Lecture Notes for PS 3530
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Lecture Notes for PS 3530

Course Number: PS 3530, Fall 2008

College/University: Middle Tennessee State...

Word Count: 9048


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My Lecture Notes Middle Tennessee State University Legal Writing and Research Copyright 2004 Clyde E. W illis Table of Contents The Beginning of Legal Research . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Elements of a Cause of Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ....

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Lecture My Notes Middle Tennessee State University Legal Writing and Research Copyright 2004 Clyde E. W illis Table of Contents The Beginning of Legal Research . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Elements of a Cause of Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Begin with the Encyclopedia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Digression on hazards of tunnel vision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Tennessee Practice Series, 3d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Jurisdictional Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Shephardization of Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Removal to Federal Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Searching for a Statute in the Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 The Opening Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 How to write a direct examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 | The Beginning of Legal Research A case begins when the client walks in and begins to tell you a story. As the clients story unfolds, you are already hard on the job deciding what possible cause of action your client, or your clients adversary, has. In other words, your client want to bring an action (file suit) based on a reason or reasons that consists of a factual and legal component (cause). Ergo, a cause of action. From the moment Merritt Gilbertson or Roger Holman begin their story, it takes only a short, New York minute to place the cause of action within the wrongful death category due to negligence. No need to epoch here, for the brackets would come off soon enough anyway. We need to know the specific elements of a cause of action based on negligence. So, we begin at the beginning. We listen to the facts as we recall the elements (in our case, since this is our first go round, we must do some basic research), and begin to put the facts and the law together so we will have a story that fits the law in such a way to enable us to obtain the relief soughteither an award of compensation for the damage suffered or dismissal for failure to muster the sufficient facts to fit the legal category. | Elements of a Cause of Action based on Negligence that Causes Personal Injury or Wrongful Death Notice the search terms: elements - negligence - personal injury - wrongful death, so, lets begin: ! Go to LexisNexis Tennessee Cases ! Go to Guided Search ! Enter Negligence as the first search term ! Enter elements as the second search term in the same sentence ! Select all available dates and Tennessee all courts ! We get 576 cases " Note: if we had used the two search terms in the basic search (which, after all, has two search levels available), we would have a non-result because This search has been interrupted because it will return more than 1,000 documents. Thus, we go to Guided Search so we can ask that the two terms exist within the same sentence. ! Enter wrongful death in Search within Results ! We narrowed the field of cases to 73 ! In order to look at the cases relative to elements, enter elements in the Search within Results (reason: expanded search gives us the sentence context of the last search term) ! We have the same 73 cases, but with a different expanded list than we would have with the former search term ! Notice case No. 3: Burroughs v. Magee, 118 S.W.2d 323 (Tenn. 2003) with the following information about elements: ... plaintiff in a negligence action must prove each of the following elements: (1) a duty of ... 3 ! ! ! Get the Burroughs case Find elements using the browsers Find in this page if you use Netscape, and Find (on this page) if you use MS Internet Explorer, both are located in the browsers task bar under Edit Voil !!!!! We find the following statement of the elements of the law of negligence in wrongful death cases: Under Tennessee law, the plaintiff in a negligence action must [**12] prove each of the following elements: (1) a duty of care owed by the defendant to the plaintiff; (2) conduct of the defendant that fell below [*328] the applicable standard of care, amounting to a breach of the duty owed to the plaintiff; (3) an injury or loss sustained by the plaintiff; (4) causation in fact; and (5) proximate, or legal, causation. Staples, 15 S.W .3d at 89; W hite v. Lawrence, 975 S.W .2d 525, 529 (Tenn. 1998). ! Drat ! Notice as well the next sentence that informs us that the focus in this case is on the first element, the duty of care. ~ We better pause, and consider what to do because we need to examine all of the elements and it would be much better to examine them together rather than case by case, one at a time. 4 | Search or Re-search? Begin with the Encyclopedia When we begin our case preparation with specific questions addressed to legislative