5.31.11 Complex Litigation

Product Liability Defenses
1. Statute of Limitations- 4yrs warranty, 3yrs negligence and Strict Liability.
2. Useful Safe Life- 12yrs in WA from purchase date
3. Comparative Negligence- Use of product, usually disregard of instructions/warnings
duty, breach, causation, damages. Comp negligence when plaintiff is negligent.
4. Assumption of Risk- Continued use after danger becomes apparent
must be knowing and voluntary.
5. Disclaimer- warranty ONLY, cannot disclaim negligence/SL. "As is, with all faults, as it stands, etc." Implied warranty of merchantability requires "merchantability" in disclaimer.
6. Unforseeable product misuse- trim toenails with chain saw
7. State of the Art- still may be defective if danger outweighs utility. (if they didn't have it then, it's not defective now) (If you make a product that is made with state of the art technology but is still too dangerous to be worth the utility, it should not be released)
8. Unavoidably Unsafe- not really "defective" in the first place. (knives must be sharp, danger is utility)

REVIEW FOR FINAL
Final Test Essays-
1. Bankruptcy
2. 1st Amendment
3. Product Liability

How to Answer

FIRST STATE THE LAW

1. Religion and Speech Issues
-RELIGION- Establish whether it is Establishment or Exercise question.

A. Establishment Case
Accomodationist-no govt inhibiting or advancing any religion, but may neutrally assist. Separationist view- wall of separation between church and state, cross over "Not permitted".

-How do we tell what is neutrally assisting?
The Lemon test sets up a three prong test
1. The first test is to determine whether there is a valid secular purpose for the law. For example...
2. Is the PRIMARY effect to enhance or inhibit religion?
3. Is there excessive government entanglement? Requiring the govt to continually supervise.

Now takes facts and APPLY them to the outline.

B. Exercise Case
-Belief (unfettered, cannot be controlled or restricted in any way) vs. Conduct (can be controlled and regulated)
-1. Does the govt have a compelling reason?
How invasive is the practice to the rights of others?
2. Sincere religious principle? (does not have to be a recognized religion)
3. Inconvenience or outright prohibition? The less restrictive the govt is, the more likely it will be upheld.
4. Time/Place/Manner (police powers vs. content) If the govt is using TPM to restrict the content, likely to be struck down.

Now takes facts and APPLY them to the outline.

SPEECH 6+6
6 Exceptions- 3 will be on test
1. Clear and present danger of inciting imminent lawless action
2. Obscenity- not if it has literary, artistic, political value
3. Fighting Words- words that hurt for their mere utterance bring about visceral reaction. Must be directed at an individual person.

6 Key Elements- "Statutes that restrict speech must not be vague or overbroad because freedom of speech must not be chilled unless it falls under one of the six exceptions."
1. Vagueness- can't do anything to upset anyone. Apply "STRICT SCRUTINY"
2. Over-breadth - all nudity on television, etc.
3. Prior Restraints- stop speech BEFORE it is uttered. Not unconstitutional, PRESUMPTIVELY unconstitutional, require strict scrutiny.
a. Injuntions
b. Permits
c. Tv/radio/licensing
d. Censorship
4. Symbolic Speech- Pure/Speech Plus/Symbolic (Symbolic speech falls closer to conduct and is less protected than pure speech)
5. Traditional Forums- Park, town squares, etc., areas historically reserved for the exchange of views, are given greater protection.
6. Police Powers- Legitimate balance of your rights versus the rights of others.

Now takes facts and APPLY them to the outline.
Show Bruce that you know what you are saying. Explain the terms.

2. BANKRUPTCY-no codes sections needed
-3 Purposes
Help debtors, creditors, and society at large.
-Automatic Stay- What, why and how.
-Adequate Protection- 3 forms
Adequate protection hearing, balancing interests of creditor and debtor.
-Chapter 7, only chapter with INVOLUNTARY process. 12/3 or 11 or less than 12/1
-4-5 types of property that are exempt
Health Aids, tools of the trade, equity, etc.
-Preference-preferring one creditor over another. You may not pick and choose who you pay. Trustee can go back 90 days before filing. If an "insider" (family, friend) can go back 1 year.
-Fraudulent Transfer- Property to anyone for less than reasonable value. And debtor must have intent to hinder, defraud or delay.
-Distribution- Secured/Priority/Unsecured Creditor
-Discharge- kicked out of bankruptcy court, all claims are now non-dischargeable.
-Discharge-ability- Applies to individual claims of creditors, some claims survive bankruptcy (non-dischargeable).

-Chapter 11
½ # creditors and 2/3 in $.

-Chapter 13
Amount of time a plan must cover (36-60months), and total amount of money (ALL disposable income).

PRODUCT LIABILITY
1. 3 types of losses- personal injury, economic (lose ability to perform work), property
2. 3 types of recovery- contract (express warranty- description/sample)(express warranty of suitability for particular purpose)(express warranty of merchantability)(puffing is not a warranty), tort (defect in design-forseeable misuse, manufacturing, instructions/warning), strict liability
Add product liability defense
3 most likely to appear on test:
-comparative neg.
-assumption of risk
-disclaimer

USE QUOTES FROM QUESTION IN ANSWER
OUTLINE-OUTLINE-OUTLINE

5.25.11 Criminal & Family Law

FINAL ASSIGNMENT- Due next Wednesday

You are a paralegal working for a firm representing one of the parties (choose Arnica OR Mark). Your attorney is about to go into mediation with the judge. You must write a memo to assist the attorney. Use memo form. Include: Name. Date. Name of class. Subject Calhoun Mediation. Do not make up names. Give attorney client's primary goals. What to keep in mind at all times. Client's position on each issue (property, parenting, child support, spousal maintenance). Evaluate competing claims for each issue, strengths and weaknesses. Custody from client's position, based on facts, and in best interest of child. You do some evaluation for attorney. Child support based on custody. Spousal maintenance based on goal identified, distribution of assets, lifestyle. Evaluate strength and weaknesses of position, what points might the other side bring up in opposition? Where is there room for agreement, based on arguments form other side. "Our positions are not so far apart on this issue...". "Our positions are so polar that it cannot be resolved...". Suggest a resolution for each issue, that might be accepted by the other side. State proposed resolution, support with facts and law if necessary. Use subheads. Make easily referenced by attorney. Not more than four pages. Shorter is better.

5.24.11 Complex Litigation

"Some of us are standing awfully close to the woodchipper."
-Bruce's words of encouragement on studying for the final

Distribution (§ 726)

First: Secured creditors to extent of security
-may be delayed by automatic stay
Second: "Priority" creditors (§ 507)
a. Expenses of administering estate (lawyers, appraisers, etc.)
b. Unpaid wages ($10,000/90days)
c. Employee benefit plans
d. Post-filing expenses of business (ability to continue business, get credit, etc.)
e. Alimony and taxes (non-dischargeable through bankruptcy)
Third: Unsecured creditors (pro rata after ALL of the above are paid in FULL)

Refiling Restrictions
If discharged under 7, 11, or 12 AND #2 is a 13, 4 years
If discharged under 13 AND #2 is ANOTHER 13, 2 years
If never discharged OR #2 is not a 13, no wait
(Discharge=completed bankruptcy)

8 Bad Acts (Non-dischareable § 523)(you will still owe debt after bankruptcy)
1. Taxes/fines
2. Money by false pretenses
3. Willful and malicious injury (drunk driving charges)
4. Alimony/child support
5. Embezzlement/larceny
6. Student Loans within 5 years
7. Failure to schedule creditor
8. Secured claim in exempt asset
($500+ in luxury goods within 90 days of filing is PRESUMED non-dischargeable.)

5 REALLY Bad Acts (Discharge Denied § 727) (If you do any of these all debts are NON-dischargeable)
1. Falsify/coerced/destroy records
2. Conceal property
3. Failure to fully account
4. Failure to obey court order
5. False statements or claims

Plan of Reorganization (Debtor has exclusive for 120 days)
Must be accepted by:
½ the number of creditors
AND
2/3 of dollar value of the claims

Liquidation vs. Reorganization
Chapter 7- Trustee in charge
Chapter 11- Debtor in possession (debtor knows business best)
Trustee can be appointed to takeover.
Plan of Reorganization- Debtor must prove they have a plan to get back on track
Must be able to deliver more under chapter 11 than chapter 7.
If plan cannot be agreed upon, converted to chapter 7 and liquidated.

Biggest Bankruptcy in history $639 Billion- Leeman Brothers

Chapter 12 Family Farm Bankruptcy
What is a family farm?
1. 50% of debt arises from farming operations
2. Debt must be less than $3.2 million
3. At least 50% of income must be from farming

Chapter 13 Regular Income Reorganization
Must owe less than:
Unsecured $336000
Secured $1,010,650
Submit plan for repayment:
No less than 36 months
Not longer than 60 months
Must pay all disposable income (everything after basic bills)
If you can pay at least $6000, you can't file chapter 7

2005 changes
-If you can pay, you must ($6000 over 60 months)
-You must propose a plan and begin funding it before plan is approved

Product Liability
New area of law
"caveat emptor" buyer beware
Thomas v. Winchester (1852)
-inherently dangerous products- those that could kill you (poison, guns, etc.)
McPherson v. Buick (1916)
-defective wooden wheel, made by another manufacturer
"caveat venditor" vendor beware

"Everything in Threes"
Types of Losses
1.Personal Injury
2.Property damage
3.Economic losses

Recovery
1.Contract- warranty
a.Express- clearly stated
I.Affirmation of fact or promise- says something concrete and tangible about goods "will last for 3 years"
II.Description- "made of 24k gold" etc.
III.Samples/Models/Demos- goods you buy must conform
(Puffing not included, opinions aren't warranties, facts are.)
b.Implied warranty of merchantability- must be fit for ordinary purpose of goods
c.Implied warranty of fitness for particular purpose-
I.Seller knows purpose
II.Known reliance
III.Actual Reliance
2.Tort-(negligence) You have a duty to manufacture products that do not cause losses
a.Manufactured- rare, a product turns out different from the others, flawed
b.Designed-
I.Structure- made as designed, poor material, etc.
II.Safety- saw designed with safety guard
III.Forseeable misuse- most common-if manufacturer can foresee a misuse of a product, they are liable for torts as a result.
d. Failure to warn or instruct- it is a product defect to not inform consumers of proper use
3.Strict Liability- Liability without culpability
-"condition unreasonably dangerous"
- inherently dangerous/unavoidably unsafe (knives, guns, bleach, utility makes them dangerous)

New Trends in Product Liability
1. Market Share liability- hold manufacturer liable even if it cannot be shown that it was their product that caused the loss. All manufacturers pay according to market share.
2. Liability for product manufacturing goes beyond the manufacturers - sue for defective product, can sue anyone in the retail chain.
3. Privity- even if product is dangerous and defective, only person who buys it may sue, only they have direct connection to manufacturer. NO LONGER REQUIRED We almost never get our products from the manufacturer. Now "any reasonably foreseeable plaintiff." Rail Road case

RCW 7.72

5.18.11

Each group should have received financial documents in response to email.

