1. Kaplan University PA205: Introduction to Legal Research Unit 2 Seminar: Sources of Legal Authority

2. CASE BRIEFING If possible, get your printed copy of Swan v. Talbot, 152 Cal 142 (1907) You may also simply open the document in doc sharing and use that here. You may also simply open the document in doc sharing and use that here.

3. CASE BRIEFING Facts The court nearly always provides a recitation of the facts. Paraphrase the facts as the court has gioven them – if the court thought a fact was important, it probably was! Facts The court nearly always provides a recitation of the facts. Paraphrase the facts as the court has gioven them – if the court thought a fact was important, it probably was! Issue Look for words such as “we are called upon to decide”, etc. Some courts don’t do this, but it’s common. If you can’t find the issue that way, go about it from behind, so to speak: find the rule of law and change it into a question. Issue Look for words such as “we are called upon to decide”, etc. Some courts don’t do this, but it’s common. If you can’t find the issue that way, go about it from behind, so to speak: find the rule of law and change it into a question. Rule of Law Look for words such as “it is well settled”, or “even “the rule…”. Case or statute citations also help to lead you to the rule. Look for paragraphs in which the court has provided a cite to the source – it is probably a statement of a rule of law. Rule of Law Look for words such as “it is well settled”, or “even “the rule…”. Case or statute citations also help to lead you to the rule. Look for paragraphs in which the court has provided a cite to the source – it is probably a statement of a rule of law. Analysis This is the easiest, but in a sense also the most difficult. What you need is the analysis of the court – not what you think. Why does the court say it ruled as it did? Does it recite certain facts? The analysis section basically takes everything the court has said about an issue and very briefly paraphrases it. Analysis This is the easiest, but in a sense also the most difficult. What you need is the analysis of the court – not what you think. Why does the court say it ruled as it did? Does it recite certain facts? The analysis section basically takes everything the court has said about an issue and very briefly paraphrases it. Conclusion The easiest part of a brief! Did the court affirm or reverse the lower court? That is the conclusion. Conclusion The easiest part of a brief! Did the court affirm or reverse the lower court? That is the conclusion.

4. CASE BRIEFING Swan v. Talbot, 152 Cal. 142 (1907) Always identify the case, with a complete citation. Swan v. Talbot, 152 Cal. 142 (1907) Always identify the case, with a complete citation. Facts: Simply a paraphrase of the first paragraph of the opinion. Facts: Simply a paraphrase of the first paragraph of the opinion. Swan (the plaintiff) sued the Talbot (the defendant) to cancel a bill of sale. The plaintiff stated that he was so intoxicated at the time of making the transaction that he does not remember doing so. He claims that the defendant knew that he was intoxicated and took advantage of his drunken state. The property subject to the bill of sale was of significantly greater value than the sale price of $200 stated in the bill of sale. Witnesses saw Swan fall in the streets, stated that he needed help walking upstairs, and even needed help getting in his bed. Swan (the plaintiff) sued the Talbot (the defendant) to cancel a bill of sale. The plaintiff stated that he was so intoxicated at the time of making the transaction that he does not remember doing so. He claims that the defendant knew that he was intoxicated and took advantage of his drunken state. The property subject to the bill of sale was of significantly greater value than the sale price of $200 stated in the bill of sale. Witnesses saw Swan fall in the streets, stated that he needed help walking upstairs, and even needed help getting in his bed. The Superior Court of Glenn County ruled in favor of Swan and denied the defendant’s motion for new trial. The defendant is appealing this decision, claiming that the judge was biased and favored the plaintiff and his attorneys. The Superior Court of Glenn County ruled in favor of Swan and denied the defendant’s motion for new trial. The defendant is appealing this decision, claiming that the judge was biased and favored the plaintiff and his attorneys.

5. CASE BRIEFING Issues: Sometimes there is more than one major issue. Numbering the issues makes the brief easier to follow. 1.Can a bill of sale be cancelled because the plaintiff was intoxicated at the time he entered into the underlying transaction? 2.Did the judge err with his decision denying a new trial? No, because it is his duty to deny or grant the motion “should bias and other disqualification be shown… and to sit in the case himself.” Some legal writers like to include a “short answert” with the issue. This is optional.

