1. ELEMENTS B 2019 POWER POINT SLIDES Class #4: Tuesday August 20 National Radio Day
This Photo by Unknown Author is licensed under CC BY-NC

2. Brennan * Cassista Evans * Picard Rose * Stage Zeitlin
MUSIC: Beethoven Symphonies #6 (1808) & #8 (1814) Recordings: Chamber Orchestra of Europe Nikolaus Harmoncourt, Conductor (1991)
LUNCH TODAY
Meet on 12:25:
Brennan * Cassista Evans * Picard Rose * Stage Zeitlin
PANEL SELECTION INSTRUCTIONS
Can give me piece of paper at break today w list of names of students who wish to be on same panel.
I will assemble your chosen groups into 4 panels.
Ok if your name not on any list; I will assign you where space.
Can have groups of 2  20students
Submit one list per group
Check with everyone on list before including

3. ELEMENTS B Three Common 1L Issues
Class #2: Confusion
Class #4: Control
Class #5: Competition v. Cooperation
Songland Episode 102 (Required)

4. Sense of Control Important
ELEMENTS B: Control
Sense of Control Important
for Peace of Mind
Can’t Control Everything!!
Can Take Steps to Feel More in Control.

5. Control Over Time (v. Distractions)
ELEMENTS B: Control
Control Over Time (v. Distractions)
Fall 1982(!)

6. (1) Control Over Time (v. Distractions)
ELEMENTS B: Control
(1) Control Over Time (v. Distractions)
NOW!!!
282!!

7. ELEMENTS B: Control (1) Control Over Time (v. Distractions)
Suggestions to Feel More in Control
Clearly Distinguish Work & Break Time
Use Timers for Both Work & Breaks
Log Your Use Of Devices Over Several Days
Just a Little Less

8. (2) Control Over the Material
ELEMENTS B: Control
(2) Control Over the Material
& Your Performance
(Limiting Confusion)

9. ELEMENTS B: Control (2) Control Over Material/Performance
Suggestions to Feel More in Control
Before Class:
Do DQs Carefully (Just a Little More)
Do Self-Quizzes & Check Work (v. Just Reading Through Answers)
Write Out Briefs

10. ELEMENTS B: Control (2) Control Over Material/Performance After Class:
Suggestions to Feel More in Control
After Class:
Review & Repair
Check Briefs Against Posted Samples ASAP
Ask Qs of Me & in DF Sessions

11. ELEMENTS B: Control (2) Control Over Material/Performance
Suggestions to Feel More in Control
Written Assignments
Take Advantage of Groups to Brainstporm and to Improve Your Work
Do all parts of each assignment (not just what your group turns in)
Compare to posted comments & models ASAP

12. ELEMENTS B: Control (2) Control Over Material/Performance
Suggestions to Feel More in Control
Throughout the Course
Discuss Material Among Yourselves
ASK QUESTIONS!!!

13. ELEMENTS B: Control Dean’s Fellow Sessions
1st Semester Dean’s Fellows All Do Identical “Skills” Curriculum in Context of Substantive Material of Particular Course
Never Intended that 1Ls Necessarily Attend Four Sessions/Week
Choose Thoughtfully Based on Effectiveness for You
Given How You Learn
Given How Particular DFs Teach

14. ELEMENTS B: Control Dean’s Fellow Sessions: Elements
Lauren & Brendan will do Three Sessions/Week
W & Th & F: Schedule will be posted on Course Page
Over Each Two Weeks, Three Different Lesson Plans Described on Course Page (W/Th, F/W, Th/F)
Will include work on briefs, DQs, Problems we don’t do in detail in class, Plus old exam Qs after Break
Complaints from Students springre Keeping Track of what substance went with which session. (??!!)
Always on Course Page; often in Slides
Remember we are offering you MORE help.

15. (3) Control & Hurricane Season
ELEMENTS B: Control
(3) Control & Hurricane Season
For those of you new to South Florida, sometimes our weather has names.