Emergency issues- usually present in family law cases. EX dangerous situations, emptying of bank accounts, etc.

Family Law Process
Phase 1- filing of petition and emergency orders.
Phase 2- discovery
Phase 3- dispute resolution

Child Support- Strict guidelines
Review charts to determine support in Arnica case
Focus on kids needs is paramount- stable, maintenance of lifestyle and social/learning/school situation

Motion to modify- must be substantial change in circumstances

Relocation Statute- Included in all parenting plans
May limit movement of custodial parent in interest of child

Child Support
-Net income of each parent, added up, equals total benefit to child.
Proportionate share from each parent is determined. Parent who makes more income gives "transfer amount" to parent who makes less.
-Money can be transferred by check, joint account, or DSHS may act as routing authority. Involving DSHS helps track payments, and has enforcement rights under order.
-Termination date must be established for child support. Line between spousal maintenance and child support can be blurred. Pay-or can deduct spousal maintenance for tax purposes, but not child support. Usually when child turns 18, or graduates high school, whichever comes last.
-Statute allows child support to be requested for any dependant, regardless of age, (developmentally disabled, etc.). Practice in King County is to not allow it.
-College education support may be allowed, but must be requested before the child turns 18. (Jurisdiction)

Domestic violence, addiction, and other danger issues
- People are reluctant to discuss/admit
- "What was the level of tension during the marriage?"
- Ask about conflict resolution in the marriage. Responses can be very telling.
- The Cycle - Honeymoon - Tension - Explosion - Apology - Reconciliation
- If there have been issues, joint custody and joint parenting may be restricted.

Create- Child support worksheets, proposed orders, and parenting plan.
Decide how to proceed based on strategy. Make arguments for division and use of property, who should have custody and why, and why support will be required based on custody. What is the strongest argument that we can make?

Proposed order by attorney, and declaration from client that addresses these issues. Don't look to case law, go for fairness and justification.

PROJECT DUE WEEK after NEXT

Fill out child support worksheet, and parenting plan worksheet. Also prepare declaration from client.

5.17.11 Complex Litigation

Midterms handed back. Average 79.2%
Problems- Failure to outline, failure to proofread, lack of analysis.

6 Free Speech Exceptions
1. Clear and present danger (of inciting imminent lawless action)
2. Fighting words
3. Obscenity
4. Defamation
5. False advertising
6. Compelling government interest

6 Free Speech Concepts
1. Void for vagueness- law must be specific. "Offends passersby" struck down. If you are to curtail speech by law, you must be specific.
2. Void for overbreadth- "No nudity on tv until after 9pm" struck down, (diaper commercials, breast cancer psa).
3. Prior restraint- "A rule of ordinance restricting speech before it is uttered." Prior restraints are presumptively unconstitutional.
a) Injunction (court) -
b) Permit (government body) (Cantwell case) -
c) Licensing (tv/radio) - control of content through licensing
d) Censorship (FCC) -
4. Symbolic Speech - Conduct protected as speech. EX Boston Tea Party.
a) Pure speech - Literal talk, gets most amount of protection.
b) Speech plus (verbal and conduct) - Marching/rally/parade while delivering spoken message, gets less protection. "Freedom of Expression"
c) Symbolic speech (conduct) - EX Stromberg case, still protected, but less than other two.
5. Traditional forums - Areas that are known traditionally for free speech- town squares, public parks, city hall, city streets, etc. get more protection than other locations.
6. Police powers (time/place/manner) - Health, safety, welfare of citizens. State says- where, when, how, NOT if.

Speech Cases
New York Time v. U.S. (1971) - Prior restraint/Injunction- Pentagon Papers- leaked to NYT, injunction to stop publishing of papers. (Exception on clear and present danger- not granted, papers published.)
National Socialist Party v. Skoke (1977) - Prior restraint/Permit- Nazi March in Skoke IL- (Exception on clear and present danger- not granted.)
Stromberg v. California (1931) - Symbolic Speech- Summer camp red flag for communism- "Illegal to display any emblem of opposition to organized government."
Texas v. Johnson (1989) - Symbolic Speech- Burning American flag, protected. (Rehnquist dissent- An inarticulate grunt or roar.) (88% of American's believe it should be illegal.)
U.S. v. Haggerty (1990) - WA flag burning case
Edwards v. South Carolina (1963) - Protest march against discrimination while singing Star Spangled Banner- Symbolic speech. This case tests all 6 free speech concepts.
NOT required to know any of these cases for final.


Bankruptcy

"Capitalism without bankruptcy is like Christianity without hell."

Helps Everybody
Debtor- Fresh Start
Creditor- Process may allow creditor to step in and run company, etc. to benefit creditor
Society- rehabilitate to become successful tax paying citizen

Constitution allows bankruptcy
Relatively unique to US.
Refuge for the financially irresponsible, but also natural disaster, divorce, and severe economic dislocation (getting fired), illness = #1 cause, 62% of bankruptcies.

Every state has financial law to help debtors. Garnishment, foreclosure, receiverships.
Bankruptcy- Federal law only- Title 11
Chapter 7 - Liquidations - "no asset 7"- call it quits, ends business.
Chapter 9 - Municipalities - City goes bankrupt
Chapter 11 - Corporate reorganizations - buys time to restructure and emerge healthy, does not end business.
Chapter 12 - Family Farms - Designed for specific needs of farmers
Chapter 13 - Regular income reorganization - (previously "wage earner") extends time for repayment, usually at less than full amount owed. (doesn't need to be a job)
Chapter 15 - Foreign corporations (very limited)
7, 11, 13- most common


11 USC § 362 Automatic Stay ("362 Motion")
When a debtor files bankruptcy the second they file the automatic stay goes into effect to and protects debtor from any effort to collect a debt. (garnishment, foreclosure, lawsuits, collection notices, etc.) Anything done to collect a debt is VOID, after bankruptcy is filed.

Adequate Protection Hearing- 362(d)
Judge gives Debtor choice- lift stay or give adequate protection to creditors, assure them that they will not take the loss.
3 Forms
1. Cash - Stream of payments, may be less than amount owed.
2. Replacement Lien - Lien on another property, etc.
3. Equity in property - If sufficient equity in property to protect creditor, then stay will not be lifted.
Doesn't stop paternity actions, alimony, and criminal actions.

Before you can file you must go through professional debt counseling.

Debt forgiveness is TAXABLE. Debts discharged through bankruptcy are NOT taxable.

Chapter 7
Anybody can file. (Except cities, savings and loans, and banks, railroads.)

Involuntary Chapter 7 - Creditor can force Debtor
11 or fewer creditors, if one creditor is owed at least $10,775 and is not paying in reasonable course. (only one creditor must agree)
12 or more creditors, 3 must agree to put you into bankruptcy, one must be owed at least $10,775.
Trustee appointed- Marshall assets
Gather, liquidate, distribute to creditors.
If no assets, report no assets.
11 USC § 522- Exempt property- Fresh start, must allow enough to manage.
State also has exempt list- RCW 6.13-6.15
Must decide between State or Federal (no pick and choose, State usually more generous.)
Texas, Florida, Nevada- cannot take primary residence to satisfy debt, regardless of equity.
Tax Evasion (illegal) vs. Tax Avoidance (Legal)

Exempt property- It is NOT illegal to use non-exempt assets to purchase exempt property, exemptions exist to be taken advantage of.
Tools of the trade $2025 (stuff you need to make a living.)
Personal/Household goods ($475/$9850)
Health aids (100%)
Car ($3225)
Furniture ($525/$10,775)
Athletic/sporting equipment - In re Griffin
IRA
Prepaid mortgage/rent
Car repair
Life insurance
Down payment on house
Jewelry ($1350)

Liens- exemption is impaired
Trustee has power to set aside liens, provided the creditor has placed the liens. (Not by the bank, as a loan to you. If so you lose the lien exemption.)

Preference - § 547
Can you pay one creditor over the other? (Pay back your uncle, etc.)
If one creditor gets paid and the other does not, the Trustee can go to that creditor and DISGORGE the amount paid. If one creditor gets more than they are entitled to, the Trustee can get it back. Trustee goes back 90 days from filing of bankruptcy. If creditor is an "insider" (friends, family, etc.) Trustee can go back a year to examine who was paid.

Fraudulent Transfer § 548
Anybody that the Debtor gives property to for less than reasonable value. (Doesn't need to be market value, obviously a distressed sale.) Can be DISGORGED for a year. If you do not still have it, you are responsible for the value of it (NOT the price you paid).

5.11.11 Criminal & Family Law

Next week, special guest: Judge Robert W. Winsor

Personal and Community Property
- What mingling of assets occurred at time of marriage?
- Joint bank account, separate with joint, etc.
- Property acquired before marriage is personal property
- Inheritance is personal, but can become community if intermingled
All comes before the court for "just and equitable distribution".
- Debts are also property

Community Liability
- Tort
- What pool of assets is available to cover the debt?
- Was act in management or in benefit of the community?

Spousal Maintenance
- Economic Rehabilitation
- Lifestyle Maintenance

Statute
- Duration
- Standard of living
- Resources
- Time to acquire skills
- Needs

Short
-Less than 7 years
- Look back, return to pre-marriage condition

Medium
- Need, ability, and fairness

Long
- 25+ years
- Look forward, to balance economic disparity

CR 2a
Written agreements valid unless....

IRS
- Maintenance is tax deductible to payer, and taxable to recipient.

Presentence Reports
P = pass
+ = pass
P- = pass (could use improvement)

In-Class Project
- Interview Client Mark or Arnica Calhoun
- Create a list of legally significant facts to draft declaration
- Questions or targets for discovery (verifications, subpoenas, etc.)
- And develop case theory: strategy, property, parenting (what does client need and want)

• Use Divorce Checklist from course packet to frame issues
• Client goals
• What assets did you enter marriage with
• What skills and education did you enter marriage with
• Current situation- parenting/living (literally, room for child)
• Resources
• Needs (expertise, etc.)
• Danger Issues - domestic violence, drug use, etc.

- Child support paperwork and calculation

FOR NEXT CLASS- Create group list of questions and email to Andrew
(In family court motions to compel cost the client $3,000-5,000. Some questions go unanswered.) Organize what you know and be prepared for discussion.

5.10.11 Complex Litigation

Lemon v. Kurtzman (1971)
3 prong test:
1. Valid secular purpose?
2. Primary purpose to advance/inhibit religion?
3. Danger/risk of excessive government entanglements?

