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Pierson V Post Thinking Like A Lawyer Civil Procedure
Pierson V Post Thinking Like A Lawyer Civil Procedure
Pierson V Post Thinking Like A Lawyer Civil Procedure
Pierson V Post Thinking Like A Lawyer Civil Procedure
Pierson V Post Thinking Like A Lawyer Civil Procedure
Pierson V Post Thinking Like A Lawyer Civil Procedure
Pierson V Post Thinking Like A Lawyer Civil Procedure
Pierson V Post Thinking Like A Lawyer Civil Procedure
Pierson V Post Thinking Like A Lawyer Civil Procedure
Pierson V Post Thinking Like A Lawyer Civil Procedure
Pierson V Post Thinking Like A Lawyer Civil Procedure
Pierson V Post Thinking Like A Lawyer Civil Procedure
Pierson V Post Thinking Like A Lawyer Civil Procedure
Pierson V Post Thinking Like A Lawyer Civil Procedure
Pierson V Post Thinking Like A Lawyer Civil Procedure
Pierson V Post Thinking Like A Lawyer Civil Procedure
Pierson V Post Thinking Like A Lawyer Civil Procedure
Pierson V Post Thinking Like A Lawyer Civil Procedure
Pierson V Post Thinking Like A Lawyer Civil Procedure
Pierson V Post Thinking Like A Lawyer Civil Procedure
Pierson V Post Thinking Like A Lawyer Civil Procedure
Pierson V Post Thinking Like A Lawyer Civil Procedure
Pierson V Post Thinking Like A Lawyer Civil Procedure
Pierson V Post Thinking Like A Lawyer Civil Procedure
Pierson V Post Thinking Like A Lawyer Civil Procedure
Pierson V Post Thinking Like A Lawyer Civil Procedure
Pierson V Post Thinking Like A Lawyer Civil Procedure
Pierson V Post Thinking Like A Lawyer Civil Procedure
Pierson V Post Thinking Like A Lawyer Civil Procedure
Pierson V Post Thinking Like A Lawyer Civil Procedure
Pierson V Post Thinking Like A Lawyer Civil Procedure
Pierson V Post Thinking Like A Lawyer Civil Procedure
Pierson V Post Thinking Like A Lawyer Civil Procedure
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Pierson V Post Thinking Like A Lawyer Civil Procedure

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Lecture given to students in the University of Osnabrück's foreign law program incorporating Peter Wendel's ideas as found in his article "Using Property to Teach Student How to Think Like a Lawyer," …

Lecture given to students in the University of Osnabrück's foreign law program incorporating Peter Wendel's ideas as found in his article "Using Property to Teach Student How to Think Like a Lawyer," 46 STLULJ 733

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  • Names of the Parties Criminal – State/Crown Civil – Plaintiff Defendant is same in both Number of People Involved Criminal – usually government vs. one individual Civil – can be many on either side Multiple Plaintiffs = class action Defendants can be individual, corporation, government, etc. Penalty v. Remedy Criminal – results in sentence or fine Civil – results in award of money or injunction Burden of Proof Criminal – beyond a reasonable doubt Civil – Normally preponderance of the evidence (U.S.) balance of probabilities (England)
  • STEP 1 – What are the basic facts, issue, and answer to the issue. FACTS: Post, hunting w/ dogs, spies fox; in hot pursuit, closing in on the kill when Pierson, seeing Post & knowing Post's intentions, shoots & kills fox ISSUE: Who gets the fox? ANSWER: Pierson
  • STEP 2 – Ignore the ruling. What should have been the outcome? Give reasons for both sides Ask students then show next slide.
  • STEP 3 – Compare our analysis to the one made by the court Why doesn't the court's opinion look more like our treatment of the case, our comments on the board? Why is the court's opinion so different from our discussion of the case?
  • QUESTION: How did the case begin? recite the facts have students re-enact the conservation that took place between Pierson and Post. tell other students to pay close attention to arguments being made by each side. QUESTION: How does the factual dispute become a case? Plaintiff Post consults with an attorney. QUESTION: What is the role of the attorney? What's the role of the attorney? What does the attorney do? What does the attorney contribute to the evolution of the case?” ANSWER: investigate the facts, research the law, and advise the client. QUESTION: What does “researches the law.” Why does the attorney research the law?” What is the lawyer looking for? ANSWER: a legal doctrine or rule of law which supports the party's position. EXPLANATION: Tell students about Cause of Action a legal doctrine that, if established, entitles the party to relief. QUESTION: What cause of action did Post's attorney rely upon? ANSWER - trespass on the case. QUESTION: What's trespass on the case? See dictionary.com -> trespass. unlawfully interfering with the property of another QUESTION: How does the cause of action relate to the case? What is Post's argument that he is entitled to relief under trespass on the case. ANSWER: by killing the fox, Pierson unlawfully interfered with Post's property--the fox.
