WHERE ARE WE Case briefing

WHERE ARE WE?

• Case briefing • Tool to help you understand individual cases, analyze cases, participate thoughtfully in class • Case synthesis • The process of distilling a series of decisions into meaningful standards (rules) that you can apply to comparable factual and legal contexts. • Outlining • The process of organizing the information you’ve learned into a useful tool to perform well on exams. • Exam writing

Law School Exams Are Different

• Not “regurgitation” of class discussion topics: “Discuss the court’s decision in Hamer v. Sidway and its impact on the doctrine of consideration. ” • Generally not pure “policy” questions related to policy discussions held in class: “Discuss the doctrine of consideration and the advantages and disadvantages of using consideration to determine which promises to enforce. ”

• Not pure “knowledge” questions: “What is consideration? ” • Not even direct questions: “Does consideration exist in the following situation. ”

What are Law School Exams? • Stories – like a client would tell an attorney when seeking advice [fact patterns]

QUESTION I (60 minutes; 60 points) Unlike many of his contemporaries, Bob was content to “stay on the farm” rather than seek fame and fortune in the big city. Of course, he didn’t actually live on a farm. He lived and worked in town, but spent most of his free time before and after work and on weekends helping out on his uncle’s farm just outside of town. His uncle paid him small amounts of money for his work, and occasionally some larger amounts when the harvest was good, but Bob did the work not for the money, but to help out his uncle and because he loved farming. His dream was to save enough to buy his own farm, or maybe buy his uncle’s farm when his uncle was ready to retire. One day over coffee at the Chatterbox Cafe, Bob and his uncle had a heart to heart conversation. Bob’s uncle urged Bob to pursue his education; he feared there was no future in farming. “I appreciate all you’ve done for me Bob. I know I haven’t paid you near what the work you’ve done is worth, but I only want what’s best for you. Go get a law degree. Once I know you’ve got choices I’ll feel much better. The farm will always be here for you. I’m sick of farming; when you’re done with law school if you still want the farm I’ll rent the place to you. I’ve always planned to leave it to you in my will. I don’t have any family and I know how much you love the farm. If it hadn’t been for your help all these years, I probably wouldn’t have been able to keep it. ”

Bob took his uncle’s advice and went to law school. When he finished, he appreciated the knowledge he’d gained in law school, but it hadn’t dampened his enthusiasm for farming. He was shocked to find, however, that the farm was not “there for him” when he returned. His uncle had made tentative plans to sell the farm to developers. “I planned to keep the farm, ” he told Bob, “but you can’t believe what these developers are willing to pay. I’ve got to look out for myself. I can retire to Florida and live quite comfortably on what these guys are paying me. You’ll be better off using that law degree you earned, Bob, there is no future in farming. ” Needless to say, Bob was extremely disappointed. He wanted to farm, but the dream looked impossible now. To buy a farm comparable to his uncle’s, Bob would have to pay more than $300, 000, money he didn’t have and probably couldn’t borrow. He had financed his entire law school education and now owed student loans of more that $75, 000. It wasn’t as if he had given up a good job when he went to law school (he was making about $18, 000 at the local Wal-Mart), and he likely could find a legal job that would pay at least $30, 000, but he wanted to farm. Bob’s disappointment turned to anger as he began to believe he was misled by his uncle. Bob felt he did what he asked and was entitled to the farm.

When Bob expressed his feelings to his uncle, explaining that he felt he had done what his uncle asked and that he was entitled to the farm, his uncle replied, “ I understand your feelings Bob and I’m sorry my plans changed. The offer from the developers was too good to pass up, but I hate to have bad blood between us. I did pretty good selling the farm, why don’t I make it up to you by paying those law school loans. That way you can start fresh and maybe buy your own farm. ” Bob felt much better after his conversation with his uncle. It wasn’t everything he wanted, but it lifted him out from under the law school debt he had incurred at his uncle’s urging and gave him hope that he could pursue his dream of owning a farm. Unfortunately for Bob, his uncle died a few months later, before Bob even became obligated to begin repaying his loans. The executor of his uncle’s estate refuses to pay Bob anything; his uncle’s will left everything to the United States Government to be used to reduce the federal debt. He calls you, his law school classmate, for your opinion on his options. (By the way, Bob’s uncle received $500, 000 from the developers for his farm. ) Discuss Bob’s options. Does he have any claim against his uncle’s estate? Be sure to explore and discuss any claims Bob may have and any defenses his uncle’s estate may raise.

