PLACE ASSIGNMENT II FACE DOWN IN BOX Please Take Seats Early So We Can Start Right Away –Defendant Interview Team in Front of Room –Plaintiff Interview Team in Back Row for Easy Exit All Turn to “Someone in a Tree” (S68)

Someone in a Tree (1976) Narrator (“Reciter”) complains that there were no witnesses to the meeting at which Admiral Perry & the Japanese signed treaty Two witnesses--boy in tree & Samurai under building—come forward: –How do they know what they know? –How reliable are they?

GRAY INTERVIEW #1 BODDICKER’S LAWYERS

GRAY INTERVIEW #2 LAWYERS FOR BOGGS & MARTINEZ

GRAY INTERVIEW #3 FOLLOW-UP QUESTIONS FROM THE AUDIENCE

GRAY INTERVIEW THANK YOU to ANDREA CORTLAND

LOGISTICS INFO MEMO #3 POSTED AFTER CLASS –Property Midterm Info –Exam Tips –Comments on Assignment II (Prior Classes) CHAPTER 6 POSTED BY TOMORROW OFFICE HOURS THIS WEEK –Cancelled Today –Thursday 2-5 pm –Saturday 2-6 pm

ASSIGNMENT II FOLLOW-UP Both Sets of Materials Posted After Class To Get Maximum Benefit: –Read Other Side’s Info –Look at Other Group’s Submissions –Compare to Comments on Prior Classes Legal Issues for Review –D would contest Continuity & Exclusivity –Best Arguments for Each Side?

FACTS v. EVIDENCE Two Sets of Problems Discovering Facts: 1.What Witness Knows 2.What Lawyer Can Get From Witness

What Witness Knows 1.Ability to Perceive 2.Ability to Remember 3.Interpretation by Witness

What Witness Knows 1.Ability to Perceive Physical Limits of Witness Situation-Specific Limits 2.Ability to Remember 3.Interpretation by Witness

What Witness Knows 1.Ability to Perceive 2.Ability to Remember –Clearly Limited in Fact –When Likely to Improve? (Wigmore) 3.Interpretation by Witness

Interpretation by Witness To explain & fill-in what we see, we tell ourselves stories

“I don’t know if that’s our flock or another flock or just a bunch of little M’s.” M M M M

Interpretation by Witness To explain & fill-in what we see, we tell ourselves stories Determined by Prior Experience Determined by Stereotypes/Bias so very individual

Interpretation by Witness 1.To explain & fill-in what we see, individual story-telling 2.Memory itself involves interpretation –Memory is malleable; changes with retellings –Mind fills in gaps

What Lawyer Can Get From Witness Witness Issues Lawyer Issues

What Lawyer Can Get From Witness Witness Issues –Ability to Communicate –Willingness to Communicate Lawyer Issues

What Lawyer Can Get From Witness Witness Issues –Ability to Communicate –Willingness to Communicate Lawyer Issues –Questioning Process –Lawyer’s Own Interpretations

FACTS v. EVIDENCE “FACTS” OF CASE DEPENDENT ON LAWYER’s CONSTRUCTION & PRESENTATION

FACTS v. EVIDENCE WHAT REALLY HAPPENED? Can’t Know Facts For Sure

FACTS v. EVIDENCE WHAT REALLY HAPPENED? Can’t Know Facts For Sure Just Have Evidence: “Fragments of the Day”