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Just Briefly …. Nature of the Enterprise Make Legal Arguments & Advise Clients in a Rapidly Changing World.

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Presentation on theme: "Just Briefly …. Nature of the Enterprise Make Legal Arguments & Advise Clients in a Rapidly Changing World."— Presentation transcript:

1 Just Briefly …

2 Nature of the Enterprise

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4 Make Legal Arguments & Advise Clients in a Rapidly Changing World

5 READING CASES CASE = Resolution of a Particular Dispute

6 READING CASES Resolution of a Particular Dispute + Guide to Resolution of Possible Future Disputes

7 READING CASES Resolution of a Particular Dispute Guide to Resolution of Possible Future Disputes Initial Difficulty Finding Key Points: “The Real World”

8 READING CASES Resolution of a Particular Dispute Guide to Resolution of Possible Future Disputes Initial Difficulty Finding Key Points Briefs = Tools to Help Identify Key Info

9 Case Brief as Resumé Relatively Standardized Information

10 Case Brief as Resumé Relatively Standardized Information Often Incomplete Picture of Case

11 Case Brief as Resumé Relatively Standardized Information Often Incomplete Picture of Case Vary Form & Content for Different Purposes (my resumes)

12 Case Brief as Resumé Relatively Standardized Information Often Incomplete Picture of Case Vary Form & Content for Different Purposes Follow Instructor’s Directions!!!

13 ARE THERE ALTERNATIVES TO BRIEFS?

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15 ARE THERE ALTERNATIVES TO BRIEFS? NO!

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17 Parts of the Brief Citation

18 CITATION Provides information on how to locate the case. Provides information on the significance of the case as precedent.

19 CITATION In re Zbiegien, 433 N.W. 2d 871 (Minn. 1988)

20 CITATION: PARTIES Just Use Last Names Just Use First Party Named on Each Side Use Standard Shortened Forms & Abbreviations (you’ll learn soon)

21 Commonwealth of Virginia v. Mary and Frieda Smith  Commonwealth v. Smith

22 In the Matter of John A. Zbiegien  In re Zbiegien

23 433 N.W. 2d 871 (Minn. 1988) 433 = Volume 433 N.W.2d = Second Series of the Northwestern Reporter 871 = Starting at page 871

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25 433 N.W. 2d 871 (Minn. 1988) Minn. = Supreme Court of Minnesota Minn. App. = Minnesota Court of Appeals D. Minn. = Federal District Court for the District of Minnesota

26 PER CURIAM. Petitioner, John A. Zbiegien, appeals from a recommendation of the State Board of Law Examiners that he not be admitted to the Bar of Minnesota because he had failed to prove that he possesses the requisite character and fitness to be so admitted. Our review of the record before us does not persuade us that petitioner must be barred from the practice of law for lack of character. We direct the Board to recommend his admission.

27 Parts of the Brief Citation Statement of the Case

28 Summary of the legal action that initiated the case Also useful for concisely describing cases in legal arguments Need enough detail to get a sense of what was at stake

29 Plaintiffs sued Defendant for libel seeking damages and an injunction

30 Lachey and Simpson sued The National Enquirer, Inc. for libel seeking damages and an injunction.

31 Lachey and Simpson, entertainers, sued The National Enquirer, Inc., a tabloid newspaper, for libel seeking damages and an injunction.

32 Lachey and Simpson, married entertainers, sued The National Enquirer, Inc., a tabloid newspaper that had published articles describing problems in their marriage, for libel seeking damages and an injunction.

33 Lachey and Simpson, conventionally attractive and moderately talented singers whose 15 minutes of fame would have expired years ago but for their willingness to allow MTV to broadcast all but the most intimate parts of their married life together…

34 Statement of the Case Jones and others, homeowners living within a mile of a tannery that produced unpleasant odors, sued Suedeco, owner of the tannery, for Nuisance, seeking to have operation of the tannery enjoined. Smith and Wesson, who were found inside a house owned by a third party, were charged with Second Degree Burglary

35 Statement of the Case The Minnesota State Board of Law Examiners conducted an investigation of Zbiegien, a law school graduate who had been disciplined for plagiarism while in law school. Zbiegien, a law school graduate who had been disciplined for plagiarism while in law school, applied for admission to the Minnesota State Bar

36 Parts of the Brief Citation Statement of the Case Procedural Posture

37 Procedural steps between the initiation of the legal proceeding and the opinion that you are briefing. Try to limit to steps important to understanding the case. Can be useful in determining the legal issue.

