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Legal Process I

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  1. Legal Process I Power Point Slides

  2. What do you think if you see this road sign? Resume Safe Speed

  3. What do you do if you see this road sign? Slow Children at Play

  4. What do you think if you see this road sign? Slow: Children Speed Bumps

  5. What does this sign mean? No smoking allowed

  6. Do you prefer this sign? Smoking not allowed

  7. How about these signs? Parking Here No Parking Here

  8. How about these signs? Parking Here? No. Parking Here.

  9. Types of reasoning • Rule-based reasoning • Analogical reasoning • Policy-based reasoning • Narrative reasoning

  10. Automobile accident Cars driven by John and Mary collide in the middle of an intersection. Who is at fault?

  11. Course goals • Learn to write simply and directly • Craft strong thesis sentences • Learn to organize a legal discussion • Use the legal process • Begin to learn legal analysis • Understand the importance of law and facts in legal analysis • Be able to use various types of legal analysis • Be able to support an argument with appropriate authority and reasoning • Learn to synthesize cases

  12. Legal discussion • Identify the relevant issues • Discuss each issue fully before moving to the next issue • Use IRAC to discuss an issue

  13. IRAC • Issue -- Describe the issue. • Rule -- Identify and explain the applicable rule. • Application or analysis -- Explain how and why the rule, as developed, applies to the facts. • Conclusion -- State your conclusion.

  14. IRAC • Issue -- Describe the issue. • Rule -- Identify and explain the applicable rule. • Application or analysis -- Explain how and why the rule, as developed, applies to the facts. • Conclusion -- State your conclusion.

  15. IRAC • Issue -- Describe the issue. • Rule -- Identify and explaintheapplicablerule. • Application or analysis -- Explain how and why the rule, as developed, applies to the facts. • Conclusion -- State your conclusion.

  16. IRAC analogy – a dress dummy

  17. Dress dummy used

  18. Dress dummy used

  19. Dress dummy not used

  20. Office Memorandum Our first office memorandum will be organized as follows: • Statement of facts • Questions presented • Conclusion • Discussion

  21. Statement of facts • Your statement of facts must contain all facts that you use in the legal discussion. • The statement should also include any facts necessary to provide context. • Be sure to include in the statement any facts that you use in the legal discussion.

  22. Organization • The statement of facts can be arranged chronologically, topically, or some other way. • As a person reads you statement of facts, the reader will think of questions about the facts. • Optimally, you should arrange your statement to answer the reader’s most pressing questions as soon as possible.

  23. The beginning • The statement of facts in an office memorandum should begin with a paragraph that identifies -- • Who the client is; and • The key fact or facts or other material that the reader should know to give context to the story that follows. • The first paragraph could also answer what the client’s principal legal question is.

  24. Statement of Facts The first paragraph of the statement of facts could read as follows: You asked whether we can overturn a $50,000 default judgment against our client, Gerald Williams. The answer depends, in part, on whether Williams’ mother, Alice, was a “person of the family” or a “person residing” at his Woodstock house within the meaning of 735 Ill. Comp. Stat. 2/203(a). • Makes it easier to spot ambiguities in the rules. Stated simply, outlining makes it easier to explain and apply the rule.

  25. Types of rules Rule formats include -- (i) A rule with mandatory elements; (ii) A rule that sets out an "either/or" test; (iii) A more flexible rule with factors; (iv) A balancing test; (v) A rule with exceptions; and (vi) A rule with no subparts.

  26. Outlining -- purposes • Helps to read and break down rules • Helps to apply rules. • Makes it easier to address each aspect of the rule systematically and completely.

  27. Failure to outline carefully – precision matters

  28. Outlining a rule -- steps • Break down the rule into major components. • Identify the rule's purposes and goals. • Identify the type of rule. • If necessary, break the components into smaller parts, repeating the steps above. • Continue the process until the rule can no longer be broken down.

