MY NOTES

OCTOBER NOTES LARAW

October 2, 1998

Supra, hereinafter are not used to refer to cases. Almost never use supra.

TOPICS for Today

Putting the research together

Final research and writing assignment

Talk about last assignment

Putting research together

Write down facts while talking to client. Then determine what general body of law is involved (torts, contracts, property, jurisdiction…)
Research methodology depends on nature of the problem and familiarity with the area of the law

first question: what jurisdiction?
State law, what choice of law?
Is choice of law different than state you are in?
Is it federal and state issue? Then have to deal with preemption

once decided jurisdiction, and type of claim, need to get clear what is persuasive and binding authority. Might want to check 42-44 in Wren (a chart of persuasive and binding authority on different issues)
make sure we do not research in areas that are irrelevant to our problem
persuasive authority is only helpful after we have found binding authority
if a statute is involved, this is very important. Read the statute and make sure you understand it. Then find out how statute has been interpreted (annotated codes, headnotes in the annotated codes) Check pocket parts also to make sure if the statute has been overturned, overruled, etc.. Maybe check the pocket part first
check cross reference section in the annotated code
statute is not always involved (might have a common law problem)
if don’t know any cases that pertain to the issue, use secondary sources

Llyod v Murphy, Dorn v Goetz – two cases we already have on frustration of purpose.
Use descriptive word index to look up keywords
If have a case, look at headnotes for key areas of law
Skim cases once we have found them to make sure they are relevant. Then shepardize them.
Only look at law review articles after you have a good handle on the area of law you are looking at
LR articles can be good for interpretation of statutory schemes

How do you know when you have done enough research?

you will know it when you see it
when you see the same cases over and over again
make sure you Shepardize at the end of all research

want cases to be analyzed more deeply, cases due next Friday, the outline is due the next Friday, polished draft is due October 26.

Need to give better descriptions of the cases

Also need to lay out law completely before laying out our case

Need to use the cases – can lay out cases, but make sure we use the cases in the analysis. Don’t use adjectives. Be objective. When referring to a Supreme Court, make sure you capitalize Court. (just for supreme courts). Only if it is binding authority you should capitalize the C.

Why is knowledge needed in rule of practical construction??

point of attention. Cannot follow or interpret terms of the contract if parties did not know about it.

Review of the memo:

Parlays situation is more like warner thatn that in crestview. After tanner heard that arb repealled… analogous to warner (explain why).

----------------

October 7, 1998

Legal research

Law can change in the middle of research. Have to be careful. See page 90 of Wren.

Lloyd is our most pertinent case – because it is a Supreme Court case dealing specifically with frustration of purpose.

How to know if Lloyd is about to change:

Can look at recent cases to see if there is a conflict on how to apply Lloyd, a subsequent issue that is on review. Can also look at ALRs – these will tell which issues are about to change.

Good to look at Witkin on Contract – narrows down the cases we need for frustration of purpose. Do Cal Digest (west), then do Witkin, then Shepardize lastly.

Start with Lloyd, and get cases newer than Lloyd.

Taking notes while researching (see Wren).

keep a list of case names and citations you have looked at
do not stop reading a case when you come across a citation that looks good. Finish the case and then go back and check the citation later.
When you reject a case, indicate why you rejected it
Find a rule for doctrine of frustration of purpose – need to mark cases that have this.

What jurisdiction are we in?

California; binding jurisdiction is State Supreme Courts, Superior Court Appellate division courts (might not be real binding, but very persuasive – Novak will take it as very persuasive)
Federal cases are persuasive authority, but not binding. Very persuasive. Include it on our list of cases
District courts of appeal are binding (in our district, 6^th district)
Also want to pick the venue correctly

Any cases in which the theory of frustration of purpose has worked to get the person out of the contract?

Need to find this case – in LA somewhere..
Lloyd is a lease case

How many issues under doctrine of frustration of purpose?

foreseeability
total destruction of value of contract (destruction of purpose of the contract)

We will need a huge discussion on what was the purpose of this contract in our memo!!!

California digests are best for cal cases and relevant federal cases.

----------------------------------

October 9, 1998

Use the following cases for memo:

Dorn

Lloyd

Federal leasing consultants

Why not Winstar?? - because it does not interpret California law, cites Lloyd, but does not say anything more than Lloyd already says.

Lloyd is the best case.

20^th Century Lites is good for facts. But it is out because it is inconsistent with Lloyd. Lloyd: The whole purpose must be destroyed in order for frustration to be an excuse.

Outline Instructions!!!

See page 131 Shapo – an example of a very basic outline.

List broad issue

List each summary of each case you would talk about under that issue

Alternative is a more detailed outline – see page 133

Do this one!!

Rule, brief case description, application of case to our facts, opposition, rebuttal.