ESTABLISHMENT CLAUSE
Lynch v. Donnelly (1984)
Reynolds v. U.S. (1878) - Poligamy and Mormons
Cantwell v. Conneticut (1940) - Jehovah's Witness soliciting on street
Sherbet v. Verner (1963) - 7th Day Adventist denied unemployment
Lyng v. NW Indian Cemetery (1988) - Sacred forest harvested for timber
Wisconsin v. Yoder (1972) - Amish education after 8th grade
Goldman v. Weinberger (1988) - Yamulke worn in Air Force
Dept. of Human Resources of OR v. Smith (1990) - Peyote smoking by Native Americans
Minnesota v. Hershberger (1990) - Amish buggy safety triangles


Religious Practice:
Religious belief is absolutely protected, no exceptions.
Conduct which is subversive to good order can be controlled and eliminated and prevented.
Government can control religious practice as long as it falls under the concepts below.

Restricting Free Exercise Concepts
1. Does the State have a compelling reason under police powers (health, safety, welfare, education)?
2. Is there a sincere religious principle which will be significantly compromised?
3. Is the restriction an outright prohibition or a mere inconvenience?
4. Is the restriction a legitimate time-place-manner* exercise, or an attack on content?
*when-where-how

"Supreme Court will not interfere with believe, can interfere with practice, and will uphold mere inconveniences."

Speech Restrictions - (1-3= most likely to see on final)
1. Clear present danger - of inciting imminent lawless action.
2. Fighting words - words by their very utterance inflict injury, likely to bring immediate, physical, visceral reaction. Must be directed to an individual.
3. Obscenity - LAPS Test- Lacks literary artistic, political, or scientific value. (Pornography is not necessarily obscene.)
4. False advertising -
5. Defamation
6. Compelling government interest - EX contempt of court, gag orders, closed courtrooms. (6th Amend. trumps 1st Amend.)
EXAM- Stick with the law, Bruce isn't looking for your opinion or a sociological evaluation.

Hugo Black- Absolute constitutional right to say anything, at anytime, to anyone.
(Not anywhere at anytime without consequences.)

Congress shall make no law abridging the freedom of speech.

FREEDOM OF SPEECH
Schenck v. U.S. (1919) - "The first amendment does not give one the right to shout fire in a crowded theater", speech which constitutes a clear and present danger is not constitutionally protected. Danger of what?...
Brandenburg v. Ohio (1969) - ...of inciting imminent lawless action. Teaching does not equal advocacy.
Chaplansky v. New Hampshire (1942) - Jehovah's Witness
Lewis v. New Orleans (1974) - Insult to police
Gooding v. Wilson (1972) - threat to police officer, not fighting words
Cohen v. California (1971) - "Fuck the Draft" written on jacket, not fighting words. "We are often captives outside the sanctity of the home." If you don't like it, stay home.
Jacobellis v. State of Ohio (1964) - "I can't define it, but I know it when I see it."
Miller v. California (1973) - LAPS Test- Lacks literary artistic, political, or scientific value.
N.Y. v. Ferber (1982) - Child pornography is obscene
Valentine v. Christensen (1942) - False advertising
N.Y. Times v. Sullivan (1964) -
N.Y. Times v. U.S. (1971) -
Phelps v. Snyder - Picketing funerals

5.5.11 Business Law

Guest Speakers from Attorney General's Office
Andrew -Torts/Employment Law
Gina -Labor Law

Andrew-
Title 7- Shouldn't have to trade your personal rights for a paycheck.

1. WHO- Employment Discrimination Law
Things you cannot change, gender, race, religion, (age, disability).
WA Law against discrimination/Fed. Title 7 -Disparate treatment/Disparate impact/Hostile work environment
a. Protected class
b. Adverse treatment- less favorably than non-protected class, or because of gender. Must be something other than an inconvenience. Must materially change terms and conditions or work.
c. Damages- Money or emotional distress.
Motion for Summary Judgment- Almost never direct evidence, usually circumstantial. Must prove prima facia case, inference of discrimination. Legitimate Non-Discriminatory Reason-Defense chance to show business related reason. Inference disappears unless employee can show pretext.
-"Our laws are not a workplace civility code."
-Must complain to EEOC, and receive right to sue

Age -40yrs+
Age discrimination and employment act- cannot sue state under.

Disability-
Am. with Disabilities Act- Accommodation process
Disability- Medically cognizable, exists as a matter of record, impacts one or more major life function & must be able to do job with or without accommodation.
Employer is NEVER required to give:
a. New boss
b. Displace existing employee
c. Remove essential function of position

2. WHAT- Employment Retaliation Law
Statutory Whistle Blower- state employees only
- Complains to State Auditors Office/Investigation/Employer takes action because of that/Adverse act/Damages
- Mistaken Identity - Employer believes you complained
- Providing information in investigation

1983 Claim
Employer/Individual, acting under state authority, violates federal rights, leading to damage.
1st Amend. Claims
Oppositional- Employee opposes employer practice
3rd Party Claims- Oppositional party's boyfriend fired, even though he did not participate.
Wrongful Discharge- Legislative or judicially protected activity/Adverse employment action

Cannot get:
-Job back

Can get:
-Wages (front or back wages)
-Special damages- Medical expenses, etc.
-Attorney's fees
-Nominal damages- $1, but if you get any award from jury you get attorney fees as matter of right.

3. OTHER- Workplace Related Violations
Statutory Wage loss claim-
Beach of Contract-
Outrage- Rare- Unwanted, horrible behavior, materially changes the nature of work.
Lilly Ledbetter Fair Pay Act- If your current pay is affected by previous discrimination; each paycheck is a new violation. Two year statute.



Gina-
Risk Management/Advice Giving - Personnel actions
Representing Employers in Grievance Arbitration

Unions
-Employment at Will vs. Termination for Cause
Forewarning, equal distribution of policy, investigation, and reasonable discipline.
-Improve wages, health benefits, working conditions.

Union Organization
-National Labor Relations Act
-Personnel System Reform Act RCW 41.80
-How are Unions formed and regulated?
Employees sign petition cards to join union. File, hold election (35% must vote), and certify. Employer has right to object to bargaining unit. May argue that signatures are forged, scope of unit does not share community of interest. Must also petition to de-certify.

Statutory Scheme
-RCW 41.56.100 and 41.56.030(4)
-Collective Bargaining- Limits direct dealing with employees.

Scope of items that must be bargained
-Permissive- Organizational structure, size of workforce, financial basis for layoff, direction and supervision.
-Mandatory- Wages, hours, terms and conditions of employment.

Decision vs. Effects of Decision
Even if decision is permissive, the effects of the decision must be bargained.

Duty to Bargain to Impasse
When neither party can come to agreement through continued discussion.

Elements of Good Faith
-Did employer comply with certain forms and procedures to avoid the impression of being perceived as acting in bad faith? Prompt meeting, work with bargaining team, direct dealing, counterproposals, negotiator's authority.
-What concessions were made?
-How accommodating was the employer?

Duty to supply info to Union- Request for Information
-To assist in coming to an agreement

Role of Strikes
-State employees not permitted to strike

Enforcement
-Grievance Resolution- Allegation of violation/misapplication/misinterpretation
Disciplinary vs. Contractual
Must exhaust grievance mediation before moving on to arbitration.
-Arbitration
Preparation- Meaning of contract provision, past practice, consistency, review negotiation history notes.
Research Arbitrators- similar issues heard and decision.

Unfair Labor Practice
-Refusal to bargain, unlawful discharge, discrimination for union activity, discouraging union involvement, etc.
-Must be timely- 6 months

Remedies
Reinstatement, wages, attorney fees.

NLRB National Labor Relations Board
-Can appeal to board
-Issue case decisions and advice memos
-PERC Public Employment Relations Commission relies on NLRB decisions
NLRB Arbitrators decisions published on website

5.4.11 Criminal & Family Law

Transition - Criminal to Family Law

Criminal

Collateral Consequences
Conviction for Domestic Violence Offense- Lose the ability to carry a firearm
Protection Order- Preponderance of the evidence, lose the ability to carry a firearm
- Disparity of power in relationship, can't have joint decisions making with regards to the kids.
State will press charges on victim's behalf if they choose not to press charges.
More domestic violence reported in low income areas- Immigration
If convicted they become deportable and will not be granted citizenship.

Possession of Marijuana- disqualifies you from any government funding (student loans, scholarships, etc.)

In warranted search where drugs, guns, etc. are found children will be put into foster care.
Dependency Action - Danger or neglect of children
(Civil action where state is a petitioner)
Parents often receive counseling, but these programs are usually the first cut due to budget issues.

State interest in children being raised well. Who decides what that means? and where does authority come from?

Rules of Family Law
Best interest of child
All property is fairly before the court for just and equitable distribution

Marriage
What gives government the right to determine who marries?
Early marriage- contract for property (woman)
Why does the government care?
-Taxes
-Health insurance

Loveless v. Virginia (1967)
State cannot prohibit African Americans from marrying someone of another race.

Commity- state to state respect, marriage in another state stands in this state.

WA No fault divorce state- Marriage must be "irretrievably broken"
Cooling off period- 90 days required after filing initial petition

Two method of dissolving a marriage
Legal Separation- debts incurred are separate, can be converted to dissolution after 6 months. Useful when religion does not allow divorce, and to maintain health insurance. (If kids go with Mom and Dad has the only insurance coverage, then the kids lose coverage too.)
Dissolution (Divorce)-

3 Ways to Get to Court on Family Law Matter
Dissolution (divorce)
Parentage Action - Paternity tests
Third-Party Action - Guardianship (Grandmother/Aunt/Etc. becomes legal guardian) Has become more difficult to have granted.

Prenuptials Agreement
Contract between two parties that shifts the law in this context
Legal in WA so long as they are fair, involve the full disclosure of resources, sufficient time for each individual to consider knowingly, and that everyone has opportunity to have counsel review.
As with all contracts- must be a meeting of the minds
If it seems to violate another law, the court would not uphold.

Annulment-
Void/Voidable- Distinction
Second Marriage (if already married) is VOID
If marriage is never consummated it is VOIDABLE
Nunc Pro Tunc- today it is deemed that at it's inception, this was the case. Order goes into effect on the day that the marriage took place.

