LSE: SKILLS FOR 1L SUCCESS PAVEL WONSOWICZ UCLA LAW SCHOOL

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1 LSE: SKILLS FOR 1L SUCCESS PAVEL WONSOWICZ UCLA LAW SCHOOL CHAPTER 1: OVERVIEW A. Three Themes fr Law Schl Success 1. Active learning Dn t learn passively Be practive 2. Create a feedback lp Test yurself t ensure yu understand the material. 3. Always be preparing fr the final exam Tested n yur ability t think critically and respnd strategically t hyptheticals Studying shuld be geared tward develping thse tw skills. B. Lecture Overview 1. Read and analyze tw cases 2. Mck class 3. Decnstruct the mck class 4. Cmpnents f active learning Briefing a case Reading cases Taking class ntes Outlining the materials Hw t take a final exam After each lessn, g back t the tw cases and perfrm the skill yu have learned. C. Felny Murder Subject matter f bth cases Murder - a type f f the life f anther. Elements:

2 Prf f death - an affirmative act r an missin when there is a duty t act. - the mental state. Murder requires malice afrethught - usually prven circumstantially. - a causal relatinship between the defendant's act and the victim's death. First degree murder - the killing must have been deliberate and premeditated. Felny murder - the intent t cmmit a felny unrelated t the hmicide is sufficient t meet the mens rea fr first degree murder. Example 1: If yu intended t cmmit arsn and smene dies while yu are cmmitting arsn, yu will be charged with first degree murder under the felny murder dctrine. Felny - a serius crime punishable by r mre in state prisn. **Please read Peple v. Fuller and King v. Cmmnwealth, belw, befre cntinuing t lecture tw.** Themis Bar Review, LLC Law Schl Essentials: Skills fr 1L Success

3 PEOPLE V. FULLER COURT OF APPEAL, FIFTH DISTRICT, CAL.APP.3D 618, 150 CAL.RPTR Fransn, Acting Presiding Justice. * * * This appeal challenges the Califrnia felny-murder rule as it applies t an unintentinally caused death during a high speed autmbile chase fllwing the cmmissin f a nnvilent, daylight burglary f an unattended mtr vehicle. Slely by frce f precedent we hld that the felny-murder rule applies and respndents can be prsecuted fr first degree murder. * * * The pertinent facts are as fllws: On Sunday, February 20, 1977, at abut 8:30 a.m., unifrmed Cadet Plice Officer Guy Ballesterz was n rutine patrl in his vehicle * * *. As the fficer apprached the Fresn Ddge car lt, he saw an lder mdel Plymuth parked in frnt f the lt. He als saw respndents rlling tw tires apiece tward the Plymuth. His suspicins arused, the fficer radied the dispatcher and requested that a plice unit be sent. * * * Ballesterz made a U-turn and headed nrthbund n Blackstne. The respndents gt int the Plymuth and drve away "really fast." Thereafter, a high speed chase ensued, which eventually resulted in respndents car running a red light * * * and striking anther autmbile which had entered the intersectin. The driver f the ther autmbile was killed. Respndents were arrested at the scene. The chase frm the car lt cvered sme seven miles and lasted apprximately 10 t 12 minutes. * * * Later investigatin revealed that fur lcked Ddge vans at the car lt had been frcibly entered and the spare tires remved. Fingerprints frm bth f the respndents were fund n the jack stands in sme f the vans. Penal Cde sectin 189 prvides, in pertinent part: "All murder... which is cmmitted in the perpetratin f, r attempt t perpetrate, arsn, rape, rbbery, burglary, mayhem r [lewd acts with a minr], is murder f the first degree;..." (Emphasis added.) This statute impses strict liability fr deaths cmmitted in the curse f ne f the enumerated felnies whether the killing was caused intentinally, negligently, r merely accidentally. * * * Burglary falls expressly within the purview f Califrnia s first degree felny-murder rule. Any burglary within Penal Cde sectin 459 is sufficient t invke the rule. rule. * * * Thus, the trial curt erred in striking the murder cunt premised upn the felny-murder We deem it apprpriate, hwever, t make a few bservatins cncerning the irratinality f applying the felny-murder rule in the present case. * * * If we were writing n a clean slate, we wuld hld that respndents shuld nt be prsecuted fr felny murder since * * * an autmbile burglary is nt dangerus t human life. The present case Themis Bar Review, LLC Law Schl Essentials: Skills fr 1L Success

4 demnstrates why this is s. Respndents cmmitted the burglary n vans parked in a dealer s lt n a Sunday mrning. There were n peple inside the vans r n the lt at the time. The respndents were nt armed and presumably had n expectatin f using vilence during the burglary. * * * [Under the felny-murder statute,] if a merchant in pursuit f a fleeing shplifter is killed accidentally (by falling and striking his head n the curb r being hit by a passing autmbile), the thief wuld be guilty f first degree felny murder assuming the requisite intent t steal at the time f the entry int the stre. Such a harsh result destrys the symmetry f the law by equating an accidental killing resulting frm a petty theft with a premeditated murder. In n sense can it be said that such a result furthers the stensible purpse f the felny-murder rule which is t deter thse engaged in felnies frm killing negligently r accidentally. KING V. COMMONWEALTH COURT OF APPEALS OF VIRGINIA, VA.APP. 351, 368 S.E.2D 704. Cleman, Judge [King and c-pilt Bailey were flying a Beechcraft airplane cntaining mre than 500 punds f marijuana in the directin f a Virginia airprt when they encuntered heavy clud cver and fg and became lst. The airplane crashed int a muntain, killing Bailey instantly. King survived the accident and was charged with felny-murder f Bailey, based n their felny pssessin f marijuana.] We cnsider whether the facts in this case cnstitute a vilatin f the felny-murder statute. * * *We hld that because the death was nt caused by an act f the felns in furtherance f the felny, appellant is nt criminally liable fr the death. * * * * * * It des nt fllw * * * that any death f any persn which ccurs during the perid in which a felny is being cmmitted will subject the feln t criminal liability under the felny-murder rule. T cnstrue ur statute t encmpass every accidental death ccurring during the cmmissin f a felny, regardless f whether it causally relates t r results frm the cmmissin f the felny, is t make felns abslutely liable fr the accidental death f anther even thugh such death is frtuitus and the prduct f causes whlly unrelated t the cmmissin f the felny. Recgnizing the ptentially harsh and far reaching effects f such a cnstructin f the felny-murder dctrine, the Virginia curts, as well as thers, have limited its applicatin. * * * One f the mst significant factrs in defining the scpe f the felny-murder invlves the causatin required between the felny and the death. * * * In Virginia, it is clear when the hmicide is within the res gestae f the initial felny and emanates therefrm, it is cmmitted in the perpetratin f that felny. Haskell v. Cmmnwealth, Themis Bar Review, LLC Law Schl Essentials: Skills fr 1L Success

