Learning the Law

Two unrelated items, that should help you become good lawyers.

First, for all your shopping needs.

Second, the latest entry in "Do Not Be This Lawyer."

For Wednesday, March 25

Wednesday audio--Section B, Section A. Prelim Exam posted; due at the beginning of class next Wednesday. Essay # 5 will post on Thursday, March 26. Essay # 6 likely will post on Friday, March 27. Enjoy your two days off.

We will finish Summary Judgment. Look closely at problems 3-6 in that Glannon chapter; they are helpful in understanding how this operates.

Consider the following: 

    The African American non-attorney sues for race-based failure-to-hire. There is evidence that they did not hire him because of his race and because he is not an attorney. Under the substantive law of mixed motive" cases, the plaintiff bears the initial burden of producing evidence that race played a role in the decision; the burden of production shifts to the defendant to show it would have made the same decision without considering race. The plaintiff bears the burden of persuasion that race was a but-for cause of his non-hiring.

    Discuss how each side could move for summary judgment, what evidence they must or would offer as to each of those facts (considering FRCP 56(c)(1)(A) and (B).

To put things in context: The end of summary judgment marks the end of the pretrial process. The next step is trial (which we cover in Evidence next semester) or settlement. We now shift the focus of the class to forum selection. We discussed FRCP 12(b)(1)-(3) and the fact that motions can be made to challenge where the case was filed; we now are going to put substance into those motions and explore the law that determines where a lawsuit can be filed and why.

We begin with Subject Matter Jurisdiction. For Wednesday and Thursday, prep Overview and Diversity Jurisdiction. In preparation, review our discussion from the first couple days of the semester, when we gave a basic overview of jurisdiction, especially the distinction between original and appellate and between exclusive and concurrent.

Preliminary Exam

Instructions. Preliminary Exam.

Type answers (by letter) on a sheet of paper, which will be submitted in class on Wednesday, March 25.

Summary judgment and video after Scott

In discussing Scott v. Harris, we mentioned that the Court presumed the video had one obvious meaning and showed one obvious thing, not open to interpretation (which would be the province of the jury. Obviously that could expand summary judgment.

This Seventh Circuit decision shows how lower courts have attempted to limit that effect, by describing Scott as as a "narrow exception" for the "rare case" in which a video is subject to no competing interpretations so as to warrant summary judgment. The court makes clear that a summary judgment court cannot in all cases do an independent assessment of the video and thus preclude summary judgment.

Of course, the Seventh Circuit then found this to be that rare case and granted summary judgment for the defendant. 

Discovery Samples (Updated and Moved to Top)

Sample discovery requests (corrected links) here, here, and here.

Here, here, and here are sample excerpts from depositions (the deponents are two people who worked for DOGE; the lawsuits are challenging the lose of certain National Endowment for Humanities (NEH) grants).

Finally, about a decade ago, The New York Times ran a series called "Verbatim," in which actors recreated depositions based on the transcripts. This and this were among the best; the latter formed the basis for an essay question years ago.

We will not discuss these in class. I just want you to have an idea what discovery devices look and sound like. 

Update: So it may be that those DOGE deposition videos should not have gotten out. The court followed a common practice: Entered a general protective order to govern all discovery at the start of the process. The order allowed parties to designate discovery as "confidential," in which case it could be used only for purposes of the litigation and could not be published outside of litigation. There is some question whether the government followed the proper designation procedures. Anyway, the judge ordered plaintiffs to attempt to claw back the videos for the moment and scheduled a hearing for next Tuesday to sort it out. Although YouTube has taken the videos, the Internet never forgets and they are available in other spaces.

Expect this to be an essay question for your colleagues next year.

For Wednesday, March 18

Friday audio: Section B/Part I, Section B/Part II, Section A/Part I, Section B/Part II. Essay # 4 due in class on Wednesday. Prelim Exam posted at 12:30 next Wednesday, due in class on Wednesday, March 25. Essay # 5 will post on Thursday, March 26.

No class next Thursday or Friday.

We continue with Summary Judgment; prep the remainder. We will touch on the problems in Glannon, so be sure to work through them. Look at pp. *25-27 in Nunes, which offers great framing of the RE for all of summary judgment.

Your regular reminder to please keep movement in and out of class to a minimum. 

For Friday, March 13 (Double Session)

Thursday audio--Section B, Section A. 

We will finish Coca Cola (and Discovery) tomorrow. Essay # 5 will be delayed until March 26 so as not to intefere with the prelim exam, which will post next Wednesday.

Go to Summary Judgment. Prep Questions 1-24, as well as the puzzle on the attorney.

Holmes Puzzle

McKenzie put together a nice clean version of Holmes, more readable than my handwriting. Thanks to her for sharing. 

For Thursday, March 12

Wednesday audio--Section B, Section A.

We will finish the discovery rules, then proceed to Coca Cola (on the Puzzles sheet). Be ready to argue your side on everything from whether the formulae are discoverable to how the issue will be litigated to what happens if the court orders production and Coca Cola continues to resist. You only get to answer twice; I don't want the same people answering.

We will begin Summary Judgment in our double session on Friday. 

Section A: Please note the posting of a new version of Essay # 4, correcting a typo. Please use the current version. Does not affect your answer. 

Essay # 4: Section A (Corrected)

Download here. Corrected on typo on p.13. Please use this version.

Due next Wednesday, March 18.

Essay # 4: Section B

Download here. Due next Wednesday, March 18.

For Wednesday, March 11

Essay # 4 will post at 12:30 on Wednesday; due in class on Wednesday, March 18.

Review Discovery Process, then prep Enforcing and Avoiding and the assigned questions as to all. We hopefully will get to Coca Cola on Thursday and Friday.