1. Fundamental Skills Workshop
September 1, 2015
Session I
Christine Malone, Director Student Academic Affairs /

2. Today’s Topics Steps to Reading Efficiently, Actively & Critically
Previewing
Questioning
Briefing
Note-Taking:
Out-of-Class: Briefing
In-Class
Post-Class Note Review & Editing
Getting the Most Out of Class

3. Reading Cases – How is it going?
Are you struggling? Is it going slow right now?
Your ability to read and synthesize judicial opinions will develop over time.
It should be slow now
Terminology should be puzzling
The more you read, the easier it should become.

4. One Strategy for Reading Efficiently, Actively & Critically
How? Many schools of thought.
Find what works for you.
Step One: Place the case in context. Why are you reading this case now?
Table of Contents
Syllabus
Topic introductions in case book
Questions after the primary case
Outside resources (hornbooks, study aids)

5. Parker v. Twentieth Century-Fox Film Corporation Supreme Court of California 3 Cal. 3d 176; 474 P.2d 689; 89 Cal. Rptr. 737
Content and exercises on following slides pulled from the work of Michael Hunter Schwartz and his excellent book Expert Learning for Law Students, (2nd ed.) 2008

6. Other study aids / supplemental resources
Go to PDFs
Where are Hornbooks?
Reserve
3rd floor (available to check-out)
Read before or after?
Other study aids / supplemental resources

7. Step Two: Preview your case.
Why? Develop the framework to understand key points in the case.
How?
Read all the headings in the case.
Read the first sentence (or two) of each paragraph.

8. D lost in the trial court and is appealing that decision.
P recovered damages for D’s breach of contract to use P as an actress in a movie.
D offered P another role in another movie (“Big Country”) so P would not suffer damage from D’s breach.
Big Country was a western; the original movie (“Bloomer Girl”) offered P was a musical.
P sued for money damages for breach of contract.

9. P won summary judgment motion & got $750K plus interest.
D’s sole argument to avoid liability was that P improperly rejected substitute movie offer. (refused to mitigate)
Rule: Damages for breach by an employer of an employment contract is: amount of salary agreed to for service, less the amount which employer proves the employee has earned or with reasonable effort might have earned from other employment.
Sup.Ct. agrees with trial court that damages should not be reduced because she refused offer of western movie “Big Country”.
“Big Country” offer was inferior because it changed rights P had under original contract.

10. Don’t jump into full case just yet
Anything else you can gain from the case heading?
Case Date
Parties to Case
Court
Judge
Ask how these things may influence the decision
Case date –
Historical context – war, peace, civil unrest
Economic Situation – Great Depression, recession, boom time
Technical Development – horse and buggy, newspapers for news, Internet
Parties to Case
Powerful v. Powerless
Famous v. Infamous
Court
High or Low – standard of review, willing to go out on limb
Geographic Location – liberal (NY, CA) v. Conservative (south)
Judge
If known – particular ideology, philosophy?

11. Develop Pre-Reading Questions
What do you expect will/should be answered by the case?
2 types to think about
(1) Memory Questions: These are your “case brief” questions.
Who are the parties?
What is the procedural posture?
What is the issue?
What did the court hold?
What rules were stated or developed?

12. (2) Thinking Questions Comprehension: Questions about this case.
Can you describe what happened in the case in your own words?
What does this (word/concept) mean?
Why did the court come to this conclusion?
Connection: Questions that link this case to other cases or other items you know.
Why is this case in the casebook?
How does this concept tie to ____ concept?
How is this case and ___ case similar/different?
What are the strengths and weaknesses in the court’s reasoning?

13. Note-Taking at Home Memory Questions in the case brief
Do not let briefing become an end in itself. It exists to help you read & think actively.
Consider reading a case in full before writing your brief.
Length & time allotted
Thinking Questions capture your thoughts in notes after your brief or section of reading
Can be helpful to type/write some of these out
Some of these may be given to you in the notes/hypos following your primary cases 13

14. Ask yourself those thinking questions!
Examples
What substantive legal rules are announced or applied in this case?
How would these rules apply in other situations? What are the implications of the rule(s)?
Are there ambiguities that might affect the rule’s application?
How far might the rule extend or be limited?
What is the rationale behind the rule (even if not stated)?
Is this case/rule consistent with other cases we have read?
Is this a good rule? How could it be better?
Is the judge’s logic solid? Where are there holes?
Class discussion will often tackle these questions directly or through hypotheticals. So asking yourself the questions in advance will help.

15. “Prepare for every class, but don’t over prepare for any class
“Prepare for every class, but don’t over prepare for any class.” (Andrew McClurg, 1L of a Ride)
Obsessing on the case brief
Losing sight of the big picture
Spending so much time preparing for class that no time is left for review, outlining, & exam preparation.

16. Note-Taking in Class Common 1L Questions What is important?
Should I write down what my classmates say?
Should I handwrite or take computer notes?
Do I keep them separate from my briefs?
How should I format them?

