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Compiled by: The Academic Resource Center
Thomas M. Cooley Law School
Introduction to Law Course Pack
Table of Contents
Student Information Sheet……………………………………………………………..5 Week One……………………………………………………………………………..7 Week 1 Pre-Reading Questions………………………………………………………..9 Listening and Note-Taking in Class………………………………………………… 11 Week Two…............................................................................................................... 17 Week 2 Pre-Reading Questions………………………………………………………19 Getting the Most Out of What You Read……………………………………………..21 Reading Cases Efficiently: Two Examples…………………………………………. .27 Reading and Analyzing Notecases, Problems, Etc. in the Casebook…………………43 Contracts Table of Contents…………………………………………………………..46 Intent to Contract, Lucy v. Zehmer………………………………..…………………..50 Trespass to Land, Dougherty v. Stepp………………………………………………...59 Sample Briefs, Dougherty v. Stepp……………………………………………………61 Sample In-Class Essay, “The Hills Have Eyes”………………………………………63 Sample Answer, “The Hills Have Eyes”……………………………………………...65 Week Three…………………………………………………………………………..67 Week 3 Pre-Reading Questions……………………………………………………….69 Divergent Versus Convergent Thinking………………………………………………71 Multiple-Choice Questions: Understanding Transition Words……………………….77 Multiple Choice: Focused Practice……………………………………………………83 Intro to Law Multiple-Choice Questions……………………………………………...85 Template for Practicing Multiple-Choice Questions………………………………....111 Maximizing Memory…………………………………………………………………119 Week Four…………………………………………………………………………...129 Week 4 Pre-Reading Questions………………………………………………………131 Concept Development and Data-Organization Devices……………………………...133 Creating an Outline…………………………………………………………………...149 Week Five……………………………………………………………………………157 Week 5 Pre-Reading Questions………………………………………………………159 Reading Code…………………………………………………………………………161 UCC § 2-205………………………………………………………………………….168 Sample Essay………………………………………………………………………….169 UCC § 2-207………………………………………………………………………….170 Problem 31…………………………………………………………………………….171 UCC§ 2-314…………………………………………………………………………...172 Week Seven…………………………………………………………………………...173 Week 7 Pre-Reading Questions………………………………………………………..175 Creating Good Reasoning Statements…………………………………………………177 Endnote Practice……………………………………………………………………….183 Week Eight……………………………………………………………………………191 Week 8 Pre-Reading Questions………………………………………………………..193 Reading the “Call of the Question”……………………………………………………195 Planning the Answer to a Long Essay Question……………………………………….197 3
Question One…………………………………………………………………………...199 “Oh Nuts”……………………………………………………………………………….201 Week Nine……………………………………………………………………………...203 Planning the Answer to a Long Essay Question: Contracts…………………………….205 Planning the Answer to a Long Essay Question: Intentional Torts……………………..207 Planning the Answer to a Long Essay Question: Contracts…………………………….209 Planning the Answer to a Long Essay Question: Intentional Torts……………………..210 Writing Practice………………………………………………………………………..211 “Jimmy and the Petunias”……………………………………………………………….213 “Little Red Corvette”……………………………………………………………………219 “Psychics on Drugs”…………………………………………………………………….223 “David Ate a Sandwich – So What?”…………………………………………………...229 “Should She Pay the Ticket?”…………………………………………………………...233 “The Case of the Smoking Car”…………………………………………………………235 “Pete Hates Football”……………………………………………………………………237 “Here’s a Little Ditty `Bout Paula and Diane”…………………………………………..241 “And the Food’s Bad, Too!”…………………………………………………………….245 “Good Sports Get Cheated”……………………………………………………………..247 “A Swing and a Miss”…………………………………………………………………...250 Answer Guides…………………………………………………………………………255 Planning the Answer to a Long Essay Question: Contracts………………………….….256 Issue Guide: Intentional Torts…………………………………………………………...257 Issue Guide: Contracts…………………………………………………………………..258 Issue Guide: Intentional Torts…………………………………………………………...259 Sample Answer: Problem 2……………………………………………………………...260 Answers to Multiple-Choice Questions………………………………………………….261
Welcome to Introduction to Law!
Student Information Sheet Please fill this out and give it to your adjunct professor in the second hour of class. Your name (Please print) ___________________________ Student Number ________________ Your telephone number(s) __________________________ _____________________________ Your e-mail address (please give the e-mail address that you check most frequently) _______________________________________________ Your class schedule Mon 8-9 9-10 10-11 11-12 12-1 1-2 2-3 3-4 4-5 5-6 6-7 7-8 8-9 Tues Wed Thurs Fri Sat Sun
Week One: Listening and Taking Notes in Class 7 .
and what is the nature of those patterns? What is the pattern that is unique to law school? Why is it important to recognize and take notes when the discussion is in this pattern? What is the Cornell System of note-taking? (7) 9 .Week 1 Pre-Reading Questions (1) (2) (3) (4) (5) (6) Why is effective listening in the classroom important? What does it mean to “be an active listener”? What are some specific techniques for active listening? Why is it important to take notes. even if you follow and understand the discussion? What are the five traditional patterns used by speakers.
Why you should have strategies for listening: Using strategies for listening will help you to organize and remember the information that you are listening to. • clarify points that were not clear before. If you haven’t taken notes. 3. Don’t forget to take notes! Even if you’re following and understanding the discussion. on their own. You must learn most of the material yourself. short-term memory lasts for only a short time. When the professor asks a question of another student. If your answer was wrong. some techniques of effective listening – but not others. And effective listening is a crucial skill in law school. DO try to figure out what kind of information the professor is talking about.) If the student’s answer is wrong. During class. about an issue. through your reading. professors • add important information that the book does not explain. or about one of the other parts of your brief? If the professor is asking about one of these. be aware that unlike in college classes. about the court’s reasoning. 1. DON’T let your attention wander. Listening Purpose of this section: Some students have been taught effective listening techniques at some point during their education. After class. . For each question the professor asks. However. (You can think faster than anybody can talk. write down the hypothetical and the professor’s analysis.) DO take notes. Is the professor asking about the law – an element or rule? Is the professor asking about the facts of the case. (Today’s hypotheticals are tomorrow’s exam questions. it should already be written in your brief. 11 . 2. This means that many students have learned. Some strategies for listening: For purely Socratic presentations . . outside of class. most law school professors DO NOT attempt to teach you everything you need to know. see if you can figure out why it’s wrong. Is the professor giving a hypothetical? If so. Find it and see whether what you wrote is complete and accurate. Why it’s important: The most important reason to develop effective listening skills is that reading the book is not enough by itself.Listening and Note-Taking in Class A. try to come up with the answer before the student does. listen for the right answer. Most have not. even vivid memories fade quickly. It’s easy to get caught up when the discussion is lively (and it’s easy to shut down if you let yourself get bored). and • teach students how to apply what they have read and to write essay answers. Be an active listener. you lose the opportunity to transfer the information into your long-term memory.
. (2) a problem/solution pattern. and (5) a comparison/contrast pattern.For both Socratic and non-Socratic presentations .. . they differ in that . . . However. Classification. . DO categorize the pattern of information the speaker is giving. Sequence or Chronological Order Comparison/Contrast 12 . The first part is . First . . speakers use five main patterns when giving information: (1) a description. perhaps also offering advantages and disadvantages for each solution. This led what led to (caused) the event. . . . . . . . . . The speaker explains how two things are alike and/or how they are different. There may be multiple causes and effects. . (4) a sequence or chronological order pattern. One solution is . Cause and Effect The speaker describes an event (effect) and explains The solution was . Name of the Pattern Description. Another solution is . The third part is . explains the parts of the topic. . Traditionally. . . you must first recognize the pattern. Nature of the Pattern The speaker names a topic. . Then. . or main idea/detail pattern. . and then gives details about the topic and the sub-parts. They may also give visual clues to their pattern by writing the information on the board. . . . . . . The speaker lists events or directions or dates. The speaker suggests a problem and then offers solutions. (3) a cause-and-effect pattern.The second part is . . . . . To use the pattern so that you can organize and retain the information. . There are three parts of _____. _____ and _____ are similar in that . . . . 1. . clarification. to . or Main Idea/Detail Cues for the Pattern Now let’s discuss ________. . Professors use verbal clues to tell you what organizational pattern they are using. Problem/Solution The problem is _________. Later .
so it isn’t definite. Essentially. what type. either from a case. and these tires might be for a car. A buyer might be concerned about the type: the buyer might have an SUV. the ad in the newspaper was for “major brand” radial snow tires. and the ad gave the price. This professor was using this problem as an example of how to write an exam answer. which means that there were no terms left open for negotiation. said in class when discussing Problem 6 from the Contracts book. or what size. When you do. A buyer might be concerned about the type: the buyer might have an SUV. explain the reasoning or counter-arguments. Your professor is teaching you how to write an exam. Issue: Was this ad an offer that you could accept by paying for the tires? Element: An offer must be definite in its terms. But the ad doesn’t specify what kind. Professor Mara Kent. Facts: In this problem. what do you get? Tires. write down as much of it as you can. In this problem. or what size. Was this ad an offer that you could accept by paying for the tires? An offer must be definite in its terms. It is an invitation to make an offer – an invitation to negotiate. the ad in the newspaper was for “major brand” radial snow tires. what do you get? Tires. and these tires might be for a car. Rule: which means that there were no terms left open for negotiation. Example: Here is what a Contracts professor. the pattern unique to law school: the legal-analysis pattern In law school. Listen for the legal-analysis pattern. describe facts. and conclude. Professors in all classes routinely introduce the name of a concept or part of the concept. and the ad gave the price. describe what it means. But the ad doesn’t specify what kind. the professor is writing an exam answer in the air. what type. Reasoning: When you pay. there is a sixth pattern that you must listen for and take notes over: the legalanalysis pattern. 13 . You will hear it frequently. When you pay. or a hypothetical. The professor is demonstrating how he or she would expect you to write an answer using that law and those facts. This ad doesn’t give any details. a problem. It is an invitation to make an offer – an invitation to negotiate.The sixth pattern. Conclusion: so it isn’t definite. This ad doesn’t give any details.
such as first. Asking yourself questions will help you to monitor your listening. another. you can go back and fill in the gaps in your notes. second. then. the answer is “yes. the topic of the assigned reading will help you answer this one. 4. in contrast. try recording the class (with permission from the professor).2. or increase your understanding of what is being said. DO look for clues from the speaker.) to take good notes. to clarify what I have read. ask the professor questions when you need to clarify meaning. After class. to describe. etc. etc. Speakers use both visual and verbal clues to convey their message. etc. Notetaking helps students become more active listeners because note-taking is a kind of individual “responding-with-pen-in-hand. What is the speaker’s point? Do I know what _______ means? Does the information make sense to me? How does this information relate to what was just said? 3. everyone develops an individual note-taking style. direct their listeners’ attention. If your professor speaks very quickly so that you cannot keep up. DO take notes.) • What is my purpose for listening? (To add to what I have read. next. Accomplished speakers use these clues intentionally so that they can help their listeners. to list.) • What am I going to do with what I’m listening to? • Do I need to take notes? (Usually. note-taking is crucial. third.”) 14 . Visual Clues Using hand gestures Writing information on the board Changing facial expressions Acting out events Moving closer to or further away from the audience Verbal Clues Pausing Raising or lowering the voice Slowing down to stress key points Repeating information Using organizing words. But it is important to understand the purpose of the speaker’s message (to compare. eliminate confusion. As you are listening. DO monitor your listening and see whether you have lost the speaker’s train of thought.” Because you can’t store all the information in your memory. Note-taking does not have to be in an outline format. 5. This was listed above. but it bears repeating. and emphasize certain ideas. In fact. DO ask questions to clarify meaning. but the clues only work if the listeners know to watch for them. Questions like these will help you to monitor your listening effectively: Before listening: • What is the speaker’s purpose? (In a law school class. under Socratic method.
B. Develop questions over the points in your outline. sub-points. the law. Write your notes right onto the place in your brief where the information appears. Note-taking: The Cornell System Leave enough room on your brief so that you can take class notes onto the brief. Language Arts. through pace or variation in tone. 6. (1999). 5. and the reasoning. If you have recorded the class. You can use a chart form for your outline. by numbering any lists. giving me clues? After listening: • Do I have questions? • Are my notes complete? • Did I make a good choice of strategies? Why or why not? Credit to: Tompkins.” “Cases. After class. If the professor is asking questions.” Or you can use a traditional outline format that incorporates the same information. Most of the lecture will be about the facts. reciting the information that answers the question. Make an outline of the information from the class. from memory. G. Recite the information out loud by stating the question out loud and then. NJ: Merrill. Keep your Big Picture outline current. listen to the recording and fill in what you missed. and by starring key points.” and “Reasoning and Examples. 7. Identify where each of the professor’s points are in your brief. listen to the questions. Englewood Cliffs. For example. go back through your notes and make the important information stand out by underlining it. . 1. 4.• • Which strategy should I use? Which strategy will I select? While listening: • Is my strategy working? • Am I grouping information into categories? • Is the speaker giving me visual clues about the organization of the message? • Is the speaker giving me verbal clues about the organization of the message? • Is the speaker’s voice. with headings like “Law. If the professor is lecturing in class. 3. and hypotheticals. Frequently recite and review the information in the outline until you are certain that you understand and know all of it. This means that you will want to separate the parts with as much white space as possible. listen for the main ideas. Write your notes in a different color than the color you used to write the brief. 15 2. “What are the elements of battery?” “What are the three ways to prove intent for battery?” “What is the rule for minors?” Put that information into your Big Picture outline.
Week Two Reading and Briefing Cases 17 .
Week 2 Pre-Reading Questions (1) Beyond decoding words. what should reading involve? (2) What are some active reading techniques? Why might you want to use them? (3) What is “purpose setting”? How can you use the table of contents as a purpose-setting tool? (4) What are some questions that you might want to ask yourself as you read a case? (5) What are “recitation techniques”? Why might you want to use them? What kind of recitation techniques could you use? (6) What is a T-Chart? What does a T-Chart do that a traditional brief does not do? (7) How can you use the notecases and problems in your book to further your understanding? (8) Why should you translate what you read into your own words? 19 .
The language is often difficult. It has its own vocabulary. It’s more difficult to learn about something completely new that it is to learn more about something you already know about. and older cases often use familiar words in unfamiliar ways (for example. old cases may use the word “occasioned” to mean “caused” – a meaning that many people have never encountered before. But if you don’t. Some law students have low reading comprehension and don’t know it.) Old cases also use words that you may never have heard before. heard. or touched. or they may use words from other languages. some process information unusually slowly. II. or court rules may contain long. The English language changes constantly. That works fine if you do. IV. V. and a lack of concentration translates into a lack of learning. or experience with. Often. But the amount of reading is only one of the problems law students face. the topic that you’re reading about is something that you have no prior knowledge of. The law itself is like a language. Yet you have to become as familiar with these concepts as you are with the layout of your own home or the face of a loved one. complex sentences that are difficult to decode. But even newer sources are difficult: cases. The law is full of concepts that are complex and completely abstract. They exist only in our minds. and some have poor reading strategies because they have never received proper reading instruction.Getting the Most Out of What You Read As you have noticed. Some students have low reading comprehension because of emotional upset. intent – none of these concepts can be seen. anger. collateral estoppel. or strong emotional states interfere with concentration. VI. For example. Here are some others: I. you may never have encountered the concept of joinder of parties or venue. and then direct the discussion upward from there. if you’ve never been involved in a lawsuit. Negligence. especially in older cases. So when you’re reading about unfamiliar concepts. those professors may start out assuming that you have this basic information already. you may have trouble deciding which information is important and how the pieces fit together. then class discussion may make no sense at all. III. Many professors expect you to teach yourself the basics before you come to class. Anxiety. statutes. Strategies for Reading: How to Overcome Obstacles to Understanding Reading is more than simply decoding words. have that basic information. law students have to read a lot. and it’s not an easy vocabulary to learn. Some have undiagnosed learning disabilities. in fact. In class. “Reading is an interactive process in which a reader’s prior knowledge of the subject and purposes for reading operate to influence what is learned from 21 . they may start the discussion at the point where they assume you are.
As you read. Use active reading techniques The first time you read a case. try to get the basic idea of what’s going on in the case. USA. 1997 ed. Translate what the court is saying – explain it in language that a twelve-year-old would understand. when. Ask questions Scan the assignment and look for headings in the text. Dailey: 1 MICHAEL MCKENNA & RICHARD ROBINSON. you could think of the six question words: who. very few people can read a case once and fully understand it. Preparing to Read Set your purposes for reading – what are you supposed to learn? Look at the table of contents – your map of this course. what.text. TEACHING THROUGH TEXT: A CONTENT LITERACY APPROACH TO CONTENT AREA READING. How can you tell whether you are an active reader? Read the following active-reading strategies and see how many of them you use. To do this. There may be some parts that you have to read more than twice. then figure out how those clumps fit together. “Development of Liability Based Upon Fault.”1 People who are active readers get much more from what they read than people who are passive readers. or other secondary source. 22 (Longman Pubs. Where does today’s assignment fall in this map? How does today’s assignment fit with what has gone before? What specific topics will you cover in today’s reading? What are you supposed to learn? Get the big picture Read about today’s topics in a hornbook. Nutshell. read the case at least twice. Instead. Literacy Processes. “What is fault? Whose fault are we concerned with? How was liability decided before fault became important? What kinds of fault do courts look for now?” Reading Read more than once Very.) 22 . where. Then apply the appropriate words to the heading.” you could ask yourself. then figure out what each clump means. That is. if the heading says. and how. For example. To form the questions. figure out which words fit together to form a logical unit – a clump. active readers also build long-term memory more effectively. Here’s an example from Garratt v. try to refine what you’ve read. Turn those headings into questions. “clump” the words in the sentence. The second time. why. use these techniques: A.
etc.” intentional / infliction / of a harmful / bodily contact upon another. Underline or highlight any law that you see in the case. elements or rules for battery. B. there are more rules that go with battery but what the court is giving is enough to decide this case. D must (1) have intent. you are reading to learn concepts that 23 . Instead. What does each idea mean? Can you translate each idea into your own words? Can you find a definition? 4.“A definition (not all inclusive but sufficient for our purpose) of a battery is the intentional infliction of a harmful bodily contact upon another. a statute. but not all.” If you “clump” these words. asking yourself four questions will help you develop the concepts within the law: 1. But from this case we learn that to be liable for battery. A definition / (not all-inclusive / but sufficient for our purpose) / of a battery is / the The court is giving law here. a constitutional provision.” Now translate the clumps. whether it is from a case. and (2) actually do something that (3) causes an injury by (4) touching P’s body. the legal concept is “battery. the sentence might look like this: “A definition / (not all-inclusive / but sufficient for our purpose) / of a battery is / the intentional / infliction / of a harmful / bodily contact upon another. unlike in most college classes. a court rule. do they form a list of elements? Is one idea a definition of another part? Is there an exception?) 3. What would be an example of each idea? What would be a non-example of each idea? The reason it is important to ask these questions about the law is that. So the point of this sentence is this: the court is giving some. As soon as you find law. I have to find out what “intent” means D has to “inflict” or actually do something D has to cause an injury touching of P’s body. How many different ideas are contained in this explanation of the law? 2. you are not just reading for information. How do these ideas fit together? (For example.
” “unless. Next to a paragraph explaining the defendant’s argument. such as Webster’s. and what the outcome will be. D. E. Label the paragraphs with a word. To establish these words in your vocabulary. Also. G. If your casebook includes questions or problems for you to solve. write out the most important facts. Next to a paragraph where the court is applying the law to the facts. Look for “word clues” – words or phrases that will enable you to predict what the issues are. look up words that seem familiar. Read the notecases (the short descriptions of cases that many casebook authors put after the principal case). answer the questions and solve the problems as best as you can. Here are some questions you could ask: What pieces of law did the court talk about? Which pieces of law did it actually use to make its decision? Why did it use that law? What are the important facts? Why were these facts important? What elements of the law did these facts pertain to? Why did the court decide the way it did? What steps did the court go through to make its decision? Why were these steps necessary? Why is this case here? What am I supposed to get out of it? What did it add to what I know? F. write unfamiliar words on one side of an index card. Those words may have meanings that you’re not aware of. write the definition of the word. Get a good regular dictionary. and [fact]”). what the analysis will consist of. Ask questions about what’s going on in the case and see whether you can find the answers. Revise your predictions when you get more clues about where the case is going. Sort out the information in the notecases and add it to your T-chart. write a note summarizing what facts went with what elements (“no intent because [fact]. On the other side. [fact]. These connecting words signal the relationships among ideas. Be especially sensitive to connecting words like “and.) I. or sentence explaining what the point of each paragraph is. H. next to a paragraph of facts. For example. Look up words that you don’t understand. By the way – a legal dictionary is not enough. phrase. Write notes in the margin as you read.” “or. what the parties’ arguments will be.you must then be able to apply to new situations. and use the word in a sentence or two. T-chart the case so that you have notes on all the essential information in the case. 24 . but are being used in unfamiliar ways.” etc. C. summarize that argument in a sentence or two. Applying concepts to solve problems requires you to understand the concepts more deeply than ever before.” “however. (See the information on T-charting later in this course pack.
how will it change the analysis? What element does this new fact relate to? Will the new fact change the outcome? Why?” Think of this as exam preparation that goes on all term. then by the end of the term you will have taken scores of “practice exams” that you made up yourself. How do these pieces fit together? Can you see the big picture? 25 . What new concepts did you learn about? How do they fit together? Then go back to the table of contents and reconstruct what you’ve learned up until now in the course. the dining room ceiling caved in! How would that implied duty apply to your cousin’s situation? What kind of remedy would he have had? If you’re studying assault in Criminal Law or Torts. Pretend that you’re telling the story to someone you know well – someone who is intelligent. think about that person’s reaction. Review Go back to the table of contents After you’ve finished reading the entire assignment. reconstruct the whole. the professor will give you facts that you’ve never seen before. If you’re taking Contracts and you’re reading about implied duty to perform a job in a workmanlike way. How would these principles apply to him? If you relate material to something you know. think about the guy you knew in college who got drunk and got into a bar fight. try again. on the exam. it is concrete instead of abstract. recite all the major steps that the court went through to reach its decision. so the first time your cousin drained the tub. So get ready by making up your own facts and analyzing them. an experience that a friend or family member has had. As you tell the story. in your head or out loud. That is. the story where the contractor who built his house forgot to hook up the drain on the bathtub. or to something you’ve read about or seen on television.Reciting Reconstruct the whole When you’ve finished the case for the first or second time. take a moment to reflect on what you’ve learned. the more material will enter into your long-term memory. Will that person understand what you’re saying? Can that person follow every step? If you skip a step or you’re unclear. And the more associations you have between the material and information you have. then you know that you understand it. You know that. If you do this throughout the term. think about the story your second cousin told you. This will solidify the information in your memory and enable you to see the point of that case. but knows nothing about the law. Make up a story Change the facts of the case and ask yourself these questions: “If I change this fact. You know. read your marginal notes and. Relate the material to something you already know Think how the material relates to an experience that you’ve had. Explain it to a layperson Look away from the case and recite it. If you can explain it so that an intelligent layperson would understand it.
Conclusion You won’t use every single technique listed here for every single case you read and every single assignment. Furthermore. we can refer you for further testing. However. you will find that you will actually become more efficient. please contact the ARC as soon as possible. these techniques will maximize what you get from reading. many of these techniques are good to use in a study group.) If you suspect that you’re having reading difficulties. the more you use these techniques. the easier it will become to do the deep thinking and deep processing that true learning requires. And though you may be thinking that these techniques will take forever. We can give you a diagnostic reading test that can detect basic reading deficiencies. (By the way. If the test indicates a problem. 26 .
which takes a lot of time. If. That is normal. Instead. and understand how the law applies to different fact situations. Very often the law is found in judges’ opinions – court cases. In fact. Read about that topic in a hornbook. so you need to check the table of contents in the casebook. and the cases themselves are written in a pattern that is likely to be unfamiliar to you. Be aware that at the beginning of your first semester. to recite and review the material. you should notice that you gradually become more efficient. or some other good supplemental source. Use the table of contents or syllabus to get a Big Picture of the course.Reading Cases Efficiently: Two Examples Objectives: (1) To help you become an independent learner. you will need to learn to read and brief cases efficiently so that you have time for the other things that you need to do. you will have learned a lot of law. So you must learn to learn by yourself – to read cases. you will spend a lot of time reading and briefing your cases. The syllabus tells you what pages to read for a class. These things will slow down your reading. Figure out where you are in the Big Picture. To help you become more efficient. However. over the course of the semester. Therefore. you notice that you are still spending all your time reading and briefing. you also need to find time to create outlines. Don’t worry about trying to understand every detail for that topic. Once you have finished law school. However. lawyers must learn to teach themselves the law. After the court finishes with the 27 (2) (2) (3) (4) . Sometimes the syllabus also tells you what topics you will be learning about. Reading the cases requires a whole series of skills. very often the lawyer must go to the law books and find and learn the law that governs the client’s case. Look at each paragraph in the case and ask yourself whether it contains law. contact your Intro instructor or the Academic Resource Center for help. you will be required to read and brief a huge number of cases in law school. As you read a case for the first (or second) time. Furthermore. Cases usually (though not always) start with facts about the case – what happened before and. This will give you the Big Picture of that topic. Look for the law in the case. Sometimes the syllabus does not tell you the topics. toward the end of the semester. after the lawsuit began. Therefore. Overview of the Steps: (1) Create the Big Picture. law school cannot teach you all the law you need to know. find the law. Pre-read. skim past the facts until you find the law. try to find the main ideas: the elements and the major rules that govern that topic. and to practice essay writing and multiple choice. sometimes. nobody knows all the law. But you can’t spend all your time on reading and preparing for class. When a client come into a lawyer’s office with a problem. a Nutshell.
” “Numerous authorities hold. Sheriff. In Hicks. Try to pull every scrap of law out of the source that you’re reading. It may help to remember that the law is not about anybody in particular.facts. 28 . and organize it.” etc.” “Any person who. do they form a list of elements? Is one idea a definition of another part? Is there an exception?) What does each idea mean? Can you translate each idea into your own words? Can you find a definition? What would be an example of each idea? What would be a non-example of each idea? Example 1: Here is an example from Criminal Law. one rule. As you read a case (or a statute or court rule or Restatement or any other source of law that you come across). Asking questions focuses your reading.” etc. It may use cue words like “The law is clear that. The following excerpt contains only the statements of law. (5) Break the law down into component ideas. To help you do this. Sometimes that court will not use specific cue words to tell you that it is now giving law.” “It is elementary that. Break the law down as much as possible into a bullet-point list of ideas. So to find the law.) The times when it is hardest to spot the law will be when the court has blended the law and the reasoning together. the court alternated between law and reasoning. Sometimes a case contains only one piece of law – for example. the law applies to everyone: it is likely to be a general statement. you will need to look for statements that are not about the particular people in this case (“One who. Here are some important questions: How many different ideas are contained in this explanation of the law? How do these ideas fit together? (For example. so that you can see the individual pieces. it usually turns to law. sometimes. Instead. unlike the facts. Hicks v. Sometimes the court will specifically tell you when it begins discussing law. a case contains lots of law. Then you may have to figure out what the elements or rules are from what the court reasons about the specific people in that case. ask yourself basic questions about the law and how the pieces of the law fit together. Clark County. you must find the elements of the law.
find definitions (rules) that explain those terms of art. the terms of art are part of the legal language that you are learning to speak.Only after the corpus delicti has been proved by lawful evidence may confessions and admissions be considered in establishing probable cause to show that the accused was the criminal agency causing the death. Instead. however. ensures that you understand it. *** “It is not requisite. Putting the law into your own words. 29 . It is sufficient if there be other competent evidence tending to establish the fact of the commission of the crime. the legal terms that the court uses. that the crime charged be conclusively established by evidence independent of the confession or admission. o independent of any confession or admission by the accused. however. • • • (6) Paraphrase. Do not paraphrase the “terms of art” – that is.”*** At the very least there must be established. that the crime charged be conclusively established by evidence independent of the confession or admission. It is not requisite. o the fact of death o and that it resulted from the criminal agency of another and not from natural causes. independent of any confession or admission by the accused. It is sufficient if there be other competent evidence tending to establish the fact of the commission of the crime. After all. accident or suicide. At the very least there must be established. instead of the stuffy language the court uses. How many separate ideas appear in this statement of law? • Only after the corpus delicti has been proved by lawful evidence may confessions and admissions be considered in establishing probable cause to show that the accused was the criminal agency causing the death. accident or suicide. the fact of death and that it resulted from the criminal agency of another and not from natural causes.
Then figure out which ideas go in each category. If you see a subrule or exception. And add headings so that you can see what each part of the law is for. in the information above. accident. (7) Organize the law. so that gives you three main categories. before the confession or admission can be used. it is enough if there is some other competent evidence tending to show that the crime was committed. Instead. that the crime is conclusively proved. the court has set out rules on how to prove corpus delicti.• • • • The prosecutor must show the corpus delicti first. Sometimes the court has repeated certain ideas. write it under the rule that it goes with. the court has repeated several ideas: the prosecution has to prove corpus delicti before using confessions or admissions. If you organize the information. 30 . Note that. you can cut down on repetition. Put the definition with the element and write the definition under the word that’s being defined. or suicide. The prosecutor must prove o Without using any confession or admission by the defendant o That someone has died o And that the death was caused by the criminal agency of another and not by natural causes. Here are some questions you can ask yourself. Sometimes the court has stated an element in one place and has stated the definition (rule) in another place. Those are the main ideas. and corpus delicti requires proof of (1) death and (2) criminal agency. before confessions and admissions can be used to show probable cause that the defendant was the criminal agency that caused the death. The prosecutor doesn’t have to show. How do all the pieces fit together? Does the case give a list of elements and rules? Does it give a rule and an exception? Does it give a variety of rules to be used in different situations? And so on.
that it was identified by a military service identification tag and a thumb print. to help you to identify what the court is reasoning about. There just has to be some evidence of the corpus delicti. ask yourself what element or rule the court is talking about. What are the elements of corpus delicti for murder? Someone has died and The death was caused by the criminal agency of another (Rule for criminal agency) death was not by natural causes. Ask yourself: What was the court’s reasoning? What elements or rules was the court concentrating on? Here is some of the reasoning from the Hicks case. What element or rule is the court talking about? Look for words that give clues.Why show corpus delicti? If the state cannot show corpus delicti. that it was identified by a military service identification tag and a thumb print. There is absolutely no evidence before either the justice’s court or the district court that a criminal agency of the appellant or anyone else was responsible for the alleged victim’s death. Often. Except in the affidavit of King. The crime doesn’t have to be conclusively proved for corpus delicti. 1967. defendant’s confessions and admissions cannot be used against defendant. Write the court’s reasoning next to the piece of law that it fits. but the court’s reasoning will concentrate on only one or two pieces of that law. Sometimes. the reasoning is after the statement of the law. (8) Find the reasoning and match the parts of the reasoning with the parts of the law. 1967. in the desert. For each reasoning statement. All that we find relating to his death is testimony that his body was found on December 6. and that the body was partially clothed. the court alternates between law and reasoning (as in the Hicks case). accident. The court repeats words or phrases from the law or repeats ideas from the law. 31 . we find no testimony or other evidence about the cause of death of Christiernsson. we find no testimony or other evidence about the cause of death of Christiernsson. Except in the affidavit of King. There is absolutely no evidence before either the justice’s court or the district court that a criminal agency of the appellant or anyone else was responsible for the alleged victim’s death. and that the body was partially clothed. How do you prove corpus delicti? Use any admissible evidence other than a confession or admission by defendant. All that we find relating to his death is testimony that his body was found on December 6. in the desert. or suicide. the court will explain a lot of law. Usually.
Where is the court now? The affidavit of the appellant’s fellow prisoner to the effect that the appellant admitted to him that he had murdered the victim. All that we find relating to his death is testimony that his body was found on December 6. What are the elements of corpus delicti for murder? Someone has died and The death was caused by the criminal agency of another. Criminal agency has to do with the cause of death – whether it was caused by another person. (Rule for criminal agency) death was not by natural causes. 1967. The crime doesn’t have to be conclusively proved for corpus delicti. Here is another part of the court’s reasoning. There is absolutely no evidence before either the justice’s court or the district court that the criminal agency of the appellant or anyone else was responsible for the alleged victim’s death. and that the body was partially clothed. So you can store this piece of reasoning with the piece of law that it matches. Except in the affidavit of King. in the desert. does not supply the proof necessary to show that death was caused by criminal means. or by accident. How do you prove corpus delicti? Use any admissible evidence other than a confession or admission by defendant. or natural causes. The affidavit of the appellant’s fellow prisoner to the effect that the appellant admitted to him that he had murdered the victim. we find no testimony or other evidence about the cause of death of Christiernsson. that it was identified by a military service identification tag and a thumb print. accident. There just has to be some evidence of the corpus delicti. suicide. Reasoning Law Why show corpus delicti? If the state cannot show corpus delicti. 32 . defendant’s confessions and admissions cannot be used against defendant. or suicide. does not supply the proof necessary to show that death was caused by criminal means.What element is the court talking about? Criminal agency.
or suicide. Nor would you want to. had murdered the victim. defendant’s confessions and admissions can’t be used against defendant. accident. Reasoning Law Why show corpus delicti? If the state cannot show corpus delicti. 33 . There is absolutely no evidence before either the justice’s court or the district court that a criminal agency of the appellant or anyone else was responsible for the alleged victim’s death. Except in the affidavit of King. After all. in the desert. 1967. The crime doesn’t have to be conclusively proved for corpus delicti. (9) Summarize the reasoning. you don’t have time to write out all those details. does not supply the proof necessary to show that death was caused by criminal means. that it was identified by a military service identification tag and a thumb print.Where in the law does the court discuss whether an admission is enough proof? In the part that explains how you prove the corpus delicti. All that we find relating to his death is testimony that his body was found on December 6. we find no testimony or other evidence about the cause of death of Christiernsson. (Rule for criminal agency) death was not by natural causes. The affidavit of the appellant’s fellow prisoner to How do you prove corpus delicti? the effect that the appellant admitted to him that he Use any admissible evidence other than a confession or admission by defendant. What are some elements of corpus delicti for murder? Someone has died and The death was caused by the criminal agency of another. and that the body was partially clothed. There just has to be some evidence of the corpus delicti.
the court only tells part of the story in the “facts” part of the case and tells the rest of the story in the reasoning. but court can’t use the admission to prove the death was caused by criminal means. When you see a fact. The crime doesn’t have to be conclusively proved for corpus delicti. sometimes. How do you prove corpus delicti? Use and admissible evidence other than a confession or admission by defendant. other will not. Keep the elements and rules in mind as you read. ID’d by dogtag and print. defendant’s confessions and admissions can’t be used against defendant. That is what the Hicks case does. The facts that fit are legally relevant. And remember that. No evidence other than the affidavit that D caused the death: body was found in the desert. ask yourself whether it “fits” with a piece of law. Affidavit of D’s cellmate said D had admitted the murder. Some facts will fit. accident.Reasoning Law Why show corpus delicti? If the state cannot show corpus delicti. which ones are not legally relevant?) 34 . it gives a few facts in the beginning of the case. Here are the questions you could ask yourself: What are the basic facts? Which facts “fit” each piece of law? Which facts do not “fit” any piece of law? (In other words. (10) Read the facts. What are the elements of corpus delicti for murder? Someone has died and The death was caused by the criminal agency of another (Rule for criminal agency) death was not by natural causes. but nothing to show the cause of death. body partly clothed. or suicide. facts that do not fit law are legally irrelevant. and it adds more facts during the reasoning. Now go back and carefully read the facts of the case. There just has to be some evidence of the corpus delicti.
There just has to be some evidence of the corpus delicti. And evidence connecting D to victim is not enough for corpus delicti without evidence that the death was not by natural causes At this point. What are the elements of corpus delicti for murder? (1) Someone has died (2) The death was caused by the criminal agency of another. ID’d by dog tag and print. Facts Reasoning Affidavit of D’s cellmate said D had admitted the murder. see how the parts fit together. T-charting is a technique for taking notes over the material that you read. And once you’re conscious of what your mind should be doing. and sort out what kinds of facts relate to each part.Hicks v Sheriff. Because the T-chart is a picture of what your brain should be doing when it reads the law. It is a system that helps you to break the law down into small parts. D was driving victim’s car when he was arrested. accident or suicide. body partly clothed. using a T-chart is a way to make the thinking process visible. (Rule for criminal agency) death was not by natural causes. . The crime doesn’t have to be conclusively proved for corpus delicti. 1970 Law Why show corpus delicti? If the state cannot show corpus delicti. D’s cellmate wrote in an affidavit that D had admitted beating victim to death and then stabbing the victim. If D had beaten and stabbed the victim. D and victim had been seen together before victim’s disappearance. the T-chart makes your mind work more efficiently. understand the parts. 35 No evidence other than the affidavit that D caused the death: body was found in the desert. wounds. but the court can’t use the admission to prove the death was caused by criminal means. then victim’s body would have bruises. Nevada Supreme Court. Clark County. you have produced a T-chart. defendant’s confessions and admissions can’t be used against defendant. How do you prove corpus delicti? Use any admissible evidence other than a confession or admission by defendant. fractures or something. but nothing to show the cause of death.
The general formula for writing an issue is: Whether [element/rule is broken/met] where [brief statement of core facts] (12) Figure out the other parts of the brief. but when there is no evidence on how the victim died. the court spent all its time discussing one major idea: whether there was any evidence to show criminal agency other than D’s confession to his cellmate. 36 . the issue should stand out. reasoning. In Hicks. If you are using the T-chart. etc. what the holding was. Once you have sorted out the law. Notice the structure of the issue. So that would be the issue: whether the corpus delicti can be proved when there is a dead body and D has admitted the murder.(11) Figure out the issue. and facts. put them wherever you have room on the page. what each side would argue in that case. Find answers to those questions and write them down. There are other aspects of the case that you should try to understand and that your professor may want to ask you about: what the procedure was.
She fell to the ground Broke her hip . if the elements are fulfilled. and she started to sit down in it. (2) Knowledge that the contact is substantially certain to occur. trial judge held that the kid had known and held for P. Remanded for findings on that. On remand. D had moved a lawn chair that an elderly.Example 2: Garratt v Dailey Law Can minors be held liable for intentional torts? In many jurisdictions. 5-year-old Facts Reasoning This 5-year-old can be liable for intentional torts just as grownups can. But trial judge held that he didn’t plan to make her fall. Holding: Trial judge erred in not considering the second way to prove intent. P argued that the trial judge erred by not considering the second way to prove intent. he would be liable. yes. Elements of battery Intent – two ways to prove (1) Intent (purpose) to cause the contact or P had argued that the kid moved the chair so that she would fall. arthritic woman had been sitting in. (Mere negligence or even recklessness isn’t enough) On appeal. she didn’t notice. 37 Contact with another Harmful or offensive If the kid knew that the woman moved too slowly to react when he moved the chair and that it was substantially certain that she would fall when he moved the chair.
