing from the other case and
the facts in your case.

As in Case X, in which … [set out legally significant facts from Case X], in this case, …
[set out legally significant facts from your case].

Like the [person being compared] in Case X, who [set out legally significant facts from
Case X], here, [name person in our case] [set out legally significant facts from your
case].

Just as in Case X, where … [set out legally significant facts from Case X], in this case,
… [set out legally significant facts from your case].

Unlike Case Y, where … [set out legally significant facts from Case Y], … [set out
legally significant facts from your case].

Mary Music can argue that whereas in Case Y, … [set out legally significant facts
from Case Y], in this case, … [set out legally significant facts from Case Y].

In Case Y, … [set out legally significant facts from Case Y]. By contrast, here, … [set
out legally significant facts from Case Y].
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DRAFTING THE CONCLUSION
A conclusion should set out your best assessment of the answer to the issue that you
have been asked to research. Even if you may not yet feel comfortable stating with
certainty what conclusion a court would reach if presented with the issue, the reader will
expect you to take a position by stating your conclusions. Thus, the conventional
memorandum ends with a conclusion.
In addition, if your memo addresses sub-issues that you have identified to help answer
the main question – e.g., elements – at the end of each subsection, you should also
include a “mini-conclusion,” or brief resolution of each sub-issue at the end of the
section discussing that particular element or issue.
Each conclusion should contain not only a prediction of what a court or jury might do,
but also a summary of the reasoning supporting your prediction. A good conclusion will
provide the main lines of reasoning and key facts that support your prediction. This
does not mean that you have to repeat each piece of the more detailed analysis you
have just set out in the discussion section. Rather, you should provide a less detailed
assessment of the reasoning. If you have addressed more than one sub-issue, or
element, in the discussion section, your main conclusion will summarize the “miniconclusions” you reached on each issue and will give the reader a sense of how those
conclusions interact.
For example, assume your issue involves a crime with three elements, each required to
be proven for the defendant to be found guilty. Suppose you have reached the
following conclusions:



Element 1  met
Element 2  not met
Element 3  met
In such a situation, even though you have concluded two out of three elements can be
proved, if the law requires all three, your main conclusion will be that the prosecution
cannot prove the crime. Your main conclusion will explain that even though two of the
elements are met, one is not. Your conclusion would also include a brief explanation of
how you reached the “mini-conclusion” on each of the issues.
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DISCUSSION SECTION OUTLINE/CHECKLIST
Use this checklist to ensure the Discussion section of your memo is complete.
I.
Introduction & General Rules (statute)
___ Establishes the context and main issue by identifying the charge
___ Sets out the relevant language of the statute (general rule)
___ Identifies (i.e., cites to) statute that is the source of authority for the
general rule
___ Identifies the key elements of the statute
II.
Identification of Disputed Element
___ Identifies what elements are not in dispute and explains why by
matching element with legally significant facts
___ Identifies element in dispute
III.
Analysis of Disputed Element
A.
___
___
___
___
“Specific rules” re: disputed element (knowledge) from cases
Includes rule from Flint
Includes rules from Rye
Includes rules from Rockett
Identifies (i.e., cites to) the case that is the source of authority for
each rule (using modified citation form)
B.
Case descriptions
___ Includes descriptions only of those cases that include facts that help
explain a rule and can be usefully compared or distinguished from facts in Mary Music
case (i.e., Rockett and Rye)
___ Topic sentence sets out outcome on issue of knowledge and
reasoning, by using buzzwords from rule you are using the case to illustrate
___ Provides legally significant facts
___ Provides court’s holding
___ Describes court’s reasoning, matching reasoning to specific legally
significant facts using buzzwords from applicable rule (i.e., rule + legally significant
facts)
C.
Analysis/Arguments
___ Identifies arguments for both sides
___ Organizes arguments by parties, rather than “ping-ponging” back and forth between
parties
___ Includes explicit and specific comparisons of facts in Music’s case
and in analogous cases
___ Uses key language (“buzz words”) from cases to show application
of rules and reasoning to facts in Music’s case
D.
Conclusion
___ Predicts how the court would likely rule on this element and re: the
charge as a whole
___ Summarizes reasons supporting likely outcome on issue presented
(i.e., the arguments the court would find most persuasive), using buzzwords + legally
significant facts
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CHECKLIST FOR ORGANIZATION
Use the following checklist to revise your memo Discussion section.