and/or judicial output such as statutes and judicial decisions, we are truly searching. We are like Daniel Boone searching for Kentucky. Look at how Boone put it. It was on the first of May, in the year 1769, that I resigned my domestic happiness for a time, and left my family and peaceable habitation on the Yadkin River, in North Carolina, to wander through the wilderness of America, in quest of the country of Kentucky. Although we proceeded successfully, and after a long and fatiguing journey through a mountainous wilderness, for some time we had experienced the most uncomfortable weather as a prelibation of our future sufferings.1 We do not have to leave the peace and happiness that comes from being within in the comfortable confines of those that have already searched and found what we need. No we can re-search what they gained by an original search. Lets compare searching with re-searching using the conflicts of law question that has arisen in Gilbertson v. The Everest Expreience. The alleged act of negligence (delict) occurred in Nepal (loci) and the lawsuit if filed in Tennessee and the defendant resides in Colorado. So, it is natural to be concerned about which law (lex) is applicable if there is a conflict among the different laws. We could begin our search The Adventures of Daniel Boon, by Daniel Boon. http://earlyamerica.com/lives/boone/chapt1/, accessed February 3, 2004. 1 5 in the Tennessee Digest, that covers Tennessee Reports, Tennessee Appeals Reports, South Western Reporter and all other standard reports, as well as Tennessee cases decided in Supreme Court of the United States, Circuit Courts of Appeals and District Courts of the United States. (More about the use of digests later.) Lets begin our search for a case that answers the question using LexisNexis since is so convenient for us. What terms shall we use to [re]search for the answer? Lets begin with conflicts, (since we heard it mentioned by someone) and torts. This search turned up seventy-seven cases, which is not at all too many cases to examine more closely. Nonetheless, lets see if we can be more focused by adding wrongful death. I searched for all three terms in the same sentence which turned up zero cases, so I asked for those where wrongful death is in the same paragraph. This search turned up four cases, the first of which indicated success. An expanded list revealed the following information about the case: Hataw ay v. M cKinley, S/C N o. 30, SU PR EM E C O U R T O F TEN N ESSEE, AT JAC KSO N , 830 S.W .2d 53; 1992 Tenn. LEX IS 313, April 27, 1992, Filed ... lex loci delicti conflicts-of-law doctrine should continue to be follow ed in tort cases in Tennessee. The ... ... law governed the plaintiffs' w rongful death action under the lex ... Dont let the first line of information fool you. It appears to say that the law in the place where the act occurred is the law to follow, the full sentence in the case states that In this case, we are asked to decide whether the lex loci delicti conflicts-of-law doctrine should continue to be followed in tort cases in Tennessee. The opinion goes on to state Our review of the background and modern development of conflicts of law rules convinces us that the lex loci delicti doctrine should be abandoned. Nonetheless, Hataway is our case, the case! We learn that the court will decide which jurisdictions substantive law is based on the general principle that the rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state, which with respect to that issue, has the most significant relationship to the occurrence and the parties, using the following criteria: (1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law; (2) W hen there is no such directive, the factors relevant to the choice of the applicable rule of law include: (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability, and uniformity of result, and (g) ease in the determination and application of the law to be applied. (3) Contacts to be taken into account in applying the principles to determine the law applicable to an issue include: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicile, residence, nationality, place of incorporation and place of business of the parties, (d) the place where the relationship, if any, between the parties is centered. Were we lucky or what? Have we completed the research on this issue? Well, maybe yes, maybe no. How do we know? Thats itwe dont really know. Going one case at a time, in ad hoc, piece meal fashion can be hazardous. It is like having blinders on. Our blind side becomes much larger, thus the possibility of being blind sided much 6 greater. So, lets take an encyclopedic look. Encyclopedia comes from the Greek words, enkuklios paideia, that mean general education. Statutory-based and case-based searches are much like our departmental majors in modern-day university curricular. We take many courses that tell us a lot about specific parts of the discipline, but we cannot be comfortable about having a birds-eye view of the discipline. Away we go to the encyclopedia. Tennessee Jurisprudence (Tenn. Jur.), published by Michie, is located at 345.2 T25j in the reference section of MTSUs library. Completed in 1985 and supplemented annually since then, this 31-volume set has more than 400 alphabetically arranged subject matter titles that can help you with most question raised in any case. Extensive footnotes