  29. Dudulao Rule [A]n employee handbook or other policy statement creates enforceable contractual rights if the traditional requirements for contract formation are present. First, the language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer has been made. Second, the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer. Third, the employee must accept the offer by commencing or continuing to work after learning of the policy statement.

  30. Breaking Down the Duldulao Rule -- A First Step An employee handbook creates enforceable contractual rights if each the following requirements are met: • The handbook’s language must contain a promise clear enough that an employee would reasonably believe that an offer has been made; • The handbook must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer; and • The employee must commence work or continue working after learning of the handbook.

  31. Breaking Down the Duldulao Rule -- A Second Step An employee handbook creates enforceable contractual rights if each the following requirements are met: • The handbook’s language must have the following characteristics: • It must contain a promise; and • The promise must be clear enough that an employee would reasonably believe that an offer has been made; • The handbook must be disseminated to the employee in such a manner that the following two things occur: • The employee is aware of its contents; and • The employee reasonably believes it to be an offer; and • The employee must commence work or continue working after learning of the handbook.

  32. Personalizing the Duldulao Rule -- A Third Step Were the disciplinary procedures set out in the Farpoint employee handbook part of the employment contract between Farpoint and McIntyre? Those disciplinary procedures were part of the employment contract between Farpoint and McIntyre if each the following requirements was met: • Were both of the following statements true? • The Farpoint handbook contained a promise about the disciplinary procedures; and • The promise was clear enough that an employee would reasonably believe that an offer has been made; • Did Farpoint disseminate the handbook to McIntyre in a way that the following occurred? • McIntyre was aware of its contents; and • McIntyre reasonably believed it to be an offer; and • Did McIntyre work for Farpoint after learning of the handbook?

  33. Exercise A -- The rule A lawyer may reveal [information relating to the representation of a client] to the extent the lawyer reasonably believes necessary: • (1) to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm; or • (2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client.

  34. Exercise A -- Step 1 A lawyer may reveal information relating to the representation of a client in any one of the following four situations. The lawyer must reasonably believe that revealing that information is necessary: • A. To prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm; • B. To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client; • C. To establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved; or • D. To respond to allegations in any proceeding concerning the lawyer's representation of the client.

  35. Exercise A -- Step 2 A lawyer may reveal information relating to the representation of a client in any one of the following four situations: A. The lawyer reasonably believes the following: • 1. The client intends to commit a crime; • 2. Disclosure is necessary to prevent the client from committing the crime; and • 3. The crime is likely to result in -- • a. imminent death; or • b. imminent substantial bodily harm. B. The lawyer reasonably believes the following: • 1. Disclosure is necessary to establish a claim or defense on behalf of the lawyer in a controversy; and • 2. The controversy is between the lawyer and the client.

  36. Step 2 (cont'd) C. The lawyer reasonably believes the following: • 1. Disclosure is necessary to establish a defense to a criminal charge or civil claim against the lawyer; and • 2. The charge or claim is based upon conduct in which the client was involved. D. The lawyer reasonably believes the following: • 1. Disclosure is necessary to respond to allegations in a proceeding; and • 2. The proceeding concerns the lawyer's representation of the client.

  37. Exercise A -- Step 3 A lawyer may reveal information relating to the representation of a client in any one of the following four situations: A. If the following is true: • 1. The lawyer reasonably believes that -- • a. The client intends to commit a crime; and • b. Disclosure is necessary to prevent the client from committing the crime; and • 2. The lawyer believes that the crime is likely to result in -- • a. imminent death; or • b. imminent substantial bodily harm.

  38. Step 3 (cont'd) B. If the following is true: • 1. The lawyer reasonably believes that disclosure is necessary to establish a claim or defense on behalf of the lawyer in a controversy; and • 2. The controversy is between the lawyer and the client. C. If the following is true: • 1. The lawyer reasonably believes that disclosure is necessary to establish a defense to a criminal charge or civil claim against the lawyer; and • 2. The charge or claim is based upon conduct in which the client was involved. D. If the following is true: • 1. The lawyer reasonably believes that disclosure is necessary to respond to allegations in a proceeding; and • 2. The proceeding concerns the lawyer's representation of the client.

