ELEMENTS B 2019 POWER POINT SLIDES Class #4: Tuesday August 20 National Radio Day

1. ELEMENTS B 2019POWER POINT SLIDESClass #4: Tuesday August 20National Radio Day This Photo by Unknown Author is licensed under CC BY-NC

2. MUSIC:Beethoven Symphonies #6 (1808) & #8 (1814)Recordings: Chamber Orchestra of EuropeNikolaus Harmoncourt, Conductor (1991) LUNCH TODAY Meet on Brix @ 12:25: Brennan *Cassista Evans * Picard Rose * Stage Zeitlin PANEL SELECTION INSTRUCTIONS • Can give me piece of paper at break today w list of names of students who wish to be on same panel. • I will assemble your chosen groups into 4 panels. • Ok if your name not on any list; I will assign you where space. • Can have groups of 2  20students • Submit one list per group • Check with everyone on list before including

3. ELEMENTS B Three Common 1L Issues Class #2: Confusion Class #4: Control Class #5: Competition v. Cooperation • Songland Episode 102 (Required)

4. ELEMENTS B:Control Sense of Control Important for Peace of Mind • Can’tControl Everything!! • Can Take Steps to Feel More in Control.

5. ELEMENTS B:Control • Control Over Time (v. Distractions) Fall 1982(!)

6. ELEMENTS B:Control (1) Control Over Time (v. Distractions) NOW!!! 282!!

7. ELEMENTS B:Control (1) Control Over Time (v. Distractions) Suggestions to Feel More in Control • Clearly Distinguish Work & Break Time • Use Timers for Both Work & Breaks • Log Your Use Of Devices Over Several Days • Just a Little Less

8. ELEMENTS B:Control (2) Control Over the Material & Your Performance (Limiting Confusion)

9. ELEMENTS B:Control (2) Control Over Material/Performance Suggestions to Feel More in Control • Before Class: • Do DQs Carefully (Just a Little More) • Do Self-Quizzes & Check Work (v. Just Reading Through Answers) • Write Out Briefs

10. ELEMENTS B:Control (2) Control Over Material/Performance Suggestions to Feel More in Control • After Class: • Review & Repair • Check Briefs Against Posted Samples ASAP • Ask Qs of Me & in DF Sessions

11. ELEMENTS B:Control (2) Control Over Material/Performance Suggestions to Feel More in Control • Written Assignments • Take Advantage of Groups to Brainstporm and to Improve Your Work • Do all parts of each assignment (not just what your group turns in) • Compare to posted comments & models ASAP

12. ELEMENTS B:Control (2) Control Over Material/Performance Suggestions to Feel More in Control • Throughout the Course • Discuss Material Among Yourselves • ASK QUESTIONS!!!

13. ELEMENTS B:ControlDean’s Fellow Sessions • 1st Semester Dean’s Fellows All Do Identical “Skills” Curriculum in Context of Substantive Material of Particular Course • Never Intended that 1Ls Necessarily Attend Four Sessions/Week • Choose Thoughtfully Based on Effectivenessfor You • Given How You Learn • Given How Particular DFs Teach

14. ELEMENTS B:ControlDean’s Fellow Sessions: Elements • Lauren & Brendan will do Three Sessions/Week • W & Th & F: Schedule will be posted on Course Page • Over Each Two Weeks, Three Different Lesson Plans Described on Course Page (W/Th, F/W, Th/F) • Will include work on briefs, DQs, Problems we don’t do in detail in class, Plus old exam Qs after Break • Complaints from Students springre Keeping Track of what substance went with which session. (??!!) • Always on Course Page; often in Slides • Remember we are offering you MORE help.

15. ELEMENTS B:Control (3) Control & Hurricane Season For those of you new to South Florida, sometimes our weather has names.

16. ELEMENTS B:Control (3) Control & Hurricane Season Getting Good Information • National Hurricane Center Website (check every few days during Fall Semester): www.nhc.noaa.gov • UM Hurricane Preparedness Site (look over): www.miami.edu/ref/index.php/ep/emergency_preparedness-_before/getting_ready/hurricane_preparedness/

17. ELEMENTS B:Control (3) Control & Hurricane Season Preparation: You Might Not Have Power for Several Days (1992 & 2005 & 2016) Long Term Prep • Water; Canned Goods; Non-Electric Can Opener • Flashlight; Battery-Op Radio; Batteries; Candles • If you have a landline, Non-Electric Landline Phone ($5 at Walgreens)

18. ELEMENTS B:Control (3) Control & Hurricane Season Preparation: You Might Not Have Power for Several Days (1992 & 2005 & 2016) If Storm Might Be Coming • Get Cash & Put Gas in Car • Print Out Schoolwork You Might Need • Check UM Websites/Emergency Phone #s for Closure & Reopening Info

19. ELEMENTS B:Control (3) Control & Hurricane Season After a Storm • UM Once Campus Opens: as Refuge/Safe Space (Power & Shower) • Missed Elements Classes Shift Forward Until You Get New Schedule I’ll take Qs on this after class & by e-mail –OR- Talk to folks who’ve been thru storms (e.g., your DFs)

20. CASE BRIEF: Statement of the Case • Who Sued Whom? • Under What Theory (Legal Cause of Action)? • Seeking What Remedy?