16. (3) Control & Hurricane Season Getting Good Information
ELEMENTS B: Control
(3) Control & Hurricane Season
Getting Good Information
National Hurricane Center Website (check every few days during Fall Semester):
UM Hurricane Preparedness Site (look over): dness-_before/getting_ready/hurricane_preparedness/

17. (3) Control & Hurricane Season
ELEMENTS B: Control
(3) Control & Hurricane Season
Preparation: You Might Not Have Power for Several Days (1992 & 2005 & 2016)
Long Term Prep
Water; Canned Goods; Non-Electric Can Opener
Flashlight; Battery-Op Radio; Batteries; Candles
If you have a landline, Non-Electric Landline Phone ($5 at Walgreens)

18. (3) Control & Hurricane Season If Storm Might Be Coming
ELEMENTS B: Control
(3) Control & Hurricane Season
Preparation: You Might Not Have Power for Several Days (1992 & 2005 & 2016)
If Storm Might Be Coming
Get Cash & Put Gas in Car
Print Out Schoolwork You Might Need
Check UM Websites/Emergency Phone #s for Closure & Reopening Info

19. ELEMENTS B: Control (3) Control & Hurricane Season After a Storm
UM Once Campus Opens: as Refuge/Safe Space (Power & Shower)
Missed Elements Classes Shift Forward Until You Get New Schedule
I’ll take Qs on this after class & by –OR-
Talk to folks who’ve been thru storms (e.g., your DFs)

20. CASE BRIEF: Statement of the Case
Who Sued Whom?
Under What Theory (Legal Cause of Action)?
Seeking What Remedy?

21. Pierson v. Post: Under What Theory?
Post, a hunter who had been pursuing a fox, sued Pierson, who killed the fox knowing of the pursuit,
for “Trespass on the Case” …
(Follow-Up in Torts?)

22. CASE BRIEF: Statement of the Case
Who Sued Whom?
Under What Theory (Legal Cause of Action)?
Seeking What Remedy?
Aldens, Purchasers of Leaky New House Sued Landco, Developer, for Breach of Warranty, seeking Rescission [= Undoing] of the Sales Contract.
Ortiz, Consumer Injured By Exploding Blender, Sued Gemco, Manufacturer, for Negligent Design, seeking Damages [for medical bills, lost wages and pain and suffering].

23. Pierson v. Post: For What Remedy?
Post, a hunter who had been pursuing a fox, sued Pierson, who killed the fox knowing of the pursuit, for Trespass on the Case, seeking … [not stated in Majority Opinion.]
*Possibilities?

24. Pierson v. Post: For What Remedy?
Post, a hunter who had been pursuing a fox, sued Pierson, who killed the fox knowing of the pursuit, for Trespass on the Case, seeking … [not stated in Majority Opinion. Could be: ]
Damages OR
Return of the fox or its pelt.
*Evidence of Either?

25. Pierson v. Post: For What Remedy?
Not Stated in Majority Opinion. Could be:
Damages OR
Return of the fox or its pelt.
Dissent (p.5): “In a court … constituted [of hunters], the skin and carcass of poor reynard would have been properly disposed of ...” (This suggests remedy requested is return of property.)

26. Pierson v. Post: For What Remedy?
Not Stated in Majority Opinion
Dissent suggests remedy requested is return of property
BUT Normal remedy for Trespass on the Case is “Damages” (= $$$) (Dissent point could be rhetoric.)
How might you handle this uncertainty when you are briefing?

27. Pierson v. Post: Sample Statement
Post, a hunter who had been pursuing a fox, sued Pierson, who killed the fox knowing of the pursuit, for trespass on the case, presumably [or “possibly”] seeking damages.
Number of Possible Versions, but Try to Be Accurate re What You Really Know from Case Qs

28. CASE BRIEF: Procedural Posture
Procedural Steps
After Lawsuit Filed (filing of lawsuit already described in Statement) …

29. CASE BRIEF: Procedural Posture
Procedural Steps
After Lawsuit Filed …
Up to Step That Gets Case to the Appellate Court that Issued the Opinion You are Briefing. [Decision in that court referenced in “Holding and “Result” sections].

30. CASE BRIEF: Procedural Posture
Procedural Steps
After Lawsuit Filed …
Up to Step That Gets Case to the Appellate Court.
Try to Limit to Steps Necessary to Understand Case
Usually have to edit what’s given in opinion.
Lots of opportunities to edit in future case briefs.

31. Pierson v. Post: Procedural Posture
After Trial Resulted in Verdict for Post [Π], the [N.Y. Supreme] Court Granted Pierson’s [Δ’s] Petition for [Certiorari] Review.
Note don’t need separate sentences to say (i) Pierson petitioned & (ii) Court granted petition
Note you don’t have to give name of appellate court if already clear from the citation.
Questions?

32. CASE BRIEF: Facts
Only include facts arguably relevant to court’s analysis.
Can’t determine relevance on 1st read
Initial description of “facts” usually includes more detail than you need
Important facts may only appear later in opinion
Select/edit facts after reading whole case.
We’ll do for Pierson after discussing DQs 1.04(c) & 1.05 & issue/holding

33. CASE BRIEF: Issue
Party Appealing Always Claims the Lower Court Made a Mistake. To Identify the Issue, Identify the Claimed Mistake.

