Research & Writing : Week of 29 January 2008

29 January

• Stephenson is the main case that we're going to use. A broken promise led to this accident, and it was foreseeable.
• Our two main issues: duty and immunity.
• Duty: what are the limits on the promise to provide a place to sleep (i.e., what if they guy is setting fire to the place: it wouldn't be sensible to require the guy to let him stay). But the homeowner does say that he should call a ride, or something. The court would probably say that he can't fulfill his duty unless he lets the guy stay. Reliance on the promise (he plans to drink the whole 12 pack; he bought an extra- strong beer at the liquor store).
• Foreseeable harm, reasonable care
• We don't need to worry about how a jury would find: we are trying not to get dismissed.
• Defendants provided mixers, stored the booze in their fridge, mixed mojitos. "Procure" is very broad, and might even include encouraging someone to drink (there is a case about this: find). What encouraged drinking: offer to stay overnight. Discourage: the defendants are not drinkers. Also, note that he as more than one beer perhaps.
• Also, we're not arguing here (yet). We're writing an objective memo.
• It's OK to use unpublished cases in the memo (not in the brief).
• Deal with duty first. If there was no duty, then immunity doesn't enter into it. Probably court will find that there is duty. Immunity can go either way.
• Use case law, rather than jury instruction.
• The critical question is whether the defendant's actions are consistent with a reasonable degree of care under the circumstances?
• Memo has 8pp limit.
• Note that the underage statutes can help narrow the definition of procure (that would be good). So, for example, I have underage people over, but it's BYOB. There can be some helpful narrowings there.
• P. 13 of the syllabus (qualities of good legal writing).
• Do not say "defendant will argue:" there is no defendant. This is just a presentation of the law and a conclusion about how a court would likely find.
• Organize around issues, not cases.
• Parts of a memo
  • Heading
  • Introduction: general sense of the issue. 3 sentences or so.
  • Facts
  • Questions Presented [can come first]
  • Brief Answers
  • [Applicable Statute, optional: relevant portion, single spaced, bold, perhaps]
  • Discussion
    • Overview [first paragraph; no heading for this. Says what the relevant law is, forecasts the conclusion]
  • Conclusion
• Don't touch causation or damages: these are not what the partner asked for.
• Statement of facts (if you mention a fact in the discussion, it should at least be mentioned here, even if it is treated in more detail in the discussion):
  1. Defendants invite friends to party: BYOB (plus mixers and food), offer to stay over
  2. Kipp attends the party: purchases and brings his beer, acknowledges his intent to stay, becomes intoxicated, Mrs. Trossen (maybe) gave him a drink
  3. Kipp is obnoxious to guests at 1:00AM (cite examples), ordered to leave, asks to stay
  4. Trossen suggests that he not drive, but escorts him to his car, Kipp is seen to stumble, drop keys, hit the fence
  5. The accident: ran stopsign, is killed, plaintiff hurt, Kipp BAC
  6. Case (don't need to mention this): our client wants to sue, because Kipp was bankrupt
• "You bring the gin we've got the tonic" has something to do with providing alcohol.
• Think of the duty as Part (c) in the Restatement