kaplan university pa205: introduction to legal research unit 2 seminar: sources of legal authority

Kaplan UniversityKaplan UniversityPA205: Introduction to Legal ResearchPA205: Introduction to Legal Research

Unit 2 Seminar:Unit 2 Seminar:

Sources of Legal AuthoritySources of Legal Authority

STATUTORY INTERPRETATIONSTATUTORY INTERPRETATION

Statutes are “black letter” law. In other Statutes are “black letter” law. In other words, a statute is a statement of the law words, a statute is a statement of the law in written form. But statutes are nearly in written form. But statutes are nearly always subject to interpretation. And even always subject to interpretation. And even the best drafted statutes are subject to the best drafted statutes are subject to interpretation in different ways, which interpretation in different ways, which means that in order to apply a statute to a means that in order to apply a statute to a set of facts, one must determine what set of facts, one must determine what each part of the statute means.each part of the statute means.


When assigned the task of applying a When assigned the task of applying a statute to a fact set, one must statute to a fact set, one must always first identify the specific always first identify the specific requirements of the statute. This requirements of the statute. This means that one must first identify means that one must first identify the basic elements of a statute.the basic elements of a statute.


Consider the statute we are discussing on the DB this week:Consider the statute we are discussing on the DB this week:

NRS 200.380 (2010) Robbery NRS 200.380 (2010) Robbery Robbery is the unlawful taking of personal property from the person of Robbery is the unlawful taking of personal property from the person of another, or in the person’s presence, against his or her will, by means of another, or in the person’s presence, against his or her will, by means of force or violence or fear of injury, immediate or future, to his or her force or violence or fear of injury, immediate or future, to his or her person or property, or the person or property of a member of his or her person or property, or the person or property of a member of his or her family, or of anyone in his or her company at the time of the robbery. A family, or of anyone in his or her company at the time of the robbery. A taking is by means of force or fear if force or fear is used to:taking is by means of force or fear if force or fear is used to:(a) Obtain or retain possession of the property;(a) Obtain or retain possession of the property;(b) Prevent or overcome resistance to the taking; or(b) Prevent or overcome resistance to the taking; or(c) Facilitate escape. (c) Facilitate escape. The degree of force used is immaterial if it is used to compel The degree of force used is immaterial if it is used to compel acquiescence to the taking of or escaping with the property. A taking acquiescence to the taking of or escaping with the property. A taking constitutes robbery whenever it appears that, although the taking was constitutes robbery whenever it appears that, although the taking was fully completed without the knowledge of the person from whom taken, fully completed without the knowledge of the person from whom taken, such knowledge was prevented by the use of force or fear.such knowledge was prevented by the use of force or fear.


NRS 200.380 (2010) Robbery NRS 200.380 (2010) Robbery Robbery is the Robbery is the (1)(1) unlawful taking of unlawful taking of (2)(2) personal property personal property (3)(3) from the person of another, or from the person of another, or (3a)(3a) in the person’s presence, in the person’s presence, (4)(4) against his or her will, against his or her will, (5)(5) by means of force or by means of force or (5a)(5a) violence or violence or (5b)(5b) fear of injury, fear of injury, (5c)(5c) immediate or future, immediate or future, (6)(6) to his or her to his or her (6a)(6a) person or property, or person or property, or (6b)(6b) the person or property of a the person or property of a member of his or her family, or member of his or her family, or (6c)(6c) of anyone in his or her of anyone in his or her company at the time of the robbery. company at the time of the robbery. (Definition 1)(Definition 1) A taking is by A taking is by means of force or fear if force or fear is used to:means of force or fear if force or fear is used to:(a) Obtain or retain possession of the property;(a) Obtain or retain possession of the property;(b) Prevent or overcome resistance to the taking; or(b) Prevent or overcome resistance to the taking; or(c) Facilitate escape. (c) Facilitate escape. (Definition 2)(Definition 2) The degree of force used is immaterial if it is used The degree of force used is immaterial if it is used to compel acquiescence to the taking of or escaping with the to compel acquiescence to the taking of or escaping with the property. A taking constitutes robbery whenever it appears that, property. A taking constitutes robbery whenever it appears that, although the taking was fully completed without the knowledge although the taking was fully completed without the knowledge of the person from whom taken, such knowledge was prevented of the person from whom taken, such knowledge was prevented by the use of force or fear.by the use of force or fear.


