1. MUSIC: Granados, Spanish Dances (1890s) Alicia de Larrocha, Piano (1994) LUNCH TODAY @ 12:05 1. Fitzmartin 2. Gibbs 3. Isenstein 4. Kane 5. Mackesey 6. McGivern 7. Newman LUNCH TOMORROW @ 12:25 1.Christian 2. Douglas 3. Emery 4. Greenwald 5. Hendricks, Tim 6. Mersky 7. Nizio

2. LIESNER CONTEXT: 1914

3. 1914: DEATHS Joshua Lawrence Chamberlain (Civil War Hero) John Muir (Naturalist) Jacob Riis (Journalist/Author) 19 th Century Industrialists –CW Post (Grape Nuts & Other Cereals –George Westinghouse (RR Brake and Electronics) –Frederik Weyerhauser (Timber & Paper)

4. 1914: BIRTHS Alec Guiness Bert Parks Joe Louis Joe DiMaggio Ralph Ellison Howard K. Smith

5. 1914: Introduced in US: term “Birth Control” (coined by Margaret Sanger) First Blood Transfusion Doublemint chewing gum Elastic Brassiere Federal Trade Commission Co. that will become Greyhound Bus Mother’s Day (by Congr. Resolution)

6. 1914: Introduced in US: New Republic Magazine Panama Canal Pygmalion by GB Shaw Rookie Pitcher: Babe Ruth Tarzan of the Apes Teletype Machine Traffic Lights using red-green signals

7. 1914: World War I: Sept. 5: 1 st Battle of the Marne Begins Dec. 24-25: Christmas Truce

8. 1914: World War I: June 28: Archduke Francis-Ferdinand Assassinated in Sarajevo: The Shot Heard Round the World

9. Agenda: Today  Friday 1.NEON: Finish DQ 14 2.MERCURY: DQ15-16 & Rest of Liesner Brief 3.NEON: Introduce DQ17-18 4.PHOSPHORUS/ZINC: Liesner Trial Transcript 5.CALCIUM: Begin Shaw Brief 6.NEON: Complete DQ17-18

10. DQ14: Application of Pierson to Facts of Liesner ASSUME TRIAL COURT FACTS CORRECT: 1.Ps mortally wounded animal, pursued 2.Escape Improbable, if not impossible 3.D then shot & killed, took animal

11. DQ14: Application of Pierson to Facts of Liesner ASSUME TRIAL COURT FACTS CORRECT: 1.Ps mortally wounded animal, pursued 2.Escape Improbable, if not impossible 3.D then shot & killed, took animal APPLY LANGUAGE FROM PIERSON RELEVANT PASSAGES WE DID NOT DISCUSS YESTERDAY?

12. NEON DQ14: Application of Pierson to Facts of Liesner ASSUME TRIAL COURT FACTS CORRECT: 1.Ps mortally wounded animal, pursued 2.Escape Improbable, if not impossible 3.D then shot & killed, took animal APPLY POLICIES FROM PIERSON: Reward Effective Labor

13. NEON DQ14: Application of Pierson to Facts of Liesner ASSUME TRIAL COURT FACTS CORRECT: 1.Ps mortally wounded animal, pursued 2.Escape Improbable, if not impossible 3.D then shot & killed, took animal APPLY POLICIES FROM PIERSON: Certainty? (Context: Mortal Wound as Creating Property?)

14. DISPOSITIVE MOTIONS: Motions to end the case. (“Dispose of” case  “Dispositive”)

15. DIRECTED VERDICT Trial Court Rules That Insufficient Evidence to Meet Relevant Legal Standard Was Presented to the Jury

16. DIRECTED VERDICT Trial Court Rules That Insufficient Evidence to Meet Relevant Legal Standard Was Presented to the Jury Two Possible Grounds for Appeal –Trial Court Applied Wrong Legal Standard –Evidence Was Sufficient to Meet Legal Standard

17. DIRECTED VERDICT: LIESNER We’ve Already Discussed: D Conceded Relevant Legal Standards, So Must Be Claiming That Evidence Sufficient to Raise Jury Q

18. DIRECTED VERDICT: LIESNER Unusual Case: Directed Verdict for Plaintiff Trial Record appears to contain factual disputes Trial Court must have believed that undisputed evidence proved P’s case

19. DQ15. What test does the court appear to apply as to when a trial court should grant a motion for directed verdict?

20. 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 ….