A.
Large-scale organization
_____ Follows IREAC format (with short issue statement
Included at beginning of Discussion section)
_____ Uses effective reader cues such as roadmaps and transitions
B.
Mid-scale organization
_____ Contains one identifiable thesis or topic per paragraph
_____ Topic sentence identifies thesis or topic
_____ Sentences in any given paragraph all support, explain, or otherwise
relate to thesis or topic set out in topic sentence
_____ Supporting/explaining sentences are in a logical order
C.
Small-scale organization
_____ No grammatical errors
_____ No clerical errors
_____ Uses active voice when possible rather than passive voice
_____ Subjects and verbs match in number (i.e., are both either singular
or plural)
_____ Subject/verb/object combination makes logical sense
_____ Uses words precisely
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Class Session #7
Wednesday, August 15, 2007
6:30 p.m. – 8:30 p.m.
WHAT TO EXPECT IN YOUR FIRST YEAR COURSES
Law School Exam Writing
This portion of the class seeks to provide you with basic instruction on law school exam
writing.5
 Law school exam writing is different than writing legal memorandums (the focus
of Professional Skills I) and briefs (the focus of Professional Skills II). Your grade
in most of your courses is based entirely – or nearly entirely – on your
performance on a midterm exam and a final examination at the end of the
semester. Consequently, it is essential that you understand the nature of law
school examinations, learn how to prepare well for them, and do your best on
them by employing proper examination techniques. Most law schools provide
little or no instruction on the examination process. Thus, many law students
learn the law thoroughly, yet fail to perform well on exams. However, grades
earned in law school can have a disproportionate effect on the range of
opportunities open to you upon graduation. Good grades in the first year often
open doors to summer clerkships or positions on Law Review or Moot Court,
which in turn often pave the way to future opportunities.
 But law school exam writing is also similar to writing legal memorandums and
briefs. The “Discussion” section of an office memo typically follows the pattern of
deductive reasoning that you will apply on an essay exam. For every issue that
you identify, you will summarize the legal rule or rules that help resolve that
issue, apply the rule to the facts, and reach a conclusion. You will “IRAC.” Thus,
many of the assignments in Professional Skills will help you develop skills of
analysis, organization, and expression that will help you do your best on your
essay exams.
5
This portion of the notes was adapted from Charles R. Calleros, Law School Exams: Preparing and
Writing to Win (Aspen 2007).
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STUDENTS: We will review the following case in class as part of the Sara Smart
exercise that follows. Please read the Jones case below before class begins.
FOR EDUCATIONAL USE ONLY
West Reporter Image (PDF)
308 F.2d 307, 113 U.S.App.D.C. 352
United States Court of Appeals District of Columbia Circuit.
Mary L. JONES, Appellant,
v.
UNITED STATES of America, Appellee.
No. 16382.
Argued April 24, 1962.
Decided Aug. 9, 1962.
Defendant was convicted in the United States District Court for the District of Columbia, Joseph
R. Jackson, J., of involuntary manslaughter, and she appealed. The Court of Appeals, Wright,
Circuit Judge, held that failure to instruct that jury was required to find beyond a reasonable
doubt that defendant was under a legal duty to supply food and necessities to infant before they
could find her guilty of manslaughter in failing to provide such items was plain error.
Reversed and remanded.
West Headnotes
[1] KeyCite Notes
110 Criminal Law
110XXIV Review
110XXIV(M) Presumptions
110k1144 Facts or Proceedings Not Shown by Record
110k1144.13 Sufficiency of Evidence
110k1144.13(2) Construction of Evidence
110k1144.13(3) k. Construction in Favor of Government, State, or Prosecution.
Most Cited Cases
(Formerly 110k1144(13))
Verdict of a jury in a criminal case must be sustained when there is substantial evidence to
support it, taking view most favorable to the government.
[2] KeyCite Notes
203 Homicide
203XI Questions of Law or Fact
203k1333 k. Grade, Degree, or Classification of Offense. Most Cited Cases
(Formerly 203k282)
Evidence was sufficient to present question for jury as to whether defendant was guilty of
involuntary manslaughter on basis of failure to provide food and necessities to an infant, while
under a legal duty to provide such items.
[3] KeyCite Notes
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110 Criminal Law
110I Nature and Elements of Crime
110k26 k. Criminal Act or Omission. Most Cited Cases
One can be held criminally liable for breach of a legal duty, where a statute imposes a duty to
care for another, where one stands in a certain status relationship to another, where one has
assumed a contractual duty to care for another, or where one has voluntarily assumed the care
of another and so secluded the helpless person as to prevent others from rendering aid.