citing cases, statutes, court rules, and law review articles support the textual analysis. The encyclopedia is where we can obtain the birds-eye view that is lacking with specific statutory-based and case-based searches. Moreover, we are actually researching. As noted in the graphic above, your research assistants, the Michie editorial staff. supervised by M.J. Divine and P.A. Ernest, have already traveled, and continue to travel, the research path. They have compiled, and continue to compile, the cases and statutes with commentary so you can re-search their search and gain a birds-eye view. Theres no need to reinvent the wheel. We begin our research with the same research strategy (using the key terms) and design (arranging the key terms in a specific order) that we used in our LexisNexis search. Thus, we go to the index volume of Tennessee Jurisprudence. Our research design is: first level: conflict of law, second level: torts, and third level: wrongful death. Our index search takes us to page 207 where we are directly led to 6 Tenn. Jur. Conflict of Law 28 and 29. This encyclopedia search yields so much more than the case search. Not only do we find our Hataway decision referenced in 28, we find much more, beginning at 1 with an introduction that discusses the general topic of conflict of laws, domicile and residence. For one thing, we learn in 4, Federal Courts, that conflict of law rules are considered substantive law and federal courts must use the law of the state from which a case was removed in a diversity case. Moreover, we have useful annotations for the commentary. For example, look at Refrigerated Transp., Inc. v. Worsham, 705 F.2d 821 (6th Cir. 1938) in footnote 12 in 4 to the effect that since the district court sat in Tennessee, and a diversity case it had to apply Tennessee substantive law including Tennessee conflict of laws. Hataway did not involve diversity or the federal courts in a diversity case, so this aspect was not mentioned by the Hataway court. But, it is useful information inasmuch as our case is a diversity case and involves removal to the federal district court in Tennessee. We also see commentary and authority for the 7 proposition that the federal court must apply Tennessee law regarding statutes of limitations, sufficiency of evidence, privilege of witnesses, and in personam jurisdiction. ~ Digression on hazards of tunnel vision Watch out especially if you are doing a case-based search for cases that continue to be quoted, have not been expressly overruled, and, yet, are no longer good law. We must realize that leading cases may expressly overrule other leading cases, but the judges do not make a list of all affected cases and expressly overrule them. No, that is our job. Moreover, it is not uncommon for treatises and encyclopedia to leave these cases languishing around on pages long written and forgotten. For example, we see the case of Myers v. Hayes Intl Corp., 701 F.Supp. 618 (M.D. Tenn. 1988) mentioned in 28, footnote 2 for the proposition that Tennessee has steadfastly adhered to the traditional rule of lex loci delictus. If we Shepardize Myers, we find three Tennessee decisions that discuss the case in terms non-related to lex loci delictus. Our Shepards search reveals one federal district court case reported after the Hataway decision was rendered. This case, McKinnie v. Lundell Mfg. Co., Inc., 825 F.Supp. 834 (W.D. Tenn. 1993),February 3, 2004 rendered by Judge Todd from the Eastern Division of the Western District of Tennessee at Jackson acknowledges the Hataway decision, but, surprisingly, follows the Hataway citation with a reference to Myers without any mention that Myers has been overruled by Hataway. (Perhaps it is not surprising. After all, Judge Todds clerk may have fallen in the same aperture that this digression describes. | Tennessee Practice Series, 3d (T.P.I.-3) located at 345.2 T25p in the Reference Section of the MTSU Library is a West Publishing Company product that is very useful as an adjunct to basic research. Pattern Jury Instructions Civil, 3d (Vol. 7 Criminal, Vol. 8 Civil) Prepared by members of the Tennessee Judicial Conference, these instructions are carefully drafted with clear, non-legalese language that is understandable by average jurors. The set is also a good source for applicable statutes and cases as many of the instructions are accompanied by committee notes citing case law or statutes that support the instruction, as well as by use notes suggesting when and how an instruction may be modified. The useful thing about looking at pattern jury instructions at the beginning of your case preparation is that you will not only gain insight into the elements of your cause of action, but it will be useful to Tennessee Practice Series phrase as much of your opening statement in the language that a judge is likely to use when charging the jury on the law at the conclusion of the trial. For example, go to T.P.I. 3, Vol. 8, no. 3.05 for a definition of negligence that states: Negligence is the failure to use ordinary or reasonable care. It is either doing something that a reasonably careful person would not do, or the failure to do something that a reasonably careful person would do, under all 8 of the circumstances in this case. A person may assume that every other person will use reasonable care. Using this or similar language can resonate with the jury having heard