ELEMENTS B1 & B2 2016 POWER POINT SLIDES Class #8: Friday, September 2 National College Colors Day

Augustin * Cheney * Lecca Robledo * Sainte * Wagner MUSIC: Gustav Holst, The Planets (1914-16) Recording: Los Angeles Philharmonic (2012) Conductor: ZUBEN MEHTA B2 Lunch Today Meet on Brix @ 12:30 Berman, C. * Gonzalez Re * Ricobaldi Sholes * Wood   B1 Lunch Tuesday Meet on Brix @ 12:10 Augustin * Cheney * Lecca Robledo * Sainte * Wagner Wasserman

LOGISTICS: WEEK OF SEPT 5-9 Monday: No B1 Class Meeting; No DF Session Tuesday: Normal B2 Class (Start w Trial); DF Session @ 11 in F309 (Replacing Contracts); B1 Lunch (Meet @ 12:10) Wednesday: Normal B1 Class (Start w Trial) Thursday: Both Sections Meet Here @ 7:55 (Festival Seating); Normal DF Session Friday: Normal Separate Class Meetings; B2 Lunch (Meet @ 12:10)

Liesner Brief: Radium PROCEDURAL POSTURE?:

Liesner Brief: Radium PROCEDURAL POSTURE: Trial Court directed verdict for plaintiff and awarded damages. Defendant appealed. Don’t need to mention plaintiffs’ motion for directed verdict; that step is implicit in court’s action Don’t need to mention defendant’s motion for directed verdict; doesn’t affect reasoning or outcome [General point re expectations in early September/]

Liesner Brief: Facts Trial Court found that Ps mortally wounded a wolf and pursued it to the point that escape was improbable, if not impossible. D then shot & killed the wolf and took the carcass. As with Statement, need to recognize that mortal wounding still contested. Phrase in italics helps make clear that Wisc. S.Ct. doesn’t treat this as given.

Elements September Skills Work: From Here to the Practice Midterm 4 Weeks; 12 Classes; 6 Cases Common Basic Exam Task: Applying Precedent to New Situation Skill 1: Reading/Understanding Cases Self-Quizzes Careful Detailed Briefing; Compare to Samples

Elements September Skills Work: From Here to the Practice Midterm 4 Weeks; 12 Classes; 6 Cases Exam Task: Apply Precedent to New Situation Skill 1: Reading/Understanding Cases Skill 2: Applying Cases to Different Facts Recurring Part of DQs (In Class & DF) Group Written Assignment #1

Our Approach to New Cases Introduce Basics of New Case with First Parts of Brief Apply Prior Cases to Facts of New Case (E.g., DQs 1.15, 1.23-1.25) Flesh Out Issue/Holding/Rationales of New Case Apply New Case to Facts of Prior Cases (E.g., DQs 1.18(c), 1.26)

Application of One Case to Facts of Another Cases are complex tools for lawyers. Applying the language and reasoning of case to a new situation is a way to learn some of the things you can do with the tool.

Application of One Case to Facts of Another Cases are complex tools for lawyers. Applying the language and reasoning of case to a new situation is a way to learn some of the things you can do with the tool. Thus, when we apply Pierson to facts of Liesner, we primarily are trying to learn more about Pierson.

Application of One Case to Facts of Another Can compare facts of two cases. Can apply specific language from 1st case to facts of 2d. Can apply policies from 1st case to facts of 2d. Note: These are the three tasks that make up most of your 1st Group Written Assignment

Application of One Case to Facts of Another Specific language from a case can take the form of a “rule”(e.g., “prevailing rule” from Liesner). Rules don’t always clearly indicate who will win a case, but do provide templates for how court or legislature wants you to discuss your case. Here is an intro to some basic “moves” (types of arguments) you need to learn using a “rule” you already know:

Application of One Case to Facts of Another: Playing with Rules “Too Many Cooks Spoil the Soup”

Application of One Case to Facts of Another: Playing with Rules Too Many Cooks Spoil the Soup Line-Drawing: How many is “too many”? Vary with size of kitchen? Vary with amount of soup you’re preparing?

Application of One Case to Facts of Another: Playing with Rules Too Many Cooks Spoil the Soup Definitions: Who counts as a “Cook”? Anyone helping with preparation? Anyone with significant training/experience? Anyone making decisions about ingredients or technique? Anyone wearing a puffy Chef’s hat?

