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

LIESNER CONTEXT:

1914

1914: DEATHS

• Joshua Lawrence Chamberlain (Civil War Hero)

• John Muir (Naturalist)• Jacob Riis (Journalist/Author)• 19th Century Industrialists

– CW Post (Grape Nuts & Other Cereals– George Westinghouse (RR Brake and

Electronics)– Frederik Weyerhauser (Timber & Paper)

1914: BIRTHS

• Alec Guiness

• Bert Parks

• Joe Louis

• Joe DiMaggio

• Ralph Ellison

• Howard K. Smith

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)

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

1914: World War I:

• Sept. 5: 1st Battle of the Marne Begins

• Dec. 24-25: Christmas Truce

1914: World War I:

• June 28: Archduke Francis-Ferdinand Assassinated in Sarajevo: The Shot Heard Round the World

Agenda: Today Friday

1.1. NEON: Finish DQ 14NEON: Finish DQ 14

2.2. MERCURY: DQ15-16 & Rest of MERCURY: DQ15-16 & Rest of Liesner Liesner BriefBrief

3.3. NEON: Introduce DQ17-18NEON: Introduce DQ17-18

4.4. PHOSPHORUS/ZINC:PHOSPHORUS/ZINC: Liesner Liesner Trial Trial TranscriptTranscript

5.5. CALCIUM: Begin CALCIUM: Begin ShawShaw Brief Brief

6.6. NEON: Complete DQ17-18NEON: Complete DQ17-18

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

DQ14: Application of Pierson to Facts of Liesner

ASSUME TRIAL COURT FACTS CORRECT:1. Ps mortally wounded animal, pursued2. Escape Improbable, if not impossible3. D then shot & killed, took animalAPPLY LANGUAGE FROM PIERSON

RELEVANT PASSAGES WE DID NOT DISCUSS YESTERDAY?

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

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?)

DISPOSITIVE MOTIONS: Motions to end the case.

(“Dispose of” case “Dispositive”)

DIRECTED VERDICT

• Trial Court Rules That Insufficient Evidence to Meet Relevant Legal Standard Was Presented to the Jury

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

DIRECTED VERDICT: LIESNER

• We’ve Already Discussed: D Conceded Relevant Legal Standards, So Must Be Claiming That Evidence Sufficient to Raise Jury Q

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

DQ15. What test does the court appear to apply as to

when a trial court should grant a motion for directed verdict?

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 ….

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 ….

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.

What facts precisely does Wanie claim were

not proved beyond a reasonable doubt?

“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.”

“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 ….”

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.

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?

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.

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.

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.

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

this case?

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 ….

LIESNER: HOLDINGNo, 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.

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.

MERCURY

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

MERCURY

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

• Visual Observation of Witnesses

• Hearing Testimony

She asked me to take her

to the dance.

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!!

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

“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?

Example of Property Right We’ve Discussed That is

Contingent (As Opposed to Vested)?

Example of Property Right We’ve Discussed That is

Contingent (As Opposed to Vested)?

RATIONE SOLI

“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.”

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

NEON: DQ17: After Trial Record & Start of Shaw Brief

COMPARE POSSIBLE RULES1. Actual Possession Likely2. Actual Possession Practically

Inevitable3. Actual Possession Inevitable

Be ready to discuss policies supporting & opposing choice of #2:

Liesner v. Wanie

TRIAL RECORD

Phosphorus:Phosphorus: DQ19 (Wanie)

Wanie must have argued:

• L-Boys did not mortally wound wolf

• L-Boys did not continue pursuit

BEST EVIDENCE SUPPORTING?