5 Va. 1033, 1041, 243 S.E.2d 477, 482 (1978). The Curt explained that "the felny-murder statute applies where the killing is s clsely related t the felny in time, place, and causal cnnectin as t make it a part f the same criminal enterprise." Thus, the curt in Haskell affirmed first degree murder cnvictins when the murder f a rbbery victim was within five feet f the site f the rbbery, within mments f the rbbery, and was t facilitate the rbbers' escape withut being identified. Under these circumstances, the killing was bviusly causally related t the rbbery and was part f the same enterprise. * * * In a leading case invlving the felny-murder dctrine, * * * the Pennsylvania Supreme Curt addressed the causatin prblem at length. Rejecting their previus standard f prximate cause, the curt stated: In adjudging a felny-murder, it is t be remembered at all times that the thing which is imputed t a feln fr a killing incidental t his felny is malice and nt the act f killing. The mere cincidence f hmicide and felny is nt enugh t satisfy the requirements f the felnymurder dctrine. "Death must be a cnsequence f the felny... and nt merely cincidence." Cmmnwealth v. Redline, 391 Pa. 486, 495, 137 A.2d 472, 476 (1958). * * * In the present case, King and Bailey were in the airplane t further the felny f pssessin f marijuana with the intent t distribute. They were flying ver the muntains while cmmitting the felny. The time and the place f the death were clsely cnnected with the felny. Hwever, n causal cnnectin exists between the felny f drug distributin and the killing by a plane crash. Thus, n basis exists t find that the accidental death was part r a result f the criminal enterprise. In the felnymurder cases cited abve, death, t be cnsidered an "accidental killing" within the statute, has resulted frm a particular act which was an integral part f the felny r an act in direct furtherance f the felny -- shting a gun, striking a match, distributing ccaine. In this case, there is n such act which caused the death. * * * Bailey * * * was nt killed * * * by any act f King which was in furtherance f the felny. * * * The felny-murder rule des nt exist t enable curts t impute "the act f killing" where an accidental death results frm frtuitus circumstances and the nly cnnectin with the felny is tempral. The cause f Bailey's death was Bailey's pilting and adverse weather cnditins. The accident stemmed nt frm the pssessin r distributin f drugs, but frm fg, lw clud cver, pilt errr, and inexperience. * * * The cmmissin f the felny merely accunted fr their presence at the lcatin f the accident, and nthing directly related t the cmmissin f the felny caused the accident. Thus, flying int the muntain was nt a direct cnsequence f the felny. Had the plane been flying lw r recklessly t avid detectin, fr example, the crash wuld be a cnsequence r actin which was directly intended t further the felny and a different result might btain. * * * Themis Bar Review, LLC Law Schl Essentials: Skills fr 1L Success

6 CHAPTER 2: MOCK CLASS **Please watch the mck class and take ntes belw.** Themis Bar Review, LLC Law Schl Essentials: Skills fr 1L Success

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8 CHAPTER 3: REVIEW OF MOCK CLASS A. Scratic Methd Students will gain a deeper understanding f the material by respnding t prbing questins. Prfessr asks questins, students answer - the prfessr desn't lecture. B. Questins Mde f analytic thught Pay attentin bth t the questins and the answers. Same questins yu shuld ask when reading the fact pattern n the final exam. What facts are imprtant? What precedent shuld apply? Designed t have students argue abut the material C. Fuller Case Prfessr's questins were similar t what yu will d in briefing a case befre class. What were the precise issues befre the curt? What were the utcme determinative facts? Prfessr then examined the law - particular statute/rule at issue. Prfessr then addressed the ratinales fr the rules. Imprtant fr the final exam Little time spent n the rule itself - mst time was spent n the dictum. Fcused n the reasn fr the felny murder rule Ratinale: Felny must be dangerus. Curt fllwed the rule but with deep reservatins. Prpsitin f case-by-case analysis in applying the felny murder rule D. King Case Opening questin asked: Why is this case in the bk? T examine the " " requirement (element f felny murder) Fcus n defining the causatin requirement Res gestae - lk up any unfamiliar terms in a legal dictinary. Curt narrwed the rule - definitin that fcused n, place, and Themis Bar Review, LLC Law Schl Essentials: Skills fr 1L Success

9 Haskell case - example f time, place, and cause being met. Prfessr then asked student t apply new test t the Fuller case. Always think abut applying what yu have just learned t what yu learned in previus classes. Prfessr fcused n whether the rule can be lgically defended. Time and place is easy but cause is the real issue. Likely the issue that wuld be tested n the exam Themis Bar Review, LLC Law Schl Essentials: Skills fr 1L Success