38 Procedural Posture After a trial, a jury convicted Rove of perjury. The Court of Appeals affirmed the verdict. The Supreme Court granted Rove’s petition for review. The trial court granted the defendant’s motion for summary judgment. The plaintiffs appealed.

39 Procedural Posture After a hearing, the Board recommended that Zbiegien not be admitted to the Bar. Zbiegien appealed.

40 Parts of the Brief Citation Statement of the Case Procedural Posture Facts

41 FACTS Events that took place prior to filing of lawsuit outside of court.

42 FACTS Events that took place prior to filing of lawsuit Include facts relevant to outcome & to reasoning(judgment call)

43 FACTS Events that took place prior to filing of lawsuit Include facts relevant to outcome & to reasoning –Names, places, dates rarely important

44 FACTS Events that took place prior to filing of lawsuit Include facts relevant to outcome & to reasoning –Names, places, dates rarely important –Important facts not necessarily in “fact section” at beginning

45 Zbiegien FACTS (Specific) Dec. 23, 1988  17 months Computer problems involved indenting and footnoting 1 st Draft 4 th Year of Law School Child was 16 years old in Nov. 1986

46 Zbiegien FACTS (Overview) Circumstances surrounding submission of paper Sanction by school & letter from Dean Bar application language Prior good record Evidence of remorse Passed bar exam; 17 months elapsed

47 AVOIDING PLAGIARISM For each fact or idea that is not yours, cite to the authority where you found it.

48 AVOIDING PLAGIARISM For each fact or idea that is not yours, cite to the authority where you found it. If a string of connected ideas or an extended argument are derived from a single source, say so explicitly.

49 AVOIDING PLAGIARISM For each fact or idea that is not yours, cite to the authority where you found it. If a string of connected ideas or an extended argument are derived from a single source, say so explicitly. Indicate language taken directly from a source with quote marks or indentation.

50 Proper Use of Authority Makes Legal Arguments Stronger

51 Rule II.A of the Minnesota Rules of the Supreme Court for Admission to the Bar provides that an applicant must establish good character and fitness to the satisfaction of the Board. “Good character” is defined as “traits that are relevant to and have a rational connection with the present fitness or capacity of an applicant to practice law.” Definition 4, Minn.R.Admis. Bar (1986). The burden of establishing good moral character is on the applicant. In re Haukebo, 352 N.W.2d 752, 754 (Minn.1984). -- Zbiegien (p.3)

52 Parts of the Brief Citation Statement of the Case Procedural Posture Facts Issue/Holding

53 ISSUE/HOLDING ISSUE = A legal question the court must resolve to decide the case (may be more than one) HOLDING = The court’s resolution of an issue.

54 ISSUE/HOLDING ISSUE = Is evidence of homosexuality relevant to whether someone has the requisite character and fitness to become a member of the bar? HOLDING = No. Evidence of homosexu- ality is not relevant to whether someone has the requisite character and fitness to become a member of the bar.

55 ISSUE/HOLDING “In determining whether petitioner should be denied admission to the Bar, we consider first whether a single incident of plagiarism while in law school is sufficient evidence to prove lack of good character and fitness.” (p.4)

56 We cannot conclude, however, that a single incident of plagiarism while in law school is necessarily sufficient evidence to prove lack of good character and fitness to practice law. (p.4) … We hold that, under the facts and circumstances of this case, petitioner will not be barred from the practice of law for a single incident of plagiarism while in law school. (p.6)

57 ISSUE/HOLDING “In determining whether petitioner should be denied admission to the Bar, we consider first whether a single incident of plagiarism while in law school is sufficient evidence to prove lack of good character and fitness.” (p.4) COURT NEVER RESOLVES THIS! CAN’T BE THE “ISSUE”.

58 ISSUE/HOLDING Should an applicant be denied admission to the bar where he committed one incident of plagiarism in law school during a time of family crisis and did not explicitly admit to plagiarism on his bar application, but provided the Board with enough information to discover the incident, and has already been denied admission for 17 months?

59 ISSUE/HOLDING Additional Step: Where you are briefing an appellate opinion, identify the mistake made by the court or agency whose decision was appealed.

60 ISSUE/HOLDING Did the trial court err by excluding evidence of the victim’s bathing habits because … Did the trial court err in refusing to grant a new trial because … Did the Board err by recommending that the applicant not be admitted to the bar because …

61 ISSUE/HOLDING Did the Board err by recommending that the applicant not be admitted to the bar because an applicant should not be denied admission where he committed one incident of plagiarism in law school during a time of family crisis and did not explicitly admit to plagiarism on his bar application, but provided the Board with enough information to discover the incident, and has already been denied admission for 17 months?