John is a 6 foot 4 inch tall, 335 pound football player who has just been informed he has won a John is a 6 foot 4 inch tall, 335 pound football player who has just been informed he has won a full scholarship to the college of his choice. To celebrate, he has decided to buy several full scholarship to the college of his choice. To celebrate, he has decided to buy several expensive pieces of audio and video equipment in a local department store. He takes his expensive pieces of audio and video equipment in a local department store. He takes his selections to the checkout and pays for them. However, the clerk fails to place one item, a selections to the checkout and pays for them. However, the clerk fails to place one item, a portable DVD player, in John’s shopping cart after it has been rung up. John has been flirting portable DVD player, in John’s shopping cart after it has been rung up. John has been flirting with the clerk, so neither the clerk nor John notice that the item is still sitting on the counter as with the clerk, so neither the clerk nor John notice that the item is still sitting on the counter as John leaves after paying. The clerk is called away, and another clerk sees the DVD player and, John leaves after paying. The clerk is called away, and another clerk sees the DVD player and, thinking John decided not to buy it, returns it to the shelf. Three hours later, after both clerks thinking John decided not to buy it, returns it to the shelf. Three hours later, after both clerks have left following their shifts, John returns to the store, takes an identical DVD player from the have left following their shifts, John returns to the store, takes an identical DVD player from the shelf, takes it to the checkout counter, and tells the clerk on duty “I bought this earlier today, shelf, takes it to the checkout counter, and tells the clerk on duty “I bought this earlier today, but when I got home it wasn’t with the stuff I left with”. He shows the clerk his receipt, but the but when I got home it wasn’t with the stuff I left with”. He shows the clerk his receipt, but the clerk tells John that she cannot allow him to take the DVD player, and calls for the manager on clerk tells John that she cannot allow him to take the DVD player, and calls for the manager on duty. John doesn’t want to wait for the manager, so he simply walks out of the store with the duty. John doesn’t want to wait for the manager, so he simply walks out of the store with the DVD player while the clerk is calling the manager. Another clerk sees John leaving with the DVD DVD player while the clerk is calling the manager. Another clerk sees John leaving with the DVD player and tries to stop him. John has a short temper, and he tells the clerk “get out of my way, player and tries to stop him. John has a short temper, and he tells the clerk “get out of my way, you little twerp, or I’ll deck you.” The clerk, a retired high school gym teacher, backs off and lets you little twerp, or I’ll deck you.” The clerk, a retired high school gym teacher, backs off and lets John leave the store. The manager sees this and calls Mall security, John is apprehended as he John leave the store. The manager sees this and calls Mall security, John is apprehended as he leaves the mall, and he is detained in the security office while the local police are called. John is leaves the mall, and he is detained in the security office while the local police are called. John is charged with robbery.charged with robbery.

Has John committed robbery, under the statute? Has John committed robbery, under the statute?

What would the prosecutor need to prove?What would the prosecutor need to prove?

What statutory deficiencies might the defense point out? What facts support a claim that one or What statutory deficiencies might the defense point out? What facts support a claim that one or more elements are not present?? more elements are not present??


What are the elements?What are the elements?(1)(1) unlawful taking of unlawful taking of(2)(2) personal property personal property

(3)(3) from the person of another, or from the person of another, or (3a)(3a) in the person’s presence, in the person’s presence,

(4)(4) against his or her will, against his or her will, (5)(5) by means of force or by means of force or (5a)(5a) violence or violence or (5b)(5b) fear of injury, fear of injury,

(5c)(5c) immediate or future, immediate or future, (6)(6) to his or her to his or her

(6a)(6a) person or property, or person or property, or (6b)(6b) the person or property of a member of his or her family, or the person or property of a member of his or her family, or (6c)(6c) of anyone in his or her company at the time of the robbery. of anyone in his or her company at the time of the robbery.

(Definition 1)(Definition 1) A taking is by means of force or fear if force or fear is used to: A taking is by means of force or fear if force or fear is used to:(a) Obtain or retain possession of the property;(a) Obtain or retain possession of the property;(b) Prevent or overcome resistance to the taking; or(b) Prevent or overcome resistance to the taking; or(c) Facilitate escape. (c) Facilitate escape. (Definition 2)(Definition 2) The degree of force used is immaterial if it is used to compel acquiescence to the The degree of force used is immaterial if it is used to compel acquiescence to the taking of or escaping with the property. A taking constitutes robbery whenever it appears that, taking of or escaping with the property. A taking constitutes robbery whenever it appears that, although the taking was fully completed without the knowledge of the person from whom taken, although the taking was fully completed without the knowledge of the person from whom taken, such knowledge was prevented by the use of force or fear.such knowledge was prevented by the use of force or fear.

CASE BRIEFINGCASE BRIEFING

If possible, get your printed copy of If possible, get your printed copy of Swan v. Talbot, 152 Cal 142 (1907)Swan v. Talbot, 152 Cal 142 (1907)

You may also simply open the You may also simply open the document in doc sharing and use document in doc sharing and use that here.that here.