  39. Exercise B -- The rule A contingent fee agreement shall . . . state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated.

  40. Exercise B -- Step 1 A contingent fee agreement is ethical if the lawyer states how the fee is calculated. The agreement must state -- • A. The percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; • B. Litigation and other expenses that are deducted from the recovery; • C. Whether such expenses are to be deducted before or after the contingent fee is calculated; and • D. Any other relevant information.

  41. Exercise B -- Step 2 A contingent fee agreement is ethical if the lawyer states how the fee is calculated. The agreement must state -- A. The percentage or percentages that shall accrue to the lawyer in the event of -- • 1. Settlement • 2. Trial, or • 3. Appeal; B. Litigation and other expenses that are deducted from the recovery; C. Whether such expenses are to be deducted before or after the contingent fee is calculated;D. Any other relevant information.

  42. Exercise B -- Step 3 A contingent fee agreement is ethical if the lawyer states how the fee is calculated. The agreement must state -- A. What percentage recovery the lawyer is entitled for the following: • 1. Settlement proceeds; • 2. Award by a trial court that is not appealed; • 3. Award by a trial court that is affirmed on appeal by -- • a. The intermediate appellate court, or • b. The supreme court; • 4. Other contingencies;

  43. Step 3 (cont'd) B. The kinds of litigation and other expenses; C. How each kind of expenses will be paid, including ‑‑ • 1. The extent to which the client must pay the expenses in addition to any recovery; • 2. The extent to which the expenses are to be paid out of any recovery; and • 3. For an expense that is deducted from the recovery, whether the expense is deducted before or after the contingent fee is calculated; and D. Any other relevant information.

  44. Exercise C -- The rule A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation.

  45. Exercise C -- Step 1 A lawyer generally shall not represent a person (a "new client") if -- • A. The matter for which the new client seeks representation is same or a substantially related matter for which the lawyer represented a former client; and • B. The new client's interests are materially adverse to the interests of the former client. The general rule does not apply if -- • A. The lawyer consults with the former client; and • B. After the consultation, the former client consents to the representation.

  46. Exercise C -- Step 2 A lawyer generally shall not represent a person (a "new client") if -- • A. The matter for which the new client seeks representation is -- • 1. The same as the matter for which the lawyer represented a former client, or • 2. A substantially related matter; and • B. The new client's interests are materially adverse to the interests of the former client. The general rule does not apply only if -- • A. The lawyer consults with the former client; and • B. After consultation, the former client agrees to the lawyer's representing the new client.

  47. Exercise C -- Step 3 A lawyer generally shall not represent a person (a "new client") if -- • A. The matter for which the new client seeks representation is -- • 1. The same as the matter for which the lawyer represented (or is representing) another client, or • 2. A substantially related matter; and • B. The new client's interests are materially adverse to the interests of the other client. The general rule does not apply only if -- • A. The lawyer consults with the other client; • B. The consultation involves [elements of the consultation]; and • C. After consultation, the other client agrees to the lawyer's representing the new client.

  48. Exercise C -- Alternative A lawyer shall not represent a person (a "new client") if -- • A. The matter for which the new client seeks representation is -- • 1. The same as the matter for which the lawyer represented (or is representing) another client, or • 2. A substantially related matter; • B. The new client's interests are materially adverse to the interests of the other client; and • C. The other client does not give an [informed] consent to the lawyer's representing the new client.

  49. Personalizing the outline • As a first step in drafting a legal discussion of the rule, you may outline the applicable rule in the abstract. • As a second step, you may tailor the outline to the facts as follows: • Use outline form. Begin with a roman numeral (i.e., “I.”) for each rule. • State the rule and each of its subparts in the form of a question. • State each of these questions concretely, by filling in the names of the actors and key facts.