February 5, 1999

Tuesday February 16 is a administrative holiday – Monday classes meet on Tuesday

This weekend write the argument sections of the brief.

The Monday after spring break the briefs will be returned and the conferences will begin that week.

When you file a brief in any court there are many rules to follow:

• format
• sections required
• every court is different

statement of facts – longest section we write together

400 points for arguments. Total is 600 points for this project.

Statement facts - have one person write it and the other person edit.

There are 6 briefs in the library that we can see. In reserve section under her name. Formatting for them are different than ours. They are their for examples of advocacy writing. Also can look at headers and sub headers. Make sure we understand style before we sit down to write the brief.

Read Wren chapter on finding the law – read it again as it will make more sense now. Look at the flow charts.

Parts of Shapo that are most important for our draft:

• Appendix F is similar, but note exceptions in handout she gave us!
• Page 388 Shapo for info on headers and subheaders – VERY IMPORTANT
• We will pull our headers into the table of contents
• Draft with this in mind
• Conclusionary sentences that combine facts of case that tells court how we want to come out on that issue – generally combine facts of case, analyzed in that section and are stated in a way that you want the court to come out on that issue
• Vary depending on type of argument – if legal argument will not have as many facts in header or subheader
• EX: 2615 arguments are factually driven so this will be in header
• Less facts in sections covering funeral arrangements because these are more legally driven.
• SEE page 285 - … in Shape with lots of samples
• Use chapter 15 exercises and then use teachers manual she gave us to see the answers
• Do reading in Shapo for next week NOW before writing argument section
• Thesis paragraphs: see Shapo starting 291 (writing a persuasive thesis paragraph); follow this making best effort in first draft
• Concise, affirmative layout of law: Shapo 297 – tells how to do this; do not do long and laborious recitations of the law; need to fully paraphrase essential items of the law we are citing so the court knows what we are doing
• Make sure to argue facts when dealing with an issue that is not purely legal
• Many people said 2615 in outline but did not put facts in. Make sure to use facts
• Addressing other sides arguments: Shapo 311 – make counter arguments affirmative
• Follow Shapo like a workbook, we are learning a process

Writing persuasively to the court:

• have audience in mind; each court is very different
• some courts need less education in certain areas
• however, courts like the USSC need more education because they see lot of different cases
• USSC has never ruled on the FMLA so we will need to do a lot of education mostly in the section "statutes involved"
• Hand the court the law in a concise but through way. Write for sophisticate and intelligent but naive reader.
• Do all the work for the court
• Judges often lift text from winning side’s brief to put in their opinion – this is a compliment; write with this in mind
• Write in persuasive yet objective looking manner
• Don’t use a lot of adjectives
• Let nouns and verbs that we choose send the message instead
• WCG&E will call it an oversight, also called a "service provider"
• Bayne had a history of over using his vacation time
• Choice of facts becomes very important in statement of facts
• Briefs usually (good briefs) have themes. We need to think of a theme…. Weave it in but don’t make it look contrived
• Example of theme: access delayed, access denied (variation on the theme of justice delayed, justice denied)
• Don’t go too crazy on theme….
• Insert exact footnote she gave us in issue number one arguments – the first time we use a

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NOTES special session for company

Can refer to Bayne as petitioner – want to take away personal stuff

1. Header: The FMLA excludes coverage for attending to the personal affairs of the deceased. (From Chis Jostlen) Do something like "The FMLA excludes coverage for . . ." (be more precise than Chris) OR you could say "The lower courts were incorrect when they . . . . ." (say what lower courts did)

THESIS PARAGRAPH (see Shapo)

1. Sub header: The plain language of the FMLA unambiguously excludes coverage for attending to the personal affairs of the deceased (from Chris). BETTER: The FMLA and Regs. only cover serious health conditions affecting the living. (this is our theme for this section)

1. say what lower courts did – tell the court where you are going and why you are going there; can characterize this well. "Contrary to the statute and the regs the lower courts did this…. And now let us tell you why this is wrong. The lower courts erroniously did….."
2. start this section with: statute mention – start with 2612(a)(1)(c)
3. do we need 2611(11)?? à yes, because we need to explain that it is coverage of the living

1. 825.114 will allow us to go deeper into this (optional – depends on how you want to go about this
2. look at Brown to see how they do it. DO IT LIKE BROWN or better. Do it at least as well as Brown

1. talk about this language and make sure you say that it covers serious health condition of the living; say how the whole statute is about the living. And give statute references to get you there à use Brown, but do not need to necessarily cite it. On their face, the statute and regs are very clear that they are only about living (don’t forget to put that footnote that was given in class today first time you cite the regs)
2. also talk about how 825.116 is not inconsistent with above statutes – just talks about managing details of the care of the living; this is a nice way to end as we have a really affirmative way of seeminly blown them out of the water

1. Sub-header: The legislative history and caselaw underscores the conclusion that the FMLA in total is limited to individuals who are alive.

1. start off with a transition; just a (the legislative history is consistent with the regs…. Etc) probably just part of a sentence
2. look at care for an elders section…? In Leg. History (if duplicates exaclty what is in statute probably don’t need it) page 11.

1. Section 30-31 is good. Do not put a quote as long as the one in Brown. Use excerpts from it.
2. Two different approaches: legislative history underscores it: Look at illnesses that are listed, and then also look at part that is about taking care of elderly parents

1. now list all cases and courts before ours that has decided this the other way…
2. now to end this section do: Mr. Bayne does not have a judicial remedy, but should go to the legislature to get the legislation amended…. Something like that

1. Sub header: Incorporate the global marketplace arguments

1. Look at Kelley case: the FMLA does not cover every family crisis that comes up. Kid gets arrested, has a cold, FMLA does not cover it; use those examples or come up with some better arguments. Come across as a reasonable employer. Unfortunately for him, the FMLA does not cover every family crisis. . .