[4] KeyCite Notes
203 Homicide
203III Homicide in Commission of or with Intent to Commit Other Unlawful Act
203III(C) Manslaughter
203k634 Particular Offenses and Conduct
203k643 k. Injuring or Endangering Child. Most Cited Cases
(Formerly 203k68)
Finding of legal duty was critical element of crime of involuntary manslaughter based on breach
of legal obligation to provide food and necessities to an infant, with such failure resulting in his
death. D.C.Code 1961, § 22-901.
[5] KeyCite Notes
110 Criminal Law
110XXIV Review
110XXIV(E) Presentation and Reservation in Lower Court of Grounds of Review
110XXIV(E)1 In General
110k1038 Instructions
110k1038.2 k. Failure to Instruct in General. Most Cited Cases
(Formerly 110k1038(2))
Failure to instruct that jury was required to find beyond a reasonable doubt that defendant was
under a legal duty to supply food and necessities to infant before they could find her guilty of
manslaughter in failing to provide such items was plain error. D.C.Code 1961, § 22-901,
Fed.Rules Crim.Proc., rule 52(b), 18 U.S.C.A.
[6] KeyCite Notes
110 Criminal Law
110XX Trial
110XX(J) Issues Relating to Jury Trial
110k863 Instructions After Submission of Cause
110k863(2) k. Requisites and Sufficiency. Most Cited Cases
It is error to instruct jury, without notice to counsel, after jury has retired and returned to
courtroom for further instructions, and proper procedure requires that jury be instructed in the
courtroom in presence of counsel and the defendant and that counsel be given opportunity to
except to the additional instruction.
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*307 **352 Mr. Thomas M. Haderlein, Chicago, Ill., with whom Mr. Walter A. Slowinski,
Washington, D.C. (both appointed by *308 **353 this court) was on the brief, for appellant.
Mr. Judah Best, Asst. U.S. Atty., with whom Messrs. David C. Acheson, U.S. Atty., and Nathan J.
Paulson, Asst. U.S. Atty., were on the brief, for appellee. Messrs. Charles T. Duncan, Principal
Asst. U.S. Atty., and William H. Collins, Jr., Asst. U.S. Atty., also entered appearances for
appellee.
Before DANAHER, BASTIAN and WRIGHT, Circuit Judges.
WRIGHT, Circuit Judge.
Appellant, together with one Shirley Green, was tried on a three-count indictment charging them
jointly with (1) abusing and maltreating Robert Lee Green (2) abusing and maltreating Anthony
Lee Green,FN1 and (3) involuntary manslaughter through failure to perform their legal duty of
care for Anthony Lee Green, which failure resulted in his death.FN2 At the close of evidence, after
trial to a jury, the first two counts were dismissed as to both defendants. On the third count,
appellant was convicted of involuntary manslaughter. Shirley green was found not guilty.
Appellant urges several grounds for reversal. We need consider but two. First, appellant argues
that there was insufficient evidence as a matter of law to warrant a jury finding of breach of duty
in the care she rendered Anthony Lee. Alternatively, appellant argues that the trial court
committed plain errorFN3 in failing to instruct the jury that it must first find that appellant was
under a legal obligation to provide food and necessities to Anthony Lee before finding her guilty
of manslaughter in failing to provide them. The first argument in without merit. Upon the latter
we reverse.
[1]
A summary of the evidence, which is in conflict upon almost every significant issue, is
necessary for the disposition of both arguments. FN4 In late 1957, Shirley Green became
pregnant, out of wedlock, with a child, Robert Lee, subsequently born August 17, 1958.
Apparently to avoid the embarrassment of the presence of the child in the Green home, it was
arranged that appellant, a family friend, would take the child to her home after birth. Appellant
did so, and the child remained there continuously until removed by the police on August 5, 1960.
Initially appellant made some motions toward the adoption of Robert Lee, but these came to
nought, and shortly thereafter it was agreed that Shirley Green was to pay appellant $72 a
month for his care. According to appellant, these payments were made for only five months.
According to Shirley Green, they were made up to July, 1960.
