1. ELEMENTS B POWER POINT SLIDES Class #8 (Extendo-Class) Friday, September 4, 2015

2. MUSIC: SERGEI PROKOFIEV, PETER & THE WOLF (1936) Chamber Orchestra of Europe (2007) conductOR: CLAUDIO ABBADO NARRATOR: STING MONDAY 9/7 No Class (Labor Day) No Class (Labor Day) No Dean’s Fellow Session No Dean’s Fellow Session Radium: Written Shaw Brief Due @ 4 pm (Please Reread Instructions Before Finalizing Submission) Radium: Written Shaw Brief Due @ 4 pm (Please Reread Instructions Before Finalizing Submission) Posted on Course Page: Complete Schedule of Due Dates for Written Briefs & Group Assignments E-Mail Me if Qs

3. LOGISTICS: CLASS #8 Radium: Written Shaw Brief Due Mon @ 4 pm – In Info Memo #1: … Instructions For All Written Submissions (IM21-22) Instructions For Case Briefs (IM22) Common Writing Concerns (IM24-26) Questions On Instructions Or Writing Concerns?

4. COVERAGE: CLASS #8 (Break @ 9:45) 1.Complete DQ1.15 (Uranium) 2.End of Liesner Brief, DQs 1.16-1.17, Intro to DQ1.18 (Radium) 3.1914 4.Liesner Trial Transcript & DQs 1.19-1.22 (Oxygen & Krypton) 5.DQ1.18 (b) (Radium ) (if time)

5. Liesner DQ1.15: Uranium Application of Pierson to Facts of Liesner FACTS (as found by TRIAL COURT) 1.Ps mortally wounded animal, pursued 2.Escape Improbable, if not impossible 3.D then shot, killed & took animal APPLY POLICIES FROM PIERSON Reward Effective Labor?

6. Liesner DQ1.15: Uranium Application of Pierson to Facts of Liesner FACTS (as found by TRIAL COURT) 1.Ps mortally wounded animal, pursued 2.Escape Improbable, if not impossible 3.D then shot, killed & took animal APPLY POLICIES FROM PIERSON Achieve Certainty?

7. Liesner Back To Radium for DQ1.16-1.17 & Facts/Issue/Holding Hard case at this stage of Law School because reviewing decision on sufficiency of evidence, not ruling on relevant law.

8. Liesner DQ1.16: Radium DIRECTED VERDICT Generally: Trial Court Rules That One Party Presented Insufficient Evidence to the Jury to Meet Relevant Legal Standard

9. Liesner DQ1.16: Radium DIRECTED VERDICT Monday: This Was (Unusual) Directed Verdict for Plaintiffs Trial Court must have believed that undisputed evidence proved Ps’ case (i.e., D presented insufficient evidence to contradict undisputed evidence supporting Ps) Wanie Conceded Relevant Legal Standards, So Must Be Claiming on Appeal That He Presented Evidence Sufficient to Raise Jury Q

10. Liesner DQ1.16: Radium DIRECTED VERDICT What test does the Wisconsin Supreme Court appear to apply as to when a trial court should grant a motion for directed verdict?

11. Last Paragraph: “The evidence in this case very strongly tends to establish all the facts requisite to ownership of the wolf by plaintiffs,—so strongly that all reasonable doubts in respect to the matter, if any would otherwise have remained, might well have been removed by the superior advantages which the trial court had. In the light of other evidence, all reasonable doubts may well have been removed as to who delivered the shot which so crippled the animal as to cause him to cease trying to escape ….”

12. “The evidence in this case very strongly tends to establish all the facts requisite to ownership of the wolf by plaintiffs,—so strongly that all reasonable doubts in respect to the matter, if any would otherwise have remained, might well have been removed by the superior advantages which the trial court had. In the light of other evidence, all reasonable doubts may well have been removed as to who delivered the shot which so crippled the animal as to cause him to cease trying to escape ….”

13. Liesner DQ1.16: Radium DIRECTED VERDICT: IMPLICIT LEGAL TEST IN WISCONSIN (1914) The trial court can direct a verdict for a party if uncontested evidence removes all reasonable doubts that the party’s claim has been proved.