17. Importance of Note-Taking: Encoding & Storing Information
Encoding: Note taking enhances attention, idea-processing, organization, and retention of classroom material.
Storage: Taking notes and reviewing will produce results better than those achieved by those who don’t.
14 weeks of material to store, w/o notes difficult to remember what you need to know come exam time.

18. Effective Note-Taking Involves
Attentive listening
Capturing key material (and omitting the unimportant)
Reviewing notes (and editing) your notes as soon as possible after class
Eventually incorporating your notes into your outline

19. Capture What is Said in Class
Not the undergraduate model
Capturing too little / too much
(computers vs. handwriting)
Generally look to capture:
Anything that looks like a rule, the elements within a rule, test, doctrine, standard, principle, sub-rule, minority rule, exceptions…
The reasoning underlying the rules
Professor hypotheticals
Anything the professor writes on the board (unless clearly immaterial)
Policy discussions
What can you omit?
Information that is already in your case briefs (but you can add/edit/correct)
Copying full code sections, Restatement sections that you can put into your notes later
Tangents, items clearly-off topic

20. Connect class notes to home notes
During class – start making the connection
Possible pitfalls of keeping home and class notes separate?
Separate on paper = separate in mind
Separate = difficulty in connecting class discussion to particular cases/topics later in semester when reviewing and outlining

21. What is substantial certainty? < than 50%, >?
Can prove “intent” two ways:
D must desire to cause harmful or offensive effect on plaintiff, or (Vosburg?)
D must act with knowledge to a substantial certainty that harmful or offensive contact with P will result.
What is knowledge?
Is the answer different when it is a child? Can Dailey have the knowledge? Is there an age cut-off?
Subjective standard governs.
Age only determines what the D knows, his capacity, experience and understanding, which are all material to the D’s knowledge.
**Kids can form intent & commit ITorts.
Workers hypo: A intentionally puts arm around B’s shoulders while on lunch break to pull B to him in friendly manner. As result of friendly hug B is paralyzed in face. Did A have knowledge to a substantial certainty? Is this harmful or offensive contact?
Prof. asked if this was contact. Moved a chair, how is this contact with the P? (Means don’t have to touch physical body.) How far do we take this?
Hypo note: D blowing cigarette smoke in face of P, is this H/O contact?
Garratt v. Dailey
46 Wash.2d 197, 279 P.2d 1091 (1955)
Procedural History - The trial court dismissed the P’s (Garratt) complaint for battery against D (Dailey). P appealing.
Relevant Facts - D (5yr old) moved chair in backyard so he could sit in it. As D sat he realized P intended to sit in place where chair had been. He quickly tried to push chair back to the spot, but she missed it and fell to ground. P sustained injury from fall.
Ct accepted D version of facts. P witness offered different version.
Issue - To establish a claim for battery, must the P show D had actual intent to cause harmful or offensive contact to her when he moved the chair.
Holding - No. Intent for a “battery” may be also implied where the D has “knowledge to a substantial certainty” that harmful or offensive contact w/P will result from the D’s intended course of action.
Rule - Intent for a “battery” may be implied where the D has “knowledge to a substantial certainty” that harmful or offensive contact w/P will result from the D’s intended course of action.
Reasoning - not much in the case as to reasoning for creating this rule. influenced by language in the Restatement
Judgment - Remanded for clarification - determine if the D knew w/substantial certainty that the P was going to sit down in the spot from which he moved the chair.

22. Reviewing and Editing Class Notes
Try to review your notes as soon as possible after class.
Why?
Make sure you understood the different aspects of the lecture
If unclear now is the time to formulate your questions for further study or discussion with the professor
Even if you understood in class, the material may be clear in your mind during discussion which will cause you to leave things out of your notes. Two weeks later, not so clear.
Each lecture is a part of the bigger picture
The next lectures will likely build upon the last

23. How to review your notes
Read them with a critical eye
Do they state: rules, the elements within a rule, tests, doctrines, standards, principles, sub-rules, minority rules, exceptions…
The reasoning underlying the rules
Professor hypotheticals
Policy discussions
Professor opinions
Looks for gaps in your understanding
See if you can restate ideas more clearly
Revisit the hypotheticals

24. Other (housekeeping) tips for notetaking
Label your notes
Computer – header or footer with class, professor, date, page #
Handwrite – date, page numbers
Cut and paste syllabus into notes as template
Different colors for different things
Back-up, back-up, back-up

25. Getting the Most Out of Class
Take notes, yes! But that’s not all.
Not in the hot seat? Remain engaged.
Play along, answer the professor’s question in your head.
Listen to your colleagues answers/questions. Learn from them.
A word about “Technology” and its pitfalls

26. Attend Class For clarity For revelations
For a key to your professors interests
For an idea as to what material is most likely to appear on the exam
For the hypotheticals
For an indication that you are (or are not) on top of things
Attendance requirement

27. Participate in Class Is she crazy? Benefits
Class discussion will add to the energy level in the classroom, build community, and make it more lively for everyone.
You will remember classes better in which you participate.
It will build your oral communication skills and comfort level for speaking in groups.
Your professors will get to know you.
If you volunteer, you will likely get called on less when you are not volunteering.
Possible class participation “bump-up.” (Looking for consistent, high-quality class participation. Not quantity.)

