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Your research take home exams are due Tuesday 1/18.

The research class is at 3:00 in 273 on Tuesday.

Class next Thursday is at 3:00 in the Moot Court room.

MethodologyContent

Legal Writing

Analysis- IRAC

Procedure-Posture of case

Review the Four Kinds of Arguments:

Reasoning by analogyFactor AnalysisGeneralizationsThe Deductive Argument

What are the implicit limitations of these kinds arguments?

The Power of the Duc

The deductive argument is the most complete relationship of logical support because the only way to attack a deductive argument is by challenging the premises.

A Classic Example of the Deductive Argument is called the Syllogism

All legal writing teachers are mortal

Powell is a legal writing teacher

Therefore, Powell is mortal

Major Premise

Minor Premise

Conclusion

A=B, B=C, A=CThe Transitivity Principle

The Legal Syllogism

Major Premise

Minor Premise

Conclusion

[Legal rule]

[Set of facts in your dispute]

[Your determination of whether the facts satisfy the legal rule]

[statute]

[holding from a single case]

[principle derived from a series of cases]

Movie clip

The Process of Litigation

A Libel Syllogism

Larry Flynt is guilty of libel if a reasonable person may have believed the cartoon claiming Rev. Jerry Falwell had sex with his mother in an outhouse, was true.

No reasonable person would have believedthe cartoon that Rev. Jerry Falwell had sex

with his mother in an outhouse

Therefore, Larry Flynt is not guilty of libel.

Major Premise

Minor Premise

Conclusion

What is the first stage in a civil lawsuit ?

Service of Process (the summons)

What is the purpose of serving a summons?

The summons performs the dual functions of :

(1) notifying the defendant that a lawsuit has been started against her and,

(2) bringing the defendant under the power of the court in which the case is to be tried. The power of a court to adjudicate is called its jurisdiction.

Pleadings

The lawsuit continues in the form of pleadings, which are documents submitted by the parties to outline the most critical facts that they intend to prove at trial F.R.C.P. 7(a)

The first pleading is the . . .

Complaint.

Assuming the complaint was served with the summons, what is the next stage in a civil lawsuit ?

The Pleadings

The Complaint

Motion to Dismiss/Answer

Pleadings

The defendant can respond to the summons and complaint with either or both of two steps. The defendant may file a motion to dismiss or an answer or both.

The most frequent is the defendant's assertion that the plaintiff’s complaint should be dismissed because it does not allege facts that constitute a cause of action. This is called a

Motion to dismiss for failure to state a claim upon which relief can be granted. (12b6)

What stage is next?

Discovery (Discovery motions)

Discovery

If the action has not been dismissed in the pleading phase, the attorneys will conduct Discovery.

After some discovery has been done, the attorneys might also negotiate or make what kind of discovery motion?

Summary Judgment.

What are the standards for proving summary judgment?

 

Summary Judgment

When one of the parties believes that the case lacks issues of fact or, in other words, believes that the evidence is not in conflict about what happened before the suit began

(No genuine issue of material fact)

-- that party can move for summary judgment, asking a court to decide the case without a trial by resolving the issues of law alone.

(Entitled to judgment as a matter of law). 

Motion Practice

The next stage is Pretrial

The ComplaintDiscovery

Answer

Pretrial (Jury Selection)

Pretrial

The jury is selected from a random pool of jurors (the venire) by a process known as

voir dire.

In order to insure impartiality, each party may excuse or challenge some jurors.

Most trial courts also now hold a pretrial conference to deal with pre-trial motions.

The Trial

In a trial with a jury, the jury's role is to decide, in the form of a verdict, issues of . . .

fact, while the role of the judge is to decide issues of . . .

law. 

The first event in a trial is an opening statement, in which the attorneys outline the case they hope to prove.

Trial Then, during the

evidence-takingphase of the trial,the attorneys presenttheir case in the formof witnesses andexhibits.

One of the motions attorneys make at trial is one that tests the sufficiency of an opponent's evidence and that, if granted, results directly in judgment for the party making the motion. This is called a motion for a directed verdict.

The Trial

The ComplaintDiscovery

Trial (Motions for Directed Verdict)

Answer

Pretrial (Jury Selection/Charge)

Trial

Next attorneys make closing arguments.

Then, in the charge or jury instructions the judge instructs the jury on how to apply the law to whatever facts the jury might find.  

Finally, the judge signs the jury’s verdict into a judgment which provides or denies the remedy asked for by the plaintiff.

Post Trial Motions

Attorneys may make post trial motions such as a

motion to set aside the verdict and grant anew trial or a

motion for judgment notwithstanding the verdict.

They are made to the trial court, and both challenge the sufficiency of the evidence on which the verdict is based.

Trial

The ComplaintDiscovery

Trial-Directed Verdict

Verdict (Motions- Answer J.N.O.V./New trial)

Pretrial (Jury Selection/Charge)

The Appellate Process

Movie clip 2

Appeal

The ComplaintDiscovery

Trial-Directed VerdictAppeal

Verdict(motions) Answer (J.N.O.V./New trial)

Pretrial (Jury Selection/Charge)

The Decision to AppealFactors to Consider:

Jurisdiction

Grounds for Appeal

Probability of Success

Economic and other costs

Appeal

An appeal is a request by the losing party for a higher court to reverse or alter one or more rulings by the trial court. The party making the appeal becomes

The Appellant

while the other party becomes

The Appellee

Appeal

Appellate courts do not retry cases.

They accept the factual record from the trial court and deal with legal issues.

Arguments are made by means of written documents called appellate briefs that the attorneys submit to the court. The attorneys may also argue orally before the judges.

The Record on Appeal

Since the appellate court doesnot “try” the case, its only sourceof information about what hasgone on in the lower courts is the “record.”

The record contains various

documents filed with the court during the litigation such as the pleadings,the motions, the trial transcript,the verdict, the judgment, and so forth.

Preserving the Record

The appellate court does not review the entire record in search of mistakes. The court will look only to the issues raised on appeal in the “Notice of Appeal” and the Briefs.

Thus, the party appealing should preserve error at trial by raising objections and making motions at trial to contest the error.

Appeal

Review at the appellate level is also limited to issues of law that have been decided in a final order. (e.g. Granting Summary Judgment)

The idea is that an appellate level court should not step in to correct a lower level court while the issue is still pending before that court.

 

Standard of Review

Finally review at the appellate level is limited by the “standard of review”.

The standard of review differs depending on what type of issue is being raised before the court.Some example standards of review are:

De NovoClearly ErroneousAbuse of DiscretionSubstantial Evidence

Standard of Review

Case law, state rules and statutes address appropriate standards for various issues.

Do standards of review (except de novo) gives deference to the winner or loser at the trial level?

The winner-which is why so few appeals are successful.