Legal Research & Writing : Week of 19 September

• Next week: the discussion section of our memo.
• The idea of synthesis is to organize around issues, not cases or conslusions. So probably I screwed up my synthesis exercise, but we shall see. Organize around the principles of decision..
• So we want to identify facts that are irrelevant.
• This will be an objective memo: it's not advocating any one side-- it is just attorney-to-attorney. We are not trying to persuade anyone of anything, just report.
• The only threshold here is the reasonableness of the bite: if we don't cross that, there's no point in worrying about damages, yadda-yadda.
• There will be no need to say anything about money in the memo. We will note ambiguities.
• DO NOT say that further research is needed. This is a closed universe. you can talk about ambiguities in the law, but that's it.
• Elements of the statute:
  1. Injury caused by dog owned by defendant
  2. Lack of provocation
  3. Peaceable conduct of injured person
  4. Person where lawfully allowed to be
• Interesting point: peaceable conduct might be debatable. So if playing crack-the-whip is not unpeaceable, what about playing catch?
• Another interesting point: how does the age of the person giving direction influence the authority?
• Does the case law require provocation by the victim? (the statute does not, but do the cases...)
• We want to compare the outcomes and the principles of the cases, not the facts.
• The cases discuss the purposes behind the statute's creation. We want to eliminate subjectivity.
• Consider provocation: whether or not there's provocation, was the dog's reaction reasonable?
• Nelson: was the victim's unintentional act provocation? Yes. So in our case, was the provocation intentional? No. The Nelson case says intent is irrelevant, the dog need not be vicious, and no strict liability (i.e., just owning a dog doesn't make you liable for its actions). A great job of laying out the purpose of the statute.
• Look for factual similarities: kids playing in the back yard, reasonable reaction of the dog.
• Nelson clearly satisfies (4), since the child was never warned.
• Nelson cites caselaw to illustrate the "vicious dog" standard-- the statute erases this burden. We no longer have to equivocate about the dog's disposition.
• Other case law used to show that age is irrelevant to provocation (not helpful to us), and also that the proportionality of the attack is a key to consideration. Note that Nelson does provide for the possibility that a 2-year-old could intentionally provoke.
• Note that there's a pause between the ball hit and the bite. This raises possibilities: did Slobber get more scared or more angry? Could he have retreated? <---This is an issue. ---> The fact that Maya didn't throw the ball is another.
• If there's an issue unaddressed in case law (the delayed reaction, for example), we have to rely on our intuition. This is what makes our answer "probably yes" or "probably no."
• We can establish that Slobber's act was not vicious, but was it reasonable (delay between ball and bite). Maybe Maya's running towards the dog was provocation, not the ball impact? Case law seems to focus on physical trauma.
• In each case, identify what's favorable to our client and what's unfavorable to our client.
• Nelson is unfavorable in the sense that provocation doesn't have to be intentional, and the attack is proportional.
• Sieworth: legally allowed to be there. This is the major case for (4). Is this distinguishing from or analogous to our case? Note that this made it to the appellate court (idiot child kicking injured dog): this indicates that the case has some food for thought.
• Kirkham: lawfully present to buy asparagus.
• We do not want fact-to-fact analogies. We want law-to-fact analogies. Do not do the Kirkham case-summary stuff. The summaries are nice, but not for our memo.
• Try not to make it a three-issue memo (i.e., don't bother with (3) as a stand-alone issue; if you must discuss it, group with (2)).
• We need to mention each element, but you can dispense with two of them pretty quickly

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• The engagement ring analysis
  1. What were we asked to do, and answer. "The issue at hand is..." or "The question presented was..." [contra written comment on hand-out]
  2. Facts of the case: gave ring, broke up, etc.
  3. Rule of law from Brown: ring is conditional gift, fault is irrelevant
  4. Apply facts to law: what does the principle tell us about our facts?
• Use past tense when referring to caselaw/precedent. Write out numbers 10 and below.