Maritricious relationship (common law marriage)- looks so much like marriage that the state gives it validity

Petition for Parentage or Dissolution
Notice pleading - Temporary Orders - Prove service - Discovery (rogs, depos, formal docs-financials and income proof) - Motions - (ADR-Settlement Conference) - Discovery Cutoff - Trial - Discretionary Right to file an Appeal

Temporary Orders- Trial date may be 13month later, what happens in the meantime? Children must remain in state, insurance policies must be continued, bank accounts cannot be emptied, etc. ie. maintain the status quo

Enforcement of TO's
-Motion for Contempt usually only recourse RCW 721
If there is no remedial action that can be taken then there is no contempt.
Where curing the violation is impossible there can be no contempt.
For Contempt must find:
-They were aware the order existed
-Valid court order violated
-Compliance with court order is possible
If found the court has authority to issue compliance orders, sanctions, fines, and even jail time.

Order to Show Cause-
Preliminary showing sufficient for the Judge to issue an Order to Show Cause.
Summons to court to explain themselves and the violation before they may be found in contempt.
-Actual notice and actual service required (substantial not sufficient)

Emotional Component in Family Law Cases

Telling the Kids
Someone moves out
Coping with changes
Polarization of clients before trial
Personal life exposed

Ethical Questions

Decree of Dissolution
Custody Agreement/Child Support
Property Division
Spousal Maintenance - Read the Spousal Maintenance Debate for next class (in the class packet)

Do Over- bulk of family law is modification of orders (child support, parent plans, etc.)
Not allowed in all cases. Can become addictive to some people

Petition for Dissolution
-Marriage
-Location/Date
-Irreparable broken

Petition for Temporary Orders
-Custody
-Child support

Respond with:
-GAL Guardian ad Litem for child and also possibly Arnica
-Review hearing in 60 days with ability to hear issues de novo
-You can ask the court for anything as long as it is fair and equitable, and in best interest of child

-If temporary orders are allowed to stand until trial, it will be difficult to make changes at that time (custody of children, etc.).

5.3.11 Complex Litigation

MIDTERM handed out tonight- Due next week

Contract Remedies

Equitable -ONLY come into play when a legal remedy will not due
-specific performance
-injunctions CR 65 must prove irreparable harm, and likely to prevail on the merits
-rescission - undo contract, in case of fraud or misrepresentation
-reformation - "scrivener's error" typo, or other mistake in contract
-restitution
-quiet title - asking court for pronouncement of rights and interests of parties, exception to "ripeness"
-declaratory relief - does this particular event trigger coverage?
-constructive trust - court imposes trust on material (similar to injunction, holds the item in third party hands)

Legal (Monetary relief) - Three interests to protect.
1. Expectation- (aka "benefit of the bargain")- gain or profit you would have expected under the contract
2. Reliance- Losses suffered as a result of changing position (due to reliance)
3. Restitution- Return of the benefit conferred on the breaching party (give the item or money back, etc.)
Remember: Can seek BOTH equitable AND legal remedies

"Courtney"
Paid $20,000 (for horse worth 10k, told it was worth 50k)
FMV $10,000
Represented value $50,000
Expectation interest $30,000 -give back the horse
Reliance interest $10,000 -keep the horse
Restitution interest $20,000 -give back the horse
Fraud $40,000

"Brittany"
Paid $20,000 (for horse worth 20k, told it was worth 25k)
FMV $20,000
Represented value $25,000
Reliance $0
Restitution $20,000

"Crystal"
Paid $20,000 (for a horse worth 10k, told may eventually be worth more)
FMV "unlimited potential"
Represented value $10,000
Expectation interest $0
Restitution $20,000

Limitations on Damages
1. Reasonable certainty (must be able to ID damages with reasonable certainty)
2. Forseeability- Hadley v Baxendale (1854)
3. Mitigation - must affirmatively take steps to reduce their damages
4. Cannot IMPROVE position through breach of performance
Court hates to give damages without you proving what your damages actually were.

Liquidated Damages Clause
1) Reasonable in amount AND
2) Actual damages difficult to calculate
Only applies in certain cases.

"Time is of the essence" clauses do not trigger breach unless time really IS of the essence (performance loses most or all value if not timely rendered)
-Often included along with liquidated damages clause



First Amendment

1. Speech
2. Religion
3. Press
4. Assembly
5.

Establishment Clause-
Separationist View (minority)- Wall of separation between church and state
1947 Justice Hugo Black, Everson v. Board of Ed.

Accomodationist View- Requires government not hinder nor prefer religion but may neutrally assist all religion. Justice Warren Burger, Lemon v. Kurtzman (1971)
Test- 3 factors
1. Is there a valid secular (non-religious) purpose? -YES
2. Is the primary purpose to advance or hinder religion? -NO
3. Is there excessive entanglement? (need for constant monitoring) -NO

EX can government furnish school buses taking children to religious schools?
1. Yes
2. No
3. No
Answer- Pass

EX Can government furnish books on secular subjects to religious schools?
1. Yes
2. No
3. No
Answer- Pass

EX Can government subsidize teachers salaries for secular subjects in religious schools?
1. Yes
2. No
3. Yes
Answer- Fail
Prayer in School-
Engel v. Vitale (1962)
-Non-denominational prayer

Zorach v Clausen (1982)
Bible Study
Released time or dismissed time programs


"In God we trust"
Originally- from star spangled banner
Through rote repetition they have lost all meaning, used to impart solemnity.
81% of general population would vote for prayer in schools
We do not get to vote on amendments

4.28.11 Business Law

4.28.11

Assignment 2- DUE MAY 19TH

AT&T Ruling- Arbitration Clause is NOT against public policy and is enforceable.
S.C.O.T.U.S.- http://www.scotusblog.com/

Agency Law

Agency is a fiduciary relationship
Agent has right to make decisions, enter into contracts, and commit torts which the principal will be held responsible for.
There must be:
-Principal
-Agent
-Consent by both
-Control by the principal of the Agent
-Fiduciary relationship- Must act in Principal's interest, not their own.
1. Competent performance
2. Notice of important info
3. Loyalty and accountability

-Agent has duty
1.To obey instructions
2.Act with reasonable care
3.To provide information that the Principal should or would want to know

-Principal must
1. Cooperate with agent
2. Compensate the agent for services
3. Indemnify agent for expenses, liability

EX of Agents: Power of Attorney, Partner, Employee.

Agent IS liable on contract only if Principal's existence is disclosed but not identity, or neither the existence nor identity of the Principal is disclosed.

Employment Setting
Employee vs. Independent Contractors (act on behalf of themselves, not agent)
Contractors- Perform specific service for a set fee, decide how to do the work, use own tools.
Employee- Employer pays taxes, workers compensation, maintains control over how the task is accomplished.

Respondeat Superior
Business responsible for torts of employee, if employee was acting within the scope of employment at time of injury.
-Ramen case- has been overruled- will go into effect 90 days after.

Basic Business Organization

Forms of Business
-Sole Proprietorship
-Partnership
-Limited Liability Company
-Corporation

Assignment 2- DUE MAY 19TH
Consider:
-Formation Issues
-Liability Protection
-Management Structure
-Taxation considerations
-Exit Strategies/Tranferability of interests

The American Business Entity Landscape (on class website)

Sole Proprietorship
-Most common form
~Does not have to be registered with the secretary of the state
~Profits and losses are personal and taxed as such
~May require business license
~Personal assets are available to satisfy the debts of the business
~Owner has full control over management of business
~If sole owner dies, the business ends.
Advantages- complete control, flexibility, ease of creation and maintenance.
Disadvantage- personal liability, lacks continuity after death, difficult to finance.
EX Child Care Provider- Legal Process- State of WA Start a Business Website and SBA.gov

Partnerships
~Revised Uniform Partnership Act- governs whether partnership exists and fill sin missing terms of agreement.
~Association of 2 or more persons to carry on as co-owners of a business for profit
~Governed by contract
~No state filing
~Equal management rights and profit sharing
~Transferability- may have buy/sell agreement, usually requires agreement of all partners.
Adv.- Easy to create and maintain.
Disadv.-Personal liability, difficult to raise financing.
Partners have fiduciary duty to each other and the partnership.
-Joint liability
~Termination by Dissolution by Act (agreement or withdrawal), Operation of Law (death), or Judicial Decree

Limited Partnership
~ At least one of the partners does not share in the right to manage the business
~Required to file with state
~Limited partner invests money, but does not make decisions
~Limited partner liable only up to amount invested
~Limited partner can assign interest to someone else

Limited Liability Partnership
~Clients or customers must be informed of limited liability
~Registration requirement

Limited Liability Company- RCW 25.15
~Permits small business owners to limit their liability to the amount of their investments
~May form as single individual or as group
~No banking or insurance
~Registration required
~Members liable for own torts, but not others.
~Very flexible
~Can choose from different tax options
~Operating agreement analogous to corp. bylaws
~Agreements may be oral
~Generally if operating agreement is silent, partnership will apply


Corporation
~Business entity formed by shareholders
~Person for the purpose of conducting a business- Constitutional rights
~Can own property, enter into contracts, sue and be sued.
~Shield shareholders from liability, only liable for the amount of the investment
~Complex formation- requires ongoing efforts- reporting, meetings etc.
~Double taxation

4.27.11 Criminal & Family Law

Fundamental Question
-Is the Statute Constitutional?
-By what measure do we evaluate? By language of the statute itself.
-Facially overbroad- If statute itself sweeps within it many behaviors not intended to be targeted.
-Mixed question of law and fact.
-Laws must be content neutral to be constitutional. (Cannot apply to one situation and not another.)

Motion to Suppress
Common Issues
-Case Number- was provided in the Complaint
-Margins/Typeface/Font size- check local rules
-Details-Spell names correctly, spelling, correct court, etc.
-IRAC
-I- Header
-R-Concept, principle from case law (Probable Cause- state in affirmative (Police officer has PC when... In this case...)) (Terry Stop-Officer has authority to stop when... In this case...)
-A-Integrate Each Principle as useful, before moving on
-C-

Until you've been writing for a few years, you will need to rewrite.
Step back and look at your papers without attachment-does it say what you want it to say, and is each sentence necessary?