10 CHAPTER 4: CASE BRIEFING A. Why brief cases? Prfessrs : categrize cases, synthesize the issues, and cme t a cnclusin. Lawyers brief every day. Best learning is : wrk with the case, categrize issues. Use the briefs t the curse. : take a stab at what the case means, what are its limits, etc. Test yur hyptheses in class t see whether yu are right r wrng. B. Hw lng shuld this take? It becmes faster as yu practice. One page t a quarter f a page C. What shuld my brief lk like? N gd answer They shuld be individualized fr each. Des yur prfessr fcus n utcme determinative facts? Fact heavy. Plicies nly? Dn t wrry abut prcedure. Yu get t establish a prfessr-specific bk fr yur class. D. What culd be in a brief? Case sectin Prcedure sectin Issue Ptential Parties Ratinales supprting the hlding Yur evaluatins Exam Tip 1: If yur prfessr desn t spend time n ne f these areas, cut that ut f yur briefs fr that class. Fcus n what yur prfessr values Themis Bar Review, LLC Law Schl Essentials: Skills fr 1L Success

11 1. Case ID Name, citatin, year, curt, judge, sectin f the bk, etc. Anything t help rient yu 2. Fact Sectin Usually very imprtant All rights/burdens depend n facts. Fcus n facts. Test: If the fact is used twice it's prbably utcme determinative. If yu eliminate that fact, yu change the f the case. Categrize players (buyer, seller, etc.) 3. Prcedure Wh brught the actin, claims and defenses, dispsitins f trial curt and intermediate curts What is the stry the lawsuit was filed? 4. Issue Material questin f fact r law that arises in the case Shuld be neither t brad nr t narrw Narrw enugh t identify the legal questin and distinguish this case frm thers. Usually, a mixture f utcme-determinative facts and law Example 2: prvcatin? Des unintentinally stepping n a dg s tail cnstitute Dn t be s brad that yu can t derive a rule, but dn t make it s narrw that n ther case culd pssibly address the issue. Sme cases are purely law-centered: what a particular law means. Framing the issue What was at stake in the litigatin? Under Des When frmat Under (law) des (legal questin exist) when (these facts exist)? Example 3: Under State X's dg bite statute, des the act f stepping n a dg's tail cnstitute prvcatin when it's unintentinal? 5. Hlding The answer t the issue Themis Bar Review, LLC Law Schl Essentials: Skills fr 1L Success

12 Better definitin: When these facts and this law meet, yu will always get this result. quality allws yu t predict future utcmes, even if different. Identify the cnsideratins that were essential t the decisin. 6. Ratinale Lgical pillars that supprt the hlding May be mre than ne Allws yu t predict hw the hlding culd be influenced by different facts The " " f the hlding Includes: utcme-determinative facts, plicy, precedent, etc. What if the prfessr takes away ne f the pillars n the final exam? Des the hlding still apply? Elasticity f hldings - hw far can the hldings be stretched r cntracted? 7. Evaluatin Try t evaluate the case; wrk with the material, dn t just passively list the rules. Were the interpretatins fair r faulty? E. Hw d I make this shrter? At sme pint: Hlding and ratinale can be the basis f yur brief. ALWAYS keep briefing these tw cmpnents. Used t help yu utline, prepare fr class, and help yu with yur feedback lp Themis Bar Review, LLC Law Schl Essentials: Skills fr 1L Success

13 CHAPTER 5: AGGRESSIVE READING A. Fcus Final exam is NOT ging t be descriptive, it's. B. Techniques 1. Imagine yu are in a dialgue with the judge. Figure ut what was decided and why, and questin whether yu agree with that decisin. Is this an judge? Evaluate the decisin fr yurself: Why fcus n that fact? D yu agree with the plain-language reading f the statute? This helps yu remember the decisin, even if yu dn t agree. 2. Mnitr yurself as yu read. Develp a as yu read: As sn as yu read the facts, decide the utcme (e.g., manslaughter, persnal jurisdictin, adverse pssessin, etc.). Change yur hypthesis as yu read mre facts. 3. Understand the purpse f yur reading. Understand prevailing principles and rules that may reslve cnflicts. Why was this case assigned? Why chse this case? Gd glbal statement? Illuminates ne particular element r factr? Cmpelling defense? What des this add t my tlbx? 4. Adapt Mdify yur purpse t the time yu have available, the likelihd yu will be called n, the imprtance f the material assigned, etc. Expert readers check speed based n the cnditins f the rad. 5. Visualize actin as best yu can. Use knwledge t picture arguments lawyers wuld make and the factual surrundings f the case. Diagrams, real wrld experience, etc Themis Bar Review, LLC Law Schl Essentials: Skills fr 1L Success

14 6. Pay attentin t. Supprts hlding Ratinale may be pulled r added. Crucial t understanding everything that supprts the hlding 7. Synthesize Use case briefing t chunk infrmatin int lgical bxes Scpe f hlding: Brad? Narrw? In between? Stays in lng-term 8. Evaluate Yur pinin matters. Yu ll learn mre abut what s right if yu ventured a guess at the beginning. Criticizing curts is yur way t practice thinking like a lawyer. 9. Read. Be flexible as yu read. Review as sn as yu stp understanding smething. Dn t just keep ging. 10. Dn t clutter shrt-term memry by keeping discnnected infrmatin. Make cnnectins Hw are yu ging t use this case? 11. Put the case in yur wn wrds (cnclusin and reasning). Prfessrs can tell when a student desn t understand read wrds instead f expressing understanding. Be able t describe the case in yur wn wrds. C. Synthesis Grup like cases tgether t develp rules. Facts r factrs r elements r plicy that shuld be cnsidered when a new cnflict arises Like cases must be decided in a Recncile diverse results t find cllective meaning. Questins t ask yurself: 1) Stated succinctly, the appears t be e.g., Battery is. 2) Are there? e.g., Substantial certainty can substitute fr intent Themis Bar Review, LLC Law Schl Essentials: Skills fr 1L Success