6. CASE BRIEFING Rule: Find the rule by looking for key words and phrases, such as “we therefore hold” or similar. Look also for citations to cases and statutes. Include the citations. 1.The court said that they may not assist a person who made a contract while intoxicated, just because in his sober state he would have not made the contract. However, if the contract was obtained by fraudulent means and was grossly inadequate while the person was drunk, the law may intervene. (Phelen v. Gardner, 43 Cal. 306; Moore v Moore, 56 Cal. 92). Note that some would delete the first sentence, because it isn’t applicable to the facts here. 2.Based on case law, it still is the duty of the judge to grant or deny a motion, “and to sit in the case himself.” (Higgins v. City of San Diego, 126 Cal. 304; People v. Findly, 132 Cal. 305; Lamberson v. Superior Court, 150 Cal. 458).

7. CASE BRIEFING Analysis/Application: Paraphrase the rationale explained by the court. You will need to read a case carefully, in order to determine what is analysis and what is just dicta, not really applicable to the holding. 1.The plaintiff was too intoxicated to realize that he was making such a transaction to give away his property. Many witnesses saw him in his drunken state and said he kept falling in the streets and needed help. The plaintiff cannot recall that he signed the bill of sale. Because of this, the facts suggest that defendant took the opportunity to take advantage of the plaintiff. In ruling for Swan, the court cited the “well settled principle” that “whenever there is great weakness of mind in a person executing a contract, arising from any cause, and the consideration given for the property is grossly inadequate, imposition or undue influence will be inferred…” (Moore v Moore, 56 Cal. 92). Because the property in question has a value of $21, 949.86, but the total paid to Swan by Talbot was only $10,604.32, the court concluded that the amounbt paid was “grossly inadequate” and the law as stated in Moore should apply.

8. CASE BRIEFING Analysis/Application: Paraphrase the rationale explained by the court. You will need to read a case carefully, in order to determine what is analysis and what is just dicta, not really applicable to the holding. 1.The plaintiff was too intoxicated to realize that he was making such a transaction to give away his property. Many witnesses saw him in his drunken state and said he kept falling in the streets and needed help. The plaintiff cannot recall that he signed the bill of sale. Because of this, the facts suggest that defendant took the opportunity to take advantage of the plaintiff. In ruling for Swan, the court cited the “well settled principle” that “whenever there is great weakness of mind in a person executing a contract, arising from any cause, and the consideration given for the property is grossly inadequate, imposition or undue influence will be inferred…” (Moore v Moore, 56 Cal. 92). Because the property in question has a value of $21, 949.86, but the total paid to Swan by Talbot was only $10,604.32, the court concluded that the amount paid was “grossly inadequate” and the law as stated in Moore should apply.

9. CASE BRIEFING 2.The court decided that even though he may have bias, it is still the duty of the judge to grant or deny a motion and continue to sit in the case. (Higgins v. City of San Diego, 126 Cal. 304; People v. Findly, 132 Cal. 305; Lamberson v. Superior Court, 150 Cal. 458). Conclusion: The Supreme Court of California affirmed the judgment of the Superior Court.

10. Unit 2 Written Assignment For this week’s Writing Assignment, read Marron v. Marron and Phelan v. Gardner from the library of cases found in DocSharing. Brief each case using the FIRAC method. This unit’s Written Assignment is not part of the Memorandum of Law, but it will help you have a readily available in-depth review of each library case.

11. Unit 2 Written Assignment Any questions about briefing cases? F acts of the case I ssue presented R ule of law established by the case A nalysis applied by the court C onclusion of the court

12. DISCUSSION HYPOTHETICAL You are a paralegal in a law firm. The senior attorney has asked you to sit in on a client interview because you will be doing the research. I am the client. The client arrives at your office, very upset, waiving a ticket in his hand. “I just got this ticket, and it is totally unfair. Can I get out of it?”

13. DISCUSSION HYPOTHETICAL What are some of the details you need to know? What you need is the section of the Vehicle Code that the client was cited for violating. However, the client only has the section number written on the ticket – not the text of the Code. What do you do, and why?

14. DISCUSSION HYPOTHETICAL State Vehicle Code Section 21703: Following too closely “The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon, and the condition of, the roadway.”

15. DISCUSSION HYPOTHETICAL Now that you have the text of the Code section, what information do you need? Can the client tell you everything you need to know? Why, or why not? What other sources of information might you need to investigate, and why?