  • Pleadings – the First Stage Lawsuit initiated by filing of a Complaint, Petition, Claim (varies by jurisdiction) Pleader must know elements of the claim Party must plead those matters upon which that party must produce proof at trial. Defense then files: Answer, Response, Demurrer Defense can first file Motion to Dismiss based upon failure of P to state a claim. General Denial - consists of one sentence simply stating that "defendant denies each and every allegation of plaintiff's complaint." Specific Denial - specific denial involves a sentence-by-sentence or paragraph-by-paragraph analysis of the complaint, denying only those allegations that defendant intends to contest. Affirmative Defenses - Even if all plaintiff's allegations are true, defendant may be able to present additional facts establishing a defense. Pierson v. Post QUESTION - What would Post's complaint say? Pierson interfered with Post's property. QUESTION - What would Pierson's answer say? Pierson did not interfere with Post's property because Post never acquired a property interest in the fox
  • Old Issue of the Case Who gets the fox Revised Issue of the Case How does one obtain a property interest in a fox.
  • Discovery – exchange and investigation of evidence between parties The Discovery Process Serves the Purposes of: Expediting the litigation by: Identifying and narrowing issues. Uncovering facts Preserving evidence for trial. Expediting trial preparation by committing parties or witnesses to particular versions of facts, and Encouraging Settlement by: Educating the parties as to the strengths and weaknesses of their respective cases Exposing doubtful claims or defenses. Providing information for informed case evaluation.
  • Scope of Discovery - Broader Than What Would Be Relevant Evidence at Trial Under federal rules, can request information which "appears reasonably calculated to lead to the discovery of admissible evidence." Information Protected From Discovery Work Product Privilege There is an absolute privilege for writings that reflect the attorney's impressions, conclusions, opinions, legal research, or theories. Such information is not discoverable under any circumstances. (Cal.Code.Civ.Proc. § 2018(c).)
  • Depositions - Self-executing procedure for examination under oath of an expected party or witness for discovery or as evidence. Advantages : Permits evaluation of demeanor and potential courtroom impact of deponent; probing follow-up of responses; deponent spontaneity; minimization of role of opposing counsel; discovery on 10 days notice. Testimony may be used by any party against deponent to impeach or contradict; as substantive evidence if deponent is unavailable or exceptional circumstances exist or if another party has already introduced a portion of the deposition. By adverse party for any purpose against party or related witness. Disadvantages: Expensive, time consuming, elicits only facts within deponent's personal knowledge, inquiry into deponent's legal contentions not permitted, may perpetuate damaging testimony. Against Whom Available: Any person. (Not limited to parties)
  • Interrogatories - Self-executing procedure for submission of written questions to party to be answered under oath. Advantages: Comparatively inexpensive; inquires into all knowledge available to answering party inquires into legal contentions and bases for them; answers (always by party) may be more specific and therefore bind more than general answers at deposition; less complex and expensive to elicit further answers. Use - Any party other than the responding party may use responses at trial to the extent they are otherwise admissible in evidence. Disadvantages: Sometimes less effective than personal confrontation; no opportunity to evaluate demeanor of deponent; preparation of interrogatories in complex cases time consuming and expensive, since must by carefully drafted to be effective; difficult to get a narrative response. Against Whom Available: Party only.
  • Demands to Inspect or Produce Documents A party may make inspection demands on " any other party to the action" to produce and permit the party making the request to inspect and copy, any designated documents.
  • Requests for Admission - Self-executing procedure for written request that party admit genuineness of relevant documents or truth of relevant matters. If a party who receives a request to admit does nothing, the party has admitted the matter in the request. Advantages: Disposes of undisputed issues and facilitates motion for summary judgment; failure to admit or deny constitutes an admission; requires admission or denial of facts known or available to answering party; may be used in conjunction with interrogatories; comparatively inexpensive. Disadvantages: Does not discover new facts; difficult to get narrative response; difficult to follow-up quickly a response of "unable to admit or deny." Against Whom Available: Party only.