Early in 1959 Shirley Green again became pregnant, this time with the child Anthony Lee, whose
death is the basis of appellant's conviction. This child was born October 21, 1959. Soon after
birth, Anthony Lee developed a mild jaundice condition, attributed to a blood income with his
mother. The jaundice resulted in his retention in the hospital for three days beyond the usual
time, or until October 26, 1959, when, on authorization signed by Shirley Green, Anthony Lee
was released by the hospital to appellant's custody. Shirley Green, after a two or three day stay
in the hospital, also lived with appellant for three weeks, after which she returned to her parents'
home, leaving the children with appellant. She testified she did not see them again, except for
one visit in March, until August 5, 1960. Consequently, though there does not seem to have
been any specific monetary agreement*309 **354 with Shirley Green covering Anthony Lee's
support,FN5 appellant had complete custody of both children until they were rescued by the
police.
With regard to medical care, the evidence is undisputed. In March, 1960, appellant called a Dr.
Turner to her home to treat Anthony Lee for a bronchial condition. Appellant also telephoned the
doctor at various times to consult with him concerning Anthony Lee's diet and health. In early
July, 1960, appellant took Anthony Lee to Dr. Turner's office where he was treated for ‘simple
diarhea.’ At this time the doctor noted the ‘wizened’ appearance of the child and told appellant to
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tell the mother of the child that he should be taken to a hospital. This was not done.
On August 2, 1960, two collectors for the local gas company had occasion to go to the basement
of appellant's home, and there saw the two children. Robert Lee and Anthony Lee at this time
were age two years and ten months respectively. Robert Lee was in a ‘crib’ consisting of a
framework of wood, covered with a fine wire screening, including the top which was hinged. The
‘crib’ was lined with newspaper, which was stained, apparently with feces, and crawling with
roaches. Anthony Lee was lying in a bassinet and was described as having the appearance of a
‘small baby monkey.’ One collector testified to seeing roaches [around] Anthony Lee.
On August 5, 1960, the collectors returned to appellant's home in the company of several police
officers and personnel of the Women's Bureau. At this time, Anthony Lee was upstairs in the
dining room in the bassinet, but Robert Lee was still downstaris in his ‘crib.’ The officers removed
the children to the D. C. General Hospital where Anthony Lee was diagnosed as suffering from
severe malnutrition and lesions over large portions of his body, apparently caused by severe
diaper rash. Following admission, he was fed repeatedly, apparently with no difficulty, and was
described as being very hungry. His death, 34 hours after admission, was attributed without
dispute to malnutrition. At birth, Anthony Lee weighed six pounds, fifteen ounces- at death at
age ten months, he weighed seven pounds, thirteen ounces. Normal weight at this age would
have been approximately 14 pounds.
[2]
Appellant argues that nothing in the evidence establishes that she failed to provide food
to Anthony Lee. She cites her own testimony and the testimony of a lodger, Mr. Wills, that she
did in fact feed the baby regularly. At trial, the defense made repeated attempts to extract from
the medical witnesses opinions that the jaundice, or the condition which caused it, might have
prevented the baby from assimilating food. The doctors conceded this was possible but not
probable since the autopsy revealed no condition which would support the defense theory. It was
also shown by the disinterested medical witnesses that the child had no difficulty in ingesting
food immediately after birth, and that Anthony Lee, in the last hours before his death, was able
to take several bottles, apparently without difficulty, and seemed very hungry. This evidence,
combined with the absence of any physical cause for nonassimilation, taken in the context of the
condition in which these children were kept, presents a jury question on the feeding issue.
Moreover, there is substantial evidence from which the jury could have found that appellant
failed to obtain proper medical care for the child. Appellant relies upon the evidence showing that
on one occasion she summoned a doctor for the child, on another took the child to the doctor's
office, and that she telephoned the doctor on several occasions about the baby's formula.
However, the last time a doctor saw the child was a month before his death, and appellant
admitted that on that occasion the doctor recommended hospitalization. Appellant did *310
**355 not hospitalize the child, nor did she take any other steps to obtain medical care in the
last crucial month. Thus there was sufficient evidence to go to the jury on the issue of medical
care, as well as failure to feed.FN6
Appellant also takes exception to the failure of the trial court to charge that the jury must find
beyond a reasonable doubt, as an element of the crime, that appellant was under a legal duty to
supply food and necessities to Anthony Lee. Appellant's attorney did not object to the failure to
give this instruction, but urges here the application of Rule 52(b).
