September 4, 1998

Conferences are optional

If only general comments probably means you missed the point.

If lots of specific comments means you got the information down better.

Memos will be in boxes by Tuesday

Outlining – take what you have gone through in a class and synthesize it all together.

Example: in contracts do section on Contract Interpretation

Synthesize the rule from the cases . Maybe just put facts from one or two cases relating to rule for each subject matter.

Should sit down and re-write notes every day.

Process of a civil law suit:

I. Federal System

1. federal rules of civil pro control civ pro in fed jurisdiction

II. State rules of civil procedure

1. each state has their own

First step:

1. File a complaint in the courthouse

1. Sets out a jurisdictional bases for court to hear claim and specific grievances.
2. Must at least disclose theory of liability as well as basis for law suit.
3. States allegations, does not prove case. Just statement of facts and law to set out claim.
4. Usually signed by client (under penalty of perjury)

1. may file but then won’t tell other side about law suit for a long time.
2. Will let statute of limitations run for awhile

1. must either answer complaint by admitting or denying each of the allegations.
2. Or they can file a motion to dismiss (often in big cases with lots of money at stake)

• asks court to dismiss cases because of absence of legal grounds. Do not have all the elements required for that type of suit. So try to get judge to throw case out.
• This is also called a demurrer (in state system called demurrer, in federal system called motion to dismiss)
• Court then decide if all facts are true could constitute a legal claim. If yes then case can go on.
• If demurrer is granted, the P has chance to amend complaint. If cannot fix it the case will be thrown out with prejudice.

4. After dismiss phase: discovery process

1. depositions

• find out what parties know
• also can depose 3^rd party witnesses

1. interrogatories

• written form of a deposition
• write lots of questions that other people answer by writing

1. document requests

• ask for every document other side has about the case

1. asks court to decide case without a trial
2. one party can bring this motion, and say the facts are plain. Based on the facts, even in the best light for the other side we still win. The facts prove one side. Submit all the documents which prove your side.
3. Either side can bring this. P can even say that other side has admitted they were wrong and all court has to do is decide level of punishment.
4. No live testimony in summary judgement. Only lawyers argue case in front of judge. These hearings can go on for a very long time.

6. motion for directed verdict (called a non-suit)

1. often happens during a trial. Usually P presents cases, and then D can make a motion for directed verdict.

1. last chance for case to be thrown out.
2. After jury makes decision, a side can loose, but then they ask court to throw this jury decision out (directed verdict - motion NOV)

1. motion for a new trial

1. separate thing that comes after a side losses
2. say there should be a new trial because there was an error legally in trial.

• error in law
• error by judge
• wrong charge to jury

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September 9, 1998

Review of memo

Think of reader being completely ignorant about case.

Make sure you read all of Shapo stuff. Put it in writing

Verski memo was very good sample to go as

Preciseness is critical in word choice.

Dr. Richard said "I want to get out of the contract" assignment was whether he could be excused from performing the contract by operation of law.

K - contract in notes

Refer to prior cases in past tense.

Use first, second, third instead of firstly, secondly, etc…

Use exact language of the statute and exact language of the contract when analyzing the contract. Use quotes.

Don't use the word CLEARLY

When you do rebuttals need to directly respond to the arguments.

Using cases:

What was the exact statutory language you were focusing on when looking at main issue?

What is the rule from Dorn?

• When the inability to perform is merely temporary it does not effect the essence of the contract
• Particularly if the delay caused no damage to the other party

How does this rule apply to this case?

• the inability to perform goes to the essence of the contract. His contract seems to have been permanently delayed.

Opposing arguments.

How would NP argue Dorn? Would they say rule is different? No.

• would say facts in Dorn are similar to their case.
• The FDA decision would not affect the essence of the contract
• No dispute about the rule

Would put rebuttal in to that argument.

Go through a sample now…

FACTS

1. context for facts
2. introduce other party
3. give reader some background of what is in contract
4. needed to quote purpose of contract
5. also quote choice of law section
6. narrow focus, other issues are likely… This memo discusses only the issue of whether Dr. Richards can be excused from performing his contract under the Cal Civ Code 1511.

QUESTION PRESENTED

Can DR R be excused from performing under the contract he has with NP by operation of law pursuant to Cal Civ Code 1511?

APPLICABLE STATUTE

Use this heading:

"Cal civ code section 1511 provides in pertinent part as follows:"

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September 11, 1998

More review of single case exercise.

