Common Law Legal Methodolgy and Civil Procedure


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This lecture, given to students in the University of Osnabrück Foreign Law Program, is based on the law review article written by Peter Wendel entitled "Using Property to Teach Students How to Think Like a Lawyer." 46 St. Louis U. L.J. 733

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Common Law Legal Methodolgy and Civil Procedure

  1. 1. Introduction to American Law Pierson v. Post Civil Procedure and Thinking Like a Lawyer
  2. 2. Criminal v. Civil● Names of the Parties● Number of People Involved● Penalty/Remedy● Burden of Proof● NOTE – there are vast differences between the two when it comes to procedure.
  3. 3. Pierson v. Post● What are the basic: – FACTS – ISSUE – what is the court being asked to decide? ● phrase as a question – ANSWER TO THE ISSUE ● how does the court decide?
  4. 4. Pierson v. Post● What are the basic: – FACTS ● Post, hunting w/ dogs, spies fox; in hot pursuit, closing in on the kill when Pierson, seeing Post & knowing Posts intentions, shoots & kills fox – ISSUE ● who gets the fox? – ANSWER TO THE ISSUE ● Pierson
  5. 5. Debate● Ignore the ruling.● Who should have won and why? Make arguments from both side.
  6. 6. Potential Arguments● Post, because he put ● Pierson, because he in all that time hunting shot it. the fox. ● Pierson, because we● Post, because it would dont know for sure if be unfair to let Pierson Post would have ever have it after Post was caught the fox. the one who made it ● Pierson, because he run towards Pierson. got it first.● Post, because it was his business.
  7. 7. How Did The Court Analyze This?● Why doesnt the courts opinion look more like our treatment of the case, our comments on the board?● Why is the courts opinion so different from our discussion of the case?● What is a case?● What is an opinion?
  8. 8. Pierson v. Post Timeline● How did the case begin?● How does the factual dispute become a case?● What is the role of the attorney?● What is the cause of action? – What does the court say the cause of action is?
  9. 9. Cause of Action● Trespass to the case – unlawfully interfering with the property of another.● What is Posts argument that he is entitled to relief under trespass on the case?
  10. 10. Statute of Limitations● Laws stating by when a case must be filed.● Purpose is to ensure that evidence is “fresh”, which theoretically ensures fairness.● Varies by jurisdiction● 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.
  11. 11. First Stage: Pleadings● Definition – allegations of law and fact.● Plaintiff Files – complaint, petition or claims – sets forth elements of claims● Defendant Files – answer, response, demurrer – Can also file Motion to Dismiss at this point – Different forms depending on jurisdiction ● general v. specific denials. – Affirmative defenses can be raised● Pleadings in Pierson v. Post?
  12. 12. Where We Stand After the Pleadings● Cause of Action – Trespass on the case – unlawfully interfering with the property of another● So what is the issue of the case? – what will the parties be arguing over?
  13. 13. Whats the Difference?● We started with the question “who gets the fox”. – think about the arguments we made. – how would you characterize them?● Now we have “how does one obtain a property interest in a fox?” – do we make the same kind of arguments? – what are we talking about when we say “property interests?”
  14. 14. Discovery● Exchange and investigation of evidence between parties.● Purpose: – Expedite litigation – Encourage settlement
  15. 15. Scope of Discovery● information which "appears reasonably calculated to lead to the discovery of admissible evidence." – Federal Rules of Civil Procedure● Not Work Product!
  16. 16. Discovery Devices● Deposition● Interrogatories● Demand to Inspect/Produce Documents● Request for Admission● Physical/Mental Examinations
  17. 17. Deposition● Examination under oath of an expected party or witness for discovery or as evidence.● Advantages● Testimony may be used by● Disadvantages● Against Whom?
  18. 18. Interrogatories● written questions to party to be answered under oath● Advantages● Use● Disadvantages● Against Whom?
  19. 19. Demand to Inspect Documents● Demand to Inspect – 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.
  20. 20. Request for Admission● Written request asking opposing party to admit genuineness of documents or truth of matters.● Party must respond or deemed to admit.● Only against parties.● Advantages v. Disadvantages
  21. 21. Physical & Mental Exams● Order from Court● Upon showing of good cause● of physical or mental examination of party● when mental or physical state is in controversy.
  22. 22. Pre-Trial Proceedings● Court will rule on pre-trial motions – motions pertaining to discovery (although probably heard earlier)● Motion for Summary Judgment – asking the court to rule as a matter of law – whether a reasonable jury could find for the non- moving party.
  23. 23. Choosing the factfinder Judge or Jury Opening Statements Plaintiffs Case Defendants Case Plaintiffs Rebuttal Instructions to the JuryClosing Arguments Verdict & Judgment & Jury Deliberation