22. IMPLICIT LEGAL TEST IN WISCONSIN (1914) Trial court can direct a verdict for a party if uncontested evidence removes all reasonable doubts that the party’s claim has been proven.

23. What facts precisely does Wanie claim were not proved beyond a reasonable doubt?

24. “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.”

25. “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 ….”

26. Claim Must Be: There was sufficient evidence that other people’s shots might have hit the wolf or that the Liesners’ shots didn’t hit it to create reasonable doubts that the shot that mortally wounded the wolf was fired by one of the Liesners.

27. LIESNER: ISSUE Did the Trial Court err by directing a verdict for the plaintiff because the defendant offered sufficient evidence to create a reasonable doubt about who fired the shot that mortally wounded the wolf, thus gaining ownership of it?

28. In this appeal, defendant is questioning whether the plaintiffs mortally wounded the wolf. Thus, the rest of your brief should reflect that this fact is contested.

29. STATEMENT OF THE CASE Liesner and another, who mortally wounded a wolf, sued Wanie, who subsequently killed and took the wolf, seeking recovery of the wolf.  Liesner and another, who first shot a wolf sued Wanie, who subsequently killed and took the wolf, seeking recovery of the wolf.

30. FACTS Plaintiffs 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.  The Trial Court found that plaintiffs mortally wounded a wolf and pursued it to the point that escape was improba- ble, if not impossible. D then shot & killed the wolf and took the carcass.

31. MERCURY: DQ15. Is the court certain that the test for directed verdict was met in this case?

32. 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 ….

33. LIESNER: HOLDING No, the Trial Court did not err by directing a verdict for the plaintiff 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.

34. 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.

35. MERCURY DQ16. What are “the superior advantages which the trial court had”?

36. MERCURY DQ16. What are “the superior advantages which the trial court had”? Visual Observation of Witnesses Hearing Testimony

37. She asked me to take her to the dance.

38. DQ16. What do these advantages suggest about the appropriate role of the appellate court in reviewing factual determinations made by juries or trial judges? DEFERENCE!!

39. LIESNER: RATIONALES Not a lot in a narrow case reviewing sufficiency of the evidence. Might give substantive rule as a doctrinal rationale. Might give “superior advantages” as a policy rationale

40. “Prevailing rule”: Property in wild animal created if one has “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.” NEON: DQ17: Meaning of Vested? Of Divested?

41. Example of Property Right We’ve Discussed That is Contingent (As Opposed to Vested)?

42. RATIONE SOLI

43. “Prevailing rule[s]”: Property in wild animal created if one has “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.”

44. NEON: DQ17-18: After Trial Record & Start of Shaw Brief Using Key Language (Looks Like 3 Rules) substantially permanently deprive [animal] of liberty so in their power that escape improbable, if not impossible under control; so that actual possession practically inevitable Be Ready to Discuss: Differences (if any) between the tests? DQ17: Evidence necessary to prove DQ 18: Application to facts of Pierson

45. NEON: DQ17: After Trial Record & Start of Shaw Brief COMPARE POSSIBLE RULES 1.Actual Possession Likely 2.Actual Possession Practically Inevitable 3.Actual Possession Inevitable Be ready to discuss policies supporting & opposing choice of #2:

46. Liesner v. Wanie TRIAL RECORD

47. Phosphorus: Phosphorus: DQ19 (Wanie) Wanie must have argued: L-Boys did not mortally wound wolf L-Boys did not continue pursuit BEST EVIDENCE SUPPORTING?