Single space the outline, don’t worry about citations. Give a one line rule, then put in a few cases. Single space the outline – no more than 3 pages.

May want to set out what you believe you will is the rule of frustration of purpose at the very beginning of the outline. Also say what case you got the rule from.

Do not put a question presented on outline!

Frustration of purpose analysis

it is possible to come out either way in this case
rule of evidence to be included and not included: can talk about what was said when forming the contract, but nothing later. Cannot use June and July payments or conversations.
Can admit evidence as long as it is not for purpose of practical construction
The parole evidence can come in for contract interpretation
Anything subsequent to contract formation is not parole evidence; is subject to rule of practical construction
What can we talk about after June second telephone call?
Need to figure out what evidence is in or out before we can do analysis.

In a prior memo we determined the June 2 telephone call, and the June and July payments are not admissible under the rule of practical construction.

Not real clear whether Thayser’s offer is in or out.

-----------------------

October 16, 1998

Use of ellipses and quoting paragraphs. Page 45-47.

Polished draft due October 26, 1998. Due Monday morning at 9:00am (this gives us two weekends). Final paper due Thursday at 9:00am – November 17.

Synthesizing cases

Writing about more than one case

How to structure discussion

Synthesizing the law

use charts

in the charts to compare the different factors

Headings you can put in a chart

case or statute

facts

issue 1 and holding

issue 2 and holding

issue 3 and holding

General principle, and relevant factors which have evolved toward that principle

When using a number of cases do not have to give all the cases equal weight in the discussion. Can use cases for different purposes. Like one for rule maybe.

When there is more than one element, you need to go through each step for each element.

Rule, precedent, facts, compare to precedent, opposing arguments, rebuttal, conclusion

See page 114. All steps can be done in one paragraph. Like Foreseeability might be able to be done in one paragraph.

Do not need a topic sentence for every paragraph – just good trasistions.

Use of parenthetical discussion when elaborating use of law. Lloyd and Dorn seem very similar. Both can have the same general rule. Say rule from Lloyd, and then do a parenthetical with simple facts from Dorn. – this is only for foreseeability section!

See Shapo 135 for how to get started writing. Review all of this. Also look at the revision checklist she gave us.

Don’t need to discuss the modification of contract in this memo.

Facts

Should not be exactly the same as last time (because the issues are different)

Go through the facts that we say we are not going to talk about.

Reader must be able to see relevance of this evidence

Also she has added facts

Don’t forget transition paragraph at end of facts:

Rather lengthy – Only issue this memo will consider is frustration of purpose. cover the prior memo that we wrote, and its conclusion, in prior memo it was concluded that the statements are likely not admissible for purposes of interpreting the contract under the rule of practical construction. Also say that any evidence used for purposes of interpreting the contract subsequent to the May 1998 dispute is not admissible and cannot be used . Say that the contract negotiation statements ARE admissible under rule of parole evidence.

Short answer

NOT NECESSARY in the first draft! If our analysis is not correct, there is no point in writing this.

Question Presented

Do this!

Discussion Section

Thesis paragraph

One line statement to the question of presented

Is she excused from performance under doc of frustration of purpose?

Use a quote of the rule here

Section Header – foreseeability

Transition from thesis to this section – can be the topic sentence

Talk about the cases (paraphrase what we learned from the cases – description of Lloyd, see also Dorn with small parenthetical)

Say there are 2 frustrating events on foreseeability

Now conclude as to the frustrating events as to whether they were foreseeable or not (carry the one unforeseeable into the next element)

Section header – destruction of value of contract (or say purposes – just be consistent)

TS: Even if x not foreseeable, that unforeseeable event cannot be used for excusable under d of frustration unless….

Determine purpose of the contract, and then say if that purpose destroyed or not (TWO STEPS) - put this in a mini thesis paragraph. Set out there are two steps. Might need to paraphrase the rule as there are no good formulation of the rule from the cases

Purpose of the contract

Cases – tell what cases say how to interpret purpose of the contract

Set out our affirmative case – what we believe is the strongest case for the interpretation of the contract

Give some opposition to the purpose – use the facts of the cases in the opposition, May not need to use all the cases in the opposition – give one argument

Rebuttal – evaluate the opposition

Conclusion as to what the purpose of the contract is

Frustrating event through the purpose: take one purpose we just found and say why it is or is not frustrated, by the frustrated event which we found above (in the prior section) – don’t need to use the cases much. This is more factually oriented than law oriented.

---------------------

October 21, 1998

Blue book rule – signals – page 22, 23

See also, see, but see, see generally, see e.g.

Rule on parenthetical – page 27

How to use the cases better.