QUESTION 1: 60 minutes, 76 points Alfie and Bai, both age 10, were playing outside at Alfie’s house. Everything was going well until Alfie and Bai got into a fight over the ball they were playing with. Alfie yelled at Bai that the ball was out, and that it was his now. Bai shouted back that it was not out, and that it was still hers. Alfie grabbed the ball from Bai in response and ran off. Bai took off after him. Alfie ran through two neighbors’ yards before trying to hide behind a bush at the Jackson’s house. Bai, reaching the house, grabbed Alfie and tried to get the ball from him, bruising him in the process. Alfie shook himself from her grasp and ran off again. Bai grabbed a rock and threw it after him. The throw went wild, and the rock went through the Jackson’s kitchen window, shattering the glass. She then took off after Alfie, meanwhile, had tripped over the Jackson’s dog while making his escape. The dog yelped loudly and then howled in pain. Alfie was distracted by the dog and was just trying to get up, when Bai caught him again. She yelled give me the ball!” while fiercely trying to shake it loose from Alfie’s grip. Alfie clutched the ball against him and, with his other hand, scratched Bai’s face, hard. Bai shrieked and fell back. Two of the cuts in her cheek were deep, and blood had already started welling up and pouring from the wounds. Meanwhile, Mr. Jackson ran out of his house toward the children. Using profanities, he yelled at the kids to get off his property. He had a baseball bat, which he swung over his head as he approached. Bai and Alfie, terrified, ran away as fast as they could. All events took place in the State of East Oregon is a dual-intent jurisdiction, but otherwise considers the law of most other states persuasive. Identify the potential claims and defenses that each party has and the likelihood of success of each, based on the facts as given here. If you need more information to analyze a claim, state what that information might be and how it might help you.

What is your role? • Read the fact pattern (the “story”); identify issues (categories) raised by the story • Explain to the reader—issue by issue (category by category)—what the law (rule) is and how it applies to the set of facts provided

Elements for succeeding on law school exams • Ability to Spot the Category • Knowledge of the Law (Rules) • Ability to Analyze (Apply law/rule to facts) • Demonstrating Ability to Analyze – Writing an effective exam answer

Prepare for exams by preparing outlines By Category, Not by Cases • Short Outline • These are your categories (issues) for your exam Long Outline Each category—Rule (1 -3 sentences)

The Big Categories • Contracts • Torts • Property • Criminal Law • Civil Procedure

THE CATEGORIES FOR YOUR CLASS/EXAM (So Far…) • Intro to Torts and the Common Law • Case Briefing; a Note on Damages • Intentional Torts: Defenses • Negligence PFC • Duty of Care • Special Duties

• Breach of Duty: Assessing Foreseeable Risks and Costs • Assessing Responsibility • Breach: Proving and Evaluating Conduct • Violation of Private Standard or Common Custom • Compliance with Statute • Res Ipsa Loquitur • Harm • Factual Cause • Proximate Cause: Scope of Risk • Proximate Cause: Assessing the Scope of Risk • Defenses: Contributory Negligence/Comparative Fault

Mutual Assent A contract requires bargain in which there is manifestation of mutual assent to the exchange and consideration. The manifestation of mutual assent ordinarily takes the form of an offer by one party followed by an acceptance by the other party. Offer An offer is the manifestation of willingness to enter into a bargain, so made as to justify another in understanding his assent is invited and will conclude the bargain.

Preliminary Negotiations A manifestation of willingness to enter a bargain is not an offer if the person. . . Certainty Even though. . . cannot be accepted unless the terms are reasonably certain. Acceptance is a manifestation of assent to the terms of an offer made in a manner invited or required by the offeror. • A reply to an offer which purports to accept it but is conditional on. . . is not an acceptance but is a counteroffer.

Consideration is a bargained for exchange of performances or promises. Each performance or promise must, at least in part, induce the giving of the return performance or promise. A performance may be an act, a forebearance from acting, or the creation, modification, or destruction of a legal relation. Past Consideration Illusory Promise Mutuality of Obligation Promissory Estoppel A promise which the promisor should reasonably expect to induce reliance, and which does induce reliance, is binding if injustice can only be avoided by enforcement of the promise. The remedy may be limited as justice requires. • The promisee must show that she relied on the promise reasonably and to her detriment, that is, she is. .