3. (1) Can a small child be liable for an intentional tort? (2) Can a person have the intent required for battery when the person didn’t actually act with the purpose of causing the contact? So these notes will show you what this case adds to what you’ve already learned. Include the parties’ arguments. therefore. Notice also that you can tell what the issue was in the case by looking at the chart. Write out your T-chart. It can be difficult to see the relationship between different ideas in the brief. and (4) pre-organize the material. Instead. You can use the T-chart as an effective substitute for traditional briefs. and she started to sit down in it” goes next to “knowledge that the contact is substantially certain to occur” because those are the facts that the child knew. and they will help you to see why this case was included in your assignment. find a place for the parts that you would put into a traditional brief. 2. you have to dig the law back out. There is reasoning next to both of these rules because those were the rules that the court was discussing. you can’t add anything to the middle of it. 1. it spent its time on two rules only. arthritic woman had been sitting in. (2) help you to spot the main point of the case. In short. Briefs take a long time to write. they have some drawbacks. they also are easy to recite from because you can just read them out loud. (3) create an outline of the material that will help you follow along in class. she didn’t notice. Here’s one way to do it. “Moved a lawn chair that an elderly. which is valuable. There are two areas of law discussed. The facts are arranged to fit next to the piece of law that those facts fit: “5-year-old kid” goes with the rules for minors because those facts show that he was minor. and they should have told him that she was likely to end up falling. The brief is a block of text. 38 . (1) what the rule is when the defendant is a child and (2) the elements of battery and the rules that explain the intent element. which will make it much easier to create an outline. The law is buried in the brief. State the issue at the top of the chart. Not only will the T-chart solve some of the problems inherent in traditional briefing.In this example. Using the T-chart as a Substitute for Traditional Briefs Traditional briefs have certain advantages: briefs make you practice writing complete sentences to explain legal topics. when it’s time to write your outline. The court spent no time discussing whether contact occurred or whether it was harmful. However. Put any important procedure into the “facts” column. but it will also (1) help you to organize the material in your mind so that you can put it into your long-term memory. So those rules were the two issues. notice that the law has been broken down vertically. 4.
trial judge held that the kid had known and held for P. that the case was meant to teach you those two points. But trial judge held that he didn’t intend to make her fall. 39 Cause contact with another Harmful or offensive If the kid knew that the woman moved too slowly to react when he moved the chair and that it was substantially certain that she would fall when he moved the chair. Knowing this makes it easier to state the issues in the case (see the issues at the top of the chart).Issues: Can a small child beheld liable for an intentional tort? Can a person have the intent required for battery when the person didn’t actually intend to cause the contact? Law Can minors be held liable for intentional torts? In many jurisdictions. Remanded for findings on that. in the chart. an elderly. Holding: Trial judge erred in not considering the second way to prove intent. Knowledge that the contact is substantially certain to occur (Mere negligence or even recklessness isn’t enough) She fell to the ground Broke her hip Notice that. she didn’t notice and started to sit down in it. The kid had moved a lawn chair that P. there is no discussion next to the elements of “contact” or “harmful or offensive. arthritic woman had been sitting in. therefore. On remand. he would be liable. On appeal P argued that trial judge erred by not considering the second way to prove intent. yes. the discussion clusters next to two points: (1) whether a child can be liable for an intentional tort and (2) intent. 5-year-old kid Facts Reasoning This 5-year-old can be liable for intentional torts just a grownups can. if the elements are fulfilled. This shows you. . Elements of battery Intent – 2 ways to prove Intent (purpose) to cause the contact or Procedure: P had argued that the kid moved the chair so that she would fall.” Instead.
Professors tend to be very interested in the details of the law (in the “Law” column). The professor wants to make sure that you understand the law and how the law is applied to facts. Furthermore. the facts in the T-chart are often not listed chronologically because they are sorted to the piece of law they fit. you 40 . therefore.” you can write your notes across from the word “contact” in the T-chart (or you can put your notes right in the T-chart itself). Draw two columns on the right-hand page: one for the law and one for the facts. For example. If your professor wants you to recite all the facts chronologically. in the facts (in the “Facts” column). If the professor gives you a hypothetical. and in the court’s reasoning (in the “Reasoning” column). then you know that you’re on the right track. Using the T-chart in Class To use the T-chart as an effective tool in class. you can write out a paragraph of chronological facts on a separate sheet of paper or in a blank corner of the T-chart. Or. you could set up a notebook this way: Put the Tchart on the two pages of your notebook. if the class discussion confirms that the notes you took are accurate. you could highlight the facts in your casebook and recite the facts by looking at the casebook. your professor may require you to state all of the facts of the case. if the professor begins discussing the element of “contact. If the professor explains something about the reasoning. and not just the legally relevant ones. you can write it into the “facts” column next to the element that the hypothetical relates to. The notes in your T-chart and in the “Reasoning” column will also form an excellent outline to use in class. That way. you can tell the difference between (1) what you picked up on when you read the case and (2) what your professor had to say about the case. you can try one of two techniques: First. Use different-colored inks for what you write before class and what you write in class. Draw two columns on the left-hand page: one for the court’s reasoning and one for your notes on what is said about the case in class. (Left side of notebook) (Right side of notebook) Class Notes Reasoning Law Facts Think of the notes you take in class as a confirmation of what you learned as you briefed your cases.Using the T-chart to recite When you are called on to recite. the T-chart makes it easier to see what the professor is discussing now. which saves time. second. Facts that do not fit a piece of law are not included. The T-chart usually only contains the legally relevant facts because it requires you to sort out which facts go with each piece of law. If you have a professor who jumps from topic to topic. The advantage of doing it this way is that you don’t have to write the facts out.
What your brain must do: Reading cases effectively is about selecting and sorting information. If your brief contains all important points. To sort information. The second step is to practice. facts. etc. you’ll be more able to follow where the professor is going. reasoning.can write your notes next to that part of the reasoning on your chart. The third step is to check your progress. procedure. Practice: You don’t have much choice about whether to practice because your professor assigns plenty of cases to practice on! Check your progress: The easiest way to check your progress is to listen in class. To select information. go back to the case and see why you missed those things. Summary of How to Read Cases The first step to effective. figure out the relationships among the pieces. and then match reasoning and facts with the pieces of law. you must break all the law into the separate ideas. then pat yourself on the back! 41 . issues. Does your professor bring out important things that you missed? If so. efficient reading of cases is to understand what your brain must do. you must think about the important categories of information as you read: law. In short.
ask where that law should go in the outline. write in the explanation or clarification that you got from the notecase. some of the parts of the law are obviously met and other parts are more problematic. This will help you on exams because. Does the notecase give you information about a different area of law? Then take notes about that law and. explain or clarify points from the principal case. then 1. in the short fact patterns in notecases.Reading and Analyzing Notecases. Then the purpose of that notecase is to make you think particularly about the piece of law that is the real problem. Problems and questions: Problems and questions in the casebook have one major purpose: to make you think about and understand the law in that part of the book and to see how that law would apply. This will make it easier for you to quickly and accurately do the analysis on the exam question because you will have analyzed a problem like that before. The Contracts and Property books are examples. If the notecase supplements the law given in the principal case. Etc. 43 . use the law you have learned to analyze the facts given and to reach a conclusion. write notes on your brief. If the notecase explains or clarifies points from the principal case. On the part of the brief where that law appears. ask yourself how the new piece of law fits. The Torts book is one example. when you are writing your Big Picture outline. ask yourself exactly how the notecase is clarifying the law. notecases may teach you law that the principal case did not mention). 2. Does the notecase give a definition for an element (the rule)? Then write that rule next to the element in your brief. They 1. If the casebook contains a problem or question. Usually. and 3. then 1. think about what law you have learned. and 2. explain to yourself exactly why you reached that answer. supplement the law given in the principal case (in other words. in the Casebook Some casebooks have notecases or questions or both after the principal cases. use that law to answer the question. then 1. think about which piece of the law those facts are designed to make you particularly think about. then you will have already analyzed something like it. or 3. Some casebooks have problems before or after the principal case. then 1. 2. Notecases: Notecases usually serve one of three purposes. If the notecase sets out a fact pattern for you to analyze. set out additional fact patterns for you to analyze. 3. 2. Does the notecase give you an element that the court had not mentioned in the principal case? Then write that element into your brief. Problems. ask yourself which part of the law from the principal case the notecase is addressing (the point of law is usually already in your brief). if an exam question contains facts similar to the facts in the notecase. First ask yourself which purpose the notecase serves.
If you’re having trouble translating the court’s language into your own words. Finding an antonym for the term will also help. insert punctuation.” Your first idea of “restraint” might begin with the notion that “restraint” means being held in a jail cell. Say the word you need to understand is “large. your reading will further refine your understanding: “restraint” means being confined in any kind of area. 44 . and Add to Your Notes After class. the TA. write them next to the notes on that material. But as soon as possible after class. If the professor discussed a point but you weren’t sure what topic the professor was discussing. Clarify.” “tiny. see whether you can figure it out as you’re going through your notes. go back over your notes. try looking up terms in a legal dictionary or a thesaurus. Translating – How to Find the Words Paraphrasing (translating the court’s language into your own words) is a difficult skill. One element of false imprisonment is “restraint. and when writing an exam. you might small Synonyms – large is big. number sub-points and so on. If you find a synonym or a phrase that will accurately explain the term’s meaning. Once you do figure it out. Add headings to your notes so that you can see instantly what topic was being discussed. Recopy illegible parts. to decide exactly how far the concept of “restraint” will extend. non-legal example.” Antonyms include “small. little (in between. Understanding what something is not is as important as understanding what something is.After Class Organize. add details that you remember but didn’t have time to write down. you should take a break – obviously. Here are some suggestions that may help.” “huge. Here’s a simple. Yet it is an important skill – one that you will use when briefing or T-charting. Finding synonyms will help you to “scale” the idea of restraint – that is.” and “enormous.” and “little. Remember to ask the professor. then you can attain a deeper understanding of the term. However.” “immense. enormous Here’s a legal example. stating what the topic was. immense More put words like “medium”) huge. If you have questions about part of the material. or your study partners about those questions. write a heading next to that part of your notes. when reciting in class.” Other words that mean “large” include “big. when writing a memorandum in Research & Writing.” Antonyms – large is not Less tiny. rephrase points that are unclear.
contained More confined 45 . you might loose put words like “hindered”) Synonyms – restraint is held.Antonyms – restraint is not Less freed (in between.
B.TABLE OF CONTENTS Acknowledgments Introduction to the Study of the Law of Contracts xxvii xxix CHAPTER 1 INTENT TO CONTRACT: OFFER AND ACCEPTANCE I. Statement of Opinion or Intention Cirafici v. Goffen Problem 5 Problem 6 ix 1 1 1 8 8 8 9 10 10 10 10 10 20 20 24 24 46 . Preliminary Negotiations Leeds v. Zehmer Note Problem 2 Problem 3 Note on Social Contracts Problem 4 Note on the Concept of Misunderstanding The Offer A. Introduction: The Principle of Mutual Assent Problem 1 Lucy v. II. First Allied Connecticut Corp.
Greater Minneapolis Surplus Store. Catan Note and Questions Problem 14 Problem 15 D. Note on Deceptive Practices Problem 8 Problem 9 D. Mode of Acceptance Davis v. Notes and Questions Problem 10 Acceptance A. Written Contract to Follow Connecticut Laboratories v. IV. v. Silence as acceptance Problem 13 Day v. Inc. Revocation by Offeror Problem 20 Dickinson v. Scott Paper Co. v. Pattberg Questions Problem 21 C. Problem 12 C. Dodd Questions Petterson v.Table of Contents Solicitations Problem 7 Lefkowitz v. Knowledge of the Offer Problem 16 E. Jacoby Questions Problem 18 Problem 19 Termination of the Power of Acceptance Restatement (Second) of Contracts §36 A. Inc. Zeidenberg B. Manifesting Assent Restatement (Second) of Contracts §50 Beard Implement Co. Krusa Notes and Questions Fujimoto v. Motive Problem 17 F. Rio Grande Pickle Co. Effect of Acceptance Problem 11 ProCD. 24 24 25 27 28 28 29 29 33 33 34 34 34 35 42 42 42 50 50 54 55 55 55 57 58 59 59 59 60 60 61 61 68 69 69 70 70 70 70 71 74 75 79 80 III. 47 .
Moor Note on the Risk of Loss C. Scheck Note on Revocation and Option Contracts Problem 22 Problem 23 Problem 24 B. Thoelke Problem 28 Note on Option Contracts Note on Offers in International Sales F. (America) Inc. Termination by Counteroffer and the “Battle of the Forms” Livingstone v. v. v. Inc. City of Boston Question Problem 25 Problem 26 Phillips v. Termination by Rejection Problem 27 Restatement (Second) of Contracts §38 E. v. Decker Question 82 85 85 86 86 87 87 87 91 91 91 92 94 95 95 100 100 100 101 101 108 108 109 109 109 111 112 119 122 123 132 132 133 133 133 134 134 142 142 146 V. Problem 31 Problem 32 Note on the Battle of the Forms in Other Areas Problem 33 Indefiniteness Corbin on Contracts §29 Walker v. Jordan International Co. Termination by Death or Incapacity of the Offeror or Offeree Swift & Co. Lapse of Time Restatement (Second) of Contracts §41 Loring v. Keith Notes and Questions Rego v.Table of Contents Marchiondo v. Itoh & Co. Notes and Questions Problem 30 Gardner Zemke Co. The “Mail Box” rule Morrison v. Evans Problem 29 C. Smigel D. 48 . Dunham Bush.
United States Question Problem 43 McMichael v. 49 . Demotsis Questions Schnell v. Adequacy of Consideration Batsakis v. Definition Adam Smith. Nell Question Problem 39 Restatement (Second) of Contracts §87 Forbearance as Consideration Fiege v. Boehm Restatement (Second) of Contracts §74 Problem 40 Problem 41 Problem 42 The Illusory Promise Wood v. Lucy. Sidway Questions Problem 37 B. Lady Duff-Gordon Note Sylvan Crest Sand & Gravel Co. The Basic Concept A. Sufficiency Problem 38 C. The Wealth of Nations Problem 36 Corbin on Contracts §110 Restatement (Second) of Contracts §71 Hamer v.Table of Contents Problem 34 Problem 35 146 146 CHAPTER 2 CONSIDERATION I. Price Problem 44 Corbin on Contracts §156 149 149 149 150 150 150 151 154 155 155 155 156 156 159 159 161 161 162 163 163 168 168 169 169 170 170 171 172 175 176 176 180 181 II. III. v.
” “I will sell you my car for $1. and the offeree accepts.” “Would it be a good deal if I sold you my car for $1. 84 S. In determining whether there is mutual assent.200?” “You wouldn’t consider paying $1. Lucy. Justice. INTRODUCTION: THE PRINCIPLE OF MUTUAL ASSENT At the very heart of contract law is the determination of the parties’ intent to contract.O. BUCHANAN. the requisite mutual assent exists. complainants.2d 516.200. A showing of mutual assent is necessary for an enforce-able contract. ZEHMER Supreme Court of Virginia. Problem 1 Should a court find there is the requisite mutual assent if the response to the following statements is “I accept”? “I’m considering selling my car to you for $1.E.CHAPTER 1 INTENT TO CONTRACT: OFFER AND ACCEPTANCE I. 493. courts typically ask whether there has been an offer to contract and an acceptance of that offer.200 for my car. would you?” LUCY v.C. knows that assent is all that is necessary to cement the deal. the offeree. 1954 196 Va.200. This suit was instituted by W. 1 50 . If the offeror has clearly manifested a willingness to enter into a contract in such a that the other party. Lucy and J.
H. The answer of A. Zehmer.H.H. Zehmer replied that he had not. wrote the agreement quoted above and asked Mrs. “Yes. known as the Ferguson farm. 1952.H. Zehmer until Zehmer came in." Zehmer replied. defendants. Zehmer and Ida S. The instrument sought to be enforced was written by A. Intent To Contract: Offer and Acceptance against A. to have specific performance of a contract by which it was alleged the Zehmers had sold to W. The assignment of error is to this action of the court. filling station and motor court. Zehmer.6 acres. Zehmer and Ida S. title satisfactory to buyer. Lucy offered him $50.O. and realizing for the first time that Lucy was serious. Seven or eight years ago he had offered Zehmer $20.” Lucy said he would and told Zehmer to write up an agreement to that effect. that so thinking.O. he took an employee to McKenney. the other complainant. but that Lucy picked it up.2 Chapter 1. Mrs. where Zehmer lived and operated a restaurant. Lucy transferred a half interest in his alleged purchase. W.000 cash for the farm. Depositions were taken and the decree appealed from was entered holding that the complainants had failed to establish their right to specific performance. I would too. J. Zehmer said she would for $50. in these words: “We hereby agree to sell to W.000 for the farm which Zehmer had accepted. his wife. attempted to offer Zehmer $5 to bind the bargain. Lucy left the premises insisting that he had purchased the farm.00. considered that the offer was made in jest. Zehmer on December 20. Zehmer brought it back and gave it to Lucy. O. that he did not deliver the memorandum to Lucy. While there he decided to see Zehmer and again try to buy the Ferguson farm. He asked Zehmer if he had sold the Ferguson farm. Lucy the Ferguson Farm for $50. Zehmer.000.” Lucy told him he had better change it to "We" because Mrs.000. A. and both he and Lucy having had several drinks. a lumberman and farmer. Zehmer in Dinwiddie county containing 471. Zehmer admitted that at the time mentioned W. is a brother of W. thus testified in substance: He had known Zehmer for fifteen or twenty years and had been familiar with the Ferguson farm for ten years. put it in his pocket. Lucy. around eight o'clock. Zehmer then tore up what he had written.O." and signed by the defendants.00 for that place.000.O. he wrote out “the memorandum” quoted above and induced his wife to sign it.C. Zehmer assured him that he had no intention of selling the farm and that the whole matter was a joke. Zehmer would have to sign it too. Lucy a tract of land owned by A.O. Zehmer. but that he. Lucy. and dismissing their bill. O.000 complete. you wouldn't give fifty. to sign it. “I do hereby agree to sell to W. for $50. 1952. to whom W. but the agreement was verbal and Zehmer backed out. which Zehmer refused to accept. Lucy said. more or less.H. Zehmer took a restaurant check and wrote on the back of it. who 51 . He entered the restaurant and talked to Mrs. Lucy. Lucy the Ferguson Farm complete for $50. On the night of December 20. "I bet you wouldn't take $50. who was at the other end of the counter ten or twelve feet away. read it.000 and signed it.
” Finally. said Zehmer.000. Lucy took a partly filled bottle of whiskey into the restaurant with him for the purpose of giving Zehmer a drink if he wanted it. that he was not interested in selling it. Mr. Lucy said that while he felt the drinks he took he was not intoxicated. “You haven't got $50. “Boy. and didn't have any more better sense than to pour another great big slug out and gulp it down. including several from Lucy.” After they had talked a while Lucy asked whether he still had the Ferguson farm. asserting that he had never agreed or intended to sell. ain't you?” Lucy then offered him a drink.” He.000.00 for the farm. December 20 was on Saturday. you got some good liquor.000 and Lucy said yes. "You don't need to give me any money. during which Zehmer seemed to doubt that Lucy could raise $50. Zehmer did. to buy it. Lucy and arranged with the latter to take a half interest in the purchase and pay half of the consideration. Zehmer were called by the complainants as adverse witnesses.I. and from the way Zehmer handled the transaction he did not think he was either.00 for it. Zehmer testified in substance as follows: He bought this farm more than ten years ago for $11. everything there. They argued “pro and con for a long time.000. “I was already high as a Georgia pine. that he was ready to pay the purchase price in cash and asking when Zehmer would be ready to close the deal. Lucy told him if he didn't believe he had $50. On this Saturday night before Christmas it looked like everybody and his brother came by there to have a drink. He had given them all the same answer. and he took one too. Introduction: The Principle of Mutual Assent 3 offered him $5 which Zehmer refused.” Zehmer asked him if he would give $50. Zehmer replied. drinking. Next day Lucy telephoned to J.C. He had had twenty-five offers. He replied that he had not sold it and Lucy said." The discussion leading to the signing of the agreement. more or less. said Lucy. Zehmer. who had never offered any specific sum of money.000.” mainly about “whether he had $50.” Lucy said he did and Zehmer replied that he did not believe it. mailed on January 13.000 in cash that he could put up right then and buy that farm. and he and Lucy had one or two drinks together. The attorney reported favorably on December 31 and on January 2 Lucy wrote Zehmer stating that the title was satisfactory. Lucy suggested the provision for having the title examined and Zehmer made the suggestion that he would sell it “complete." He said to Lucy." and stated that all he had on the farm was three heifers. On Monday he engaged an attorney to examine the title. lasted thirty or forty minutes. and Mrs.000. saying. When he entered the restaurant around eight-thirty Lucy was there and he could see that he was "pretty high.00 in cash. “I bet you wouldn't take $50.000. you got the agreement there signed by both of us. He took a good many drinks during the afternoon and had a pint of his own. Zehmer replied by letter. “you sign that piece of paper here and say you will take $50. “just grabbed the back off of a guest check there” and 52 .
“No. Lucy said. and I reached over to get a drink. that I was not selling the farm. “scribbled this thing off. She heard Lucy ask Zehmer if he had sold the Ferguson farm. Lucy and Zehmer were talking but she did not pay too much attention to what they were saying.00 cash.” Zehmer came back to where she was standing and said.000 cash for that farm. Zehmer testified that when Lucy came into the restaurant he looked as if he had had a drink.’ He reached and picked it up. took it. “Let me give you $5.” Zehmer said he might form a company and get it. At that point in his testimony Zehmer asked to see what he had written to "see if I recognize my own handwriting.000 cash.” and Zehmer replied. she said she read what she signed and was then asked. I am not going to sell you the farm.000 but if the title was bad he would have a right to reject it.” Lucy said." After Zehmer had. “I agree to sell the Ferguson Place to W. and he said. However. I have got satisfactory spelled wrong. ‘Here is five dollars payment on it. “I can get it. Lucy for $50.” Lucy asked him if he would put it in writing that he would sell him this farm. then said to Zehmer.000.” Zehmer then “took it back over there … and I was still looking at the dern thing. “You want to put your name to this?” She said “No. ‘Let me see it.” but he said in an undertone.00. “When you read ‘We hereby agree to sell to W.” and she signed it." He examined the paper and exclaimed. as he described it.4 Chapter 1. this is liquor talking. get your wife to sign it.000.” but the “I” had been changed to “We”.00 cash to pay me to-night. Lucy.” but Zehmer said. She said that only one paper was written and it said: “I hereby agree to sell. I got 'Firgerson' for Ferguson. O.’ ” Mrs. I don't want 53 . “I bet you wouldn't take $50. O. I had the drink right there by my hand. 'Hell no. folded it and put it in his wallet. I have told you that too many times before. wouldn't know it was mine. “Great balls of fire.” Lucy said. “It is nothing but a joke. that particular phrase?” She said she thought that was a cash sale that night. “but you haven't got $50. Intent to Contract: Offer and Acceptance wrote on the back of it. Zehmer then wrote on the back of a pad. “You haven't got $50. and he said.” Zehmer walked over to where she was and she at first refused to sign but did so after he told her that he “was just needling him [Lucy]. When Zehmer came in he took a drink out of a bottle that Lucy handed him. and that that was her understanding at the time she signed her name. but she also said that when she read that part about “title satisfactory to buyer” she understood that if the title was good Lucy would pay $50. and Zehmer replied that he had not and did not want to sell it. that Lucy said to let him see it.” Lucy said. and when I looked back again he had it in his pocket and he dropped a five dollar bill over there. and didn't mean a thing in the world. that is beer and liquor talking. “Get your wife to sign it. “All right. I don't recognize that writing if I would see it. On examination by her own counsel she said that her husband laid this piece of paper down after it was signed.’ what did you interpret that to mean.’ … I said. She went back to help the waitress who was getting things ready for next day.
she said. The record is convincing that Zehmer was not intoxicated to the extent of being unable to comprehend the nature and consequences of the instrument he 54 . She was asked whether she saw Lucy offer Zehmer any money and replied. This is all a joke. Mr. . “I will bring you $50. that the whole matter was a joke. that the writing was not delivered to Lucy and no binding contract was ever made between the parties.” Then “they jotted down something on paper … and Mr. In his testimony Zehmer claimed that he “was high as a Georgia pine. and wasn't going to sell his farm. “I will give you so much for the farm. He paused at the door and said.” The waitress referred to by Mrs. Lucy reached over and said.' He took it and put it in his pocket.” She said Zehmer told Lucy he didn't want his money “because he didn't have enough money to pay for his property. and her answer was this: "Time he got through writing whatever it was on the paper. She was some distance away and did not see either of them sign the paper. if not bizarre. ‘Well.” She said you could tell definitely that he was drinking and she said to her husband.” He looked at it. It is contradicted by other evidence as to the condition of both parties. “Zehmer.000. defense. yes. The defendants insist that the evidence was ample to support their contention that the writing sought to be enforced was prepared as a bluff or dare to force Lucy to admit that he did not have $50. She was sweeping and cleaning up for next day. . She repeated on cross-examination that she was busy and paying no attention to what was going on. “You should have taken him home.” Both of them appeared to be drinking right much.000.I." before showing it to Mrs. said let me see it.” wheeled around and started for the door. clear evidence is required to sustain it. I am just about as bad off as he is. “You haven't got that much.” and Zehmer said. I have told you that I want my son to have it. Lucy reached over and took it.” That claim is inconsistent with his attempt to testify in great detail as to what was said and what was done.” Lucy then said at least twice.000. put it in his pocket and in about a minute he left. tomorrow is Sunday. Zehmer testified that when Lucy first came in “he was mouthy. 'Let's see it. [*500] Zehmer. “He had five dollars laying up there. She was asked whether she saw Zehmer put the agreement down on the table in front of Lucy.” Lucy answered.” but he said. Her version was that Lucy kept raising his offer until it got to $50. When made to the writing admittedly prepared by one of the defendants and signed by both. It is an unusual. and rendered of no weight by the testimony of his wife that when Lucy left the restaurant she suggested that Zehmer drive him home. I will give you that much. “Oh. you have sold your farm.00 tomorrow. No.” and that the transaction “was just a bunch of two doggoned drunks bluffing to see who could talk the biggest and say the most. . Introduction: The Principle of Mutual Assent 5 to sell the farm. I will bring it to you Monday. She said she heard Lucy tell Zehmer.” When Zehmer came in they were laughing and joking and she thought they took a drink or two. they didn't take it.
The appearance of the contract. with the high-price whiskey you were drinking last night you should have paid more. 483. Lucy's objection to the first draft because it was written in the singular. because he thought he was too tight. . Lucy said something to the effect that ‘I have been stuck before and I will go through with it. that Zehmer was jesting about selling his farm to Lucy and that the transaction was intended by him to be a joke." After receiving the report from his attorney that the title was good he wrote to Zehmer that he was ready to close the deal. contrary to what we think the evidence shows. didn’t know what he was doing. the completeness of the instrument that was executed. nevertheless the evidence shows that Lucy did not so understand it but considered it to be a serious business transaction and the contract to be binding on the Zehmers as well as on himself. On Sunday. “well. §.” Lucy testified that at the time Zehmer told him that he did not want to “stick” him or hold him to the agreement because he. Lucy. was too tight and didn’t know what he was doing. Zehmer. The very next day he arranged with his brother to put up half the money and take a half interest in the land. 627.” A disinterested witness testified that what Zehmer said to Lucy was that “he was going to let him up off the deal. That was cheap. and hence that instrument is not to be invalidated on that ground.’ ” If it be assumed.000. there was a social gathering in a home in the town of McKenney at which there were general comments that the sale had been made.000. Taliaferro v.000 was mentioned. he was back at Zehmer's place and there Zehmer told him for the first time. Tuesday. The day after that he employed an attorney to examine the title. in fact I think you would get stuck at $50. C.00 would be a good price. It was in fact conceded by defendants' counsel in oral argument that under the evidence Zehmer was not too drunk to make a valid contract. the discussion of what was to be included in the sale. Zehmer to sign it also. the provision for the examination of the title. If I had wanted to sell $50. Mrs. whereupon she stepped up and said. Lucy said. the taking possession of it by Lucy with no request or suggestion by either of the defendants that he give it back. to which Lucy replied that he was not too tight. Contracts. that he had been stuck before and was going through with it. the rewriting to meet that objection and the signing by Mrs. including Lucy. 133.E. the day after the instrument was signed on Saturday night. who were talking about the transaction. 55 . and he wanted Mrs. Intent to Contract: Offer and Acceptance executed. The next night. Zehmer’s version was that he said to Lucy: “I am not trying to claim it wasn’t a deal on account of the fact the price was too low. .00. b. $50. p. Emery. are facts which furnish persuasive evidence that the execution of the contract was a serious business transaction rather than a casual jesting matter as defendants now contend. Zehmer testified that on that occasion as she passed by a group of people.J. that he wasn't going to sell and he told Zehmer "You know you sold that place fair and square. 124 Va. the fact that it was under discussion for forty minutes or more before it was signed.S..6 Chapter 1. . 674. 98 S.
The mental assent of the parties is not requisite for the formation of a contract. for a long time. that the contract represented a serious business transaction and a good faith sale and purchase of the farm.. Introduction: The Principle of Mutual Assent 7 Not only did Lucy actually believe. §19. 192 S. his undisclosed intention is immaterial except when an unreasonable meaning which he attaches to his manifestations is known to the other party..4. 390. as Zehmer admitted. In any event there had been what appeared to be a good faith offer and a good faith acceptance. If his words and acts. . Lucy said Zehmer handed it to him. An agreement or mutual assent is of course essential to a valid contract but the law imputes to a person an intention corresponding to the reasonable meaning of his words and acts. 361. judged by a reasonable standard. § 71. Lucy testified that if there was any jesting it was about paying $50. Clark on Contracts. Roanoke Oil Co. p. at p. 169 Va. In the field of contracts. followed by the execution and apparent delivery of a written contract.’ ” First Nat. §27. even under the defendants' evidence. 12 Am. was anything said or done to indicate that the matter was a joke.. Not until then. it is immaterial what may be the real but unexpressed state of his mind..J. They had argued about it and discussed its terms.Jur. “We must look to the outward expression of a person as manifesting his intention rather than to his secret and unexpressed intention. Zehmer said that after the writing was signed he laid it down on the counter in front of Lucy. Contracts. … The law. So a person cannot set up that he was merely jesting when his conduct and words would warrant a reasonable person in believing that he intended a real agreement.S. Contracts. 764. Exchange Bank of Roanoke v. §3. . .S. as generally elsewhere. Vol. Contracts.000 that night.I. Clark on Contracts. p. Both of the Zehmers testified that when Zehmer asked his wife to sign he whispered that it was a joke so Lucy wouldn't hear and that it was not intended that he should hear. p. 99. Whether the writing signed by the defendants and now sought to be 56 . ‘The law imputes to a person an intention corresponding to the reasonable meaning of his words and acts. At no time prior to the execution of the contract had Zehmer indicated to Lucy by word or act that he was not in earnest about selling the farm. §47. If the words or other acts of one of the parties have but one reasonable meaning. 114.54. The contract and the evidence show that he was not expected to pay the money that night. 4th ed.E. §32. p.74. Both said that Lucy put the writing in his pocket and then offered Zehmer $5 to seal the bargain.J. Restatement of the Law of Contracts. 770. manifest an intention to agree. judges of an agreement between two persons exclusively from those expressions of their intentions which are communicated between them. p. 4th ed. 17 C. therefore.. 515. but the evidence shows he was warranted in believing. C. I.
. or was a serious offer by Lucy and an acceptance in secret jest by the defendants. Intent To Contract: Offer and Acceptance enforced by the complainant was the result of a serious offer by Lucy and a serious acceptance by the defendants. . saying that of course he had not been serious earlier in the day. Falstaff. N.000. sometimes the impaired mental state of one of the parties prevents that person from having the legal capacity to enter into a contract. after Francis had had the car towed to his home. who was known by all to have a very low I. Once a year he invited a number of people to his remote home on Indian Island for a weekend of nonstop bridge. Mr. said.8 Chapter 1. Problem 2 John Falstaff bought a new car for $15. Owen was a fanatical bridge player.. As we shall see in Chapter 6.Q. Francis showed up at the bar where John was still consoling himself and put $1. Later that day. NOTE The court mentioned the concession at oral argument that Zehmer was not too drunk to contract.” Francis said. “It’s yours for $1. Reversed and remanded. When John asked. The complainants are entitled to have specific performance of the contract sued on.” John raised his stein of beer and toasted Francis. .500 on the counter in front of John. “I love your new car. in either event it constituted a binding contract of sale between the parties. but the first day he drove it to work it broke down on the highway and stranded him. “What’s this?” Francis explained that it was the payment for the car. Is Francis entitled to the car in your opinion? Problem 3 U. “Thanks. John finally managed to get to his neighborhood bar where he loudly trumpeted his disgust with the car. I’ll do it now and pay you this evening. Francis Feeble. He sent the invitations two months in advance and followed them with phone calls to make sure everybody was really going to 57 . The decree appealed from is therefore reversed and the cause is remanded for the entry of a proper decree requiring the defendants to perform the contract in accordance with the prayer of the bill. When the busboy.” Everyone in the tavern laughed as Francis rushed off to rescue the car.500 – just go get it. replying. John refused to take the money.
See Weitzman. Owen that he would make the journey but backed out at the last minute and went to a pinochle tournament instead. but contracts regulating matters essential to the marital relationship are viewed with great suspicion.U. and that seek to control the disposition of the parties’ respective interests upon death or dissolution. Recently some courts have become involved in disputes arising from agreements between unmarried cohabitants. a spouse employed in a business must be paid wages. so he cancelled the entire weekend and sent everyone home. For example.750. Bull. See McDowell. a retired jurist named Justice Wargrave. He then sent Wargrave a bill for $2. Legal Regulation of Marriage: Tradition and Change. whether by death or divorce.W. Must Justice Wargrave pay? NOTE ON SOCIAL CONTRACTS The existence of a familial relationship may affect the ability to create an enforceable contract. 54 Wis.g. On the other hand. agreements for bearing children are unenforceable. assured Mr. 62 Cal. 3 (1981). When guests arrived at the island. for example. 265. Rev. Typically. 43 (1965). See. unbroken marital relationship. courts generally will not involve themselves with living arrangements within the home.g. The enforceability of an alleged contract in this context is discussed in Chapter 6. 1169. The courts limit their enforcement to matters of dissolution. For example. such as privileges to be afforded children from prior marriages. Massey. custody of children and apportionment of property. e. Similarly. Peterson v. the expenses he had undergone in setting up the weekend. Kraemer v. Kraemer. courts will not usually concern themselves with enforcing domestic agreements controlling relations within the marriage.2d 912 (1952). courts are not likely to be confronted with these kinds of disputes in an ongoing marriage since breaches serious enough to result in litigation also terminate the marriage.I Introduction: The Principle of Mutual Assent 9 come. 155 Neb. e. Owen was dismayed to find that he did not have enough people for the complicated bridge tournament he had planned. a spouse can bring an action to recover on a loan made to the other spouse for an independent business enterprise. L. As a practical matter. Rev. See. 58 . courts have been traditionally reluctant to become involved in disputes within a harmonious.2d 253 (1960). 45 B. A husband and wife are not precluded from enforcing such agreements as they make in a commercial transaction. L. Similarly. One of the guests. 352 P. See Loeb. The law does recognize some spousal agreements that affect the relationship: agreements that anticipate the eventual dissolution of the marital relationship. 76 Nev. 829. Prenuptial and Postnuptial Agreements. Contracts in the Family... B. 53 N. 1270 (1974).
But it is an elementary principle. Ranson v Kitner. the law infers some damage. In addition to a cause of action for trespass. that the defendant had entered on the unenclosed land of the plaintiff. was. but it is governed by the ordinary rules applicable to negligence actions. the plaintiff might have a cause of action for ejectment. This. 59 . We are here concerned only with intentional trespass to land. A judgment in her favor would entitle plaintiff to the sheriff’s help in removing the defendant from her land. rather than just having been on it temporarily. into the close of another. and therefore unlawful entry. a quiet title action would lie. but the defendant is claiming to own it. 285 N. 2.C. Stepp Supreme Court of North Carolina.. the interest has been described as the right to exclusive possession of land.6. * * * RUFFIN. there is error in the instructions given to the jury. page 24. the word trespass may be used to describe the kind of interest that defendant has invaded. the shrubbery. 371 This was an action of trespass quare clausum fregit. If the plaintiff is in possession of the land. note 2. with a surveyor and chain carriers. Thus. 55 Misc. Inc. and the extent of injury to it therefrom. The amount of damages may depend on the acts done on the land. 156 Tex. Traditionally. claiming it as his own. if nothing more. 382. M. and new trial ordered. & M. the treading down the grass or herbage. TRESPASS TO LAND Dougherty v. that every unauthorized.2d 286. found a verdict for the defendant. and the plaintiff appealed. but without marking trees or cutting bushes. is a trespass. In the opinion of the Court. his Honor held not to be a trespass. NOTES AND QUESTIONS 1. Judgment reversed. Is the trespass intentional when the defendant enters the land in the honest and reasonable belief that it is his own? See Glade v. Restatement (Second) of Torts § 165. Cf. Utilities. and actually surveyed a part of it. Ejectment would lie if the defendant was in possession of the land. 645 (1956) (dictum). CHIEF JUSTICE. 295 S. before his Honor Judge Martin. 3. 1835 18 N.2d 121 (1967). The only proof introduced by the plaintiff to establish an act of trespass. There may be negligent trespass. page 23 and Serota v.W.Y. One of these is that when the entry upon the land is merely negligent.2d 642.S. and the jury under his instructions. From every such entry against the will of the possessor. or as here. tried at Buncombe on the last Circuit. Dietert. 387. proof of some actual damage is essential to the cause of action.
there is no room for the application of the maxim. 25 (1906). Steenberg Homes. and repeatedly threatened and harassed the tenants. it would not be possible to acquire a “prescriptive” right.4. Street. 60 . 58.2d 815 (1996) (where alleged trespass is deliberate and accompanied by aggravating circumstances. When a trespassory invasion is found. those too are recoverable in the trespass action. seeking to persuade tenants to vacate a townhouse. 175 Kan. 267 P. entered the premises without their consent. Marcel. Longenecker v. 209 Wisc.2d 154 (1997) (upholding punitive damages award even though no compensatory damages were proved where defendant had bulldozed a path in the snow across plaintiff’s field to deliver a mobile home despite plaintiff’s repeated refusals to permit the defendant to cross his land to make the delivery). without which the defendant’s conduct. Zimmerman. Is the rule justified today? What about punitive damages? Should they be available if only nominal damages were awarded? See Jacques v. one reason underlying the rule was to keep the peace. At common law. if the law declared that there was no cause of action for invasions that caused only nominal damages. 563 N. the fact that defendant’s conduct was socially useful or even beneficial to plaintiff does not affect liability.2d 543 (1954). 31 Wyo. blocked the driveway. Foundations of Legal Liability. Johnson v.E.. Sweeney. 5. plaintiff will be awarded nominal damages if there are no actual (compensatory) damages.W. de minimus non curat lex. if repeated. 6.2d 605. if the plaintiff does suffer compensatory damages. changed the locks on the garage. On the other hand. 222 P. Inc. might ripen into a prescriptive right. Hence. 719. Why nominal damages when the trespass does no harm? Why bother? The explanation sometimes given is that the action of trespass is frequently either a suit intended to try title or is directed at the vindication of the legal right. See 1 T. 251 Va. Of course. In a trespass action. 465 S. 577 (1924). What about emotional distress damages? Defendant landlord. emotional distress damages may be recovered even in the absence of physical injury). v. See Harmony Ditch Co. 1.