34. CASE BRIEF: Issue
Party Appealing Claims the Lower Court Made a Mistake. Identify the Claimed Mistake.
Procedural Component of Mistake: What Should Lower Court Have Done Differently?

35. CASE BRIEF: Issue
Party Appealing Claims the Lower Court Made a Mistake. Identify the Claimed Mistake.
Procedural Component of Mistake: What Should Lower Court Have Done Differently?
Substantive Component of Mistake: What Misunderstanding About the Relevant Legal Rule Caused the Lower Court to Make the Procedural Mistake?

36. CASE BRIEF: Issue
Party Appealing Claims the Lower Court Made a Mistake. Identify the Claimed Mistake.
Procedural Component of Mistake: What Should Lower Court Have Done Differently?
Substantive Component of Mistake: What Misunderstanding About the Legal Rule Caused the Lower Court to Make the Procedural Mistake?
For this class, we’ll create versions of issue and holdings that incorporate both the procedural and the substantive component.

37. Pierson v. Post: Issue
End of 1st paragraph: Pierson claimed that “the declaration and the matters therein contained were not sufficient in law to maintain an action.”
*What did he think was insufficient about the claims Post made in the declaration?

38. Pierson v. Post: Issue
SUBSTANTIVE MISTAKE: Claim that Post pursued the fox is insufficient because pursuit alone doesn’t create property rights in the fox.
Trespass on the Case = Indirect Interference with Property Rights.
If Post did not have “Property Rights” in the fox, Pierson did not commit Trespass on the Case when he killed it.
[AGAIN: Court doesn’t need to worry about difference between trespass and trespass on the case, because either way, Post would need to show property rights in the fox to succeed.]

39. Pierson v. Post: Issue
* IF PIERSON WAS CORRECT ABOUT WHAT WAS WRONG WITH THE DECLARATION, WHAT SHOULD THE LOWER COURT HAVE DONE DIFFERENTLY?

40. WHAT SHOULD THE LOWER COURT HAVE DONE DIFFERENTLY?
Pierson v. Post: Issue
WHAT SHOULD THE LOWER COURT HAVE DONE DIFFERENTLY?
PROCEDURAL MISTAKE: The Lower Court Should Have Dismissed the Case [as a Matter of Law] for Failure to State a Claim on Which Relief Could Be Granted
As I noted in slides for DQ1.01, might have been raised at the beginning of the case; we don’t know.

41. Pierson v. Post: Issue (Recap)
PROCEDURAL COMPONENT OF MISTAKE: The Lower Court Should Have Dismissed the Case [as a Matter of Law] for Failure to State a Claim [on Which Relief Could Be Granted].
In other words, even if everything stated in Declaration was true, Post was not entitled to any legal remedy (or “SO WHAT?”).

42. REPLYING TO DECLARATION/ COMPLAINT [Note re Wood Grain]:
Motion to Dismiss for Failure to State a Claim = (“So What?”) v.
Answer [Filing by Dfdt in Response to Complaint/Declaration] = (“Did Not!!”)
Defendants often try versions of both,
either concurrently re different claims
or consecutively re the same claim.

43. Pierson v. Post: Issue [One very awkward yes/no question.]
For Elements Briefs, Combine Both Alleged Mistakes
PROCEDURAL MISTAKE: The Lower Court Should Have Dismissed the Case for Failure to State a Claim on Which Relief Could Be Granted +
SUBSTANTIVE MISTAKE: Allegation that plaintiff pursued the fox is insufficient because pursuit alone does not create property rights in the fox.
[One very awkward yes/no question.]

44. Pierson v. Post: Issue
For Elements Briefs, (i) Combine Both Alleged Mistakes (ii) into a Yes/No Q
(E.g.,) Did the Lower Court Err by Failing To Dismiss the Case for Failure to State a Claim on Which Relief Could Be Granted Because Pursuit of a Fox Is Insufficient to Create Property Rights in the Fox?

45. Pierson v. Post: Issue Examples of Simple Substantive Issue
(Usually Appropriate for Contracts or Property)
“Is Pursuit of a Fox Sufficient to Create Property Rights in the Fox?”
-OR- “What Acts are Sufficient to Create Property Rights in a Fox?”

46. Simple Substantive Issue (for Other Classes)
Pierson v. Post: Issue
Simple Substantive Issue (for Other Classes)
E.g., What Acts are Sufficient to Create Property Rights in the Fox?
E.g., Pierson p.3: “[W]hat acts amount to occupancy, applied to acquiring right to wild animals[?]”
Issue for Elements Briefs: Include procedural component & frame as a yes/no question.