15 3) Stated succinctly, the fllwing r exist e.g., Self defense is a defense t battery. 4) Big picture, plicy, r fairness reasns fr the rule are D yu knw the reasns behind the rule? Hw is this advancing sme scietal gal? 5) Plicy reasns shuld be against what? e.g., We dn t want the "I didn't mean it" defense t wrk. 6) What are the that hld special meaning beynd the lay meaning? e.g., Reasnably prudent persn standard; knwledge t a substantial certainty Synthesize t find a path t utlining Themis Bar Review, LLC Law Schl Essentials: Skills fr 1L Success

16 CHAPTER 6: TRANSFORMING YOUR CLASS NOTES A. What s the difference between an "A" student and a "C" student? "A" students transfrm and review their ntes befre the next class. "C" students read cmmercial utlines immediately fr further explanatin. B. Objectives Stay vigilant! Nte taking keeps yu vigilant. Want recall t be immediate and accurate Retentin after class Ntes are yur memrializatin f class. Cmbined with reading ntes, class ntes are ging t make up yur exam prep materials. C. Hw t take ntes 1. Dn t be a. Take cues frm yur prfessr. Starting with utcme determinative facts? Starting with analgies? - tells yu what yur prfessr values. Even if yu re nt called n, play the game as if yu were. 2. Certain things t highlight All that a prfessr creates Any by the prfessr Any magic wrds, rules, tests, definitins, exceptins, r standards: law Anything a prfessr Student cmments - if praised by the prfessr r striking Exam Tip 2: Put them in a different fnt r clr, s yu knw it s nt smething the prfessr said. : scial, ecnmic, envirnmental, administrative, etc. Mral and ethical cncerns - if valued by the prfessr, differences, r t ther materials in the curse, pinted ut by the prfessr Themis Bar Review, LLC Law Schl Essentials: Skills fr 1L Success

17 D. Transfrming yur ntes (three-step prcess) 1. Find smene t help yu fill in any hles in yur ntes. 2. Highlight and summarize while the infrmatin is fresh. Actually highlight what was imprtant and summarize that material - "sweat page." Imagine that the next class will have a quiz abut the previus class. What rules did we cver? What remains unclear t me? Hw des this infrmatin t ther tpics? 3. Hw might this appear? The utcme determinative facts accrding t the prfessr - were they different frm what yu thught? Unknwn terms that the prfessr uses during class Put ideas n a spectrum. Exam strategies E.g., If yu can t find intent fr battery, try t sue fr negligence. Ask abut each case: hw is this a tl fr my tl chest? Exam Tip 3: Answer questins befre the next class if pssible Themis Bar Review, LLC Law Schl Essentials: Skills fr 1L Success

18 CHAPTER 7: EXAM-TARGETED OUTLINING A. Why bther utlining? Frces yu t find the f the law Helps yu answer questins; Tells yu hw the law is applied; and Tells yu what yu dn t knw. Prvides a fr answering exam questins Helps yur The value is in making it, nt just having it. B. Cmpiling Outline Infrmatin 1. Case Ntes Cme up with ne rule that gverns similar situatins. Review yur case ntes. Des this case give me the rule? Des this case illuminate an element? Des this case tell me hw t balance factrs? Des this case explain an exceptin? What was the plicy behind the hlding? What were the utcme determinative facts behind the hlding? Lk at the pillars that supprt the hlding. 2. Class Ntes Did the prfessr give yu f the prima facie case? Did the prfessr give yu general rules and exceptins? Did the prfessr discuss the relatinship between the rule and the bdy f law? Did the prfessr discuss the behind the rule? Did the prfessr s questins mdel a way fr yu t answer an essay? Start with the facts? Start with an analgy? These prvide hints fr an exam strategy. What hyptheticals did yur prfessr craft? May be the basis fr an exam! Themis Bar Review, LLC Law Schl Essentials: Skills fr 1L Success

19 3. Srting the Infrmatin D the cases g t the big picture? D they illuminate a particular element r factr? D they mdify, expand, r narrw an? D they create an exceptin t the rule, r an exceptin t the exceptin? C. Creating Yur Outline 1. Fur-step Prcess 1) Draft a utline. 2) Insert synthesized. 3) Insert. 4) Insert reasns behind the rule (plicy, ratinales, etc.). Exam Tip 4: These steps mimic hw t write an exam answer. 2. The Skeletn Outline - Step 1 Rman numerals and capital letters Majr headings Syllabus and Table f Cntents can help Think abut pririties f headings and subheadings Example 1: A. Persnal Jurisdictin 1. Minimum Cntacts 2. Fairness 3. Quality and Nature 4. Purpseful Availment 5. Freseeability 6. Five Factr Test Example 2: A. Persnal Jurisdictin 1. Minimum Cntacts Themis Bar Review, LLC Law Schl Essentials: Skills fr 1L Success

20 a. Quality and Nature b. Purpseful Availment i. Freseeability 2. Fairness a. Five Factr Test Nte that the headings demnstrate pririties f tpics - much better than Example 1. Example 3: IIED State Rubbish Cllectrs Ass'n Slcum Harris Taylr Example 4: IIED A. The intentinal f reckless inflictin, by extreme and utrageus cnduct, f severe emtinal r mental distress, even in the absence f physical harm. 1. Intent: desire, substantial certainty, reckless Transferred intent: Taylr 2. Extreme and utrageus: State Rubbish 3. Actual, severe distress: Slcum, Harris Assign purpses and hldings t the case names. Knw hw t use them. 3. Insert Synthesized Rules - Step 2 Slcum: A wman walks int a stre and asks a stck by fr help. The stck by says t her, "Yu smell." The wman sues fr intentinal inflictin f emtinal distress. The curt fund that the statement wuld nt cause severe emtinal distress t a persn f rdinary sensibilities. An test Themis Bar Review, LLC Law Schl Essentials: Skills fr 1L Success

21 Harris: A bss mcked an emplyee's speech impediment. The curt said that emtinal distress is nt cnsidered in a sterile setting; the persnality f the persn is a factr. If yu knw f an individual's weakness, that matters in terms f whether there is actual and severe distress. Nnetheless, yu must shw that the stress wrsened the situatin fr the plaintiff Themis Bar Review, LLC Law Schl Essentials: Skills fr 1L Success