1835 Facts: D apparently thought that the land was his. and P appeals. so he went onto P’s land with a surveyor. Holding: The trial judge was wrong. Stepp. that just increases the amount of money that P gets.Sample Brief: Dougherty v. the trial judge thought that if there wasn’t any damage. D might argue: No harm.) The law infers damage. NC Supreme Court. So if D does do actual damage. However. If I didn’t hurt your land. Stepp Dougherty v. even if we have to pretend that the “damage” was walking on the grass. 61 . Procedure: Trial judge directed a verdict for D. there couldn’t be trespass. Issue: Whether a plaintiff must show actual injury to the land to win a case for trespass? P might argue: Going onto my land without my permission violates my property rights. so D should have to pay something for that. no foul. Reversed and remanded for a new trial. why should you be able to sue? Law: Elements of trespass: without permission (unlawful) entry onto land of another actual damage isn’t required Reasoning: (Apparently. and they surveyed the land. they didn’t do any damage because they didn’t mark any trees or cut any bushes.
) The law infers damage. D’s argument: No harm. no foul.Sample Brief: Dougherty v Stepp. So even if D does do actual damage. the trial judge thought that if there wasn’t any damage. However. Law Elements of trespass: • without permission (unlawful) • entry • onto land of another D went onto Land belonging to P Facts No facts to show P gave permission Reasoning (These four elements are clearly met. they didn’t do any damage because that didn’t mark any trees or cut any bushes. that just increases the amount of money that P gets. and P appeals. there couldn’t be any trespass. If I didn’t hurt your land. 1835 Issue: Whether a plaintiff must show an actual injury to the land to win a case for trespass. so D should have to pay something for that. even if we have to pretend that the “damage” was walking on the grass. why should you be able to sue? .) 62 actual harm isn’t required to win the case • intent (we got this from notecase) the only intent required is the intent to go onto the land – it doesn’t matter whether you know it’s someone else’s land they surveyed the land. P’s argument: Going on to my land without my permission violates my property rights. Procedure: Trial judge directed a verdict for D. (Apparently. NC Supreme Court.
She crossed a little brook and walked into a clearing. 63 .Sample In-Class Essay Trespass to Land “The Hills Have Eyes” Leah and Jim own 240 acres in New Hampshire. they posted “No Trespassing” signs around the boundaries. Can they win? Discuss and decide. They live in Maryland. Leah and Jim want to sue Maria for trespass to land. There are no fences around the land. However. There she saw Leah and Jim having a picnic. but they visit their New Hampshire property as often as they can. They plan to build a house there eventually. Shortly after they bought the land. Maria had walked right through the boundary without seeing any “No Trespassing” signs. because the piece of land is so big. Maria was walking through the beautiful New Hampshire mountains. sometimes the signs are rather far apart.
it won’t make any difference that M didn’t know that she was doing wrong: she was purposefully propelling herself onto L and J’s land by walking there. so this element is met. That is always sufficient for entry. M walked right through the boundary of L and J’s land. the entry itself is the injury. Because there was no fence. Here. Finally. She wasn’t carried there against her will. 64 . Because all the elements are met and M has no counter-arguments. she wouldn’t know that she was entering land that she was forbidden to enter. which broke the close. Intent means either entering the land on purpose or knowing with substantial certainty that one will enter the boundaries of the land. L and J can still win. M was walking through the mountains and crossed L and J’s unfenced boundary without seeing any “No Trespassing” signs. So the intent element is met. Instead. it isn’t necessary for L and J to show that M actually harmed the land. L and J had posted their land with “No Trespassing” signs. So even though M was just walking and hurt nothing.” M walked onto part of L and J’s 240 acres of land. However. However. The whole point of putting up those signs was to tell strangers like M to stay out because they didn’t have permission to enter the land. So this element is met. M wouldn’t know that she was crossing a boundary from one parcel to another. The next element is unauthorized (no permission) or unlawful. It doesn’t matter whether one knows that one is going onto the land of another. The next element is “onto land of another. to win the case. The next element is entry. So this element is met. The first element is intent. Here.Sample Answer to In-Class Essay “The Hills Have Eyes” The issue is whether Leah (L) and Jim (J) can win a trespass to land case against Maria (M). they will get only nominal damages because there is no injury for which to allow them compensatory damages. L and J will win. and because she saw no signs. so M was actually on their land.
M wouldn’t know that she was crossing a boundary from one parcel to another.Sample Template Answer to In-Class Essay “The Hills Have Eyes” Students: Note that the text in this template is exactly the same as the text in the paragraph-by-paragraph answer for this essay question. The point is that the template helps you to organize the pieces of the answer. R – rule: (When we did this essay in class. E – element: The first element is intent. M was walking through the mountains and crossed L and J’s unfenced boundary without seeing any “No Trespassing” signs. R – reasoning: Because there was no fence. After you practice this pattern enough. you will have a template in your head that will help you organize your answer. However. other than to say that unauthorized means “no permission. R – reasoning: The whole point of putting up those signs was to tell strangers like M to stay out because they didn’t have permission to enter the land. we didn’t have a rule for this yet. and because she saw no signs.”) F – facts: Here. she wouldn’t know that she was entering land that she was forbidden to enter. R – rule: (When we did this essay in class. C – conclusion: So this element is met. E – element: The next element is unauthorized (no permission) or unlawful. we didn’t have a rule for this yet. L and J had posted their land with “No Trespassing” signs. It doesn’t matter whether one knows that one is going onto the land of another.) 65 . R – rule: Intent means either entering the land on purpose or knowing with substantial certainty that one will enter the boundaries of the land. It will become automatic. C – conclusion: So the intent element is met. F – facts: Here. E – element: The next element is entry. She wasn’t carried there against her will. Issue: The issue is whether Leah (L) and Jim (J) can win a trespass to land case against Maria (M). it won’t make any difference that M didn’t know that she was doing wrong: she was purposefully propelling herself onto L and J’s land by walking there.
the entry itself is the injury. R – reasoning: so M was actually on their land. One conclusion was that L and J can still win. L and J can still win. the other was that there was no injury to give them compensatory damages.) R – rule: Finally. we didn’t have a rule for this yet. L and J will win. C – conclusion: (Note that two conclusions were slipped into the reasoning. That is always sufficient for entry. 66 . F – facts: So even though M was just walking R – reasoning: and hurt nothing.) C – final conclusion: Because all the elements are met and M has no counter-arguments. to win the case. above. they will get only nominal damages because there is no injury for which to allow them compensatory damages. C – conclusion: So this element is met. R – reasoning: which broke the close. Instead. E – element: The next element is “onto land of another. E – element: (At this point.” R – rule: (When we did this essay in class. The part about not having to prove damages is a rule that further defines trespass. However. it isn’t necessary for L and J to show that M actually harmed the land. there are no more pieces that do have to be proved.) F – facts: M walked onto part of L and J’s 240 acres of land. we’re out of elements – that is. C – conclusion: so this element is met.M walked right through the boundary of L and J’s land.
Week Three: Multiple Choice 67 .
Week 3 Pre-Reading Questions (1) What are “divergent” and “convergent” thinking? Which is appropriate for multiplechoice questions? Why? What are the steps for solving multiple-choice questions? How are these steps similar to. what you have done before when solving multiple-choice questions? What are “transition words”? How many types are there? What are they? Why should you pay attention to and distinguish between the different types? What are the steps for analyzing each type? In what important ways are the memory demands in law school different than in other educational venues? What is the “Memory Chain”? How does it work? How do you create retrievable long-term memory? What steps can you use? What is “chunking” information? How and why would you do it? (2) (3) (4) (5) (6) (7) (8) (9) (10) 69 . or different from.
That is exactly what you do not want to do. first find out what law the question pertains to. • Your job is to figure out what you are being asked. The strategy includes not reading the facts first. Multiple-choice questions require you to figure out exactly which pieces of law are being tested. So your goal is to narrow your thinking. “What law is represented by this fact?” Your goal is to think of all the legal concepts that pertain to those facts. The only pieces of law worth thinking about are the pieces that relate to what the question is asking you. just as essays do. Multiple-choice questions require analytical reasoning skills.Divergent Versus Convergent Thinking: Making the Transition from Essay to MultipleChoice Questions “Divergent” thinking means opening up your mind to think of all possible pieces of law that might be reflected in the essay facts and the call of the question. you read the facts and ask. Instead. That is. Essay questions require you to think divergently. Divergent thinking is the opposite of what you must do on multiple-choice questions. you discuss as many legal concepts as those facts (and the call of the question) allow. That will make it easier to figure out which facts are important to the test writer. 71 . you must think convergently. which means limiting your mind to specific pieces of law. You do this by using an effective reading strategy. Reading the Multiple-Choice Question • Multiple-choice questions are meant to test concepts. Instead. Reading the facts first would encourage you to think about all the legal concepts that might have something to do with the fact pattern. When writing your answer.
• • • • Look for hints about what law is being tested.1. 6. and the law. • • Ask yourself. “How are these facts formatted?” 5. • The basic question is. but putting affirmative reasons on your decisionmaking. 3. 2. Look for the stars (who or what you are to focus on in the facts). Underline the law. Look for direction words. • If you can explain to yourself why you are picking one option and negating the others. Using your question. Read the options. “What law or attribute of the law is this fact pattern describing?” Ask yourself. Underline the direction words. Choose the option that answers your question. read the fact pattern. Go back to the options (also called “picks”). which facts am I looking for in the fact pattern that will help me analyze the question?” 4. Make a reasoning statement to check your answer. Read the call of the question. “Now that I know what law is being tested. 72 . then you are no longer answering things impressionistically. Form a new question. • • Look for the law. the stars. • • Eliminate the wrong options.
Chloe persisted. 73 . however. The manufacturer of the axe had neglected to insert a metal pin that secured the axe handle to the blade.” so underline that. If Chloe brings an action for battery against Chuck.” and mentally run through what you know about battery. a member of the “Save the Vegetation” movement approached him and began berating him for cutting the tree. shouting that Chuck was a “moronic. Chuck said. (C) (D) 1. and he had driven his pickup to the designated area. Read the call of the question. will she recover? (A) (B) No. He had begun to cut down a marked tree with his axe when Chloe. To “recover. crushing her clavicle.” Chloe must prove all the elements. Underline “battery. • • The law being tested is battery. because she intended to provoke Chuck. No.Example: Chuck had obtained a permit from the national forest service to cut some firewood in the national forest. “Get away or I’ll start cutting on people!” He swung his axe as if to strike her. because the manufacturer of the defective axe should be liable since the defective axe was the cause in fact of Chloe’s injuries.) Chuck told her that he had a permit to cut and to leave him alone. and Chuck’s previous chopping had so loosened the head that it flew off the axe handle and struck Chloe in the upper chest. so the question is asking you to decide whether the facts prove those elements. because a reasonable person would have been angered by Chloe’s remarks. because Chuck intended to frighten her. The direction word is whether Chloe can “recover. (“Save the Vegetation” members believed that plants were a higher form of life than animals and advocated a total ban on the killing of plants. Yes. Yes. murdering plant killer!” Intending to frighten Chloe away.
it could be the correct intent for an assault claim (so long as the “intent to frighten” is to frighten someone into thinking they are going to be contacted). Is that related to Chuck’s alleged battery on Chloe? Not likely. Read the options. 2. There is a very small possibility that it could give Chuck a defense.” Underline that. Is that related to battery? Yes. (B) and (C). Leave this as an option. Cross it out! • The law in (B) is “axe is cause in fact of injuries. then Chuck may lack intent to cause the contact. here. “reasonable person” is referring to a defense that can be used to justify battering someone because someone is “reasonably” being angered. because although it is not the correct intent for battery.” Underline that. Usually. because the contact must be offensive to a reasonable person.” Underline that. But that is not how “reasonable person” is being used here because. Form a new question. Because the only two good options both deal 74 . • The law in (A) is “reasonable person. Don’t choose (D) unless the facts give you specifics for Chuck’s defense. Focus on them and their respective roles. Is that related to battery? Possibly. not about the plaintiff’s intent. 3. because if the only cause of the injuries is a defective axe. we only care about the defendant’s intent. Leave this as an option. Is that related to battery? Possibly. but it’s unlikely that this is correct. • The law in (C) is “intended to frighten. • You only have two options left.” Underline that. Battery and assault are two of the intentional torts that allow tort-to-tort transferred intent.• The stars are Chloe (plaintiff) and Chuck (defendant). (B) will negate the intent element if it is correct. • The law in (D) is “Chloe intended to provoke. (C) will use Chuck’s intent to assault Chloe to transfer into a battery claim.
the only facts that are going to be relevant to the question are those that explain what Chuck knew about and what Chuck meant to do. 5. but this question focuses only on Chuck’s alleged battery. And when he swung at her to make her think that. given the question you’ve focused on? Chuck intended to frighten Chloe. • So Chuck did have the intent to make Chloe think she was going to be hit by the axe. if anything?” 4. 75 . (B) is bad because Chuck did have the intent for assault. struck Chloe in the upper chest. the intent for the assault can transfer over to the battery claim. 6. • (D) is definitely out now because her nasty words would not give Chuck a right to retaliate with harmful contact. He swung the axe at her as if to strike her. The axe head flew off the handle. Make a reasoning statement to check your answer. Using your question. And the question isn’t asking us about whether there may be a products liability claim. And the other elements of a battery are present to round out the battery claim. it ended up causing a harmful contact. The answer is (C). The manufacturer of the axe may be liable also. and crushed her clavicle. read the fact pattern. • Because Chuck had the requisite intent for assault and ended up committing a battery through his actions. • • Eliminate the bad options. • We also have a clear contact and clear harm.with intent. There is no defense here. • What are the most important facts in the fact pattern. Go back to the options. So the new question might be something like this: “What did Chuck mean to do to Chloe.
2.” or some other word or phrase that means “because”) If Only if Unless Because each of these means something different and creates a different relationship between the answer and the reasoning for the answer. understanding them must be part of your. No. The four most common categories of transition words are: 1. He immediately informed his friends and scheduled a big party. 4. For each of the four transition words. Down the block. As she headed into the house to use the telephone to call the police. it is important to understand what the transition words mean.” “for the reason that. D. There is also a transition word (“if”) in the call of the question. the test-taker’s. Yes. unless Dante meant to cause Penny apprehension about leaving the dog alone by the poolside. However. because shooting the gun in the air was not extreme and outrageous. if the bullet hit the dog in Penny’s yard. Where are the Transition Words? Transition words are usually found in one of four options or “picks” at the end of the question. Cooley Law School informing him that he had been accepted to begin law school in the Michaelmas term. Penny was very upset because her prize poodle had been struck by the bullet shot by Dante. each must be analyzed differently. if a question does contain them. strategy. No. Otherwise. Dante decided to “get rowdy” and began to shoot his Smith and Wesson . C.” “as. Not all multiple-choice questions contain transition words. Yes.357 Magnum into the air. Using them is a part of the test-writer’s strategy. Penny was lounging by her swimming pool and heard the gunshots. Example: Here is an example of a multiple-choice question with transition words in each pick. you may not understand what the question is asking. 3. Because (which can also be phrased as “since. B.Multiple-Choice Questions Understanding Transition Words What are Transition Words? “Transition words” are logical connectors. During the party. but only if the dog died as a result of the gunshot. Dante just received a letter from Thomas M. they will be found in the call of the question or even the fact pattern. you should learn the pattern of the pick and the steps for analyzing it. she noticed that her dog was lying on the ground with blood all around. therefore. 77 . If Penny sues Dante. Occasionally. will she win? A.
Sometimes the reason contains a rule: then you ask whether the statement of the rule is accurate. the answer is that Penny will win.The question is. Yes. So you need to go to step 2. So this pick is not obviously erroneous. assuming that Penny sues Dante. the reason contains law: “extreme and outrageous. The reason is that “shooting the gun in the air was not extreme and outrageous.” which is an element of IIED. Sometimes (as here) the reason contains facts: then ask whether the facts in the reason are true or whether they contradict what the fact pattern says. and we’ll have to read the facts before we know whether it contradicts the fact pattern. so it is not the right answer. and do not waste time asking whether Penny can prove that it is true. Pattern: answer because reason Here. 2. ********** No. Would doing something that is not extreme or outrageous make the plaintiff lose? If the tort is IIED. The reason is that “the bullet hit the dog in Penny’s yard. Ask whether the reason justifies the answer. Here. if the bullet hit the dog in Penny’s yard. Go on to the next pick. will Penny win on some tort? Now look at each pick. then the entire pick is false. Pattern: answer if reason Here. the answer is that Penny will not win. Do not question it. Here the reason sounds true: shooting a gun in the air might not be extreme and outrageous. Whatever is in the reason after an “if” 78 .” Steps for analyzing a “because” pick: 1. because shooting the gun in the air was not extreme and outrageous. ********** B. A. it would. Look at the reason and assume it is true. you can also evaluate whether the application of the law to those facts is reasonable. If the reason is not true. Look at the reason and ask whether it is true.” Steps for analyzing an “if” pick: 1.
Pattern: answer 2. What tort does that make you think of? Trespass to land. the answer is that Penny will win.” Steps for analyzing an “only if” pick: 1. legally significant. The reason is that “the dog died as a result of the gunshot. This is a way for the professor to add some new facts to the fact pattern and to see whether you know whether the new facts are. unless Dante meant to cause Penny apprehension about leaving the dog alone by the poolside. this reason is true for this pick only. In other words. Here. So this pick is erroneous and cannot be the right answer. ********** D. It makes it possible for Penny to win by proving an entry into the close that was unauthorized and caused harm. is the reason necessary for the answer to occur? Here. it doesn’t hurt. the question will be whether it is necessary for the dog to die for Penny to win either a trespass-tochattels or conversion claim. Penny can win if the dog is maimed. No. So you add the new facts in the reason to the fact pattern and ask whether those new facts are legally significant. Can Penny win only if the dog died? No. 2. Look at the reason and assume that it is true.is true for this pick only. Just as with the “if” pick. ********** C. trespass to chattels or conversion comes to mind. Ask whether the reason leads to or justifies the answer. unless reason 79 . Does the fact that a bullet entered Penny’s yard and struck her dog justify her winning a trespass-to-land claim? Well. but only if the dog died as a result of the gunshot. Neither trespass to chattels nor conversion requires that the dog die. or are not. once we know that the dog died. Yes. Lesser harm is sufficient. the pick talks about the bullet’s entering Penny’s yard. Pattern: answer only if reason Here. but lives. Here. Ask whether the reason is the ONLY thing that will lead to or justify the answer.
you can turn this pick into an “only if” format and follow the “only if” analysis steps. (Examples: “lose” becomes “win.” The ways an exception works is that the answer is true unless the exception applies. and whether adding the facts in the reason is the only way Penny can win. Look at the reason and assume it is true. It has nothing to do with being nervous about leaving a dog alone.” “constitutional” becomes “unconstitutional.” answer (win) only if 2. you must make the following changes to the option: 1. and ask whether those new facts are legally significant. this pick asks whether. and it will come out the same as if you used the word “unless” and followed the steps to analyze “unless.” Steps for analyzing an “unless” pick: “Unless” is the most complicated of the four common categories of transition words. Is that the only way for Penny to win an assault claim? Of course not. In the alternative. there are other picks referring to other torts that Penny could win on. Ask whether the reason is the ONLY thing that will change the answer. Penny will lose. so this can’t be the only way that Penny can win. First. and the only way for her to win is that Dante wanted to cause her apprehension about leaving the dog alone by the poolside. Furthermore. Now you can use the “only if” analysis steps to analyze the option. Penny won’t win.” 80 . Change the answer that is to the left of the transition word to its opposite. This is much easier for most students to analyze. in which case the answer is not true. The reason is that “Dante meant to cause Penny apprehension about leaving the dog alone by the poolside. So this pick asks whether. “apprehension” refers to the plaintiff’s seeing someone making a threatening gesture toward her. Change the transition word from “unless” to “only if.” “plaintiff” becomes “defendant.Here. So you add the new facts in the reason to the fact pattern.” “admissible” becomes “inadmissible. Just as with “if” and “only if. “Apprehension” should make you think of assault. To do this.” “yes” becomes “no.” the reason after an “unless” is true for this pick only.” etc. just given the facts in the fact pattern. In other words. the answer is that Penny will not win. “Unless” means “exception. without the facts in the reason.) 2. 1.
he knew with substantial certainty that it would have to land in someone’s yard.FINAL OUTCOME: The correct answer here is B. And the bullet did enter Penny’s yard without permission. 81 . A is wrong because Penny can win on an IIED claim because shooting a gun in the air in the middle of a party with a lot of people around in a residential neighborhood for no reason besides to get rowdy could be considered extreme and outrageous. D is wrong: we again already negated D because it is clearly erroneous to say that the only way Penny can win on assault is if Dante meant to make her nervous about leaving the dog alone. C is wrong: we already negated C because it is clearly erroneous to say that the only way Penny can win on trespass to chattels or conversion is if the dog dies. When Dante shot the bullet up into the air.
the option is wrong. If yes. the option is wrong. Ask whether the reason leads to or justifies the answer. If no. If yes.This is a chart that summarizes the analysis for each of the four categories: Category Because Step 1 Step 2 Ask whether the reason is true. the option might be the right answer. Ask whether the reason is the only way or is necessary for the answer to change to the opposite. Shortcut for “Unless” Turn the option into an only if. If Only if Assume that the reason is true. the option is wrong. If no. 82 . the option might be the right answer. Then assume that the reason is true. Ask whether the reason leads to or justifies the answer. Unless Assume that the reason is true. stop here because the option is wrong. If yes. If yes. the option is wrong. If no. the option might be the right answer. the option might be the right answer. the option might be the right answer. If no. If no. the option is wrong. (3) Add the reason. Ask whether the reason is the only way or is necessary for the answer to be true. (1) Change the answer to its opposite. go on to step 2 If no. (2) Add only if. Assume that the reason is true. If yes. Ask whether the reason is the only way or is necessary for the answer to be true. If yes.
find some multiple-choice questions.Multiple Choice: Focused Practice Step 2 in reading a multiple-choice question is to find the law in each pick. Third. You can take them from any source. looking at the call of the question and the law in the picks. First.___________________________ New question:________________________________________________________________ 83 .___________________________ D.___________________________ C.___________________________ New question:________________________________________________________________ Question number: A. This assignment is intended to give you focused practice on those two steps.___________________________ New question:________________________________________________________________ Question number: A.___________________________ C. write what law is suggested by each pick.___________________________ D. what are you looking for in the facts? Question number: A. Step 3 is to form a new question. Second.___________________________ B.___________________________ C.___________________________ B.___________________________ B.___________________________ D. write out the new question – that is.
___________________________ D.___________________________ New question:________________________________________________________________ Question number: A.___________________________ B.___________________________ New question:________________________________________________________________ 84 .___________________________ C.___________________________ B.___________________________ D.Question number: A.___________________________ C.___________________________ New question:________________________________________________________________ Question number: A.___________________________ B.___________________________ D.___________________________ C.
Pete and Dan had a longstanding feud. Pete called Dan several very offensive names.Introduction to Law Multiple-Choice Questions 1. got into his own car and followed Pete. D. Pat’s best argument to show that Dave is liable would be: A. If Pete sues Dan. Dave slapped Pat in the face. C. becoming angrier by the minute. Dave’s use of the knife constituted deadly force. Afterward. The only defense that Dave raised was self-defense. Dan. he intentionally swerved at Pete’s car to frighten Pete. Dave immediately drew a knife and stabbed Pat with it. Pat knew that the pistol was unloaded. Both battery and assault. Pat sued Dave for battery. Pete got into his car and drove away. B. Dave knew or should have known that he could safely and easily retreat without sustaining harm. Battery only. Dan caught up with Pete and started to pass Pete’s car. As he did. B. injuring Pat severely. During an argument. 85 . Pat pointed an unloaded pistol at Dave. As he veered away from Dan’s car. Pete should win on the following cause(s) of action: A. 2. but he thought that he was about to be forced off the road. Neither battery nor assault. Angry. Pete didn’t realize that Dan was the one swerving at him. Pat and Dave were arguing. Assault only. Dave was the initial aggressor. C. D. Pete’s car went into a ditch and Pete was injured.
which caused Pat to drop the shotgun. 4. if he fired at Pat to defend his land against a trespass. C. was hunting on his own land when he saw Pat carrying a shotgun and trying to enter Darcy’s land by climbing over a fence. again ordering Pat to leave. the court should find for: A.3. so Joan had no way to find out whether Galen was telling the truth. because the court will transfer Galen’s intent. Then he told Pat that he was trespassing. Betty. Galen called Joan and. Betty went on a camping trip to Michigan’s Upper Peninsula. because Joan did not see Galen injure Betty. B. Darcy. the court should find for: A. while disguising his voice. because Joan had no reason to expect to be touched by Galen. If Joan sues Galen for assault. and Betty had forgotten to take her cellular phone with her. Pat shoved Darcy away from him and pointed his shotgun at Darcy. who was armed with a pistol. Pat refused. After Betty left. Joan. Joan had a fifteen-year-old daughter. Joan didn’t know exactly where Betty’s campsite was. Joan. 86 . Galen. she suffered a minor stroke. D. so he decided to make some money for himself. Darcy ordered Pat to leave. Darcy placed his hand on Pat’s chest and gently pushed Pat backward. until Betty came home from the camping trip. Darcy. Galen. because Galen was aware that his conduct would frighten Joan. When Joan realized the whole thing had been a hoax. Joan was frantic for the next three days. Darcy waited until Pat got over the fence and onto Darcy’s land. told her that he had kidnapped Betty. Darcy then pulled the pistol from his belt and shot Pat in the arm. So Joan left the money in the specified location. still refusing to leave. If Pat sues Darcy for battery. He also said that he had already cut Betty’s left ear off and that he would kill Betty if Joan didn’t deliver a cash ransom to a particular place the next day. Galen knew that Betty was going camping.
Use the following facts for questions 5-7 Missile Company (MC) was building a space shuttle for the government. because Darcy did not use force against him until his entry onto the land was complete. if he fired at Pat to defend himself against Pat’s threat with the shotgun. because Darcy struck the first blow. D. which in turn caused Homesteader’s water well to collapse. which of the following facts. huge clouds of flame and smoke filled the air. The rocket-testing program is essential to national security. he knew that MC used the adjoining property for testing rocket engines. Pat. The engine blast also caused heavy vibrations in the ground beneath the test site. therefore. 6. During the test. No employee of MC had ever set foot on Homesteader’s land. solid-fuel rocket engine for its prototype shuttle. 5. C. if proved. and directing the blast from the engine downward into the ground. If Homesteader sues MC for trespass. Darcy.B. which of the following arguments. Pat. and particles of debris thrown from the rocket fell on an adjoining farm owned by Homesteader. D. If Homesteader sues MC on the theory that MC had engaged in an ultrahazardous activity. firing it up. MC tested the engine in a remote area of the desert by mounting it on a concrete test stand. B. would be the least helpful to MC in avoiding liability? 87 . MC had built a huge. if proved would be most helpful to MC in avoiding liability? A. C. When Homesteader bought the farm. MC’s conduct was completely privileged as a public necessity. which caused subsurface earth structures surrounding the site to collapse. MC had no reason to anticipate that the tests would cause any of the results that occurred.
C. Just as Daphne was walking out of the pizzeria with the pizza. Daphne browsed for a while and then bought a book. The subsurface earth structures that collapsed as a result of the tests were unstable before the tests took place. D. D. B. Other companies frequently carried out similar rocket engine tests in the same locale. Daphne drove to the pizzeria and parked the car. Fixing the damage to 88 . driven by Tammy. But instead of going straight in. C. She then went to the pizzeria to pick up the pizza. Daphne went to a bookstore next door.A. another car. Paula loaned her car to her girlfriend Daphne specifically so that Daphne could pick up a pizza that Paula had ordered for her and Daphne’s dinner. Homesteader’s farm is so far from the test site that no risk to Homesteader was foreseeable. MC exercised due care in selecting the personnel who chose the test site and conducted the tests. In the bookstore. MC built its test site and conducted the tests in conformity with safety procedures and standards used by all other companies engaged in similar tests. smashed into Paula’s parked car. Homesteader’s farm is so far from the test site that a reasonable person would not have foreseen the risk of harm that occurred. which had been ready for fifteen minutes. which of the following would be most helpful to MC in avoiding liability? A. 8. The tests conducted by MC did not pose a serious risk of harm to either Homesteader or his property. B. If Homesteader maintains his action against MC on the theory that MC was negligent. MC had exercised due care and caution in constructing the test site and in conducting the tests. 7.
However. If Bill sues Carol for his injuries. Bill jumped off the road into Carol’s yard. Daphne. who will win? A. he realized that it must be in Carol’s yard. He called Carol. Paula’s car would not have been damaged. while looking for the wallet in the flowerbed. a pickup truck coming in the opposite direction began to veer toward Bill. when he couldn’t find his wallet. As he picked himself up from the now-destroyed flowerbed. Later. Paula. because the family car doctrine imputes any of Daphne’s negligence to Paula. Paula. A. because she failed to repair a dangerous condition on her property. 9. and she told him to come on over to look for the wallet. because she did not create a foreseeable risk of damage to Paula’s car. Suddenly. although Bill didn’t realize it at the time. because but for Daphne’s delay in getting the pizza. Bill was severely burned. hurling himself into a flowerbed containing Carol’s prize-winning zinnias. Bill brushed up against an exposed electric wire that was partly hidden by a bush.Paula’s car will cost $2. and Paula didn’t have insurance. If Paula sues Daphne for negligence. C. Just as the truck was about to hit him. D. Use the following facts for questions 9-10. B. 89 . Bill was walking along an unpaved road on his way to work.000. Daphne. Carol is liable. because Bill entered with her permission. the truck’s driver had momentarily lost control of the truck while attempting to light a cigarette. his wallet fell out of his pocket. B. because Daphne exceeded her authority when she went into the bookstore. The road passed through a residential neighborhood with fine homes and lovely flower gardens. Carol is liable.
Once they were totally boozed up. Feeling humiliated. a military police officer (MP) happened by and challenged 90 . if the banana peel had been on the floor for an hour. as he was climbing through. was unaware of the dangerous condition of the wire. Gloria was shopping in a grocery store. D. No. C. Jesse was a member of an extremely right-wing paramilitary organization. B.C. A. While out drinking with some friends. Jesse and his friends drove out to the Army base to get revenge on the soldier who had beaten Jesse. D. Whether Bill is liable depends on whether he exercised due care. C. Yes. They surreptitiously approached what they believed to be the barracks where the soldier slept. A banana peel was in the middle of the aisle in the produce department. Jesse opened a window. If Gloria sues the store. because the banana peel was on the floor. The soldier easily bested Jesse. will she win? A. Bill is liable for any damage because the first time he went onto Carol’s land. Jesse got into a scuffle with a soldier from the nearby Army base. Bill is not liable for any damage to the zinnias because the first time he went onto Carol’s land. and was injured. She slipped on it. 12. Bill may be held liable for damage to the zinnias. unless a store employee knew that the banana peel was on the floor. his entry was privileged. he had no privilege to do so. Yes. If Carol sues Bill for damage to her zinnias. Yes. as a result. Carol is not liable unless she knew of the condition of the wire and failed to warn Bill of the danger. only if a store employee knocked the banana peel on the floor. 11. Carol is liable if she failed to reasonably inspect the property and. however. 10. D. but Gloria didn’t see it. fell. B. Jesse and his friends went to a different bar and drank a considerable amount of liquor.
painstakingly constructs an explosive device from readily available materials and hides it beneath the house where his exwife and her boyfriend are living. Voluntary intoxication is no defense to the crime of murder. 13. and then he detonates the device by remote 91 . Jesse is charged with murdering the MP. in which case he could only be convicted of murder if the prosecutor can show beyond a reasonable doubt that Jesse acted intentionally and with premeditation. At trial. Voluntary intoxication is a defense to the crime of murder if Jesse would not have killed the MP but for the intoxication. the court should instruct the jury on the defense of intoxication that: A. and Jesse struck the MP with the MP’s own baton. a chemical engineer. B. C.him. He waits until he is sure that both have had time to get home from their jobs. Intoxication is a defense to the crime of burglary if it prevented Jesse from forming the intent to commit a crime inside the barracks. The MP died immediately. D. Under which of the following circumstances would the named defendant be least likely to be convicted of the charged offense? A. The jurisdiction’s statutes also provide that intoxication is not a defense to a crime unless it negates an element of the offense. rape. burglary. Jesse and the MP began to fight. or arson. The jurisdiction’s statutes define murder as “the premeditated and intentional killing of another or the killing of another in the commission of a robbery. Jesse is guilty of murder despite his intoxication only if the prosecution proves by clear and convincing evidence that Jesse acted intentionally and with premeditation. Walter.” The statutory definition of burglary is identical to the common law except that the prohibited conduct need not occur in the nighttime.
he was stopped by Global employees as he tried to enter. Global’s security set up a command post in the lobby of the building. Yvette takes one of the woman’s credit cards to a store and tries to use the card to buy some expensive items. 14. Unaware of Global’s activities. they had just been mugged five minutes before and were on their way to notify the police when Hazel approached them. Farley is charged with attempted adultery. C. the couple was having an unusually bad day. To avoid interference by curious onlookers. who lived in an apartment in the building. and the store clerk refuses to complete the transaction. Walter is charged with attempted murder. Hazel is charged with attempted robbery. a married man who believes adultery to be a felony. Yvette is charged with attempting to obtain property by false pretenses. the jurisdiction they reside in has a statute that expressly states that any sexual act between consenting adults in private is not a crime. Because he was not carrying identification. Yvette’s boyfriend had stolen a woman’s purse. For this reason. the employees refused to allow him to enter. D. begins a torrid affair with Edna. the store’s credit reporting system indicates that the credit card was stolen. However. decides to rob them and use the money for groceries. Consequently. his ex-wife and her boyfriend had impulsively decided to spend the evening in a motel downtown. pulls out a gun. Rezzie was unable to establish his identity. totally demolishing the house. Global Studios was filming part of a movie at a large residential apartment building with the permission of the building’s owner. his best friend’s wife. seeing a well-heeled couple cross the park. Rezzie. was returning from a fishing trip late one night. Farley. Hazel. However.control. Unknown to either of them. Hazel approaches the couple. and tells them to hand over all of their money and valuables. B. After trying unsuccessfully to 92 . Unknown to Walter. No persons were allowed to enter the building without identifying themselves and explaining their reasons for being there. they had no money or valuables.
Kane called Poe a “deadbeat” and asked when he intended to pay his bill to Store. C. Rezzie was not imprisoned. Kane went to Poe’s house at 9 p. on a summer evening while many of Poe’s neighbors were seated on their porches. Poe. D. The following morning. he contacted the building owner. When Poe opened the door. When the merchandise was delivered. In a voice that could be heard two blocks away.convince them that he lived there. who lived a block away. The conduct of Global employees was not unreasonable. slammed the door shut. If Poe asserts a claim against Kane based on intentional infliction of emotional distress. Rezzie stayed with his sister. B. which of the following would be Global’s most effective argument in defense? A. Kane lost some front teeth. for collection. and he returned it for credit. a bill collector. Global employees did not know that Rezzie was entitled to enter the building. 15. who spoke with Global officials and arranged to have them allow Rezzie to enter. 93 . continued to bill him. Yes. Yes. Questions 15 and 16 are based on the following fact situation. because Kane was intruding on Poe’s property. Poe ordered some merchandise from Store. The door struck the bullhorn and jammed it forcibly against Kane’s face. Kane. turned the account over to Kane. Rezzie sustained no damage as a result of the conduct of Global employees. B. if Kane’s conduct was extreme and outrageous. who was standing just outside the door. greatly angered. Store refused to credit Poe’s account.m. raised an electronically amplified bullhorn to his mouth. will Poe prevail? A. and after 90 days. Poe decided that it was not what he had ordered. If Rezzie asserts a claim against Global for false imprisonment. As a consequence.
Customer selected three suits from a rack and went into a dressing room to try them on. because Gruner committed an assault. on this 94 . Skipper will A. all minors. Lose. Win.m. If Kane asserts a claim for battery against Poe. B. Yes.m. Questions 18 and 19 are based on the following fact situation. C. D. D. 16. Tabak. if Poe knew that the door was certain to strike the bullhorn. No. Gruner. unless Skipper also sues Gruner’s parents.. if Kane’s conduct was extreme and outrageous. and threw it. because Gruner committed a battery. Store was going to close at 7:00 p. B. No. They decided it would be fun to throw rocks at passing vessels. It landed next to Skipper. watching boats enter and leave the bay. Gruner picked up a large rock and threw it. No. Not win. however. to look at some suits that were on sale. 17. Gruner picked up a third rock and hurled it directly at Skipper. corrected his aim.m. Yes. Signs posted on the walls of the Store stated that closing time was 9:00 p. Gruner picked up another rock. because Poe had not first asked Kane to leave his property. The second rock landed even closer to Skipper. Win. C D. because Poe doesn’t owe the store any money. because of a special awards banquet for employees. will Kane prevail? A. unless Poe suffered physical harm. If Skipper sues Gruner.C. That rock hit Skipper right in the face. stood on the edge of a dock. The clerks were busy and did not notice that he came in. No. and Kahan. who was sleeping on the deck of his yacht. if Poe still owed Store for the merchandise. because Gruner was a minor. To show off his superior rock-throwing skills. Customer went into Store at approximately 6:45 p.
day. The employees, in a hurry to get to the banquet, did not check the dressing rooms or turn off the lights before leaving. When Customer emerged from the dressing room a few minutes after 7:00, he was alone and locked in. Customer tried the front door, but it was secured on the outside by a bar and a padlock, so he went to the rear door. Customer grabbed the doorknob and vigorously shook the door. It did not open, but the shaking set off a mechanism that had been installed because of several recent thefts committed by people who had hidden in the store until after closing time. The mechanism sprayed a chemical mist in Customer’s face, causing him to become temporarily blind. The mechanism also activated an alarm. A night watchman was just coming to work and heard the alarm. The watchman unlocked the front door, ran into the store, and grabbed customer. The watchman then identified himself, and Customer did the same. After assuring himself that Customer was telling the truth, the watchman allowed him to leave.
If Customer is to prevail on a claim against Store based on battery from the use of the chemical spray, Customer must establish that
A. B. C. D.
He suffered severe bodily harm. The spray mist was an offensive or harmful contact. He suffered severe emotional distress. His conduct did not cause the chemical to spray him.
If Customer sues Store for false imprisonment, Customer will
A. B. C. D.
Win, because he could not get out. Win, because he had no reasonable avenue of escape. Lose, because he was not injured. Lose, because Store’s employees did not know that he was in the dressing room.
Professor Merrill, in a lecture hall in her psychology course at a private university, described an experiment in which a group of college students rushed out and washed cars stopped at traffic lights during the rush hour. She described how people reacted 95
differently – with shock, fear, joy, or surprise. At the conclusion of her lecture, she said, “You understand, of course, that you are not to undertake this or any other experiment unless you first clear it with me.” Four of Merrill’s students decided to try the same experiment but did not clear it with Merrill.
One subject of their experiment, Carr, later said, “I was shocked. There were two people on each side of my car. At first, I was afraid. I thought they were going to attack me, and I even thought of driving away. Then I quieted down and decided that there were too many dirty cars in the city anyway.”
If Carr sues the students who washed his car, his best theory is
A. B. C. D.
Assault Battery Conversion False Imprisonment
Questions 21 through 23 are based on the following fact situation.
Husband and Wife, walking on a country road, climbed over a fence to get onto the adjacent property, owned by Grower. Husband and Wife did not know whose land it was. After climbing over the fence, Husband and Wife damaged some of Grower’s plants, which were near the fence. Grower saw Husband and Wife and came toward them with his large watchdog on a long leash, shouting that he was going to sic his dog on them if they didn’t leave. The dog rushed at Wife. Grower had intended only to frighten Husband and Wife, but the leash broke, and before Grower could restrain the dog, the dog bit Wife.