  • Physical and Mental Examinations Procedure by motion for court order, on showing of good cause to obtain mental, or physical examination of a party or controlled person whose condition is in controversy in pending action. Advantages: Aids preparation for and conduct of trial as well as settlement by allowing examination of parties & controlled persons whose physical or mental condition is in controversy in an action. Disadvantages: Showing of good cause required before court order will issue. Against Whom Available: Any party, his agent or person in his custody or legal control whose condition is in issue.
  • Resolution Short of Trial - Motion for Summary Judgment “no genuine issue as to any material fact and … the moving party is entitled to judgment as a matter of law” basically, even if we believe facts as presented by other party, we still win as a matter of law. In short, no need for trial! Powerful tool normally not granted by judge if granted, can be appealed.
  • .Trial Choosing the Trier of Fact: Judge or Jury? 7th Amendment - a jury trial must be available if the action involves rights and remedies of the sort typically enforced in an action at law. Number of Jurors Required Opening statements - Each side presents summary of case P's case in chief - P introduces evidence, calls witnesses, etc D's case in chief – D introduces evidence, calls witnesses, etc. Rebuttal – P has opportunity to offer rebuttal evidence and call rebuttal witnesses. Closing Arguments – both parties summarize their cases Instruction to Jury – judge instructs jury on the law Deliberation – jury can take as long as needs to discuss among themselves Verdict – Verdict is read by jury Foreman NOTE – a judgment by a judge sitting without a jury is NOT a verdict. Only juries give verdicts. Judgment – a judge gives a judgment, not a verdict. This is the final decision of the court, almost always following the jury's verdict.
  • Pierson v. Post QUESTION – is this a decision from a trail court or an appeals court? appeals court QUESTIONS Who prevailed at the trial court level? Post. What mistake of law does Pierson allege was made at the trial court level? What's the issue on appeal? NOT “How does one acquire a property interest in a fox?” LOOK CLOSER - the court expressly said that the parties were in agreement that to acquire a property interest in a wild animal, there must be occupancy. That answer, however, merely begs the question: what constitutes occupancy? After some hesitation, the students agree that this is the issue on appeal.
  • This is a question of law. The court describes this as a “novel” question of law. QUESTION – what does this mean? the Court has never directly dealt with this question. IT IS ABOUT TO MAKE LAW!
  • Judicial Control of Jury Action - Controlling Juries by Directed Verdict Directed verdicts and judgment notwithstanding the verdict (JNOV) are two mechanisms by which the judge controls the jury. Directed verdict motions may be made by either party at the close of their opponent's evidence. For the motion to be granted the court must find that there is insufficient evidence to go to the jury or that the evidence is so compelling that only one result could follow. A JNOV motion may be viewed as a delayed directed verdict because it is made after the verdict is rendered and seeks a judgment contrary to the verdict on the ground that there was insufficient evidence for the jury to find as it did. The test for granting a j.n.o.v. is the same as the test for granting a directed verdict. The court considers the evidence in the light most favorable to the non-moving party and should grant the judgment notwithstanding the verdict only where the evidence so strongly and so favorably points in the favor of the moving party that reasonable people could not arrive at a contrary verdict. The judge will then enter a different verdict as "a matter of law." Essentially the judge should have required a "directed verdict" (instruction to the jury to return with a particular verdict since the facts allowed no other conclusion), and when the jury "went wrong," the judge uses the power to reverse the verdict instead of approving it, to prevent injustice. How often is this used: State Court civil actions – 1.8% source: www.ojp.usdoj.gov/bjs/
  • Integrity of Verdicts Motion for New Trial. The trial judge has the power to grant a motion for a new trial when errors or irregularities have occurred during the proceedings. Grounds for a New Trial Irregularity of the proceedings; Misconduct of jury; Accident or surprise; Newly discovered evidence; Insufficient evidence; Error in law; - judge made error in law (procedural or substantive) Excessive or inadequate damages. (Cal.Code.Civ.Proc. § 657.)