Application of One Case to Facts of Another: Playing with Rules Too Many Cooks Spoil the Soup Scope of Rule: “Soup” and What Else? Any dish? Any cooked dish? Any dish requiring careful balancing of flavors? Any dish requiring particular skill?

Application of One Case to Facts of Another: Playing with Rules (Frequently) WHICH RULE TO USE? “Too Many Cooks Spoil the Soup” OR …

Application of One Case to Facts of Another: Playing with Rules WHICH RULE TO USE? “Too Many Cooks Spoil the Soup” OR v.

Application of Pierson to Facts of Liesner Liesner DQ1.15: Radium Application of Pierson to Facts of Liesner For purposes of this exercise, let’s use FACTS as found by TRIAL COURT (1st para of opinion): Ps mortally wounded animal, pursued Escape Improbable, if not impossible D then shot, killed & took animal

Liesner DQ1.15: Radium: Application of Pierson to Facts of Liesner FACTS (as found by TRIAL COURT) Ps mortally wounded animal, pursued Escape Improbable, if not impossible D then shot, killed & took animal Apply Language from Pierson Majority Relevant Passages?

Liesner DQ1.15: Radium: Application of Pierson to Facts of Liesner Relevant Passages (all from p.4) Include: “bodily seizure not indispensable to capture” “mortal wounding” + “not abandoning pursuit” “unequivocal intention of appropriating” + “deprived of natural liberty (NL)” + “brought w/in certain control” “deprived of NL”+ “escape impossible” + use of “industry & labor” (Re §B2) Not enough: “[S]eeing, starting, or pursuing such animals, without having so wounded, circumvented or ensnared them, … as to deprive them of their natural liberty, and subject them to the control of their pursuer….”

Liesner DQ1.15: Radium: Application of Pierson to Facts of Liesner FACTS (as found by TRIAL COURT) Ps mortally wounded animal, pursued Escape Improbable, if not impossible D then shot, killed & took animal “Deprived of Natural Liberty”? “Certain Control” or “Escape Impossible”?

Liesner DQ1.15: Radium: Application of Pierson to Facts of Liesner FACTS (as found by TRIAL COURT) Ps mortally wounded animal, pursued Escape Improbable, if not impossible D then shot, killed & took animal Pierson uses language of absolute certainty (“certain control” & “escape impossible”) Liesner fudges in its description of facts.

Liesner DQ1.15: Radium: Application of Pierson to Facts of Liesner FACTS (as found by TRIAL COURT) Ps mortally wounded animal, pursued Escape Improbable, if not impossible D then shot, killed & took animal APPLY POLICIES FROM PIERSON Achieve Certainty?

Liesner DQ1.15: Radium: Application of Pierson to Facts of Liesner FACTS (as found by TRIAL COURT) Ps mortally wounded animal, pursued Escape Improbable, if not impossible D then shot, killed & took animal APPLY POLICIES FROM PIERSON Reward Useful Labor? (DF Next Week)

Liesner Issue/Holding Hard case at this stage of Law School because reviewing decision on sufficiency of evidence, not ruling on relevant law.

Liesner Brief: Radium ISSUE Did the Trial Court err (Procedural?)

Help Provide Info re Relevant Standards Liesner Brief: Radium ISSUE Did the Trial Court err (Procedural) by directing a verdict for the Ps (Substantive) [Something about the D having offering sufficient evidence to raise jury Qs] OXYGEN DQs1.16-1.17 Help Provide Info re Relevant Standards

BACKGROUND FROM PRIOR CLASSES re DIRECTED VERDICTS Liesner DQ1.16: Oxygen BACKGROUND FROM PRIOR CLASSES re DIRECTED VERDICTS Generally: Trial Court Rules That One Party Presented Insufficient Evidence to the Jury to Meet Relevant Legal Standard

BACKGROUND FROM PRIOR CLASSES re DIRECTED VERDICTS Liesner DQ1.16: Radium BACKGROUND FROM PRIOR CLASSES re DIRECTED VERDICTS Directed Verdict for Plaintiffs Here Unusual Trial Court must have believed that undisputed evidence proved Ps’ case (i.e., D presented insufficient evidence to contradict undisputed evidence supporting Ps) Wanie Conceded Relevant Legal Standards, So Must Be Claiming on Appeal That He Presented Evidence Sufficient to Raise Jury Q

Liesner DQ1.16: Radium DIRECTED VERDICT What test does the Wisconsin Supreme Court appear to apply as to when a trial court should grant a motion for directed verdict?