If Grower sues Husband and Wife for trespass to land, he will
A. B. C. D.
Lose, because Husband and Wife did not do enough damage. Win, if Husband and Wife were there without Grower’s permission. Lose, because there were no “No Trespassing” signs on the fence. Lose, because Husband and Wife did not know the land was Grower’s.
If Wife sues Grower for battery, will Wife prevail?
A. B. C. D.
Yes, because Grower wanted the dog to frighten Wife. Yes, because the bite caused severe injury. Yes, because Wife saw the dog coming at her. Yes, because Grower meant to confine Wife inside the fence.
If Husband sues Grower for assault, will husband prevail?
A. B. C. D.
No, because Grower’s dog did not bite Husband. Yes, but only if Husband was afraid for his life. Yes, if Husband saw the dog coming at him. No, because Grower did not mean for the dog to touch Husband. 97
Which of the following is a battery?
Dan steps into a crowded elevator, and his briefcase touches Paula’s leg. Paula is a stranger.
Dan taps Pam, a stranger, on the shoulder and asks whether she can tell him the time.
Dan pats Pauline, a stranger, on the bottom. Dan pats his wife Peggy on the bottom.
Which of the following is an assault?
A points a gun at B while B is looking at a classic car that is driving by. A raises his fist and starts walking toward B, who is looking at A from four feet away.
A tells B, “If you do that again, I’ll punch you in the nose.” A yells at B, “I hate you!”
In which of the following will the plaintiff not win?
Defendant built his summer cottage near plaintiff’s property line. Defendant did not know it, but one corner of his porch extended a few inches onto plaintiff’s property. Plaintiff sued for trespass to land.
Defendant loaned money to plaintiff, but plaintiff didn’t pay it back on time. Defendant met plaintiff on the sidewalk, where plaintiff was walking his toy poodle on a leash. Defendant scolded plaintiff, which upset the poodle. The poodle growled and barked. Defendant struck the poodle with his umbrella, which caused a gash on the poodle’s face. Plaintiff sued for trespass to chattels.
Plaintiff’s employee took a stereo system from plaintiff’s warehouse without paying for it. The employee used it for a week, then sold it to defendant. 98
Defendant was unaware that the employee did not rightfully own the stereo. Defendant later sold the stereo to another person. Plaintiff sued defendant for conversion. D. Defendant assaulted Robby in plaintiff’s full sight. Defendant thought that Robby was a mere passerby, but plaintiff was, in fact, Robby’s brother. Plaintiff sued defendant for IIED.
Joe went to a store and started asking questions in a loud and abrasive manner. Salesman said to the Store Owner, “This guy has got to be drunk. What a jerk.” Joe heard what Salesman said and was highly insulted. He said to Salesman, “If I weren’t in such a good mood, I would flatten your face.” Joe then prodded Salesman’s shoulder with his index finger.
If Salesman sues Joe, his best cause of action will be
A. B. C. D.
Assault Battery Trespass to land IIED
Which of the following is true?
Defendant was up to bat in a softball game. Plaintiff, the pitcher, struck him out. As defendant walked back to the dugout, he shouted, “I’m gonna kill that pitcher!” If plaintiff sues for assault, plaintiff will win.
Defendant was watching his girlfriend, who was across the street, and held up his hand to wave at her. Plaintiff, who was just in front of defendant, thought that defendant was about to hit plaintiff. Plaintiff was terrified. If plaintiff sues for assault, plaintiff will win.
Defendant was a convicted murderer. He was in a holding cell in the courthouse. Plaintiff, the judge’s secretary, walked by. The defendant shouted, 99
Flyer was a helicopter pilot employed by a radio station as a traffic reporter. D. She was extremely sensitive to allegations that she carried diseases. 29. but he was at least six feet too far away. That she had a reasonable expectation of privacy while exercising nude in her own home. If Plaintiff sues for assault. C. To recover for intentional infliction of emotional distress. and Dan was careless in not realizing this. Peggy can win if she can prove that A. That Flyer knew with substantial certainty that the land was Pauline’s.“I’m gonna get you. Damage to her land resulting from Flyer’s conduct. Peggy did not. plaintiff will win. She was extremely sensitive to allegations that she carried diseases. Accusing somebody of having SARS can cause that person to suffer emotional distress. which of the following facts or inferences must she prove to win the case? A. Using powerful binoculars. 30. B. If plaintiff sues for assault. D. he hovered over the home of Pauline. C. while flying in his helicopter. to his office. Defendant ran toward plaintiff with his fist raised. 100 . Dan accused Peggy of having SARS and demanded that Peggy resign from her job. Dan owned a meat-packing plant. baby!” He stretched his hand out between the bars to grab plaintiff. nor did Dan have any reason to believe that she did. he looked into her window to watch her while she was exercising in the nude. a long-time employee. in fact. but tripped over a chair and fell down when he was halfway to the plaintiff. One day. The altitude at which Flyer hovered overhead. If Pauline sues him for trespass to land. B. plaintiff will win. he summoned Peggy. Defendant walked into a bar. He saw plaintiff at the other end of the room. have the disease. One day.
sixteen years old. Donald wanted to fool Pat. Donald knew that Pat thought she might fall.” she said. but she made it. Donald lacked any intent to inflict emotional distress. which of the following will be the best evidence of his intent? A. answered the ad. D.” Pat had a nervous breakdown that required a six-month hospital stay.D. It is possible for Pat to recover for severe emotional distress even though she suffered no physical injuries. 31. 32. I do this all the time for kicks. Pat. four hundred feet above the street. Donald had intended for Pat to feel severe emotional distress. but she was hesitant when she heard that the job involved making deliveries to the top floors of many construction sites in the downtown area. Pat met Donald at the foot of a forty-story office building under construction. B. stating that he was looking for a waitress between sixteen and seventeen years old. B. On the way down in the elevator. Pat asked. 101 . “Did I get the job?” Donald laughed. Pat was afraid for her life. answering. C. I was only kidding. Donald knew that the walk was dangerous. Dan knew that accusing her of having SARS would cause severe emotional distress to an average person. The following facts apply to questions 31 and 32. and hand a can of soda pop to one of the workers. “There is no job. Donald placed an ad in the newspaper. C.” An action for IIED can arise from an act that was supposed to be a joke. Donald’s actions might be “extreme and outrageous conduct. but I need the money badly to help feed my little brothers. If Pat sues Donald for assault. I’m a construction worker. Which of the following is incorrect? A. “I’m scared to death. Donald ordered Pat to walk along a steel beam. D.
Patsy was divorced from her husband Joe, and she had custody of their four-year-old son. Patsy often let the son spend weekends with Joe at the home of Joe’s father, Dick. But one weekend, when the son was staying with Joe at Dick’s house, Patsy’s friend called up and said that she had heard that Joe was going to remove the son from the state permanently.
Panicked, Patsy ran to Dick’s house and pounded on the door. When Dick came to the door, Patsy demanded that Dick tell her where Joe and the son were. Dick knew that Joe had taken the son to the movies and would be back soon, but Patsy’s manner scared him, so Dick said that he had no idea where they were or when they were coming back. After Patsy left, she became highly upset. She went to the doctor, who gave her a strong tranquilizer. However, she remained upset until Joe brought the son back that evening.
If Patsy sues for false imprisonment, who should win?
A. B. C. D.
Dick, because Patsy did not suffer any physical injury. Dick, because he did not prevent Patsy from leaving his home. Patsy, because she was entitled to legal custody of her son. Patsy, because Dick had kept her from seeing or communicating with her son.
Penelope owned a beautiful tract of land in the Upper Peninsula of Michigan. The property was purchased by Penelope and used as a family get-away. About 200 yards of Penelope’s property was beachfront along Lake Superior. Donald lived along a stream that separated his land from Penelope’s. The stream flowed into Lake Superior. When Penelope bought the land, she had a channel dredged across her land from the stream to the lake at a point some distance away from the mouth of the stream where it emptied into Lake Superior. Donald, unaware that the channel was not a public waterway, frequently used it as a shortcut to the lake where he enjoyed
the fishing. Donald’s use of the channel in no way caused any damage to Penelope’s channel or to her land.
After Penelope learned about Donald’s use of the channel, she asked Donald not to use the channel any more. Surprised at learning the channel belonged to Penelope, Donald agreed not to use it any more.
If Penelope sues Donald for trespass to land, who will win?
Donald, because when he used the channel, he believed it was a public waterway.
Donald, if he discontinued using the channel after learning of Penelope’s ownership claim.
Penelope, but recovery is limited to nominal damages for Donald’s intentional use of the channel.
Penelope, unless Donald had no other navigable access to the lake.
When the traveling circus came to town, an elephant escaped its restraints and began wandering through the town. Bill and Ted were on their patio drinking a few pina coladas when the elephant passed through the back yard of their apartment building. Even though they believed they were hallucinating, Bill told Ted to call the police. Due to their quick action, the police were able to capture the elephant, but not before the elephant trampled through the landlord’s garden, destroying the very expensive landscaping.
If the landlord sues the circus owners to recover damages to the landscaping caused by the elephant, who is likely to prevail?
A. B. C.
Landlord, because the circus is strictly liable for the elephant’s trespass. Landlord, but the circus is subject to liability for trespass only. Landlord, but the circus is subject to liability for nuisance only. 103
Landlord, only if the circus failed to exercise the utmost care to confine the elephant or otherwise prevent it from escaping.
The following facts apply to questions 36 and 37.
Phil Powerhouse was the star weightlifter for the Cooley Heavyweights. After coming in last place at an important meet, Coach Dan dropped him from the squad. Powerhouse met with Coach Dan and asked to be let back on the team. Coach Dan told Powerhouse that he would never let him back on the team because everybody hated him. As Powerhouse was sadly walking out of the weight room, Coach Dan said to him, “You know Powerhouse, I hope you transfer to DCL because they deserve a loser like you.”
Later that night, Powerhouse wrote a suicide note in which he stated, “Coach Dan was responsible for my despondency. If I can’t be a weight lifter for Cooley, I don’t want to live.” After swallowing a quart of tequila with a dozen sleeping pills, Powerhouse passed out and fell to the floor in his dorm room. A few minutes later, Powerhouse’s roommate Pete Parker came in and saw Powerhouse on the floor. Pete read the suicide note and attempted to administer aid. Having no luck, Pete picked up Powerhouse and carried him to the first aid center. Powerhouse recovered from his overdose, but Pete suffered several compressed vertebrae in his back by carrying Powerhouse’s 260-pound body.
If Powerhouse asserts a claim against Coach Dan for his injuries, who will win?
Powerhouse, if Coach Dan intended to cause him to suffer emotional distress. Powerhouse, because Coach Dan’s remark did in fact cause Powerhouse to suffer emotional distress.
Coach Dan, because Powerhouse’s overdose resulted from his own voluntary act.
Coach Dan, unless he knew that Powerhouse was an extremely sensitive person.
If Pete Parker asserts a claim against Powerhouse to recover damages for his injuries, who will win?
A. B. C. D.
Powerhouse, because he did not intend to harm anyone other than himself. Pete, unless attempted suicide was a criminal offense in the jurisdiction. Pete, because Powerhouse intentionally put himself in a position of peril. Pete, because he succeeded in saving Powerhouse’s life.
Sandstone had a distinctive accent that Dave, also known to his friends as Weasel, could recognize anywhere as being from the south side of Cooleyville. Unfortunately for Sandstone, he was a really bad bookie who never seemed to have enough money to pay his gambling debts. Dave won a $1,000 bet on a football game from Sandstone, which made Sandstone angry. That night, while drinking in a dimly lit bar, Dave heard a voice: he knew it was Sandstone’s because of the unique south-side Cooleyville accent. Suddenly, the voice grew loud and sounded angry. Dave heard the voice say in a drunken tone, “I’m going to pound that little Weasel to a pulp!” A figure suddenly loomed out of the next booth. Fearing that he would be attacked, Dave leaped from his chair at the figure and punched him in the face, hearing his nose break. The bar manager heard the commotion and turned up the lights. Dave learned to his horror that he had actually knocked out Billy Joe Crooner, a world-famous country western singer who was unwinding after a local concert in town.
Crooner sued Dave for battery, and Dave claimed self-defense. Who should win this case?
Dave, if he honestly believed his action was necessary to prevent an attack on his person.
B. C. D.
Dave, if he reasonably believed such action in self-defense was necessary. Crooner, because an aggressor may never rely on self-defense. Crooner, because Dave attacked him without provocation. 105
Tony Drugdealer learned that his next-door neighbor Peter Pious was selling his house to a fellow church member. Drugdealer went to Pious’s house and told Pious that Pious, his wife, and children would all meet with “unfortunate accidents” if he sold to another church-going family. Pious then called his fellow church-goer and told him that the house was no longer available because he, Pious, had decided to take the house off the market.
If Pious sues Drugdealer for assault, will he win?
A. B. C.
Yes, if Drugdealer intended to place Pious in fear of physical harm. Yes, because Drugdealer’s conduct was extreme and outrageous. No, if Drugdealer took no action that threatened immediate physical harm to Pious.
No, because Pious’s actions removed any threat of harm.
Dante just received a letter from Thomas M. Cooley Law School informing him that he had been accepted to begin law school in the Michaelmas term. He immediately informed his friends and scheduled a big party. During the party, Dante decided to “get rowdy” and began to shoot his Smith and Wesson .357 Magnum into the air. Down the block, Penny was lounging by her swimming pool and heard the gunshots. As she headed into the house to use the telephone to call the police, she noticed that her dog was lying on the ground with blood all around. Penny was very upset because her prize poodle had been struck by the bullet shot by Dante.
If Penny sues Dante, will she win?
No, unless Dante meant to cause Penny apprehension about leaving her dog alone by the poolside.
Yes, but only if the dog died as a result of the gunshot. No, because shooting the gun in the air was not extreme and outrageous. 106
A.000. 41. Yes. The first thing in the morning. A contract would have arisen if a letter of acceptance had been mailed on February 1st. D. if the bullet hit the dog in Penny’s yard. On February 8th. Martin contacted Shaftum by phone on February 10th and was told that no contract between Shaftum and Martin existed. Terms are $30. On January 1st. C. Shaftum’s silence constituted an acceptance of Martin’s telegram on February 2nd.D. As a result. Advise immediately if you accept. I would much prefer a straight cash deal. Fox mailed the following offer to Sack. The offer included the following terms: This offer expires on February 1st. if the offeree has not caused an acceptance to be received by the offeror on or before that date. mailed a written offer to Martin Enterprises for the sale of a large tract of land. and it reached Sack on February 5th.” This offer was mailed on February 3rd. Shaftum and Howe Realty Corp.000 cash. Sack replied: “Your offer received and under advisement. A voidable contract arose on February 1st. B. Which of the following is the most correct statement? No contract between Shaftum and Martin arose on February 2nd. Would you consider 107 . a designated offeree: “I hereby offer to sell my property consisting of a house and lot at 337 Green Street for $100. the balance secured by a first mortgage. Questions 42 and 43 are based on the following fact situation. Shaftum entered into a contract for sale of the tract to another buyer but did not inform Martin of the transaction. On February 4th. on February 1st. but the telegraph company negligently withheld delivery to Shaftum until February 2nd. Martin sent a telegram of acceptance.
” Receiving this telegram on February 11th. B. B.000 cash?” On February 10th. Handing a letter to a mail carrier is not a proper posting of the acceptance. 108 . No contract exists because the offer relates to real estate. the court would probably hold that A. Sack simultaneously handed his unqualified acceptance to the mail carrier. No contract exists because Sack’s response of February 8th operated to terminate Fox’s offer. Fox mailed a revocation. 43. which arrived one day after the offer. What result? A. Sack’s purported acceptance was not timely. and immediately responded with a one-word telegram: “No.” 42.an immediate purchase for $90. The revocation was effective upon mailing. hence. as long as Sack had no knowledge of the contents of Fox’s letter when he handed his letter to the mail carrier. C. I accept your offer of February 3rd. Fox received this reply. C. D. If Fox now refuses to sell and Sack sues. Assume that the day after Fox mailed his offer to Sack. and the communications failed to establish the terms of the proposed agreement with sufficient definiteness. A valid contract exists. The acceptance was effective. As the mail carrier handed the letter of revocation to Sack. D. No contract exists because Sack’s communications to Fox both contained alterations of the terms of the offer. Sack wired back: “Telegram received. Tender the deed at closing. and the acceptance would be treated as a counteroffer. The outcome would depend on the court’s determination of whether Fox’s letter had been received by Sack before he entrusted the letter of acceptance to the mail carrier.
Stillwell received the highest grade in Professor’s class and now requests performance by Professor. Professor put this offer in writing and posted it on the student bulletin board. Professor posted the withdrawal notice on October 1st and told his class why he was forced to withdraw the offer. A promise to make a conditional gift. Preliminary negotiations. $1. Stillwell told Professor that the offer could not be withdrawn after he. The next day. Professor announced. September 1st. just so that I can win that prize. he would post a notice announcing the withdrawal of his offer. had started to perform. “Maximum award. Professor’s offer to his class on September 1st and the notice posted on the bulletin board the next day would be interpreted as: 44.” Shortly afterward.” Stillwell. B. that he would buy a bar review course for the student who received the highest grade in Professor’s Constitutional Law class. in class. he had no choice. Professor again stated that he had no choice. Stillwell. He apologized. told Professor before class began on September 8th. although he still wished to perform on his agreement. Later that day. but said that in the interest of the school. a student in Professor’s class.Questions 44-46 are based on the following fact situation. Professor stated that. the Dean of the law school told Professor that she had been receiving complaints from many of the other law professors: students were no longer studying for their other classes because they were concentrating all their efforts on Constitutional Law. and yesterday I purchased every constitutional law outline the bookstore had. I started studying three days ago. At the start of the school year.000. “I’m really going to give my best effort to get the highest grade in your class and win that prize. A. 109 . The Dean also stated that the Professor’s offer could be interpreted as an improper school policy. The notice stated the same essential terms with the added statement.
it would be an offer for A. If the Professor’s announcement to his class were held to be an offer. D. C. 45. creating a power of acceptance. A unilateral contract that became a bilateral contract when Stillwell began to perform. An ineffective revocation as to any student to failed to hear Professor’s announcement or read the notice on the bulletin board. because no offer had been made. An ineffective revocation as to Stillwell because Stillwell relied on the promise. D. C. 110 . 46. B. A bilateral contract. A mere statement designed to induce the students to study harder. Having no legal effect. D. A contractual offer. A bilateral contract or a unilateral contract. Professor’s announcement to his class of the withdrawal of the offer and the posting of the withdrawal notice on the bulletin board would most likely be interpreted as A. B. An effective revocation of the offer. according to the offeree’s intentions.C. A unilateral contract.
Practicing Multiple Choice Name:______________________________ Time Finished: ____________ Time Began: ______________ % Correct:___________________________ Misread transition word Misread Facts Total Time: _______________ Mismarked answer Question Number Correct Answer Your Answer Didn’t know the law or misapplied the law (write the correct law here) 1 2 111 3 4 5 6 7 8 9 10 My analysis of the practice .
Practicing Multiple Choice Name:______________________________ Time Finished: ____________ Time Began: ______________ % Correct:___________________________ Misread transition word Misread Facts Total Time: _______________ Mismarked answer Question Number Your Answer Correct Answer Didn’t know the law or misapplied the law (write the correct law here) 1 2 112 3 4 5 6 7 8 9 10 My analysis of the practice .
Practicing Multiple Choice Name:______________________________ Time Finished: ____________ Time Began: ______________ % Correct:___________________________ Misread transition word Misread Facts Total Time: _______________ Mismarked answer Question Number Your Answer Correct Answer Didn’t know the law or misapplied the law (write the correct law here) 1 2 113 3 4 5 6 7 8 9 10 My analysis of the practice .
Practicing Multiple Choice Name:______________________________ Time Finished: ____________ Time Began: ______________ % Correct:___________________________ Misread transition word Misread Facts Total Time: _______________ Mismarked answer Question Number Your Answer Correct Answer Didn’t know the law or misapplied the law (write the correct law here) 1 2 114 3 4 5 6 7 8 9 10 My analysis of the practice .
Practicing Multiple Choice Name:______________________________ Time Finished: ____________ Time Began: ______________ % Correct:___________________________ Misread transition word Misread Facts Total Time: _______________ Mismarked answer Question Number Your Answer Correct Answer Didn’t know the law or misapplied the law (write the correct law here) 1 2 115 3 4 5 6 7 8 9 10 My analysis of the practice .
Practicing Multiple Choice Name:______________________________ Time Finished: ____________ Time Began: ______________ % Correct:___________________________ Misread transition word Misread Facts Total Time: _______________ Mismarked answer Question Number Your Answer Correct Answer Didn’t know the law or misapplied the law (write the correct law here) 1 2 116 3 4 5 6 7 8 9 10 My analysis of the practice .
Practicing Multiple Choice Name:______________________________ Time Finished: ____________ Time Began: ______________ % Correct:___________________________ Misread transition word Misread Facts Total Time: _______________ Mismarked answer Question Number Your Answer Correct Answer Didn’t know the law or misapplied the law (write the correct law here) 1 2 117 3 4 5 6 7 8 9 10 My analysis of the practice .
Practicing Multiple Choice Name:______________________________ Time Finished: ____________ Time Began: ______________ % Correct:___________________________ Misread transition word Misread Facts Total Time: _______________ Mismarked answer Question Number Your Answer Correct Answer Didn’t know the law or misapplied the law (write the correct law here) 1 2 118 3 4 5 6 7 8 9 10 My analysis of the practice .
Some courses do not build on others. You will notice that some parts of this section repeat ideas already covered in this course. Some law school classes build on classes that you have already taken. The memory demands in law school are different in at least four important ways. Rote memorization was sufficient for most high school and college courses. the depth of your understanding has to be much greater that ever before. and that bar exam tests most of the law school curriculum. 119 . The purpose of this lesson is to summarize memory techniques that you can use (and that you may already be using) to maximize your memory. After the exam was over. (1) Depth. you cannot understand how the parts relate to each other. Most law school graduates take at least one bar exam. They memorized enough information to get through each exam. you will have to know old concepts to learn new concepts. Taking the bar exam is bad enough: having to learn three years’ worth of material right before the bar exam is horrifying. That is because much of this course is built on these proven memory techniques. most students were able to succeed by “cramming” just before exams. The amount of information for which you will be held responsible in each course is at least triple what you had to know in a college course. Simply understanding the concepts will not be enough if you have not memorized the details that flesh out each concept. (3) Continuity. law school requires you to use what you learn to analyze new situations. On the other hand. you will have to memorize a great deal of information. (2) Quantity.Maximizing Memory (or “How Am I Going To Remember All this Stuff?”) Overview: In college. but they do build on information that you learn throughout the course itself. If you do not learn the information as you go. For these courses. But that was usually okay because many college courses of study do not require students to build on information from previous semesters. How Memory is Built: The following chart (“The Memory Chain”) demonstrates the stages of human memory. (4) The Bar Exam. However. Thus. much of the information disappeared from memory.
recite. and review to move into long-term memory Long-Term Memory Store and file What you use remains in active memory storage Active Storage Find and Retrieve Inactive Memory Can’t Retrieve 120 .The Memory Chain Sensory Storage Record and Fixate 7-second storage Short-Term Memory 20-minute duration Must organize.
They wrote on the board. you put it into your sensory memory. 121 . Every moment. you cannot learn the right things: your brain can only record and analyze what you have focused on. But even if you are not daydreaming. However. And information only moves into your sensory memory if you focus on it. think about relationships among the numbers.(1) Sensory Storage (also called immediate memory). or do something else to keep the number in your memory. Remember. You need to focus on elements. etc. Sensory memory will retain the number just long enough to dial it – approximately seven seconds. you will miss important information. It’s also likely that your professors used familiar visual and verbal cues to tell you what was important. specific pieces of reasoning. “This is important!” In law school. the parts are different. rules. the rumbling of your stomach. The only way to keep the number beyond about 7 seconds is to do something with it – write it down. Most of these stimuli pass by without your ever noticing them consciously. Your immediate problem is one of focus. sensory memory is only the first step in the memory chain. If information does not first move into sensory memory. keep repeating it. focus is still a problem because you have to learn what to focus on. social policy. The light in the room. The patterns are different. your mind is bombarded with thousands of stimuli from both inside and outside your body. the process of legal reasoning. If you are daydreaming. But if you get distracted before you can dial. – and at first these are likely to be unfamiliar. sounds. and they said things like. The questions you must answer are different. Much of the difficulty in law school centers on your having to learn to focus on different information than ever before. the number evaporates from your memory. specific facts. they gave you handouts. This will move the number into short-term memory. If your attention is focused on the wrong things. it can never get into any subsequent stage of memory. if you focus on a stimulus. and you are taking notes. The problem of focus in law school: Imagine that you are in one of your law school classes. the soreness of a muscle – thousands of tiny stimuli are competing for your brain’s attention. this was not a problem because you knew from experience what parts of the information were important. In college. the number went into sensory memory. the air temperature. The professor is lecturing. Example of sensory memory: Calling for pizza delivery Have you ever looked up the number for pizza delivery and then been distracted by something before you could dial? Did you forget the number and have to look it up again? When you focused on the number. thoughts.
Think about the relationships among numbers.” Then repeat these parts to yourself. And “00” is easy to remember because many business numbers end with “00. Write it down or keep repeating it. (Organize and recite.” Then repeat the parts to yourself. That gives you “00. 1. put the numbers on a musical staff and think about the tune they will create (as in Close Encounters of the Third Kind) If you are mathematically inclined.) 4. the “456” part might be easy to remember. recite it. think of some other reason that “55” might be significant). In the pizza delivery example given above. (Organize and recite. “456” is easy because those three numbers are all in a row.Calling for pizza delivery – revisited. pretend the telephone number is 456-5000. or both. If you are musically inclined.) 3. you get 10. which ends in 0. Look at the parts and associate them with something.) 2. (Organize and recite.” If you add 5 and 5. If it’s a local number. (Recite. How could you move this telephone number into your short-term memory? Organize the information.) ______________________________________________ ______________________________________________ 6 ______________________________________________ 5 5 5 ______________________________________________ 4 ______________________________________________ 0 0 9 8 7 6 5 4 3 2 1 0 Ξ Ξ Ξ Ξ Ξ Ξ Ξ 122 . “55” is the year the Brooklyn Dodgers finally won the World Series (if you don’t like baseball. “55” is easy because it just repeats the middle number from “456. you can put the numbers on a graph and think about the pattern they create.
You won’t be able to memorize every single detail of every single case.. underline. and see how the parts fit. Preview each case by using these questions: What is the law? What are the rules? What facts fit the law? How did the court reason? What was the outcome of the case? 2. Many law students decide not to remember materials that they study until they start to make outlines. For that day’s assignment. How do you create retrievable long-term memory? Two things are necessary: the first is having the right attitude. and take notes. Taking good notes will allow you to further manipulate the information so that you can put it into long-term memory. but you will lose most of the information from your short-term memory. Planning to remember means that you actually intend to remember information as you encounter it. (Focus!) Organize the information to see the Big Picture. contained and (b) the relationship 123 . Space the learning over time by reciting the information. However.(2) Short-term memory only lasts for approximately twenty minutes. The Right Attitude: Planning to Remember. Restatement. overwhelmed feeling that many students report. find the parts. and some students don’t start outlines until week 12. That’s far too late. It accounts for the sinking. etc. Reading assignments 1. The “shortness” of shortterm memory explains why good note-taking skills are so important. The Right Process: SOS. Then read. This is memory that can potentially last a lifetime. what is somewhat important. 3. the second is using the right process. SOS I. (3) Long-term memory. So you have to use judgment to decide what is really important. Three steps are necessary to build long-term memory. 3. The four steps are: 1. out loud or in writing. A. stressful. Select the information to remember. frequently. You may completely understand everything that is going on in class. Not coincidentally. statute. you use most of these steps to move information into your sensory and short-term memory. and what is not important at all. The final stage is long-term memory. think about (a) what pieces of law each case. Select the important information. not all long-term memory is useful because not all long-term memories are retrievable. 2. The following outline describes these steps and how each step fits with law school.
3. Organize. Take notes right into your case brief.”) The number of parts in each section. Think about what each concept means: what are the critical attributes of each concept. what would not be an example of each concept. B. F. Get the Big Picture first. E. Find the main points and sub-points and highlight them.) Because they do not usually show how ideas are related. II. or a graphic organizer such as a T-chart. (Example: HOMES – mnemonic for the names of the Great Lakes. continually ask yourself what topic the professor is discussing. This may be a numbered list. For each class. and acronyms. how is the concept different from other. probably organized the information for you. plus or minus 2. As the professor lectures. Do not assume that the professor will write all the important information on the board. Then you will be ready to focus on the important information in each class. and how are the concepts related? (See the section on “Concept Development and Data-Organization Devices. D.”) Use mnemonics sparingly. Write this information down in an outline.between the law and facts for each case. what are examples of each concept. Then summarize them in the margin with questions. or sub-subsection should not exceed 7. memorize this outline and the relationship between the law and facts. mnemonics are 124 B. Then find the “parts” that make up the topics you are studying. A. (See material on “Chunking Information. Include questions the professor asked and the professor’s hypotheticals. C. Sort out which parts go with each topic. (See the section on “Concept Development and Data-Organization Devices. subsection. . Lecture notes 1. an outline. 4. After the lecture. go through and edit your notes. Mnemonics are groups of letters used to prompt memory. This is the step that you were unlikely to have done in college because the textbook. or both. a chart. and then organize the parts for each topic.”) Put what you are studying in a form that shows the material’s organization and how the parts relate to each other. cue words. the teacher. related concepts. 2.
then visualize the details that go with each part. stars. charts. D. recite the information so that you can learn the details. Recitation is oral (or written) review that is done from memory. then visualize the parts that make up each concept. numbered lists. If not. To do this. 125 . it is best to recite and review daily over new material and weekly over older material. C. recite it once a week to keep it fresh. Recite this new material every day. Space the learning: People remember best when recitation and review are spaced over time. etc. probably means that you are testing whether you understand your notes. try again. visualize all the big concepts and how they fit together. III. B. Once you have it down pat. Then check to see whether you recited accurately. Make the organization of the ideas clear. Recite (talk out loud or write out) from memory your notes the same day that you take them. A.useful only when it is impossible to further chunk the information into categories. Therefore. Answer those questions out loud without looking at your outline. Space the learning over time. without more. It is not just reading your notes. Whether you use a picture or a traditional outline. This will not help on an exam because the exam requires you to output the information. Recitation enables you to practice outputting the information. Make the organization of your notes and outline visible by using highlighting. Reading your notes over and over. Recreate the Big Picture in your memory. underlining. Turn the headings in your outline into questions. stickers.
The Magical number seven. A. 126 . who reviewed the literature on immediate memory in 1994. (1954). This immediate memory capacity has been referred to as the “magical number seven.” Baddeley. reiterated Miller’s results. Outlining is chunking information because it requires you to think about the relationships among ideas. Example: There are seven intentional torts. Whether the pieces or categories of information are big or small doesn’t matter. So that could be one category. plus or minus two.“Chunking” Information Explanation: Miller (1954) noted that the immediate memory of an adult appears to be fixed at approximately seven (plus or minus two) separate pieces of information. The “magical number seven” still holds true. Miller. So adults tend to remember between five and nine separate pieces of information from a category. Steps: (1) Organize information you must learn into seven. G. 63. only the number of pieces of information matters. Application: Chunking information into categories helps you to remember the information. (Cont’d on next page) Baddeley. 81-97. categories (chunks). plus or minus two: Some limits on our capacity for processing information. The “magical number seven”: Still magical after all these years? Psychological Review. Psychological Review. Thinking about relationships among ideas facilitates “deep processing” of the ideas. (1994). Or you could divide it into two categories: (1) intentional torts against people and (2) intentional torts against property. 101. 353-356.
you will likely remember the bits of information within the categories. The names of the categories and the links between categories should be in your own words so that the categories form a continuous story in your mind. give the items in the middle of the list some extra attention. Example: One intentional tort against people is battery. (2) know with substantial certainty.” (3) Create names or labels for categories and sub-categories. which is well within the “magical number seven. These are some of the details that go with this category. Supplements also help. So the name of this category is “Battery.“Chunking” Information (continued) (2) Add bits of information that go with each category. Therefore. Labels D’s Head Elements Intent Rules (1) purpose to cause contact (2) know with substantial certainty contact will occur (3) transferred intent (1) body to body (2) touching something intimately connected (3) set forces in motion to cause contact at a distance (define) D’s Body Contact Harmful or Offensive How to find the categories: To help you form the categories or chunks. when you are trying to memorize a chunk. or (3) transferred intent. By remembering the categories. and (3) harmful or offensive. which is well within the “magical number seven. Establishing the chunks early in the term will enable you to add the bits of information under each category as you study and learn from class and outside sources. (That is why it helps to form the Big Picture as early as possible in the term. 127 . to make the categories more memorable to you. has three rules because it can be proved in three ways: (1) purpose. you can use the table of contents and the syllabus from the course. The other two describe what the defendant’s body does. there are only three sub-sub-parts.” The first sub-part of this category. You could use this information to label the parts.) Memorizing of the chunks: The items that you place first and last in each chunk are the easiest to recall. Note that there are only three. (2) contact. intent.” Battery has three parts: (1) intent. Again. Example: The first element of battery occurs in the defendant’s head.
Knowing what the elements are. Its importance cannot be overstated. knowing whether there are rules and where those rules fit. They don’t even exercise any critical thinking. many college students simply memorize without understanding what they are memorizing. However. ______________________________________ 128 . the second – organization – is likely to be the most difficult. The process of finding and sorting the parts is crucial to both memory and understanding. Furthermore. creating long-term memory is hard work for everyone.Summary Of the three steps. knowing what kind of facts and reasoning go with each element – this kind of sorting into categories (chunking) and understanding the relationships is required for success. so this process may be new to you. law school requires critical thinking. You must assess how much work is necessary for you to build memory. Finally. It is unlikely that you had to do much of this kind of organization in college. Over-learning – continuing to review past the point where you are sure that you know the material – is a good idea.
Week Four: Organizing Information and Outlining 129 .
Week 4 Pre-Reading Questions (1) (2) (3) (4) What is “concept development”? What strategies would help you to develop concepts? What are data-organization devices? What can you use them for? What are some types of data-organization devices? How do you choose which data-organization devices to use? What type of information is each data-organization device best suited for? What is an outline? Why should you write an outline? What is it for? What types of information should be included in your outline? What is the “Big Picture”? Where can you find it? How do you select and organize information in an outline? What is the difference between an attack outline and a course outline? (5) (6) (7) (8) (9) 131 .
this is because they have memorized instead of learned. Think about the words in the definition and ask what ideas are described by what definition. The point is to ask what the essential features of the concept are. Think about the cases and other examples you have come across (in classroom hypos. Concept Development. Which example most clearly fits the classification given in the definition? Ask what other examples also fit the classification given in the definition. issue spotting and analysis are impossible. Organizing the information is necessary both so that you can understand it and so that you can put it into long-term memory. in hornbooks. I. Some students come to law school with a naïve perception of what they must do to learn the law. How to develop a concept: Developing a deep understanding of a concept requires you to ask yourself questions about the concept. Once you have a deep understanding of the concepts. in Nutshells. Define the term. Truly learning and understanding legal concepts requires understanding the ideas behind the words. Question (1) What is the name of the concept? (2) What is the definition of the concept? Explanation Identify the term of art or legal name by which the concept is known. (3) What are the critical attributes of the concept? (4) What is the best example of the concept? (5) What are some other examples of the concept? (6) What would be something that is not an example of the concept? 133 . But this effort will pay off.Concept Development and Data-Organization Devices Overview: The most important skill in law school is the ability to organize large quantities of detailed information. for example). Definitions can be found in the casebooks. Usually. This section is intended to answer two questions: (1) how to understand individual concepts and figure out how those concepts relate to each other and (2) what kinds of data-organization devices you can use to make the concepts and relationships clear. Think about what examples you have seen that do not fit the classifications given in the definition. Here is a list of important questions. Without this understanding. Translate those ideas into your own words. or in other supplemental sources. definitions are given in class. Creating this understanding within yourself requires a lot of effort – these concepts do not teach themselves. you will be able to spot issues and analyze them. sometimes. It also requires understanding relationships among ideas.
I will pay you $5. (1) The offeror has to do or say something (manifest) to show that he is ready to be in some kind of deal with the offeree. and (2) what the offeror did or said has to make it reasonable for the offeree to think that the offeror wants him to agree and.” 1. Non-examples? 134 . “I offer to sell you my watch for $500. Ask what is different in those lists. and (3) the offeree has to understand the offer.) 3.” “If you will sell me your car.” “I’m hoping to sell my car for $450.When you encounter two or more concepts that are closely related. The first two are about the offeror and the third is about the offeree.” There are three major ideas. Example 1: Examine the contract concept of “offer. if he does. Question (7) What is the difference between these concepts? (8) How are these concepts related? Explanation Think about or write down a list of the critical attributes of each concept.” (Invitation to make an offer. 5. how you know which one you’re dealing with. Name? Definition? Offer One hornbook definition is “a manifestation of a willingness to enter into a bargain so made as to justify another person in understanding that assent to that bargain is invited and will conclude it.) “Will you sell me your mower for $100?” (Inquiry.000. ask yourself these additional questions. Ask what the concepts have in common.” (Statement of intention. they will have a deal. and what a lawyer could use them for. 2. Best example? Other examples? 6.” “We will pay $100 to anyone who gets the flu after using our new medicine. Critical attributes? 4. Put the lists side by side.) “I couldn’t sell it for less than $200.
and the offeree has reason to believe that all he has to do is agree and they will have a deal. The difference is who has the burden of proof. (Note: some sources seem to treat “unpermitted” as an element of battery. Instead. Instead the “offeror” is saying what he wants to do in the future. or hostile or insulting (“harmful or offensive”) (4) D touched P directly or D made something touch P (“physical contact with the plaintiff’s person by defendant or by an agency a defendant has set in motion”). Best example? On purpose. Inquiry What the “offeror” says does not give the “offeree” reason to believe that the “offeror” wants to make a deal now (no commitment). How are these concepts related? At first glance. the “offeror” is asking for information. Name? Definition? Battery The Nutshell definition is “an intentional and unpermitted harmful or offensive physical contact with the plaintiff’s person by defendant or by an agency defendant has set in motion. Invitation to make an offer What the “offeror” says does not give the “offeree” reason to believe that the “offeror” wants to make a deal now (no commitment). P cannot win. 135 3.” There are four major ideas. Example 2: Examine the tort concept of “battery. The offeror says or does something to show he is willing to make a deal right now. instead they seem to treat the presence of permission as a defense. The other three cannot.” 1. What is the difference between these concepts? Offer Statement of intention What the “offeror” says does not give the “offeree” reason to believe that the “offeror” wants to make a deal now (no commitment). Instead. they might all look like offers. (1) intent to cause contact (“intentional”) (2) P didn’t give permission (and nothing made it okay for D to do it) (“unpermitted”). 2. 4. The outcome could be the same either way because when there is permission. 8. But an offer can be accepted.) (3) physically hurtful. Others may not list it as an element. the “offeror” is asking the “offeree” to suggest terms. Critical attributes? .7. D punches P in the nose.