22 CHAPTER 8: EXAM-TARGETED OUTLINING (CONT'D) A. Creating Yur Outline (cnt'd) 1. Insert Synthesized Rules - Step 2 Actual Severe Distress: Plaintiff must shw that she suffered a severely disabling emtinal respnse t Defendant's cnduct. Must be calculated t cause distress t a persn f rdinary sensibilities (in the absence f special knwledge r ntice) Certain cnditins that affect Plaintiff may be taken int accunt when Defendant is aware f them. 2. Add Cases and Hyptheticals - Step 3 Certain cnditins that affect Plaintiff may be taken int accunt when Defendant is aware f them. Even cruel and insensitive behavir frm a bss t an emplyee with a preexisting susceptibility t emtinal distress is nt enugh; the evidence must shw hw and t what degree the cnditin wrsened (Harris). Develp that yu can use n the exam. Harris may be the g-t case if the prfessr asks abut a case where there is an injury, but the cnditin desn't wrsen. 3. Insert Ratinales and Plicies - Step 4 Yur way n the exam t justify yur cnclusins. Wrds must have real meaning r serius effect (Slcum) r therwise, curts are brught int the realm f the trivial. Use the plicy t help the cnclusin. B. Turning Yur Outline int a Final Exam 1. Putting yur utline t the test: The Hypthetical A law student ges t a prfessr and says, "I'm thinking abut drpping ut f law schl. I dn't enjy it, it's nt what I thught it was ging t be, and I'm nt happy here." The prfessr says, "Dn't drp ut. Stay. Lts f students feel this way at sme pint." The student replies, "Well, there is anther thing. My mther is ill, and I feel I shuld g back hme t spend time with her." Again, the prfessr urges the student t stay. The next day in class, the prfessr really grills the student, wh is unprepared. The prfessr keeps pushing as the student gets mre and mre flustered. Finally, the prfessr pulls ut a Themis Bar Review, LLC Law Schl Essentials: Skills fr 1L Success

23 quarter and says, "Here's a quarter. G call yur mther and tell her that yu'll never be a lawyer." The student runs ut f the classrm and drps ut. She sues the prfessr fr intentinal inflictin f emtinal distress. 2. Des yur utline help yu respnd t this hypthetical? Actual, Severe Distress: P must shw that she suffered a severely disabling emtinal respnse t D s cnduct (Student will say: I suffered a severely disabling emtinal respnse. Start with.) Must be calculated t cause distress t a persn f rdinary sensibilities (in the absence f special knwledge r ntice) (This will be the prfessr's respnse) Wrds must have real meaning r serius effect (Slcum) r therwise curts are brught int the realm f the trivial. Certain cnditins that affect P may be taken int accunt when D is aware f them. (Student will reply that the bjective test desn't apply, as the prfessr had knwledge f the special circumstances.) Even cruel and insensitive behavir frm a bss t an emplyee with a pre-existing susceptibility t emtinal distress is nt enugh; evidence must shw hw and t what degree the cnditin wrsened (Harris). (Prfessr will respnd that this isn't enugh; the student wuld still have t shw that the prfessr made the situatin wrse.) 3. Regardless f yur cnclusin, the utline wrks! Gave us the black letter law Gave us an t Slcum, allwing us t make a plicy argument Gave the student an pprtunity t discuss an (Harris) Allwed the prfessr t further discuss that exceptin C. The Outline Evlved 1. N magic frmula fr utlines What matters is that yu include what is imprtant t yur prfessr 2. The Attack Outline: 1-3 pages n the majr tpics Organized in the rder in which yu wuld discuss them Helps with yur sptting E.g., Yur attack utline fr Cntracts may have a sectin dedicated t defenses. 3. Brainstrm Sheets All majr rules yu discussed in class First, list everything yu discussed: Themis Bar Review, LLC Law Schl Essentials: Skills fr 1L Success

24 Prmissry Estppel Offer Acceptance Then, rganize them by rules, key wrds, and relatinships: Requirements fr Cntract Offer Cmmitment/prmise Certainty f Terms Cmmunicatin Terminatin 4. Flwcharts Acceptance Cnsideratin Is there an ffer? Has the ffer been cmmunicated? D we have certainty in terms? Is there a cmmitment r prmise? Has the ffer been terminated? Is there cnsideratin? Has the ffer been accepted? Yes? -- Cntract! N? Des prmissry estppel apply? Make sure cntract is nt vid r vidable N--Are there ther ways t enfrce? Yes--We can enfrce the cntract Themis Bar Review, LLC Law Schl Essentials: Skills fr 1L Success

25 5. Gruping Cases by Outcme Clear ffer: Lucy Dhrman Grey Area: Fairmnt Keller Lefkwitz Owen Harvey Massee Clearly nt ffers: Craft Multn Themis Bar Review, LLC Law Schl Essentials: Skills fr 1L Success

26 CHAPTER 9: EXAMS: PART 1 A. Hw des the exam test the skills yu ve been using t this pint? Briefing cases helps yu find utcme-determinative facts. Can I spt? (aggressive reading) Can I distill rules prperly? (utline synthesis) Can I the curt s reasning? Exam Tip 5: Remember: Exams are prfessr-specific. Adapt yur answers t their preferences. B. Types f Questins and Analysis 1. Frmat Mst exams: (Issue, Rule, Applicatin, and Cnclusin) wrks well, thugh the frmula may change. 2. Issue Sptting: "Racehrse" Apprach Must abbreviate applicatin Must discuss all issues Less than 10 minutes per issue - yu may nt get t all cunterarguments r plicy arguments. 3. Analysis: Fewer issues Mre than 10 minutes per issue becmes much mre imprtant. 4. Plicy-riented Questins May be very pen-ended r mre pinted E.g., What rule did yu mst disagree with and why? vs. Shuld a child be held t an adult's standard? Define parameters f law and explain hw they are applied. Explre the reasns behind it. Hw is yur cnclusin advanced by applicatin f the law? C. Gals in Exam Rm Argue frm the facts the prfessr gives yu. Mixing fact and law are the skills mst exams are testing. Hw can bth sides use each fact? Themis Bar Review, LLC Law Schl Essentials: Skills fr 1L Success

