Lawyering Fundamentals Outline PDF

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LAWYERING FUNDAMENTALS 1. INTRODUCTION TO THE COURSE, LAWYERING, AND THE LEGAL SYSTEM a. Pre-course Survey i.

I felt really good about my survey answers.

b. Introduction to Lawyering Part 1 Lecture i.

GOALS: 1. to prepare you for the law school experience 2. Reveal what you can expect during law school 3. simulate classes 4. building important lawyering skills a. case briefing b. outlining c. essay writing 5. demystify traditional law school teaching methods 6. acclimate sooner 7. succeed faster

ii.

iii.

“your success and enjoyment are proportional to the effort and attention you put into it..” OBJECTIVES: 1. you should be able to answer the following questions after this module: a. how does law school prepare you for the work of a lawyer? b. what is legal analysis? c. what is legal ambiguity? d. how do lawyers use questions to solve legal problems? e. what is the ‘BAE Check?’

2. POP QUIZ: a. PURPOSE: i.

reading comprehension abilities

ii.

basic grasp of some of the rules we will cover in class

iii.

ability to identify and resolve legal problems

iv.

ability to follow directions

b. QUIZ QUESTIONS

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i.

Harry Potter suffered from a severe stuttering problem. Severus Snape, Harry’s potions teacher, approached Harry over thirty times in a semester and verbally and physically mimicked Harry’s disability. Harry dreaded attending Severus’s class. Severus never touched or threatened to touch Harry. Cause of Action by Harry: Intentional Infliction of Emotional Distress (IIED)

ii.

Cookie Monster pointed an unloaded gun at Grover and said “I am going to kill you if you eat my cookies.” Grover feared Cookie Monster would shoot. Grover did not know the gun was unloaded. Cause of Action by Grover: Assault

iii.

Cookie Monster pointed an unloaded gun at Grover and said “I am going to kill you if you eat my cookies.” Cause of Action by Grover: Assault

iv.

Cookie Monster pointed an unloaded gun at Grover and said, “I am going to kill you if you eat my cookies.” Grover knew the gun was unloaded. No liability

v.

Maria von Trapp was sitting in the first row of a play. As the lead actress, Julie Andrews, burst into a song, a large fleck of phlegm flew from her lips and landed on Maria von Trapp’s face. Cause of action by Maria: negligence?

vi.

Mary Poppins and Julie Andrews were coworkers. Julie Andrews always entertained her friend by imitating Mary Poppins’s mannerisms. One day, MP caught JA imitating her. Mary was so mad she placed a tack on Julie’s chair. Julie sat on the tack. Cause of Action by Julie: Battery

vii.

Before they were acquainted, Danny and Sandy happened to be eating lunch at the same table. Danny had heard that Sandy hated vegetables. Danny, who also knew Sandy was shy, attempted to tease Sandy by putting his arm around Sandy’s neck and pulling her face towards a piece of broccoli. Sany suffered a sharp pain in the back of her neck, which paralyzed the left side of her face. Cause of Action by Sandy: Assault and Battery.

viii.

Banana - Fruit

ix.

Tomato: thing, fruit, veggie

3. Steven Covey’s 7 Habits of Highly Effective People: a. be proactive b. begin with the end in mind 4. Activity - What attributes make a good song? describe 4 or 5 attributes that make a good song. iv.

What are lawyers trained to do? 1. Why does a hair dress go to a hairdressing school? a. knowledge i.

chemicals, shampoos, relaxers

ii.

hair types

iii.

hot tools, etc.

b. skills i.

cutting

ii.

styling

iii.

counseling

iv.

flexibility

c. Many of these things are not connected to hair - lawyers require robust knowledge and the ability 2. Why does want to be lawyer go to law school? 3

a. knowledge i.

rules 1. substantive rules (codes, common law, statutes, etc.) 2. Procedural Rules

ii. iii.

legal terminology licensing requirements

b. skills i.