it in your opening statement. Example: For the plaintiff: Members of the jury, the evidence that we will present to you will show that Mr. Holman, acting by and through The Everest Experience, was negligent, that by neglecting to monitor the weather that fateful day, he failed to use the ordinary care that a reasonable person like P.J. Gilbertson had a right to expect under the circumstances. In fact, the $60,000 that P.J. Gilbertson paid The Everest Experience gave him a right to expect that Mr. Holman would act like a knowledgeable mountain guide and monitor the weather at all times. You will hear the testimony of Mr. Baker, one of the climbers on that disastrous climb, who will tell you that Mr. Holman did not monitor the weather during any part of the trip. You will also hear the testimony of Mr. Xyz, an experienced mountain guide from Timbuktu who has successfully guided dozens of trekkers to the summit of Mt. Everest, who will tell you that he and all competent guides constantly monitor the weather when ascending and descending that treacherous mountain. For the Defendant: Members of the jury, the evidence that will be revealed by our witnesses will convince you that all of Mr. Holmans actions were that of a reasonable mountain guide and that P.J. Gilbertson received everything a reasonable person had a right to expect from a capable and competent mountain guide. Ms. W eathervane, a noted climatologist that has studied the weather patterns of Mt. Everest will tell you that the weather surrounding Mt. Everest is so erratic and capricious that monitoring is a futile exercise, and Mr. Climbingman, a seasoned mountaineer from Switzerland who has conquered Mt. Everest more than any human alive, will tell that he has never monitored the weather, and that, as far as he knows, most reputable mountain guides think it best to use the expense and space that weather-monitoring equipment require for other, more useful, activities such as oxygen and medicine. Finally, Mr. Holman will tell you that he, personally, has successfully taken many groups up the mountain without monitoring the weather. Civil Procedure Forms, 3d (Vols. 5 and 6) This set, organized according to the text of the Rules, provides forms for every step of litigation, from commencement through appeal. Plus commentary, practice pointers, checklists, and timetables. Rules of Civil Procedure Annotated, 3d (Vols. 3-4) Full text of the rules, plus in-depth discussion of the interpretation, application, and implementation of each Rule, as well as the case law and statutes that support it. Commentary includes valuable practice guidance. Committee Comments discuss the spirit and intent of each Rule. The Tennessee Practice Series includes volumes on debtor-creditor law, comparative fault, legal forms for areas of practice including property, business, estate planning, and domestic relations law, probate, and the Uniform Commercial Code. 9 | Jurisdictional Considerations ! Common sense tells us that we need some authority for Tennessee courts to have authority over citizens, persons, corporations located in another state. ! So we locate the authorizing statute: ! TCA 20-2-214 and 20-2-223 ! Now we want to make sure that The Everest Experience is amenable to Tennessee courts under the statute: " So, we can go to LexisNexis to find relevant case law or interpretation of the statute - Go to Tennessee case law - Go to Guided Search - Enter the statute 20-2-214: into the first query, specifying that it be in the same sentence - Enter corporation in the second query - [generally we select all available dates and Tennessee all courts " We obtain a list of 26 cases ! We can further refine our search by using Search Within Results " Lets look for the cases within the group of 26 that might concern personal injury " So, enter personal injury into the Search Within Results " We get 4 cases Next we want to know even more about the selected cases before beginning a detailed look at them. " So, we select Expanded List and at the search queries within some context, viz, associated with other words in their sentence - Notice that we expand only the last search term used. If we want to expand on the statute and corporation, we need to go back to the results list for that search and expand the list. We are doing two things here: " First, we are looking for the general law or definitive interpretation of the statute " Second, we are looking for a case that is factually similar to our own " One good way to do this is to select the most attractive according to a variety of factors: - Date 10 ! ! - level of court, Supreme Court favored over Appellate Court decisions - likelihood of getting a factual situation as close to all fours as possible ! So, lets select number 2 2. Hall v. Bradbury Inn, C.A. NO. 03A01-9410-CV-00384, COURT OF APPEALS OF TENNESSEE, 1995 Tenn. App. LEXIS 252, April 21, 1995, FILED ... assaulted resulting in personal injuries to both. T.C.A. ? 