Do way Shapo describes it Pg 79

QUESTION PRESENTED

APPLICABLE STATUTE

Need the cite to be correct: Cal. Civ. Code Section ("Section 1511") Part in parenthesis is how it is referred to in rest of memo.

SHORT ANSWER

Discuss all issues in the short answer.

We had threshold and main issue. Follow format of discussion.

Dr. Richards can most likely be excused from perfromring under the contract pursuant to sect 1511. As a threshold manner, even though the contracat itsel d attempts to waice any excuse of operation of law when it is based on a change in the law outsside the ca section 1511 specifically provides that an operatiuon of law excuse cannot be waived

One line conclusion

Issue 1

Rule

Application of facts (integrated with rule)

DISCUSSION

Thesis paragraph

Rules to be analyzed (give specific language of statute) break up issues so reader knows exactly what is going to happen.

(threshold issue - an issue that makes or breaks the case. If loose on this issue then the case cannot go forward.)

The threshold issue is whether the parties to the contract have waived the operation of law excuse for non-performance, thus making it unavailable to Dr. Richards.

FIRST ISSUE

Issue

Rule

Application

Conclusion

SECOND ISSUE

Reintroduce second issue

Take care of easy part first

Rule of Dorn (when one party's inability to perform the contract is temporary and the delay does not effect the obligations that go to the essence of the contract, no excuse exists under Section 1511.)

Explain Dorn

Apply rule in Dorn to our case (use the facts)

NP's potential arguments

REBUTTAL

Use the facts - address all that NP could argue

Quick conclusion

New topic: Secondary Sources

When presented with a new area of law the secondary sources are extremely useful.

They are not outlines.

Kinds of secondary sources:

1. Legal encyclopedias

• California jurisprudence and Anger
• Corpus juris cundum
• Caljur is the best

1. Hornbooks

• more scholarly analysis of the law
• like a treatise
• Gorbin on contracts, Procor on torts

1. Restatements of the law

• not to be cited as a primary source
• are secondary sources

1. Law Reviews

• do not read these until you know about the area of the law
• legal dictionaries are best to learn area of law
• are very narrow topics

1. ALRs

• more scholarly articles
• Survey entire country on narrow topics
• Tell what every state has done on that topic of law

1. Witkin

• put together summaries of CA law
• like a legal encyclopedia
• more detailed than most encyclopedia

1. CEB

• cal legal education of the bar

1. CLE

• training class for continuing education for lawyers
• rely on these only for

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September 16, 1998

Citations:

Bluebook (most of country) – we will learn bluebook

Orangebook (just California)

Always put the citation in the text right after the sentence where you put citation. After quote, paraphrase, or from text that is based on information on a statute of a case, you need to cite the case.

Bluebook information:

Pages 3-9

Overview of structure of bluebook and how to look at citations. READ THIS

Pages 11-19

These are most important

Practitioner rules

Example: page 11: use underscoring rather than italics when citing cases

Page 21-163

Begin the rules

Very detailed on how to put a citation together

Pages 163-

Jurisdictional citation rules

Given depending on state

Abbreviations for courts

We mainly need CA and federal rules

Page 173 – have a CA supreme court case – cite to all three cases, cite the official reporter first. Don’t have to indicate where court is from – because Cal reports only lists cal supreme court cases (ex: Crestview below)

Court of Appeals – cite to cal app. series. If before 1959 you cite to Pacific Second

Page 174 – important, more rules

Supreme Court – in documents to the SC cite all three (in legal memos). In other courts you only cite to ….?

Page 165 – Federal cases - only cite to one reporter for USSC cases. Usually cite to Supreme Court reporter

• Circuit courts of appeals – see Federal Reporter for cases. All circuits are in same book

Page 167 – more specialized rules

Page 167 top – District Courts – trial courts in federal system – are in the Federal Supplement – need to indicate where these are from (ex: John v. Marshall below)

Spaces are important in the citations

Page 168 - Federal Statutes – statutes are not underlined.

