ELEMENTS EH: INFORMATION MEMO #2 (9/10/08)

(1) ReviewProblem I: Frazier v. Niles

In past years, I have given this problem as a written assignment that all students were required to work on in assigned groups. I suggest you try to do the problem alone or in groups following the instructions that I gave for that assignment (provided below) to yield a structured set of arguments based on Shaw. Around September 24, I will post comments and best student answers from prior years, so you can evaluate your own work. In addition, for further review, you can try to make the best arguments you can for each party based on Pierson, Liesner, and the Demsetz excerpt.

Instructions

(1) Your assignment is to make arguments about a new hypothetical based on Shaw and the policy of rewarding useful labor. Below, you will find the hypothetical, the list of subjects about which you must make arguments, and a brief guide to how your arguments should be structured.

(2) Your work-product for this assignment will be of a list of arguments numbered to correspond to the list of subjects below. You should try to put each argument (except #7) in the form described in the next section of this memo.

(3) This assignment is designed to test both your ability to identify relevant legal arguments and your ability to articulate those arguments in a structure regularly used by lawyers. If you work with others on this assignment, you might schedule two times to get together. At the first meeting, discuss the problemand identify relevant arguments. Then separately try to write out your arguments. At the second meeting, you could compare your work and critique each others’ versions of the each argument.

Hypothetical

Farmers in Ohio have been losing chickens and eggs to wild weasels that have become very numerous in recent years. The state offered a bounty of $10.00 for each weasel a citizen brings to a state game warden. Frazier and Niles each own a farm adjacent to a state-owned forest where Ohio residents are permitted to hunt weasels. Frazier created many traps in the forest by digging holes four feet deep and covering them with sticks and leaves after breaking an egg at the bottom to attract the weasels. When the weasels fall into Frazier’s traps, they sometimes are injured and unable to escape. Even if they are unhurt, because of the depth of the traps, it takes them about two days to dig themselves out. Frazier only has time to check and reset the traps every four or five days, so about half the weasels that fall into the traps manage to escape. Knowing all this, Niles recently began taking weasels out of Frazier’s traps and turning them in to collect the bounty. Frazier claims that Niles is committing larceny when he takes the weasels.

List of Subjects for your Arguments

  1. Formulate an argument thatNiles’s actions should be considered larceny relying on the following passage from Shaw:

To acquire a property right in animals ferae naturae, the pursuer must bring them into his power and control, and so maintain his control as to show that he does not intend to abandon them again to the world at large.

  1. Formulate an argument thatNiles’s actions should not be considered larceny relying on the same passage.
  2. Formulate an argument that the facts in the hypothetical are sufficiently like the facts in Shaw thatNiles’s actions should be considered larceny.
  3. Formulate an argument that the facts in the hypothetical are sufficiently different from the facts in Shaw thatNiles’s actions should not be considered larceny.
  4. Formulate an argument that the application of the policy of rewarding useful labor to the hypothetical supports considering Niles’s actions to be larceny.
  5. Formulate an argument that the application of the policy of rewarding useful labor to the hypothetical supports considering Niles’s actions not to be larceny.
  6. Briefly discuss which arguments you think are stronger (and why): those you’ve made for Frazier (Subjects 1, 3, 5) or those you’ve made for Niles (Subjects 2, 4, 6). This response need not follow the form for legal arguments described above. If your team disagrees on this issue, briefly describe the different positions team members have taken.

A Common Structure Used In Making Legal Arguments

Lawyers often use the following structure when crafting legal arguments: You begin by stating a general rule, policy or principle. If you are making the argument in a formal written document, you then provide a citation to appropriate authority to support the rule, principle or policy you are employing. You need not do that for this assignment. Next, you provide information about the situation under discussion that shows why it does or doesn’t fit within the rule, policy or principle. You then briefly note the conclusion you draw from the application of the rule, policy or principle to the facts of your situation. Here are examples from class (note that there are counter-arguments to each of these arguments):