What is your role? • Read the fact pattern (the “story”); identify issues (categories) raised by the story • Explain to the reader—issue by issue (category by category)—what the law (rule) is and how it applies to the set of facts provided

I R A C S S U E U L E N A L Y S I S P P L I C A T I O N C L U S I O N

You are house-sitting for your friends, including taking care of their young children. On a hot, muggy Friday at 3: 30, the children ask for ice cream. Earlier in the day, they washed the car and mowed the lawn, but then they went to Super America without asking permission and bought candy. Dinner is planned earlier than usual (4: 30). The children did not get ice cream yesterday, but did the two days prior to that. SHOULD THE CHILDREN BE PERMITTED TO BUY ICE CREAM?

So What Did You Decide? • How many said, “Let them eat ice cream”? • Why? • How many said, “No ice cream today”. • Why not? • What does this have to do with law school exams?

Because it was a hot, muggy Friday, the end of the week, it is only fair that the children should be permitted to purchase ice cream. Because it was a hot, muggy Friday, the end of the week, justice demands that the children should be permitted to purchase ice cream. Rules of Golf

Monday “NO, you haven’t earned it. ” Tuesday “Sure, it’s only 3: 30” Wednesday “O. K. Dinner isn’t for another hour and a half. ” Thursday “No, you got ice cream yesterday and the day before. ”

Rule • Generally, the children may purchase ice cream if they have been well behaved and it is sufficiently early in the day such that it will not ruin their dinner. However, purchasing ice cream must remain a special treat, not an everyday expectation.

Treats-Entitlement to Ice Cream Privileges – Sleepovers Privileges – Watching PG-13 Movies

Consideration is a bargained for exchange of performances or promises. Each performance or promise must, at least in part, induce the giving of the return performance or promise. A performance may be an act, a forebearance from acting, or the creation, modification, or destruction of a legal relation. Past Consideration Illusory Promise Mutuality of Obligation Promissory Estoppel A promise which the promisor should reasonably expect to induce reliance, and which does induce reliance, is binding if injustice can only be avoided by enforcement of the promise. The remedy may be limited as justice requires. • The promisee must show that she relied on the promise reasonably and to her detriment, that is, she is. .

Treats-Entitlement to Ice Cream Generally, the children may purchase ice cream if they have been well behaved and it is sufficiently early in the day such that it will not ruin their dinner. However, purchasing ice cream must remain a special treat, not an everyday expectation.

What is your role? • Read the fact pattern (the “story”); identify issues (categories) raised by the story • Explain to the reader—issue by issue (category by category)—what the law (rule) is and how it applies to the set of facts provided

On a hot, muggy Friday at 3: 30, the children ask for ice cream. Earlier in the day, they washed the car and mowed the lawn, but then they went to Super America without asking permission and bought candy. Dinner is planned earlier than usual (4: 30). The children did not get ice cream yesterday, but did the two days prior to that. What should happen?

IRAC Treats-Entitlement to Ice Cream Generally, the children may purchase ice cream if they have been well behaved and it is sufficiently early in the day such that it will not ruin their dinner. However, purchasing ice cream must remain a special treat, not an everyday expectation.

IRAC Application (Analysis) is identifying facts that demonstrate (arguably) that each element of the rule is met/not met

Elements of the Rule Generally, the children may purchase ice cream if they have been well behaved and it is sufficiently early in the day such that it will not ruin their dinner. However, purchasing ice cream must remain a special treat, not an everyday expectation.

Elements of the Rule • Children must have been well behaved • It must be sufficiently early so as not to ruin dinner • Ice cream must remain a special treat; not an everyday occurrence

IRAC Application (Analysis) is identifying facts that demonstrate (arguably) that each element of the rule is met/not met

• Think LAW; Write LAW; Integrate Facts into the LAW • ZERO LAW = 0 POINTS

• Children must have been well behaved • Because the children completed chores early in the day (washing the car and mowing the lawn) they have been sufficiently well behaved to be entitled to ice cream despite going to the Super America store without permission.