14. Liesner DQ1.16: Radium DIRECTED VERDICT: IMPLICIT LEGAL TEST IN WISCONSIN (1914) The trial court can direct a verdict for a party if uncontested evidence removes all reasonable doubts that the party’s claim has been proven. What facts does Wanie claim were not proved beyond a reasonable doubt? (from Monday)

15. “That … the plaintiffs were in vigorous pursuit of the game, the evidence is clear, and that in a few moments, at most, they would have had actual possession, is quite as clear. In the light of other evidence, all reasonable doubts may well have been removed as to who delivered the shot which so crippled the animal as to cause him to cease trying to escape ….”

16. Liesner DQ1.16: Radium What facts does Wanie claim were not proved beyond a reasonable doubt? Wanie’s claim must be: I presented sufficient evidence – either that other people’s shots might have mortally wounded the wolf – or that the Liesners’ shots didn’t hit it or didn’t mortally wound it so as to create reasonable doubts that the shot that mortally wounded the wolf was fired by one of the Liesners.

17. Liesner Brief: Radium ISSUE Did the Trial Court err (Procedural) by directing a verdict for the plaintiffs (Substantive) because the defendant offered sufficient evidence to create a reasonable doubt about who fired the shot that mortally wounded the wolf, thus gaining ownership of it?

18. Liesner Brief: Radium FACTS (must reflect that D still contests that Ps mortally wounded wolf) Plaintiffs mortally wounded a wolf and pursued it to the point that escape was improbable, if not impossible. D then shot & killed the wolf and took the carcass.  The Trial Court found that Plaintiffs mortally wounded a wolf and pursued it to the point that escape was improbable, if not impossible. D then shot & killed the wolf and took the carcass.

19. Liesner DQ1.16: Radium Is the Wisconsin Supreme Court certain that the test for directed verdict was met in this case?

20. The evidence in this case very strongly tends to establish all the facts requisite to ownership of the wolf by plaintiffs,—so strongly that all reasonable doubts in respect to the matter, if any would otherwise have remained, might well have been removed by the superior advantages which the trial court had. In the light of other evidence, all reasonable doubts may well have been removed as to who delivered the shot which so crippled the animal as to cause him to cease trying to escape ….

21. Liesner Brief: Radium HOLDING No, the Trial Court did not err (Procedural) by directing a verdict for the plaintiff (Substantive) because all reasonable doubts may well have been removed as to who fired the shot that mortally wounded the wolf, thus gaining ownership of it.

22. “The evidence in this case very strongly tends to establish all the facts requisite to ownership of the wolf by plaintiffs,—so strongly that all reasonable doubts in respect to the matter, if any would otherwise have remained, might well have been removed by the superior advantages which the trial court had.”

23. Liesner DQ1.17: Radium What are “the superior advantages which the trial court had”?

24. Liesner DQ1.17: Radium What are “the superior advantages which the trial court had”? Visual Observation of Witnesses and of Physical Evidence Hearing Testimony

25. her She asked me to take her to the dance.

26. Liesner DQ1.17: Radium What do these advantages suggest about the appropriate role of the appellate court in reviewing factual determinations made by juries or trial judges?

27. Liesner DQ1.17: Radium What do these advantages suggest about the appropriate role of the appellate court in reviewing factual determinations made by juries or trial judges? DEFERENCE!! See, e.g., tests for taking a case away from the jury: Wisc 1914: “No reasonable doubts remain.” Fed’l 2015: “No reasonable jury could find …”

28. Liesner Brief: Radium RATIONALES Not especially significant in a narrow case reviewing sufficiency of the evidence. Might give “prevailing rule” as a doctrinal rationale. Might give “superior advantages” as a policy rationale Examples of each in Sample Brief

29. Liesner DQ1.18: Radium “Prevailing rule” (Three Formulations): Property in a wild animal created if people have “substantially permanently deprived [animal] of his liberty—had him so in their power that escape was highly improbable, if not impossible….” “The instant a wild animal is brought under the control of a person so that actual possession is practically inevitable, a vested property interest in it accrues which cannot be divested by another’s intervening and killing it.”