Broadly cast a rule from a case and then how to synthesize that rule

rule represents how the court addressed that issue
only the narrow holding is what is binding law
then litigants try to fit rule to clients needs
broader the rule, the more cases that will fall under it
if a judge does not want to follow a case, he may try to define it narrowly, or say it is limited to its facts (so specific that the rule cannot be generalized)

Examples:

law of gifts require that delivery of the item be given

Dicta

language in a precedent case that is not necessary or binding for the present decision
non-authoritative statements in the courts decision
dicta from higher courts are very important statements – signals on how that court would rule in subsequent cases. Can disregard dicta from lower courts than higher courts.
Some courts interpret dicta issue broadly or narrowly – if you say it is dictum then it is not a rule, but then you can say it is not dictum and is a holding

Need to get the general rule from all the cases, and issues!!!!! We need to read the cases first and then figure out the rules, and THEN we need to determine what analysis will be.

READ THE CASES MANY TIMES

When dicussing the cases, make sure you give the general rule first, and then explain the case.

We need to find general rules for:

Foreseeability – general rule from Lloyd, quick discussion of Lloyd (three things were going on which led to find that this frustrating event was foreseeable), see also Dorn, with parenthetical explaining Dorn (probably one rule, and both cases support that rule)

- potential rule of foreseeability -

Purpose – articulate this VERY clearly as to what the purpose of the contract is. How to figure out what the fundamental purpose is.

Federal Leasing - Purpose cannot be construed so that it is ludicrous as to the purpose why people entered into the contract. Then we need to get into how do we tell that is the fundamental purpose

a. Issue of purpose

b. Destruction of purpose

Say "one potential frustrating event" is …….. instead of one alleged frustrating event

If we are going to make distinctions, make sure we make the distinctions when they are relevant

Use general neutral language – alter quotes if necessary. "When a person enters into a contract [one] assumes the risk …." Etc.

Interpret purpose against the drafter

-----------------------------

October 23, 1998

Nov 4 – bring a joke.

Papers will be in boxes on Nov 2 – Monday morning.

Final papers due Thursday Nov 12

That week offices hours will be 9^th and 11^th

Nov 6^th – preliminary oral advocacy speaker. Class begins at 11:45

Writing tips:

Who is doing what to whom? This is how our sentences should be written.

Should not begin sentences with "it" or "there"

It is possible for the court can modify the judgement.

The court can modify the judgement

The court offered no reasons for denying punitive damages.

Section 1038 has pertinence to any contract that makes provision for attorney fees.

Section 1038 pertains to any contract that provides for attorney fees.

Passive voice: subject of the sentence should do the active

The ball was kicked. He kicked the ball.

Use active voice.

Rules of the game:

Word count
Bidding: I can rewrite that sentence in X words (less than original) if you can’t do it, it go to the other side
Challenge the other side to rewrite also
The meaning of the sentence must stay the same

It is not necessary for the witness to sign the deposition transcipt until the errors are corrected.

Witnesses must not sign uncorrected transcripts.

Nothing tells us whether misconduct by trial counsel influenced the jury.

Nothing says trial councel misconduct influenced jury verdict.

Unless you cause delay will agree with your position

We agreee with your position unless you intend to cause delay.

We will opposse your position if you intend to delay.

When monthly price lists were exchanged, d manufacturer agreed sales would be made at least list price.

Rules of purpose:

Lloyd:

purpose was to sell new cars, but it also contained other uses. Can’t take just one of the aims of the contract and make it the sole purpose when there are other purposes involved.

This case indicates a trend in the courts for broad interpretation of the contract. Federal Leasing underscores this. Cite Lloyd generally if we use this rule. Then you can go on to tell what happened in Lloyd in order to support this rule.

Rule on destruction of purpose: in second step, make sure you use "if the contract is made more expensive by the frustrating event, this is not frustration"

Federal Leasing:

As a follow up rule to Lloyd: the courts look at the intentions of the parties to make sure the contract was not ludicrous. Give the examples of why the narrow interpretation is ludicrous. Specific purpose and narrow purpose are different. Need to look at intention of parties, to see if as narrowly construed, would have they ever entered into that contract. If not you can tell that the purpose was not the real narrow one. (federal leasing should have sued the manufacturer of the radar)

Dorn:

Purpose must be shared by both parties. The fundamental purpose for entering into the contract, which its is claimed has been destroyed by the supervening event, must be recognized by both parties.

his whole intention for moving to CA was to develop batteries in general (this could be an argument for the broad purpose).

Opposition arguments:

- language of Lloyd is different (no way she can get around Federal Leasing). The contract in Lloyd was different. There is not a provision here for broadening the purpose as there was in Lloyd.

Destruction of purpose section:

Should be a one paragraph analysis
Broad purpose, like Lloyd, simple just makes it more expensive for Tanner. Then give small quote from Lloyd on that expensive section.

Most of these other cases, is that parties are trying to fit their construction of the contract in order to fit the frustration event. This is the fatal flaw.

Need to look at what was going on when the parties entered into the contract. This is what courts have done also.