The children completed chores early in the day (washing the car and mowing the lawn). Because the children completed chores early in the day (washing the car and mowing the lawn).

Color code for upcoming slides: • Purple: facts • Red, Green, Blue, and Orange: different elements of the rule.

Treats-Entitlement to Ice Cream Generally, the children may purchase ice cream. . Because the children completed chores early in the day (washing the car and mowing the lawn) they have been sufficiently well behaved to be entitled to ice cream despite going to the Super America store without permission. In addition, because they asked to buy ice cream at 3: 30, relatively early in the afternoon and a full hour before dinner was planned, it is unlikely that the ice cream will ruin their dinner. Finally, because the children did not get ice cream the previous day, buying ice cream today will not make it an every day occurrence; it will remain a special treat. Therefore, . . . First clip

Do not state legal conclusions without reasons The right conclusion is NOT the right answer Signals that you are doing legal analysis Because However Alternatively Likewise Even if Similarly In contrast

Treats-Entitlement to Ice Cream Generally, the children may purchase ice cream. . Because the children went to Super America without permission, they have not been sufficiently well behaved to entitle them to purchase ice cream. Moreover, although they asked to purchase ice cream relatively early in the afternoon, because dinner was planned earlier than usual (only an hour after the ice cream request) the ice cream likely would ruin the children’s appetite. Finally, although the children did not purchase ice cream the previous day, this would make third time they purchased it in a week, making it an everyday occurrence rather than a special treat. Therefore, . . .

Promissory Estoppel Rule? In this case, because Bob’s uncle unequivocally said, “I will pay for your law school education, ” he made a promise. Because he and Bob had a close relationship, and Bob frequently helped on his uncle’s farm for no pay, Bob’s uncle could reasonably have expected that Bob would rely on the promise. Because Bob did enroll at the more expensive private school, he relied on the promise to his detriment. Because Bob’s uncle has the benefit of Bob’s work, and because Bob incurred substantial debt that he otherwise would not have, injustice can only be avoided by enforcing Bob’s uncle’s promise.

• “Because appellant's expensive home and car and position as a successful business owner made it appear as if he was fully capable of keeping his promise to pay respondent's lawschool expenses and because appellant had bestowed his generosity on respondent several times before he promised to pay her law-school expenses, appellant reasonably should have expected his promise to induce action by respondent. The promise did induce action by respondent and left her with a substantial debt when appellant failed to keep his promise. Respondent quit her job and attended law school with the expectation that appellant would pay her law-school expenses and she would not be in debt for these expenses when she graduated. Because it would be unjust to require respondent to pay a debt that she incurred in reliance on appellant's promise to pay the debt, appellant's promise is enforceable notwithstanding the statute of frauds. ” • Conrad v. Fields, 2007 WL 2106302 (Minn. Ct. App. 2007)

Treats-Entitlement to Ice Cream Because the children completed chores early in the day (washing the car and mowing the lawn) they can argue that they have been sufficiently well behaved to be entitled to ice cream despite going to the Super America store without permission. In addition, because they asked to buy ice cream at 3: 30, relatively early in the afternoon, it is unlikely that the ice cream will ruin their dinner. The fact that dinner is planned earlier than usual is a problem, but the purchase will still be a full hour before dinner. Finally, the children can argue that because they did not get ice cream the previous day, buying ice cream today will not make it an every day occurrence; it will remain a special treat. They will have to overcome the counter argument that buying ice cream three times in one week, and three out of four days, makes it virtually an everyday occurrence, not a special treat.

Because the children completed chores early in the day (washing the car and mowing the lawn) they can argue that they have been sufficiently well behaved to be entitled to ice cream. The parents will point to the fact that the children went to the Super America store without permission to suggest they have not been sufficiently well behaved. In addition, because they asked to buy ice cream at 3: 30, relatively early in the afternoon, the children will assert that it is unlikely that the ice cream will ruin their dinner. The parents will point out that dinner is planned earlier than usual, but the children can counter that the purchase will still be a full hour before dinner. Finally, the children can argue that because they did not get ice cream the previous day, buying ice cream today will not make it an every day occurrence; it will remain a special treat. They will have to overcome the parents’ counter argument that buying ice cream three times in one week, and three out of four days, makes it virtually an everyday occurrence, not a special treat.