30. Liesner DQ1.18: Radium “Prevailing rule” (Three Formulations): Property in a wild animal created if people [1] have “substantially permanently deprived [animal] of his liberty — had him so in their power that escape was highly improbable, if not impossible….” “The instant a wild animal is brought under the control of a person so that actual possession is practically inevitable, a vested property interest in it accrues which cannot be divested by another’s intervening and killing it.”

31. Liesner DQ1.18: Radium “Prevailing rule” (Three Formulations): Property in a wild animal created if people [1] have “substantially permanently deprived [animal] of his liberty —[2] had him so in their power that escape was highly improbable, if not impossible ….” “The instant a wild animal is brought under the control of a person so that actual possession is practically inevitable, a vested property interest in it accrues which cannot be divested by another’s intervening and killing it.”

32. Liesner DQ1.18: Radium “Prevailing rule” (Three Formulations): Property in a wild animal created if people [1] have “substantially permanently deprived [animal] of his liberty—[2] had him so in their power that escape was highly improbable, if not impossible….” “The instant [3] a wild animal is brought under the control of a person so that actual possession is practically inevitable, a vested property interest in it accrues which cannot be divested by another’s intervening and killing it.”

33. Liesner DQ1.18: Radium “Prevailing rule” (Three Formulations): (1) substantially permanently deprive [animal] of liberty (SPDL) (2) [have the animal] so in their power that escape improbable, if not impossible (3) [bring the animal] under control so that actual possession practically inevitable

34. Liesner DQ1.18 (a): Radium MEANING OF LANGUAGE? Court refers to “the prevailing rule;” so might believe all 3 formulations mean the same thing. BUT usual assumption in law that courts and legislatures (or contracting parties) choose specific language for a reason, so if they use different phrases, they must mean/intend different things. Yields three Qs that are implicitly part of 1.18(a) that we’ll pick up with on Wednesday.

35. Liesner DQ1.18 (a): Radium Property Rights in Animal IF: substantially permanently deprived [animal] of his liberty MEANING OF LANGUAGE for Wednesday Significance of Two Separate Adverbs?

36. Liesner DQ1.18 (a): Radium Property Rights in Animal IF: so in their power that escape was highly improbable, if not impossible under the control of a person so that actual possession is practically inevitable MEANING OF LANGUAGE for Wednesday Difference betw. underlined phrases?

37. Liesner DQ1.18 (a): Radium Property Rights in Animal IF: so in their power that escape was highly improbable, if not impossible under the control of a person so that actual possession is practically inevitable MEANING OF LANGUAGE? for Wednesday Difference betw. underlined phrases?

38. Liesner v. Wanie: Context 1914

39. Liesner v. Wanie: Context 1914: Deaths Joshua Lawrence Chamberlain (Civil War Hero) John Muir (Naturalist) Jacob Riis (Journalist/Author) 19 th Century Industrialists – CW Post (Grape Nuts & Other Cereals) – George Westinghouse (Railroad Brake and Electronics) – Frederik Weyerhauser (Timber & Paper)

40. Liesner v. Wanie: Context 1914: Births Alec Guiness Joe Louis Joe DiMaggio Ralph Ellison Danny Thomas Dylan Thomas

41. Liesner v. Wanie: Context 1914: Introduced in U.S. term “Birth Control” (coined by Margaret Sanger) First Blood Transfusion Doublemint chewing gum Elastic Brassiere Federal Trade Commission Company that will become Greyhound Bus Mother’s Day (by Congr. Resolution)

42. Liesner v. Wanie: Context 1914: Introduced in U.S. New Republic Magazine Panama Canal Pygmalion by GB Shaw Rookie Pitcher: Babe Ruth Tarzan of the Apes Teletype Machine Traffic Lights using red-green signals

43. Liesner v. Wanie: Context 1914: World War I 101 Years Ago Tomorrow: Sept. 5: 1 st Battle of the Marne Begins NE of Paris, French 6 th Army Attacks Germans  Allied Victory (Keeps German Army out of Paris)