Crestview Cemetery Association v. Dieden, 54 Cal2d 744, 356 P.2d 171, 8 Cal.Rptr. 427 (1960)

Marin Mun Water District v. K.G. Land California Corp., 235 Cal. App. 3d 1652, 1 Cal. Rptr. 2d 141 (1991)

John v. Marshall, 400 F.Supp12 (W.D. Va. 1976)

42 U.S.C. § 1985.3 (1988) (the date shows the date the codebook was passes, not the date the statute was passed – if it was a supplement you write Supp. 1988 (date) – if it is in both the bound volume and the supplement put both: 1988 & Supp. 1998)

Cal. Civ. Code § 1511 (West 1982)

Only use section symbol when the section is within a citation (rule 642b p49)

Some cases we read do not always use the bluebook citation. DO NOT copy directly from cases we are citing. Only if lifting a quote directly from a case in which the cite is within the quote, use the form that the case uses.

BRING BLUEBOOK TO CLASS EVERY DAY!!!!!

Pay attention to details!!! Must always pay extremely close attention to details.

NEW ASSIGNMENT On Web page

Can cut and paste for putting facts section together. Due September 16, 1998

Will use this fact summary for this assignment and for our final assignment

IS only one issue in this. A common law issue not a statute

First step it to read cases to find what the common law rule is that is involved in this assignment. Each case articulates the rule slightly different, but it is overall the same rule. For Friday bring in what the rule is. Also figure out the facts of each of the three cases.

HOMEWORK:

Figure out the relevant facts for each case.

Get generic rule from each case for overall

Get a rule from each case with the facts imbedded into it. SEE SHAPO!

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September 18, 1998

Synthesizing cases

See the version of Pue that was given out after orientation in order to see how cases were synthesized by the court

If the court has not synthesized we have to do it

WAYS TO DO IT:

1. Group cases between conflicting rules – sort out to figure out which rule is controlling in our area
2. Multi-factor rule with cases that deal with different parts of the rule

In this assignment we have one rule and a number of cases that deal with the one rule

ISSUE IN OUR MEMO:

1. Are conversations admissible?
2. Are payments admissible?

Is this evidence admissible?

Practical construction

ISSUE: Are actions subsequent to contract formation admissible for purposes of interpreting the contract? ß in question presented add particular facts for our case

Are the conversations and payments admissible? Maybe do not want to mention subsequent actions because this will depend on how the point is defined.

Ambiguity must be found in contract before anything can be admitted besides the contract. ASSUME FOR PURPOSES OF THIS ASSIGNMENT THAT THE CONTRACT IS AMBIGUOUS. Don’t even need to mention this in the memo. ONLY DEAL WITH PRACTICAL CONSTRUCTION in memo

Rule of practical construction from each case

1. cemetery: the acts of the parties under the contract afford one of the most reliable means of arriving at their intention; and , while not conclusive, the construction thus given to a contract by the parties before any controversy has arisen as to its meaning will, when reasonable, be adapted and enforced by the courts.
2. Wolsey: Under California law, "the rule is well-settled that in construing the terms of a contract the construction given it [*17] by the acts and conduct of the parties with knowledge of its terms . . . is admissible on the issue of the parties' intent." Southern California Edison Co. v. Superior Court, 37 Cal. App. 4th 839, 44 Cal. Rptr. 2d 227, 234 (Cal. Ct. App. 1995). However, "this allowance is qualified by a restriction that actions to be considered occur before a dispute has arisen."
3. The principle of "practical construction" applies only to acts performed under the contract before any dispute has arisen. The "construction [*297] given the contract by the acts and conduct of the parties with knowledge [***19] of its terms, before any controversy has arisen as to its meaning, is entitled to great weight and will, when reasonable, be adopted and enforced by the court."

Did the parties have knowledge of the terms? Give it a sentence or two. Don’t spend much time on it. For purpose of this memo they had knowledge of the terms. She was representing the company, so you can assume that Parlay did have knowledge of the terms. Parlay drafted it so they must have it. And the researcher read it so he had knowledge of the terms. So that is all we need to say.

All of these rules are essentially the same. Can use just one of them

What does Wolsey say regarding ..

Know that the dispute arose before the parties had made it to arbitration. The court said this. Know at least a dispute has arisen when in arbitration – this is how we use Wolsey in our case.

Crestview: court did not address issue of when a dispute arose. Because everything occurred previously. Would say in positive. A dispute has arisen when parties in arbitration (Wolsey). In this case subsequent actions come in when all the facts on which a controversy can occur, but did not at as if a dispute arose. So if parties do not act once the evidence is in, and parties do not act, there is no dispute. If parties do not act as if there is a dispute, there is no dispute (for purposes of the rule of practical construction).