Like the case where the children got ice cream when they cleaned their room but later went to the park without asking, by washing the car and mowing the lawn they have been sufficiently well behaved to be entitled to purchase ice cream despite having gone to the Super America store without asking permission. And like the case where the ice cream truck came by at 4: 00 and dinner was planned for 5: 15, here purchasing ice cream at 3: 30 is sufficiently early when dinner is planned for 4: 30 that the children’s appetite will not be ruined. Finally, in the Smith case, a limit of three consecutive days was set, which will not be violated in this case because the children did not buy ice cream the pervious day.

Common Missteps IRFC Treats-Entitlement to Ice Cream Generally, the children may purchase ice cream. . In this case, on a hot, muggy Friday at 3: 30, the children asked for ice cream. Earlier in the day, they washed the car and mowed the lawn, but then they went to Super America without asking permission and bought candy. Dinner was planned earlier than usual (4: 30). The children did not get ice cream the previous day, but did the two days prior to that. Therefore, the children were good enough to be entitled to ice cream. ZERO LAW = 0 POINTS!

IRC • 1. Make the argument (point to facts that demonstrate rule/element of the rule is either met or not met). • 1. Arguments are too conclusory. They do not fully utilize facts in developing reasons for reaching a particular conclusion. Too often the students settle for issue spotting and stating a summary of the legal doctrine applicable. • Lack of factual analysis/discussion (application of law to fact pattern presented)

• 2) not enough factual analysis—some students had a tendency to give me I, R, and C, instead of using the facts in the question. For example, the discovery question had a request for physical and mental exams. The question said the plaintiff had been in a mental institution and had been dragged away from a door frothing at the mouth. Those facts should have appeared in the answer, but maybe only about half mentioned them.

The children can argue that they have been sufficiently well behaved to deserve ice cream and that it is early enough that it won’t ruin their dinner. They can also argue that ice cream will remain a special treat not an everyday occurrence. Make the Argument

The children can argue that they have been sufficiently well behaved to deserve ice cream and that it is early enough that it won’t ruin their dinner. They can also argue that ice cream will remain a special treat not an everyday occurrence. Defense will argue the children have not been sufficiently well behaved and that it is too close to dinner. They will also argue getting ice cream today will make it an everyday occurrence. Because, because, because

Because the children completed chores early in the day (washing the car and mowing the lawn) they have been sufficiently well behaved to be car and mowing the lawn) they have been sufficiently well behaved entitled to ice cream despite going to the Super America store without to be entitled to ice cream despite going to the Super America store lawn) they have been sufficiently well permission. In addition, because they asked to buy ice cream at 3: 30, without permission. In addition, because they asked to buy ice behaved to be entitled to ice cream despite relatively early in the afternoon and a full hour before dinner was planned, cream at 3: 30, relatively early in the afternoon and a full hour before it is unlikely that the ice cream will ruin their dinner. Finally, because the dinner was planned, it is unlikely that the ice cream will ruin their going to the Super America store without children did not get ice cream the previous day, buying ice cream today dinner. Finally, because the children did not get ice cream the permission. In addition, because they asked will not make it an every day occurrence; it will remain a special treat. previous day, buying ice cream today will not make it an every day Therefore, . . . occurrence; it will remain a special treat. Therefore, . . . to buy ice cream at 3: 30, relatively early in the afternoon and a full hour before dinner was planned, it is unlikely that the ice cream will ruin their dinner. Finally, because the children did not get ice cream the previous day, buying ice cream today will not make it an every day occurrence; it will remain a special treat. Therefore, . . .

IRAC Whether the children are entitled to ice cream in this case is a close question— there are reasonable arguments on each side. However, based on the overriding policy in favor of children enjoying the summer months, the children should be entitled to ice cream.

