Announcements

1. Announcements • Your research take home exams are due Tuesday 1/18. • The research class is at 3:00 in 273 on Tuesday. • Class next Thursday is at 3:00 in the Moot Court room.

2. Methodology Content Analysis-IRAC Procedure-Postureofcase Legal Writing

3. Review the Four Kinds of Arguments: • Reasoning by analogy • Factor Analysis • Generalizations • The Deductive Argument What are the implicit limitations of these kinds arguments?

4. The Power of the Duc • The deductive argument is the most complete relationship of logical support because the only way to attack a deductive argument is by challenging the premises.

5. A Classic Example of the Deductive Argument is called the Syllogism All legal writing teachers are mortal Powell is a legal writing teacher Therefore, Powell is mortal Major Premise Minor Premise Conclusion • A=B, B=C, A=C • The Transitivity Principle

6. The Legal Syllogism [statute] [holding from a single case] Major Premise [Legal rule] [principle derived from a series of cases] Minor Premise [Set of facts in your dispute] Conclusion [Your determination of whether the facts satisfy the legal rule] Movie clip

7. The Process of Litigation

8. A Libel Syllogism Larry Flynt is guilty of libel if a reasonable person may have believed the cartoon claiming Rev. Jerry Falwell had sex with his mother in an outhouse, was true. No reasonable person would have believed the cartoon that Rev. Jerry Falwell had sex with his mother in an outhouse Therefore, Larry Flynt is not guilty of libel. Major Premise Minor Premise Conclusion

9. What is the first stage in a civil lawsuit ? • Service of Process (the summons)

10. What is the purpose of serving a summons? • The summons performs the dual functions of : • (1) notifying the defendant that a lawsuit has been started against her and, • (2) bringing the defendant under the power of the court in which the case is to be tried. The power of a court to adjudicate is called its jurisdiction.

11. Pleadings • The lawsuit continues in the form ofpleadings, which are documents submitted by the parties to outline the most critical facts that they intend to prove at trial F.R.C.P. 7(a) • The first pleading is the . . . • Complaint.

12. Assuming the complaint was served with the summons, what is the next stage in a civil lawsuit ? • The Pleadings • The Complaint • Motion to Dismiss/Answer

13. Pleadings • The defendant can respond to the summons and complaint with either or both of two steps. The defendant may file a motion to dismiss or an answer or both. • The most frequent is the defendant's assertion that the plaintiff’s complaint should be dismissed because it does not allege facts that constitute a cause of action. This is called a • Motionto dismiss for failure to state a claim upon which relief can be granted.(12b6)

14. What stage is next? Discovery (Discovery motions)

15. Discovery • If the action has not been dismissed in the pleading phase, the attorneys will conduct Discovery. • After some discovery has been done, the attorneys might also negotiate or make what kind of discovery motion? • Summary Judgment. • What are the standards for proving summary judgment?

16. Summary Judgment • When one of the parties believes that the case lacks issues of fact or, in other words, believes that the evidence is not in conflict about what happened before the suit began • (No genuine issue of material fact) • -- that party can move for summary judgment, asking a court to decide the case without a trial by resolving the issues of law alone. • (Entitled to judgment as a matter of law).  Motion Practice

17. The next stage is Pretrial • The ComplaintDiscovery • Answer • Pretrial (Jury Selection)

18. Pretrial • The jury is selected from a random pool of jurors (the venire) by a process known as • voir dire. • In order to insure impartiality, each party may excuse or challenge some jurors. • Most trial courts also now hold a pretrial conference to deal with pre-trial motions.

19. The Trial • In a trial with a jury, the jury's role is to decide, in the form of a verdict, issues of . . . • fact, while the role of the judge is to decide issues of . . . • law. • The first event in a trial is an opening statement, in which the attorneys outline the case they hope to prove.

20. Trial • Then, during the evidence-takingphase of the trial,the attorneys presenttheir case in the formof witnesses andexhibits. • One of the motions attorneys make at trial is one that tests the sufficiency of an opponent's evidence and that, if granted, results directly in judgment for the party making the motion. This is called a motion for a directed verdict.

21. The Trial • The ComplaintDiscovery Trial (Motions for Directed Verdict) Answer • Pretrial (Jury Selection/Charge)

22. Trial • Next attorneys make closing arguments. • Then, in the charge orjury instructionsthe judge instructs the jury on how to apply the law to whatever facts the jury might find.   • Finally, the judge signs the jury’s verdict into a judgmentwhich provides or denies the remedy asked for by the plaintiff.

23. Post Trial Motions • Attorneys may make post trial motions such as a • motion to set aside theverdict and grant anew trialor a • motion for judgment notwithstanding the verdict. • They are made to the trial court, and both challenge the sufficiency of the evidence on which the verdict is based.

24. Trial • The ComplaintDiscovery Trial-Directed VerdictVerdict (Motions- • Answer J.N.O.V./New trial) • Pretrial (Jury Selection/Charge)

25. The Appellate Process Movie clip 2

26. Appeal • The ComplaintDiscovery Trial-Directed VerdictAppealVerdict(motions) • Answer (J.N.O.V./New trial) • Pretrial (Jury Selection/Charge)

27. The Decision to AppealFactors to Consider: • Jurisdiction • Grounds for Appeal • Probability of Success • Economic and other costs

28. Appeal • An appealis a request by the losing party for a higher court to reverse or alter one or more rulingsby the trial court. The party making the appeal becomes • The Appellant • while the other party becomes • The Appellee

29. Appeal • Appellate courts do not retry cases. • They accept the factual record from the trial court and deal with legal issues. • Arguments are made bymeans of written documents called appellate briefs that the attorneys submit to the court. The attorneys may also argue orally before the judges.

30. The Record on Appeal • Since the appellate court doesnot “try” the case, its only sourceof information about what hasgone on in the lower courts is the “record.” • The record contains various documents filed with the court during the litigation such as the pleadings,the motions, the trial transcript,the verdict, the judgment, and so forth.

31. Preserving the Record • The appellate court does not review the entire record in search of mistakes. The court will look only to the issues raised on appeal in the “Notice of Appeal” and the Briefs. • Thus, the party appealing should preserve error at trial by raising objections and making motions at trial to contest the error.

32. Appeal • Review at the appellate level is also limited to issues of law that have been decided in a final order. (e.g. Granting Summary Judgment) • The idea is that an appellate level court should not step in to correct a lower level court while the issue is still pending before that court.

33. Standard of Review • Finally review at the appellate level is limited by the “standard of review”. • The standard of review differs depending on what type of issue is being raised before the court.Some example standards of review are: • De NovoClearly ErroneousAbuse of DiscretionSubstantial Evidence

34. Standard of Review • Case law, state rules and statutes address appropriate standards for various issues. • Do standards of review (except de novo) gives deference to the winner or loser at the trial level? • The winner-which is why so few appeals are successful.