20-2-214 ... ... plaintiffs in the foregoing personal injury action. The undersigned is a ... ! A good trick to use right away is to search for leading case, because once you find this you are on to a jewel for two reasons: " First, you know you have found the definitive authority on the issue (assuming you have located the relevant issue) " Second, you have a case to Shephardize to learn if the law has changed. To search the case: " Select Edit in the browsers task bar " Select Find in this page or Find (on this page) depending on which browser you use " Enter the query leading case Voil, Eureka, and jubilation! We find the leading case: ! ! Masada Inv. Corp. v. Allen, 697 S.W.2d 332 (Tenn. 1985) is the leading case in this jurisdiction touching upon the issue under discussion in this case. In Masada it is said: In determining whether or not a state can assert long-arm jurisdiction, due process requires that a non-resident defendant be subjected to a judgment in personam only if he has minimum contacts with the forum such that "the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" International Shoe Co. v. W ashington, 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L.Ed. 95 (1945). The absence of physical contacts will not defeat in personam jurisdiction where a commercial actor purposefully directs his activities toward citizens of the forum state and litigation results from injuries arising out of or relating to those activities. [*10] Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S. Ct. 2174, 2182, 85 L.Ed. 2d 528 (1985). In such a case, "the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there." W orld-W ide Volkswagen Corp. v. W oodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed. 2d 490 (1980). | Shephardization of Cases Masada Inv. Corp. v. Allen, 697 S.W.2d 332 (Tenn. 1985) on MTSUs LexisNexis:2 " Return to Basic Search for Tennessee case law " Enter 697 S.W.2d 332 as the search query 2 LexisNexis has the hardcopy and electronic version of Shepards. LexisNexis at MTSU has Shepardization for recent U.S. Supreme Court decisions. WestLaw has Shepards as well. You can also purchase some electronic versions of Shepards from various vendors. 11 " " " We find one case that has mentioned Masada, and, incidentally a very good case to review because it contains a very good discussion of Masada and other leading cases. (SHELBY COUNTY HEALTH CARE CORPORATION, d/b/a REGIONAL MEDICAL CENTER v. ALLSTATE INSURANCE COMPANY v. WILLIAM GARY HOLT, GARY EUBANKS AND ASSOCIATES LAW FIRM, and TERESA STIVERS, COURT OF APPEALS OF TENNESSEE, AT JACKSON, 2003 Tenn. App. LEXIS 613, August 28, 2003) An advantage of using LexisNexis to Shepardize is that we get the cases with the flick of a few fingers on the computers keyboard within the friendly confines of our home-study The disadvantage is that while we get the cases we dont get the detail, or the manner in which the subject case was treated. That can become a labor intensive task if the subject case has been frequently cited. The best cure for this is to go to the latest cite and check to see if it is still good law. Another point to remember. If the subject case is not still good law, it would probably not be cited. But, you can never be sure. | Using Shepards hardbound volumes: ! ! Start with a case citation, for example: Masada Inv. Corp. v. Allen, 697 S.W.2d 332 (Tenn. 1985) Select the appropriate Shepard's Citator: Shepards Southwestern Reporter Citations or Shepards Tennessee Citations (a Compilation of Citations to the United States Constitution and Statutes, Tennessee Constitution, Codes, Acts, Court) Shepard's units are usually divided into two basic sections: one for court decisions ("reports") and one for materials that are not court reports (constitutions, session laws, codes, treaties, city ordinances, etc.). Check spines or covers of the various pieces. Once you have found the correct unit of Shepard's, check the listing on the cover of the latest paper supplement to be sure you have all the pieces needed. (Obviously, if you are shepardizing a recent case, you may not need earlier volumes.) Read the volume spine (or cover) to make sure you are in the correct part of the unit (example: cases, statutes, court rules). Once you open a volume (or pamphlet), read the heavy black print across the top of the page, matching it with that of the document in hand. Where the item you are Shepardizing is published in more than one edition or series, be sure the year or series or edition numbers at the top of a Shepard's page match your document. At the top of the page, one will also find the volume number (or article or section or title numbers) that you should match with the numbering of your document. In Shepard's, a volume number may change in the middle of a page, but the change is indicated in legible, black print. ! ! 12 ! ! Here and there across the pages, you will see smaller numbers in heavy black print, often between two dashes or after a "section" symbol. Match these numbers to the page (or section or part) numbers of the document in hand. Once you have found a match, Shepard's will usually give a string of letters and numbers in the column below the page (or section or part) number. These letters and numbers are the "citations" for later documents that have cited the item you are shepardizing. For example, you may find "685 FS 1220 Cir.9". This indicates a later case from the U.S. Court of Appeals, 9th Circuit, published in 685, volume pp. 1220 et seq., of a series called Federal Supplement. (For abbreviations, check the Tables of Abbreviations, at the front of Shepard's bound volumes.) The very small numbers and letters in front of, or after, each citation tell you how the later material treated your document in hand. For example, a small "f" indicates the later case "followed" the case being