Friday, November 21, 2014

Turkey on Trial

Happy Friday and Happy Thanksgiving!

Programming Note: I'll be on hiatus next week to celebrate the holiday, but be on the lookout for a new post on Tuesday, December 2, 2014.

Tuesday, November 18, 2014

"It was the best of times, it was the worst of times."

Law and Literature is a popular course at many law schools for good reason—the impact of literature and storytelling on the law is well-documented. Judges use literature to make points about everything from the parties’ behavior during litigation to the interpretation of statutory language.

Several courts have referenced Alice in Wonderland when addressing arguments they deem nonsensical:  

“‘Alice felt dreadfully puzzled. The Hatter’s remarks seemed to her to have no sort of meaning in it, and yet it was certainly English.’

Alice in Wonderland by Lewis Carroll

Illustration of Humpty Dumpty
from Through the Looking Glass
by John Tenniel, 1871.
The appeal before us raises the question of whether a defendant may confound the enforcement of the law of this State by engaging in Hatter-like dialogue. Unlike Alice, we are not puzzled and consequently, we reverse the order of the circuit court.” People v. Myers, 474 N.E.2d 923, 924 (Ill. App. Ct. 1985).

And Courts have used Humpty Dumpty’s line “When I use a word…it means just what I choose it to mean—neither more nor less,” when addressing statutory and contract language. See Murakami v. United States, 46 Fed. Cl. 653, 657 n.7 (Fed. Cl. 2000).  

Famous opening lines, such as those from A Tale of Two Cities and Anna Karenina, are also popular among judges:

“As Charles Dickens famously observed at the beginning of his A Tale of Two Cities, ‘It was the best of times, it was the worst of times ....’ The defendant on this appeal, who pled guilty to bank fraud, had a childhood that the record shows was never the best of times; it was always the worst.” United States v. Brady, 417 F.3d 326, 328 (2nd Cir. 2005).

“Tolstoy wrote, ‘Happy families are all alike; but every unhappy family is unhappy in its own way.’ ANNA KARENINA 1 (C. Garnett trans.1933). The Held family’s unhappiness manifested itself in litigation, but the courts cannot resolve this stale dispute.” Held v. Held, 137 F.3d 998, 1002 (7th Cir. 1998)

George Orwell’s 1984 makes notable appearances, including in cases regarding government surveillance and privacy interests:

“There was of course no way of knowing whether you were being watched at any given moment.... It was even conceivable that they watched everybody all the time.... You had to live-did live, from habit that became instinct-in the assumption that every sound you made was overheard, and, except in darkness, every movement scrutinized. George Orwell, 1984 4 (1949). George Orwell’s bleak and chilling vision of post-modern civilization has not come to pass, at least not in this country. But allowing police agents to set up surreptitious, twenty-four-hour video surveillance of landowners on their own property without judicial oversight raises the specter of such a society.” State v. Costin, 720 A.2d 866, 871 (Vt. 1998) (Johnson, J., dissenting).  

As expected, Shakespeare’s works also appear in numerous judicial opinions, with judges quoting both tragedies (e.g. Macbeth and King Henry VI) and comedies (e.g. As You Like It and Much Ado About Nothing), sometimes in the same opinion:

“Delays have dangerous ends.” —King Henry VI, Part I

“And so, from hour to hour we ripe and ripe,
And then from hour to hour we rot and rot,
And thereby hangs a tale.”
As You Like It

Florida Mun. Liability Self Insurers Program v. Mead Reins. Corp., No. 88-6427-CIV, 1993 WL 206274, at *2-3 (S.D. Fla. May 24, 1993).

And judges don’t just rely on classical literature—even the works of modern authors have made their way into judicial opinions:

Michael Crichton’s Jurassic Park: “Life finds a way.” Center for Food Safety v. Vilsac, 636 F.3d 1166 (9th Cir. 2011) (“Life finds a way.”).

Tom Clancy’s Clear and Present Danger: “This court don't dance.” County of Madison, Ill v. Fed. Emer. Mgmt. Agency, No. 10-cv-919, 2011 WL 3290177, at *7 (S.D. Ill. Aug. 1, 2011).

Friday, November 14, 2014

Hey, Tittle Tittle

I love the names of certain accent marks associated with letters and words (especially words borrowed from other languages).

Tittle—the dot above the lowercase i and j in English

Tilde—the squiggly line (~) used as an accent mark in certain languages, such as Spanish and Portuguese (e.g. ã).