-LSF- Legally significant facts

For Pre-sentence Report
-Accuracy to facts
-Form and spelling

Trials

Trial Notebooks
-Charge Documents
-Voir Dire
-Pre Trial Motions Resolved
-Limine (limitational) & Motions Pending
-Opening statement
-Complete set of police reports
-Witnesses- with individual police reports or statements
-1/2 Time- Once state has rested, if not all elements have been established you may ask for dismissal.
-Closing
-Exhibits- Impeachment- undermining facts or logic presented by witnesses
-Jury Instructions

Posner & Dodd- "Chaptering"
Element Tracking
-To keep track of which elements have been covered at trial

Notebook should be put together 2week to a month before trial

Evidence Rules
Evidentiary Foundation- Edward Imwinkleried (goldmine of info-creates script)
Must be:
-Relevant
-Probative
-And fall under applicable rule

Hearsay
-Out of court
-Assertion (non-verbal communication is included)
-Offered to prove the truth of the assertion (if offered for another purpose, not hearsay)

Key is that there can be no cross examination

4.26.11 Complex Litigation

NEXT WEEK- Midterm will be handed out

Advanced Tort Theory

Direct Liability- 1.Solo EX I run over you in my car.
- 2.Concurrent (two or more acting in concert) EX Two people racing their cars kill third.
EX Dad leaves gun on the kitchen table, Mom leaves bullets out, Junior loads gun and kills someone.
- 3.Derivative (doing something negligent that enables someone else to do something negligent) EX Giving a drunk person car keys, they run someone else over.
-In all three- I was AFFIRMATIVELY negligent

Vicarious- You didn't do anything wrong, but we are holding you responsible because of your relationship to the person who did. (Social policy)

Direct/Vicarious both =liable (Negligence is negligence)

Respondeat Superior- "Let the higher-up answer"
-Why? The employer is in a better financial position to make the losses of the plaintiff whole.
-Must be within the COURSE and SCOPE of duties.
-FROLIC and DETOUR (on own recognizance)
-Can even apply to employees who commit intentional torts

Joint and Several Liability
- Should be Joint OR Several
- SEVERAL- Each Defendant being held responsible only for their share of the harm.
- JOINT- 100% of the judgment can be obtained from ANY Defendant.

-Problem- Pocket Targeting EX car accident, prove City 1% at fault, can collect all from them. Municipalities couldn't get insurance and went bankrupt.
-As a result, the law of Joint liability has been greatly restricted.
-Pure Joint Liability- DC, Alabama, Maine, Maryland, Massachusetts, Rhode Is.
-Abolished Joint Liability- Georgia, Wyoming, Florida(?)

-WA- Tort Reform Act of 1986
We ONLY have Joint liability if:
1. Agency (Principle/Agent)
2. Employment (Respondeat Superior, Employer/Employee)
3. Defendants Acting in Concert EX Drag racing, must act TOGETHER (NOT separate acts)
4. Multiple Defendants (& Fault Free Plaintiff (If P is even 1% at fault, fail)) against whom a judgment is taken.

EXAMPLE

A- 20% Severally 200k Jointly 900k (10% is not part of judgment)
B- 30% Severally 300k
C- 40% Severally 400k
D- 10% (but settles out)

$1,000,000.
If Plaintiff is even 1% liable, then joint liability does not exist.

EXAMPLE

A- 10% Severally 100k Jointly 250k
B- 10%
C- 5%
D- 75% (settles out)

$1,000,000.
Juries consistently find the settled party to be the most liability, usually because the remaining parties point at that party.

EXAMPLE

A 10%
B 20%
C 30%
D 40%

If A pays full $1,000,000. can A recover from co-defendant? Yes, contribution.

EXAMPLE

Plaintiff
-A - $2,000 settlement and gets released
-B - $20,000 judgment, 10% liable

Can B get 90% of judgment from A. Traditionally, yes. Problem, why would you settle, if co-defendant can come after you anyway?

-A- Settled are released in full.
-B- Reduced by 50% as a compromise.

CA- Must hold good faith hearing to determine whether the settlement is a "fair approximation" of liability.

-Remaining party gets credit/offset of amount settled.

-WA- Never jointly liable for the settling party's percentage of liability.

Contribution- Defendant recovering from co-Defendant anything they paid that was above and beyond their liability. Liability does not change, only financial responsibility.

Indemnification- Shifting liability. Allows you to recover 100% back even if you were 100% liable.
-General/Sub-Contractors Contract clause says Sub-C agree to indemnify General-C. Agree to pay any judgment, regardless of liability.
-Principle/Agent Legally required to indemnify agent.

(Insurance Co. Duties- to Defend & Indemnify)

4.20.11 Criminal & Family Law

MIDTERM- NOT DUE NEXT WEEK

Week after next- Midterm-Pre-Sentence Report- From perspective of her attorney to judge, asking for lightest sentence possible. Look at presumptive charge (without terrorism charge), seriousness level, what are the factors that mitigate the seriousness of the offense. Do not take the stance that the charges are ridiculous. Judge wants to know that the person has learned something, has been rehabilitated. 3-5 pages.

LSF- Legally Significant Fact

Make sure that facts you use in applying law to facts are included in the statement of facts section.

Don't be afraid to reject what you've written, even if the sentences are good, if they don't accomplish what you're trying to do, set them aside and start again.

Ethics in Criminal Law

RPC-3.1
Fundamental difference between civil and criminal representation. Non-frivolous vs. establish every element.

RPC-3.8
Prosecutor has obligation to only follow allegations supported by probable cause.

Resources- RPC's, find ethical mentor, Attorney General issues published opinions, WA State Bar Hotline.

Confidentiality
RPC 1.4- Communication
Settlements/Pleas- Even if offer is ridiculous, the client must be informed.

RPC 1.2- Attorney determines methods.
Client determines objectives.

RPC 1.6- Disclosure obligations. (You should know this by heart.)


Criminal Law Process

Investigation (can run up to and into trial) > Charging > Arrest (bail, PC) > Arraignment (notice) > Pre-Trial Hearing (Case Scheduling Hearing) > Omnibus Hearing

PTH- motions to suppress or produce
State must turn over exculpatory (tends to negate guilt) evidence CrR 4.7
Not always clear cut.

OH- Last stop before trial, to determine if settlement can be made, or if an alternative to trial exists.
-What resolves a criminal case? Plea bargains- address underlying issue (drugs, etc.)
-Rehabilitation is expectation, although system is not set up to rehabilitate.
-Pleas- usually reduction in charge
--Low grade felony- judges hands are tied by sentence reform act, judge is required to sentence based on chart which calculates previous charges= Presumptive standard range- Non-exclusive, there may be other factors relevant to determination. Certainty but no leniency

Guilty Plea- I did it (no appeal)
Stipulation- You may read and decide (give up right to trial, presumption of innocence, may appeal)

Threat- Mandatory Minimums- strong motivation to make a deal

Stipulated Order of Continuance-SOC- Defendant will do A,B,C over a set period of time, and if completed, the charges will be dropped. (keeps it off the record, and hopefully addresses underlying issues)

Deferred Sentences- If Defendant agrees to deal, sentence will be pushed back set period of time, and at end of period if Defendant has acted accordingly, then sentence is eliminated. Record of conviction exists.

Appeal- Sitting en banc (the entire court sitting together, greater authority)
Commissioner- the dismissors of appeal requests

Harmless Evidentiary Error > Rule > Statute > Constitution

4.19.11 Complex Litigation

Three Primary Areas of Difference
1. More cooperation between parties (joint submissions, etc.)
-Form Groups
Lead Counsel will form policy and direction
Liaison counsel will communicate between attorneys and court
Trial counsel will try the case
Committees/steering committees will determine details of depositions, etc.
2. Less reliance on formal discovery
3. More active judicial activism- judge participation

-Courts establish schedule- deadline for all pleadings
-12b challenges not generally allowed
-Strict limitations on length of pleadings
-Motions for summary judgment popular, but not generally granted
-"Pivotal" test, no exploratory discovery, must be pithy
-Depository- common holding of documents
-Conference depositions- multiple people deposed at once
-Court may limit who can attend depositions and who can ask questions (to limit time)
-Geographical Haphazard Scheduling of Depositions-
-Multi-Track Depositions- simultaneous depositions in different locations
-Interrogatories- nearly unlimited as long as pivotal. Encourage "master" Rogs.
-Informal exchange of information encouraged- without use of rogs

Trial
-Long- can be difficult to find jurors that can sit throughout- Judge will "Time Qualify"
-6 days a week not uncommon
-Exhibits- all identified automatically moved into evidence
-Objections entertained only after hours to separate magistrate
-Juror notes- allowed due to length of trial, but do not leave courtroom

Most Common Types of Complex Litigation:

Class Actions-Rule 23 - Lots of small claims brought together
4 Hallmarks- must meet them all
1. Numerosity- sufficient number of people "so many as to cause impracticality of joinder under CR 19". In CA you are in unless you opt out. If possible the court would prefer to hear from each party (due process). Minimum contacts do not apply.
2. Common Question of Law or Fact- among claims
3. Class Representative- with claim Typical of Class
4. Class Representative- Fair and Adequate Representation of class
-Court must approve settlement
-Must make reasonable effort to inform all parties- TV ads

Multiple Litigation- many people suing for the same harm, but couldn't pass class action test
-One judge handles all suits
-Or all claims transferred to same jurisdiction

Criminal - NOT complex, but may become so if you have unusual publicity or unusual facts
(serial killers, organized crime- electronic surveillance admissibility, multiple victims, multiple jurisdictions)
-Bifurcation- Judges have power to severe parts and/or parties
-Sequestration of Jury- to avoid outside influence
-Jury Anonymity- for safety

Antitrust- Illegal Business Practice
-Having a monopoly is not illegal and never has been. Intent to monopolize is illegal.
-Sherman Act
-Counter Claim to patents
-Must show impact on interstate commerce
-Must show harm to self and to business in general
-Immunities and Exemptions- Organized Labor, Professional Baseball, Insurance, Rail Roads.
-Market Share definitions- once you control 70%

Mass Torts
-Mass disaster- happens at one time, but set number of plaintiffs
-Product Liability- Asbestos, breast implants- happen over time
-Often results in Bankruptcy
-Limited Funds Declared- to address future claims
-Scientific Evidence - critical
-May try issue by issue, etc.

Securities
-Interest in the work of another- Stocks, bonds, etc.
-Personal- misled as to value of stock, etc.
-SEC (Federal) can bring
-State Blue Sky Laws- "people would sell a piece of the sky if they could"
-As part of fraud, must be plead with specificity
-Complex definitions
-Damages vary widely- different stock purchase price, different remedies requested

Employment Discrimination
-Few fall into Complex Lit.
-Pattern or Practice-
-Damages- back pay, pain and suffering, lost wages. Usually split damages to separate hearings.

Patents- Title 35 (50 total) Complex in the traditional sense.
-Protect things, tangible things, for 20 years. (Shorter time span encourages innovation)
-Copyrights- protects creative endeavors- plays, etc. for life of author and 50 years after.
-Trademarks- logos, etc. for 10 years, but renewable in 10 year increments forever.
-Special Bar exam for Patent law
-Usually Bench Trials- no jury
-13th Circuit Court or Federal Supreme Court

CERCLA- Comprehensive Environmental Response Compensation & Liability Act (42 USC 9601 et. seq 1980)
-Created in effort to clean up toxic dumps
-Individual, EPA, state or local gov't, can all be plaintiffs.
-Personal Injury- not necessarily present
-PRP Potentially Responsible Party-Past (no time limit)/Current Owner/Operator/Arranged for disposal/Generatory/Transporters
-Strict Liability- must prove that co-defendant was the sole-cause/Or that discharge was an act of god
-If what you did was legal at the time that you did it- No excuse
-Problems- Generations and multiple levels of insurance, cross claims, counter claims- $ went to sorting out claims instead of cleaning sites.