  24. 24. The Civil Appeal● Losing party may appeal● Remember, generally only issue of law are reviewed on appeal. – Thus, on review the appeals court is looking at mistakes of law, not mistakes of fact.
  25. 25. So Where Are We?● Is this a trial court or appellate court opinion?● How do we know?● Why is this important?
  26. 26. New Issue● Started with: “Who gets the fox”● Moved to: “How does one acquire a property interest in a fox?”● Ended with: “What constitutes occupancy?” – Is this a question of law or question of fact? – How does the court describe this question?
  27. 27. Civil ProcedureMore About the Trial
  28. 28. Evidence Defined● matters that tend to prove the existence or non- existence of some fact (Oxford Dict. of Law)● those matters actually admitted into evidence by the judge presiding, as in the evidence before the court● 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).● "Evidence" 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
  29. 29. Relevance● To be admissible court, evidence must be relevant and material – Compare to definition for discovery.● “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.” – Federal Rule 401
  30. 30. Hearsay● 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● There are numerous exceptions to this rule.
  31. 31. Best Evidence Rule● The best evidence rule nowadays requires that the original of a document must be produced in court in order to prove the documents contents, unless the proposing party offers an adequate explanation for her failure to produce the original (Oxford Dict. of Law)
  32. 32. Privilege● In the law of evidence certain persons in certain situations enjoy a privilege not to testify – Privilege against self-incrimination ● which accords witnesses a right not to testify or otherwise reveal evidence that might expose themselves to criminal prosecution● The legal professional or attorney-client privilege protects confidential communications between lawyers and their clients.
  33. 33. Jury Instructions1201. Strict Liability—Manufacturing Defect—Essential FactualElements[Name of plaintiff] claims that the [product] contained a manufacturingdefect. To establish this claim, [name of plaintiff] must prove all of thefollowing: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; and5. That the [product]’s defect was a substantial factor in causing [name of plaintiff]’s harm.
  34. 34. Judicial Control of Juries● Directed Verdict – motion made at end of opposing partys case arguing that there is insufficient evidence to send the case the jury.● Judgment Notwithstanding the Verdict – made after jury renders verdict – reversal of a jurys verdict by the trial judge when the judge believes there was no factual basis for the verdict or it was contrary to law.
  35. 35. Integrity of Verdicts● Motion for New Trial● Grounds: – irregularity – jury misconduct – newly discovered evidence – insufficient evidence
  36. 36. Back to Pierson v. Post● Issue on Appeal: What constitutes occupancy?● The Court calls this a “novel question.” – What does that mean? Why is this important? – Who will be impacted by this opinion? – What should the court be considering when making this decision?
  37. 37. Two Tiers When Making Law● Tier One – resolving the dispute before the court.● Tier Two – creating law that will be followed by future courts.
  38. 38. Creating Law● How did the court answer the issue on appeal?● What rule of law did the court adopt for ‘what constitutes occupancy,’ and why?● What rule of law did the dissent argue should have been adopted, and why?”
  39. 39. Policy Arguments● Majority: ● Dissent – minimize disputes – custom of hunters – promote peace – maximize the kill of – efficiency/minimize foxes costs of administration – fairness
  40. 40. When Creating New Law● We operate on three levels: – The factual level – the dispute of the parties – The rule level – primary sources of law that might solve the dispute – The public policy level ● We end up here when what exists on the rule level either does not address the question or is ambiguous.
  41. 41. Why Does This Matter?● Before we can critique a decision by a court, we must first understand why a court did what it did!● This involves: – How precedent is created – Why precedent is created● And this allows us to: – Distinguish precedent – Shape precedent to meet new facts
  42. 42. How We Apply Rules● unequivocal intent to appropriate to ones individual use – Does Post meet this?● deprived of natural liberty – Does Post meet this? Should Post concede this?● brought within certain control – Does Post meet this?
  43. 43. Change the Facts● What if we had the same facts as Pierson v. Post, only this time, as Post was closing in on the fox, the fox collapsed, exhausted from all the running. As Post is getting off his horse to come over and grab the fox, Pierson walks up and grabs it first. Who gets the fox and why? Same case or different?”
  44. 44. New Facts● What if we had the same facts as Pierson v. Post, only the events occurred on Posts property?● Same result or different?”