28. Beyond Class Participation
Other ways to continue the dialogue.
Professor TWEN pages
After class time
Office hours

29. Next Fundamental Skills Workshop Tuesday, September 15 Time Management, Study Groups & Using Outside Study Aids A recording of this and all Fundamental Skills sessions will be posted on the CAAS Intranet.

30. Quick review: Facts What facts?
The Story / The Stage
Relevant
Fact is legally relevant “if its presence or absence would make a difference in the court’s final result.”
No magic number as to how many relevant facts.
Professor focus on facts – now & later.
Warning on canned briefs.
Not all facts are equal
Story facts- this is interesting. (dimily lit bar,, horse w/black coat so dark it was like midnight…) Paints the picture in your mind of the story.
Relevant facts – a fact is legally relevant if its presence or absence would make a difference in the court’s final result (Mckinney 139) Can also be a fact that a reasonable person needs to understand a decision.
Professors –
- start of semester – (who, what, when, where & why) more focus. Why? Make sure you are reading the cases well (2) demonstrate the importance of facts.
- Later in semester - may pull back & not devote as much time, still important for you to read and disect what is/is not important. Just less important for prof to spend time teaching you how to find the important/relevant facts. (mckinney 135)
WARNING: Canned briefs focus on relevant facts, but they are dong the work for you. IF the authors go through the exercise of determining which facts are relevant and you don’t, you may be unable to distinguish the relevant from irrelevant facts on an exam.

31. Sample Fact Statement: P is well-known actress/dancer/singer
Sample Fact Statement: P is well-known actress/dancer/singer. P entered into K with D for musical “Bloomer Girl” to be filmed in LA. K gave her lead role and approvals for director, dance director & screenplay. D breached one month before shooting to start. Offered P another lead in a western “Big Country” to be filmed in Australia. Contract did not include approval rights. P rejected “Big Country” offer and sued for compensation under original K.

32. Quick review: Framing the Issue
Frame the substantive issue, not the procedural issue.
Types of Issue Statements:
General
Specific to case
Try for a single sentence (though maybe long), written in the form of a question.
The question should be able to be answered “yes” or “no.”
Struggling? Try this formula:
Can A recover from B for C when D?
Huge time consumer early on – so if you are struggling you are right were you are supposed to be.
Procedural – Did the trial court err in granting the D motion for summary judgment.
Substantive – is calling someone on the phone and threatening to “wring their neck” when you see them next Friday in your LRWA class enough to constitute assault?
Whether to get to Yes or NO.

33. Sample Issue Statements: Can Plaintiff (Parker) recover damages from D (20th Century) for breach of her original Bloomer Girl (musical) contract when D sought to mitigate damages by offering P in the lead in a different type of film (western) in which she did not have the same approval rights as in her original contract? Can P recover compensation from D for breach of contract when she fails to mitigate damages by refusing D’s new film offer? Can an employee reject an offer of alternative employment designed to mitigate damages after the employer breaches the parties’ contract, if the alternative employment is different and/or inferior to the original employment agreement and still collect compensation for the employer’s breach?

34. Quick Review: Rule
Should be expressed in generalized terms. Not fact specific.
Each case should stand for a rule. It may be the general rule, the exception to a rule, etc.
Put the rule into your own words - takes practice and time.
Once you have the rule(s), you should have the answer to the Issue you’ve outlined.
To answer the issue presented, we have to find the rules.
In Parker where do we find the rules?
Put into your own words to see that you understand it.
Once you know the rule(s) of a case, you can answer you issue.

35. Sample Rule Statements: R1 – For breach of an employment contract, the employee may recover as damages the contract price minus what the employee actually earned or reasonably could have earned elsewhere. R2 – The amount of money an employee would have earned from a rejected alternative employment opportunity may be deducted from an employee’s recovery of damages for his employer’s breach of contract ONLY if the rejected position was not “different or inferior to” the original contract.

36. Quick Review: Rationale/Reasoning
What reasoning supports the court’s determination?
Precedent Reasoning
Policy Reasoning
Predictability
Justice
Encouraging Competition
Preserving Individual Rights
Allowing Freedom of Action
Protecting Society
Encouraging Economically Efficient Behavior
Punishment
Deterrance
Precedent Reasoning
What cases did the court cite and use
Were they found similar or dissimilar
NO example in the Parker case.
Policy Reasoning
Not always identified in the court opinion. NOT in Parker
But what do we think?
(1) Preserve individual rights – can’t force an employee to take an inferior job to one that is promised.
(2) Prevents contracting parties from forcing each other to accept different performances than those which they bargain from.
(3) May promote “justice” but may not promote “predictability” as people may be uncertain as to what is different or inferior.