Umlaut—the two dots above letters in Germanic languages (e.g. ä).

Cedilla—the backward "c" symbol under certain letters in French and other languages (e.g. façade)

Happy Friday!

Wednesday, November 12, 2014

Using Legal Writing Skills on Law School Exams

Exam season will soon be upon us, so now is a perfect time to talk about how to use legal writing skills on law school exams. Your legal writing skills can help you organize your thoughts and write thorough exam answers.

Follow IRAC, CREAC, or Similar Structure

Many professors grade exams by looking to see how many issues you address or “key words” you use—known as issue spotting. Professors can find that information much more easily in exam answers that are organized using IRAC, CREAC, or a similar structure.

Take, for example, a contracts question. Your answer could start:

The question is whether the Plaintiff can prove the existence of a valid contract. (The I in IRAC)


Under these facts, Plaintiff likely can prove the existence of a valid contract. (The C in CREAC)

Then, you’ll move on to give the elements of a contract (the R).

To prove a contract, the Plaintiff must show that there was (1) an offer; (2) an acceptance; (3) consideration; and (4) a meeting of the minds.

Unless you have a professor who expects you to reference specific cases, you likely won’t have a rule explanation section (where you would normally outline explanatory cases either in long-hand or parenthetical form). Instead, you’ll move right into your analysis (the A).

Here, the Plaintiff can prove the Defendant made an offer because, on October 24, 2014, the Defendant sent the Plaintiff an email offering to sell the Plaintiff 500 widgets at a cost of $50 per widget. Further, the Plaintiff can prove he accepted the Defendant’s offer because the following day, on October 25, 2014, the Plaintiff replied to the Defendant’s email accepting the offer of 500 widgets at a cost of $50 per widget.
You’ll continue to talk about the remaining elements of consideration and meeting of the minds and finish your analysis, taking the opportunity to talk about as many sub-issues as you can spot (i.e. contract sufficiently definite, not governed by statute of frauds etc.)

Then, you’ll conclude by summarizing:

Therefore, the Plaintiff likely can show the existence of a valid and enforceable contract (the C).

Address Counterarguments to Gain Additional Points

Addressing counterarguments is an important in a law school exam as it is in a memo or brief and should help you get additional points.

In the example above, the hypothetical facts might suggest that the Defendant will argue he had withdrawn the offer before the Plaintiff accepted it. Thus, your analysis should address that counterargument:

Here, the Plaintiff can prove the Defendant made an offer because, on October 24, 2014, the Defendant sent the Plaintiff an email offering to sell the Plaintiff 500 widgets at a cost of $50 per widget. Further, the Plaintiff can prove he accepted the Defendant’s offer because the following day, on October 25, 2014, the Plaintiff replied to the Defendant’s email accepting the offer of 500 widgets at a cost of $50 per widget.

In its offer email, the Defendant did not specify a time by which the Plaintiff had to respond to the offer, meaning that the Plaintiff could accept the offer at any time until the Defendant withdrew it and notified the Plaintiff that the offer was withdrawn. While the Defendant may have subjectively intended to withdraw the offer on the afternoon of October 24, 2014 after he sold the 500 widgets to a third-party, the Defendant failed to communicate that withdrawal to the Plaintiff. Thus, when the Plaintiff replied to the Defendant’s email on October 25, 2014, the Plaintiff accepted the offer. 
Address Related Arguments to Gain Additional Points

Further, as you would in a memo or brief, you should address all related issues that might arise. In our contract hypothetical, the facts might suggest that even if the parties did not reach an enforceable contract, the Plaintiff should be able to recover under an alternative theory, such as promissory estoppel.

If so, after you complete the full IRAC, CREAC etc. for your main contract issue, you'll want to follow the same structure to address each related issue:

Even if the Plaintiff cannot prove the existence of a valid contract, he may be able to recover under the theory of promissory estoppel (the I or C).

To recover under the theory of promissory estoppel, the Plaintiff must prove: (1) the Defendant made a clear and unambiguous promise; (2) the Plaintiff reasonably relied on the promise, and the Plaintiff’s reliance was foreseeable; (3) the Plaintiff changed his position to his detriment in reliance on the promise; (4) injustice would result if the Plaintiff were not permitted to recover (the R).