reading comprehension

ii.

critical and creative thinking

iii.

logical reasoning

iv.

knowing how to formulate and ask questions

v.

communicating effectively

vi.

management (time, people, business, accounting)

vii.

grit, persistence, self-discipline

viii.

a want to serve, ethics

c. your legal training is designed to develop critical skills that lawyers use to solve client problems. i.

your professors will expect you to learn how to teach yourself the material.

ii.

they will trust that you are doing the work assigned.

iii.

think of yourself as lawyer-in-training.

iv.

the goal of law school is to teach you how to be a lawyer.

v.

training you to think like a lawyer.

vi.

At the end of course - they want you to see yourself as more than just a law student.

c. Introduction to Lawyering Part 2 Lecture i. 4

A lawyers work is really about resolving client problems - how do we do that?

1. Legal Analysis a. definition: examine methodically and in detail the constitution or structure of something, especially information. It is typically used for purposes of explanation and interpretation. i.

Examining it from all sides.

ii.

examining a problem methodically and in detail for purposes of interpreting that problem in the terms of the law.

iii.

multi step process that lawyers use to solve a problem

b. How do lawyers analyze legal problems? i.

to analyze methodically and in detail. 1. how would a lawyer analyze the viability of a client’s claim? 2. lawyers use questions as to tools to analyze legal problems a.

questions help break the problem into small pieces, examine from angles, and identify what additional info she needs.

b. smaller questions help inform how the lawyer will respond to the larger question - is this client going to win her case? 3. questions are the primary tool lawyers use to analyze legal problems. to examine it methodically and in detail, you have to break the larger question into smaller questions that can be more easily addressed. c. what is happening in your brain during legal analysis? i.

the process of legal analysis is really just categorization. 1. categorizing the problem broadly, and ultimately, all the way down to categorizing the facts within the specific rules specified by our law. a. ability to eliminate is legal analysis 2. categorizing the facts of the problem within the rule of lawconnecting rules and facts.

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a. to analyze viability of the case we need to determine whether we can prove each of the elements of a specific law using the facts of the subject action. 3. example- call of the question (question that covers the fact pattern): What cause of action should sandy bring? a. Danny and Sandy were eating lunch. Danny knew that S was shy and hated veggies. D attempted to tease S by putting his arm around S’s neck and pulling her face towards a piece of broccoli. Sandy suffered a sharp pain in the back of her neck, which paralyzed the left side of her face. 4. questions to ask i.

whose sandy? - can tell she’s the plaintiff because she’s bringing the action.

ii.

what happened to her?

iii.

what cause of action does she have?

iv.

what area of law does her claim fit?

5. using questions is categorizing - connecting the problem to an area of law and connecting the words and phrases in the story to the words and phrases in the applicable rule. 6. Connecting the rule of battery to the Danny and Sandy Hypo: a. Battery: a defendant is liable for battery when he intentionally causes a harmful or offensive contact with the plaintiff’s person. i.

defendant: danny

ii.

with the plaintiff’s person: sandy

iii.

harmful or offensive contact: sharp pain in the back of her neck.

7. learning how to do legal analysis means becoming aware of what your brain is NOT doing or not doing.

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8. its important to know what legal analysis entails because ultimately, you’re going to have to communicate your analysis, usually in writing. 9. legal analysis requires you to dig into everything in a granular level. must connect all pieces of the rule from facts with the fact pattern. 2. Legal Ambiguity a. the tomato question from the quiz - categories - analyzed from a legal standpoint: i.

why are we trying to categorize the tomato in the first place?

ii.

could it fit in one ore more categories?

iii.

are there implications if the tomato is placed in one category and not the other? 1. ^^^^ Nix v. Hedden a. tariff act of 1883 required a tax to be paid on imported vegetables, but not fruit. the nixes imported tomatoes- were forced to pay tax. sue to get back taxes. 2. tomato yes, but also about money.

b. the answer to legal problems isn’t always clear. i.

most things are not black an white.

ii.

most things are susceptible to multiple meanings.

iii.

reasonable minds can and do disagree. usually arguments on both side of an issue.

c. grapple with the gray areas of the law i.

think about and grapple with another argument

ii.

contemplate other arguments to move you beyond the black and white.

d. Nix Argument: the court should use the traditional dictionary definition of a fruit; which is the sweet and fleshy product of a tree or other plant that contains seeds and can be eaten as food.