27 Answer the call f the questin. D what is being asked f yu. Are yu plaintiff s cunsel? If s, there are n bad facts. Are yu a judge? If s, yu will be mre interested in cunterarguments. Dn t be. Cmplete yur thughts. Make inferences explicit. D. Appraching the Exam Questin 1. Read the instructins t the exam carefully. Prfessr may give yu assumptins take nte f thse! E.g., Assume majrity law gverns; assume the UCC gverns. 2. Lk at the first. Imprves reading cmprehensin Allws yu t fcus n certain parties r certain causes f actin 3. Figure ut yur timing. Determine hw many minutes per questin and hw many pints each questin is wrth. D NOT exceed the time limits! 4. Read the rest f the questin. First read f questin read Circle parties and facts. Make ntes in the margins r n scratch paper. Secnd read f questin G thrugh sentence by sentence. What des each fact trigger? There may be red herrings. Usually each fact has sme significance - makes sme factr r element arguable. Circle wrds ( nt, but, hwever, and ). Circle dllar amunts, ages, and dates. Rule f "tws": Tw r mre f anything (plaintiffs, defendants, etc.) will likely have Themis Bar Review, LLC Law Schl Essentials: Skills fr 1L Success

28 Unlikely that they wuld reach the exact same result 5. Outline yur answer. Sme students nly write margin ntes. Sme immediately start typing. In sme way, yu shuld utline yur answer. Think in terms f, sub-issue, and Themis Bar Review, LLC Law Schl Essentials: Skills fr 1L Success

29 CHAPTER 10: EXAMS: PART 2 A. Outlining Yur Answer (cnt'd) 1. Hw much time shuld yu spend utlining? 20-33% f yur time shuld be n reading and utlining. The shrter the questin, the smaller the percentage. 2. Think in terms f tested sub-issues. When yu utline, yu internally issues. Are questins equally weighted? Wrth the same pints? What issues bring the mst pints? Cnsider: Where are the mst facts? Hw strng are the cunterarguments? Is it really a clse call? If it s a grey area, it s likely wrth mre pints. As yu utline within a cause f actin, which is the greyest element? priritizatin Hw many issues, which are the biggest? priritizatin Within an issue, which sub-issues seem mst imprtant? B. What shuld the answer lk like? 1) Issue: Either a heading r tpic statement 2) Rule, Applicatin, Cnclusin: Issue Tpic sentence: highlight what is at stake. Critical issue Critical element 2. Rule a. Generally Cmplete, accurate, and precise Each gets a rule. Yur rule structure sets up a reader expectatin Themis Bar Review, LLC Law Schl Essentials: Skills fr 1L Success

30 b. Cmpare these tw definitins fr cmparative negligence: 1) Plaintiff's negligence prprtinately diminishes, but des nt bar, recvery. - gd rule. 2) The plaintiff wh is negligent can still recver. - pr rule. c. Use mirrring language frm the rule. If yu say harmful r ffensive cntact in the rule, thse wrds shuld be in yur applicatin. 3. Applicatin a. Generally Applicatin shuld be the size f the rule; 3:1 rati. Fcus n applying the rule. b. Sentences shuld cmbine law and fact. "Element because f fact" r "fact prves element" Frces yu t avid being Use because t link law and fact. c. In analysis priritize If sme elements are clearly met, dn t belabr them. Easy elements analysis shuld be declarative and shrt. d. Shw applicatin f the grey element and explre frm bth sides. e. Cunterarguments What degree f cunterargument shuld yu craft? One sentence? Or mre invlved? Depends n: Hw many are at yur dispsal Availability f legal theries Grey elements shuld have at least sme cunterargument Themis Bar Review, LLC Law Schl Essentials: Skills fr 1L Success

31 CHAPTER 11: EXAMS: PART 3 A. Applicatin/Analysis (cnt'd) 1. Types f Interweaving Factual relevance: Hw d the relevant facts relate t the? Factual ambiguity: May bth sides rely n this fact? : Is the reasn behind the rule satisfied by yur cnclusin? Legal appraches: Cmmn law v. statute; majrity v. minrity rule Analgy: Des a hlding frm ne f yur cases prvide guidance t this questin? 2. G where the facts take yu. B. Cnclusin The cnclusin shuld ffer a tiebreaker WHY did yu reach the cnclusin yu did? C. Remember This structure shuld be applied t each cause f actin, element, factr, etc. Yur paragraph structure shuld set up reader expectatins and meet them. D. Please d NOT Devte s much time t the rule that there is n time fr analysis. is mre rewarded than rte recitatin f the rule. Cntinue writing past the alltted time. Put nn-legal labels n cncepts. Prfessrs are testing yur ability t. Nt guy wh wns the apartment, but landlrd Be cnclusry. is mre imprtant than the result. Put the puzzle tgether. Make explicit every inference. Make assumptins. If yu d, please explain them. E.g., "Assuming that he is a minr because he is a high schl student Err n the side f wrdiness Themis Bar Review, LLC Law Schl Essentials: Skills fr 1L Success