1. FMLA only covers four situations:

1. first situation:
2. second situation:
3. third
4. fourth

1. slippery slope, where to draw the line, how long it should be – this is the Brown concern. We want to elaborate on this.

1. not a comprehensive family crisis statute
2. no guidance on how the FMLA should be extended (this is the Brown concern)

1. come up with affirmative responses to what Bayne is going to argue (inherent limitations that are enough to make this extension warranted . . .) if you can’t do this well, then don’t do it. Say we do not disagree with Hodgens, that it should be a broadly interpreted statute, but only for the purposes of the living, since that is what the legislature intended. Would be an effective thing to do since Bayne’s council will be using Hodgens a lot. Many remedial statutes are broadly interpreted (as in Hodgens). The FMLA must be broadly construed since it is a remedial statute (such as the ADA is). Clearly a remedial statute because emploees made all this hassle for the companies and this is neccesary. Just say Hodgens cannot be too broadly construed.

1. Header: No notice does not equal coverage (mine is similar to a good one, but probably too wordy).

1. Transition and thesis will be one paragraph. NO sub headers.

1. explain to the court that 825.301 requires notice. Fess up that the company did not give notice, but do it in a way that makes it sound like it was no big deal; also explain facts in this section…
2. Beal and Krohn, distinguish (call eronioeus) on Sherry

1. Beal and Krohn: the difference between these and 2615: sherry erroneously says that if you violate 825.301 it simply says if ther eis a violation that is all you need to show, you don’t need to show anything further. This is enough to preclude employer from dening coverage – Beal and Krohn says cannot create substantive rights by a mere procedural failure of the employer.
2. Sherry: 301 violation no matter what there is coverage for employee that failed to get notice (causation does not matter); emplopyee was not eigible in Sherry, but because the employer
3. We need to figure out to lead with the cases or 2615 first or not..)
4. Maybe show 2615 and how Bayne losses and then mention the cases in quite short and summarily…..

1. 2615 arguments

1. violation (call it a failure (at most) ) – find which case is best for me and find same causal link problem; does not create this coverage. He never had coverage.
2. Causation (talk about how his own health condition does not qualify for FMLA coverage, because if he really did have a serious health condition, our failure to notify him really did not do anything. Because he will say "I could have come back to work" then he really did not have a serious health condition… LOTS OF DEBATE WILL PROBABLY TAKE PLACE HERE
3. forfeiture

1. say that the Violation Caused the Forefeiture
2. we want cases that show that 2615 has not worked

1. Mora – look at reading the notice issue in grand scale (might want to review this argument made in this case)

If we allow employees to call in sick and let them use own testamony then there will be too much use of the FMLA

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February 12, 1999

Briefs due Tuesday at 9:30am

Need not use all cases in brief. But must use at least the primary cases and the opposing cases. Must let the court know of the opposing council.

Week after spring break is conferences – no office hours, but will have extended office hours the next week, and special appointments

Have correct color folders when submitted to the other sides.

Red and light blue

Title page

Cover page

Question presented.

Must mention the FMLA in question, This should not be an abstract question . Should contain some abstract facts, but not too many. Identify the parties by general description. (employee/employer) Because names will not mean anything to the reader. Suggest the answer that you desire. Inappropriate to state a legal conclusion in the QP. Don’t assume a conclusion as part of the QP. Don’t give part of the case away directly or implication in QP. See question number one in sample brief for good example (plaintiff’s version).

Table of contents

Headers and subheaders should be persuasive. Header should use facts, if is a fact oriented section. Example is that interference section in issue #1. CHECK THIS!! Make headers easy to understand. Use positive, active voice, statements (unless you want to deemphasize something – then use passive voice)

TABLE OF AUTHORITIES

List in alphabetical order. This is how we figure out which are the first two to list. No extra credit for giving a whole table of authorities.

STATUTES INVOLVED

Usually also include the regulations. Set out full text of relevant excerpts of statutes we are using in our brief (1 page – 2 pages). Follow the example in the handout. In our brief ONLY include STATUTES. In excerpted form. If we get date correct in statutes involved, we don’t need to put the date. JUST make sure you get the date correct in this section.

STATEMENT OF FACTS

Include all facts that are material to the case. If you have a fact that you know other side will use to do harm to you, and you can put a positive spin on it you might want to include it. Bury damaging facts. Bayne’s employment was terminated following his return from leave (instead of saying The company terminated Bayne’s employment). Be careful not to put legal conclusions in the statement of facts. Personalize your client.

SUMMARY OF THE ARGUMENT

Pure advocacy. No example because too similar to what we are doing. Only include favorable arguments. NO affirmative rebuttal stuff. One paragraph for each of the four sections (four paragraphs for each person). This section should not be too long. Make sure that everything you put in summary of argument is in the actual argument section. Start each paragraph with an affirmative statement of your position, then spend rest of paragraph telling reader why (supporting first sentence). NO case sites in this section. Most likely we do not cite any rules or regs. Explain rules and apply it at the same time (if you know how – othewise use IRAC). Summary should be able to stand on its own and be understood in absolute isolation. 2 pages each should be plenty for each person for this section.

ARGUMENT

Use a brief introduction to the FMLA as is used in example page 11. JOINTLY graded. Similar to example.

CONCLUSION SECTION

Just use the short statement from Shapo. Alter it to fit ours.