The problem of establishing the duty to take action which would preserve the life of another has
not often arisen in the case law of this country.FN7 The most commonly cited statement of the
rule is found in People v. Beardsley, 150 Mich. 206, 113 N.W. 1128, 1129, 13 L.R.A., N.S., 1020:
‘The law recognizes that under some circumstances the omission of a duty owed by one
individual to another, where such omission results in the death of the one to whom the duty is
owing, will make the other chargeable with manslaughter. * * * This rule of law is always based
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upon the proposition that the duty neglected must be a legal duty, and not a mere moral
obligation. It must be a duty imposed by law or by contract, and the omission to perform the
duty must be the immediate and direct cause of death. * * *’
[3]
There are at least four situations in which the failure to act may constitute breach of a
legal duty. One can be held criminally liable: first, where a statute imposes a duty to care for
another;FN8 second, where one stands in a certain status relationship to another;FN9 third, where
one has assumed a contractual duty to care for another;FN10 and fourth, where one has
voluntarily assumed the care of another and so secluded the helpless person as to prevent others
from rendering aid.FN11
It is the contention of the Government that either the third or the fourth ground is applicable
here. However, it is obvious this in any of the four situations, there are critical issues of fact
which must be passed on by the jury- specifically in this case, whether appellant had entered
into a contract with the mother for the care of Anthony Lee or, alternatively, whether she
assumed the care of the child and secluded him from the care of his mother, his natural
protector. On both of these issues, the evidence is in direct conflict, appellant insisting that the
mother was actually living with appellant and Anthony Lee, and hence should have been taking
care of the child herself, while Shirley Green testified she was living with her parents and was
paying appellant to care for both children.
*311 **356 [4]
[5]
In spite of this conflict, the instructions given in the case failed
even to suggest the necessity for finding a legal duty of care. The only reference to duty in the
instructions was the reading of the indictment which charged, inter alia, that the defendants
‘failed to perform their legal duty.’ A finding of legal duty is the critical element of the crime
chargedFN12 and failure to instruct the jury concerning it was plain error.FN13
[6]
Since the case will have to be retried, another error should simply be noted. After the
jury had retired for consideration of the case, a written communication was sent to the judge and
answered by him, without notice to counsel. When counsel learned of this communication, it was
disclosed that the note had been lost. Whereupon, on request of counsel, the court instructed the
foreman of the jury to reconstruct the note. Counsel, not being satisfied that the note as
reconstructed was a faithful representation of the original, asked that the jury be polled. This
was denied. The note as reconstructed read: ‘May the jury find both defendants in this case
guilty but also recommend clemency for only one of the two defendants?’ The court's reply
stated: ‘The jury has been instructed it can only bring in a verdict as to either or both defendants
of guilty or not guilty.’
It is obvious error to instruct the jury without notice to counsel.FN14 Proper procedure requires
that a jury be instructed in the courtroom in the presence of counsel and the defendant, and that
counsel be given opportunity to except to the additional instruction.
Reversed and remanded.
FN1. Counts 1 and 2 were laid under D.C.Code § 22-901.
FN2. D.C.Code § 22-2405.
FN3. Rule 52(b), F.R.Cr.P. 18 U.S.C.A.
FN4. The verdict of a jury in a criminal case must be sustained when there is substantial
evidence to support it, taking the view most favorable to the Government. Sipe v. United States,
80 U.S.App.D.C. 194, 150 F.2d 984, certiorari denied, 326 U.S. 788, 66 S.Ct. 473, 90 L.Ed. 478;
McGuinn v. United States, 89 U.S.App.D.C. 197, 191 F.2d 477.
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FN5. It was uncontested that during the entire period the children were in appellant's home,
appellant had ample means to provide food and medical care.
FN6. Compare State v. Beach, Mo.Sup.Ct., 329 S.W.2d 712, and Rex v. Ellen Jones, 19 Cox
Crim.Cas. 678.
FN7. The problem has evoked considerable study. See, e.g., Holmes, The Common Law, p. 278
(1881); Moreland, A Rationale of Criminal Negligence, ch. 10 (1944); Hughes, Criminal
Omissions, 67 Yale L.J. 590, 620-626 (1958); Annot., 10 A.L.R. 1137 (1921).
FN8. See, e.G., D.C.Code § 22-902; Craig v. State, 220 Md. 590, 155 A.2d 684.