Last Paragraph: “The evidence in this case very strongly tends to establish all the facts requisite to ownership of the wolf by plaintiffs,—so strongly that all reasonable doubts in respect to the matter, if any would otherwise have remained, might well have been removed by the superior advantages which the trial court had. In the light of other evidence, all reasonable doubts may well have been removed as to who delivered the shot which so crippled the animal as to cause him to cease trying to escape ….”

“The evidence in this case very strongly tends to establish all the facts requisite to ownership of the wolf by plaintiffs,—so strongly that all reasonable doubts in respect to the matter, if any would otherwise have remained, might well have been removed by the superior advantages which the trial court had. In the light of other evidence, all reasonable doubts may well have been removed as to who delivered the shot which so crippled the animal as to cause him to cease trying to escape ….”

DIRECTED VERDICT: IMPLICIT LEGAL TEST IN WISCONSIN (1914) Liesner DQ1.16: Radium DIRECTED VERDICT: IMPLICIT LEGAL TEST IN WISCONSIN (1914) The trial court can direct a verdict for a party if uncontested evidence removes all reasonable doubts that the party’s claim has been proved.

DIRECTED VERDICT: IMPLICIT LEGAL TEST IN WISCONSIN (1914) Liesner DQ1.16: Radium DIRECTED VERDICT: IMPLICIT LEGAL TEST IN WISCONSIN (1914) The trial court can direct a verdict for a party if uncontested evidence removes all reasonable doubts that the party’s claim has been proven. What facts does Wanie claim were not proved beyond a reasonable doubt? (from Mon/Tue)

“That … the plaintiffs were in vigorous pursuit of the game, the evidence is clear, and that in a few moments, at most, they would have had actual possession, is quite as clear. In the light of other evidence, all reasonable doubts may well have been removed as to who delivered the shot which so crippled the animal as to cause him to cease trying to escape ….”

Liesner DQ1.16: Radium I presented sufficient evidence Wanie’s claim must be: I presented sufficient evidence either that other people’s shots might have mortally wounded the wolf or that the Liesners’ shots didn’t hit it or didn’t mortally wound it so as to create reasonable doubts that the shot that mortally wounded the wolf was fired by Ps

Liesner Brief: Radium ISSUE Did the Trial Court err (Procedural) by directing a verdict for the plaintiff (Substantive) because all reasonable doubts were not removed as to who fired the shot that mortally wounded the wolf.

Liesner DQ1.16: Oxygen Is the Wisconsin Supreme Court certain that the test for directed verdict was met in this case?

The evidence in this case very strongly tends to establish all the facts requisite to ownership of the wolf by plaintiffs,—so strongly that all reasonable doubts in respect to the matter, if any would otherwise have remained, might well have been removed by the superior advantages which the trial court had. In the light of other evidence, all reasonable doubts may well have been removed as to who delivered the shot which so crippled the animal as to cause him to cease trying to escape ….

Liesner Brief: Radium HOLDING No, the Trial Court did not err (Procedural) by directing a verdict for the plaintiff (Substantive) because all reasonable doubts may well have been removed as to who fired the shot that mortally wounded the wolf, thus gaining ownership of it.

“The evidence in this case very strongly tends to establish all the facts requisite to ownership of the wolf by plaintiffs,—so strongly that all reasonable doubts in respect to the matter, if any would otherwise have remained, might well have been removed by the superior advantages which the trial court had.”

What are “the superior advantages which the trial court had”? Liesner DQ1.17: Oxygen What are “the superior advantages which the trial court had”?

What are “the superior advantages which the trial court had”? Liesner DQ1.17: Oxygen What are “the superior advantages which the trial court had”? Visual Observation of Witnesses and of Physical Evidence Hearing Testimony

She asked me to take her to the dance.

Liesner DQ1.17: Oxygen What do these advantages suggest about the appropriate role of appellate courts in reviewing factual determinations made by juries or trial judges (finders of fact)?