47. CASE BRIEF: Issue  Holding
Simplest Version of Holding:
Issue is a question.
Answer question “yes” or “no.”
Repeat issue in statement form (adjust for positive or negative).

48. Pierson v. Post: Issue
Did the Lower Court Err by Failing To Dismiss the Case for Failure to State a Claim on Which Relief Could Be Granted Because Pursuit of a Fox Is Insufficient to Create Property Rights in the Fox?

49. Pierson v. Post: Issue  Holding
YES. The Lower Court Erred by Failing To Dismiss the Case for Failure to State a Claim on Which Relief Could Be Granted Because Pursuit of a Fox Is Insufficient to Create Property Rights in the Fox.
Qs on Issue/Holding So Far?

50. CASE BRIEF: Issue/Holding
SIDE NOTE: CASES FREQUENTLY HAVE TWO OR MORE ISSUES/HOLDINGS
If so, your brief should separately list each issue followed by:
One or more versions of the holding deciding that issue
All rationales supporting that holding
Most cases in first two units (including Pierson) only have one issue, but keep your eyes open.

51. CASE BRIEF: Issue/Holding
Hard Q: How Much Detail to Include?
Try to include factual detail that seems relevant to analysis/outcome.
Can have different versions of issue and/or holding that incorporate more or less detail (narrower/broader).
For Elements, start with a narrow version of the issue & holding, then try broader holdings
DQ can help you start thinking about how to do this.

52. Pierson v. Post: Issue/Holding
Version of Substantive Holding: To get property rights in a fox, you must be the first to “occupy” it, which means you must do more than pursue it.

53. Pierson v. Post: Issue/Holding
Version of Substantive Holding (adding detail):
To get property rights in a fox [found on a deserted beach], you must be the first to “occupy” it, which means you must do more than pursue it.

54. Significance of Facts (Recap)
Pierson v. Post: DQ1.04(a)
Significance of Facts (Recap)
Why might it matter that the fox is found on a deserted beach?
On land that is not private property, no superceding claim by landowner (ratione soli).

55. Pierson v. Post: Issue/Holding
Versions of Substantive Holding (Generalizing):
To get property rights in a fox [found on a deserted beach], you must be the first to “occupy” it, which means you must do more than pursue it. 
To get property rights in a fox [found on unowned land], you must be the first to “occupy” it, which means you must do more than pursue it.

56. Pierson v. Post: Issue/Holding
Versions of Substantive Holding (Generalizing):
To get property rights in a fox [found on unowned land], you must be the first to “occupy” it, which means you must do more than pursue it.
Note: Might also get fight between two hunters (as opposed to between hunter and landowner) IF:
Landowner permitted both hunters to hunt; OR
Landowner chooses not to claim the animal.
1 or 2 probably true in next case (Liesner)

57. Assume well is also unowned.
Pierson v. Post: DQ1.04(c)
Significance of Facts
Suppose fox was in a well at the time it was killed. Why might that affect the result in the case?
Assume well is also unowned.

58. Suppose fox was inside a well when it was killed…
Pierson v. Post: DQ1.04(c)
Suppose fox was inside a well when it was killed…
If fox mortally wounded by fall into well, might belong to whoever drove it into well.
Could treat as trap (“toil”), which case suggests equals possession if fox cannot escape (see p.4): Can get possession of animals when traps “deprive them of their natural liberty, and render escape impossible….”
Significance of this may depend on whether fox driven into well by Pierson or by Post.

59. Suppose fox was inside a well when it was killed…
Pierson v. Post: DQ1.04(c)
Suppose fox was inside a well when it was killed…
If fox mortally wounded by fall into well, might belong to whoever drove it into well.
Could treat as trap (“toil”), which case suggests equals possession for “trapper” if fox cannot escape
BUT even if Post had driven fox into well, could still say that Post still did not have actual physical possession of the fox.

60. Pierson v. Post: DQ1.04(c)
Suppose fox was in a well when it was killed ….
Contemporary accounts outside the legal record say this was what happened.
Assuming this is correct, probably not discussed in case b/c not in declaration. Why might Post’s lawyer have failed to include this information?