How are these concepts related? Both are intentional torts against people. D accidentally brushes up against P (no intent). 7. Summary of concept development: The key to understanding the concepts is to ask (and answer) the right questions. and (3) battery doesn’t require that P be aware of what’s going on. related concepts. what the characteristics are. you will want to contrast it with other. in multiplechoice questions. but no contact needs to actually occur: P just needs to be aware that it’s coming.” Battery Intent to cause contact Unpermitted Contact occurs Contact is harmful or offensive P doesn’t have to be aware of the contact at the time. Unpermitted Apprehension of immediate contact occurs. What is the difference between assault and battery? A hornbook definition of assault in tort is “an act that is intended to and does place the plaintiff in apprehension of an immediate unconsented-to touching that would amount to a battery.5. D swings at P and misses (no contact). and in the practice of law. 136 . Non-examples? To make sure that you understand the concept of battery. what will and will not be examples of the concept and how the concept is different from or similar to other. The questions given above will help you understand what to call the concept. the intent required is different.” and D kisses P (not unpermitted). 8. Swinging a bat at someone’s head is an assault (if the person knows what’s happening). what it means. P says “okay. Thus. Assault Intent to put the other in apprehension of a contact. A deep understanding of the concepts will enable you to spot issues in essay questions. it’s battery. Other examples? D throws a stick and hits P. D pulls a chair out and P lands on the patio. but the actions required to prove the tort will look different. (2) battery requires a touching. But as soon as the bat touches the head. several things are different: (1) though both require intent. 6. whether the person knew about it or not. similar concepts. D asks to kiss P. D grabs a plate out of P’s hands. No contact is necessary P has to be aware that a contact is imminent. but assault does not. but assault does.
Harmful or offensive In this example. (1) Numbered lists. A numbered list will not be effective when the items are not of equal weight or do not have the same logical relationship. The other three ideas (purpose. and transferred intent) are alternative ways 137 . Contact 3. After you understand what relationship you want to illustrate among the ideas. All three are equally necessary. Harmful or offensive A numbered list works here because all three items are of equal weight and have some logical relationship to the concept of battery: all three must be proved for defendant to be liable for battery. Furthermore. contact. Here is a summary of some devices and how they are used. Each device is good for some things and not good for other things. you will probably find that choosing and using data-organizations devices clarifies those relationships. Example: Elements of battery 1. The list structure implies that all six items have the same logical relationship to the concept of battery. Purpose to cause contact 3. is intended to help you solve the first problem: what the relationships are. Data-Organization devices. Over the years. above. Thus. Intent to cause contact 2. Intent. Intent 2. The remainder of this section is intended to help you solve the second problem: deciding which data-organization device is most appropriate. to use data-organization devices effectively.II. you may have become familiar with many devices for organizing information (data). and harmful or offensive are all elements that must be proved for defendant to be liable for battery. Know with substantial certainty that contact will occur 4. a list does not work. The section on concept development. Contact 6. You can use data-organization devices to help you (1) understand relationships among ideas and (2) record the ideas in a way that makes those relationships visible. you must solve two problems: (1) you must be able to figure out what those relationships are and (2) you must understand how each data-organization device functions so that you can choose the one that is most appropriate. Numbered lists are used to enumerate items that are of equal weight or have the same logical relationship to each other. choose the device that “fits” what you are trying to do. Example: Elements of battery 1. but they do not. Transferred intent 5. Using data-organization devices helps people to visualize abstract concepts. know with substantial certainty.
(2) Outlines. Causation 4. Intentional infliction of mental distress 5. the outline structure shows three major concepts from the Torts table of contents. it also shows the seven intentional torts that form the parts of the major concept of “Intentional Torts. Headings contain the major concepts. Battery a. Harm Strict Liability B. 138 . An outline is useful to show which ideas are subordinate to or form the parts of the major concepts. So using a list structure implies a relationship between the items that is inaccurate and misleading. Harmful or offensive 2. instead. All three are not necessary. And the three ways of proving intent are underneath the sub-concept of intent. Duty 2. C. False Imprisonment 4. subheadings show the parts of those major concepts. Transferred intent b. Contact c. This outline structure accurately portrays the logical relationships among the different ideas. In this example.” The three elements of battery are underneath the sub-concept of battery. Conversion Negligence 1. Know w/substantial certainty that contact will occur iii. Purpose to cause contact ii. Trespass to land 6.of proving one of the elements – intent. Intentional Torts 1. Assault 3. Trespass to chattels 7. Breach 3. only one of the three has to be present to prove the element of intent. An outline structure is used to show the relationship between broader concepts and subdivisions of the broader concepts. Intent to cause contact i. Example: A.
Tree diagrams work in much the same way as outlines. So the T-chart tells your mind to compare the information in two directions: vertically and horizontally. The branching usually runs downward so that one encounters smaller and smaller subdivisions as one moves down the page. they show which ideas “fit” with other ideas. They are also useful for sorting information sideways: that is.(3) Tree diagrams. but they demonstrate the relationship between major concepts and sub-concepts pictorially instead of through text. Example: If you have to make an important decision. Example: One excellent use of the T-chart is to see how the parts of a case relate to each other. Reasoning Reasoning that goes with element 1 Element 1 Law Facts Facts that go with element 1 139 . (These trees grow upside down!) Example: Torts Intentional Torts Strict Liability Battery Intent Contact Harmful or Offensive Negligence This tree diagram portrays the same logical relationships between the concepts and sub-concepts as the outline above. you may put the pros and cons of the decision in a T-chart. Pros (+) Cons (-) Using the T-chart in this way may help you to compare the advantages of a certain decision with the disadvantages. T-charts can have as many columns as you need. T-charts are used to compare ideas. (4) T-charts.
Some of the elements are similar.. Element 1 “death has occurred” Willful.. Last Element “during the commission of a felony” no no no yes (fill these rows and columns in yourself) Using a chart may help you to see exactly what elements these have in common and how they differ. . premeditated murder Intent-to-do-great-bodilyharm murder Depraved-heart murder Felony murder yes yes yes yes Element 2 .. and which are in only one of the types. (5) Feature analysis charts. Element .. You could construct a feature analysis chart to see which elements are in all the types.Reasoning that goes with element 2 Reasoning that goes with element 3 Element 2 Facts that go with element 2 Element 3 Facts that go with element 3 Using the T-chart in this way may help you see which ideas cluster around each idea found in the center column. which are in some of the types. “What is the difference between these concepts?” 140 .. you learn that there are many different varieties of homicide. where you asked. Notice that the feature analysis chart is perfect for step 7 of concept development. . They are also useful for comparing ideas to see in what ways they are similar and how they differ. . but others are different. deliberate. Example: In Criminal Law.. Feature analysis charts are very similar to T-charts.
Torts Against People Battery Trespass to Land
Purpose or know with substantial certainty ----------Result desired or known: Purpose or know with substantial certainty ---------Result desired or known: Purpose or know with substantial certainty -----------Result desired or known: To cause a harmful or offensive contact with the person Transferred intent – person to person or tort to tort. • Bodily contact (Direct or touch something intimately connected with the person) • Unlawful • Well-founded apprehension (If you don’t know then no apprehension) • Offer to touch (Words alone are not enough) • Rude or angry • Apparent ability (don’t need actual ability) • Don’t have to prove actual harm • Harmful or offensive Purpose or know with substantial certainty ---------Result desired or known: To cause the other to apprehend an imminent battery Purpose or know with substantial certainty ----------Result desired or known: Purpose or know with substantial certainty ---------Result desired or known:
Torts Against Property IIED Trespass to Chattels Conversion
Purpose or know with substantial certainty ---------Result desired or known:
Intent: what’s in Ds head
Result: what D’s body did
Note that the above chart is incomplete. You can fill in the rest yourself. The chart works well for other areas of the law where concepts are similar in some ways and different in others. For example, in criminal law, it works for homicide, criminal sexual conduct, and theft crimes.
Modern Statutory Law (Put the different (Put the different types of common law types of modern murder, their elements statutory murder, their and definitions, and elements and examples here) definitions, and examples here) (Put the different (Put the different types of common law types of modern manslaughter, their statutory elements and manslaughter, their definitions, and elements and examples here) definitions, and examples here) CSC1 CSC3 CSC2
Model Penal Code (Put the different types of Model Penal Code murder, their elements and definitions, and examples here) (Put the different types of Model Penal Code manslaughter, their elements and definitions, and examples here)
Criminal Sexual Conduct
Sexual penetration (definition) (Put the rest of (Put the rest of the elements and the elements and aggravating aggravating factors here) factors here) Theft Crimes False Pretenses Larceny
Sexual contact (definition) (Put the rest of (Put the rest of the elements and the elements and aggravating aggravating factors here) factors here) Embezzlement (What other theft crimes are there? Add columns for them, too.) (Write the elements, definitions, and examples here)
(Write the elements, definitions, and examples here)
(Write the elements, definitions, and examples here)
(Write the elements, definitions, and examples here)
Example: In Property, you must learn estates in land and future interests. A chart can be used to sort information “sideways” so that you can see the characteristics of each estate in land. You can also use it to compare the different estates to see the similarities and differences.
Name Words used to create the estate (buzzwords) Future interest retained by O (if O doesn’t give his entire estate away) None (O has all the property rights) If future interest given to 3rd party grantee Notes What can A do with his estate? How long will A’s estate last?
Fee Simple Absolute
Fee Simple Determinable with Possibility of Reverter
“To A and his heirs.” “To A,” “To A in fee simple,” or “To A to be used for church purposes.” “To A while …,” “To A during …,” “To A until…,” “To A for as long as ….”
None (there is no 3rd party grantee)
This is the largest estate in land possible.
Fee Simple Determinable Subject to Executory Interest
Same as above: for example, “To A while the land is used as a church, and when it is not, to A and her heirs.”
Possibility of Reverter (not a reversion, because determinable estate is not legally less than a fee simple) None
Only applies when O doesn’t specify that the land will go to someone other than O. Only applies when O does specify that the land will go to someone other than O.
Use it, abuse it, have exclusive possession, take its fruits, and dispose of it by deed or will Same as fee simple absolute
Forever (it naturally terminates when the owner dies without heirs)
Potentially forever, but it extinguishes automatically (naturally) the moment the named event occurs. Potentially forever, but if it extinguishes automatically (naturally) the moment the named event occurs.
T has Executory Interest (not remainder because remainder can’t follow fee simple)
Same as fee simple absolute
And so on. (6) Maps. Of course, maps can be used to show where certain geographical features are situated in relation to each other. However, they can also be used to show where certain events occurred when there has been a sequence of events. Example: A case or hypothetical might state the following: “O owned Blackacre, a 40-acre parcel bound on the north by a state highway and on the west by a narrow, unimproved road. The east and south abut a state park, consisting of a large forest. Midway through Blackacre and equidistant from the east-west borders is a fence running from north to south. O has a house in the northwest corner.” Some people have no 143
problem visualizing the situation described; others find that creating a map makes everything much clearer. State highway
State Park Narrow Road Blackacre
Example: Maps can show a sequence of events. Imagine that a case tells you the following: “P was walking north along Main Street. At the intersection of Main and Elm Streets, P stopped and waited for the ‘walk’ sign to come on. As P waited, D was driving westbound on Elm Street. The Smiths were proceeding southbound on Main. D failed to stop for the red light and struck the Smiths’ car as it proceeded through the intersection. A piece of debris from the collision flew through the air and struck P.”
(7) Flowcharts. Flowcharts are used to show the decision steps that you may have to go through in an analysis. Flowcharts are very useful for showing analyses requiring multiple steps. Example: In Contracts, a rejection usually terminates the power to accept; however, there are exceptions.
(8) Time Lines. Time lines are used to show a sequence of events. They may or may not include dates. Time lines are particularly useful in procedure classes like Civil Procedure (a second-term class) to show when particular rules come into play. Pre-lawsuit events During lawsuit Post-lawsuit events
Venn Diagram (10) Composite.(9) Other. Force P off the road into a ditch Throw a stick and hit P in the eye Pull a chair out so P falls Contact Punch P in the nose Grab a plate out of P’s hand 146 . “How do these ideas fit together?” Then experiment. and you are trying to think of all the different ways that you’ve heard of that a contact can occur. Ask yourself. (11) Create your own. If you need to organize data in a particular way. you may have to take elements from more than one and combine them. Try to think of how to record that information so that the relationship between the ideas is apparent. You may be familiar with “other” data-organization devices. It is possible to combine these different data-organization devices to create new ones. These are less likely to be useful in law school. Example: Imagine that you are studying battery. You could make up a picture to demonstrate that. but none of these quite fit. Use your imagination.
________________________________________ 147 . 2. 1. Identify the relationships among the concepts. 3. Using the data-organization devices effectively will make understanding and remembering ideas much more efficient. Choose the data-organization device that reflects the correct relationship. The process of organizing information helps you to understand it and remember it. Choose the concepts you want to include.Summary There are three basic steps to choosing the right data-organization device.
In other words. it is not the product – the finished outline itself – that is valuable so much as the process that you will go through to create the outline. like this: 149 . When it is finished. you must select the information that is important enough to put into your long-term memory. However. and what details make up the sub-concepts. fulfill the requirements of the law. like this: Torts Intentional Torts False Imprisonment T to Chattels Assault Conversion T to Land Battery IIMD Strict Liability Privileges (write in the 9 privileges. it is a document that contains (1) all the important rules. and it will create a template for how to write an essay answer or how to think through a multiplechoice question. you do not simply memorize or record words – you create deep. Procedure: 1. So when you create an outline. In performing these tasks.. its main value is that all of that information has been organized so that you can see exactly how it all fits together.Creating an Outline What is an outline? An outline is a tool that you create to organize information. or will not. Use the table of contents or course syllabus (or both) to get a list of the major concepts and sub-concepts taught in that course. This will enable you to remember all of the information. true knowledge and understanding about the subjects you study in law school. what details make up the sub-concepts that are part of those major concepts. etc. Why write an outline? To write a good outline. you may want to use a traditional outline format. you might draw a tree diagram. that you learned in the class and (2) examples of what will. policies. elements. Then you must organize that information so that you can see the major concepts. you force yourself to deep-process the information. Create the Big Picture. Create a Big Picture that shows how the concepts and sub-concepts fit together. just as you wrote in the 7 intentional torts) Negligence If you don’t favor pictures. If you like pictures.
Defense of Others 4. so every time you find an element or rule. This is a judgment call. you probably want to put that into your outline. and everyone does it a little differently. Self-Defense 3. Et cetera Strict Liability 2. plan to put it into your outline. Assault 3.. Trespass to Land 6. Intentional torts 1. class notes. Privileges (Defenses to Intentional Torts) 1. And so on.. Consent 2. Conversion 1. III. Necessity 7. Some 150 . Battery 2. As you go through your case briefs. IIMD 5. Authority of Law 8. Defense of Property 5. Select the important information. False Imprisonment 4.I. Justification II Negligence ………………. You will definitely want to remember all of the law. The task here is to decide what is important enough that it needs to go into your longterm memory. Discipline 9. If your professor discusses policy in class. Recovery of Property 6. decide what information to select. etc. Trespass to Chattels 7.
Ask yourself how it all fits together. You should aim for the happy medium! 3. ask yourself what major topic or sub-topic that information goes with. Is it an element of trespass to chattels? Then it goes under “Trespass to Chattels” in the Big Picture. No actual harm to the person is required. Let’s say that you want to outline Battery. . and your class notes and have gathered the following pieces of information that pertain to Battery. and take too long to write Your outline may omit too many details. But be careful to avoid extremes! If your personality is . Organize the information under each topic. resulting in only superficial treatment of the material. The happy medium Very detail-oriented type Very bottom-line. Is it the policy reason for why actual injury is usually not required in a trespass-to-land-case? Then it goes under “Trespass to Land” in the Big Picture. Is it a rule for how the “contact” element of battery can be proved? Then it goes under “Battery” in the Big Picture.people tend to include a bit more detail and some include a bit less. organize it. You have gone through the cases. Once you have gathered all the information about a particular topic or sub-topic and you have put all that information under that topic. protecting against harm to a person’s dignity Direct contact is sufficient Know with substantial certainly that the contact will result Harmful Putting something in motion that causes contact Battery is a people tort – can’t batter an animal Indirect contact by touching something that is intimately connected to the person Transferred intent applies to battery Person can recover damages from mental suffering resulting from battery Offensive to a reasonable person Two types of transferred intent – (1) person to person and (2) tort to tort 151 4. . Intent Contact with the person of another Purpose to cause contact Battery is a dignitary tort. Here is an example. Sort the information according to topic. just-give-me-the-answer type Your outline may contain too much. . For every piece of information you select. the notecases. cut-to-the-chase. which is fine. be too long.
(That’s why a person can recover damages for mental suffering resulting from battery.” “know with substantial certainty that contact will result. For example. you should see that certain ideas must be grouped together because they pertain to the same idea.) 152 . protecting against harm to a person’s dignity.As you read this list.” and “transferred intent” all have to do with the same element of battery – intent. protecting against harm to a person’s dignity Direct contact is sufficient Know with substantial certainty that the contact will result Harmful Putting something in motion that causes contact Battery is a people tort – can’t batter an animal Indirect contact by touching something that is intimately connected to the person Transferred intent applies to battery Person can recover damages for mental suffering resulting from battery Offensive to a reasonable person Two types of transferred intent – (1) person to person and (2) tort to tort After Organizing Intent Purpose to cause contact Know with substantial certainty that the contact will result Transferred intent Two types of transferred intent (1) Person to person (2) Tort to tort Contact with the person of another (Battery is a people tort – can’t batter an animal – contact must be with a person) (1) Direct contact (2) Indirect contact by touching something that is intimately connected to the person (3) Putting something in motion that causes contact Nature of contact Harmful Offensive to a reasonable person No actual harm to the person is required because battery is a dignitary tort. “purpose to cause contact. Intent Contact with the person of another Purpose to cause contact Battery is a dignitary tort. Before Organizing No actual harm to the person is required.
Hypo: throwing softballs at full speed into crowded classroom = substantial certainty: you know you won’t miss forever This is what D’s body must do Transferred intent: 2 types o Person to person (intending to batter one person. trespass to land. Add questions and cues that will help you recite and review the material. false imprisonment. Now that the pieces are sorted out. cues.5. Add examples of the concepts from the cases. explanations. but hitting the person = tort-to-tort transferred intent (intent to assault transfers to battery) Hit nurse in head Grab plate from hand is sufficient because plate is connected to hand Moving the chair and lady falls – put the force in motion Broken hip is harmful Grabbing plate and racial slur Cole v. the least touching is 153 . the notecases. Add the trigger for that concept – a short description of what kind of situation you need to see in a fact pattern before you need to discuss that legal topic. Reasoning. and your class notes. and there has to be some reason to believe that the touching could be on purpose This is what must be in D’s head Pulling the chair out while lady sat down would show purpose Moving the chair knowing she wouldn’t notice in time would be substantial certainty. or trespass to chattels] and end up causing harmful or offensive contact on P (2) Contact with the person of another (what is contact?) Three ways to prove contact: • Direct contact • Indirect contact by touching something that is intimately connected to the person • Putting something in motion that causes a contact (3) Nature of contact (what kind of contact?) Two ways to prove: • Harmful • Offensive to a reasonable person Policy: No actual harm to the person is • Throwing stick at one kid and hitting another = person-to-person transferred intent Throwing a punch to scare someone. questions. Turner. and triggers. and Examples Trigger for battery: P has to be touched. Add explanations of how the parts fit together. Add examples. Law on intentional torts Battery (What is battery?) Battery is a people tort – can’t batter an animal 3 elements (1) Intent (how can intent be proved?) Three ways to prove intent: • Purpose to cause contact • Know with substantial certainty that contact will result Cases. you can put finishing touches on. but hit another instead) o Tort to tort (intending to commit another tort [battery.
required (why?) because battery is a dignitary tort. sufficient The essence of battery is personal indignity 154 . protecting against harm to a person’s dignity (that’s why a person can recover damages for mental suffering).
If you prefer a traditional outline format instead of the chart form. assault. false imprisonment. go ahead. Battery (what is battery?) Trigger for battery: P has to be touched. The Battery outline might look something like this in the traditional outline format. was sufficient for transferred intent Tort to tort (intending to commit another tort [battery. and there has to be some reason to believe that the touching could be on purpose 3 elements (what are the elements?) (1) Intent (how can intent be proved?) 3 ways to prove intent: (a) purpose to cause contact pulling the chair out from under lady to make her fall This is would show purpose what (b) know with substantial certainty that contact will result must be moving the chair knowing that the lady wouldn’t notice in D’s in time would be substantial certainty head Hypo: throwing softballs at full speed into crowded classroom = substantial certainty: you know you won’t miss forever (c) transferred intent Two types of transferred intent: Person to person (intending to batter one person but hit another instead) Threw stick at one kid and hit another. trespass to land. or trespass to chattels] and end up causing harmful or offensive contact on P Can only transfer intent when both torts are on this list (2) Contact with the person of another (what is contact?) This is (Battery is a people tort – can’t batter an animal) what 3 ways to prove contact: D’s (1) direct contact body is hitting nurse in head doing (2) indirect contact by touching something that is intimately connected to the person grabbing plate from hand is sufficient (plate is connected to the person) (3) putting something in motion that caused a contact moving the chair and causing the lady to fall – put the force in motion (3) Nature of contact (what kind of contact?) 2 ways to prove: (1) harmful 155 .
7. Use the outline to recite and review. without thinking. The notecases contain more information and examples that do not appear in this outline. (Note: The above Battery outline does not contain all the information that it should. Recite it over and over until you can do it automatically. This outline should usually be 10 pages or less and contain the most crucial concepts from that class. See whether you can recall the details from your big outline that go with each point in the attack outline.broken hip is harmful (2) offensive to a reasonable person grabbing plate and racial slur is rude and humiliating No actual harm to the person is required (why?) Cole v. create a very short outline for each class. create an attack outline. and you will receive even more information and examples [hypotheticals] in class. Review the parts and the Big Picture. the information you have selected and organized. out loud. This outline is to give you the idea of how to create an outline. At the end of the term. ) 156 . Its purpose is not to give you a completed outline. protecting against harm to a person’s dignity Fisher: essence of battery is personal indignity (That’s why a person can recover damages for mental suffering resulting from battery without actual physical injury 6. Use the questions and cues to recite. Turner: the least touching is sufficient because battery is a dignitary tort. A week or two before exams. Do this frequently.
Week Five: Code 157 .
Week 5 Pre-Reading Questions (1) (2) (3) What is code? What are examples of code? What are the steps to follow when breaking down code? Why break down code? 159 .
procedure. exclusively. but it can be proved in different ways.” etc. Code. etc. Restatements. Ask yourself whether it would be easy to remember and apply it in its current form. 2. the UCC. issue statements. “Unless” signals an exception.” “unless. the Model Penal Code.. his silence and inaction operate as an acceptance in the following cases only: a) Where an offeree takes the benefit of offered services with reasonable opportunity to reject them and reason to know that they were offered with the expectation of compensation. How many different ideas are contained in this explanation of the law? How do these ideas fit together? Pay close attention to logical connectors like “and. such as facts. and to understand the parts and how the parts relate. Steps: Ask yourself the following questions. 1. Objective: to learn how to break down the law from statutes. it is reasonable that the offeree 161 .” “or. reasoning. and conclusions.” “but. is made up of sentences and paragraphs of law. “And” means that all the items in the list must be proved. b) Where the offeror has stated or given the offeree reason to understand that assent may be manifested by silence or inaction and the offeree in remaining silent and inactive intends to accept the offer c) Where because of previous dealings or otherwise.Reading Code What is code? Code is pure law. “Or” means that one item in the list must be proved. the Constitution. but they also contain many other things. And so on. Example: Restatement section 69 – Acceptance by Silence or Exercise of Dominion 1) Where an offeree fails to reply to an offer. 4. Look at the following Restatement section. Cases are not code: they may contain code. so that you can remember all the parts more easily and apply them effectively. What does each idea mean? (A) Can you translate each idea into your own words? (B) Can you find a definition? What would be an example of each idea? What would be a non-example of each idea? 3. on the other hand.
If these elements are true. 2) An offeree who does any act inconsistent with the offeror’s ownership of offered property is bound in accordance with the offered terms unless they are manifestly unreasonable. you find the elements: that is. the THEN. In the “UNLESS” section. / his silence / and inaction operate as an acceptance in the following cases only: a. 1. . How many different ideas are contained in this explanation of the law? Break it into pieces. How do these ideas fit together? Find the IFs. what will result if the elements in the “IF” section are true. 162 . 2. 1) Where an offeree fails to reply to an offer. THENs.should notify the offeror if he does not intend to accept. and UNLESSes: Bedtime rules IF your child is under 9 years old THEN bedtime is 8:00 UNLESS it is a weekend or a holiday or a birthday In the “IF” section. . you find a new set of elements. Make each idea a separate piece. THENs. In this case. Non-legal Example of IFs. the bedtime might change from 8:00 to 10:00 or 11:00. and UNLESSes. then the original outcome. Where an offeree takes the benefit of offered services / with reasonable opportunity to reject them / and reason to know that they were offered with the expectation of compensation. what must be true for the rule to apply. Let’s work with the first two paragraphs of this Restatement. easiest way to do this is to put slashes between the pieces. In the “THEN” section. changes to some new outcome. The fastest. . you find the outcome: that is.
In our Restatement sections. ask which parts are IFs: that is. 2) An offeree who does any act inconsistent with the offeror’s ownership of offered property / is bound in accordance with the offered terms / unless they are manifestly unreasonable. ____________________________________ IF there have been previous dealings or otherwise and IF the offeree does not intent to accept. this time with the last three paragraphs of the Restatement. Then ask which parts are THENs: that is. Let’s do it again. ask what the outcome will be if the rule applies. 163 . inaction) and IF the offeree takes the benefit of offered services and IF the offeree has reasonable opportunity to reject them and IF the offeree has reason to know that they were offered with the expectation of compensation THEN his silence and inaction operate as an acceptance. IF the offeror has communicated that assent may be manifested by silence or inaction and IF the offeree in remaining silent and inactive intends to accept the offer THEN his silence and inaction operate as an acceptance. it is reasonable that the offeree should notify the offeror THEN his silence and inaction operate as an acceptance. ask what must be true before the rule can apply. / it is reasonable that the offeree should notify the offeror if he does not intend to accept. and UNLESSes. THENs. IF an offeree fails to reply to an offer (silence. a) Where the offeror has stated or given the offeree reason to understand that assent may be manifested by silence or inaction / and the offeree in remaining silent and inactive intends to accept the offer b) Where because of previous dealings or otherwise. Now let’s look for the Ifs.
Law is often written in stilted. ____________________________________ IF the parties have dealt with each other before or IF there is some other reason the offeree has reason to know that. it is reasonable that the offeree should notify the offeror and IF the offeree does not notify the offeror that he does not want to accept THEN the offeree has accepted the offer and must pay. Let’s put all five paragraphs together. 3. ____________________________________ IF the offeror has offered property to the offeree and IF the offeree treats the property as though it is his own 164 . IF the offeree says nothing and does nothing and IF the offeror has offered something of value and IF the offeree takes it and IF the offeree was able to reject without much trouble or expense and IF the offeree has reason to believe that the offeror expected to be paid THEN the offeree has accepted the offer and must pay. You can check your understanding by putting the ideas into your own words. pompous language. split it into two or more. ____________________________________ IF the offeror has communicated that the offeree can accept by saying nothing and doing nothing and IF the offeree says nothing and does nothing because he intends to accept the offer THEN the offeree has accepted the offer and must pay. Also. if the offeree does not intend to accept.IF an offeree does any act inconsistent with the offeror’s ownership of offered property THEN the offeree is bound in accordance with the offered terms UNLESS they are manifestly unreasonable. or look for definitions if there are any. if it looks as though there is more than one idea on a line. What does each idea mean? Paraphrase.
165 . At this point. Now you can create categories within the text by labeling the major parts. “If I don’t hear from you. THEN the offeree has not accepted those terms. “You break it. you buy it. I expect you to pay.THEN the offeree has accepted the offeror’s terms UNLESS the terms are completely unreasonable. THEN the offeree has not accepted those terms. “If you don’t want to. it’s easy to see that these parts may cover different situations.” IF the offeror has communicated that the offeree can accept by not responding and IF the offeree says nothing and does nothing because he intends to accept the offer THEN the offeree has accepted the offer and must pay.” IF the parties have dealt with each other before or IF there is some other reason the offeree has reason to know that. if the offeree does not intend to accept. “If I do this. Look at each one: what purpose does each part serve? Label each part with a word or phrase that explains its purpose. let me know.” IF the offeror has offered property to the offeree and IF the offeree treats the property as though it is his own THEN the offeree has accepted the offeror’s terms UNLESS the terms are completely unreasonable. it is reasonable that the offeree should notify the offeror and IF the offeree does not notify the offeror that he does not want to accept THEN the offeree has accepted the offer and must pay. I’ll assume it’s okay.” IF the offeree says nothing and does nothing and IF the offeror has offered something of value and IF the offeree takes it and IF the offeree was able to reject without much trouble or expense and IF the offeree has reason to believe that the offeror expected to be paid THEN the offeree has accepted the offer and must pay.
otherwise. Painter offers to paint the house. but will be vacationing in France for the next three weeks. Example Offeree stands by and watches. Homeowner takes the letter out of the mailbox. Homeowner does not respond to the letter. First. Painter paints the house.4. Example: Short-answer essay question Homeowner lives in Michigan. Second. shoves it into his pocket. because we have organized the information into checklists and developed the meaning of each part. What would be an example of each idea? What would be a non-example of each idea? Let’s use the first section as an example. and doesn’t know the offeror’s number Offeror and offeree have never communicated Law IF the offeree says nothing and does nothing IF the offeror has offered something of value IF the offeree takes it IF the offeree was able to reject without much trouble or expense IF the offeree has reason to believe that the offeror expected to be paid Why go to all this trouble? At this stage. we have accomplished two things. How can Homeowner argue that he has not accepted by silence? Now we have a template for thinking through the question: 166 . Homeowner should let Painter know within the next week. Painter will paint the house and charge $1500. saying nothing Offeror offers to paint offeree’s house Offeree’s house gets painted Offeree just had to say something Offeror tells offeree that he expects payment Non-example Offeree objects Offeror dumps toxic waste in offeree’s pond Offeror painted the wrong house Offeree is in France. and does not read it until the plane touches down in France. Painter sends Homeowner a letter that says that Homeowner’s house could use a paint job. but if Homeowner doesn’t want it done. the ideas inside the code are much more memorable. doesn’t speak French. we have a template for answering an essay or multiple-choice question.
and take time away from his vacation to do all of this. Here is one possible answer to the question: The issue is how Homeowner could argue that he has not accepted by silence. Homeowner would have to figure out Painter’s phone number. Here. spend money to get in touch with Painter.Elements IF the offeree says nothing and does nothing Facts Homeowner did not respond to the letter Element met? Yes IF the offeror has offered something of A paint job is worth something value IF the offeree takes it IF the offeree was able to reject without much trouble or expense IF the offeree has reason to believe that the offeror expected to be paid Homeowner’s house is now painted Homeowner is vacationing in France Yes Yes No Painter said he would charge $1500 Yes It is now easy to see that all of the elements are met except one: whether the offeree could reject without much trouble or expense. It would be a pain. who lives in Michigan. especially if he doesn’t speak French. 167 . One of the elements of silence by acceptance is whether the offeree would be able to reject without much trouble or expense. So Homeowner has a tenable argument. It would take both time and expense to turn down this unsolicited offer. figure out the French phone system. Homeowner can argue that he would definitely have to go out of his way. Homeowner. is vacationing in France for three weeks. So that is the element that Homeowner will argue.
investment securities (Article 8) and things in action. Definitions: “Merchant”. Section 2-104 “Signed”. “Goods”. “Financing Agency” (1) “Merchant” means a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill. § 2-104. but any such term of assurance on a form supplied by the offeree must be separately signed by the offeror.§ 2-205. 168 . “Between Merchants”. Section 2-105 “Merchant”. “Future” Goods. (46) “Written” or “writing” includes printing. Section 1-201 § 2-105. § 2-104. “Goods” also includes the unborn young of animals and growing crops and other identified things attached to realty as described in the section on goods to be severed from realty (Section 2-107). “Commercial Unit” (1) “Goods” means all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid. for lack of consideration. but in no event may such period of irrevocability exceed three months. General Definitions [Selections] (39) “Signed” includes any symbol executed or adopted by a party with present intention to authenticate a writing. Definitional Cross References: “Goods”. Definitions: Transferability. Firm Offers An offer by a merchant to buy or sell goods in a signed writing which by its terms give assurance that it will be held open is not revocable. typewriting or any other intentional reduction to tangible form. during the time stated or if no time is stated for a reasonable time. “Lot”. Section 1-201 “Writing”.
Skunk Oil sells to a variety of companies. The letter to Skunk Oil was printed on this same letterhead. 2009.Sample Essay Skunk Oil Company is a company that removes or severs oil from its real estate in Texas. The letter said. Do Skunk Oil and Bird Oil have a contract for the 100 barrels of oil? 169 . he received a phone call from Bird Oil. Bird Oil is known for its television commercials. This same bird is on its letterhead and its envelopes. As he got off the phone with his foreman. 2009. On the morning of November 1. In the Texas region. “Bird Oil hereby offers to buy 100 barrels of oil for $30 per barrel. Joe received a letter from Bird Oil Company. Joe Skunk is the president of Skunk Oil. which depict a big green mythical bird that flies around its oil stations. telling him that Bird Oil had decided that it did not need the oil after all. This offer is firm and will not expire until November 1. he called his foreman and told him to load 100 barrels of oil to be shipped to the Bird Oil Company. which was interested in buying some of Skunk’s oil. Please ship on that date.” Joe placed the order in his “Orders-To-Be-Filled” file. On June 1st. The total contract price is $3000.
together with any supplementary terms incorporated under any other provisions of this Act.§ 2-207. the offer expressly limits acceptance to the terms of the offer. or notification of objection to them has already been given or is given within a reasonable time after notice of them is received. they materially alter it. 1. 2. The additional terms are to be construed as proposals for addition to the contract. b. 170 . A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon. Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale although the writings of the parties do not otherwise establish a contract. 3. unless acceptance is expressly made conditional on assent to the additional or different terms. Additional Terms in Acceptance or Confirmation. In such case the terms of the particular contract consist of those terms on which the writings of the parties agree. Between merchants such terms become part of the contract unless: a. c.
the sales agent of Forsythe Shipbuilding sent off the usual company sales confirmation slip.” On receiving this. the market changed so that Galsworthy Oil wanted to get out of the deal. You are their lawyer. which included the following clause: “Seller does not warrant its goods in any way. This form is not an ‘acceptance’ unless Buyer expressly agrees to all changes proposed by Seller. 171 .Problem 31 The purchasing agent of the Galsworthy Oil Company sent off the usual company purchase order to the Forsythe Shipbuilding firm for the purchase of a $100. would the deal include a warranty? See UCC 2-207(3) and 2-314. and specifically disclaims any warranty of MERCHANTABILITY or of fitness. It contained a clause stating “Buyer objects in advance to any changes Seller attempts to make to the terms of this purchase order.” Prior to the delivery date and to the start of preparations by either party. Is there a contract? What are its terms? If the parties had performed without any further discussion of their differences.000 tugboat.
and in the case of fungible goods. and labeled as the agreement may require. 3. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale. and f. Unless excluded or modified (Section 2-316). Goods to be merchantable must be at least such as a. Usage of Trade.§ 2-314. and e. and c. are of fair average quality within the description. conform to the promise or affirmations of fact made on the container or label if any. a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. 2. quality and quantity within each unit and among all units involved. packaged. d. 172 . are adequately contained. of even kind. within the variations permitted by the agreement. are fit for the ordinary purposes for which such goods are used. Implied Warranty: Merchantability. Unless excluded or modified (Section 2-316). and run. 1. other implied warranties may arise from course of dealing or usage of trade. b. pass without objection in the trade under the contract description.
Week Seven: Reasoning 173 .
Week 7 Pre-Reading Questions (1) (2) (3) (4) What are reasoning statements? Why do they matter? What are some specific techniques for creating good reasoning statements? How can you evaluate whether a reasoning statement is “good”? 175 .
The objective is to make the reasoning so compelling that the judge or jury believes there is no choice but to find for the lawyer’s client. Law Facts First piece of law Facts that “fit” first piece of law Conclusion for first piece of law Second piece of law Facts that “fit” second piece of law Conclusion for second piece of law 177 . choose the facts that “fit” that law. This reflects the reality of being a lawyer: one of a lawyer’s main jobs is to educate and persuade judges and juries. or do not. When doing a legal analysis. most of the points are earned in the “reasoning” portion of the exam. but must also explain exactly why the facts fit the law (if that is what the client’s case requires) or why the facts do not fit the law (if that is what the client’s case requires). These reasoning statements explain why you are reaching the conclusion that you are reaching. and then create reasoning statements that explain why those facts do. They explain what the law and facts have in common.Creating Good Reasoning Statements Objective: to learn to recognize and write good reasoning statements Why the skill is important: On a law school essay exam. This means that the lawyer must clearly explain not only what the facts and law are. What reasoning statements are: Reasoning statements explain the connection between the facts and the law. This is done through strong reasoning statements. contain the same ideas as the law requires. you are expected to write down the relevant piece of law.
Reasoning: P was aware (synonym) that D’s fist was moving toward (synonym) P’s face.And so on. P ducks. p. Example (using the same law and facts as above): Reasoning: “Ducking” is an intentional movement to dodge a threat (synonym). Example: Law: Assault: P must apprehend an imminent touching. Example (using the same law and facts as above): Reasoning: It doesn’t matter that P did not fear being hit because the law requires only that P was aware of the threat. and D loses his balance and misses P. THE LAW OF TORTS. 34 (West. words or phrases that mean the opposite of) the elements or rules and that describes the facts. To form a reasoning statement using cause and effect. P does not fear being hit by D. sometimes. (3) A statement that explains cause and effect in the facts (that is. Facts: During an argument between D and P. so P “apprehended” the imminent touching. it is possible to combine techniques. 178 . ask yourself what effect those facts would have in our culture or what your experience with life tells you about why those facts are important. which means that P must recognize that the touching will occur without delay unless it is prevented. Number 3. not that P was afraid (clarifies what the law does not require). Types of reasoning statements: There are at least four types of reasoning statements: (1) A statement that incorporates synonyms for (that is. above. words or phrases that mean the same thing as) the elements or rules and that describes the facts. so P must have known what was happening or P wouldn’t have been aware that P had to duck (cause and effect). explaining how the facts cause the effect required by the elements or rules). contains both synonyms and cause-and-effect statements. (4) A statement that clarifies what the rule requires or does not require. (Dobbs. D swings his fist at P’s face. Example (using the same law and facts as above): Reasoning: P could not be unaware (antonym) of the fist moving toward his face because he ducked to get out of the way (cause and effect). 2000)). Notice that. (2) A statement that incorporates antonyms for (that is.
