1. ELEMENTS B POWER POINT SLIDES Class #3 Monday, August 24, 2015

2. MUSIC: Beethoven Symphonies #1 (1800) & #3 (1805) Recordings: Chamber Orchestra of Europe Nikolaus Harmoncourt, Conductor (1991)SCHEDULES for DF Sessions & Lunches Posted on Course Page LUNCH TODAY Meet on Brix @ 11:55: Burroughs * Dykes * Emenike Pijls * Salvatore * Strickland

3. ELEMENTS B Three Common 1L Issues Class #2: Confusion Class #3: Control Class #4: Competition v. Cooperation

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

5. ELEMENTS B: Control (1)Control Over Time (v. Distractions) Fall 1982

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

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

8. 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 – Write Out Briefs

10. ELEMENTS B: Control (2) Control Over Material/Performance Suggestions to Feel More in Control – After Class: – Review & Repair – Check Briefs Against Posted Samples

11. ELEMENTS B: Control (2) Control Over Material/Performance Suggestions to Feel More in Control – Written Assignments Do all parts of (not just what you turn in) Compare to posted comments & models

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

14. ELEMENTS B/D: Control (3) Control & Hurricane Season Getting Good Information National Hurricane Center Website (check every few days during Fall Semester): www.nhc.noaa.govwww.nhc.noaa.gov UM Hurricane Preparedness Site (look over): www.miami.edu/ref/index.php/ep/emergency_prepare dness-_before/getting_ready/hurricane_preparedness/ www.miami.edu/ref/index.php/ep/emergency_prepare dness-_before/getting_ready/hurricane_preparedness/

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

16. ELEMENTS B: Control (3) Control & Hurricane Season Preparation: You Might Not Have Power for Several Days (1992 & 2005) 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

17. ELEMENTS B: Control (3) Control & Hurricane Season After a Storm UM 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 e-mail OR Talk to folks who’ve been through storms

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

19. Pierson v. Post CASES IN CONTEXT History of the Underlying Dispute (DQ1.01) (Wednesday) How Legal System Has Handled Similar Disputes (DQ1.02) (Precedent; Wednesday/Friday) Overall Social/Historical Context (1805; Friday) How Society Has Handled Similar Disputes Outside the Legal System (DQ1.03) (Custom; continued from Friday) How Society Has Handled Similar Disputes Outside the Legal System (DQ1.03) (Custom; continued from Friday)

20. Pierson v. Post: DQ1.03 CUSTOM & LAW The dissent suggests that the court should defer to hunters’ customs. Would that be a good thing? Subquestions in DQ1.03 designed to help you think about this.

21. Pierson v. Post: DQ1.03 CUSTOM & LAW Examples of Situations Where Custom Differs from Law?

22. Pierson v. Post: DQ1.03 CUSTOM & LAW Situations where custom differs from law Problems Caused by these Differences?

23. Pierson v. Post: DQ1.03 CUSTOM & LAW Situations where custom differs from law Problems caused by this difference include: Uncertainty Discretionary Police Power Disrespect for Law

24. Pierson v. Post: DQ1.03 CUSTOM & LAW To avoid these problems, gov’t can change law to conform to custom. Sometimes, improves situation May be exercise of common sense Soia & paths through the grass

25. Pierson v. Post: DQ1.03 CUSTOM & LAW When might conforming to custom be a bad idea?

26. Pierson v. Post: DQ1.03 CUSTOM & LAW When might conforming to custom be a bad idea? (Includes…) Bad customs Uncertain customs – Disputed; or – Hard to apply Surprise to Parties Affected

27. Pierson v. Post: DQ1.03 CUSTOM & LAW When might conforming to custom be a bad idea? (Includes…) Bad customs Uncertain customs – Disputed; or – Hard to apply Surprise to Parties Affected Is Pierson v. Post a good situation to have law conform to hunters’ customs?

28. Pierson v. Post: DQ1.03 CUSTOM & LAW Is Pierson v. Post a good situation to allow law to conform to hunters’ customs? Lawyering Note: Often focus on “Who is appropriate decision-maker?”, rather than “Is particular decision best one possible?”