44. Liesner v. Wanie: Context 1914: World War I Sept. 5: 1 st Battle of the Marne Begins NE of Paris, French 6 th Army Attacks Germans  Allied “Victory” Two Million Soldiers Participate

45. Liesner v. Wanie: Context 1914: World War I Sept. 5: 1 st Battle of the Marne Begins NE of Paris, French 6 th Army Attacks Germans  Allied “Victory” Two Million Soldiers Participate 500,000 Killed or Wounded

46. Liesner v. Wanie: Context 1914: World War I Sept. 5: 1 st Battle of the Marne Begins NE of Paris, French 6 th Army Attacks Germans  Allied Victory Two Million Soldiers Participate 500,000 Killed or Wounded Dec. 24-25: Christmas Truce

47. Liesner v. Wanie: Context 1914: World War I June 28: Archduke Francis-Ferdinand Assassinated in Sarajevo: “The Shot Heard Round the World”

48. Liesner v. Wanie On to “Some Shots Into a Brush Pile” ( Liesner Trial Transcript) featuring OXYGEN KRYPTON OXYGEN & KRYPTON

49. Liesner Trial Transcript Note Anderson testimony (p.17): “REPLEVIED” Suggests replevin was cause of action. (= Common law action for return of personal property)

50. Liesner Trial Transcript: DQ1.19(a) Oxygen Liesners must have argued: L-Boys did mortally wound wolf L-Boys did continue pursuit BEST EVIDENCE SUPPORTING?

51. Liesner Trial Transcript: DQ1.19(b) Krypton KEY ARGUMENTS BY WANIE’S ATTORNEYS? Uncertain that L-Boys mortally wounded wolf L-Boys did not continue pursuit BEST EVIDENCE SUPPORTING?

52. Liesner Trial Transcript: DQ1.20 Oxygen What is the best explanation you see for why the trial judge concluded there was no issue for the jury to decide?

53. Liesner Trial Transcript: DQ1.20 Trial Judge’s Perspective He must believe: – Abdomen shot was mortal wound (“gut shot”; wolf’s behavior) – Only evidence of shot that could have made that wound was Liesner shot (bullet/angle)

54. Liesner Trial Transcript: DQ1.20 Trial Judge’s Perspective He must believe: – Abdomen shot was mortal wound (“gut shot”; wolf’s behavior) – Only evidence of shot that could have made that wound was Liesner shot (bullet/angle) Keep in Mind – Judge might have experience with guns/hunting – Judge could see pelt & holes – Not every factual dispute is material to outcome. Whether there was “manure” in abdominal cavity Whether Wanie tried to hide bullet hole

55. Liesner Trial Transcript: DQ1.21 Krypton Why Bother? Why do you think the Liesner family chose to bring this lawsuit?

56. Liesner Trial Transcript: DQ1.21 Krypton Why do you think the Liesner family chose to bring this lawsuit? Ideas include: Father Acting as Good Parent (Prather); Maybe Related to Either: – Shooting = important coming-of-age moment for boys (1 st wolf seen/killed) – Father protecting boys against perceived bully/cheater Maybe reflective of larger social split in community

57. Liesner Trial Transcript: DQ1.21 Krypton Why Bother? Why do you think Wanie expended the resources needed to take the case to the state Supreme Court?

58. Liesner Trial Transcript: DQ1.21 Krypton Why do you think Wanie expended the resources needed to take the case to the state Supreme Court? Ideas include: Interest as regular hunter in clarifying rules/fixing bad result (although concedes prevailing rule) Defending Liesner father’s challenge to his integrity (manure/patch) Again, maybe reflective of larger social split in community

59. Liesner Trial Transcript: DQ1.22 Krypton The trial record contains lots of information that you did not find in the Supreme Court’s opinion. How should this information affect the arguments you make based on the published opinion?

60. Liesner Trial Transcript: DQ1.22 Krypton Relevance of additional facts found in trial record to how you should read/use the appellate opinion? Helps to understand what happened BUT normally unavailable to lawyers. Meaning of written opinion: – Determined by what Wisc SCt chooses to include – What doesn’t go into opinion isn’t part of opinion (cf. Las Vegas)