shepardized, an "o" that it was overruled. Sometimes, when shepardizing a case, one will find very small numbers inserted within cites for later cases and printed somewhat above the line. These very small numbers (example: 3) indicate the later case cited the document in hand specifically for the rule of law laid out in headnote number "X" of the case being shepardized (headnote 3 in our example). Be sure to check all Shepards' volumes/pamphlets that cover time periods after the date of your document. Shepards' Citations are an excellent tool for checking the validity of documents you rely on, for finding parallel citations, and for finding additional material similar to the material in hand. | Removal to Federal Court Our Next Problem is the defendants desire to get the trial out of Rutherford Countys Circuit Court. For this, we heard about removal. Now, common sense tells us that it would be the national government that would permit and provide for removal to its courts. So, we go to national, so called federal, law. A good way to find a relevant statute is to research judicial opinions instead of going to the code. For example, lets look for removal in federal case law. ! ! ! ! ! ! ! ! ! ! Go to federal case law Go to Guided Search Insert removal as the first search term Insert diversity as the second in the same sentence Insert Tennessee as the third Select District Courts (why district courts? later.) Select Previous ten years (that should yield more than enough) We get 312 cases Click on Expanded list Look for the relevant statutory reference " We notice case No. 4 mentions 28 USC 1332 and removal, so lets look there " We see that defendant Davidson Hotel filed a notice of removal in this court. The case 13 was removable because this court would have original jurisdiction under 28 U.S.C. 1332, based on the complete diversity of the parties and an amount in controversy over $ 75,000. " We also see instructions to check or see 28 U.S.C. 1441(a) ! Now, we go to FindLaw.com and check out the statutes " 1332 grants national courts jurisdiction over diversity cases where the amount in controversy is $75,000 or higher, and " 1441 provides for removal to national courts of these cases when the plaintiff has filed the case in state court ! Notice how we can expand our horizon when looking at 1441 by clicking on CHAPTER 89 - DISTRICT COURTS; REMOVAL OF CASES FROM STATE COURTS, that is located above the statute, and get the overview of the chapter that is very useful. " 1446 procedure for removal tells us how to remove " 1447-48 what to do after removal " What to do with the state court papers | Searching for a Statute in the Code: ! Go to Findlaw.com and enter removal of actions from state court and your get the pertinent statutes we are looking for. We find and access 1441 We can access the history of the statute, when it was enacted what amendments et cetera have occurred by clicking on Notes at the bottom of the page. " But we dont get other annotations that are helpful, especially the cases that have considered the statute. For this we, must go to LexisNexis ! Go to LexisNexis federal code ! Go to Guided Search ! Enter 28" as the first search term and select cite ! Enter 1441" in the second ! If we entered 28 U.S.C.S. 1441" in the basic search, we would pull every statute that mentions 28 U.S.C.S. 1441", including 1441 itself, but we dont want to plow through several pages looking for it ! This version of 1441 has among its annotations " cross references to other statutes that are associated one way or another " research guide that gives us resources that will help understand and use the statute: - how to books and forms - encyclopedias - law review articles, and, most importantly, cases that interpreted and applied the statute " " 14 | The Opening Statement: The Jurys Passage to Your Version Opening statements are usually defined by writers like Thomas Mauet in rather general terms as your opportunity to tell the jury what the case on trial is all about. A judge might, as Mauet points out, explain the opening statement to the jury as an overview of what the lawyers expect to show through the witnesses and other evidence that will be introduced during the trial to help the jurors understand the evidence when it is offered. I suggest that you peruse Mauets text on trial advocacy or some other standard work to learn more detail about writing an opening statement. What follows here is a few practical suggestions about how to write an opening statement in the specific case we are using Gilbertson v. The Everest Experience. Be wary of instructions on the content of an opening statement. Scrutinize themall of them very closely. Caution No Opinions Permitted Here. One instruction that causes so much confusion regarding opening statements is the ban on use of argumentation and personal opinion. In other words, Mauet says, the way to keep the distinction in mind is to remember that opening statements state facts. To illustrate, Mauet gives the following examples: Proper: He was going 50 mph in a 30 mph zone. She will testify that she took a handgun away from a 250-lb football player. Improper: He was racing his car, scattering everything in his path. Common sense tells you that she couldnt have done what she claims she did. To be sure, stating that he was racing his car, scattering everything in his path, is rank opinion, and would be