  • Transcript

    • 1. Introduction to American Law Pierson v. Post Civil Procedure and Thinking Like a Lawyer
    • 2. Criminal v. Civil <ul><li>Names of the Parties
    • 3. Number of People Involved
    • 4. Penalty/Remedy
    • 5. Burden of Proof </li></ul><ul><li>NOTE – there are vast differences between the two when it comes to procedure. </li></ul>
    • 6. Pierson v. Post <ul><li>What are the basic: </li><ul><li>FACTS
    • 7. ISSUE </li><ul><li>phrase as a question </li></ul><li>ANSWER TO THE ISSUE </li></ul></ul>
    • 8. Pierson v. Post <ul><li>What are the basic: </li><ul><li>FACTS </li><ul><li>Post, hunting w/ dogs, spies fox; in hot pursuit, closing in on the kill when Pierson, seeing Post & knowing Post's intentions, shoots & kills fox </li></ul><li>ISSUE </li><ul><li>who gets the fox? </li></ul><li>ANSWER TO THE ISSUE </li><ul><li>Pierson </li></ul></ul></ul>
    • 9. Debate <ul><li>Ignore the ruling.
    • 10. Who should have won and why? Make arguments from both side. </li></ul>
    • 11. Potential Arguments <ul><li>Post, because he put in all that time hunting the fox.
    • 12. Post, because it would be unfair to let Pierson have it after Post was the one who made it run towards Pierson.
    • 13. Post, because it was his business. </li></ul><ul><li>Pierson, because he shot it.
    • 14. Pierson, because we don't know for sure if Post would have ever caught the fox.
    • 15. Pierson, because he got it first. </li></ul>
    • 16. How Did The Court Analyze This? <ul><li>Why doesn't the court's opinion look more like our treatment of the case, our comments on the board?
    • 17. Why is the court's opinion so different from our discussion of the case?
    • 18. What is a case?
    • 19. What is an opinion? </li></ul>
    • 20. Pierson v. Post Timeline <ul><li>How did the case begin?
    • 21. How does the factual dispute become a case?
    • 22. What is the role of the attorney?
    • 23. What is the cause of action? </li></ul>
    • 24.  
    • 25. Statute of Limitations <ul><li>Laws stating by when a case must be filed.
    • 26. Purpose is to ensure that evidence is “fresh”, which theoretically ensures fairness.
    • 27. Varies by jurisdiction
    • 28. Cal. Code Civ. Proc. § 335.1. Within two years: An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another. </li></ul>
    • 29. First Stage: Pleadings <ul><li>Definition – allegations of law and fact.
    • 30. Plaintiff Files – complaint, petition or claims </li><ul><li>sets forth elements of claims </li></ul><li>Defendant Files – answer, response, demurrer </li><ul><li>Can also file Motion to Dismiss at this point
    • 31. Different forms depending on jurisdiction </li><ul><li>general v. specific denials. </li></ul><li>Affirmative defenses can be raised </li></ul></ul>
    • 32. Cause of Action <ul><li>Trespass on the case </li><ul><li>unlawfully interfering with the property of another </li></ul><li>So what is the issue of the case? </li></ul>
    • 33. Discovery <ul><li>Exchange and investigation of evidence between parties.
    • 34. Purpose: </li><ul><li>Expedite litigation
    • 35. Encourage settlement </li></ul></ul>
    • 36. Scope of Discovery <ul><li>information which &quot;appears reasonably calculated to lead to the discovery of admissible evidence.&quot; </li><ul><li>Federal Rules of Civil Procedure </li></ul><li>Not Work Product! </li></ul>
    • 37. Discovery Devices <ul><li>Deposition
    • 38. Interrogatories
    • 39. Demand to Inspect/Produce Documents
    • 40. Request for Admission
    • 41. Physical/Mental Examinations </li></ul>
    • 42. Deposition <ul><li>Examination under oath of an expected party or witness for discovery or as evidence.
    • 43. Advantages
    • 44. Testimony may be used by
    • 45. Disadvantages
    • 46. Against Whom? </li></ul>
    • 47. Interrogatories <ul><li>written questions to party to be answered under oath
    • 48. Advantages
    • 49. Use
    • 50. Disadvantages
    • 51. Against Whom? </li></ul>
    • 52. Demand to Inspect Documents <ul><li>Demand to Inspect </li><ul><li>A party may make inspection demands on &quot;any other party to the action&quot; to produce and permit the party making the request to inspect and copy, any designated documents. </li></ul></ul>
    • 53. Request for Admission <ul><li>Written request asking opposing party to admit genuineness of documents or truth of matters.
    • 54. Party must respond or deemed to admit.
    • 55. Only against parties.