21. Pierson v. Post: Under What Theory? • Post, a hunter who had been pursuing a fox, sued Pierson, who killed the fox knowing of the pursuit, • for “Trespass on the Case” … (Follow-Up in Torts?)

22. CASE BRIEF: Statement of the Case • Who Sued Whom? • Under What Theory (Legal Cause of Action)? • Seeking What Remedy? • Aldens, Purchasers of Leaky New House Sued Landco, Developer, for Breach of Warranty, seeking Rescission [= Undoing] of the Sales Contract. • Ortiz, Consumer Injured By Exploding Blender, Sued Gemco, Manufacturer, for Negligent Design, seeking Damages [for medical bills, lost wages and pain and suffering].

23. Pierson v. Post: For What Remedy? • Post, a hunter who had been pursuing a fox, sued Pierson, who killed the fox knowing of the pursuit, for Trespass on the Case, seeking … [not stated in Majority Opinion.] *Possibilities?

24. Pierson v. Post: For What Remedy? • Post, a hunter who had been pursuing a fox, sued Pierson, who killed the fox knowing of the pursuit, for Trespass on the Case, seeking … [not stated in Majority Opinion. Could be: ] • Damages OR • Return of the fox or its pelt. *Evidence of Either?

25. Pierson v. Post: For What Remedy? • Not Stated in Majority Opinion. Could be: • Damages OR • Return of the fox or its pelt. • Dissent (p.5): “In a court … constituted [of hunters], the skin and carcass of poor reynard would have been properly disposed of ...” (This suggests remedy requested is return of property.)

26. Pierson v. Post: For What Remedy? • Not Stated in Majority Opinion • Dissent suggests remedy requested is return of property • BUT Normal remedy for Trespass on the Case is “Damages” (= $$$) (Dissent point could be rhetoric.) How might you handle this uncertainty when you are briefing?

27. Pierson v. Post: Sample Statement • Post, a hunter who had been pursuing a fox, sued Pierson, who killed the fox knowing of the pursuit, for trespass on the case, presumably[or “possibly”]seeking damages. • Number of Possible Versions, but Try to Be Accurate re What You Really Know from Case • Qs

28. CASE BRIEF: Procedural Posture • Procedural Steps • After Lawsuit Filed (filing of lawsuit already described in Statement) …

29. CASE BRIEF: Procedural Posture • Procedural Steps • After Lawsuit Filed … • Up to Step That Gets Case to the Appellate Court that Issued the Opinion You are Briefing. [Decision in that court referenced in “Holding and “Result” sections].

30. CASE BRIEF: Procedural Posture • Procedural Steps • After Lawsuit Filed … • Up to Step That Gets Case to the Appellate Court. • Try to Limit to Steps Necessaryto Understand Case • Usually have to edit what’s given in opinion. • Lots of opportunities to edit in future case briefs.

31. Pierson v. Post: Procedural Posture • After Trial Resulted in Verdict for Post [Π], the [N.Y. Supreme] Court Granted Pierson’s [Δ’s] Petition for [Certiorari] Review. • Note don’t need separate sentences to say (i) Pierson petitioned & (ii) Court granted petition • Note you don’t have to give name of appellate court if already clear from the citation. • Questions?

32. CASE BRIEF: Facts • Only include facts arguably relevant to court’s analysis. • Can’t determine relevance on 1st read • Initial description of “facts” usually includes more detail than you need • Important facts may only appear later in opinion • Select/edit facts after reading whole case. • We’ll do for Pierson after discussing DQs 1.04(c) & 1.05 & issue/holding

33. CASE BRIEF: Issue • Party Appealing Always Claims the Lower Court Made a Mistake. To Identify the Issue, Identify the Claimed Mistake.

34. CASE BRIEF: Issue • Party Appealing Claims the Lower Court Made a Mistake. Identify the Claimed Mistake. • Procedural Component of Mistake: What Should Lower Court Have Done Differently?

35. CASE BRIEF: Issue • Party Appealing Claims the Lower Court Made a Mistake. Identify the Claimed Mistake. • Procedural Component of Mistake: What Should Lower Court Have Done Differently? • Substantive Component of Mistake: What Misunderstanding About the Relevant Legal Rule Caused the Lower Court to Make the Procedural Mistake?