RICO Racketeer Influenced & Corrupt Organization Act (18 USC 1961 et seq 1970)
-Designed to target organized crime business fronts- used to launder money, etc.
-If caught, could encounter triple damages
-Became an addition to every business claim- and a joke to judges
-Complex definitions
-Must show pattern of violations

4.14.11 Business Law

Westlaw- Review finding a case
Find & Print- by party name- Rippe v. Doran- Citation history
Cannot cite to unpublished cases in WA court

Genuine Consent
A court also may refuse to enforce a contract if the agreement was not genuine- not made with a true understanding of the facts or not voluntary.
-Fraud/Misrepresentation- intentional/material fact/intent to deceive/justifiable reliance
-Innocent Misrepresentation (voidable)- material fact/exclusive knowledge of person making rep./not reasonably available to party deceived
-Mistake- Mutual- both parties make mistake of material fact. Sherwood v. Walker- Rosie the Cow Allows for rescind of contract
& Unilateral- contract stands
-Undue Influence- confidential or fiduciary duty to other party. Position of trust abused-Voidable
-Duress- Involuntary, coercion.

Contracts
-Statute of Frauds RCW 19.36.010
Required to be in writing to be enforceable
-Land
-Executor
-Payment of debt of another
-cannot performed within one year
-made in consideration of marriage
-goods worth more than $500
Must be signed and state parties and terms.

Statutory Construction

Parol Evidence Rule
Once the contract is written, parol or extrinsic evidence to contradict, vary or add to its terms.
Unless:
-the court determines the written agreement is incomplete or ambiguous
-The contract was modified or,
-the evidence is used to prove a defense
Court will only consider evidence outside the four corners of the document if there is ambiguity.
Plain Meaning vs. Context view

Negotiations
Know
-Business goals
-How contract can further goals
-Risks, what could go wrong?
-Issues raised by terms
-Balance of Control
-Remedies?

Meeting with the other party
-not litigation, adversarial
-work to achieve an agreement acceptable and clear to all parties

Drafting
-USE language that works. Plagiarism is encouraged.
-Use plain english.
-Be precise

Contract Parts
-Preamble- ID contract
-Recitals- Background
-Words of Agreement- Accordingly, the parties agree.
-Definition of important terms- for any complex concepts
-Endgame Provisions- what happens if there is a default? Give 30days written notice, etc.
-General Provisions- dictate what law governs.
-Signature Lines
-Substantive Provisions- See handout (given out in class and available on website)

Representations
-Statement of Fact
-Moment in time
-Intended to induce reliance

Warranty- promise that a certain fact exists
-the maker of the statement will pay damages if the statement is false and the recipient is injured as a result.

Innocent Misrepresentation
-Remedy- avoidance and restitution

Breach of Warranty
-No req. to show intent
-No req. reliance
-Remedy is damages- benefit of the bargain

Covenants
-Promise to perform
-Creates duty/obligation to perform

Right
-The flip side of covenant

Conditions
-Set of facts that must exist before a party is obligated to perform
Walk away- Absolute
Ongoing-

What is the law?
Contract itself creates a private law.

Enemies of Contract
-Ambiguity
-Use of unnecessary words
-Vagueness
-Inconsistencies

FOR NEXT WEEK:
Draft non-compete clause based on handout.
No page requirement. 1-2 pages suggested.

4.13.11 Criminal & Family Law

Common Issues with Bail Memo
- Strict adherence to IRAC format may not be best voice for advocacy.
- What is the call of the question? Clarify who you're writing for and to what end.
- Short and tight sentences that link the law to the facts.
- Outline everything before you write.
- Or write as you would normally and then go back and remove unnecessary language.
- Precision. Be very, very careful in summarizing.

-IRAC- Doesn't necessarily need a separate paragraph for each. IRAC can be accomplished in a single sentence.
- Use headers in place of introductory sentences. Not a Danger, Not a Flight Risk, etc.
- Prosecutorial misconduct

-Warrants-
Const. 4th Amend. & Art. 1, sec. 7
Exceptions- Time
Detective must present probable cause to Objective Fact Finder (Judge)
- Search - Scope? Whole house? One room only?
- Arrest - Who? Whole family? Carpenter who is there working?
Even where authority exists (warrant) there is always a question of scope.

Investigator must present reviewable evidence, which must be preserved. Affidavit.
Must define scope, time, and particularities of those involved. If it does not then it is invalid.
If the facts support an innocent explanation there is not probable cause.
Facts do not have to add up to certainty, only reasonable conclusion.

Facts look different in a law office than they do to a police officer in the field.

Warrant and crime must revolve around safe nexus of facts.
Contraband- something you're not permitted to have.

- Motion -
Request of court. Tell what you want and why.

Format
-Plea -Comes now the Defendant/Plaintiff and requests that...
-Authority - this motion is based on rule/law/files of this case
-Facts - As you see them. Be careful not to lose the judge here. Either by Affidavit or as will be presented at hearing. Include only legally significant facts. If the fact does not fit into a crucial legal argument, then it should not be included (unless there is an ulterior motive, emotionally significant, etc.).
-Law -"In a similar situation involving --- the Supreme Court said, (quote)." Quotes allow you to use stronger language then you would be permitted personally.
-Analysis -Logical and unavoidable conclusion. Law and analysis should always be linked.

Motion to Suppress
1. Basis for Stop
2. Littering
3. Arrest
4. SIA
5. Possession

Is there an alternative theory?
1. Suspicious VW "No WTO" written on side of car
2. Big protest
3. Reasonable Suspicion
4. Investigation

1. Erratic driving
2. Contact justified
3. Plain view (smell)

I. Motion
II. Facts
III. Argument/Authority
a. Officer lacked PC
b. Officer Exceeded Legitimate Scope
c. Legitimate Purpose Ended

List legally significant facts for each scenario
Evaluate which argument is strongest? Justify order.
Outline of motion we will draft for next week.

4.12.11 Complex Litigation

Insurance (Contract Law)

I. Terminology
II. Coverage Issues
III. Types of Insurance
IV. Insurer's Duties/Bad Faith

Insured/Assured- the person who shifts the risk to the insurance company
Insurer/Assurer- the party that bears the risk
Premium- consideration (payment)
Deductible- the amount of risk the insured retains
Proceeds- when an insured has a loss and is reimbursed by the insurer
Beneficiary- the person to whom the loss proceeds are paid
Occurrence- the risk that the insurer is insuring against (car accident, etc.)
- Must be:
- Sudden -occurring all at once, and
- Accidental -non-intentional (intentional acts are never insurable)
Claim -when you demand that the insurer pay
Insurable Interest -you must have an insurable interest in order to insure
(You can take out a life insurance policy on someone who owes you money, as long as it does not exceed the amount owed.)
Cancellation -either you or the insurance company discontinue your coverage
Lapse -allow policy to run out or fail to make payment (can be reported to credit profile, always cancel.)

FICO score- how much money you owe 30%, mostly defaults, and lapse of insurance, and amount of credit/how much you owe, age of account, etc.

Knowing what's covered- READ YOUR POLICY!

Fire Insurance-
Hostile - one which originates in a place it's not supposed to be
Friendly- one which originates in a place it IS supposed to be (not covered)

Home Owners Insurance
Hurricanes, rainstorms, tornados, police action, riots, vandalism & theft -covered
Floods, earthquakes, soldier action, insurrection, nuclear disaster, termites, mold -not covered
Top Calamities- 1.Non-flood water damage 2. Wind 3. Hail, Combined =81%

Types of Insurance -Infinite
Pet insurance, divorce insurance, etc.


Auto Insurance- Combo Property/Liability
-Liability - the only insurance that WA requires, pays other driver if you are at fault
-UIM/UM - UnInsured/UnderInsured pays you if the other driver is at fault
-Comprehensive -covers your vehicle from non-operational losses (trees, theft, storms, etc.)
-Collision -covers damage to vehicle if you have a collision
-PIP/Med Pay -pay your medical bills and your passengers medical bills, whether or not you're at fault
-Single/Limits/Aggregate -25/50/10 how much insurance will pay to any one player/how much insurance will pay for entire accident/property damage maximum
(Auto insurance does not cover the contents of the vehicle)

How to save money-
If your car isn't worth much you may not need comprehensive/collision.
Always have liability and UIM/UM. The less insurance you carry the lower your premium. Don't drop coverage amount. Increase your deductible to save money. You probably won't turn in a smaller loss anyway, since your rates would go up. Typically if you increase your deductible to $1000 your decrease your premium 40%, without sacrificing coverage.

Personal Property -Home Owner/Renters
Covers the personal property, not the location of the property (doesn't matter where)
5 Things Most Likely to be Stolen out of your car (and NOT covered)
1. Jewelry
2. Furs
3. Cash/Coins
4. Guns
5. Silver
-Indemnity Contract -Insurer gives value of claim, not face value of policy (except Life) you must establish value of loss (through receipts, etc.)
-Replacement/ACV (Actual Cash Value) -sufficient money to buy item of like kind and value/actual cash value

Marine -covers losses in shipping of goods and expectation profit
Title -insures title of property
Inland Marine/CGL (Comprehensive General Liability) -covers building and equipment for businesses
Subrogation Clause -once insurance company pays your loss they step into your shoes and assume all rights that you had (gives them the right to sue party at fault)

Increase of Hazard Clause - allows for adjustment based on reevaluation of risk

PUP (personal umbrella policy) -(Bruce says they're wonderful) adds coverage on top of your other policies

Professional Liability/E&O- Errors and omissions -malpractice insurance

Life
Difference is how you make payments:
-Whole/Ordinary/Straight -premium is set and never changes (can be expensive) Build up a cash surrender value (can borrow against the policy)
-Term -Year/5yr/10yr increment periods, cheap while you're young, but gets expensive as you age.
Do you need life insurance? Does anybody care financially if you die?
If so, usually 7-10X your income to replace you.
Disability -pays you if you are injured or disabled. Tip to save $- you only need 65% of income because it is not taxable.
Grace Period -periods of time after the expiration date of the policy wherein the insured may reinstate the policy without penalty- but during the grace period you are UNinsured

Duty to Defend/Indemnify -insurance company will defend claim/make loss right

Reservation of Rights - issued in non-covered occurrences (insurers owe their clients a FIDUCIARY duty) reserve right to not proceed in insured's defense

"Insurers are in inherent conflict with their insured."
Insurers only make money by increasing premiums or denying claims
Bad Faith -denying claims out of hand
Law in WA says that if the insurance company has the opportunity to settle within the policy limits and doesn't, and goes to trial instead, they face the entire settlement.