29. Pierson v. Post: DQ1.03 CUSTOM & LAW When should law conform to custom? Recurring question in many areas of law – Contract Law v. Normal Business Practices – Tort Law: Use Industry Practices as Standard of Care? We’ll return to this question with regard to whaling customs in Unit Two

30. Pierson v. Post: DQ1.03 Qs on Custom?

31. CASE BRIEF: Generally LIKE A RESUME Standardized Information Range of Successful Ways to Present Alter for Different Audiences Rarely the Whole Story

32. Pierson v. Post: Citation Pierson v. Post, 3 Caines 175 (N.Y. 1805) See Bluebook for citation forms generally. In-Class Qs on Case Briefs: – Avoid “Is it OK that I put ….” – Make Qs More General or Wait Until After Class

33. CASE BRIEF: Statement of the Case Succinct Statement of Nature of Original Lawsuit (complete Statement unlikely to be stated explicitly in case itself)

34. CASE BRIEF: Statement of the Case Succinct Statement of Nature of Original Lawsuit In Case Brief: Reminds You Quickly What Case Is About

35. CASE BRIEF: Statement of the Case Succinct Statement of Nature of Original Lawsuit In Case Brief: Reminds You Quickly What Case Is About In Legal Memos: & Court Submissions: Quickly Explains to Reader Nature of Case You Are Discussing

36. CASE BRIEF: Statement of the Case 1.Who Sued Whom? – In initial lawsuit – NOT “Who appealed?”

37. Pierson v. Post: Who Sued Whom? Not Helpful “Plaintiff Sued Defendant” (always true; provides no info)

38. Pierson v. Post: Who Sued Whom? Not Helpful “Plaintiff Sued Defendant” “Post Sued Pierson” (provides no info about lawsuit)

39. Statement of the Case: WHO SUED WHOM? Describe Parties in Way that Gives Sense of Subject of Lawsuit Apartment Landlord Sued Former Tenant Who Abandoned Unit… Purchasers of Leaky New House Sued Developer... Consumer Injured By Exploding Blender Sued Manufacturer and Seller of Blender...

40. Statement of the Case: WHO SUED WHOM? Helps Clarity of Case Brief to Include Parties’ Names Matheson, Apartment Landlord Sued Jacobson, Former Tenant Who Abandoned Unit… Aldens, Purchasers of Leaky New House Sued Landco, Developer, Ortiz, Consumer Injured By Exploding Blender, Sued Gemco, Manufacturer, and Walmart, Seller of Blender... Then can reference by name in rest of brief.

41. Pierson v. Post: Who Sued Whom? Post, … (?) sued Pierson, … (?) Descriptions of parties should help you understand what lawsuit was about without including unnecessary detail …

42. Pierson v. Post: Who Sued Whom? Post, a blond 27-year old Dutch- American asthmatic unemployed son of a Revolutionary War hero... (None of this seems relevant.) *Better descriptions of Post? (several plausible versions)

43. Pierson v. Post: Who Sued Whom? Post, a hunter who had been pursuing a fox, sued Pierson, … *Descriptions of Pierson? (again several plausible versions)

44. Pierson v. Post: Who Sued Whom? Post, a hunter who had been pursuing a fox, sued Pierson, who killed the fox knowing of the pursuit... (One plausible version)

45. CASE BRIEF: Statement of the Case 1.Who Sued Whom? 2.Under What Theory (Legal Cause of Action)? Aldens, Purchasers of Leaky New House Sued Landco, Developer, for Breach of Warranty … Ortiz, Consumer Injured By Exploding Blender, Sued Gemco, Manufacturer, for Negligent Design...

46. 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 …

47. 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” (see 1 st Sentence of Case) … *Means?

48. Pierson v. Post: Under What Theory? “Trespass on the Case” “Trespass on the Case” – Indirect – Indirect Injury to П’s Property – E.g., left fire burning on own land & ruined П’s house “Trespass” Compare “Trespass” Direct Direct Injury to П’s Property E.g., entered П’s land and stomped on garden *Why Might Injury Be Indirect Here?

49. Pierson v. Post: Under What Theory? “Trespass on the Case” (Indirect Injury) v. “Trespass” (Direct Injury) Could be indirect here because Pierson did not harm property in Q (fox) with his bare hands, but used some kind of weapon (maybe a projectile). Distinction not important for our class— – Opinions in Pierson do not discuss this distinction. – Distinction won’t be referenced in our later cases. BUT good to get used to noting things like this. Compare “Trespass” = Direct Injury to П’s Property Why Indirect Here?

50. CASE BRIEF: Statement of the Case 1.Who Sued Whom? 2.Under What Theory (Legal Cause of Action)? 3.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].

51. 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?

52. 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.)

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

54. 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 seeking damages. Again, Number of Possible Versions Qs

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

56. 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.

57. 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.

58. Pierson v. Post: Procedural Posture After Trial Resulted in Verdict for Post [Π], N.Y. Supreme Court Granted Pierson’s [Δ’s] Petition for [Certiorari] Review. – Note that you don’t have to give name of appellate court where already clear from the citation. – Questions?

59. CASE BRIEF: Facts Only include facts arguably relevant to court’s analysis. – Can’t determine relevance on 1 st 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 & 1.05 & issue/holding