"Why are you late?" You say: Bad reasoning statement: "Because I'm late. and your cell phone wouldn't function. the jack didn't work." (You're likely to get in BIG trouble for this answer: because you’ve simply repeated what he said to you. D is driving during a Michigan winter and hits a patch of ice. Examples: (Non-legal example) You are a teenager. Creating good reasoning statements means finding other words to explain why the ideas in the law are also present (or not present) in the facts. To be able to evaluate whether you are writing good reasoning statements. rolls. but in fact they may not be. Why it’s important: Some students may think that they are writing good reasoning statements. Bad versus good reasoning statements: Bad reasoning statements simply repeat words from the law or repeat words from the facts. you’ll sound like a smart aleck. so I couldn't drive home until I changed it. But the jack broke.Exercise: Identifying Good and Bad Reasoning Statements Objective: To learn to spot the patterns that identify good or bad reasoning statements. so it didn't work. You arrive home at 11:00 on a school night. Good reasoning statements incorporate one or more of the techniques listed above. A Good Samaritan finally stopped by and lent me his jack. you'll probably be OK: these reasoning statements use cause and effect. I'm really sorry. Your father confronts you and says. you need to be able to spot the patterns of what makes them good or bad.) (Legal example) The intent required for trespass to land is either purpose to go on or send something onto the land or knowing with substantial certainty that something will end up on the land. 179 . nor does the law require that D intend to do harm. but my cell phone battery was dead. the law does not require that D know that the land is not his. and ends up in P's living room. I would have called. Your car tire had gone flat. The house rules require you to be home by 10:00 on school nights.) Good reasoning statement: "The car got a flat tire." (Assuming that all of this is true. The car goes out of control. so I couldn't get the car up to loosen the lugnuts.
so D is keeping her in the car. (6) The intent element of battery is met because D fired a pistol in P's direction 180 (6) ☺ .Bad reasoning statement: D is not liable because D did not have purpose to go onto the land nor knew with substantial certainty that he would end up on the land. intending to make P think that P is about to get shot. (4) P is confined because she'll get hurt if she tries to get out at that speed. P is on her first date with D. ☺ (2) ☺ (3) ☺ (4) ☺ (5) ☺ One way to prove intent for some intentional torts is through transferred intent. went out of control. D continues driving at 55 miles per hour. that intent to commit an assault is enough intent for battery as well. but the ice made it so that he couldn't make the car go where he wanted it to (cause and effect). so P tells D to stop and let her out. (This simply repeats words from the facts. (2) P is confined because there is no reasonably safe and appropriate means of egress. D fires a pistol in P's direction. (This simply repeats the words from the law. and sample reasoning statements. (3) P is confined because she can't leave the car without being injured while it is going so fast. Law Facts Reasoning Good ☺ or Bad (1) False imprisonment requires that P be confined. and circle the appropriate answer. decide whether they are good or bad. However. and ended up on P's land. There is no confinement if there is a reasonably knowable and reasonably safe and appropriate means of egress. D is driving the car and P is a passenger. which means that P is not permitted to go beyond boundaries set by D.) Good reasoning statement: D is not liable because D had no plan (synonym) to end up on P's land: D's plan was to stay on the road (antonym). P decides that D is a jerk. rolled. One type of transferred intent is when D intended to commit one type of intentional tort. Instructions: The following chart contains examples of law. Evaluate the reasoning statements. facts. (1) P is confined because she is a passenger in the car and D is driving at 55 miles per hour.) Bad reasoning statement: D is not liable because D's car hit a patch of ice. Nor did D have reason to know that he would end up hitting P's house because he didn't know that the ice was there (cause and effect). D does not actually intend for the bullet to hit (5) The intent element of battery is met because even though he only planned to scare P and not shoot P.
A freaked-out horse is going to take off. The intent to commit the assault is sufficient intent to prove the battery. The horse rears and bolts. The intent to commit the first tort is sufficient intent to prove the second tort. D must have known that the horse would end up on P's land. but he didn't just tap it. he created the maximum effect by whacking the horse as hard as possible. Facts P. unless the entry is privileged or consented to. and tramples P's flowers. (11) D had intent because he knew that the horse was nervous (it was "obviously excitable"). (9) ☺ (10) D had intent because hitting the (10) ☺ horse was a volitional act that must have been calculated to make the horse freak out. the horse was obviously excitable. and the law allows the intent to commit assault to substitute for the intent to commit battery. but ended up committing another type. sneaks up behind the neighbor's obviously excitable horse and smacks the horse in the rump as hard as he can. and the bullet accidentally struck P.Law but ends up committing another type. The horse is facing toward P's land. or knowing that entry is substantially certain. or knew for sure that it would. Good ☺ or Bad (7) ☺ (8) ☺ Trespass to land is when one intentionally enters or causes entry upon land in possession of another. angry with his neighbor. about 5 feet from the fence that marks the boundary. and since it was right next to the boundary. The bullet accidentally strikes P. jumps the fence. 5 feet from the boundary. instead. He planned to make that horse go onto P's land. wanting P to believe that P would be struck. (7) The intent element of battery is met because P meant to commit an assault by shooting toward P. but not intending for the bullet to hit P. The intent required is either purpose to enter or cause entry. D. (9) D had intent because he smacked the neighbor's horse in the rump as hard as he could. Reasoning intending to make P think that P was about to get shot. and the horse was facing P's land. (8) The intent element of battery is met because D intended to commit one type of intentional tort. (12) D had intent because he had purpose to cause entry or knew that (11) ☺ (12) ☺ 181 .
Good ☺ or Bad A statute states that any person who returns or tries to return glass or plastic bottles or aluminum cans for a refund in any state other than the state where the person bought the bottles or cans is guilty of a misdemeanor. (14) D is guilty because he bought the bottles in Michigan and returned them in New York. (15) Even though D lost money. (13) D is guilty because he returned glass bottles in a state other than the state where he bought the bottles. Furthermore. 182 . (13) ☺ (14) ☺ (15) ☺ The tort law in the preceding chart was taken from Dobbs. which is all that the statute requires. the statute doesn't require that D do this for a profit. the entry was on land in possession of another. 2000). He returns the bottles in New York and takes a five-cent loss on each bottle. where the bottle deposit is only five cents. and the entry was not privileged or consented to.Law Facts Reasoning entry was substantially certain. he pays a ten-cent deposit per bottle. THE LAW OF TORTS (West. D buys beverages in glass bottles in Michigan. D bought bottles in one state and returned them in another. He then goes to New York.
3. 4.Endnote Practice Directions: 1. 2. Is there an assault if defendant threatens the plaintiff with an unloaded gun? Law Fact(s) Reasoning Statement 183 . Find the legally important facts and write them in the appropriate space. Is this a battery? Law Fact(s) Reasoning Statement 2. Write a reasoning statement. Read the endnote provided. Determine what elements and rules are at issue and write them in the appropriate space. knowing she was allergic to it. 1. Defendant deliberately blew pipe smoke in plaintiff’s face.
Is there an assault if the defendant aimed a gun at the plaintiff. An employee is suspected of stealing property from her employer and is told that a trip to her home is necessary to recover the property. If the employee feels mentally compelled for fear of losing her job to go in an automobile with her supervisor to her home.3. has she been involuntarily confined? Law Fact(s) Reasoning Statement 184 . if the plaintiff did not know the gun was aimed at him because his back was turned? Law Fact(s) Reasoning Statement 4.
but during the automobile trip. What if she agrees to go. she asks to stop and is denied permission? Has she been involuntarily confined? Law Fact(s) Reasoning Statement 6. The Dean requires students who are readmitted to Cooley after being academically dismissed to see their faculty advisor as a condition of their readmission. Are the students who attend this appointment confined involuntarily? Law Fact(s) Reasoning Statement 185 .5.
and goes in to the party. and demands $100. Nick invites his girlfriend. B is enjoying a wonderful dinner and is actually winning the Scrabble games. Nick covers her up with a warm blanket. She falls asleep in the car. Michelle. Unknown to B. A invites B to come to her house for dinner and an evening of playing Scrabble. Michelle becomes sick to her stomach. Has Michelle been involuntarily confined? Law Fact(s) Reasoning Statement 186 . On the way. Meanwhile. A calls B’s mom. Has B been involuntarily confined? Law Fact(s) Reasoning Statement 8. tells mom that B is being held. she is still fast asleep. to go to the ARC staff party at the ARC director’s house.000 for her release. When Nick leaves the party and gets back in the car.7. locks the car doors. Michelle sleeps all the way through the party.
Maybelle can hear him cheering for his favorite team throughout the three-hour game. Joe tells Maybelle that he is going to kill her if she leaves the bedroom. aims at a girl of five. playing with a bow and arrow. Is he liable for battery? Law Fact(s) Reasoning Statement 187 .9. and she is injured. Has she been involuntarily confined? Law Fact(s) Reasoning Statement 10. He goes out into the living room and listens to the big game on the big-screen TV. While waving a gun. and hits her. Suppose that a boy of seven.
which runs away with him and runs the plaintiff down.11. Is Defendant liable for battery? Law Fact(s) Reasoning Statement 188 . Defendant is riding a horse. Can a two-year-old child who bites an infant be liable for battery? Law Fact(s) Reasoning Statement 12.
Does a plaintiff have a cause of action for battery against a doctor for an unauthorized surgical operation to remove a non-life-threatening mole on his left forearm while under anesthetic for a scheduled tonsillectomy? Law Fact(s) Reasoning Statement 189 .13. Did Sleeping Beauty have a cause of action for battery against Prince Charming? Law Fact(s) Reasoning Statement 14.
Week Eight: Writing Legal Analysis 191 .
Week 8 Pre-Reading Questions (1) (2) (3) (4) (5) (6) What is a “call of the question”? What should you look for when deciphering the call of the question? What types of analysis might the call of the question ask you to perform? What steps can help you to plan the answer to a long essay question? What is a “trigger”? Why does it matter? What are some variations on the ERFRC pattern? When would you use them? 193 .
”) Usually. thing. look for the details that surround what that person did or what happened. You will see very few questions like this on your exams. 3. or it in the fact pattern. If the professor writes a particular fact so that there is only one interpretation and there is not an argument for both sides. who or what? If the question told you to focus on a particular person. 195 . The question always contains key words. what kind of analysis are you being asked to do to answer this question? There are four possibilities. then don’t worry about making a counterargument for that fact. (Example: “Discuss and decide. you should know what you are supposed to do and what you are looking for. Questions like this are very similar to the questions you probably had on college exams that simply asked you to regurgitate information. One-sided arguments: (A) Explain only the prosecutor’s or plaintiff’s arguments. It tells you what you are supposed to write about. statement. 2. or series of statements at the very end of an essay question. Does the question specify which law you should discuss? If so. (Example: “List the elements of battery.”) Once you have read and analyzed the call of the question. (Example: “What is the defendant’s best argument why he cannot be guilty of this crime?”) Two-sided arguments: (C) Explain both sides’ arguments and reach a conclusion.Reading the “Call of the Question” The call of the question is the question. be thinking about what law each fact goes with. As you read the facts. first read and analyze the call of the question. you give both sides’ arguments when the facts can be interpreted in different ways so that the parties could disagree about what the facts really prove. thing. Before you read the facts of an essay question. or event. Does the question tell you that any particular person. or event is the star in the fact pattern? If so. Match those details up with the elements they go with. (Example: “How can the prosecutor argue that defendant cannot use self-defense in this case?”) (B) Explain only the defense’s arguments. Pay close attention to them and answer the question you are being asked. what is it? If the question told you what legal concept to discuss. her. that is what you look for as you read the fact pattern. then the outline of the law and rules for that area of the legal concept should pop into your head. looking for three things: 1. What are the key words in the question? That is. Once you find him. the “other” category is when the professor is simply asking for information and is not asking you to do legal analysis. after the fact pattern. But sometimes the facts can only be interpreted in one way. Other: (D) Usually.
” Key words: discuss and decide (two-sided analysis) Law Facts (Not specified) (Not specified) 196 . “What intentional torts has Joe committed? Discuss and decide.” Key words: discuss and decide (two-sided analysis) Law Facts Intentional torts Joe Example: The call of the question says only. “Discuss and decide.Here is a picture that you can use to help you remember the process: Law Key words Facts Example: The call of the question says. cannot be found guilty (one-sided – defend only) Law Facts Burglary Joe Example: The call of the question says. “What is Joe’s best argument why he cannot be found guilty of burglary?” Key words: best argument.
To be able to brainstorm the legal theories. what would he say?” It might be money. it might be to put someone in jail or stay out of jail. Sometimes it only takes a few words to describe an entire event. b. An event is something that happens. Think about what the parties’ objectives are in that part of the fact pattern.1. Using modifying words is how the professor tells you that an element is met. Read the facts looking for conflicts or events. then you do not talk about it. or is arguable. Planning your answer will take from one-quarter to one-third of that time. Match the details of the facts with the pieces of the law they go with. That is. Conflicts are present mostly for intentional torts and criminal law. A conflict is when something happens that will make somebody angry. For each conflict or event. you must first understand what “triggers” a legal theory. for example). If the call of the question does not tell you what law to discuss: a. what kind of situation has to be present before you can use that legal theory? If the facts “trigger” the theory. Begin writing your answer in the ERFRC pattern. 4. matching details of the events in the fact pattern with the parts of the law. and that person came into my office and told me that story. pull your outline of that law up in your head. (See section on reading the call of the question. Then read the fact pattern carefully. 2. but often it is just one step in a series of occurrences. and I asked that person what he wanted. Read and analyze the call of the question. This step requires the most pre-exam preparation. Ask yourself this: “If I were the lawyer. Write down all the legal theories that might pertain to the conflict or event. it might be to make someone do something.) If the call of the question tells you what law to discuss. If the facts do not “trigger” the legal theory. Pay attention to the details. 3. 197 . Most subjects are tested using a series of events (like Contracts. then you must talk about it (unless the call of the question tells you not to). e. it might be to pay less in taxes. d. the event might make somebody angry. Planning the Answer to a Long Essay Question Find out how much time is allotted for that question. brainstorm what legal theories might be present that might help the parties reach their objectives. is not met. c. And pay particular attention to modifying words like adjectives and adverbs.
you also use ERFRFR…C. in the facts … (4) Because … (5) Therefore. this element is met (or not met). Issue Statement E – Element R – Rule (definition) F – One side’s facts R – Reasoning F – Other side’s facts R – Reasoning C – Conclusion for that element Sample format for one ERFRC for a twosided argument: The issue is … (1) The first element is (2) This means … (3) Here. 198 . then conclude with an explanation of which side’s argument is stronger. When you have finished all the ERFRCs. Have all the elements been proved? C = Answer to the question you asked in the issue statement. Other Patterns: There are two situations where you need to use ERFRFR…C. this element is met (or not met). Issue Statement E – Element R – Rule (definition) F – Facts that are relevant to the element R – Reasoning F – More facts that are relevant to the element R – Reasoning …. in the facts … (4) Because … (5) The facts also say … (6) Because … (7) Finally.ERFRC – ERFRC – ERFRC … Basic Pattern: Issue Statement E – Element R – Rule (definition) F – Facts that are relevant to the element R – Reasoning C – Conclusion for that element Sample format for one ERFRC for a onesided argument: The issue is … (1) The first element is … (2) This means … (3) Here. answer the question that the issue stated. (1) If multiple facts fit one R. Do one side’s FR (facts that support that side and reasoning). in the facts … (4) Because … (5) The other side might argue … (6) Because … (7) Overall the __ side is stronger because … Repeat the ERFRC pattern as many times as you have elements to analyze. (2) If both sides have arguments that you need to explore. then use ERFRFR…C. Keep doing FR (facts and reasoning) until you have presented all the facts and reasoning. C – Conclusion for that element Sample format for one ERFRC when there are multiple facts The issue is … (1) The first element is … (2) This means … (3) Here. the facts say … (8) Because … (9) Therefore. Then conclude whether that element has been met or not met (C). then do the other side’s FR (facts that support that side and reasoning).
granary. or other building. Once he was through the fence. truck. filled up a trash bag with bottles. or railroad car shall be guilty of a felony punishable by imprisonment for not more than 10 years. He later admitted to police that he had intended to steal the bottles and sell them back to the recycling company. he approached a tractor-trailer truck containing glass bottles. he thought he heard a faint beep. office. 199 . while the person is on public property.Question One (15 Minutes) The State of Cooley has codified its burglary offenses. Briefly discuss Silver’s best argument(s) why he shouldn’t be held liable under this statute. The dog jumped off the patio and chomped down onto Jim’s leg. regardless of the former viciousness of the dog.” On the evening of April 2.” Jim Hawkins had decided to spend the day on the public beach. the speaker emitted a high-pitched whine that irritated Silver’s dog. The back door of the truck was standing wide open. After a fruitless search. warehouse. barn. looking for buried treasure with his metal detector. Section 750. structure. As he was crawling back through the hole he had cut in the fence. Unknown to Jim. Briefly discuss Neff’s argument(s) why he cannot be successfully prosecuted for a violation of Section 750. he was arrested.110 of the Cooley Penal Code states: “Any person who breaks and enters with the intent to commit a felony or a larceny therein a tent. ship. When he reached the parking lot. shop. store. without provocation. including the property of the owner of the dog. factory. hotel. he started to walk back to his car. 1999. He walked right in. Question Two (15 Minutes) The state of Michissota has enacted a statute that reads as follows: “If a dog bites a person. As he scanned. The fence surrounded a recycling company located in an isolated corner of Cooley County. and then walked back out the open door. so he turned the speaker up as loud as it could go.110. causing severe injury to his calf muscle. he noticed a small anchor hanging from the tree of the local private boat club owned by John Silver. or lawfully on private property. Jim jumped the fence and began scanning the ground under the tree with his detector. the owner of the dog shall be liable for any damages suffered by the person bitten. Trent Neff cut his way through a ten-foot-high chain-link fence topped by razor wire. boat.
I gesso. David. Penny was feeling strange and she started to develop trouble breathing. The reaction subsided. B. She barely managed to mutter. 201 . so David asked her to have sex with him. ********** MCR §750. mentally incapacitated. Third-Degree CSC 1. but unbeknownst to Penny. she called the police. and the police later arrested David at his apartment. The next morning. but Penny fell sound asleep. That other person is at least 13 years of age and under 16 years of age. decided to try to wake Penny and ask if they could have sex before he went home. after realizing that David had had sex with her the night before.“Oh Nuts” Penny and David went on a blind date. feeling as if the date had ended too quickly. 2. She groaned and opened her eyes. As it turns out. Criminal sexual conduct in the third degree is a felony punishable by imprisonment for not more than 15 years. will the prosecutor win if she charges David with third-degree criminal sexual conduct? Does David have any defenses? Discuss and decide. waddever. Penny filed a criminal complaint. or physically helpless. “Yeah. Penny’s friend Nina had fixed them up as a gift for Penny’s 21st birthday because Nina felt that David was Penny’s type. Penny was having an unexpected allergic reaction to the peanut oil.” Then she drifted back into an antihistamine-induced sleep. In your opinion. C. David gave her two strong antihistamines because he recognized that she was in distress. the enchiladas she had eaten had been deep-fried in peanut oil. who quickly showed up at her apartment. The actor knows or has reason to know that the victim is mentally incapable. David shook Penny several times to wake her. Force or coercion is used to accomplish the sexual penetration. After going to a movie. Dinner went fine. A person is guilty of criminal sexual conduct in the third degree if the person engages in sexual penetration with another person and if any of the following circumstances exists: A.520d. David took Penny to her apartment.
Sec. 520a. As used in this chapter: (a) (b) "Actor" means a person accused of criminal sexual conduct. "Developmental disability" means an impairment of general intellectual functioning or adaptive behavior which meets the following criteria: (i) It originated before the person became 18 years of age. (ii) It has continued since its origination or can be expected to continue indefinitely. (iii) It constitutes a substantial burden to the impaired person's ability to perform in society. (iv) It is attributable to 1 or more of the following: (A) Mental retardation, cerebral palsy, epilepsy, or autism. (B) Any other condition of a person found to be closely related to mental retardation because it produces a similar impairment or requires treatment and services similar to those required for a person who is mentally retarded. "Intimate parts" includes the primary genital area, groin, inner thigh, buttock, or breast of a human being. "Mental health professional" means that term as defined in section 100b of the mental health code, 1974 PA 258, MCL 330.1100b. "Mental illness" means a substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life. "Mentally disabled" means that a person has a mental illness, is mentally retarded, or has a developmental disability. "Mentally incapable" means that a person suffers from a mental disease or defect which renders that person temporarily or permanently incapable of appraising the nature of his or her conduct. "Mentally incapacitated" means that a person is rendered temporarily incapable of appraising or controlling his or her conduct due to the influence of a narcotic, anesthetic, or other substance administered to that person without his or her consent, or due to any other act committed upon that person without his or her consent. "Mentally retarded" means significantly subaverage general intellectual functioning which originates during the developmental period and is associated with impairment in adaptive behavior. "Nonpublic school" means that term as defined in section 5 of the revised school code, 1976 PA 451, MCL 380.5. "Physically helpless" means that a person is unconscious, asleep, or for any other reason is physically unable to communicate unwillingness to an act. "Personal injury" means bodily injury, disfigurement, mental anguish, chronic pain, pregnancy, disease, or loss or impairment of a sexual or reproductive organ. "Public school" means that term as defined in section 5 of the revised school code, 1976 PA 451, MCL 380.5. "Sexual contact" includes the intentional touching of the victim's or actor's intimate parts or the intentional touching of the clothing covering the immediate area of the victim's or actor' s intimate parts, if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification, done for a sexual purpose, or in a sexual manner for: (i) Revenge. (ii) To inflict humiliation. (iii) Out of anger. "Sexual penetration" means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body, but emission of semen is not required. "Victim" means the person alleging to have been subjected to criminal sexual conduct.
(c) (d) (e) (f) (g) (h)
(i) (j) (k) (l) (m) (n)
Planning the Answer to a Long Essay Question Contracts
Sandra loved to collect perfume bottles. She had so many that she was running out of room in her home, so she decided to sell some of her least favorite ones. On Saturday, March 2, she put an ad in her local newspaper. FOR SALE: twelve antique perfume bottles, $50.00 each. Six are Italian art glass, from the 1920’s. Three are pink, two are green, and one is yellow. The other six are French, from the 1930’s, in varying shades of burgundy. If you are interested, come to my house at 200 Main Street between noon and 5:00 p.m. on Saturday, March 16. Ask for Sandra. First come, first served. Bob saw the ad on March 2. He immediately called Sandra and told her he wanted to buy all the perfume bottles, but he wanted a bulk discount for taking them all off her hands. He would pay $40.00 per bottle. At that moment, Sandra’s cat, Daniel, started howling. Sandra apologized, explained that her cat was in distress, and said she would have to go. Both Bob and Sandra hung up. The next day, Bob called back. He told Sandra that he still wanted to buy the perfume bottles for $40.00 each. However, he had some unexpected bills that month, and he wasn’t sure that he was going to have enough money after all. He offered to give Sandra $20.00 if she would agree not to sell the perfume bottles to anyone else for 5 days. Sandra said she would agree to that. Later that day, Bob and his girlfriend decided to elope. They jumped on a plane for Las Vegas, and Bob forgot to send Sandra the $20.00. When he came back three days later, he called Sandra and said that he wanted to buy the bottles that day. By now, Sandra figured that Bob was some kind of goofball, so she told him to get lost. Carrie didn’t subscribe to the paper, but she heard about the ad from a co-worker. She wrote Sandra a letter on March 8:
Dear Sandra: I love Italian art glass. I’ll buy the yellow one, sight unseen. Please pack it up very carefully and send it to me, and I will send you a check. I live at 775 Elm Street. Thanks. Signed, Carrie
Sandra received the letter on March 9 and wrote back as follows:
Dear Carrie: I’m not sure I that I still want to sell that one. How about buying one of the green ones instead? Let me know by March 12th. Signed, Sandra
The U.S. Postal Service lost Sandra’s properly addressed, stamped letter, and Carrie never received it. Joe was on vacation in Florida when the ad came out in the newspaper. He didn’t see the newspaper until the morning of March 16. He went straight over to Sandra’s house, arriving at 11:00, and rang the doorbell. However, Sandra wasn’t home. She was at the grocery store, buying cat food. Joe hung around for a few minutes, got bored, and wrote a note to Sandra:
Dear Sandra: I came to your house, but you weren’t there. I’ll buy all of the perfume bottles at the price stated in your ad. Call me at 555-1878 and let me know when to come by to pick them up. Don’t sell them to anyone else! Signed, Joe
Sandra got home at noon, saw Joe’s note, and was about to call him when Abigail came by and bought all twelve perfume bottles for $50.00 apiece. Bob, Carrie, and Joe are all upset. They all think that they had a deal with Sandra. Are they right? Discuss and decide. Do NOT discuss the UCC for this question; instead, discuss only common-law principles.
Macho was only going to stretch his leg muscles out – after sliding into first base. Macho was standing over him. and loudly. as Ugly walked off the field. (Actually. and Jim caught it. Macho saw this and quickly turned around. and Chris’s ankle snapped. Macho saw what was happening. Chris was writhing on the ground. Macho Man ran toward second base. He and a bunch of friends would get together almost every Saturday so that they could play. Chris Jones. Jim was playing shortstop. I was going to tear your heart out! That time is now!” As he reached his buddies. Unfortunately. an Old Guys player. That meant that Smith was out. managed to hit the ball pretty hard. his leg had started to cramp up. Last Saturday. at Jim. But before he could get there. he aimed his feet at Chris’s ankle. Coming up behind 207 . The batter. He ran toward first base as fast as he could. Macho Man. The Drunken Bums already had one person. Chris caught the ball and stepped on first base. he shouted angrily. Buzz Ground. he snarled.) Buzz grabbed a baseball bat and ran over as fast as he could. It was broken. He was in severe pain. “I’m sick of being beaten by those Old Guys! I’m going to beat that Jim to a pulp!” While Ugly was saying these things. so he decided to do as much damage as possible. Suddenly he started to pull his leg back. grinning. “You jerk! I told you that the next time you did that. he knew that as soon as Chris’s foot touched the base. He and his friends would form one team (they called themselves “The Old Guys”).Planning the Answer to a Long Essay Question Intentional Torts “Take Me Out to the Ballgame” 90 minutes Jim loved to play softball. He hit Chris with tremendous force. That turned out to be a mistake because Jim quickly tossed the ball to the first baseman. He started to slide into first base (even though he couldn’t possibly beat the throw to first base) and as he slid. he was going to be out anyway. the other team consisted of whoever else showed up (the other team was always designated “The Drunken Bums”). thought that Macho was going to kick Chris. it flew right to Jim. on first base. Ugly Smith. Meanwhile.
it was infected. so it had been causing Chris some pain. but also removed a cyst from Chris’s left wrist. he raised the bat to strike Macho in the head. However. as he drew the bat back. Chris was in too much pain and shock to sign the consent form. Then everybody piled out onto the field. Then he passed out. Chris had an appointment with his own doctor to get the cyst removed the following Monday. 208 .Macho. but it wasn’t dangerous. At the hospital. (The cyst was about an inch thick and two inches in diameter. He gave the doctor express oral consent to fix his broken ankle. but Jim managed to keep them from fighting. but if Gene hadn’t grabbed the bat. Macho wouldn’t have been able to get out of the way in time. he had ducked. Gene Green grabbed the bat at the last second and stopped him.) Discuss the rights and liabilities of all the parties. He loaded Chris into his car and took him to a nearby hospital. he was wheeled into the operating room where the doctor not only repaired the broken ankle. Macho had seen Buzz swing the bat at him. Shortly afterward. Gene was an Old Guys player who had rushed up to help Chris.
B said. leaving the lamp (as well as Ps’ clock) to S in Ps’ will. on March 1. Each time. B wanted the lamp and clock. you’ll have to buy it.000 for the lamp if S would consider selling Ps’ clock as well. During many conversations. S signed and mailed a personal note to B. Consequently. and (3) An explanation of how your answer for (2) would change (if at all) if S were a merchant. stating that S was willing to sell the lamp and clock for $10. 209 . provided you personally bring them to me. S never responded and hung up. (2) Whether S and B have an enforceable contract for the lamp and clock.Planning the Answer to a Long Essay Question Contracts Practice Issue-Spotting “Sibling Rivalry” 55 minutes Objective: To practice issue-spotting in a fact pattern containing a series of events (Contracts) Brother (B) and Sister (S) over the years had admired a brass lamp at their Parents’ (Ps) home. B telephoned S and said B might be willing to pay for the lamp and quoted a price of $8.000. However.” B’s letter was lost by the post office and was never delivered.” A (an attorney) advised B that S legally had to turn the lamp over to B. and include in your answer a discussion of: (1) Whether A was correct that S legally had to turn the lamp over to B. S would give the lamp to B because of the many kindnesses B had shown S in the past. on March 10th. fall on your knees. If you want it.” Ps died. “Fine. Because S did not hear from B after 7 days. However. “You are such a wonderful person! I accept. and apologize for being so hateful. but that the deal was only open for 7 days from the date of S’s note.000. S informed B that they did not have a deal on the lamp and clock. Notwithstanding this advice. I agree to your terms: the lamp and clock for $10. S replied: “Grow up! That lamp was made by Tiffany and is worth thousands. but S’s attitude really bothered B. A few days later. B received S’s note on March 7th. S had told B that if S “got” the lamp in Ps’ will. B mailed a letter to S that said. when B reminded S of S’s promise. on March 3. Discuss all issues.
making it spin around and crash into a ditch. Jill was now barely conscious and complaining of severe pain. Suddenly. and what will be the likely outcome? Explain thoroughly. for what intentional tort will Jill have the best chance of winning? Explain thoroughly. He lifted her into the back seat and took off. What privileges (defenses) will Ray argue in response. but she was stuck somehow. 1. Ray tried to pull her out. he turned the wrong way down a one-way street. He pulled her out of the car. and what will be the likely outcome? Explain thoroughly. Jill Hurst. Jill. What privileges will Ray argue in response. right into the path of an oncoming taxicab. The train hit the back of the stalled car. 210 . In his haste as he sped through the city. If the owner of the hot-dog cart sues Ray. As he approached a railroad crossing. Ray swerved onto the sidewalk and crashed into a portable hot-dog cart. he saw that a car was stalled on the tracks and a train was approaching. what intentional tort(s) is he likely to claim? What are his chances of success? Explain thoroughly. and the Hotdog Cart!” Ray Allen was out for a drive. but he had to sprain her shoulder to do so. was unconscious. cruising and listening to some blues. He was desperate to get her out and yanked hard on her shoulder. The driver. the car caught on fire. 2. so Ray decided to rush her to the hospital. Ray jumped out of his car and ran to the other car to see how the driver was.Planning the Answer to a Long Essay Question Issue-Spotting Intentional Torts “Ray. If Jill sues Ray. To avoid hitting the cab.
Writing Practice 211 .
The sidewalk is more than 50 feet from the petunia bed. Jimmy’s mom has just put in the new bed of petunias to decorate the very front corner of the house. The glasses fall to the sidewalk and are broken. 213 . knocking his glasses off. Jimmy spies an elderly man walking by the front of the house on the sidewalk. watering his mother’s new petunia plants.Sample Essay Question “Jimmy and the Petunias” 25 minutes Jimmy is standing by the front of his house. Jimmy squirts the gentleman with the water from the hose. What is the best cause of action the elderly gentleman has? What are his chances of winning? Discuss and decide.
Read and analyze the call of the question. Pay close attention to modifying words like adjectives and adverbs. . If you wish. When details in the fact pattern “fit” one of the elements of the tort you have chosen. 4. make a note on the exam question or in the “facts” column of the T-chart to remind yourself which facts go with which elements. Evaluate your answer using the Evaluation Sheet you will be given. (ERFRC.Instructions for Sample Essay “Jimmy and the Petunias” Objective: To practice the legal-analysis pattern Procedure: 1. 3. gentleman will lose. then the C is that the elderly 5. ERFRC . write down the elements of the intentional tort you have chosen. the facts that “fit” each element. Have all the elements been proved? Then the will win. Then read the facts carefully. the rules that explain what those elements mean. the reasoning that explains why those facts do or do not prove each element. compare it with the sample answer. Please use full sentences. Insert all the elements. C) When you run out of elements. What is it asking you to do? 2. ERFRC. go to the C at the end. Also. 214 . . you can use the template below to help you organize your answer. C is that the elderly gentleman If an element has not been proved on these facts. and a conclusion on whether each element has or has not been met. In the “law” column of the T-chart (see “Plan Your Answer”). looking for the details of the events taking place.
Plan Your Answer “Jimmy and the Petunias” Law Facts 215 .
Issue: E: element: R: rule F: facts R: reasoning Conclusion: E: element R: rule F: facts R: reasoning Conclusion: E: element R: rule 216 .“Jimmy and the Petunias” You will not necessarily use all of the spaces in this template.
F: facts R: reasoning Conclusion: E: element R: rule F: facts R: reasoning Conclusion: C: 217 .
Read and analyze the call of the question. If you wish to use a template. Here is how your answer should be organized: State the general rule Facts and reasoning that support Joe Facts and reasoning that support Ed Reach an appropriate conclusion State the exception Facts and reasoning that support Joe Facts and reasoning that support Ed Reach an appropriate conclusion Reach an appropriate ultimate conclusion 2 points 4 points 4 points 1 point 1 point 2 points 2 points 1 point 2 points Points awarded: __________ Divided by 19 = Percentage: ______________ 219 . you can write one out. Pay particular attention to modifying words. reprinted in the case. there is both a general rule and an exception. make a note on the exam question or in the “facts” column of the T-chart to remind yourself which facts go with which pieces of law. looking for the details of the events taking place. Hint: According to the Restatement § 71.) Then read the facts carefully. 3. In the “law” column of the T-chart (see “Plan Your Answer”). (A blank t-chart has been provided.Instructions for Sample Essay Intent to Contract “Little Red Corvette” Objective: To practice the legal-analysis pattern Procedure: 1. What is it asking you to do? 2. write down the rules required to prove intent to contract (from Lucy v Zehmer). We did not give you a template this time. When details in the fact pattern “fit” one of the rules. 4.
Because D’s actions would cause a reasonable person to think he was serious. D and D’s wife and P all signed the paper. he whispered. P took the paper and offered $5 to seal the bargain. D claimed he was drunk and joking and did not mean to make a contract. but P and D rewrote so that it said “we” (D and D’s wife) both agreed to sell the land. 220 -The things D did were the kind of things that a person would do if the person were serious about selling the land. so that P could not hear. Unless the other person knows that the person doesn’t have the intent to contract. that it was meant as a joke. or whether it was a serious offer and a secretly joking acceptance. which said that Ds would sell the farm for $50. which D refused. So P thought D was serious and moved forward with the deal: he got an attorney to examine the title and arranged to get the money. and P had no way to know that D was not serious. -It doesn’t matter whether it was a serious offer by P and a serious acceptance. D’s secret intent doesn’t matter. P actually believed that D was serious (and he was justified in thinking so). title satisfactory to the buyer. Supreme Court Issue: Whether a person is deemed to have intended to contract when he acted like he was serious but secretly meant it as a joke Law Intent to contract: To decide whether a person has intent to contract: • Look at the person’s outward expressions of intent • The law imputes intent that corresponds to the reasonable meaning of a person’s words or acts (objective test) The secret undisclosed intent is irrelevant Facts Procedure: Trial court held that Ps couldn’t show that they were entitled to specific performance.000. intent to contract is imputed to him because he outwardly seemed to accept the deal.Sample Brief: Lucy v Zehmer. Va. but D didn’t drink so much that P thought D didn’t know what he was doing. then D started to write a sales agreement. when D told his wife to sign. P and D were both drinking. P’s appealed Reasoning D and P negotiated for the sale of farm for 40 minutes. D never took the paper back after he signed it. .
Ed was drinking Coca-Cola. Ed has sued Joe for breach of contract.000. laughing uproariously. Joe was drinking at the Drop-Inn Tavern. Ed took the napkin and left.000. Ed approached Joe and told him that he had long admired Joe’s beautiful classic Corvette car. He said.000) to Ed. You bet.000. Ed knew that Joe was having business problems and was really hard up for cash. One evening.000 my sweet Corvette (which is worth $25. threw it on the bar. You’re just the person I want to sell my sweet Corvette to. the jerk.Sample Essay Question Intent to Contract “Little Red Corvette” Joe and Ed had been enemies for 20 years. What arguments can Joe make? What arguments can Ed use to respond? Who do you think should win? Why? 221 . Ed went to Joe’s house and tendered a check for $15. He also brought along two bushels of tomatoes.” Joe started to laugh. suffering from a hangover. When Joe started to act quite tipsy. and he promises to give me tomatoes. too. “I hereby agree to sell for $15. and Ed also offered to throw in two bushels of tomatoes from his garden just to “sweeten the deal. Joe.” Joe took a cocktail napkin and wrote. “Yeah. Joe wants to argue in response that he had no intent to form a contract. Ed and Joe both knew that the car was worth about $25. right. The next day. Oh. Ed offered to buy it for $15. Wow!” Joe signed his name on the cocktail napkin and. Ed was there too: he saw Joe drink six 12-ounce beers and six shots of bourbon in the space of about three hours. angrily refused to accept either.
Plan Your Answer Sample Essay Question Intent to Contract “Little Red Corvette” Law Facts 222 .
Here is how your answer should be organized: Entry onto plaintiff’s land: Element Rules Facts Reasoning Conclusion 1 point 2 points 2 points 2 points 2 points 223 . If an element has not been proved on these facts. 3. go to the C (the ultimate conclusion) at the end. 6. looking for the details of the events taking place. the rules that explain what those elements mean (for those elements that have rules). make a note on the exam question or in the “facts” column of the T-chart to remind yourself which facts go with which elements. When you run out of elements. Have all the elements been proved? Then the C is that Leah can win the trespass to land case. Be sure to follow the ERFRC pattern. fill it in. 4. you will not fill out a template like this when you take the actual exam. Then read the facts carefully. the reasoning that explains why those facts do or do not prove that element. If you wish to use the template. the purpose of the template is to get used to organizing the information in the legal-analysis pattern. Pay particular attention to modifying words – adjectives and adverbs. and a conclusion on whether that element has or has not been met. the facts that “fit” that element.Instructions for Sample Essay Trespass to Land “Psychics on Drugs” Objectives: to become familiar with the legal-analysis pattern to practice the legal-analysis pattern Procedure: 1. Remember. When details “fit” one of the elements of trespass to land. What is it asking you to do? 2. In the “law” column of the T-chart (“Plan Your Answer”). write down the elements of trespass to land. If you do not wish to use the template. 5. Insert all the elements. just write the answer out in paragraph form. Read and analyze the call of the question. then the C is that Leah will lose.
Intent to enter the land: Element Rule Facts Reasoning Conclusion Unpermitted entry: Element Rule Facts Reasoning Conclusion Ultimate conclusion Extra points for damages analysis 1 point 1 point 1 point 1 point 1 point 1 point 1 point 1 point 1 point 1 point 4 points Points awarded: __________ Divided by 23 = Percentage: _____________ 224 .
So they each grabbed a handful of leaflets and stashed the bags in the bushes at the front of Leah’s house. Jimmy. As they started out the door. heavy bags of leaflets on the front porch. he quickly ate half a bottle. She is very interested in both spirituality and animals. They were tired of hauling the heavy bags around the neighborhood. 225 . she was intrigued enough to let them come in. and she asked them to please leave. If she does. but they hadn’t yet been to all the houses. The two Church members. and told her all about the Church. She wants to sue Abe and Ben for trespass to land. went in. Leah shouted after them. After an hour. Michigan. Then they went on to the next house. he started acting very strangely. Their insistence quickly became annoying.Trespass to Land Sample Essay Question “Psychics on Drugs” Leah rents a house in a subdivision in East Lansing. Abe and Ben. Finding the pills and thinking they were candy. He spotted the bags in the bushes and went to investigate. They were carrying very large bags of leaflets. but Abe and Ben. Leah had had enough. An hour later. They pressured her intensely to make a donation. So when two members of the Church of the Kitty-Cat Psychics came to her house to tell her about their beliefs. “Take your stuff and don’t come back!” Leah didn’t know it. An hour later. but inside the bags they were carrying various kinds of illegal pills. so Leah rushed him to the hospital where doctors pumped his stomach. left their large. were also drug abusers. in addition to being fanatical Kitty-Cat Psychics. Leah’s six-year-old son. Leah is furious. can she win? What types of things can she recover damages for? Discuss and decide. got home from school.