CASE BRIEFINGCASE BRIEFING FactsFacts The court nearly always provides a recitation of the facts. Paraphrase The court nearly always provides a recitation of the facts. Paraphrase

the facts as the court has gioven them – if the court thought a fact was the facts as the court has gioven them – if the court thought a fact was important, it probably was!important, it probably was!

IssueIssue Look for words such as “we are called upon to decide”, etc. Some Look for words such as “we are called upon to decide”, etc. Some courts don’t do this, but it’s common. If you can’t find the issue that way, courts don’t do this, but it’s common. If you can’t find the issue that way, go about it from behind, so to speak: find the rule of law and change it into go about it from behind, so to speak: find the rule of law and change it into a question.a question.

Rule of LawRule of Law Look for words such as “it is well settled”, or “even “the rule…”. Look for words such as “it is well settled”, or “even “the rule…”. Case or statute citations also help to lead you to the rule. Look for Case or statute citations also help to lead you to the rule. Look for paragraphs in which the court has provided a cite to the source – it is paragraphs in which the court has provided a cite to the source – it is probably a statement of a rule of law.probably a statement of a rule of law.

Analysis Analysis This is the easiest, but in a sense also the most difficult. What you This is the easiest, but in a sense also the most difficult. What you need is the analysis of the court – not what you think. Why does the court need is the analysis of the court – not what you think. Why does the court say it ruled as it did? Does it recite certain facts? The analysis section say it ruled as it did? Does it recite certain facts? The analysis section basically takes everything the court has said about an issue and very basically takes everything the court has said about an issue and very briefly paraphrases it.briefly paraphrases it.

ConclusionConclusion The easiest part of a brief! Did the court affirm or reverse the The easiest part of a brief! Did the court affirm or reverse the lower court? That is the conclusion.lower court? That is the conclusion.

CASE BRIEFINGCASE BRIEFING Swan v. TalbotSwan v. Talbot, 152 Cal. 142 (1907) , 152 Cal. 142 (1907) Always identify the Always identify the

case, with a complete citation.case, with a complete citation. Facts: Facts: Simply a paraphrase of the first paragraph of the Simply a paraphrase of the first paragraph of the

opinion.opinion. Swan (the plaintiff) sued the Talbot (the defendant) Swan (the plaintiff) sued the Talbot (the defendant)

to cancel a bill of sale. The plaintiff stated that he was so to cancel a bill of sale. The plaintiff stated that he was so intoxicated at the time of making the transaction that he intoxicated at the time of making the transaction that he does not remember doing so. He claims that the defendant does not remember doing so. He claims that the defendant knew that he was intoxicated and took advantage of his knew that he was intoxicated and took advantage of his drunken state. The property subject to the bill of sale was drunken state. The property subject to the bill of sale was of significantly greater value than the sale price of $200 of significantly greater value than the sale price of $200 stated in the bill of sale. Witnesses saw Swan fall in the stated in the bill of sale. Witnesses saw Swan fall in the streets, stated that he needed help walking upstairs, and streets, stated that he needed help walking upstairs, and even needed help getting in his bed.even needed help getting in his bed.

The Superior Court of Glenn County ruled in favor of The Superior Court of Glenn County ruled in favor of Swan and denied the defendant’s motion for new trial. The Swan and denied the defendant’s motion for new trial. The defendant is appealing this decision, claiming that the defendant is appealing this decision, claiming that the judge was biased and favored the plaintiff and his judge was biased and favored the plaintiff and his attorneys.attorneys.


Issues: Sometimes there is more than one major issue. Numbering the issues makes the brief easier to follow.

1. Can a bill of sale be cancelled because the plaintiff was intoxicated at the time he entered into the underlying transaction?

2. Did the judge err with his decision denying a new trial? No,

because it is his duty to deny or grant the motion “should bias and other disqualification be shown… and to sit in the case himself.” Some legal writers like to include a “short answert” with the issue. This is optional.


Rule: Find the rule by looking for key words and phrases, such as

“we therefore hold” or similar. Look also for citations to cases and statutes. Include the citations.

1. The court said that they may not assist a person who made a contract while intoxicated, just because in his sober state he would have not made the contract. However, if the contract was obtained by fraudulent means and was grossly inadequate while the person was drunk, the law may intervene. (Phelen v. Gardner, 43 Cal. 306; Moore v Moore, 56 Cal. 92). Note that some would delete the first sentence, because it isn’t applicable to the facts here.

2. Based on case law, it still is the duty of the judge to grant or deny a motion, “and to sit in the case himself.” (Higgins v. City of San Diego, 126 Cal. 304; People v. Findly, 132 Cal. 305; Lamberson v. Superior Court, 150 Cal. 458).


Analysis/Application: Paraphrase the rationale explained by the court. You will need to read a case carefully, in order to determine what is analysis and what is just dicta, not really applicable to the holding.