    • 56. Advantages v. Disadvantages </li></ul>
    • 57. Physical & Mental Exams <ul><li>Order from Court
    • 58. Upon showing of good cause
    • 59. of physical or mental examination of party
    • 60. when mental or physical state is in controversy. </li></ul>
    • 61. Pre-Trial Proceedings <ul><li>Court will rule on pre-trial motions </li><ul><li>motions pertaining to discovery (although probably heard earlier) </li></ul><li>Motion for Summary Judgment </li><ul><li>asking the court to rule as a matter of law
    • 62. whether a reasonable jury could find for the non-moving party. </li></ul></ul>
    • 63. Choosing the factfinder Judge or Jury Opening Statements Plaintiff's Case Defendant's Case Plaintiff's Rebuttal Closing Arguments Instructions to the Jury & Jury Deliberation Verdict & Judgment
    • 64. The Civil Appeal <ul><li>Losing party may appeal
    • 65. Remember, generally only issue of law are reviewed on appeal. </li><ul><li>Thus, on review the appeals court is looking at mistakes of law, not mistakes of fact. </li></ul><li>What is the specific issue of law in Pierson v. Post being reviewed by the court? </li></ul>
    • 66. New Issue <ul><li>Started with: “Who gets the fox”
    • 67. Moved to: “How does one acquire a property interest in a fox?”
    • 68. Ended with: “What constitutes occupancy?” </li><ul><li>Is this a question of law or question of fact?
    • 69. How does the court describe this question? </li></ul></ul>
    • 70. Civil Procedure More About the Trial
    • 71. Evidence Defined <ul><li>matters that tend to prove the existence or non-existence of some fact (Oxford Dict. of Law)
    • 72. those matters actually admitted into evidence by the judge presiding, as in 'the evidence before the court'
    • 73. body of rules that govern what can and what cannot be brought before a court in any particular case, and the weight that it should have, as in ‘the law of evidence’ (Collins Dict. of the Law).
    • 74. '&quot;Evidence&quot; means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact.‘ Cal. Evid. Code § 140 </li></ul>
    • 75. Relevance <ul><li>To be admissible court, evidence must be relevant and material </li><ul><li>Compare to definition for discovery. </li></ul><li>“Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” </li><ul><li>Federal Rule 401 </li></ul></ul>
    • 76. Hearsay <ul><li>Evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated (Cal. Evid. Code § 1200; Rule 33.1, Civ. Proc. Rules for Engl. and Wales) may be inadmissible as 'hearsay evidence'
    • 77. There are numerous exceptions to this rule. </li></ul>
    • 78. Best Evidence Rule <ul><li>The best evidence rule nowadays requires that the original of a document must be produced in court in order to prove the document's contents, unless the proposing party offers an adequate explanation for her failure to produce the original (Oxford Dict. of Law) </li></ul>
    • 79. Privilege <ul><li>In the law of evidence certain persons in certain situations enjoy a privilege not to testify </li><ul><li>Privilege against self-incrimination </li><ul><li>which accords witnesses a right not to testify or otherwise reveal evidence that might expose themselves to criminal prosecution </li></ul></ul><li>The legal professional or 'attorney-client' privilege protects confidential communications between lawyers and their clients. </li></ul>
    • 80. Jury Instructions 1201. Strict Liability—Manufacturing Defect—Essential Factual Elements [Name of plaintiff] claims that the [product] contained a manufacturing defect. To establish this claim, [name of plaintiff] must prove all of the following: 1. That [name of defendant] [manufactured/distributed/sold] the [product]; 2. That the [product] contained a manufacturing defect when it left [name of defendant]’s possession; 3. That the [product] was used [or misused] in a way that was reasonably foreseeable to [name of defendant]; 4. That [name of plaintiff] was harmed; and 5. That the [product]’s defect was a substantial factor in causing [name of plaintiff]’s harm.
    • 81. Judicial Control of Juries <ul><li>Directed Verdict </li><ul><li>motion made at end of opposing party's case arguing that there is insufficient evidence to send the case the jury. </li></ul><li>Judgment Notwithstanding the Verdict </li><ul><li>made after jury renders verdict
    • 82. reversal of a jury's verdict by the trial judge when the judge believes there was no factual basis for the verdict or it was contrary to law. </li></ul></ul>
    • 83. Integrity of Verdicts <ul><li>Motion for New Trial
    • 84. Grounds: </li><ul><li>irregularity
    • 85. jury misconduct
    • 86. newly discovered evidence
    • 87. insufficient evidence </li></ul></ul>

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