Plan Your Answer Sample Essay Question Trespass to Land “Psychics on Drugs” Law Facts 226 .
Template for Sample Essay Trespass to Land “Psychics on Drugs” You will not necessarily use all of the spaces in this template. Issue: E: element: R: rule F: facts R: reasoning Conclusion: E: element R: rule F: facts R: reasoning Conclusion: E: element R: rule F: facts R: reasoning Conclusion: E: element R: rule F: facts 227 .
R: reasoning Conclusion: E: element R: rule F: facts R: reasoning Conclusion: E: element R: rule F: facts R: reasoning Conclusion: E: element R: rule F: facts R: reasoning Conclusion: E: element R: rule F: facts R: reasoning Conclusion: C: 228 .
Procedure: 1. looking for the details of the events taking place. make a note on the exam question or in the “facts” column of the T-chart to remind yourself of which facts go with which elements. reasoning. For each one. facts. conclusion Give an appropriate ultimate conclusion 2 points 6 points 6 points 6 points 5 points 4 points 6 points 1 point 229 . read and analyze the call of the question. Write out the answer for each question. What is each one asking you to do? 2. Elements of two common-law crimes have been provided for you. reasoning. reasoning. When details “fit” one of the elements or rules for the crime you are analyzing.Call-of-the-Question Exercise Burglary and . Practice analyzing the call of the question. reasoning. conclusion Fifth element. Be sure to use the ERFRC pattern. reasoning. Pay attention to the modifying words – adjectives and adverbs. facts. facts. conclusion Sixth element. Then read the facts carefully. 6. conclusion Third element. rule. facts. When details “fit” one of the rules or elements for the crime(s) for the second question. “David Ate a Sandwich – So What?” Objectives: Understand how crucial analyzing the call of the question is. . rule. looking for the details of the events taking place. . facts. 4. facts. write down the elements and rules for the crime(s) that are relevant for the first question. Here is how your answer should be organized: Question #1 Choose the correct crime First element. rule. rule. write down the elements and rules that are relevant for the crime(s) that are relevant for the second question. Then read the facts carefully. conclusion Fourth element. conclusion Second element. 5. Following are two essay questions. 3. In the “law” column of the Tchart. reasoning. In the “law” column of the T-chart (“Plan Your Answer”). make a note on the second exam question or in the “facts” column of the T-chart. but the calls of the question are different. rule. . Now look at the call of the question for the second essay. The facts are exactly the same. rule.
and conclusion Do not analyze what the question did not ask about 2 points 6 points 3 points Points awarded: __________ Divided by 47 = Percentage: _____________ 230 . reasoning. rule. facts.Question #2 Choose the correct argument (the correct element) State the element.
in late November. he started feeling hungry. So he went up to a house that had no lights on. He tried the closed front door.m. David was arrested. He was walking down a road at about 10:00 p. he started feeling hungry.) 231 . He went inside so that he could get warm. and it was getting cold out. It was unlocked. the owners came home. So he went up to a house that had no lights on. in late November.. He tried the closed front door.. He opened the refrigerator and saw food and beer. He made himself a sandwich and drank two beers. Around 2:00 a.m. . the owners came home. Then he fell asleep. He was walking down a road at about 10:00 p. so they called the police. and it was getting cold out.Fact Patterns for Call-of-the-Question Exercise Burglary and . He made himself a sandwich and drank two beers. What is David’s best argument why he is not guilty of common-law burglary? (See the next page for elements of crimes.m. He went inside so that he could get warm. Once inside. . They saw David asleep on the couch. There was nobody home. What crime under the common law is David guilty of? Why? Question #2: David Alexander is a homeless person.m. so they called the police. There was nobody home. It was unlocked. Then he fell asleep. Once inside. Around 2:00 a. “David Ate a Sandwich – So What?” Question #1: David Alexander is a homeless person. David was arrested. They saw David asleep on the couch. He opened the refrigerator and saw food and beer. .
no one need be physically present) .with intent to permanently deprive the owners of their property 232 .of another (D has no right to possess the property) .with the intent to commit a felony once inside (D must have this intent at the moment he breaks and enters) . no matter .taking (getting physical control over the item) interior) .Elements and Rules for Burglary and Larceny Call-of-the-Question Exercise “David Ate a Sandwich – So What?” Note: If any of these elements or rules differ from what your professor has explained to you. to create or enlarge an opening) right to physical possession of the property without lawful consent) . land was excluded) . or an extension of the person intrudes into the .of another (D has no permission to enter) .in the nighttime (between dusk and dawn) .carrying away (any movement of the item) .breaking (applying some force.personal property (moveable property that was not excluded under common law as being subject to larceny: for example.entry (the person. use the elements or rules that your professor gave you!! Common-Law Burglary Common-Law Larceny . or part of the person.trespassory (deprived the victim of the how slight.dwelling house (currently used for human habitation.
she saw a school bus ahead of her. so she was moving at approximately 35 miles per hour.Sample Essay Question Reading Criminal Statutes “Should She Pay the Ticket?” The State of Cooley has a number of statutes that govern people who drive on public roads. driving in the same direction as she was. the bus started to slow down and pull over to the shoulder. Neither the bus nor Joni was at an intersection. The ticket charged her with a civil infraction for violating the statute printed above. At an intersection where traffic is controlled by an officer or a traffic stop-and-go signal. She wants to know whether these facts give her some hope of fighting the ticket or whether she should just pay it. the bus was simply stopping in front of some houses to pick up some school children. so she was driving about 55 miles per hour in a 45-mile-per-hour zone. Because Joni was in a hurry. He pulled Joni over and wrote her a ticket. the bus driver activated the alternating flashing red lights (the lights were on the same level. Last week. asking for your advice. She was a little late. The road she was driving on was a two-lane highway. As she came around a curve. The driver of a vehicle who fails to stop for a school bus as required by this section or who passes a school bus in violation of this section is responsible for a civil infraction. Joni Mitchell was driving to work. When she was about 150 feet behind the bus. she speeded up again. She had slowed down somewhat. directly across from each other). As the bus moved onto the shoulder. Once she was past the bus. Joni has come to you. a vehicle need not be brought to a full stop before passing a stopped school bus. One of them reads as follows: The driver of a vehicle overtaking or meeting a school bus which has stopped and is displaying 2 alternately flashing red lights located on the same level shall bring the vehicle to a full stop not less than 20 feet from the school bus and shall not proceed until the school bus resumes motion or the visual signals are no longer actuated. she pulled into the left lane and passed the bus just after the bus came to a full stop. A police officer saw the whole thing. 233 . but may proceed past the school bus at a speed not greater than is reasonable and proper but not greater than 10 miles an hour and with due caution for the safety of passengers being received or discharged from the school bus.
explain it. explain it. This statute is the law that governs this question – that is. 3.Reading Criminal Statutes “Should She Pay the Ticket?” Objectives: Practice breaking statutes down into their individual pieces and seeing what the pieces are and how they fit together. looking for the details of the events taking place. it gives the elements. Practice essay writing. reasoning. and give the facts. Break it down so that you can see the separate ideas that are present there. Be sure to use the ERFRC pattern. What is it asking you to do? 2. Procedure: 1. make a note on the exam question or in the “facts” column of the T-chart to remind yourself of which facts go with which elements. Find the statute in the fact pattern. Write out the answer. find the requirements for what the driver must do For each requirement. reasoning. and conclusion Reach an appropriate ultimate conclusion Do not analyze parts of the statute that do not apply 6 points 12 points 1 point 2 points Points awarded: __________ Divided by 21 = Percentage: _____________ 234 . and give the facts. When details “fit” one of the elements or rules. Organize the pieces so that you can see how they fit together. Read the facts carefully. Make yourself a T-chart and write the pieces of law in the left-hand side. Read and analyze the call of the question. Here is how your answer should be organized: Find all the elements required for the statute to apply List each requirement. and conclusion If the statute applies. 4.
or has in his possession any motor vehicle that is equipped with a device for producing excessive smoke or gas. pulled Al over and arrested him. Last Tuesday. When he pressed down the accelerator to get the car moving. Deputy Lite. For the last six months. they can’t breathe. 235 . Al stopped at a stop sign. enveloping the patrol car in fumes. or is so equipped as to permit oil or any other chemical to flow into or upon the exhaust pipe or muffler of such vehicle. Al has been charged with violating this statute. or is equipped in any other way to produce smoke or dangerous or annoying gases from any portion of the vehicle. the usual large cloud of smoke billowed out. The state of Michiana has a statute that states as follows: Any person who owns. so he is certainly not capable of fixing something as complicated as a car. Discuss and decide whether he should be found guilty. shall be guilty of a felony. Not only is it old. the car’s condition has been getting worse and worse. choking. driving behind Al.Sample Essay Question Interpreting and Applying Statutes “The Case of the Smoking Car” Al Smith lives in Cooleyville in Michiana. He owns an old car – really old. operates. other than the ordinary gases emitted by the exhaust of an internal combustion engine under normal operation. but Al is one of those people who is inept when it comes to mechanical things. the car spews out large clouds of blue smoke and other noxious vapors. Deputy Bud Lite was in his patrol car. Every time Al drives his car and presses down on the gas pedal. He can barely change a light bulb. Drivers behind him never tailgate him: if they do.
Find the statute in the fact pattern. Practice breaking statutes down into their individual pieces to see what the pieces are and how they fit together 2. and give the facts. looking for the details of the events taking place. make a note on the exam question or in the “facts” column of the T-chart to remind yourself of which facts go with which elements. reasoning (including counter-arguments. This statute is the law that governs this question – that is. Read and analyze the call of the question. reasoning. explain it. What is it asking you to do? 2. and give the facts. Practice essay writing Procedure: 1. Make yourself a T-chart and write the pieces of law in the left-hand side. Be sure to use the ERFRC pattern. it gives the elements. 4. Organize the pieces so that you can see how they fit together. explain it. explain it. When details “fit” one of the elements or rules. and give the facts. if any) and conclusion Reach an appropriate conclusion 2 points 9 points 4 points 1 point Points awarded: __________ Divided by 16 = Percentage: _____________ 236 . 3. if any) and conclusion Find the third element. Write out the answer. reasoning (including counter-arguments. Break it down so that you can see the separate ideas that are present there. Here is how your answer should be organized: Find the first element. and conclusion Find the second element.Instructions Interpreting and Applying Statutes “The Case of the Smoking Car” Objectives: 1. Read the facts carefully.
and a conclusion on whether that element has or has not been met. Also. the call of the question asked you what other intentional tort Pete could sue for. Read and analyze the call of the question. the reasoning that explains why those facts do or do not prove that element. You will not fill out a template like this when you take the actual exam. make a note on the exam question or in the “facts” column of the T-chart to remind yourself which facts go with which elements. If an element has not been proved on these facts. Pay close attention to modifying words like adjectives and adverbs. the rules that explain what those elements mean. then the C is that Pete will lose. In the “law” column of the T-chart (see “Plan Your Answer”). Insert all the elements.) 3. the facts that “fit” that element. Also. Here is how your answer should be organized: State Issue I Analyze rule on whether minors can be held liable Conclusion Elements/rules for trespass Appropriate facts for each element/rule 1 point 2 points 1 point 8 points 5 points 237 . (Look for triggers. think about what other intentional tort might be present in this situation. looking for the details of the events taking place. Procedure: 1. So as you read.Instructions for Sample Essay Trespass to Land “Pete Hates Football” Objective: To practice the legal-analysis pattern. When details in the fact pattern “fit” one of the elements of trespass to land. write down the elements of trespass to land. 4. Have all the C is that Pete can win the trespass to land case. go to the elements been proved? Then the C at the end. What is it asking you to do? 2. When you run out of elements. Then read the facts carefully. the purpose of the template is to get you used to organizing information in the legal-analysis pattern. Fill in the template below. Then begin a new issue with the second cause of action and repeat the ERFRC until you run out of elements. write down the elements of the other cause of action and which facts go with each element.
Appropriate reasoning for each element/rule Appropriate conclusion for each element/rule Appropriate overall conclusion State Issue II Choose appropriate cause of action Elements/rules Appropriate facts for each element/rule Appropriate reasoning for each element/rule Appropriate conclusion for each element/rule Appropriate overall conclusion 5 points 5 points 1 point 1 point 4 points 3 points 3 points 3 points 1 point Points awarded: __________ Divided by 44 = Percentage: _____________ 238 .
age 11. The ball hit Pete right in the face. (Credit to Dean Timmer. They threw the football back and forth across Pete’s yard. To make the game more fun. He wants to know whether he can successfully sue the boys for trespass. and up into his own yard. Alan and Carr were tossing a football back and forth in Alan’s yard. lived in a house to the right of Pete’s house. who created this fact pattern for a previous exam. Carr’s yard Carr’s house Pete’s yard Pete’s house Alan’s yard Alan’s house Carr Alan Street Alan and Carr didn’t know that Pete was home. At that same moment.) 239 . Pete walked out onto the porch to pick up his newspaper. Pete is really annoyed at Alan and Carr and has come to you for advice. Carr. Can he? Is there any other intentional tort that he could win on against one or both of the boys? Explain. breaking Pete’s nose.Trespass to Land Sample Essay Question “Pete Hates Football” Alan. Alan stayed in his yard and Carr walked out to the street. lived in a house to the left of Pete’s house. They threw the football back and forth a few times. when suddenly Alan’s grip on the football slipped and the ball flew toward Pete’s front porch. down the street in front of Pete’s yard. age 12.
Plan Your Answer Trespass to Land “Pete Hates Football” Facts Law 240 .
and be sure to answer the question you were asked.Instructions for Sample Essay Question “Here’s a Little Ditty ‘Bout Paula and Diane” Objectives: Understand how crucial analyzing the call of the question is. make a note on the exam question or in the “facts” column of the T-chart to remind yourself of which facts go with which elements. be sure to use the IRAC pattern. Here is how your answer should be organized: Question 1: Analyze only what the call of the question tells you to analyze Issue Element(s) Rule(s) for each element you analyze Fact(s) for each element you analyze 2 points 1 point 2 points 2 points 2 points 241 . Read “Reading the Call of the Question” 2. for each element. Now read the second call of the question. Write out the second answer. looking for the details of the events taking place. find the facts that “fit. 5. you will find an essay question. Again. Pay attention to the details of what is happening. Be sure to use the ERFRC pattern. Then read the facts carefully. In the “law” column of the T-chart (“Plan Your Answer”). Procedure: 1. read and analyze the first call of the question. you will have to analyze all the elements.” 7. First. sentence by sentence. Which are you supposed to do? 3. 4. Practice analyzing the call of the question. Write out the answer. and be sure to answer the question you were asked. On the next page. When details “fit” one of the elements or rules for the tort you are analyzing. If you are asked to give Paula’s arguments. Practice writing in the legal analysis format. What is it asking you to do? What is the problem you must solve? What kind of analysis should you do? If you are asked to defend Diane. The details that describe what is occurring are the details you will use in your analysis. 6. Again. write down the elements and rules for the tort that is being asked about. divided into two parts. you will write only about the elements that Paula cannot prove.
conclusion Ultimate conclusion (the answer to the question you were asked) 4 points 2 points 1 point 2 points 1 point 6 points 6 points 5 points 1 point Points awarded: __________ Divided by 37 = Percentage: _____________ 242 . facts. conclusion Second element. conclusion Third element. reasoning. reasoning. rule.Reasoning for each element you analyze Conclusion(s) Ultimate conclusion (the answer to the question you were asked) Question 2: Analyze only what the call of the question tells you to analyze Issue First element. facts. facts. rule. rule. reasoning.
Sample Essay Question “Here’s a Little Ditty ‘Bout Paula and Diane” Diane learned that her husband has been having an affair with a woman named Paula. how could Diane argue that she is not liable? The story continues. Diane grew increasingly preoccupied with her plan and ended up running a stop sign and hitting and killing a pedestrian in the crosswalk. To that end. Diane bought a handgun and devised a plan to hide in Paula’s garage and shoot Paula when she returned home from work one day. it turned out. Upon discovering the identity of the pedestrian. (1) If Paula were to discover Diane’s plan at this point and sue her for battery. was Paula. (2) Paula’s estate sues Diane for battery. Discuss and decide. On the day of the planned shooting. Diane placed her handgun in the glove box of her car and began driving to Paula’s house. As she neared the house. The pedestrian. So Diane decided to kill Paula. 243 . Diane promptly celebrated.
Introduction to Law Plan Your Answer “Here’s a Little Ditty ‘Bout Paula and Diane” Law (Elements and rules) Facts (Question 1) Facts (Question 2) 244 .
. What is it asking you to do? 2. you could make a template to help you organize your answer (label the page for issue. make a note on the exam question or in the “facts” column of the T-chart to remind yourself which facts go with which elements. If an element has not been proved on these facts. In the “law” column of the T-chart (see “Plan Your Answer”). Write your answer. rules. looking for the details of the events taking place. begin by noting the rule about whether minors can be held liable for intentional torts. Have all the elements been proved on the first tort? Then the C is that Candace will win. 4.) Please use full sentences. rules. facts. the reasoning that explains why those facts do or do not prove that element. facts. First address the rule about minors. and a conclusion on whether that element has or has not been met. Pay close attention to modifying words like adjectives and adverbs. (ERFRC . conclusion. 3. Then write about one tort at a time. reasoning. Then write the answer for the second tort. conclusions 1 point 21 points 1 point 33 points Points awarded: __________ Divided by 56 = Percentage: _____________ 245 . C) When you run out of elements. When details in the fact pattern “fit” one of the elements of one of the torts. rules. facts. reasoning. elements. Too!” Objective: To practice the legal-analysis pattern Procedure: 1. Insert all the elements for the first tort. the facts that “fit” that element. etc. go to the C at the end. conclusions Issue 2 Elements. reasoning. If you wish.Instructions for Sample Essay “And the Food’s Bad. Read and analyze the call of the question. then the C is that Candace will lose. Here is how your answer should be organized: Issue 1 Elements. Then write down the elements of the intentional torts the question asks about. Then read the facts carefully. the rules that explain what those elements mean. .
They tied Candace to her bunk with their macrame and lanyard kits and pinned the door shut. Simone lifted up Candace’s long braid and gestured with the scissors in her other hand as though she were going to cut off the braid. and the other eleven-year-old girls were sick of her.Sample Essay Question “And the Food’s Bad. Discuss and decide. As Candace slept. Too!” Candace was the tyrant of Bunkhouse 2 at Camp Wannagohome. they returned to find Candace still sleeping peacefully. 246 . the other girls decided to row across the lake to visit the boys’ camp. Two hours later. The other girls stifled their giggles. as Candace continued to sleep. she was furious. Later. but Simone didn’t actually cut off the hair. When Candace awoke and found the picture. Candace’s parents filed a battery and false imprisonment suit on her behalf against the campers. pinned it above her bunk. They took a Polaroid photo. and then released her.
UCC 2-205. An offer by a merchant to buy or sell goods in a signed writing which by its terms gives assurance that it will be held open is not revocable. 247 .) Then carefully read the facts. In the “law” column of your T-chart (“Plan Your Answer”). make a note on the exam question sheet or in the “facts” column of the T-chart to remind yourself which facts go with which pieces of law. Firm Offers. 3. looking for the details of the events taking place. you can write one out. Pay particular attention to the modifying words. When the details “fit” one of the rules. 5. but in no event may such period of irrevocability exceed three months. Read the call of the question. If you wish to use a template. (Hint: UCC 2-205 may be helpful here. write down the rules required to prove that an offer was made. 4. We did not give you a template this time.Instructions for Sample Essay “Good Sports Get Cheated” Objective: To practice the legal-analysis pattern Procedure: 1. What is it asking you to do? 2. during the time stated or if no time is stated for a reasonable time. for lack of consideration. Write out the answers to each call of the question from parts 1 and 2. but any such term of assurance on a form supplied by the offeree must be separately signed by the offeror.
Item CHPFTBL. Inc. sent the following correspondence by mail. Thanks for your understanding! /s/ Ima Football Fan. but our costs have increased on our synthetic footballs.00. 500 synthetic footballs. Enclosed is $3.00 each.00 (500 x $6/football). Inc.000. dated September 15. President” On October 1. All Things Football shipped 250 footballs to Good Sports. and if so. Inc. The new price is $12. was there a valid offer. All Things Football sent the following correspondence to Good Sports. This offer will remain open until November 15. Inc by mail. President” On November 1. /s/ Ima Football Fan. Do not address the Mailbox rule or Acceptance in answering this essay. 2002.Part #1 “Good Sports Get Cheated” All Things Football. Item CHPFTBL. 2002. by fax: “Please ship 500 synthetic footballs. All Things Football received the following order from Good Sports. Item CHPFTBL. a local sporting goods store. received the correspondence on September 16. “All Things Football hereby offers to sell Good Sports. 2002. “Sorry. 248 . claiming the footballs were $12/football. for $6. immediately. 2002. Good Sports. was it for $6/football or $12/football? Please explain your answer in essay format. When Good Sports faxed its order on November 1.” After receiving the money. 2002. a wholesaler distributor of football equipment and clothing.00 each. and we are unable to supply this item for $6.
249 . 2002. Good Sports. and if so. 2002. Item CHPFTBL. received the following correspondence. 2003. President” On September 18. was it for $6/football or $12/football? Please explain your answer in essay format. was there a valid offer. immediately. All Things Football received the money on September 19.000. for $6. 2002. 500 synthetic footballs. “Sorry. We will hold this offer open for you until March 13. 2003. The new price is $12. Inc. Thanks for your understanding! /s/ Ima Football Fan. President” On January 1. On October 1. but our costs have increased on our synthetic footballs. and we are unable to supply this item for $6. Inc by mail. All Things Football shipped 250 footballs to Good Sports. Inc.00 now. When Good Sports faxed its order on January 1.Part #2 “Good Sports Get Cheated (Again)” On September 16. from All Things Football: “All Things Football hereby offers to sell Good Sports. sent All Things Football $50. Enclosed is $3. Inc.00 each.00 (500 x $6/football).00 each. Good Sports. dated September 15.000. claiming the footballs were $12/football. 2002. All Things Football sent the following correspondence to Good Sports.00 each. Inc. Item CHPFTBL. All Things Football received the following order from Good Sports. Do not address the Mailbox rule or Acceptance in answering this essay. by fax: “Please ship 500 synthetic footballs.” After receiving the $3.00. /s/ Ima Football Fan. Inc. if you send us $50. Item CHPFTBL. 2002.
In the “law” column of the T-chart (see “Plan Your Answer”). the facts that “fit” that element. (ERFRC . Note that the T-chart has two “facts” columns. . 4. the rules that explain what those elements mean. make a note on the exam question or in the appropriate “facts” column of the Tchart to remind yourself which facts go with which elements for each defendant. If an element has not been proved on these facts. Please use full sentences. go to the C) When you run out of Then the C at the end. 250 . . and a conclusion on whether that element has or has not been met.Instructions for Sample Essay “A Swing and a Miss” Objective: To practice the legal-analysis pattern Procedure: 1. then the C is that Pia will lose. When details in the fact pattern “fit” one of the elements of battery. Insert all the elements. What is it asking you to do? 2. Then read the facts carefully. Pay close attention to modifying words like adjectives and adverbs. since they have each done something slightly different. Have all the elements been proved? C is that Pia will win. 3. elements. you can use the template below to help you organize your answer. You can write the facts for each defendant next to the elements. Read and analyze the call of the question. the reasoning that explains why those facts do or do not prove that element. If you wish. looking for the details of the events taking place. write down the elements of battery.
saw her and swung the hammock vigorously back and forth by grasping the rope that led to the tree. who had a mean streak and thought it was amusing when Dante was swinging Pia back and forth. strong man. and he yanked the hammock rope forcefully.Sample Essay Question Oakland Campus “A Swing and a Miss” Pia was curled up comfortably in her hammock. He was a large. Dirk. Discuss and decide. despite Pia’s request that he stop. Pia’s neighbor. a jilted lover. Pia fell from the hammock to the ground. After swinging the hammock for a minute or two. Pia wants to sue both Dante and Dirk for battery. 251 . came out and did the same. Dante left. Dante.
Plan Your Answer “A Swing and a Miss” Law Facts (for Dante) Facts (for Dirk) 252 .
depending on how you “slice” the elements. Issue: E: element: R: rule F: facts R: reasoning Conclusion: E: element R: rule F: facts R: reasoning 253 .“A Swing and a Miss” You will not necessarily use all of the spaces in this template.
Conclusion: E: element R: rule F: facts R: reasoning Conclusion: E: element R: rule F: facts R: reasoning Conclusion: C: 254 .
Answer Guides 255 .
Was the ad an offer? 2. Did Sandra and Bob have an option contract? 15. Did Sandra and Joe have a contract? 256 . If Joe did not effectively accept. Did Sandra and Carrie have a contract? Joe 27. Did Sandra and Bob have a contract? 13. How should the days be counted? 17. If the ad was an offer. If the ad was an offer. did Joe effectively accept? 29. Was the ad an offer. Did Sandra make a new offer or a counteroffer? 23. Was Bob’s telephone call an acceptance? 4. Was there an option? 14. Was it communicated? 3. and when was it effective as to Joe? 28. Did Sandra accept? 12. Did Sandra’s letter create an option contract? 25. Was Carrie’s letter a counteroffer? 20. Does the mailbox rule apply? 9. Was Bob’s telephone call a counteroffer? 6. Was Bob’s telephone call a rejection of Sandra’s offer? 5. Did Sandra accept? 7. Did this all constitute a contract? Bob’s second telephone call 10. did he make a counteroffer? 30. Bob’s first telephone call 1.00 was never paid? 16. was Bob’s telephone call an offer? 11.Issue guide Planning the Answer to a Long Essay Question Contracts There may be some additional issues that are not listed here. Did the counteroffer lapse? 8. Does the mailbox rule apply to Carrie’s letter? 21. Did Sandra accept? 22. was Carrie’s letter an acceptance? 19. Did Bob have the right to buy the bottles when he got back from Las Vegas? Carrie 18. Did Sandra’s letter create an option? 24. Did Sandra accept the counteroffer? 31. If the ad was an offer. Does Sandra’s subjective intent to accept help Joe? 32. Was Sandra’s letter effective under the mailbox rule? 26. Does it matter that the $20.
Issue Guide Intentional Torts “Take Me Out to the Ballgame” Parties Tort Defenses Chris v Macho Assault Battery Did Chris see it coming? Jim v Ugly Assault No present apparent ability Ugly was walking away Mere words are not enough Macho v Buzz Assault Defense of Others Buzz v Gene Battery Defense of Others Chris v Doctor Battery Consent 257 .
Under the mailbox rule. Did B change a dickered term? 20. Was B’s quote (3/1) an Offer? 14. did the quote lapse when B hung up the telephone? 15. did B accept S’s Offer or make a counteroffer? (UCC §2-207)? 19. Over the years. Are the additional terms part of the contract or only proposals for addition to the contract? 23. an option contract. Define Acceptance 3. How do you count the days? 18. Define Moral Obligation 6. Do social promises between family members have value? 12. Define Consideration 4. Define Offer 2. Would the mailbox rule apply to B’s 3/6 Acceptance? 28. Is consideration present: Is past consideration bargained for? 11.) 258 . Did S make an offer on 3/3? 16. Define Promissory Estoppel 5. or a Firm Offer (UCC §2-205)? 17. did B accept S’s offers? 10. Is the contract “between merchants” or not “between merchants”? 22. On 3/6. Do S and B have an enforceable contract for the lamp? Offer/Acceptance #2: 13. Do S and B have an enforceable contract for the lamp and clock? (Students: Prof Cox requires his students to begin essay answers by defining all these terms: other professors do not require this and do not want this. Do S and B have an enforceable contract for the lamp and the clock? If S were a merchant: 26. Does UCC apply? Offer/Acceptance #1: 8. was B’s Acceptance effective when posted? 24. In any case. Was S’s 3/3 Offer an option. Did B use “proviso” language? 21. Over the years.Issue Guide Contracts “Sibling Rivalry” Checklist for Essay Question 28 Issues @ 5 points apiece = 140 points 1. what is the consideration? 25. If S and B do have a contract. Define Material Benefit Rule 7. Was S’s 3/3 Offer an option or a Firm Offer (UCC §2-205)? 27. did S make Offers to B? 9.
Issue Guide Intentional Torts “Ray. Jill and the Hot-Dog Cart!” Battery Defenses Implied consent Emergency doctrine Private necessity Conversion Trespass to Chattels Defense 259 .
So the rule is almost certainly satisfied.” Furthermore. which states that the court will look at a person’s subjective intent if the other party actually knew that person’s subjective intent. which might make him do something rash. Here. Even though J was mad at the car. To show that other issues could lurk in these facts. [The call of the question is whether F would get the car. This shows that everybody in the bar knew J wasn’t serious.500. 260 . a reasonable person would not think this was an offer because nobody would be willing to take a $13. Finally. everybody in the bar laughed when F ran out of the bar. So if J knew that F thought J was serious. even if a reasonable person would not know. J could bear some responsibility for the expectations that he created in F’s mind that F relied on. So you could continue the answer in the following way.Q. Because he did everything as J suggested.] On the other hand.500 loss after owning the car for just one day. [Discussion of possible damages is omitted. So the exception doesn’t seem to apply. Here John (J) bought a new car for $15. the facts say that F was “known by all to have a very low I.] F is not entitled to the car. so if you stuck to the call of the question. There is an exception to the rule. F would probably be able to get something. So J is probably one of the people who knew that F had a low I. and J was drinking.Q. Even though the “reasonable” person doesn’t mean anybody in particular.000. however. F was “feeble” and had a very low I. Furthermore. Here.500 because the car had stranded him on the first day. and got and gave J the $1. he went and got the car. had it towed to his home. he wouldn’t have done all that. Though people do sometimes do serious business deals in bars while drinking. all this took place at a bar.Q. F knew J by name. because they obviously knew each other. courts use an objective test. undisclosed intent is irrelevant. but he told Francis (F) that he would sell it for $1. they often engage students in a discussion of whether F can get anything. and because he put himself through a lot of trouble. because offers in bars are more likely to be jokes. J may well have known that F thought J was serious. he must have thought that J was serious. Otherwise. Furthermore. Contracts professors tend to take this a step further. Even though no court would award the car to F. To decide whether a person has the intent to contract. this is another factor that would tend to show that he didn’t mean it. They look at the person’s outward expressions of intent and impute the intent that corresponds to the reasonable meaning of the person’s words or acts. you might be able to stop here.Sample Answer Problem 2 The question is whether Francis is entitled to the car. Secret. the fact that everybody in the bar knew that J wasn’t serious shows that the reasonable person wouldn’t think so either. This shows that he would less likely be able to understand that J was pulling his leg – he would be more likely to take J literally.
subrules. Therefore. The point is that all legal analysis follows that pattern. even if Dan didn’t intend to cause a contact and even if a reasonable person wouldn’t realize that a contact was substantially certain to occur. Dan committed an assault. the facts say that Dan intended to frighten Pete. we discussed how to write an essay exam. at the very least. Pete’s body suffered a violent contact with the inside of his car. That would be enough under either view. Therefore. fulfill that law (the because/therefore part of the analysis). Dan intended to swerve his car at Pete so that he could frighten Pete. Here. there is a split among professors about what intent the defendant has to have: some professors say that the defendant has to intend a harmful or offensive contact or apprehension of a harmful or offensive contact. 261 . and (2) defendant does something that in fact causes the harmful or offensive contact. follow what your professor told you. it was easy to spot the concepts being tested: the options told you that the concepts were assault and battery. So adjust your analysis accordingly. When Pete swerved to avoid Dan’s car. For this fact pattern.). and then explain why the facts might. The answer is C. Therefore. 1. Other professors say that defendant need only intend to make a contact or cause apprehension of a contact. Pete ended up suffering a harmful contact because his car went into the ditch. The pattern that you were to follow was to first write out the law (the rule or rules. In this question. please note that they follow that pattern.Intro to Law Answers to Multiple Choice Questions Please remember this: these materials were taken from publications that were not written by your professor. or might not. If you see any analysis here that conflicts with what your professor told you. and Pete did apprehend that a harmful contact was about to occur. and (2) defendant does something (3) that in fact causes the plaintiff to apprehend that a harmful or offensive contact is about to occur. etc. Therefore. the defendant need not intend to harm or offend. definitions. (Please note: for battery. Earlier in the semester. it wouldn’t matter which view you use because Dan did intend to cause Pete to feel apprehension of a harmful or offensive contact because he wanted to frighten Pete by swerving his car at Pete.) Battery is when (1)(a) the defendant intends to cause a [harmful or offensive] contact or (b) a reasonable person in defendant’s position would realize that a [harmful or offensive] contact was substantially certain to occur or (c) defendant intends to cause apprehension of [harmful or offensive] contact (transferred intent). he intended for Pete to apprehend a contact. and the contact has to turn out to be harmful or offensive. Assault is when the defendant intends to cause either (1)(a) contact or (b) apprehension of contact. Dan intended for Pete to apprehend a contact. Dan can be liable for both assault and battery. As you read these answers. and that contact injured him. then state the facts that are relevant under that law. Here.
But even in the states that don’t require retreat. so Dave’s privilege depends on how Dave perceived or should have perceived the threat that Pat was 262 . So A isn’t likely to help Pat. Self-defense is a privilege to use reasonable force to protect oneself against a threatened tortious contact or confinement. excessive force). There is a split among the states: some don’t require retreat before using deadly force. the reasonable person in his situation might have considered it necessary to use a knife because of the extreme danger facing a person who has a pistol pointed at him. It doesn’t matter what Pat knew. if the force with which Pat threatened Dave was reasonable. So even if Dave was the initial aggressor. if the person the aggressor is threatening responds by using excessive force and escalating the danger of the situation. the contact that Pat was threatening Dave with would have been tortious. others hold that it is never reasonable to use deadly force when it is reasonably safe to retreat. “reasonable force” means the force that would have appeared necessary to a reasonable person in Dave’s situation. it would have been privileged. However. Then Dave would not have been privileged to use force to defend himself against Pat. the reasonable person in his situation would probably not have considered it necessary to use any force at all in self-defense. and. This question tested the concept of self-defense. If Dave could not have known that he could safely and easily retreat. then Pat’s actions were not privileged by self-defense. for self-defense. If Dave knew or should have known that he could safely and easily retreat without sustaining harm. then Pat was privileged to use reasonable force against the possibility that Dave would slap him again. the initial aggressor regains the privilege and can defend himself against the excessive force. The initial aggressor usually isn’t privileged to use self-defense. he might have been privileged to use the knife to defend himself against Pat’s using a gun. That is the general rule: an initial aggressor is not privileged to use force to defend himself against a reasonable response to his aggression. So if Dave initiated the aggression by slapping Pat. Since Pat was threatening Dave with a pistol. whether Dave has the privilege is likely to depend on whether he knew or should have known that he could safely retreat because that will show whether the amount of force used was reasonable. and Dave would have been privileged to defend himself against it by using reasonable force. So B makes it possible for Pat to win the case. too. A doesn’t make it possible for Pat to win the case because even if Dave was using deadly force. not tortious. Dave’s using a knife – even if it was deadly force – may have been privileged in self-defense. Finally. So that’s why C is incorrect. If Pat’s using a pistol was unreasonable (that is.2. Deadly force may be reasonable in self-defense if the person using it is threatened by what reasonably appears to be deadly force. he would be privileged to use deadly force (a knife). Pat was using deadly force. However. At that point. C isn’t likely to help Pat either. Thus. On the other hand. this case involves an exception to the general rule. Reasonable force depends on what the reasonable person in the defendant’s position would have considered necessary. The answer is B. It only matters what Dave knew. And because the force that he was defending against was deadly force (a pistol). therefore. D is also incorrect.
Therefore. Assault is when the defendant intends to cause either (1)(a) contact or (b) apprehension of contact. Reasonable force is the amount of force that would appear necessary to a reasonable person under the circumstances. there’s no assault. therefore. but he was probably entitled to use deadly force to protect himself. Therefore.confronting him with. you must evaluate the statement that comes after the word “because” and decide whether it is factually and legally true. Joan had no reason to believe that Galen was going to do anything to her. and (2) defendant does something (3) that in fact causes the plaintiff to apprehend that a harmful or offensive contact is about to happen to her. The concepts being tested here are self-defense. The concept being tested here is assault. A and B are wrong for the same reason that C is wrong. Because B contains the word “if. Here. and D.” D is factually true (it doesn’t say any legal stuff. B is correct.” Therefore. Assault requires the victim to apprehend an immediate threat to herself. Darcy was not entitled to use deadly force to protect his land. So D won’t help Pat. A is factually true: Galen did know that Joan would be frightened. Galen never intended to do anything to Betty. Self-defense is a privilege to use reasonable force to defend oneself against a threatened contact. C. The answer is B. However. Joan could only claim assault if she saw Galen about to do something to her (Joan). The point is that the plaintiff has to believe that something is about to happen to her. It doesn’t matter whether Joan saw Galen do anything to Betty. 4. the answer in front of the word “because. or justify. The answer is D. courts hold that it is reasonable to use deadly force to defend against what reasonably appears to be a threat of deadly force. C is factually true. and defense of property. so there was no intent for Galen to transfer to someone else. defendant intends to hit A. B. so you don’t have to decide whether it’s legally true). trespass to land. contain the word “because. Then you must see whether that statement can lead to. and the facts in D will justify the answer – that Galen will win. Generally. 263 . not to someone else. Here. Even if Pat knew that the pistol was not loaded. but it is incorrect because those facts don’t justify the answer. defendant has to have intended to do something to one person and then ended up doing something to someone else (for example. B states that Darcy will win if Darcy fired at Pat to defend himself against Pat’s threat with the shotgun. A. Courts generally hold that that is reasonable.” you have to assume that the part after the “if” is true. but he misses and hits B instead). Pat used deadly force to defend himself against deadly force (the shotgun that was pointed at him). All four options. Dave’s using a knife might have been reasonable if Dave believed that the pistol was loaded. 3. those facts won’t justsify the answer because assault requires more than just wanting to frighten someone. B doesn’t make sense – it is legally and factually untrue – because to transfer intent.
5. however. A is incorrect because it is never reasonable to use deadly force for the sole purpose of preventing a trespass to land or chattel. there is no cause of action for trespass. then MC did not intend to make any entry onto Homesteader's property (that is. MC. But what is required is the intent to do the act that constitutes the trespass. thus. The trespass continued for as long as he refused to leave. Therefore. The answer is C. D is incorrect because the fact that Pat was already on the land won’t make Pat win. C is factually true. trespass also requires that MC intended to send this debris onto Homesteader's land. D is also factually true. for example. Homesteader’s being willing to live next door to the site doesn’t mean that Homesteader is willing to have his farm pelted by debris. however. so Homesteader could not show a prima facie case of trespass. as stated in C. This would be a sufficient physical invasion for trespass. C is incorrect because the reason given won’t justify the answer given. The fact that Homesteader knew how MC used the adjoining property cannot be taken as implied consent to MC's scattering debris on Homesteader's land because consent requires willingness. If (as stated in C) MC had no reason to anticipate that its rocket engine tests would cause the debris to fall onto Homesteader's property. The fact that Darcy struck the first blow won’t make Pat win: Darcy’s initial use of gentle force (Darcy “gently pushed Pat backward”) was privileged in defense of property. MC had no reason to anticipate that the tests would cause any of the results that occurred. If. A prima facie case for trespass to land consists of (1) a physical invasion – entry – of the plaintiff's land by the defendant. (2) defendant's intent to bring about a physical invasion of the plaintiff's land. as here. causes debris to settle on the plaintiff's land. D is wrong because the defense of 264 . in firing the rocket engine.” so you must assume that Darcy did fire “at Pat to defend his land against a trespass. A is wrong because the fact that Homesteader bought the farm knowing that MC used the adjoining land for engine tests will not allow MC to commit an act that would otherwise be trespass. then MC did not intend to commit the act constituting trespass. under the circumstances in C. caused debris to fall onto Homesteader's property. the defendant floods the plaintiff's land or. Without intent. However. There is a trespass if. making Pat’s response to Darcy unprivileged and a threatened battery.” Then you must ask yourself whether that fact will make Darcy win the case. mistake as to the lawfulness of an entry onto another's land is not a defense if defendant intended the entry onto that particular piece of land. the element of intent would be missing. MC acted neither with the goal of sending debris onto Homesteader's land nor did it know with substantial certainty that such a consequence would result from its tests of the engine). Pat’s trespass did not end once he had entered the land. Here. The concepts being tested are trespass.A contains the word “if. The intent required is not intent to trespass. So Darcy was privileged to use reasonable force to defend his property. and (3) causation. and necessity. without the plaintiff’s permission. B is incorrect because a physical invasion does not require that the defendant personally come onto the land. implied consent.