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i.

tomato is sweet, seed bearing edible that produce by a plant.

ii.

Questions to think about to challenge the Nix argument: 1. is there an alternate definition that would result in the tomato getting classified as a veggie? 2. work to resolve client’s problem.

e. Government’s Argument (Defense): i.

notwithstanding the traditional definition, the popular perception is that tomatoes are vegetables, supported by how tomatoes are used in the household as veggies.

ii.

within the tariff act, the government intended to tax certain types of foods based on how they were commonly used, not on the technical bio definition.

f. Court ultimately sided with Gov. Tomatoes are veggies within the meaning of the Tariff Act. g. ambiguities create opportunities for arguments. h. depends on what definition and what rule you are using - this is ambiguity. i. legal education designed to train you to find and attack issues from all angels j. be more interested in the analytical process than getting to the right answer 3. IRAC: Structuring Legal Analysis (structure of analysis of any legal question around a specific paradigm or template. a. the specific way lawyers structure and communicate legal analysis. b. “Is Whatever It Takes?” by Imagine Dragon a good song? Exercise -

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i.

takeaway: ultimately there is no right answer- there are no “correct” criteria for analyzing what makes a good song a good song.

ii.

there is still a way to a logically analyze (in this case if it’s a good song):

1. identify the issue that you will be addressing- whether “Whatever It Takes” is a good song. 2. specify the criteria that all good song share- the rules that will guide your analysis 3. appy each of those criteria to “whatever it takes” 4. make a conclusion that logically follows iii.

there are answers that are more logically structured and communicated than others.

iv.

in the world of the law - unsupported opinions are irrelevant.

v.

conclusion is meaningless without the rules and an application of those rules

c. ISSUE i.

distill the issue: the specific question that must be resolved.

ii.

whats the issue here?

d. RULE i.

provide the controlling law: what criteria are we using to answer this question.

ii.

whats the controlling rule of law?

e. APPLICATION i.

apply the criteria to the facts: make arguments explaining why the rule is or is not met given the facts of the problem we are solving.

ii.

what happens when i apply the criteria?

f. CONCLUSION i.

logically follows

g. EXAMPLE: Lindsey walked through the grocery store to buy some fruit. She first put two apples in her basket, and then she added three oranges. Later, she realized that she did not have enough apples, so she added four more, along with six bananas. She then dropped the orange on the floor, so she had to add one more orange to her basket. Lindsey

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finally decided that she had enough fruit. How many apples and oranges does Lindsey have in her basket? i.

I: how many apples and oranges in the basket?

ii.

R: addition and subtraction to find out many apples and oranges. 1. addition is the process of adding something to something else. subtraction is the process of subtracting something from something else. find the sum of all the things added and then subtract the number of anything else.

iii.

A: facts - how did you get to the rule? 1. lindsey had two apples, then added four more. six apples. lindsey originally placed three oranges in basket. lost one. subtract one. 2 oranges left. she put one more orange to replace the one she lost.

iv.

C: six apples, three oranges.

h. read the call of question first. the question told you what was important. apples and oranges. i. what criteria or rules are we going to use to answer the question? addition and subtraction. j. show our work- unsupported answer without explanation isn’t sufficient. prove your conclusion. 4. BAE CHECK - grasping the concepts is vital to your success in law school. a. BE ABLE TO EXPLAIN: you can test your understanding of any material you’re studying by trying to explain it in your own words clearly and accurately. i.

for example: electricity- do you understand it? could you explain to a BAE how it powers your computer?

b. familiarity is not the same as understanding. 5. Law School is Different: a. familiarity or even memorization of terms and concepts isn’t sufficient b. you have to understand what you are learning 10

c. law school exams require you to apply your knowledge to new examples 6. self assessment tool to continually check your understanding. ii.

