January 15, 1999

New number: 575-14-7170

Can get 30 points extra credit by volunteering at the law clinic.

Research report due next Friday

Research Report Header:

To: Mary J. Novak

From: Counsel for WCG&E

Issue #1: ID#

Issue #2: ID#

Date: January 22, 1999

RE: Research Report

Moot court assignment is not directed research. We research, find the cases, choose which cases to use in the brief, and then argue then. Leaves a lot of room for error. Be careful.

Research Report Info!

Wants us to research the cases on our own. For the research report we turn in a list of cases that we found and she will review them.

No CA law or Federal law (ADA or CMLA) relate to this issue. Do NOT use cases which involve the ADA and cite the FMLA.

Research Process:

Comprehensive statutory schemes as well as regulations:

FMLA applicable law here – how would you go about finding it?

• go to the US Code Annotated (has the cases compiled under each statutory section); look in the index called Popular Names – would give citation to the first act in the comprehensive scheme
• then go to annotated version and look up that cite
• often statutory schemes are not very specific
• issue interim regulations that were in effect for some period of time (some cases were decided under these regulations which sometimes were different than the final regulations) – this can often make a difference whether case is applicable or not.
• Regulatory agency takes comments on interim regs and then changes final regulation to fit the comments somewhat. It also includes information on the final reg on what the comments were.
• The Federal Register contains all the comments and information about what the result was based on the comments

Federal Register – a daily release of all that happens in Washington. Federal Register citations also have citations.

How would we find FMLA regs or preamble: go to Code of Federal regulations. There is an index and then look up family leave, or look up authority (2654) and then you would get cite. Make sure you check for updates when looking for regulations. But we need to use regulations that she gave us.

Legislative history: we have to go find it ourselves. She did not copy it for us. Check the history to see if the legislature talked about these issues when it passed the FMLA. Only going to do the Senate report here.

• look at 1993 US Code Congressional and Administrative News, Page 3 – look at the Senate report AND the Presidential signing message

CASES: use to figure out how the courts have interpreted this information

US Code Annotated is the first place to start when looking for cases

Brown v JC Penny – for issue number 1

Brannon v. Osh Kosh B’Gosh - for issue number 2

Start with these cases, Shepardize these cases and then look for cases which have interpreted a serious health condition.

Keep a list of cases you have rejected so you don’t have to go back and forth a lot

RESEARCH REPORT:

No more than 4 pages total. Two for each team members. Issue number one put header, issue number two just put issue number 2 on top

Include the sections of the statute and regulations you believe relevant to issue, pages of the pre-amble, legislative history you believe relevant. Give cites, and list statutes and regulatory sections.

Give a list of cases you find relevant and a one sentence statement as you think are relevant. There are more than 10 cases each of us needs to find. Make sure every cite is in proper bluebook form.

Plan on spending lots of time on this – took 40 hours of research for this when did not go online. Might take less time this year because we can go online.

She will be in office hours next week Tues and Thursday

January 22, 1999

Ch 15 – how to write an appellate brief

See page 115 for example of how to do our outline

• also put name of case that you plan to use in your outline

Outline – 8 pages, 4 pages each

Do a cover page that has header page – so that both person gets equal space

• outline is single spaced

Brainstorming sessions start next week – Wed and Friday

Argument section is 10 pages each

Facts, table of contents, summary of arguments, table of authorities – other 10 pages each

Total length is going to be 40 pages

• see appendix F for a sample brief in Shapo
• two main arguments in the sample brief
• under I there are 4 arguments (see page 388)
• is exactly what we will do

structure of our outline

I. issue one part A – coverage of funeral arrangements

A. argument one

B. argument two

II. issue one part B - notice issue

A. argument one

B. argument two

III. issue two - incapacity issue

A. argument one

B. argument two

C. argument three

D. argument four

Supreme Court info

• writ of certiorari

company needs to understand what Bayne argues so that it can respond to those arguments as well in its brief

strategy – set up legal traps for opposition

Supreme Court precedent – only other USSC cases

Cruz – issue number one – some cases were not published; this is one

How to find bizarre cases:

• use Shepards specialized collections such as Shepard’s Labor Law Protections, also like Wage and Hour reporters

research reports turned back by Monday morning

cases should be read and sorted through by brainstorming sessions next week

Brief them by summarizing facts, then give courts rule/reasoning

Issue number 1 should have at least 13, use a lot more leg. History, preamble arguments, etc…

Issue number 2 has at least 20 cases – does not have to deal with regs as much

Next week we look at primary four arguments each will make; come in with proposals to brainstorming sessions for arguments to make

Focusing the issues:

• notice issue under issue number one –
• Do not focus on what employee needs to say to employer
• Bayne has properly given notice for FMLA here – this is not an issue here!
• NOT 825.300 – notice by way of a poster
• 825.301 – this is what we want!!
• NO discussion here about 12 weeks

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January 27, 1999

Advanced training available from Westlaw and Lexis is available in the library this semester

Reminder: outlines due next Monday morning in her office. 4 pages each, single spaced, cover page with header

Header is the same as before except:

Re: Outline for Argument Section of WCG&E Brief

Outlines will be returned next Thursday

Brainstorming session issue 1:

Next week will be how to do advocacy briefs.