Warner: when parties are attempting to resolve a dispute, a dispute has arisen.

Need to figure out where we call in our current memo.

Crestview, warner, wolsey – spectrum of decisions

Discussion section:

Thesis

• one line answer
• give the rule we will be analyzing
• one line addressing of the issue, knowledge of terms

• topic sentence – figure out what constitutes after a dispute has risen
• tell reader what cases have said about what happens after a dispute has risen
• give one line articulation in Wolsey (if in arbitration, a dispute has arisen) don’t need to go anymore into this case – no facts
• warner: next logical one. Give one line articulation we talked about in class: a dispute has arisen when the parties are working within confines of contract: tell more about warner to say how rule has been applied more clearly – give some facts
• Crestview: give rule - need to explain crestview in a little more detail in order to explain detail

• apply law to our facts
• don’t need to restate facts in other cases since we have stated them in the section above.
• (SEE APENDIX C in Shapo. A good example of using three different cases to explain different issues. Look at one of the issues in apendix c. in order for an example.)

USE dorn argument, and appendix c for

Fact section should be around two pages.

Can choose one argument for opposing argument and then rebut it very well. Need to see depth in our analysis and not breadth. OK to focus on one issue in rebuttal and answer it very completely.

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September 23, 1998

THIS IS CITE TO USE WHEN QUOTING RULE FROM WARNER IN OUR MEMO:

Warner Constr. Corp. v. Los Angeles, 2 Cal. 3d 285, 296-97, 466 P.2d 996, 1003, 85 Cal. Rptr. 444, 451 (1970).

Bluebook: p34 rule 3.3 when referring to a specific citation in a case, need to refer to the specific page in the case, and in all the parallel citations.

Can do short citing only after citing the first citation completely!!!!!

Example short cite:

Warner, 2 Cal. 3d at 296-297, 466 P.2d at 1003, 85 Cal. Rptr. at 451.

Use West Law to get pages. Look at unofficial version (will be double colums on screen)

Ex: In Warner the court held…. …. .was. 2 Cal. 3d at 296-97, 466 P.2d at 1003, 85 Cal Rptr. at 451.

In above, when quoting case in a sentence, just put the rest of short cite after it without the name.

When citing multiple pages (like for rule in Warner) (page 36 in bluebook for rule). For numbers like 296-29, should be 297-99 (always need at least 2 numbers in second number)

See 40-41 for id. citing.

Id. means you are citing to the immediate last cite. Can only use Id. if the pages are exactly the same in new citation as the old citation. Can do Id. at 296-297. Only use id. unless the previous rule appears on the same page.

Can do two citations at once by separating them by semi-colons.

Citation begins with a capital letter. Use two spaces between sentences

Do not use parenthesis except for dates.

Can do a citation in the middle of the sentence. In Warner the court held this (PUT THE WARNER CITE HERE in parenthesis), but then in our case it was different because…….

Probably don’t need to fully quote the purpose section in memo because we are not analyzing the purpose section words.

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September 25, 1998

Digesting: books that pull together summaries of the cases and separate the summaries by topic and issue. Can be difficult to digest.

Winning Research Skills: free available in the library, in the compact shelving area. Pick up a copy of this!

Digests have general category subjects and then more specific under those catagories.

California digests – all California levels

Federal digests – all federal levels

Decenial digests – cover all federal cases and all state cases

Page 16 Wren – lists the different jurisdictions and what digest covers those jurisdictions.

Headnotes - break the legal opinions down by issue. Write a summary of the courts opinion on that issue. Then assign a number to each and put them in the cases. See Pugh case handout for an example.

How to find correct key number for issue that you are researching:

• Go to descriptive word index and look up your key words
• Need to figure out what the issue before you can do effective research
• Find key number for our issue. Then look up the key number and read all the summaries of the cases
• Warning: headnotes are not absolutely reliable. Must read the case instead of only reading the headnotes.

Shepardizing Video.

Steps are laid out on page 97 of Wren.

Uses of Shepardizing:

• locate new sources
• evaluate authority
• follow history of law
• pinpoint areas of law
• access secondary opinions

• case citations two parts: history of case, treatment of the case

Page number, cites in parentheses under the page number means parallel citations

Next entries show citations where the case was cited in other cases, law reviews, statutes

Example:

-----729-----

(99238490)

(998 oedf 9384)

5pst373df

Do assignment. Due next Friday.