The first element is met because the Defendant made a clear and unambiguous promise to sell 500 widgets to the Plaintiff for $50 each. The second element also is met because after the Plaintiff notified the Defendant by email on October 25, 2014 that the Plaintiff wanted to purchase the widgets, the Plaintiff entered into a contract to sell the widgets to a third-party, Smith. The Plaintiff’s reliance on the Defendant’s promise to sell the Plaintiff the widgets was reasonable and foreseeable because… (the A).
The Plaintiff, therefore, may be able to recover under promissory estoppel if he cannot prove the existence of an enforceable contract. (the C).

Use your legal writing skills to your advantage in your law schools exams to ensure you receive credit for every issue you spot and discuss.

Friday, November 7, 2014

The Magna Carta as Authority?

Chief Justice John Roberts recently noted: "If you're citing the Magna Carta, you're in pretty bad
Via Wikimedia Commons
shape. We like our authority a little more current."

That's undoubtedly true, but courts, including the Supreme Court, cite the Magna Carta as the original authority on a variety of important legal issues:

-8th Amendment prohibitions against cruel and unusual punishment, Solem v. Helm,  463 U.S. 277, 284 (1983)

-due process, Strahler v. St. Luke's Hosp., 706 S.E.2d 7, 15 (Mo. 1986)
-open courts/access to the courts, Craftsman Builder's Supply, Inc. v. Butler Mfg. Co., 974 P.2d 1194 (Utah 1999)
-law provides a remedy for injuries to person and property, Smothers v. Gresham Transfer, Inc., 23 P.3d 333, 340-41 (Or. 2001)

-subrogation rights, Liberty Northwest Ins. Corp. v. Oregon Ins. Guarantee Ass'n, 136 P.3d 49, 57 (Or. Ct. App. 2006)

So, maybe the moral of the story is: the Magna Carta is good authority, as long as it's not your only authority.

Happy Friday!

Tuesday, November 4, 2014

More Thoughts on the HHS Brief in Hobby Lobby

This week, I'm discussing some additional strategies used by the Department of Health and Human Services (HHS) in its brief in the Hobby Lobby case. For my prior posts on this case, see here and here. 

A theme is an excellent way to leave an impression on the reader and pull together arguments that might otherwise seem disjointed. HHS advances one of its themes time and time again—the argument that corporations are distinct from their incorporators and officers. Throughout the brief, HHS notes the “bedrock principle” that corporations are distinct legal entities and, therefore, have no rights under RFRA:

-“Few norms are more deeply ingrained into the fabric of American law than the principle that a corporation and its stockholders are deemed separate entities. And this Court has consistently interpreted federal states in a manner than respects this bedrock norm.”

-“Nothing in RFRA purports to reject the bedrock principle that a corporation is legally distinct from its owners.”

-“The corporations [the Greens] formed are distinct legal entities, and nothing in RFRA overrides that bedrock principle of corporation law.”
Additionally, HHS makes good use of non-legal sources--a tactic we saw in Christopher Simmons's brief in Roper--to further its argument that the contraceptive mandate advances public health, a compelling government interest. HHS notes that a woman’s decision about whether and when to become pregnant “impacts her health, her child’s health, and the economic well-being of herself and her family.” HHS relies on reports from the American Medical Association, the American Academy of Pediatrics, and the March of Dimes, all of which “recommend the use of family planning services as part of preventive care for women.” Thus, argues HHS, it has provided a “concrete and specific” interest “supported by a wealth of empirical evidence.”
HHS also employs a strategy I recommend for dealing with counterarguments—make your best and strongest arguments first, then address counterarguments. Otherwise, you end up with a muddled ping-pong-like presentation that gives undue credence to the opposing party’s arguments.
HHS starts by arguing that RFRA doesn’t grant rights to for-profit corporations, the Greens’ exercise of religion isn’t burdened by the contraceptive mandate, and the mandate advances compelling government interests. Then—after it’s made its best and strongest arguments—HHS addresses counterarguments. While HHS does use the initial parts of its brief to distinguish some cases relied on by Hobby Lobby, it doesn’t address the “meat” of the counterarguments (and the Tenth Circuit’s holding) until page 48 of the 58-page brief, when HHS starts referencing its earlier points to explain why arguments to the contrary are wrong.
As I've noted previously, the Hobby Lobby and HHS briefs are excellent examples of strong written advocacy and offer a wealth of strategies that lawyers old and young alike can employ.