  • A person can obtain property in an animal ferae naturae by bringing it under control “so that actual possession is practically inevitable.” Liesner. In Shaw, few of the fish that entered into the nets would escape under ordinary circumstances. The net-owners were practically assured that when they went to pull up the nets, they would find fish in them. Because most of the fish that swam into the nets ordinarily ended up in the net-owners’ hands, it seems fair to say that the nets brought the fish under sufficient control to make their possession by the net-owners practically inevitable. Thus, the fish in the net were the net-owners’ property.
  • Legal rules that are simple to apply are useful because they help prevent uncertainty and quarrels by allowing people to determine their rights easily. See Pierson. The trial court in Shaw held that for a net to give the net-owner property in the fish inside it, the net had to be escape-proof. Because it would be very difficult to prove that a net is escape-proof, net-owners subject to this rule would only know if their net was sufficient after an elaborate investigation. Because the rule is not simple to apply, the policy favoring certainty suggests that a rule that was easier to prove would be preferable.
  • The majority in Pierson stated that the labor of those who use nets or traps to catch animals “and render escape impossible may be justly deemed” to give them property rights. Implicitly, the court contrasted the labor of Post, which was ineffective in obtaining actual possession of the fox, and therefore did not create property rights. The net-owners in Shaw labored by setting up nets in public waters. Although this labor did not succeeding in preventing the escape of every fish that entered the net, it did succeed in permanently capturing most of them. Because this labor was successful in accomplishing its purpose of capturing some fish, it is more like the labor of the trappers discussed in Pierson than like the unsuccessful labor of Post. To reward this successful labor, the nets should be considered adequate to create property rights for their owners even though some fish do escape.

For this assignment, try to use this structure when articulating the arguments regarding subjects 1-6.

(2)Liesnerand Shaw Briefs: Comments and Models

GENERAL POINTS

I. Follow Directions

(A) Use the form for briefing appellate cases described in Info Memo #1 (IM7-9)

(B) Follow “General Instructions for Written Assignments” in Info Memo #1 (IM16-17)

(C) Almost half of the submitted Shaw briefs in 2008 were penalized for failure to follow formatting instructions

II.General Briefing Tips

(A) Read the whole case quickly for plot before briefing. This reading should help prevent you from guessing wrong about what the issue is or writing out a lot of irrelevant facts.

(B) Be careful when you use language from the case. If you quote directly, use quotation marks. Be careful about the grammar in direct quotes. Often, the quoted language will not fit comfortably into the sentence or paragraph you need to write. If that is so, paraphrase or quote phrases rather than entire sentences.

III.Writing Tips:

(A) Proofread any document you submit for spelling, clarity, and grammar.

(B) Trim your writing by eliminating unneeded words. Your readers often will be pressed for time. They will appreciate careful editing.

(C) Use active voice where possible. Passive constructions (“It was held that …” “The trial court’s decision was affirmed.”) are less clear and less powerful than active ones. (“The court held that …” “The Superior Court affirmed the trial court’s decision.”)

(D) Common Grammar/Usage/Spelling Issues

(1) Avoid using “said” as an adjective (“Said wolf was then shot by Wanie.”). This usage is overformal and awkward, an example of what I call it bad “Legalese”: trying too hard to sound like a lawyer.

(2) Be careful to distinguish “its” (possessive) and “it’s” (it is).

(3) Be careful to distinguish “loose” (opposite of tight) and “lose” (opposite of win).

IV.Legal Conventions

(A) Normally, in any legal document, use past tense to refer to events in cases that already have been decided (“the court held …,” “the court believed …,” “defendant argued …,” etc.)

(B) Refer to a court as “it,” not “he” or “they.” E.g., “The court held for the state because it believed that the trial court’s proposed rule was “too technical.”

(C) Although dictionaries indicate that both “judgment” and “judgement” are correct spellings, typically in legal materials, we use “judgment” without the “e.” See, e.g., Fed.R.Civ.Pro. 56.

(D) When a party has made a motion in court, we say the party “moved” (not “motioned”). E.g., “The defendant moved for a directed verdict.”

(E) Terminology for actions of the court:

-A trial court “sustains” or “overrules” objections to evidence, but it “grants” or “denies” motions.

-A court “renders” a judgment; it “directs a verdict” or “grants a motion for directed verdict.”

-Appellate courts normally “affirm” or “reverse” the decisions of the lower courts whose decisions they are reviewing. They “reaffirm” or “overrule” their own prior decisions.

V.Accuracy. Describe cases accurately. Examples:

(A) You should note that there are two plaintiffs in Liesner and three defendants in Shaw. Similarly, the nets in Shaw belonged to two other people (as opposed to “another person”).

(B) Limit your description to things you really know about the parties. Nothing in Shaw tells you that Shaw and Thomas were “sailors” or “fishermen.” They might be sixteen-year olds fooling around in one of their fathers’ boats.

(C) Be accurate in your description of the crime charged; “grand larceny” and “larceny” are different crimes.

(D) Make clear that the only defendant involved in the appeal in Shaw is Thomas.

PARTS OF THE BRIEF

I. Citation:

Liesnerv.Wanie, 156 Wisc. 16 (1914)

State v. Shaw, 67 Ohio St. 157, 65 N.E. 877 (1902) -OR-

65 N.E. 877 (Ohio 1902)

(A) You need to include information that tells the reader which court decided the case. Citation convention is that if the reporter includes the name of the state, you need not include it again in the parenthetical. However, if you cite only to the regional reporter, you do need to indicate the name of the state. In addition, if a citation does not indicate which court decided the case, it means that it was written by the highest court in the state, which in these cases would be the Wisconsin Supreme Court and the Ohio Supreme Court respectively.