62 Parts of the Brief Citation Statement of the Case Procedural Posture Facts Issue/Holding [Result]

63 RESULT The court vacated the trial court’s judgment and remanded for a new trial of the negligence claim. Affirmed. The court directed the Board to recommend Zbiegien’s admission to the Bar

64 Parts of the Brief Citation Statement of the Case Procedural Posture Facts Issue/Holding [Result] Rationales

65 RATIONALES Doctrinal Rationales: The court relies on prior legal authority to support its decision Policy Rationales: The court reasons that people or society will be better off if it decides the case in a particular way

66 RATIONALES Useful to try to put most of the rationale in your own words Quote crucial words and phrases Make explicit how the rationale supports the result Distinguish between explicit rationales and implicit or plausible rationales

67 RATIONALES The court cited cases finding omissions from bar applications to be insufficient grounds for denying admission to the practice of law. (Waters, Hallinan).

68 RATIONALES The court cited cases finding omissions from bar applications to be insufficient grounds for denying admission to the practice of law. (Waters, Hallinan). The court seemed to suggest that, because he provided the Board with enough information to discover his plagiarism, Zbiegien’s failure to explicitly admit in his application that he had plagiarized was similarly an omission (and thus insufficient grounds for denial), rather than a misrepresentation.

69 RATIONALES The court’s statement that Zbiegien “has had his admission delayed for over a year” suggests that the court may have believed that the long delay constituted sufficient punishment for both the plagiarism and any subsequent attempt to cover it up. (Dissent reads majority this way)

70 Parts of the Brief Citation Statement of the Case Procedural Posture Facts Issue/Holding [Result] Rationales Concurrences/Dissents

71 Separate Opinions Concurrence = I agree with majority’s reasoning but wish to add or clarify points

72 Separate Opinions Concurrence = I agree with majority’s reasoning but wish to add or clarify points Concurrence in the Judgment/Result = I agree with the outcome reached by the majority but not with its reasoning.

73 Separate Opinions Concurrence = I agree with majority’s reasoning but wish to add or clarify points Concurrence in the Judgment/Result = I agree with the outcome reached by the majority but not with its reasoning. Dissent: I disagree with the outcome reached by the majority and with at least some of its reasoning.

74 Separate Opinions Often raise points/arguments not addressed by the majority Positions might be adopted –in other jurisdictions OR –at a later time in the same jurisdiction List major points in your brief

75 Dissent: Would deny admission and allow Z to reapply later Numerous bar rules and cases show great concern about lawyers’ honesty; conduct here found dishonest & deceitful Majority approach seems to put burden of proof improperly on Board Majority should give deference to Board finding that Z intended to deceive Board

76 Notes on Character Screening Very rigorous in some states (Florida)

77 Notes on Character Screening Very rigorous in some states (Florida) Importance of Disclosure

78 Notes on Character Screening Very rigorous in some states (Florida) Importance of Disclosure Importance of Remorse –Majority v. Dissent

79 Notes on Character Screening Very rigorous in some states (Florida) Importance of Disclosure Importance of Remorse –Majority v. Dissent –Accordingly, in the guise of labeling it “remorse,” I decline to substitute my personal empathy for the petitioner.

80 Parts of the Brief Citation Statement of the Case Procedural Posture Facts Issue/Holding [Result] Rationales Concurrences/Dissents [Critique]

81 CRITIQUE Question the court’s reasoning and assumptions Think about other ways to handle the underlying problem. Ask if justice was done.

82 Critique: Character Screening Might question the significance of this incident –Very difficult circumstances –First Draft –Little other evidence of problems

83 Critique: Character Screening Might question the ability of Board to identify “good character” –Pretty vague –Difficulty distinguishing “good character” from good acting –Evidence that bad behavior is very contextual –Discriminatory history of character screening

84 Final Point: Bad Things Happen Life doesn’t go on hold during law school.

85 Final Point: Bad Things Happen. Life doesn’t go on hold during law school. Ask for help if you need it. (Zbiegien is avoidable)

86 Final Point: Bad Things Happen. Life doesn’t go on hold during law school. Ask for help if you need it. Be generous with each other –You don’t always know the whole story –There but for the grace of God … –Law School as a collective endeavor

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