Comments on Essays

As we are four essays in, I want to provide a few comments and highlight some things.

• I do not care what conclusion you reach if you are asked to decide the motion as the court. I do expect a certain legal framework to be used to resolve that motion. So there is not "one right answer that Prof. Wasserman wants." There may be (and probably is) one right analytical framework. Obviously, if you are told to argue one side or the other, the "right" answer is whatever position you have been told to argue.

• Know your assigned role. If you are told to resolve the motion as the court, your answer should say that the motion is granted or denied, not that it "should be" granted to denied. This is part of following directions.

• You must get into factual specifics. To use the most recent essays, it is not enough to say "the pleading was timely." You must give the facts (the relevant dates) that show it is timely, This is one example; it is a common problem.

•  You must explain why a rule applies before explaining and applying it. Sometimes that includes a factual predicate bringing the rule into play; you must explain why that predicate is met. For example, there is no need to discuss relation back unless the amended pleading is untimely. That means that before you introduce and discuss relation back, you must explain whether and why the amended pleading is untimely and thus why you are even discussing relation back.

• Similarly, where there are two possible rules governing an issue, you must explain why you chose to apply one or the other. For example, two rules provide a standard for relation back--15(c)(1)(B) and 15(c)(1)(C). Explain why you choose to apply one or the other. And explaining that why may help you avoid picking the wrong rule.

• Be careful about vomiting rules--reciting random rules without explaining why they are in play and why you are discussing them. Consider how rules fit together and discuss that connection, where appropriate, as part of your RE.

• Read the facts of each case carefully. Don't assume it calls for the precise analysis we discussed in class, as opposed to application of the same rules to a slightly different legal or factual situation or context.

Sample Answer: Essay # 4 (Sec. B)

Graded papers available outside my office.

Median: 23.25

Mean: 23

High: 35

Sample answer after the jump.

Sample Answer: Essay # 4 (Sec. A)

Graded papers available outside my office.

Median: 27.14

Mean: 27

High: 40

Sample answer after the jump.

Complaint v. FIU

Filed on Monday evening. I present this without comment on the substantive merits of the claim or on the morality of the speech at issue.

Three things of note:

• The Complaint is surprisingly restrained, given the high-profile nature of the case and the perverse incentives for the plaintiff and the attorney in such a case. No over-the-top rhetoric, no performative outrage, no pleading-as-press-release. The statement is short-and-plain--six pages (plus eight pages of exhibits).

• The Complaint does not quote or describe the statements at issue. Paragraph 16 characterizes the statements ("racial slurs, gender-based slurs, antisemitic rhetoric, and anti-LGBTQ language"), then alleges that none falls within a category of unprotected speech.  Is that sufficient? Must the complaint plead the actual statements (or do more than characterize) in order for the court to evaluate whether they are protected? For present purposes, it is enough  to know that racist, sexist, antisemitic, anti-LGBTQ+ speech is not per se unprotected by the First Amendment; something more is required to make the speech punishable. The case will turn on whether that "something more" was present on that group chat. Given that legal framework, has plaintiff done enough to state a plausible claim that the "something more" is absent here and that his speech is the sort of offensive speech that nevertheless remains protected?

• We have not discussed some unique procedures that govern constitutional litigation, where plaintiffs seek an injunction to stop enforcement of an allegedly unconstitutional state law or policy. For the moment, the Complaint is less important than the Motion for a Preliminary Injunction that plaintiff likely will file in the next week or so. This will argue that the speech is protected and will ask the court to stop the investigation while the litigation is pending and until the case can reach a final judgment. The motion previews the merits, asking whether the plaintiff is "likely to succeed on the merits"--whether he is likely to show that his speech is constitutionally protected from government sanction. The grant or denial of that motion is immediately appealable (§ (a)), meaning the case would quickly go to the Eleventh Circuit.

Coffee!!!

 An FIU undergrad is doing a project advertising for a coffee shop. She needs research on coffee habits and thinks you all would be the perfect group.

Please take 5 minutes to do the survey: https://fiu.qualtrics.com/jfe/form/SV_0MQVB76tXYzHxem

Totally anonymous, for those who want your coffee habits to remain a national secret.

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 if taken too far.

This Seventh Circuit decision shows how lower courts have attempted to limit that effect, by describing Scott 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.

 

For Friday, March 6

Thursday audio--Section B, Section A.

Prep the remainder of Discovery Process and all related questions. Understand the various devices, how they operate, and how they relate.  Also: Why might an attorney object during a deposition, given FRCP 30(c)?

Consider a different way to control a client during a dep. 

Again, sample discovery documents can be found here, here, and here. We will not discuss in class; this is purely to illustrate how discovery docs look and sound. 

For Thursday, March 5

Wednesday audio--Section B; Section A. Essay # 4 will post on Wednesday, March 11, due Wednesday March 18. Prelim Exam will post on Wednesday, March 18, due Wednesday March 25. Double session next Friday, March 13. No class on Thursday, March 19 and Friday, March 20.

Also, note that we have dean candidates on campus tomorrow and Friday; each will hold an open forum for the FIU community at 12:45 in RDB 1000. It's a good chance to hear from the person who will lead the school for your last two years.

We will finish Amendments, beginning with the final two elements of relation back--the timing of 4(m) and "mistake." Krupski says relation back is mandatory--does that mean amendment is mandatory? Is there another reason to deny leave in Krupski? If pleading John Doe is not a mistake, what can the plaintiff in Herrera do if he does not know the defendant officer's name?

Then prep all of Managerial Judging; parse out what is happening in FRCP 16 conferences, as well as the orders in NFL and McCullers (the "have lunch" order).

Then move to Discovery:Discovery Process. For tomorrow, prep Questions 1-5; with those questions, prep the assigned portions of FRCP 1, 16, 26(a), 26(e), 26(f), 30(a)-(d), and 34. We will get to the rest of Discovery Process on Friday.

Some sample discovery documents can be found here, here, and here. We will not discuss in class; this is purely to illustrate how discovery docs look and sound.