2612(a)(1)(C)

• this is what gets our section going
• this is where we start brief to introduce to the court where we are

2611 – serious health condition

• this is the next paragraph in brief (or short section)
• this must be introduced to the court in our analysis

825.116

• basic needs
• pysocological support
• make sure you say this to give background
• also then mention 825.116(b)

Statutory section relevant on notice issue

2615 is one of the two arguments for notice issue

825.301 is the section in the regs

-

what do cases say generally:

A. funeral arangements

• all cases say that funeral arrangements are not covered

B. notice issue – seems to fall into two categories:

1. cases that support Fry (LaCopra): if the employer’s notice was inadequate and there is a causal conection between that inadequate notice and loosing rights under FMLA then there is a 2615 cause of action
2. other line is Beal (and Sherry – opposite of Beal, Krohn) – if an employee not able to get FMLA coverage anyway then the company is not liable. There was no FMLA coverage in the first place, therefore not notifying cannot qualify you for FMLA. You don’t give the notice, does not matter they were otherwise covered, they get coverage (this is Sherry – you fail under 301 they get coverage) Beal and Krohn opposite of Sherry: they did not have coverage to begin with then 301 does not give them covereage.

First logical argument that company would go after:

Good case for the company that will really go after: Brown

• start with statute (just like Brown does – might be a good idea to follow layout of Brown)
• lay out appropriate statute and regs – just like Brown did, then
• Brown says: funeral leave not covered because coverage is limited to problems that afflict an individual who is alive (STAY WITH THIS THEME – use statute and regs to support this; legislature was looking for coverage of the living)

ARUGUMENTS FOR COMPANY OUTLINE

1. Funeral arrangements

1. statute and regulations (can use Brown and other cases that lay out this argument)
2. Legislative history – goes through the long leg. History. Put this stuff in brief. Like BROWN did!. Statute was meant to give coverage of living. List every case with little parenthetical explanations that mentions legislative history.
3. Policy arguments – Brown was worried about over extension of FMLA; no guidance in statute about where to cut off FMLA coverage

1. Notice issue (don’t really separate this into sections – just do one biggish section)

• lead off with strongest (Beal, Krohn, à distinguish Sherry) (one or two paragraph argument)
• even if a claim does exist under 301 oversight, this did not cause him to forfeit his FMLA protection because he does not have any protection (go into causation – use notice cases – Bayne failed to have causation – he was not covered anyway!)
• might argue that he would have returned to work had he known (but then we can argue that if he could have returned to work, then his health condition was not really that serious anyway…)

Might want to give a little less emphasis to notice section as this is the harder section for us to do. SO give lots of info for part I and then do notice issue a bit quicker.

Look at Krohn to explain Beal

Look at Kelly v. Crtosfield Catalysts, 962 F. Supp. 1047 (N. D. Ill. 1997) has a good listing of general info about policy arguments – makes argument for company that FMLA cannot be too broadly interpreted (mention that Bayne went through a hard circumstance but can’t too broadly interpret FMLA)

We will use a lot stronger language than in memo. Be an advocate!

BAYNE ARGUMENTS ISSUE ONE:

1. Funeral arangements

1. statutes and regs. (use Hodgens)
2. invitation excepted (Brown invitation to put a limit on this interpretation – Brown is worried about companies putting too broad a limit on interpretation of FMLA – tell court what the limits are (but Funeral arrangements are covered) – Brown says that some people can take extra time off for funeral leave depending on relationship with parent etc.. limited to certain individuals says Brown) – limited judicial extension because of the FMLA; court has limited FMLA leave – how much you can take and who it covers. So if someone is already out on leave then they can stay out a little bit longer to take care of other issues. This is what Brown seems to imply CHECK THIS
3. (maybe can do policy here if want to and do section II as one section)

1. Notice

1. Sherry à distribute Beal and Krohn
2. 2615 (response to causation argument – if he would have given notice he would have come back to work, policy between FMLA was to help Bayne choose between job and personal needs