32 Dn t repeat yurself. Wander away frm the tpic. Crss reference frm ne answer t anther. This is k within a questin, but nt t anther questin. Attack issues in an illgical rder. If there is a preliminary questin, discuss it first. Walk away frm a single pint f credit. Interweave all f the facts. Find a hme fr every fact. Dn t turn yur exam in early. E. Cmmn Types f Test Takers 1. Dead Cw Beater Finds ne issue and discusses it ver and ver Mst students verwrite n issue ne, but yu have t. 2. Teaser Includes nly the issue and cnclusin Dn t fast frward thrugh the applicatin. 3. Scrambler N lgical rder Cntrl yur apprach via yur utline. 4. Glrified Outliner Cpies utline int the exam If an issue isn t implicated, dn t discuss it. F. Parachutes 1. "I read the exam, and I have n idea what was ging n." Attack utline r "brain dump" List the majr tpics frm the semester. Reread the questin. 2. "There are three issues left, but nly ne minute. Hw d I maximize my pints?" List all issues List all rules Themis Bar Review, LLC Law Schl Essentials: Skills fr 1L Success

33 Start applying as many facts as yu can This at least shws the prfessr that yu knew the issues and rules Themis Bar Review, LLC Law Schl Essentials: Skills fr 1L Success

34 CHAPTER 12: CASE BRIEFS FOR FULLER AND KING AND CLASS NOTES A. Brief f Fuller Identificatin: Peple v. Fuller, CA Curt f Appeal, 1978 Facts: While fleeing a nnvilent, daylight burglary f an unattended vehicle (7 miles in minutes), the defendant hit anther car, killing the driver f that vehicle. Issue: Des FM apply t a fleeing feln wh causes a death? Hlding: fr deaths applies fr all murders cmmitted in the perpetratin f enumerated felnies, including burglary. Ratinale: mandated the result. But, curt is still trubled applicatin f facts may nt further reasn behind the rule this felny is nt dangerus t human life. It s ptentially unfair t equate accident result in petty theft t premeditated murder. Evaluatin: I think this result is t harsh based n the facts the defendant s crime was nt dangerus t human life, and this result wn t deter felns frm killing smene accidentally. B. Brief f King Identificatin: King v. Cmmnwealth, Curt f Appeals, VA, 1988 Facts: Plane with 500 lbs. f marijuana crashes due t cnditins; c-pilt dies, s ther c-pilt charged with FM. Issue: Was the death caused by the act f a feln f a felny? Hlding: In rder t impute malice t the defendant, the killing must be clsely related t the felny in time, place, and causal cnnectin here, the was missing, s n FM. Ratinale: Time and place were clsely cnnected t felny. But, n causal cnnectin between distributin f drugs and a plane crash caused by weather cnditins it was nt an integral part f the felny r an act in direct furtherance f the felny the accident stemmed frm weather and pilting, nt distributin f drugs. If he had been trying t avid detectin, then it wuld be integral part f felny. Evaluatin: I disagree with the curt hw is flying drugs in rder t distribute them nt part f felny distributin f drugs? If the flight was necessary fr distributin, it shuld be an integral part f the felny Themis Bar Review, LLC Law Schl Essentials: Skills fr 1L Success

35 C. Class Ntes 1. Fuller Issue statement in first sentence fcuses n unintentinal death fleeing nnvilent felny. Therefre, utcme determinative facts: fleeing frm ptential felny (burglary); nte time and distance (7 miles/ minutes) Sectin 189 gives rule and prvides strict liability curts hands are tied Observatins n irratinality dictum (nt necessary t the utcme, but making an argument fr future curts) Aut burglary nt dangerus t human life S, dangerusness t human life is key ratinale t FM Shplifter example shws absurdity f the situatin equates accidental death in a petty theft with premeditated murder: utcme is nt symmetrical in that a nnfreseeable death with limited culpability n part f defendant will lead t highest pssible charge f first degree murder als, hw will this deter felns frm killing negligently r accidentally? D ratinales fr FM justify it shuld we d case-by-case balancing (shuld nly apply t burglaries dne dangerusly) versus apply FM t all burglaries n matter hw undertaken (leads t harsh results, as in this case). 2. King Why is this case in the casebk? T explain the in furtherance requirement Outcme determinative facts: accident caused by heavy cluds, nt distributing at time f accident, death f c-defendant Why charge with death f c-defendant? Because freseeable that smene can be killed in dangerus felny, s kay t charge fr murder, even if c-defendant T harsh t apply FM if nt causally related t cmmissin f felny wuld create abslute liability fr frtuitus death; example: bank rbbers accidently run ver smene while driving t rb a bank it s unrelated t the felny, s shuld be a negligence case, nt a murder case Thus, curt must define the causatin required fr FM Ct ntes must be within the res gestae things that are s clsely cnnected t the ccurrence that they are part f the ccurrence Curt gives a mre precise definitin than res gestae -- Must be time, place, causal cnnectin t make it a part f the same criminal enterprise See Haskell 5 feet, mments later, facilitated escape Is this similar t Fuller? Yes, but a lnger leash in terms f time and distance is that fair? Themis Bar Review, LLC Law Schl Essentials: Skills fr 1L Success

36 VA lks t PA fr standard death must be cnsequence f felny, nt cincidence, fr thing imputed is malice, nt act f killing We take as given that a death ccurred, but must impute malice in rder fr it t rise t first degree murder FM supplies this element f malice t justify the charge Here, time and place elements are met But, causal cnnectin desn t exist nt cnnected t felny drug distributin Nt part r result f criminal enterprise Nt integral, such as distributin Accident stemmed nt frm pssessin r distributin f drugs, but frm fg nthing directly related t cmmissin f felny caused the accident But desn t transprting drugs lead t distributin? If accident happened t avid detectin, then FM why? Because then accident stemmed frm smething necessary fr the felny aviding capture, nt fg r bad weather Themis Bar Review, LLC Law Schl Essentials: Skills fr 1L Success