(B) The standard cite form includes only the name of the first party on each side. You should not include other names or “et al.” No need to indicate “appellant” and “respondent” here: The information later in the brief will make that clear. You also need not note that a party is being represented by their “next friend” (legal representative). Some students treat the “next friend” as a party to the suit. This is incorrect; “next friends” help to represent real parties whose interests are at stake when those parties are legally incapable of fully representing themselves.

(C) When a state is a party, you refer to it as “State” (or “Commonwealth” if it’s Pennsylvania or Massachusetts).

(D) We abbreviate the “versus” in the middle as “v.” not “vs.”

II.Statement of the Case:

Liesner and another, who claimed to have mortally wounded a wolf, sued Wanie, who subsequently shot and took the wolf, for return of the carcass.

The state of Ohio brought a criminal action against Shaw, Thomas, and one other person, who together had taken fish out of a net belonging to others, for grand larceny.

-OR-

The state of Ohio charged Shaw, Thomas, and one other person, who together had taken fish out of a net belonging to others, with grand larceny.

(A)Generally: You will use the statement of the case in real life in memos and briefs to describe cases that you are using in your legal arguments. The purpose of the statement is to introduce the reader quickly to the lawsuit that the opinion resolves. Try to incorporate the statement into a single sentence.

(B) Introducing the Parties: Your introduction to the parties should give some information about the aspects of who they are that are relevant to the lawsuit.

(1) In providing this information, treat as a “fact” only those points that the court takes as given in the opinion you are briefing. Examples:

(a) In Liesner, everybody agreed that Wanie killed and took the wolf, but on appeal they still contested who fired the mortally wounding shot. Thus, to be precise, you might say, “Liesner and another, who claim to have mortally wounded a wolf….”

(b) In Liesner, do not include information only found in the trial record (e.g., that the plaintiffs are brothers). The brief is a summary only of the appellate opinion.

(c) In Shaw, the court assumes the state’s version of the facts is true, so your descriptions of the parties can incorporate the state’s perspective. Thus, you can refer to Thomas and Shaw as “men who took fish out of nets belonging to others.”

(2) Do not incorporate legal conclusions into the statement. For example, it would be incorrect to say that Shaw and Thomas “stole” the fish; that assumes that the fish belonged to the net-owners, which is what the court had to decide.

(3) Your reader will find it helpful if you identify by name the parties and anyone else who’ll play a major role in the discussion (e.g., Thomas in Shaw). Once you have identified the parties by name in the statement, you can refer to them by one term (their name or “plaintiff” or “net-owner”) throughout the rest of the brief. The initial identification should allow you to use this shorter form later to save space and time.

(4) Provide the information about the parties concisely. First names, places, dates, details about the arrest, etc., are usually unnecessary. You needn’t identify “plaintiff” and “defendant” explicitly; saying who sued whom already provides this information.

(5) You need not say that the defendants “allegedly” committed grand larceny or trespass. The statement describes the lawsuit that was originally brought; at that point, the claim always is unproven.

(C) Civil Cases: Remember to indicate the plaintiff’s theory of the case and the relief the plaintiff requested if the opinion provides this information.

(1) Theory of the Case:Liesner does not tell you what the cause of action was and we don’t really have enough experience in the class yet to be able to tell. If you wish to hazard a guess, however, make clear that you are guessing and not reporting what the opinion says: “Liesner and another ... sued Wanie ... for recovery of the wolf, presumably on the theory of trespass on the case.” FYI: The common law action for return of personal property improperly held by another is “replevin.” The common law action for damages for taking, damaging, or destroying another’s personal property is “conversion.” “Wrongful Possession” is not a cause of action.

(2) Relief Requested: The first line of the Liesner opinion indicates that the initial lawsuit requested only the return of the body of the wolf. The request for damages apparently was added later.

(D) Criminal Cases

(1) In a criminal action, the state (not the party who was robbed or assaulted) brings the lawsuit. The prosecutor is not a party to the suit, but rather is the state’s lawyer.

(2) When describing a criminal case, say the state “brought a criminal action against” or “charged” (rather than “sued”) the defendant. Because the state is always the complaining party in a criminal case, you also can simply say “A criminal action against ...” Normally, we don’t refer to the state as a “plaintiff” in a criminal case (the term suggests a civil suit).

(3) A criminal action is not brought “on behalf” of the victims, which would mean they were the real interested parties. Rather, it seeks redress for violation of peace and order on behalf of all the people of the state.