Your FICO scores go down if you are named in a lawsuit. (Farmers, Allstate, State Farm- majority of lawsuits.) (Bruce has Metlife, would recommend Progressive, Pemco.)


--Complex Litigation--
One or more related cases which present unusual problems and require extraordinary measures or special treatment.
-Multiple related cases, multiple parties, multiple jurisdiction or all three.
-FRCP 16, 26, 37, 42, and 83. Additional grants of authority to court to handle complex lit.
-Chambers v. NASCO, 111 S.G. 2123, 2132-37 (1991)

Three Primary Areas of Difference
1. More cooperation between parties (joint submissions, etc.)
2. Less reliance on formal discovery
3. More active judicial participation

4.7.11 Business Law

Elements of a crime
-Mens rea
-&-
-Bad act
Business owners form intent.

Criminal Law
Businesses as offenders and as victims

Victim- Theft, retail theft (shoplifting), fraud, embezzlement, arson.

How does a business commit a crime?
Who forms the intent?
Who commits the act?

RICO
Prohibits two or more "racketeering acts"
-Investing in or acquiring a legitimate business with criminal money
-Maintaining or acquiring a business through criminal activity
-Operating a business through criminal activity

-Used against tobacco companies

Honest Fraud Theory
No crime if done not for own benefit but for companies benefit? Thrown out.

Contracts
Formation and Legality

Eventual Assignment (due week AFTER next) -Draft a contract term

Damages from breach of contract are dissimilar from tort damages.
-Only damages under the breach are considered in remedy.
"The whole duty of government is to prevent crime and to preserve contracts."

Sources of Contract Law
Constitution
-Fundamental right recognized in both state and federal constitutions
Common Law- Most contract law
-Importance of the Restatement
- Treatises give detailed explanation of minute details
- Look for Restatement in Westlaw to see if state has adopted a particular section
-To research contract law issues start with Washington Digest
Uniform Commercial Code
- ARticle 2 RCW 62A
-For ease of commerce across states
What is a contract?
A contract is a promise that the law will enforce.
-Contract is "private law" between parties

Questions in a contract case
-Is there an agreement?
--Is there consideration?
--Is it legal?
--Did the parties have the capacity to contract?
-What are the terms?
-What does those terms mean?

Four Essential Elements
1. Agreement
Meeting of minds/bargain?
Valid offer- promise to do or not do something
-intent to make offer, not a joke, must be definite
-must state: 1. parties, 2. subject matter, 3. consideration and 4. time for performance
-Communication to offeree- may be oral, but much more difficult to enforce.

Termination of an Offer
-An offer may be terminated before it is accepted
--By action of either party
--By operation of law- if it becomes illegal, etc.

Acceptance
And offer invites the offeree to
-Accept
-Reject or
-Make a counteroffer (in which case the offeree becomes offeror)

-Time must be reasonable
-Offeror may set terms of acceptance

Mirror Image Rule
If the offer is presented in one way, the acceptance must be done in same way.

Bilateral- Promise for promise
Unilateral- Promise for action

Consideration
A bargained for exchange- each side is inducing the other to agree.
-The thing bargained for can be a promise or action.
-The thing bargained for can be a benefit to the promisor or a detriment to the promisee.

-Gifts do not apply
Adequacy
-Court will generally not weigh the value of the promise.
-If the parties are satisfied with the bargain initially, then a court will not consider the value of the bargain.

Exceptions- Not enforceable
1. Past considerations
2. Pre-existing duty
3. Accord in satisfaction of liquidated debt (cannot settle for less than total amount if total amount is known.)
4. Illusory Promises
EX p. 142 Real estate deal. Ernest money agreement- $5000 check held in escrow for 60 days by bank.
Seller gives up time and other offers. Getting nothing.
Buyer gets time to inspect and decide. Giving up nothing.

Equitable Remedies
-Non-monetary solutions
1. Promissory Estoppel/Detrimental Reliance
Must show statement was made knowing that it would be relied upon, it was relied upon, to their detriment, and they law should remedy.
2. Quasi Contracts
A. Plaintiff gave some benefit to the defendant
B. Reasonably expected to be paid
C. Defendant would be unjustly enriched if plaintiff is not paid

Is the Agreement Legal?
If not it is VOID

Gambling in WA
Authorized or criminalized by RCW 9.46
Tribal Gaming - allows state to contract with tribes for gambling.

Tribal Law
Individual law and courts. Semi-sovereign states. Some federally recognized and some not.

Insurance - a wager?
Life Insurance
-Requires insured to have an insurable interest in the subject of the policy
-The objection to these policies "was not the temptation to murder but the fact that such wagers came to be regarded as mischievous kind of gaming."

Usurious Contracts
Excess interest in generally defined in the statute. RCW 19.52
(Most consumer contracts not governed by such statutes. EX credit cards, payday loans.)

Licensing Statutes
Limit right of someone to receive money under contract that requires a license but does not actually have one.
EX Public Protection- Construction work performed without a license may not collect for work.

Public Policy Violations
A court may refuse to enforce a contract if, based on common law principles, it violates "public policy"
How the Supreme Court decides cases- video on tvw.org

Restraint of Trade
Free trade is the basis of the American Economy and any bargain not to compete is suspect and, generally, unenforceable. There are two common exceptions:
1. Sale of a business
The buyer of an existing business may ask the seller to agree not to compete with the business. This agreement is enforceable if it is reasonable:
-In time
-Geographic place
-Scope of Activity
Court may change these terms in contract based on reasonableness.
2. Employment
Non-competition clause
-Time
-Geographic limits
-Scope of activity

Exculpatory Clauses
Release one of the parties from liability if the other party is injured.
Unenforceable only if:
-Attempts to avoid liability for intentional torts or gross negligence
-Parties have greatly disparate bargaining power
-Clause is not clearly written or visible

Parent cannot release liability on behalf of child. Parent cannot settle claim of minor.

Unconscionable Contracts
One that the court refuses to enforce because of fundamental unfairness.
"No man in his sense and not under delusion would make... and no honest and fair man would accept."

Seller/Buyer Negotiation
Read handout and think about what terms and conditions you want.

Did the parties have the capacity to agree?
Lack capacity:
-Minority
-Intoxication
-Mental incompetence
at the time the contract is formed

Contracts with minors
In WA the age of majority for contracting is 18.
Contract with minor is not void, only voidable. And may be
-Disaffirmed
Only if: the disaffirmance is timely
AND the minor returns the consideration received-to the extent possible.
Necessaries (food, clothing, shelter) may not be disaffirmed.
-Ratified
After becoming an adult, the minor may ratify the contract If the contract is ratified, it is enforceable.

Mental Impairment
The court must have determined impairment.
A contract with a person who has a mental impairment is governed by the same principles that apply to a contract with a minor- the incapacitated person may either disaffirm or ratify.

Intoxication
General rule is that intoxication is not a defense to enforcement of a contract.
However, if intoxication results in an inability to have the requisite mental capacity to make a contract then the contract is voidable.
-This is a very high burden.

4.6.11 Criminal & Family Law

CrR 1.1
Local rules actually supersede state rules.
Cultivating relationships with court clerks, etc., can be invaluable.
Constitution always prevails over court rules.

CrR 8.1 and 8.2- criminal crosses over in to CR 6 and CR 7(b) govern.

Motions
-Request that courts issue an order.
-Issue on 3.5 hearing is always a confession.
-Issue on 3.6 hearing may be physical evidence or statements by those other than the accused.

Search without Warrant
-WA Const Art. 1 Sec 7- search done without warrant is invalid, unless one of the rare exceptions is applied.
-Search incident to arrest-

Basis for Police Action Without Warrant:
Probable Cause- Reasonable belief, based on facts, that a crime occurred and suspect has been pinpointed. Gives officer the right to arrest and further search.

Reasonable Suspicion- Specific articulable facts (more than a hunch) that criminality is afoot. (More general, no suspect.) Gives officer the right to investigate.

Terry v. Ohio - "a Terry stop" when officer can identify specific facts that lead to reasonable suspicion, gives right to limited investigative stop to flesh out whether or not there is probable cause.

Motions
-Can be used to create a negotiating position
-Can be used to develop evidence- motion to compel. Motion to compel production of evidence based on CrR 4.7.
-Also consider what it is that you are trying to say to the court. Purpose. Impression.
-Consider how likely the court is to actually read your motion. When writing to busy court make important information easy to find. Always use bold face on subheadings.

Analysis of Search- "Can the cop do what he did?"
Point by point, what alerted officer? What did the officer do and was it justifiable? There must be a justifiable reason for every officer action. What officer had, knew, and scope based facts at that time. Was every new act justifiable based what was known or discovered based on the previous point? Then move to next point and analyze again.

EX Weaving in lane. Is it illegal? No. Officer turns on lights. Driver is seized. But if articulable fact is explained away (driver is looking for address, etc.), then fact ceases to be an articulable fact in support of reasonable suspicion. DUI squad cops all have video cameras in their cars. Always compel the video if not produced.

Consent
A person can consent to waive their constitutional right.
"Do you have any drugs or weapons in the car?" Is that question justifiable based on a speeding car? No. You can ignore the question and the officer should move on. But if you answer they can act on that. Your statement adds to the facts upon which he is acting.

Was an arrest made?
How do you know if you are under arrest? Handcuffs? Not always. Can be a temporary detention for officer safety.
Miranda=Arrest

State v. Stroud
SIA Search Incident to Arrest -Exception
1. Arrest
2. Possible weapons -must be within reach
3. Possibility of evidence being destroyed -must be within reach
4. Reasonable time
Trunk (or other locked container) always off limits in this case, never within reach.

Plain View Doctrine
If officer sees something illegal they have the right to investigate.

Is a search permitted with an arrest?
Trunk is generally off limits. Even if search dog alerts on trunk, officer must get warrant to search.

Exigent circumstances- those that warrant action that does not confirm to procedure.

Analysis of Homework Assignment
1. Identify Rule - CrR 3.2
2. Significant Release Factors
- No criminal record
- Signed a lease
- Law school student
- Married with a child
3. Order those factors - Strong to Weak
4. Diffuse worst facts
"My client is at a distinct disadvantage because she has recently moved to town."

-It is important not to overstate the facts. The judge will learn more about the case eventually.
-Miranda protects against self-incrimination. Miranda is NOT a requirement for arrest.
-Police CAN lie to you.
-How to plead is always the client's decision.

CrR 3.2 Intro "probable cause"
If there are insufficient facts to believe that a crime occurred, or insufficient facts to believe that this person committed that crime, there is no probable cause.