37 CHAPTER 13: SWEAT PAGE, OUTLINE, EXAM, AND MODEL ANSWER A. "Sweat Page" If it is a type f felny under the rule, FM applies even if unintentinal r nnvilent lk fr this n exam. If nn-freseeable death with limited culpability, curt may nt apply FM? balancing seems like a fairer way than just using felny withut the facts f hw they were cmmitted. Time, place, and causal cnnectin fr in furtherance requirement must be r r be necessary fr felny; the mre frtuitus r cincidental, the less likely t be in furtherance? Will smene fleeing always have a lnger leash? B. Felny-Murder Outline I. Felny-murder: All murder which is cmmitted in the perpetratin f, r attempt t perpetrate, arsn, rape, rbbery, burglary, mayhem r lewd acts with a minr is murder in the first degree (rule). In ther wrds, malice is imputed t the feln fr a killing incident t his/her felny, in rder t be able t cnvict under first degree murder. Ratinale: these felnies are dangerus t human life it is fair t equate t premeditated murder if a death results while undertaking these felnies furthermre, it will encurage felns nt t act negligently. A. All Murder : this is strict liability desn t matter if intentinal, negligent, r accidental Harsh results may ccur accidental death by fleeing nnvilent burglar is FM (Fuller) But, be aware when ratinale f the rule is nt advanced merchant pursuing fleeing shplifter dies accidentally is nt an apprpriate case fr FM (Fuller dicta) B. In perpetratin : death must be caused by an act f felns in furtherance f a felny need time, place, and causal cnnectin in rder t be an integral part f the felny r an act in direct furtherance f the felny A murder f a rbbery victim within 5 feet f incident, within mments f incident, in rder t facilitate escape is FM (Haskell, cited in King). Fleeing burglar, 7 miles away and minutes later, is FM (Fuller). Plane crash due t weather/pilt errr, nt evasin frm authrities, des nt directly relate t the cmmissin f the felny, s n FM (King). C. Attempt t Perpetrate D. Dangerus Felnies Themis Bar Review, LLC Law Schl Essentials: Skills fr 1L Success

38 C. Felny-Murder Exam Jack and Diane agreed t rb a liqur stre lcated n a busy street crner. They agreed that Jack wuld pssess a handgun, pint it at the liqur stre s clerk, and demand mney. Diane, wh als pssessed a gun, wuld mnitr the custmers f the liqur stre t make sure that they did nt impede the rbbery. Then, they wuld flee tgether. On the day f the rbbery, everything prceeded accrding t plan. As the clerk was abut t hand ver the mney t Jack, a custmer walked int the stre. Cincidentally, the custmer, Victr, had been sleeping with Jack s wife. Jack, wh knew f the affair, pinted a gun at Victr and stated, I ve been waiting fr this mment fr a lng time. Victr raised his arms in the air and stated, I wn t stp yu frm rbbing this place, Jack. Just please dn t hurt me. Jack nnetheless sht Victr, killing him instantly. Jack then grabbed the mney frm the clerk and fled with Diane. Diane is arrested and charged with first degree murder under the felny-murder dctrine. Will Diane be fund guilty f first degree murder? What are the cunterarguments? Hw will the curt rule? D. Mdel Answer Diane is unlikely t be fund guilty f felny-murder ( FM ) because, even thugh she cmmitted a felny which is dangerus t human life (rbbery), the death was nt caused in furtherance f a felny. Pursuant t the felny-murder dctrine, all murder which is cmmitted in the perpetratin f, r attempt t perpetrate, arsn, rape, rbbery, burglary, mayhem r lewd acts with a minr is murder in the first degree. While Diane had n malice tward Victr, the FM dctrine imputes malice t ne undertaking a dangerus felny. An armed rbbery where bth perpetratrs brandished guns certainly qualifies. While Diane may claim she in n way intended the death, strict liability applies in the FM dctrine. All deaths, whether intentinal, negligent, r accidental, are cvered. The death f Victr was certainly intended by her c-defendant, Jack. While this may be a harsh result, as Diane certainly did nt wish t harm Victr s life, part f the ratinale fr the FM dctrine is t create a disincentive fr felns t behave recklessly and thereby endanger human life. Diane was brandishing a weapn and knew that Jack wuld be brandishing a weapn as well, s applying the FM dctrine t Diane furthers the ratinale fr the dctrine. Nnetheless, fr the FM dctrine t apply, the death must be in perpetratin f a felny. In ther wrds, the death must be caused by an act f felns in furtherance f a felny. There must be a cnvergence f time, place, and causal cnnectin in rder t be an integral part f the felny r an act in direct furtherance f the felny. Here, a cnnectin f time and place existed. The murder ccurred in the midst f the rbbery (they had nt received the mney yet) and in the lcatin f the rbbery (the liqur stre). But, there was n causal cnnectin, as the act f shting Victr was nt integral t the felny. The felny was clse t cmpleted, and Victr specifically stated that he wuld pse n bstacle t Jack and Diane s rbbery attempt. Based n Jack s cmment, the nly reasn Victr was Themis Bar Review, LLC Law Schl Essentials: Skills fr 1L Success

39 killed was because f a prir grudge between Jack and Victr. Thus, Jack s mtive t kill was revenge fr an affair with his wife, nt t facilitate escape r cntribute t the success f the rbbery. Indeed, it prbably hurt their chances f success by the sund f the gunsht drawing attentin frm utsiders n the busy street crner. The prsecutin will argue that the nly reasn fr shting Victr was t aid in accmplishing the felny, perhaps by getting rid f an eyewitness wh culd identify Jack. Indeed, Victr uttered Jack s name while speaking t him. Hwever, it seems mre likely that the murder stemmed frm persnal animsity. Based n the facts, it seems Jack wuld have killed Victr whenever he saw him, as he tld Victr he had waited fr this mment fr a lng time. Victr psed n persnal threat (arms in the air) and was nt in any way prhibiting the cmmissin f the felny ( I wn t stand in yur way ). Accrdingly, the prsecutin s argument fails. Therefre, as the murder was nt in furtherance f the felny, the FM dctrine shuld nt apply t Diane. [END OF HANDOUT] Themis Bar Review, LLC Law Schl Essentials: Skills fr 1L Success