KEY TAKE AWAYS: 1. emphasized that lawyers are problem solvers a. use questions to obtain a better understanding 2. legal analysis is a structured logical approach to resolving problems a. conclusions to any question must be supported by a rule or a set of rules that when applied to the facts of the case, help you explain the conclusion. 3. test your understanding of the rules with the BAE check a. clear and concise method

d. “The Four Anchoring Principles of Lawyering Fundamentals” Reading i.

There is always a method to the madness 1. the song problem a. identify the issue that you will be addressing b. specify the criteria on which you plan to analyze that question c. provide an application why or why not a particular song or songs whereby you explain why or why not a particular song is a good under the criteria specified d. culminate in a conclusion that tells the reader or listener that the song analyzed meets or fails to meet such criteria. 2. an answer that sets forth criteria but fails to incorporate the criteria in the explanation or analysis fails to make out a logical argument. 3. To make the argument in a logical, legal-like fashion, you must state the criteria or rules you are using to form such a conclusion. But that is not enough. You must close the loop. To close the loop, apply the mathematical rules (or whatever criteria you used) to the facts.

ii.

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question-the-question, everytime

1. you are going to law school o learn the skills and the knowledge necessary to practice law. the practice of law is about how you think; thus, law school is primarily designed to train your mind how to think like a lawyer. 2. law school endeavors to help you discover how to think on your own. “hiding the ball.” 3. question everything. lawyers use questions to “pick apart” or “break apart” large questions to help them get a better idea of how to identify and resolve the pertinent issues in a way that is correct and responsive to their client’s needs. a. The lawyer uses questions to unpack the issues. It is only after unpacking the issues that the lawyer can determine the rules, set of rules, or criteria that will best shape the response to the question asked. iii.

legal ambiguity- reasonable minds can and do disagree 1. a lawyer is trained to think about the arguments one can make either way, as opposed to the so-called “correct answer”. 2. We will take you beyond the cliché black-and-white thinking into the grey area where strong legal arguments also reside. 3. you work to resolve your client’s problem. (Of course, the other side will also be making arguments that are opposite to the ones you made on behalf of your client.)

iv.

the BAE test is one of the most important test you will ever face 1. you should be able to explain everything you read, hear or learn in a clear concise manner. Naturally, your communication might be incomplete, but it should be clear that a person of reasonable intelligence can understand it.

e. Introduction to the Legal System Lecture: give you context before you read and discuss cases in the legal system. i.

OBJECTIVES: 1. basic court systems 2. set of law controls a given dispute 3. evaluate cases under stare decisis

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4. a disputes way through the court system ii.

TOPICS: 1. branches of government a. judicial - interprets and resolves disputes involving these laws. decides whether the laws or actions by the president are constitution. However, judges within the judicial branch depend on the executive branch, like the Justice Department, to enforce court decisions. b. legislative - federal rules are passed here - congress. c. executive - federal rules are enforced here - the president. 2. court system (part of the judicial branch): Constitution authorizes congress to create a system of lower courts - 94 district level trial courts, 13 court of appeals a. federal court system - resolve disputes involving the US Constitution, Federal Statutes, and Federal Regulations. Jurisdiction to resolve state disputes when the parties meet special criteria (i.e. different states)

i.

supreme 1. acts as a final arbiter of law 2. court of last resort for cases within its jurisdiction

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3. job is to determine whether the district and circuit court of appeals applied the law correctly 4. may or may not be required to hear cases. 5. there are 9 justices on the supreme court. 6.

ii.

each term, but the supreme court agrees only to h...