FN9. A.L.R. Annot., supra, Note 7 (parent to child); Territory v. Manton, 8 Mont. 95, 19 P. 387
(husband to wife); Regina v. Smith, 8 Carr. & P. 153 (Eng. 1837) (master to apprentice); United
States v. Knowles, 26 Fed.Cas. 800 (No. 15,540) (ship's master to crew and passengers); cf.
State v. Reitze, 86 N.J.L. 407, 92 A. 576 (innkeeper to inebriated customers).
FN10. Regina v. Smith, supra, Note 9; Rex v. Ellen Jones, supra, Note 6; People v. Montecino, 66
Cal.App.2d 85, 152 P.2d 5.
FN11. Reg. v. Nicholls, 13 Cox Crim.Cas. 75; Rex v. Ellen Jones, supra, Note 6; 1 Wharton,
Criminal Law, § 455 (12th Ed.). Cf. Rex v. Gibbins and Proctor, 13 Crim.App.R. 134 (Eng. 1918);
State v. Noakes, 70 Vt. 247, 40 A. 249.
FN12. People v. Beardsley, 150 Mich. 206, 113 N.W. 1128, 13 L.R.A., N.S., 1020; United States
v. Knowles, supra, Note 9; Anderson v. State, 27 Tex.App. 177, 11 S.W. 33; State v. Benton, 8
W.W.Harr. 1 38 Del. 1, 187 A. 609; State v. Reitze, supra, Note 9; State v. Barnes, 141 Tenn.
469, 212 S.W. 100; State v. Berry, 36 N.M. 318, 14 P.2d 434.
FN13. Williams v. United States, 76 U.S.App.D.C. 299, 131 F.2d 21; F.R.Cr.P., Rule 52(b). The
Government did request an instruction on ‘omissions' as negligence. This was denied. The charge
as given was nothing more than the stock manslaughter charge unrelated to the facts and issues
in this case.
FN14. Shields v. United States, 273 U.S. 583, 588, 47 S.Ct. 478, 71 L.Ed. 787. See Arrington v.
Robertson, 3 Cir., 114 F.2d 821, 823, where the jury's communication to the judge was also not
preserved.
END OF DOCUMENT
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Exercise: Sarah Smart
Sarah Smart is the mother of two children, Bobby, age 6, and Savannah, age 1.
Sarah separated from her husband before she knew that she was pregnant with
Savannah. For the past year, Lou Lazy, has been living with Sarah. Although
they have not made plans to marry, Sarah and Lou are happy together. One
Sunday, Sarah went to do the shopping while Lou and the children remained at
home. Because the weather was so nice, Lou and the children went to their
backyard. Lou brought the Sunday paper and a can of beer with him. As he sat
down, Lou looked around the yard. He felt good since they had just finished
building an eight-foot cedar fence to keep the neighbors out.
While Lou was reading the paper, Bobby was swinging on the swing set.
Savannah crawled into the swing path. Bobby crashed into her, and she went
flying. Savannah fell on her head, fractured her skull, and was unconscious.
Bobby, not wanting to get into trouble, ran out of the yard and hid in a bush. Lou
noticed that Savannah was awfully quiet, he looked up and saw her lying in a
pool of blood. He figured that she was already dead, so he decided to finish
reading the paper.
When Sarah arrived home, she went to the backyard and discovered her
daughter. She called the ambulance and yelled at Lou. Savannah died on the
way to the hospital. The ambulance attendant said that it was a shame that they
had not called for help earlier because if they had been able to treat her right
after the accident, they would have been able to save her.
The Model Penal Code and the following statute is in effect:
RCW Sec.800(c) Manslaughter
Anyone who contributes to the cause of death of
another is guilty of manslaughter.
You are the prosecutor. Will you charge Lou with Manslaughter?
not?
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Analysis:
On the fact-pattern tree below, list the legal duties in the left hand column.
Complete the fact-pattern tree by listing the facts that suggest D owed that duty or did not owe
that duty to V. Treat each duty as its own mini-IRAC.
Prosecutor
Facts to show duty
Rule:
Defense
Facts to show no duty
I: Is there a statute?
R: Statute
A:
C:
I: Status relationship?
R: Define status relationship
A:
C:
I: Is there a contract?
R: Contract
A:
C:
I: Did D vol. assume & sec?
R: assume and seclude
A:
C:
Using the facts, do you have any other arguments you think need to be expressed?
Conclude Failure to Act:
Will the court likely find that D owed a duty to V? If so, what duty or duties and why? If not, why
not?
[END OF COURSE MATERIALS]
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