FOR NEXT WEEK- Memo to Attorney
Using alternative facts in handout, write memo to the attorney applying the analysis that we discussed in class today. Find and read the case in the handout. Analyze for attorney whether motion to suppress is warranted using cases cited in handout. Logical flow and organization. Use headers and subheaders. Apply facts to rules and come to conclusion. "We should/not file a motion to suppress because..." 2 pages max. Don't try to address every issue, but do fully analyze all issues addressed.

4.5.11 Complex Litigation

2 Handouts
-Constitution
-"cheat sheet" on EP Clause

No book for class.
Different subject will be covered each week. Be sure to ask questions and clarifications AS WE GO ALONG.

Constitution- Controls how government treats us.

Amendments-
13th- Eliminated slavery
14th- 1. Due process clause 2. Privileges and Immunity Clause 3. Equal Protection clause
(only one of the three that apply to ALL persons
15th- Allowed freed slaves to vote (women did not get right to vote until 19th Amend. 50 years later)

The Equal Protection Clause- does not say that it must treat everyone equally.
"...does not require absolute equality."

Equal Protection Clause:

EX "All commercial pilots must have 20/20 vision." Does that law impact everyone equally?
Facially neutral? Yes. Disparate impact? Yes. Eldery. Does NOT violate EPC

Even if it is discriminatory it may still survive EPC test.
If government can give a compelling reason for discrimination the law stands.

Laws which descriminate on the basis of race and are upheld are rare.
EX Attica riots. After which races were segregated for SAFETY. Upheld.

Arbitrary, capricious or unreasonable discrimination or facially neutral with merely a disparate impact? Is discrimination among similarly situated citizens?

I. Strict scrutiny for "Compelling" government interest ("microscope")
II. Medium scrutiny for "important" government interest
III. Reasonable relationship to "legitimate" government interest ("sniff")

I. Suspect class (race, religion, national origin)
-or-
Fundamental right (1st Amend. rights, 4-8th Amend. criminal procedure rights, privacy, voting, interstate travel, education (minority view.))

II. Age, legitimacy, gender, sexual preference. (Many states have elevated gender and sexual preference to suspect class level.)

III. Everybody else.

Answering EPC essay questions:
1. Why was the person denied?
2.State the law
3. Similarly situated? -If not similarly situated then EPC does not apply.
4. Is it facially neutral? or discriminatory?
5. Is there a disparate impact?
6. Discuss- Apply appropriate level of scrutiny. Does the government have a Compelling/Important/or Legitimate interest?

Case List
San Antonio v. Rodriguez (1973)

Washington v. Davis (1976)

Village of Arlington Heights v. Metropolitan Dev. Corp. (1977)

Personnel Admin of Mass v. Feeney (1979)

Craig v. Boren (1976)

Brown v. Bd. of Education (1954) -"Segregation may effect their hearts and minds in a way unlikely to ever be undone." "Separate educational facilities are inherently unequal."

Plessy v. Ferguson (1896) - Railroad segregation, "separate but equal".

Dred Scott v. Sanford (1857) -Slave taken from slave state to free state, does "property" change its nature?

Korematsu v. U.S. (1944) -Internment camps for American citizens of Japanese descent upheld.

Swann v. Charlotte-Mecklenburg Bd. of Ed. (1971) -Bussing to desegregate. Lead to "white flight" to suburbs.

Milliken v. Bradley (1974) -Gov't cannot segregate, but may self-segregate. "De facto" v. "de jure (govt)" segregation. Supreme court has a duty to "remove root and branch" of discrimination.

Regents of University of California v. Bakke (1978) -reverse discrimination, med school. 1. Quota systems? NO 2. Race can never be considered at all? YES Judges split down the middle. Justice Lewis Powell deciding vote. Use EPC to correct violation of EPC? "Benign discrimination". "Traditional indicia of suspectness", not denied benefit, only the number of people is effected.

Bradwell v. Illinois (1873)

Reed v. Reed (1971) - Idaho, men over women for administration of probate estates. Did not stand.

Women
"Romantic Paternalism". Not discrimination- protection!

3.31.11 Business Law

Class PowerPoint slides available on class website

Transactional Lawyering
• Looks at law in a different way- Preventative
• Trying to find out how to avoid risk/litigation
➢ EX Employment Manuals
➢ EX Business Form- Corporation, LLC, etc.
Provide Option based advice

Contracts
o Important focus- touch every area of law

Sources of Law
Constitutions- Fed/State
➢ Protects individual rights from government action
• Right to privacy protections stronger in WA
• Right to bear arms stronger in WA
➢ Forms justice system

Legislation- Fed/State/Local
➢ Derives power from Const. Art. 1 Sec 8
➢ WA Const. more restrictive of government power
➢ "No one who love sausage or law should watch either one being made"

Judge-Made Law
➢ Federal- from published appellate court (changing to include unpublished opinions)
➢ State- from published appellate court
➢ www.courts.wa.gov - sign up for email of court opinions

Agency Regulations- Fed/State
➢ Washington Administrative Code
➢ Code of Federal Regulations

The Court System
➢ The 3-tiered system
➢ Trial Courts/District Court
➢ Intermediate court of appeals-Division/Circuit
➢ Supreme Court

Federal Courts
➢ Federal Law
➢ Diversity + 75k

Primary Authority
➢ Binding
➢ Statutes, Case Law, Constitutions

Secondary
➢ Persuasive/Non-binding
➢ Good research tools
➢ Restatements- Treatises treated with great respect by court
➢ Uniform Laws Annotated- Uniform Commercial Code- for uniformity across states

The prima facie case
➢ Elements of the case- from statutes, case law, etc.
Defenses
➢ The basic defenses
• I didn't do it
• It was legally justified
• It doesn't matter whether I did it or not because of procedural barrier

IRAC
➢ Issue
➢ Rule
➢ Application of rule to facts
➢ Conclusion

Procedural Issues
➢ Camreta Case
➢ Standing
➢ Case or Controversy
o RAP 3.1- Washington's "Aggrieved Party" rule

Law of Torts
The Dilemma
Advising Clients
➢ How to avoid risk
➢ The Rahman case
➢ Respondeat Superior
➢ Scope of Employment
➢ Legislature intends to override

Intentional Torts
Defamation/Libel/Slander
➢ Statement
➢ False- reckless disregard
➢ Published- made to another
➢ Causes injury
Defense: TRUTH

Assault

Battery

False Imprisonment
Defense: Reasonable, justified

Invasion of Privacy/Commercial Exploitation
Reed v. Pierce County

Outrage

Fraud

Interference with Contracts
➢ Existence of valid contract
➢ Knowledge of the relationship
➢ Intentional interference
➢ Damage

Negligence
➢ Duty
➢ Breach
➢ Causation
➢ Injury

Negligent Infliction of Emotional Distress

Contributory Negligence/Assumption of Risk

WA is only state to completely waive sovereign immunity
Joint and Several Liability
➢ Even defendant only 1% at fault may be sued

Strict Liability
In participating in some limited activities, a business will be liable for harm even though no duty was breached; no intentional tort committed.
EX Product Liability
Defense: Assumption of risk/misuse of the product

Damages
How do you determine value of case?

3.30.11 Criminal & Family Law

-Get copy of WA and FED Constitution
-Be PRECISE in your writing. Short sentences that say exactly what you mean to say. Vague is not an option.
-Bring State rule book to class

• -Is it a Prosecutor's job to win?
• -What is truth and justice?
• -RPC's Rules of Professional Conduct
o Apply to Attorneys and Paralegals

• Laws come from legislature- Go to Olympia to watch
• Sunset Clause- adds expiration date to laws, requires review every (x) years
o Our system tries to correct law by adding more laws, become contradictory and confusing

• The Constitution
• Washington and State- When do we apply?
• Source of Law
o Jurisdiction- If you break federal law- federal court
• If you break state law- state court
o Limitation- Can the government single you out?
• Authority- Govt derives its authority from Fed Constitution
• When Fed Const is silent, State Const applies
• Areas at Issue:
• Statements and Confessions
• Suppression of Evidence
• Search and Seizure -
o Fed- 4th Amendment
o State- Article 1 Section 7-
o Read it
o Look for case law- Wa Ct Ap/Sup C

Limitations of Governmental Action
• Indictments
o Fed- Grand Jury
o State- Notice & Complaint and Arraignment
• How do we convince a Judge to release?
• FOR NEXT WEEK- What are the criteria for release in WA on felony case?
• Write one paragraph convincing Judge to release without bail for Arnica
• Go to criminal rules

• Preliminary Determination- Appear before Judge (before charges filed) flash decision
o Released or held
o "to wit" = specifically
• Arraignment- to get personal jurisdiction- Notice
o Court must read charges and allow accused to enter a plea
o Within 14 days after Information (prosecutor's statement of accusation)
• Pretrial Hearing
o Suppression CrR 3.6- Physical Objects
• Preliminary showing to judge for motion to suppress
• Motion to suppress- Usually the issue that decides the case
• Burden is on defender to prove impermissible seizure
• Bulk of work and bulk of appeals
• 4th Amend.- Unreasonable Search & Seizure
• Art. 1 Sec. 7- State version, more restrictive than Fed.
• Proponent of evidence has the burden of proving admissibility
o Confession CrR 3.5- Statements
• If a statement is offered as evidence the Judge must set hearing to determine admissibility
• 5th Amend.- right to remain silent
• Choice/Knowledge &Voluntariness
o Burden- State must prove that statement was made knowingly and voluntarily
• Miranda
• Lawyer- 6th Amend.


• Source of Law
• Jurisdiction
• Where the act occurred
• Nature of the act
o Subject Matter- easier in criminal cases
o Person-
o Pleading
o Inherent Authority

• Misdemeanor- Max 90 days
o May be heard in court of limited jurisdiction
• Court with limited scope of authority
• Speeds up process and reduces case load of other courts
• CrRLJ- Separate set of court rules for these courts

• Felony- Min one year

• Only 3-4% of criminal cases go to trial

• Washington is Determinate Sentencing state
o Predefined sentences based on a number of factors
o RCW 94a
o Non-Exclusive Statutory Factors (others may be included)

• Appeal of Verdict
o From question of law

Roles:
• Investigation- Police
o Find Facts
• Case Building- Prosecutor
o Work with police
• Pressing Case in Court- Different Prosecutor
o Moves file forward
• Challenging Case- Defense Attorney
• Arbiter of Law- Judge

Franks v. Delaware
• Requires honesty for purposes of obtaining a warrant

IRAC
-Issue
-Relevant Law
-Application to Facts
-Conclusion

With each motion consider:
• (What I want- driving force for all arguments, etc. Tell Judge what you want)
• Law
• Factual Basis- Evidence- EX Declaration (under penalty of perjury)
• Analysis

For Next Week
-Bring WA Rules
-Read Arnica case
-Print your paragraph on release for Arnica