The fact that similar tests were carried out in the same locale by other companies would indicate that MC's testing was a more commonly engaged-in activity in that area. reasonable person).public necessity arises where the public good is threatened with injury. Therefore. those factors are irrelevant to an action based on the defendant's having engaged in an ultra-hazardous activity. what's relevant is whether the defendant has breached the absolute duty to make the activity safe. and MC would not owe him the absolute duty to make the engine tests safe. that is. then Homesteader would not be a foreseeable plaintiff. The answer is B. 6. Also. C also sets out an argument that would help MC. not whether the defendant has exercised reasonable care. MC's exercise of due care will be least helpful to MC. D would also be helpful to MC. The distance from the test site to Homesteader's farm is most helpful to MC. for which there is strict liability. those plaintiffs to whom a reasonable person would have foreseen a risk of harm under the circumstances. and that the breach has actually 265 . Testing rocket engines for eventual military use does not rise to this level because it was not necessary to avoid an impending injury to the public good. the threatened injury must be substantially more serious than whatever the defendant did to interfere with the plaintiff's property so that the defendant could avoid the threatened injury. When defendant engages in an ultra-hazardous activity. Therefore. So because A would be helpful to MC. The concept being tested is ultra-hazardous activity. reasonable person. The argument raised in B will not help MC because. if Homesteader's farm is so far from the test site that a reasonable person would not have foreseen a risk of the harm that occurred. the plaintiff is alleging that the defendant has breached its duty of acting as an ordinary. for an ultra-hazardous activity. The answer is B. This defense requires a situation in which immediate action is required so that the defendant can ward off an imminent threat to the public good. (2) cannot be performed without risk of serious harm no matter how much care is taken. and (3) is not a commonly engaged-in activity by persons in the community. the activity would be less likely to be found ultra-hazardous. then the first requirement for finding that the activity is ultra-hazardous would be missing. and the defendant's actions are reasonably and apparently necessary to avoid such injury. The concept being tested is negligence. Thus. 7. therefore. When an action is based on negligence. prudent. MC cannot successfully claim that its conduct is privileged as a public necessity. A is incorrect because the absolute duty to make the activity safe is owed only to foreseeable plaintiffs. defendant owes an absolute duty to make the activity safe. and defendant will be liable for any injuries to persons or property resulting from the activity. though due care and caution would be relevant in a case based on negligence (which alleges violation of a duty to act as an ordinary. An activity is characterized as ultra-hazardous or abnormally dangerous if it (1) involves a risk of serious harm to persons or property. A is incorrect. If MC's tests did not pose a risk of serious harm to either Homesteader or his property.
(3) that the breach was the actual and proximate cause of the plaintiff's injury. C is incorrect because. That instability would tend to show a lack of causation. Firing the rocket was also the proximate cause of Homesteader's injury because the damage was the direct result of MC's conduct. the facts say that the structures would not have collapsed but for the firing of the rocket engine. A is wrong because the prior instability of the subsurface earth structures will almost certainly not help MC. Here. foreseeability. MC would not have a duty of reasonable care toward Homesteader. there is no duty and no breach of that duty. it will not help MC to show that the subsurface structures were already unstable. But even assuming that the subsurface structures were unstable. Thus. but they are not conclusive (after all. However. Daphne is not liable for the damage to the car because a reasonable person would not have foreseen damage arising from the delay in getting the pizza. then there would be no duty imposed upon MC to take precautions against damage that could not reasonably have been foreseen. the defendant's act does not create a foreseeable risk of injury to a person in plaintiff's position. 8.” The statement after the “because” is factually and legally true. then there's no duty. even if MC exercised reasonable care in selecting the personnel involved in the testing. C is the correct answer. 266 . as B states. it could be that everyone in the industry is acting negligently). the personnel may still have acted negligently in the way in which they conducted the tests or chose the test site. Note that C contains the word “because. Therefore. so there could be no negligence. No duty is imposed upon a person to take precautions against events that cannot reasonably be foreseen. MC's conduct was the cause in fact (the actual cause) of the damage to the water well on Homesteader's farm. Thus. (2) defendant's breach of that duty. Therefore. Therefore. mere delay in picking up a pizza while leaving a car properly parked does not create a foreseeable risk of damage to the car. Industry standards are admissible as evidence of an appropriate standard of care. and (4) damage. and that statement justifies the answer (that Daphne will win). If. Therefore. No duty is imposed upon a person to take precautions against events that cannot reasonably be foreseen. it is true that if Daphne had gotten the pizza immediately. if at the time of the defendant's conduct. A prima facie case for negligence requires (1) that defendant had a duty to conform to a specific standard of conduct to protect the plaintiff against an unreasonable risk of injury.and proximately caused injury to the plaintiff. Paula's car would not have been where it was when Tammy ran into it. The answer is C. Then. Homesteader's farm is so far from the test site that no risk to Homesteader was foreseeable. MC would be vicariously liable for its employees' negligence because the negligence would have been committed within the scope of the employment relationship. D is wrong because industry standards of conduct do not establish a conclusive test for determining whether specific actions constitute a breach of duty owed to someone. The concept being tested is negligence – specifically.
” So you must first decide whether the facts above question 10. all the doctrine does is make the owner liable also. Then you must assume that the facts after the “unless” are true. because the wire was obscured by the bushes. Daphne is not an employee. therefore. The exposed electric wire created an unreasonable risk of death or serious injury to Bill as he searched the yard. The damage to Paula's car was unforeseeable under these circumstances (after all. the car was properly parked in the parking lot. A licensee is a person who enters land with the owner's permission. and ask yourself whether adding those facts would make Carol liable. Daphne did not act negligently when she did not pick up the pizza immediately. D contains the word “unless. The concept of "exceeding one's authority" might be relevant when an employer is trying to avoid liability for an employee's tortious conduct by arguing that the employee acted outside the scope of her employment. So this doctrine could not relieve Daphne of any liability for negligence. Thus. it doesn’t justify Paula’s winning the case. Though the statement in B is true factually and legally. A is wrong because though it is factually and legally true. The answer is D. Bill was a licensee because he entered Carol's land with her permission for his own purpose (retrieving his wallet) rather than for any benefit of Carol's. (Remember.B is wrong because the mere fact that Paula's car would not have been in that spot if Daphne had gotten the pizza immediately is not enough to show negligence. it was unforeseeable that spending a few extra minutes would cause a risk that hadn’t been there before). Because Bill had Carol's permission to be on Carol's land. and that would be the only way that she could be liable. However. 9. it doesn’t justify Paula’s winning the case. Here. The doctrine states that an automobile owner is liable for the tortious conduct of immediate family or household members who are driving with the owner's permission. therefore. would mean that Carol isn’t liable. she wouldn’t be. Carol would have a duty to warn Bill about the wire. The mere fact that Daphne stopped at the bookstore. However. the owner or occupier has no duty to inspect for defects nor to repair known defects. Bill was unlikely to discover the wire. and that Paula had loaned her the car specifically to pick up the pizza. Bill is a licensee. Therefore. D misstates the family car doctrine. If Carol knew of the presence and condition of the wire. by themselves. And the doctrine can't apply anyway. The concept being tested is negligence – specifically. The doctrine would not make Paula liable instead. will not mean that Daphne acted in a way that created an unreasonable risk of damage to the car. because there would be no breach of any duty. the only way that Carol could be liable to a licensee is 267 . Using just those facts. she should also have known that it posed an unreasonable risk of harm to Bill and that. since Daphne and Paula are not related and do not live in the same household. not parked in the middle of the freeway. it is legally untrue. the duty owed to a person who is on the defendant’s premises. for his own purpose or business rather than for the owner's benefit. The owner or occupier of land has a duty to warn a licensee of a dangerous condition known to the owner or occupier when the condition creates an unreasonable risk of harm to the licensee and when the licensee is unlikely to discover the condition. Likewise.
Therefore. D tells you to assume that both of those are true. Bill is liable for the damage to the flowers even if he had a privilege to enter Carol's yard. Bill was faced with death or serious injury when the truck almost hit him. it won’t justify making Carol liable. Apparently. so that the actor must pay for any damage he causes. it won’t justify making Carol liable. This question tests two concepts: necessity and the difference between negligence and intentional torts. The answer is C. Likewise. because Bill acted solely to protect himself. the only way to avoid this injury was to jump into Carol's yard. B is incorrect because an owner of land does not owe a duty to a licensee to repair defects or dangerous conditions. So even when you assume that Carol. Here. 268 . that he won’t have to pay).if (1) she knew of the duty and (2) failed to warn.) A correctly states that Bill is liable for the damage. even though A is factually and legally true. Here. 10. the person may interfere with the property of another (1) if it is reasonably and apparently necessary to do so to avoid threatened injury from a natural or other force and (2) if the threatened injury is substantially more serious than the interference with property that the defendant is committing so that he can avoid the threatened injury. Bill was privileged to enter the yard. A is wrong because the mere fact that Carol gave Bill permission to enter her land will not make her liable for his injuries there. If a case involves private necessity (that is. (Note that this is a situation where the correct answer is one that seems kind of unappealing. However. but it doesn’t say why. B is incorrect because Bill's exercise of due care is irrelevant. When a person has the privilege of necessity. Carol is not strictly liable for injuries to a licensee. as a result.” that can’t make her liable because she didn’t have any duty to do any of that. D is wrong because it concludes that Bill's privilege absolves him of liability for the damage he caused (so though the statement in D is legally true – Bill did have a privilege – it doesn’t justify the answer given – that is. Thus. Nevertheless. The threatened injury to Bill was substantially more serious than Bill's entry into Carol's yard. was unaware of the dangerous condition of the wire. C says only that Bill can be held liable for the damage. Therefore. On the other hand. the act is solely to protect one person from serious injury.) A accurately describes the duty that Carol owed to Bill. she is only liable for injuries caused by a breach of her duty to warn of dangerous conditions that she knows about and that the licensee is unlikely to discover. the defense is qualified. So even though B is factually true. he may be required to pay for the damage he caused to the flowers. A would make Carol liable even if Carol did not know about the wire. C is incorrect because the owner of land has no duty to a licensee to inspect for defects or dangerous conditions. it has to be the right answer because the rest of the options have something seriously wrong with them. but incorrectly states that he was not privileged to go onto Carol's land (so A is not legally true). However. rather than the public as a whole). in fact. “failed to reasonably inspect the property and. that would make Carol liable.
If the banana peel had been on the floor for an hour. but it does not apply to intentional torts." So the only way this pick can be correct is if (1) given only the facts in the fact pattern. the answer would be "no. that a store employee had thrown the peel on the floor or that the store employees had not reasonably inspected the premises. the grocery store. D is wrong because the store can be liable even if none of its employees actually knew that the banana peel was on the floor. the store will be liable. Therefore. Gloria was an invitee. (3) then the answer would be "yes. the answer would be "no. the choice says "no. And remember — the choice says "no." but (2) if you assume that an employee actually knew that the banana peel was on the floor. Again. under the circumstances in A. Bill's liability does not depend on whether he was exercising due care. as well as the duty to make reasonable inspections to discover dangerous conditions and make them safe. and someone should have picked up the banana peel to remove the danger of someone’s slipping and falling. the store would be liable for Gloria's injuries." but (2) if you assume that an employee in fact knocked the banana peel on the floor." This pick can only be correct if (1) given only the facts in the fact pattern. unless a store employee knocked the banana peel on the floor. would have had a reasonable amount of time to discover it and remove it. If there was a reasonable time to discover the banana peel and no one discovered it. This breach actually and proximately caused Gloria to fall and hurt herself." and (4) the only way that the answer can change to 269 . If. Mere presence of the banana peel on the floor will not make the store liable. the banana peel's presence should certainly have been discovered through reasonable inspections by store employees. The concept being tested is negligence – specifically. he did intend to perform the act (jumping off the road) that damaged the flowers. regardless of who put the peel on the floor. the only way for Gloria to win) is if an employee knocked the banana peel on the floor. B is incorrect because it implies that the store can be liable without fault. So failure to discover the banana peel within an hour would breach the duty that the store owed to Gloria. Therefore. a store employee should have discovered and removed the banana peel. the duty owed to a person on the defendant’s premises. C has to be wrong. it doesn’t justify the answer given – that Gloria should win. The answer is A. such as trespass. Because A makes you assume that the banana peel was on the floor for an hour. or if no one ever even inspected. so the store had the duty to warn her of concealed dangerous conditions known to the store. Although Bill's actions were privileged.Carol will be suing Bill on a theory of intentional tort. (3) then the answer would change to "yes. liability requires that the store was somehow at fault for the banana peel being on the floor — for example. in the exercise of reasonable care. Due care is a concept that applies in negligence cases." and (4) the only way that the answer can change to "yes" (that is. So even though the statement in B is factually true. 11. Because it doesn't matter who knocked the banana peel on the floor. through its employees. unless a store employee knew that the banana peel was on the floor. then the store will be liable. C is wrong because the store's liability does not depend on whether an employee put the banana peel on the floor.
if Jesse was too drunk to intend to commit burglary. It tests on how the concepts of intoxication. the only way for Gloria to win) is if an employee actually knew. 12. and the card had been reported stolen." Therefore. And mistake of fact is not a defense. The concepts being tested are (1) attempt and (2) the difference between. It also tests your ability to read and understand the statutes explained in the fact pattern. C is wrong because voluntary intoxication may be a defense to the felony-murder definition of murder. First. Thus. 13. Intoxication might negate the existence of that intent (so it would qualify as a defense under this jurisdiction’s intoxication statute). and the legal effect of. whether anyone was in the house – he would have succeeded. Yvette could be found guilty of attempting to obtain property by false pretenses. D is correct because it sets out this analysis. this jurisdiction’s murder statute says that murder can occur in two ways: (a) premeditated and intentional or (b) committed during another crime (this is what’s known as felony murder). then he could not have been committing a burglary. This question requires a multi-step analysis. The answer is D. and the killing could not have been under the felony-murder part of the statute. To convict a defendant for an attempt. then the only way Jesse could be convicted of murder is if he acted intentionally or with premeditation because the felony-murder part of the statute couldn’t apply. But no one has to actually know for the answer to be "yes. if the killing occurred during a burglary. it only refers to causation. mistake of fact and mistake of law. Hazel could be found guilty of attempted robbery."yes" (that is. In B. If it weren’t for his mistake of fact – that is. B is wrong because it states the wrong standard of proof: the prosecution must prove all elements of the crime beyond a reasonable doubt. She 270 . Second. Jesse could argue that he did not commit the first kind of murder because he did not intend to kill the MP (and he could also argue that he did not act with premeditation). and felony murder are related. burglary. therefore. He had the specific intent to kill. So if Jesse did not have the specific intent necessary for burglary. and she came very close to completing it. The answer is D. She had the specific intent to commit the crime. it could also be murder under the second part of this jurisdiction's statute. so Yvette wasn’t mistaken about anything. (There’s no mistake of fact – Yvette was kept from succeeding only because the store clerk checked out the credit card. third. Walter could be found guilty of attempted murder.) In C. D is wrong. However. A is incorrect because voluntary intoxication is only a defense when the intoxication negates intent. A has nothing to do with intent. All four choices in this question have to do with attempt. the prosecutor must show that the defendant had the specific intent to commit the crime and that the defendant engaged in behavior that came very close to completing the crime (beyond mere preparation). In A. it requires a specific intent to commit a crime. burglary is a specific intent crime. and the jury could find that he came close to committing the crime.
(D) is wrong because damage is not an element of false imprisonment. (B) is wrong because “unreasonableness” is not an element of false imprisonment. Even if it is true that Global’s employees were reasonable. 16. so even it if is true that Rezzie suffered no damage. Because this answer requires you to find that the only way Poe can win is to suffer physical harm. The damage can consist of severe emotional distress beyond what the reasonable person could take. The intent required is not that the defendant knew that the plaintiff’s rights were being violated. Even if going onto Poe’s property contributed to the outrageousness. The element (A) states – the extreme and outrageous conduct – is the linchpin of an emotional distress claim. (B) contains the wrong definition of intent. it isn’t necessary. it is not relevant. and extreme conduct can form the basis for an emotional distress claim even if the plaintiff really owes the money! (This is why (D) is wrong. her mistake of fact – she thought that the people had money. if the acts of Global’s employees had resulted in a confinement of Rezzie. (C) isn’t the best answer because physical injury is not absolutely required. hounding.) And because (A) contains an “if. (B) is wrong because it addresses an element that isn’t part of an emotional distress claim. it does not address the 271 . The answer is C. The answer is B. 14. it isn’t relevant. Since the activity he was engaging in. (A) is a good example of a pick that is true but not relevant. he was not imprisoned). The same behavior would be outrageous even if it happened in a restaurant. and intending to engage in. Thus.” it requires you to take it as true that the behavior was extreme and outrageous. The answer is A. False imprisonment requires that the defendant intentionally confined the plaintiff. where creditors are concerned. wrong. (A) is. so it doesn’t matter whether Global can prove that or not. it’s not the best answer.had the specific intent. Again. Farley could not be guilty of an attempt. Here. 15. the element that is most in question is intent. and (B) requires you to take as true that Poe knew with substantial certainty that the door would contact something connected to Kane’s person – the bullhorn. In a false imprisonment case. This is the doctrine of legal impossibility. but they didn’t – is the only thing that prevented her from carrying out the crime. For one thing. he cannot be found guilty of attempt even if he thought that he was engaging in illegal conduct. therefore. In fact. a pattern of abuse. the fact that they did not know that they were violating Rezzie’s rights would not provide them with an effective defense. “intent” means a desire or knowledge that the defendant’s act will result in a confinement of the plaintiff. The plaintiff is confined when his will to leave a place with fixed boundaries is overcome in a way that would similarly overcome the will of a reasonable person in the plaintiff’s situation. But in D. which (unlike factual impossibility) is a defense. was not illegal. Since Rezzie was not prevented from leaving. and the jury could find the necessary proximity. he was not confined (that is.
and it was at least offensive. so it is not relevant. “Extreme and outrageous” is an element of IIED. Customer could not get out. Here. 18. (D) is right because it points out the missing element: intent. (A) is correct because Gruner committed all the elements of battery – he intended to cause the contact with Skipper because he kept throwing rock after rock. (D) is wrong because Skipper doesn’t have to sue Gruner’s parents to win. But. 19. There was a contact. not of battery. (A) says that Customer would have to prove severe bodily harm. False imprisonment requires that defendant intentionally and unlawfully confined the plaintiff within boundaries. but that is not an element of battery either. For Store’s employees to intend to confine Customer. The fact that Customer shook the door handle would not change the Store’s intent to cause the harmful contact. coming closer and closer. which Gruner did. it’s not necessarily true that Poe doesn’t owe the money. owing or not owing money has nothing to do with any element of battery. (A) and (B) are both true. 272 . getting hit by a rock causes pain. Also. but not relevant. (C) says that Customer would have to prove severe emotional distress. Store’s employees didn’t know that Customer was even there. And Store must have intended to cause the contact because the whole point of the mechanism was to spray anybody who did shake the handle. Second. or that defendant knew that the contact would result. and harmful. so he did not know that Gruner was throwing rocks at him. so that element is missing. first of all. Similarly. The answer is D. which is what the question asks about. Skipper was asleep. Here. (B) is wrong because an element is missing: assault requires that the victim apprehend an imminent contact. 17. Skipper can just sue Gruner. A battery claim requires that defendant intended to cause a harmful or offensive contact with another person. (C) is also wrong. but he can’t win unless he can show intent. it will be liable. they would have to (1) have locked Customer in the store on purpose or (2) know that Customer was likely to be locked in. too – rocks are hard and heavy. so at the very least. He wanted to hit Skipper with the rock. and he had no reasonable avenue of escape. The answer is A. (C) is wrong because a minor can be liable if the minor in fact had the intent required. asking a person to leave is not an element of battery. (D) is not right because as long as the Store intended to cause the chemical to spray anybody shaking the door handle. and (B) is the only one that does. (B) is the right answer because the question asks which of the picks contains elements of battery. (C) is wrong because injury is not required if a person is aware of the confinement. (D) is wrong: it states that Kane shouldn’t win because Poe doesn’t owe the money. The answer is B. so this pick is not relevant to what is being asked. Battery also requires that defendant’s act caused a contact to occur.central issue in the battery case: intent. until he finally achieved his objective of hitting Skipper. so they could not have had the intent. but that is not an element. The intent can be proved either by showing that defendant’s purpose was to cause that contact. and that the contact was harmful or offensive.
So the defendant must act either with the purpose of causing apprehension. Assault requires apprehension. that intent will enough to prove intent for battery as long as the rest of the elements are met. (D) is wrong because confinement has nothing to do with battery. and both battery and assault are in that category. Carr knew that there was a way to escape because he thought about driving away. which could be enough to show intent. It only has to do with false imprisonment. (B) is wrong because assault does not require actual fear. (D) is not true – grower did not mean to confine Wife inside the fence. (D) is wrong because trespass to land does not require that a person know whose land it was. The answer is A. Assault is an act that creates an apprehension of imminent battery. He intended to “frighten” Husband and Wife. (A) is wrong because damage is not an element of trespass to land. Besides. (D) is wrong because Grower does not have to intend for the dog to touch Husband.20. 22. (B) is wrong because Carr suffered no contact. (D) is wrong because “restraint” requires that the plaintiff believed that there was no reasonable avenue of escape. Also. Here. The answer is B. so it doesn’t matter whether Husband and Wife knew that they weren’t supposed to be there. but it isn’t necessary for assault. (C) is wrong because conversion requires that the plaintiff’s property be taken or harmed so severely that the defendant should have to pay for it. (C) is wrong because there don’t have to be “No Trespassing” signs for a defendant to be liable. but a lack of signs would not give the person permission. That refers to apprehension. It is enough if Husband was aware that the dog was coming toward him. Because Grower wanted to frighten Wife. Here. but battery does not. Transferred intent is available for five torts. The intent required is the intent to enter onto the land. or he must act knowing that apprehension will result.” so the students’ actions caused him to believe that he could be harmed. which means that he intended for them to think 21. 273 . The “if” in (C) tells you that you must take it as true that Husband saw the dog coming at him. The students would be no match for a moving car. Here. (A) is correct because it uses the concept of transferred intent. Carr’s car was not harmed. The answer is A. He wanted her to leave. the central issue is the intent because Grower did not have the intent usually required for battery – knowing that a harmful or offensive contact will result. This is the only choice that gives Carr any chance to win. (B) is wrong because even though harmful or offensive contact is an element. Furthermore. the students knew that the subjects of this experiment sometimes reacted with shock and fear. The answer is (B) because it is the only answer that accurately describes an element of trespass to land. and the rest of the elements are present in the fact pattern. Carr said that he thought he was “under attack. (C) is wrong because it has nothing to do with battery. “severe” injury is not. which is an element of assault. 23. (A) is wrong because biting would fit a battery claim (harmful or offensive contact). “No Trespassing” signs would tell a person that he didn’t have permission. and the defendant must act with the intent to cause that apprehension. Furthermore. The answer is C. and it was not taken away.
That is the intent needed for assault. and we don’t sue for it because it is such a commonplace. (C) is wrong because the threat is not imminent. Joe said that if he weren’t in such a good mood. A is telling B that A will hit B some time in the future. defendant did know that he had put it there. (A) is wrong because there is no apprehension of imminent battery. (D) is wrong because there is no threat – only words. everyday occurrence. he would flatten Salesman’s face. Defendant did not know that Robby was plaintiff’s brother. which means knowing that serious harm to the chattel will result. (C) is wrong because it does state a claim for conversion. so B didn’t know what A was doing.that they were about to suffer a harmful or offensive contact. Even though defendant did not know that the porch was hanging over plaintiff’s land. but severe emotional distress. That kind of intimate contact with a stranger would violate the person’s right to bodily integrity because women have to right not to be touched in private places by strangers. 26. Furthermore. people tend to bump up against each other. (A) is wrong because this is a good claim for trespass to land. and that is a very threatening pose. Also. An element of IIED is that plaintiff must know that his actions would cause plaintiff severe emotional distress. (A) is wrong because there is no indication that Dan wanted the touching to happen or knew that it would – it sounds like an accident. That element is proved by the gash. 24. And B was aware of what A was doing because B was looking at A. defendant did substantially interfere with the value and condition of the chattel. (B) is most likely to be an assault because the facts seem to fit all the elements. (D) is wrong because Dan probably would not know that patting his wife would offend her because they are in an intimate relationship. A knew that B would feel that he was about to suffer a battery because he raised his fist and walked toward B. The intent required is knowing that the act will prevent the owner from being able to exercise control over the chattel. The answer is C. Dan would not know that such a socially acceptable touching would be harmful or offensive. The battery was imminent because A was only four feet away and was closing in on B. A isn’t telling B that A is going to hit B now. (A) is wrong because the element of apprehension is missing – B wasn’t looking at A. The answer is D. 274 . (B) is wrong because the first element of trespass to chattels is intent. 27. The intent required is the intent to cause entry onto land. He did not say that he was going to flatten Salesman’s face. Instead. (C) 25. The answer is B. and only if B does something first. so defendant would have no way to know that assaulting Robby would cause plaintiff not only emotional distress. The answer is B. (B) is wrong because in that context. in a crowded elevator. (C) is the best answer because Dan wanted to cause a contact with Pauline that he had to know would be offensive. This intent does not mean that defendant has to know that the chattel belongs to someone else. Defendant had to know that hitting a tiny dog with a hard object like an umbrella is likely to cause serious harm.
Stores want people to come in. and therefore vulnerable. and Joe had not yet overstayed his welcome. None of the other answers contain an accurate definition of the intent required. 30. Therefore. The object entering the land must be within a reasonable distance from the surface of the land. Pauline must show that the helicopter was within a reasonable distance. If Dan knew that accusing an average person of having SARS would cause that person severe emotional distress. Defendant is walking away from plaintiff. (D) is the answer that implies the correct definition. (B) is wrong because damage is inferred in trespass cases. 275 . so plaintiff can’t have an apprehension of imminent battery. The intent required is to enter the land or to send something onto the land. (A) is wrong because plaintiff will lose. where any normal person would be absolutely terrified. harmful or offensive). The boundaries of land extend upward. If Donald knew that Pat thought she might fall. and he is confined behind bars. all the elements of battery are arguably present (intent. then he knew that she had an apprehension of an imminent harmful or offensive contact. (A) states that Donald had no intent to inflict any emotional distress. The answer is B. But he had to know that Pat was suffering emotional distress because (1) she was very young. 28. (C) is wrong because defendant does not have apparent ability to carry out a harmful or offensive contact – he is too far away to possibly touch her. (D) is wrong because it contains the wrong definition of the intent required for trespass. he tells her there’s no job and 29. so Pauline does not have to prove damage. to win. (B) is the answer that implies the correct definition. The answer is D.is wrong because stores are open to the public. (D) is not a good answer because transferred intent does not apply to intentional infliction of emotional distress. 32. nor did it result. and (4) at the end of all of this. (C) is wrong because expectation of privacy is not an element of trespass. but not infinitely upward. He doesn’t know that his act will put plaintiff in apprehension of imminent battery because he doesn’t even seem to know that plaintiff is there – defendant is looking at his girlfriend. it does not matter whether the defendant knows whose land it is. If Donald knew that Pat would suffer extreme emotional distress. then the intent would be proved. It was also imminent because it was happening right then. then Dan’s purpose was to cause severe emotional distress. The answer is A. 31. Defendant had to know that he would cause plaintiff to apprehend an imminent battery when he ran at plaintiff with his fist raised. (2) she told him that she was scared to death. The answer is D. (D) is the best answer. contact. so he knew she was upset to start with. The answer is A. He had apparent ability to commit the battery because he was running toward plaintiff with his fist all ready to hit plaintiff. so (B) is the right answer. (B) is wrong because defendant does not have intent. (3) Donald was sending her out on a steel beam 400 feet above the ground. However. (D) is wrong because Joe could not have known that severe emotional harm would result. not at plaintiff.
437 (1921). “The Risk of rescue. The answer is C. Section 507 states “A possessor of a wild animal is subject to (strict) liability for trespass to another for harm done” even though the possessor has exercised the utmost care to confine the animal. Consequently the correct answer is (C). As a result. if only it be not wanton. If the person playing the joke knew that severe emotional distress would result from it. In answering this question the student is challenged to know that elephants are wild animals. Co. International R. The Restatement of Torts. making (A) the most wrong answer. Certainly Coach Dan’s conduct was not so extreme and outrageous to a degree or of a character to go beyond all possible bounds of decency to be regarded as atrocious. that would mean that Patsy’s will to leave must have been overcome. (B) is a true statement because it is possible to recover for IIED without physical injury. Here. False imprisonment requires that the person be confined. 133 N. The answer is B. It may be more difficult. (D) may be a logical pick because the conduct here may be extreme and outrageous because of the actor’s knowledge that the victim is peculiarity susceptible to emotional distress by reason of some physical or mental condition or peculiarity. 2d. Under the “rescue doctrine” efforts to protect the personal safety of another have been held not to supercede the liability for the original negligence that has endangered it. So it’s not clear that Donald did not have the required intent. and the mere fact that the actor knows that the victim will regard the conduct as insulting or will have his feelings hurt is not enough. Mistake is no defense for intentional trespass. Patsy has to prove that she was confined.Y. As Judge Cardozo stated in Wagner v. The answer is C. Clearly both can be correct. Therefore the choices are ether (C) or (D).E. choice (A) is the best answer. Although Dick’s conduct might have prevented Patsy from reaching her son. Donald erroneously believed the channel was a public waterway when. is born of the occasion. Choice C is the correct answer because it addresses Donald’s intentional entry into the channel.it’s just a joke. it was owned by Penelope. 37. Therefore. Note that choice D is wrong because there was no easement created by necessity because there was no conveyance of land presented in the facts. (D) is true. The answer is A. 232 N. But Dick did nothing to prevent Patsy from leaving. In this case.” There is thus an 34. 35. 276 . 33. in fact. 36. The emergency begets the man. (A) and (B) are clearly incorrect because the cases thus far decided have found liability for emotional distress only where the defendant’s conduct has been extreme and outrageous. That might devastate anyone. an IIED claim is possible. Finally. but it is possible. The answer is C. (C) and (D) are wrong. (A) is wrong because damage is not an essential element of false imprisonment. 176.. but one is more correct than the other. It may be cruel or heartless but it must be emphasized that major outrage is essential to the tort. (C) is true – these actions might be extreme and outrageous.
Apprehension in an assault involves an imminent battery. (C) is incorrect. the person rescued or a third party. acceptance is effective only upon receipt. Both (C) and (D) are incorrect because Dave acted honestly and reasonably so his attack on Crooner is privileged as selfdefense. 277 . 41. If a period of acceptance is stated in an offer. because even if the act was extreme and outrageous. However. he would know with substantial certainty that the bullet would enter into someone’s airspace. 38. the tort of trespass to land is also represented in the correct answer. The answer is C. a late acceptance will not be effective and will not create a contract). Failure to timely accept terminates the power of acceptance in the offeree (i. when Shaftum did not receive Martin’s acceptance. the offeree must accept within that period to create a contract. The answer is B. Threats of future harm without some act in furtherance of the threat are not enough to establish assault. While Dante did not purposely shoot the bullet into her airspace. Intent to place someone in immediate fear of physical harm is not enough. In the latter case. Students should be aware that there are both subjective and objective components to the self-defense doctrine. (A) is incorrect because it is irrelevant whether Dante meant to cause apprehension about leaving the pool. (A) is wrong because if Dave honestly but unreasonably believed Crooner was about to attack him. Under the mailbox rule. the acceptance creates a contract at the moment it is mailed or given to the telegraph company). then Dave’s actions would not be privileged. No contract arose on February 2nd because Shaftum’s offer expired on February 1st. so (B) is wrong. Self defense in available if a person reasonably believes he is in danger of being attacked. which arises even when the defendant endangers no one’s safety but his own..e. The answer is A. so (A) is wrong. Any action to eliminate the threat by the plaintiff is irrelevant and do not vitiate any threat of harm. the facts do not establish any other element of Intentional Infliction of Emotional Distress. (B) is wrong because the statement that Penny can only recover if the dog dies is incorrect. The tort of trespass to chattels is a possibility if the dog lives and fully recovers.. Pious will not recover if Drugdealer’s conduct did not threaten immediate physical harm. The defendant must honestly believe he is about to be attacked and the belief must be reasonable. Assault requires that the defendant create apprehension of an immediate battery. not fear of leaving a dog alone. even if later he learns that there was no danger. Here. Remember that whether the rescuer injures himself. 40. an acceptance generally is effective upon dispatch (i. When the bullet came down in Penny’s yard it entered her airspace.independent duty of care owed to the rescuer himself. Shaftum’s offer specifically stated that the acceptance must be received by February 1st to be 39. the mailbox rule does not apply where the offer states that acceptance will not be effective until received.e. The answer is D. Extreme and outrageous conduct is not an element of assault. the original wrongdoer is still liable.
The issue here is whether either of Sack’s replies constitutes an unequivocal acceptance of this offer. (B) is incorrect because of the requirement that acceptance be received by February 1st. receipt of the telegram on February 2nd created neither a contract nor an obligation on the part of Shaftum to respond to the telegram. Most likely this would be considered to be an inquiry. Once the specified time passed without receipt of acceptance. as explained above. (C) is incorrect because Shaftum was not obligated to respond in any way to the telegram received on February 2nd. Sack’s second communication unequivocally accepts Fox’s offer. Fox offered to sell his house and lot at 337 Green Street for $100. The additional language in Sack’s telegram (about the deed) is not an alteration of the original terms because implicit in a sale-of-land contract is that a deed will be conveyed. Thus. 42. The facts of this question provide no basis for concluding that any contract that might have arisen between these parties would be voidable. The February 11th communication is an acceptance. the offer (as well as Martin’s power of acceptance) was terminated. there must be a valid offer and an unequivocal acceptance before the offer is either rejected by the offeree or revoked by the offeror. Statements by the offeree that make implicit terms explicit do not prevent acceptance of the offer. (D) is incorrect because no contract.g. when the message was given to the telegraph company. The test of whether the reply is a counteroffer or inquiry is whether a reasonable person would believe that the offer was being rejected. This requirement obviates that general “mailbox rule. and no contract was created by delivery of the telegram on February 2nd. and a contract was formed. A counteroffer serves as a rejection of the original offer as well as a new offer. arose on February 1st. This would be a valid argument if the mailbox rule applied here because the acceptance would have been effective on February 1st. Shaftum opted out of the mailbox rule.000). the facts do not indicate circumstances under which a contract is usually held to be voidable.effective. Note that Martin will not be able to successfully argue that the acceptance was valid since the late delivery was the telegraph company’s fault. Since promises were exchanged (a promise to sell the property for a promise to pay $100. However. A voidable contract is a contract that one or both parties may elect to avoid or to ratify (e.” so that mere mailing of a letter (or sending of a telegram) does not operate as an effective acceptance. Sack’s February 8th communication did not 278 . by opting out of the mailbox rule. there was no valid acceptance. Sack’s February 8th communication was a mere inquiry. Thus. contracts of infants).. Thus. For there to be mutual assent. valid consideration existed. a mere inquiry about additional terms or matters is not a counteroffer. However. The answer is A. rather than a counteroffer. This was an offer to Sack. Furthermore. Here. voidable or otherwise. His statements do not show an outright rejection if his terms are not agreed to. (B) is wrong because. Thus. Shaftum put the burden of any negligence in delivery on Martin. Sack clearly states that he accepts the “offer of February 3rd” (showing that he is agreeing to Fox’s original terms). A contract was formed here because there was mutual assent and valid consideration. he merely states what he would prefer and then asks Fox to consider his proposal. Here.000.
(A). a unilateral contract was formed. (B) is incorrect because Professor’s motive was to induce a detriment (intensive study). (A) is wrong because the offer was valid. when Stillwell received the highest grade. Since Professor had stated the nature of the performance that he was requesting and had specified the terms. instead. but rather mere preparation to perform. (B) is incorrect because whether the acceptance is effective depends on whether the revocation was received before the acceptance was sent. and gratification from influencing the mind of another may be sufficient to establish bargained-for consideration. (C). (A) is incorrect because. The answer is C.” There is no mailbox rule. it depends on whether Sack had possession of it. 279 . the offer is irrevocable as to Stillwell. Here. Thus. stamped letter to a mail carrier is not a valid posting. Neither contained alterations of the offer’s terms. 46. although it would 44. the purchase constitutes foreseeable detrimental reliance sufficient to make the promise binding on Professor. Nevertheless. as indicated above. (D) is wrong because a contract for the sale of land need only identify the land and contain a price term. This will decide the existence or nonexistence of the contract. this was not to be a gift. The outcome of this question will depend on the court’s determination as to which came first (the posting of the acceptance or receipt of the revocation). the offer was still viable. obtaining the highest grade in his class). Stillwell’s purchase of every Constitutional Law outline is not the beginning of performance. Since the communication was a mere inquiry. upon mailing a properly addressed and stamped letter) under the “mailbox rule. an acceptance is effective upon dispatch (e. and (D) are therefore incorrect. and the second merely expressed terms already implicit in the offer.] The facts here present a close question as to whether the acceptance was sent before the revocation was received. Thus. The answer is D.constitute a counteroffer. which would act as a rejection of the offer. Here. Professor would be held to have made an offer. (D) is incorrect because the mailbox rule makes acceptances effective upon posting.. At common law. (C) is wrong because the first communication only inquired about altering the deal. and there is no reason to hold that handing a properly addressed. It was a sufficiently definite offer. The answer is B. not mailing. A unilateral contract is revocable until performance is begun. [See Restatement (Second) of Contracts §68. 43. (B) is wrong as to Stillwell. Since Professor’s offer could only be accepted by completion of performance (that is. The answer is C. and whether the revocation was received first is not dependent on whether Sack know of its contents. for revocations – revocations are effective only upon receipt. Thus. revocation is effective only upon receipt. and Sack could accept it. however. 45. (A) and (D) are incorrect. but merely possession of it. Receipt does not require knowledge of the revocation. creating a power of acceptance in the student who received the highest grade.g. the offer adequately described the property and stated the price.
it need not actually reach everyone who knew of the offer.be correct as to anyone who had not detrimentally relied on the offer. (C) is wrong because a revocation need only be published in the same manner as the offer. 280 .
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