improper opinion and argumentative. The statement is both rank opinion and argumentation because it is a very ill-defined description that invites contrary opinions that may be equally ill-defined, especially compared to the precise statement that he was going 50 mph in a 30 mph zone. Yet, the statement that he was going 50 mph in a 30 mph zone, may be opinion as well. While it sounds so factual, there may be others involved in the law suit that claim he was not going 50 mph in a 30 mph zone. If so, what then? Is one fact, the other opinion. If so, which is fact, and which is opinion. In short, the fact-opinion distinction is not very helpful. [The second statement is not permissible because it is clearly argumentative. The statement that common sense tells you that she couldnt have done what she claims she did, is an obvious reference to some anticipated testimony by the other sides witness. The rule against argumentation in opening statements to the extent that it precludes an examination of the 15 adversarys case is both clear and understandable, and in this example does not help understand the fact-opinion distinction.] Mauet reminds me of so many composition teachers that have an absolute prohibition against personal opinion. The best I can figure, it that as long as we avoid use of the personal pronouns I, me, and my, we are not expressing an opinion. Fact of the matter is (pun intended), the is considerable opinion that the fact-opinion (or fact-value) distinction is faulty because of the nature of perception, namely, that the perception of anything, facts included, involve value judgments. Be that as it may, lets get back to Mauet. He says it is also improper to state directly your personal opinion about the facts. (p. 49) Yet, he says on the same page that we incorporate our theory into the opening statement, our version of what happened. Moreover, as an opening theme, he suggest This is a case about a company that refuses to do business the American way, and This is a case about police brutality. Explain to me the difference between these characterizations of the facts and He was racing his car, scattering everything in his path. Mauet, correctly instructs us to include a statement about the issues. For example, we should discuss the legal basis of our claim, and for example, he has defense counsel stating, We will prove that we were driving safely, and that if anyone caused this accident, it was the plaintiff himself who was negligent and at fault. So, how is one to know when is opinion and argumentation (about facts in general, not about the adversarys anticipated case) permissible and not permissible? The fact-opinion distinction is one that makes a difference, but not because one is straight-out fact and the other is straight-out opinion. The difference is how fact and opinion come together in a legal argument. The law can be seen as opinion about facts. For example, Bill Bradley (not the senator from New Jersey) shot his wife seven times. One might say that is the facts. Attorney General Winstead, making his opening statement to the jury, statedas a matter of factthat Bradley committed murder in the first degree. Now, is that fact or opinion? By whatever name you choose to call it: opinion, judgment, interpretation, explanation, it adds something to the experience that occurred at the Bradley home on the evening Ms. Bradley was shot. What is important, is that it is not inappropriate for opening statements because it is opinion, and that is because it is opinion that is structured by the law. [Incidentally, Bill Bradley was of the opinion, based on advice of counsel, that he had committed murder in the second degree, and offered to so plead. The Attorney General disagreed with that opinion and the case went to trial. The jury was of the same opinion as Bradley.] To repeat: opinion about facts are okay when the opinions are structured by the law. In fact, law can be seen as the organizing principle that gives facts any significance to begin with. The moment we begin an experience, say, as jurors listening to the facts in an opening statement, we seek understanding of the Myth Ahead experience by assimilating it into our personal framework or structure that is at hand for understanding. We dont receive facts in some neutral, objective form and wait 16 for someone to tell us how to interpret them. We begin the interpretative process instantly. The interpretative process is pervasive and continuous. And the more we permit someone to use their structure as opposed to ours, the more they will control meaning, and the less we will. It is a myth that the jury receives the facts, and only the facts during the trial and then at the conclusion, the judge begins the charge to the jury by saying It is also my duty at the end of the trial to instruct you on the law applicable to the case. You, as jurors, are to decide the facts. But in determining what actually happened in this casethat is, in reaching your decision as to the factsit is your sworn duty to follow the law that I am now in the process of defining for you. True, but not true enough. Truth be known, the attorneys have been presenting the facts all along part and parcel with the law. Now, to be sure, they would not have used the technical language of the law, nor quoted statutes and case law. Nonetheless, as we will see, the law is ever present. Facts are messy business. They