1. The plaintiff was too intoxicated to realize that he was making such a transaction to give away his property. Many witnesses saw him in his drunken state and said he kept falling in the streets and needed help. The plaintiff cannot recall that he signed the bill of sale. Because of this, the facts suggest that defendant took the opportunity to take advantage of the plaintiff. In ruling for Swan, the court cited the “well settled principle” that “whenever there is great weakness of mind in a person executing a contract, arising from any cause, and the consideration given for the property is grossly inadequate, imposition or undue influence will be inferred…” (Moore v Moore, 56 Cal. 92). Because the property in question has a value of $21, 949.86, but the total paid to Swan by Talbot was only $10,604.32, the court concluded that the amounbt paid was “grossly inadequate” and the law as stated in Moore should apply.


Analysis/Application: Paraphrase the rationale explained by the court. You will need to read a case carefully, in order to determine what is analysis and what is just dicta, not really applicable to the holding.

1. The plaintiff was too intoxicated to realize that he was making such a transaction to give away his property. Many witnesses saw him in his drunken state and said he kept falling in the streets and needed help. The plaintiff cannot recall that he signed the bill of sale. Because of this, the facts suggest that defendant took the opportunity to take advantage of the plaintiff. In ruling for Swan, the court cited the “well settled principle” that “whenever there is great weakness of mind in a person executing a contract, arising from any cause, and the consideration given for the property is grossly inadequate, imposition or undue influence will be inferred…” (Moore v Moore, 56 Cal. 92). Because the property in question has a value of $21, 949.86, but the total paid to Swan by Talbot was only $10,604.32, the court concluded that the amount paid was “grossly inadequate” and the law as stated in Moore should apply.


2. The court decided that even though he may have bias, it is still the duty of the judge to grant or deny a motion and continue to sit in the case. (Higgins v. City of San Diego, 126 Cal. 304; People v. Findly, 132 Cal. 305; Lamberson v. Superior Court, 150 Cal. 458).

Conclusion: The Supreme Court of California affirmed the judgment of the

Superior Court.

Unit 2 Written AssignmentUnit 2 Written Assignment

For this week’s Writing Assignment, For this week’s Writing Assignment, read read Marron v. Marron and Phelan v. Marron v. Marron and Phelan v. Gardner Gardner from the library of cases from the library of cases found in DocSharing. Brief each case found in DocSharing. Brief each case using the FIRAC method. This unit’s using the FIRAC method. This unit’s Written Assignment is not part of the Written Assignment is not part of the Memorandum of Law, but it will help Memorandum of Law, but it will help you have a readily available in-depth you have a readily available in-depth review of each library case. review of each library case.

Unit 2 Written AssignmentUnit 2 Written Assignment

Any questions about briefing cases?Any questions about briefing cases?

FFacts of the caseacts of the case

IIssue presentedssue presented

RRule of law established by the caseule of law established by the case

AAnalysis applied by the court nalysis applied by the court

CConclusion of the courtonclusion of the court

DISCUSSION HYPOTHETICALDISCUSSION HYPOTHETICAL

You are a paralegal in a law firm. The You are a paralegal in a law firm. The senior attorney has asked you to sit senior attorney has asked you to sit in on a client interview because you in on a client interview because you will be doing the research. I am the will be doing the research. I am the client. The client arrives at your client. The client arrives at your office, very upset, waiving a ticket in office, very upset, waiving a ticket in his hand. “I just got this ticket, and it his hand. “I just got this ticket, and it is totally unfair. Can I get out of it?” is totally unfair. Can I get out of it?”


What are some of the details you What are some of the details you need to know? What you need is the need to know? What you need is the section of the Vehicle Code that the section of the Vehicle Code that the client was cited for violating. client was cited for violating. However, the client only has the However, the client only has the section number written on the ticket section number written on the ticket – not the text of the Code. What do – not the text of the Code. What do you do, and why?you do, and why?


State Vehicle Code Section 21703: State Vehicle Code Section 21703: Following too closelyFollowing too closely

““The driver of a motor vehicle shall not The driver of a motor vehicle shall not follow another vehicle more closely than is follow another vehicle more closely than is reasonable and prudent, having due reasonable and prudent, having due regard for the speed of such vehicle and regard for the speed of such vehicle and the traffic upon, and the condition of, the the traffic upon, and the condition of, the roadway.”roadway.”


Now that you have the text of the Now that you have the text of the Code section, what information do Code section, what information do you need? Can the client tell you you need? Can the client tell you everything you need to know? Why, everything you need to know? Why, or why not? What other sources of or why not? What other sources of information might you need to information might you need to investigate, and why?investigate, and why?

kaplan university pa205: introduction to legal research unit 2 seminar: sources of legal authority

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