Civil Procedure I

• Announcements: Brief assignment.
• Summary judgment jigsaw exercise: actually pretty fun.
• Defendants can acknowledge factual disputes, and just say that they're immaterial.
• Ambiguous evidence gets interpreted in favor of the non-moving party.
• Disputed law: agree on facts, disagree on how law applies.
• Disputed fact characterization: agree on the underlying details, but not on characterization (i.e., was Raheem's jewelry a weapon)
• Missing element: admission or undisputed/undisputable evidence knocks out an essential element of a claim or defense.
• Facts have to be based in admissible evidence, by the way-- otherwise they can get kicked out (that's Daubert in a way).
• Expert witness interview next time.

5 November

• There's a tension in law practice. There's the duty to zealously represent the interest of the client. There is also a duty to act candidly and in good faith (to the court and to the opposing counsel and party). Those appear to be in conflict sometimes. It's a little bit glib to say you'll take the high road in all cases: we do care about results, after all. But the low road also has all sorts of problems. The question "what will you do to win" comes up in all kinds of human activities.
• There will be six trials, 2.5hr each.
• Oral presentation is actually a realistic exercise: summer associates will have to do this. Senior associate will not have read the memo; they'll know what Jackson v. Long is, and that we took the case, and maybe that there was a motion to dismiss.
• We'll have 1-2 minutes where we're in control, then we'll need to go with the flow. And yet, we'll have an agenda for things that we need to cover. Somewhat like a job interview: you can't count on the other person to ask you the questions you need to get your points across.
• Look at the rubric. Boil down the whole problem into 1-3 sentences, if possible, for that intro to the intro. 15-30 seconds. Don't run the risk of rambling: make sure you get the main points across very fast, and very clearly.
• Summary judgment. Reasonable inferences for the non-moving party. The judge can't weigh credibility.
  1. Disputed law or fact characterization. There's no dispute over the facts-- the dispute is purely legal. So, Williams v. Toyota from our exercises. Was Raheem wearing a weapon or jewelry? Sometimes these look like fact questions for a jury, and sometimes a judge will decide that they become questions of law and establish a standard (such as: any rings bigger than 3/4" count as weapons as a matter of law).
  2. Missing element. Admission or undisputed or undisputable evidence knocks out an essential element of a claim of a defense. Daubert, e.g.: the exclusion of expert testimony precludes proving causation.
  3. Sufficiency of evidence. See Reeves, from our exercises: proof of age discrimination includes proof of intent to discriminate (like, e.g., conspiracy).
  The court will weigh the evidence up to the point of the burden of production. It will answer the question "is there enough for a reasonable jury to find in the plaintiff's favor?" The court is free to decide that no reasonable jury could find for the plaintiff, but it doesn't go beyond deciding whether the plaintiff has met the burden of production. Persuasion doesn't enter into it yet.

  Moving line. Certain kinds of cases (e.g., Henning) will always be decided for the defendant. Or the plaintiffs (e.g., Garner: unarmed nonviolent felon). And then there are the ones where the case must go to the jury. We want to push the case into the Defendant's-judgment-as-a-matter-of-law territory. The lines separating those categories are somewhat movable.

• Looking for "opportunities to make arguments."
• Wrongful termination: the thing that converts conduct that doesn't infringe on someone's rights to conduct that does infringe is the mental state of the terminator.
• Note: Henning was about a gun, not necessarily all weapons generally. Is Raheem armed or not? Is he brandishing or not?
• Making factual disputes disappear:
  1. It's immaterial. It doesn't make a difference to the outcome.
  2. No reasonable jury could find the plaintiff's version.
  3. Even accepting the plaintiff's version, we still win. (i.e., for the purposes of argument, for this motion, we'll assume that Raheem was unarmed). We can argue a different way later.
  Maybe 1 and 3 are the same, upon reflection.
• Michael Scott expert evaluation

  Baton training-- there are many kinds of batons.

  Accreditation: voluntary compliance with certain standards.

  Sources of knowledge about how to do the job: official policy, by watching and emulating, etc. There are various sources.

  "Doing the chicken:" carotid chokehold to render a person unconscious so they can be cuffed, etc.

  It's recorded when officers get new policies: they are informed, trained, etc.