Elements for succeeding on law school exams • Ability to Spot the Category • Knowledge of the Law (Rules) • Ability to Analyze (Apply law/rule to facts) • Demonstrating Ability to Analyze – Writing an effective exam answer

Exam Day • Take time to read and think • Big picture • Categories/issues • “One word” outline of issues • Write

Special/Extra Rules • Begin with arguments for the party with the burden of proof • Consider organizing by party • Criminal Law • Torts • Don’t cut and paste • Okay to cross-reference/incorporate rule w/in question • Do not cross-reference/incorporate rule across questions

• See posted documents (“Bagel Barn Question” and “one word outline example”) for a sample contracts question and an example of the “one word” outline technique I discussed in the workshop. • http: //theskillmanmethod. com

Question I Nancy, who resides in Green Bay, Wisconsin, is the owner of a chain of three very successful bagel stores known as "The Bagel Barn. " Based on her success, ten years ago she began selling franchises. Franchisees purchase the right to use the name "The Bagel Barn" and access to Nancy's recipe and suppliers in return for a lump sum payment of $20, 000 and 10% of annual gross revenues. Generally, the franchises do very well, with an average net profit of approximately $200, 000. Some franchises fail within six months, usually because the location was poor or the franchise was severely undercapitalized at the start. Nevertheless, as franchises go, "The Bagel Barn" was considered a good investment; Nancy had many applications and was able to be very selective in awarding franchises. Nancy had no children of her own, but had a favorite niece, Faye, whom she treated almost as a daughter. During the early, struggling years of "The Bagel Barn, " when Faye was in college in Green Bay, she worked long hours at "The Bagel Barn" after classes, on weekends, and during vacations. She worked these hours for little or no pay in order to help her aunt establish the business. Nancy often told Faye how much she appreciated her help and assured her that she "would not forget it. " In fact, on several occasions when she could afford it Nancy gave Faye significant sums ($1000 -$2000) to help pay her tuition at college. Nancy was almost heartbroken when Faye decided to study for her M. B. A. at the Wharton School of Business in Philadelphia. Nevertheless, the two stayed in touch and remained close. Often, Nancy would call Faye for advice concerning the business. Faye's area of specialty at Wharton was small business and she was able to offer very valuable advice. On three occasions Faye did extensive research and analysis of Nancy's business and prepared significant "planning documents" that greatly assisted Nancy and would have cost approximately $5000 apiece had Nancy contracted with a private consultant.

During Faye's final year of study Nancy wrote her a letter which stated, "Your companionship and advice has meant so much to me over the years, that I want to repay you in some way. I am so proud of you and would love it if you would move to Green Bay after you graduate to put your new skills into practice. If you move here I will give you a Bagel Barn franchise without any initial lump sum payment; all you will have to pay is 10% of gross revenues. It's a good deal. Please consider it. " Faye quickly accepted Nancy's proposal. Although she had several job offers for as much as $90, 000 per year, she was an entrepreneur at heart and much preferred the prospect of owning her own business to working for a large corporation. The idea of being reunited with her favorite aunt in Green Bay also was exciting. Shortly after graduation, Faye moved to Green Bay to begin her career as a small business owner. Unfortunately, after she arrived Nancy received an offer to purchase the entire "Bagel Barn" business that was too good to turn down. Nancy sold the business and as a result was unable to provide Faye a franchise in Green Bay or anywhere else. Faye comes to you for advice. Reluctantly, she has decided to sue her aunt. Faye wants to know what causes of action she may have against her aunt. What is the likelihood of success and the likely recovery under each cause of action? What defenses is her aunt likely raise and how successful will the defenses be? DO NOT DISCUSS ISSUES RELATING TO OFFER AND ACCEPTANCE.

“One word” outline for Practice Question [This was designed as a “Theories of Obligation” question for a class that had not covered offer and acceptance. Below is a sample of a possible “one word” outline identifying the categories and setting out some facts that could be used to demonstrate the elements of the rule for each category are met or not met. It is not meant to be an exhaustive list, but to serve as an illustration of the technique I discussed in the workshop. ] Consideration • Bargained for exchange • If you move, I will. . . • Franchise in exchange for 10% • “good deal” • Benefit to promisor • “wants her back” (intangible) • Nancy gets good franchise • Available for advice (but does she have to be there for that? ) • Counter argue re: bargain • Companionship (not a bargain) • “I want to repay you. . . ” (past consid) • I’m proud of you (graduation gift? ) • I will give you (conditional gift/conditioned on moving ? ) Promissory Estoppel • Promise: “I will give you. . . “ • Expect to induce – specifically requested the “reliance” • Did induce – gave up other opport. ; moved to GB • Justice? Promise for Benefit Received • Benefit: years of work for little/no pay • Free business advice • Counter argue • Benefit conferred as “gift”; no expect of comp • Already compensated; no injustice