dont come clothed with understanding, interpretation and explanation of what they mean for us. No, that is our job, and it is and exciting, and at times frightening enterprise . But, that is where the Which Way? law helps us. The law is the organizing principle, the structure for making sense of what we sometimes call raw facts. Law identifies the highway (US 20); law tells us the direction of the highway; the law tells us which traffic lane to be in, which one to avoid, when we can turn right on red and when we cannot. We know from the law which way trucks cannot go, which lane is a turn-only lane. In short, the law does the work for us. Lets illustrate this with a graphic. As you can see from the graphic, the law is the organization principle that gives facts meaning, which is nothing short of an opinion about the facts, but an opinion that comes from the legal process, a process that involves public opinion, individual litigants, attorneys, judges, jurors, legislators, regulatorsall of us acting in concert in 17 our own individual way. It is a dialectical process, by which I mean, that the law constitutes the facts as the facts determine what law is applicable. It is not a linear process whereby the facts are ascertained independently and, as the judges charge would have you believe, then, and only then, is law applied as if in some mechanically fashion. No, we would not know what facts are applicable if we did not know what law was applicable, and mutatis mutandis (I simply must use some fancy Latin occasionally, else I lose my membership in the world of the judicatory cognoscenti), if we dont have the facts, we dont know what law is applicable. That is why we use each to create the other as it is created by its other. | The Opening Statement: Whats in it? How do we write it? A good opening statement is like a good set of directions that satisfy your need to arrive at a predetermined location with the least effort. Just recall how often you have receive good and how often you have received bad directions. Jurors are in the same position. They can get either from an opening statement, and guess which one works best for the attorneys that give them? One of the most classic mistakes of directions and opening statements is going straight to detail without giving the listener an overview that works as a framework for the detail. In other words, detail without a framework is a dead-end street. Lets take a look at the difference. Here is a plaintiffs beginning opening statement that begins with detail, followed by the defendants opening statement. Notice how the defense attorney gives the jurors a framework for understanding the detail. In this case, my client entered into a written insurance agreement with the defendant, Vulcan Insurance Company, to insure his building against any loss incurred by the fire that destroyed the insured's building. He signed this contract on May 9, 1999 and paid the full premium. Then a fire, caused by accidental circumstances, caused the building to burn down more than six months later on November 17. A claim was filed to collect the value of the building from the insurance company, and that claim was denied. That is why we are in court today. Let me now tell you the details of what happened . . . This case is about the burning down of a factory. About the intentional and willful destruction of a factory building. About arson committed by the plaintiff Martin Sikorski. The plaintiff had severe financial problems and burned his building down to solve those problems. Martin Sikorski, on November 17, 1999, started a fire in the boiler room of his factory at around 1:30 in the morning. The building was empty. There was no one around. Mr. Sikorski took several gallons of gasoline stored by the loading dock in the building and spread that gasoline around the floor of the boiler room. He then lit on fire a rolled up magazine and touched the flame to the gasoline, starting the fire that caused the destruction of his building. He left immediately. He had already opened up several windows in the factory so the flames would spread rapidly. They did. The fire engulfed that building, which was primarily a wooden structure, like a firestorm. The fire department responded immediately after receiving the first alarm. The alarm was made about fifteen minutes after the fire started. Despite the best efforts of the firefighters, the fire intentionally started by Mr. Sikorski burned his building to the ground. Notice in this case, which the defendant insurance company is defending a policy claim on the 18 grounds of arson, how much opinion (that I have italicized) can be found in the opening statement of the defense counsel. But, notice also how the opinion is structured to comport with the three basic elements of the law of arson: (1) the insured had a motive to commit the arson; (2) the insured (or someone under his control) had an opportunity to commit the arson; and (3) the fire was incendiary or intentionally set. I have found the pyramid to be a helpful aid in organizing not only an opening statement, but the entire lawsuit. I will illustrate the pyramid approach with a graphic. 19 20 How to write a direct examination. Your case-in-chief witnesses are critical to presenting a successful case. You must consider two primary aspects as you prepare direct...

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