  There are various types of chokeholds. Many are disfavored, although other versions (i.e., lateral vascular neck restraint) are allowed.

  This was unreasonable force, in his opinion. Deadly force. It might have been authorized (i.e., justified under the circumstances), but even if so, there are better ways to deliver deadly force than what was on the tape.

  It's very difficult for administrators (or other investigators) to find out about informal practices. It's also hard to find out if they're widespread.

  Hard to tell sometimes between a seizure and someone resisting arrest. Officers get some medical training, but often it is minimal. Policies for application of neck restraints can't depend on medical knowledge. There are guidelines, but there's a lot of judgment involved.

  Usually other officers monitor the restraint that is applied. In a way, that happened here-- the other officers were trying to save Long from doing something improper, and also save Raheem.

  If they had the ability to pick him up, they had the ability to take him to the ground. That might not have neutralized the situation entirely, but that would be a standard approach.

  Once Jackson is off of Sal, he's no longer deadly. Maybe they could have justified killing him right when they arrived, but after he was off of Sal, there was no longer a justification for deadly force. The question of when the immanent threat of deadly harm dissipates is a fuzzy one, and those involved in the situation are often too hyped up to recognize it quickly.

  Here, though, all the factors for non-deadly resolution were in place.

  Tunnel vision is a psychological factor in use-of-force situations.

  Properly applied, chokeholds are non-deadly.

  Note that the officers don't have non-lethal weapons at their disposal. Maybe they were under-equipped?

  Note that other officers know better: they are trying to tell Long to stop. Maybe there wasn't a training problem after all.

• Some of this info could be used to cross-examine witnesses like Long. Like getting him to admit that the windpipe is blocked, and therefore couldn't surrender verbally.
• Note that discipline is a policy: what the city has done with Long's prior history is evidence of city trouble. Also, are they giving the officers enough non-lethal weaponry to work with?

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• The issues for the brief should be straightforward (including the adult child one, which is the new one).
• Good page-number technique: bottom center, e.g.: - 1 -
• The best way to address another side's argument is with an affirmative argument of your own. There's less explanation here, and more argument: we don't want holes in our argument, and we don't want to create material issues of fact, but we're not trying to explain so much as to convince.
• For next week, outline the discussion ("argument") section. There should be three sections (one per issue). You can go in any order-- strongest first. For each, have a point heading, and a brief outline with citations. Bring two copies to class: one will be turned in, one will be discussed with a peer.
• The structure:
  • Caption
  • Introduction: say what we want the court to do. Under these facts, the case should be dismissed as a matter of law.
  • Fact section: persuasive. Cases can be won or lost on the facts-- we want them to be favorable to our client.
  • Discussion: Front load. Topic sentences from each paragraph should make a coherent outline.
  • Conclusion: just a recitation of what we want. This is a formality.
• Proofreading trick: read backwards.
• Table of contents must accurately reproduce section headings.
• Precise and concise are both good, but the former trumps the latter.
• We are acting as an advisor, telling what we want, and explain why this is the right result.
• Note that on appeal, summary judgment motions are reviewed de novo, so we can't expect the court to know anything about the case (even though the trial judge probably would).
• A judge is a skeptical reader, testing the argument at all steps. We need to be considerate of the judge's needs. The most effective persuasive writing will appear to be objective (don't say "obviously," or "clearly," or suggest that no other conclusion is possible-- just make it be that way).
• Don't ignore bad facts. Lessen their impact, but deal with them. Emphasize the similarities between our case and the ones that were decided in our favor.
• Persuasive writing is: credible (first and foremost), accessible to the reader (educating, explaining), considers counter-arguments, appeals to logic and emotions in a balanced way, is interesting
• See "a chemical spray was applied to the defendant," versus "they maced him."
• 6 W's of brief writing. You must tell the court:
  1. What kind of case is it
  2. What is the issue
  3. What was the trial court's ruling/what ruling do we want
  4. What is the standard the court should apply (sum j)
  5. What do you want the court to do
  6. Why should the court do this
  Those are from Judge Neal Nettesheim, former Ct. App. judge, who is now a reserve judge. A good writer.
• The Monell claim (municipal liability): only need to do this one if force is unreasonable.