61. Note Again Importance of Lawyer
Pierson v. Post: DQ1.04(c)
Significance of Facts
Suppose fox was inside a well when it was killed. Why wouldn’t lawyer include it in declaration?
Maybe strategic decision (e.g., if Pierson drove it there).
Maybe lawyer didn’t think it was important.
Maybe lawyer didn’t know (asked wrong Qs)!
Note Again Importance of Lawyer

62. Pierson v. Post: DQ1.04(c) Significance of Facts Jack & Jill
Given what you know about the case, anything wrong with this image of the well?
Jack & Jill

63. Pierson v. Post: DQ1.04(c) Significance of Facts
This kind of well on a beach on Long Island would fill with salt water.

64. Pierson v. Post: DQ1.04(c)
For years I assumed Pierson shot fox at bottom of stereotypical (Jack-and-Jill) well, BUT wouldn’t have this kind of well on beach.
BUT Detail in contemporary account says:
Fox went into a “shoal well” (shallow hole on beach that collects fresh water).
Pierson hit fox on the head with a broken fence rail (“broke its crown”?).
ONE MORAL OF THE STORY: KEEP REREADING & CHECK YOUR ASSUMPTIONS!!

65. Pierson v. Post: DQ1.04(c)
Note that NY SCt is ruling on the sufficiency of Post’s Declaration.
It appears that the Declaration doesn’t mention a well or how Pierson killed the fox, so those “facts” are not part of the court’s analysis/decision.
FYI: Bethany R. Berger, It's Not About the Fox: The Untold History of Pierson v. Post, 55 Duke L.J (2006) (Highly Recommended for Sense of How Reality Morphs Before Becoming “Facts” of a Case)

66. CASE BRIEF: Narrower v. Broader Versions of Holdings
Different ways to articulate what a court decided that contract or expand the scope/reach of the decision.

67. CASE BRIEF: Narrower v. Broader Versions of Holdings
Covers fewer situations
Includes more facts
More specific
Covers more situations
Includes fewer facts
More general

68. Pierson v. Post: Issue/Holding
To get property rights in a fox [found on a deserted beach], you must be the first to “occupy” it, which means you must do more than pursue it. (Narrower)  To get property rights in a fox [found on unowned land], you must be the first to “occupy” it, which means you must do more than pursue it. (Broader)

69. FAILED RELATIONSHIPS: Narrower v. Broader Versions of “Holdings”
Different ways to articulate the lesson you should take away from the break-up that contract or expand the scope/reach of the lesson.

70. FAILED RELATIONSHIPS: Narrower v. Broader Versions of “Holdings”
Different ways to articulate the lesson you should take away from the break-up that contract or expand the scope/reach of the lesson.
“I’ll never date a musician again!!”

71. FAILED RELATIONSHIPS: Narrower Versions of “Holdings”
Different ways to articulate the lesson you should take away from the break-up that contract the scope/reach of the lesson.
“I’ll never date a musician again!!”
Musician who is an Only Child?
Keyboardist?
Person in a Rock Band?

72. FAILED RELATIONSHIPS: Broader Versions of “Holdings”
Different ways to articulate the lesson you should take away from the break-up that expand the scope/reach of the lesson.
“I’ll never date a musician again!!”
Woman?
Human Being?
Sentient Creature?

73. Pierson v. Post: Issue/Holding
To get property rights in [a fox] found on unowned land, you must be the first to “occupy” it, which means you must do more than pursue it. (Narrower)  To get property rights in [an animal] found on unowned land, you must be the first to “occupy” it, which means you must do more than pursue it. (Too Broad???)

74. Pierson v. Post: DQ1.04(b) RECAP: Might want different rules for:
Pets/Domestic Animals (Different Rules Exist)
Fox w T-Shirt  Likely Domesticated or Pet
Endangered Species
Animals in School/Flock
Very Valuable Animal/Food Animal
Animal Directly Endangeriung Persons or Property

75. Pierson v. Post: Issue/Holding
To get property rights in [a fox] found on unowned land, you must be the first to “occupy” it, which means you must do more than pursue it. (Narrower) 
To get property rights in [an animal ferae naturae] found on unowned land, you must be the first to “occupy” it, which means you must do more than pursue it. (Broader, but clearly still supported by text)
Reference to “Endangered Species” not part of 1805 worldview.
Nothing in majority opinion suggests different rules for edible/valuable animals or for animals hunted in schools or flocks. (Might arise in future cases & modify rule from Pierson)

76. Pierson v. Post Significance of Facts
Assume (as is likely) that the jury found that the facts were as Post alleged. Relevance to this appeal?

77. Pierson v. Post Significance of Facts
Assume (as is likely) that the jury found that the facts were as Post alleged. Relevance to this appeal?
None. Claim on appeal is that even if all facts are as alleged, Post cannot win because his pursuit did not create property rights in fox.