See, e.g., tests for taking a case away from the jury: Liesner DQ1.17: Oxygen What do these advantages suggest about the appropriate role of appellate courts in reviewing factual determinations made by finders of fact? DEFERENCE!! See, e.g., tests for taking a case away from the jury: Wisc 1914: “No reasonable doubts remain.” Fed’l 2015: “No reasonable jury could find …”

Liesner Brief: Rationales Not especially significant in a narrow case reviewing sufficiency of the evidence. Might give “prevailing rule” as a doctrinal rationale. Might give “superior advantages” as a policy rationale Examples of each in Sample Brief

“Prevailing rule” (Three Formulations): Liesner DQ1.18: Oxygen “Prevailing rule” (Three Formulations): Property in a wild animal created if people have “substantially permanently deprived [animal] of his liberty—had him so in their power that escape was highly improbable, if not impossible….” “The instant a wild animal is brought under the control of a person so that actual possession is practically inevitable, a vested property interest in it accrues which cannot be divested by another’s intervening and killing it.”

“Prevailing rule” (Three Formulations): Liesner DQ1.18: Oxygen “Prevailing rule” (Three Formulations): Property in a wild animal created if people [1] have “substantially permanently deprived [animal] of his liberty— had him so in their power that escape was highly improbable, if not impossible….” “The instant a wild animal is brought under the control of a person so that actual possession is practically inevitable, a vested property interest in it accrues which cannot be divested by another’s intervening and killing it.”

“Prevailing rule” (Three Formulations): Liesner DQ1.18: Oxygen “Prevailing rule” (Three Formulations): Property in a wild animal created if people [1] have “substantially permanently deprived [animal] of his liberty—[2] had him so in their power that escape was highly improbable, if not impossible….” “The instant a wild animal is brought under the control of a person so that actual possession is practically inevitable, a vested property interest in it accrues which cannot be divested by another’s intervening and killing it.”

“Prevailing rule” (Three Formulations): Liesner DQ1.18: Oxygen “Prevailing rule” (Three Formulations): Property in a wild animal created if people [1] have “substantially permanently deprived [animal] of his liberty—[2] had him so in their power that escape was highly improbable, if not impossible….” “The instant [3] a wild animal is brought under the control of a person so that actual possession is practically inevitable, a vested property interest in it accrues which cannot be divested by another’s intervening and killing it.”

“Prevailing rule” (Three Formulations): Liesner DQ1.18: Oxygen “Prevailing rule” (Three Formulations): (1) substantially permanently deprive [animal] of liberty (SPDL) (2) [have the animal] so in their power that escape improbable, if not impossible (3) [bring the animal] under control so that actual possession practically inevitable

Liesner DQ1.18 (a): Oxygen MEANING OF LANGUAGE? Court refers to “the prevailing rule” (singular, not plural) so might believe all 3 formulations mean the same thing.

Liesner DQ1.18 (a): Oxygen MEANING OF LANGUAGE? Court might believe all three mean the same thing. BUT usual assumption in law that courts and legislatures (or contracting parties) choose specific language for a reason, so if they use different phrases, they must mean/intend different things. Yields three Qs that are implicitly part of 1.18(a).

Liesner DQ1.18 (a): Oxygen MEANING OF LANGUAGE for Class #9 Property Rights in Animal IF: substantially permanently deprived [animal] of his liberty MEANING OF LANGUAGE for Class #9 Significance of Two Separate Adverbs?

MEANING OF LANGUAGE for Class #9 Difference betw. underlined phrases? Liesner DQ1.18 (a): Oxygen Property Rights in Animal IF: so in their power that escape was highly improbable, if not impossible under the control of a person so that actual possession is practically inevitable MEANING OF LANGUAGE for Class #9 Difference betw. underlined phrases?

MEANING OF LANGUAGE for Class #9 Difference betw. underlined phrases? Liesner DQ1.18 (a): Oxygen Property Rights in Animal IF: so in their power that escape was highly improbable, if not impossible under the control of a person so that actual possession is practically inevitable MEANING OF LANGUAGE for Class #9 Difference betw. underlined phrases?

Liesner DQ1.18: Oxygen (1) substantially permanently deprive [animal] of liberty (2) [have the animal] so in their power that escape improbable, if not impossible (3) [bring the animal] under control so that actual possession practically inevitable All three formulations contain an imprecise word meaning something like “almost completely.”

Liesner DQ1.18 (b): Oxygen What policies support the rule? What policies suggest that it has problems?  As compared to what?

COMPARE POSSIBLE RULES FOR CLASS #9 Policies Supporting Choice… Liesner DQ1.18 (b): Oxygen COMPARE POSSIBLE RULES FOR CLASS #9 Actual Possession Likely Actual Possession Practically Inevitable Actual Possession Inevitable Policies Supporting Choice… Of #2 v. #3? Of #2 v. #1?