36. CASE BRIEF: Issue • Party Appealing Claims the Lower Court Made a Mistake. Identify the Claimed Mistake. • Procedural Component of Mistake: What Should Lower Court Have Done Differently? • Substantive Component of Mistake: What Misunderstanding About the Legal Rule Caused the Lower Court to Make the Procedural Mistake? • For this class, we’ll create versions of issue and holdings that incorporate both the procedural and the substantive component.

37. Pierson v. Post: Issue End of 1st paragraph: Pierson claimed that “the declaration and the matters therein contained were not sufficient in law to maintain an action.” *What did he think was insufficient about the claims Post made in the declaration?

38. Pierson v. Post: Issue SUBSTANTIVE MISTAKE: Claim that Post pursued the fox is insufficient because pursuit alone doesn’t create property rights in the fox. • Trespass on the Case = Indirect Interference with Property Rights. • If Post did not have “Property Rights” in the fox, Pierson did not commit Trespass on the Case when he killed it. • [AGAIN: Court doesn’t need to worry about difference between trespass and trespass on the case, because either way, Post would need to show property rights in the fox to succeed.]

39. Pierson v. Post: Issue * IF PIERSON WAS CORRECT ABOUT WHAT WAS WRONG WITH THE DECLARATION, WHAT SHOULD THE LOWER COURT HAVE DONE DIFFERENTLY?

40. Pierson v. Post: Issue WHAT SHOULD THE LOWER COURT HAVE DONE DIFFERENTLY? PROCEDURAL MISTAKE: The Lower Court Should Have Dismissed the Case [as a Matter of Law] for Failure to State a Claim on Which Relief Could Be Granted As I noted in slides for DQ1.01, might have been raised at the beginning of the case; we don’t know.

41. Pierson v. Post: Issue (Recap) PROCEDURAL COMPONENT OF MISTAKE: The Lower Court Should Have Dismissed the Case [as a Matter of Law] for Failure to State a Claim [on Which Relief Could Be Granted]. • In other words, even if everything stated in Declaration was true, Post was not entitled to any legal remedy (or “SO WHAT?”).

42. REPLYING TO DECLARATION/ COMPLAINT [Note re Wood Grain]: Motion to Dismiss for Failure to State a Claim = (“So What?”) v. Answer [Filing by Dfdt in Response to Complaint/Declaration] = (“Did Not!!”) Defendants often try versions of both, either concurrentlyre different claims or consecutively re the same claim.

43. Pierson v. Post: Issue For Elements Briefs, Combine Both Alleged Mistakes PROCEDURAL MISTAKE: The Lower Court Should Have Dismissed the Case for Failure to State a Claim on Which Relief Could Be Granted + SUBSTANTIVE MISTAKE: Allegation that plaintiff pursued the fox is insufficient because pursuit alone does not create property rights in the fox. [One very awkward yes/no question.]

44. Pierson v. Post: Issue For Elements Briefs, (i) Combine Both Alleged Mistakes (ii) into a Yes/No Q (E.g.,) Did the Lower Court Err by Failing To Dismiss the Case for Failure to State a Claim on Which Relief Could Be Granted Because Pursuit of a Fox Is Insufficient to Create Property Rights in the Fox?

45. Pierson v. Post: Issue Examples of Simple Substantive Issue (Usually Appropriate for Contracts or Property) “IsPursuit of a Fox Sufficient to Create Property Rights in the Fox?” -OR-“What Acts are Sufficient to Create Property Rights in a Fox?”

46. Pierson v. Post: Issue Simple Substantive Issue (for Other Classes) • E.g., What Acts are Sufficient to Create Property Rights in the Fox? • E.g., Pierson p.3: “[W]hat acts amount to occupancy, applied to acquiring right to wild animals[?]” Issue for Elements Briefs: Include procedural component & frame as a yes/no question.

47. CASE BRIEF: Issue  Holding Simplest Version of Holding: • Issue is a question. • Answer question “yes” or “no.” • Repeat issue in statement form (adjust for positive or negative).

48. Pierson v. Post: Issue Did the Lower Court Errby Failing To Dismiss the Case for Failure to State a Claim on Which Relief Could Be Granted Because Pursuit of a Fox Is Insufficient to Create Property Rights in the Fox?

49. Pierson v. Post: Issue  Holding YES. The Lower Court Erredby Failing To Dismiss the Case for Failure to State a Claim on Which Relief Could Be Granted Because Pursuit of a Fox Is Insufficient to Create Property Rights in the Fox. Qs on Issue/Holding So Far?

50. CASE BRIEF: Issue/Holding SIDE NOTE: CASES FREQUENTLY HAVE TWO OR MORE ISSUES/HOLDINGS • If so, your brief should separately list each issue followed by: • One or more versions of the holding deciding that issue • All rationales supporting that holding • Most cases in first two units (including Pierson) only have one issue, but keep your eyes open.