Could WI law bar a claim against homeowners who did not provide
alcohol but hosted a party and then reneged on a promise to
provide a place to stay.
Defendants: we're immune, but even if we're not, public policy
bars proceeding.
Plaintiffs: they're not immune, but even if they are, public
policy overrides it.
All facts come from the trial level brief packet. Some of it
has changed. Be judicious with facts: this is a decent way
to conserve space.
Even though there's a duty of care, does public policy bar this
action?
Don't necessarily need to address all elements of policy-- if
they overlap or are irrelevant, say why you're not dealing
with them in depth. Primary focus will be on Stephenson's
use of these factors. These are not elements of a crime-- they
are factors a court considers when deciding whether to assign
liability. You don't have to meet all 6 to win; you don't
lose if you fail on just one. They're not mandated by law
to deal with this in a hard-and-fast way (there's no statute
of public policy). You just argue for or against them...
We need to introduce the summary judgment standard, using either
the case or the statute.
Plaintiffs: summary judgement is not appropriate because there
are material issues of fact in dispute: did either of them
hand Kipp a beer? Show that there is conflicting testimony
(maybe do it in fact statement).
Plaintiffs: public policy does not doom us, and there are material
facts at issue. Bring up all issues possible, or else you
can't appeal it. You can't ignore an issue now and then
bring it up later (the reverse works).
The stopping point argument re: bottles in Kipp's car: do we
want to say that someone who leaves a party and continues
to drink can make to prior host liable?
Sure, Trossen was making mojitos (clearly dispensing), but he
didn't make one for Kipp. (see Miller, maybe?)
Stevenson uses #2, #4 (too burdensome), and #6 (stopping point)
Plaintiffs: #3 (injury wasn't remote at all), #5, #1, #6
Courts and defendants like bright-line tests.
Clearly the legislature wants to hold adults responsible for
their drinking, and courts have interpreted "procure"
broadly.
"Brief in Opposition to Summary Judgment." (note that this is not
a trial brief: those address specific evidentiary issues)
Explain the rule that should be applied, and how should the
court apply it? Say why our view of the facts is more
accurate, why our choice of law is more appropriate, and
why our analysis of the rule leads to a better result. Also
explain why the opponent's view of the facts is inappropriate.
Introduction: here is who the parties are, and how we got here. Summary
judgment must be denied because... 1 ¶ is appropriate (3-6
sentences).
QP: state the issues from the client's perspective. State the rule
of law, the element at issue, and the key facts. Write them
in the form of a question. Don't say plaintiff and defendant
here. Try to make the answer a "yes." Probably put this after
the facts, so you can personalize the parties more.
Plaintiff's rough example QP: Should party hosts who provided no
alcohol and promised a place to stay be held liable when they
retract that promise, in spite of a statute that immunizes people
who procure?
Facts: Necessary background facts, legally relevant facts, and emotional
facts (stumbling, key-dropping). Probably arrange the facts
chronologically. Bury damaging facts in the middle (of the story,
or even of a sentence). Place favorable facts in positions of
emphasis. You can win on the fact statement alone: construct it
carefully, and pay attention to literary concerns.
Argument: fact-centered (the rule is clear, and the facts are at
issue), doctrinal (the issue is primarily a legal question)
and policy-centered (the purpose of the rule and the desirability
of the end are the deciding factors). Do immunity first, then
public policy.
Point Headings: persuasive summaries of the main arguments in a
brief, arranged in a logical order. One for each QP. Maybe
some sub-headings, but those don't have to be complete sentences.
Number with Roman Numerals (I, II).
Argument
Summary Judgment Overview
I. Immunity
a.
b.
II. Public Policy
A point heading should be a persuasive thesis sentence (including
the word "because:" (1) the result sought, (2) the part of the
rule that justifies that result, and (3) the key facts
supporting that result. All in one sentence. Single-spaced
and bold. And not looking like a paragraph.
The Trossens are not immune because they did not procure alcohol
merely by hosting a party and allowing guests to bring alcohol
Public policy requires that the Trossens be held liable because the
accident was such a direct result of their actions, and because
Be more forthright and direct: Trossens are liable because they
did not contribute financially to the alcohol or encourage its
consumption. (why, under the QP, am I right?)
Mr. Wynn is entitled to damages because... Summary judgment is
inappropriate because...
Summary judgment should be granted for the Trossens because WI
courts have consistently held adults responsible for their
own actions even when intoxicated on grounds of public policy.
Summary judgment must be denied because the hosts did not provide
any of the alcohol consumed at the party and are consequently
not immune under the statute.
Summary judgment must be granted because the WI legislatute has
chosen to hold adult drinkers liable for their poor judgment
by immunizing social hosts from liability.
Deal with supporting authority first, and distinguish unfavorable
cases later. Don't organize around cases: organize around rules
of law.
Don't start a paragraph with "In Smith v. Jones..." start with
a thesis statement, then show that there's supporting authority.
Conclusion: probably just 3 sentences. Nice and short. End with
"for these reasons, the motion for summary judgment should be
denied."
Citation
Citing documents in the trial-level brief.
All the info we need here is in the bluepages: it's all briefs
and practicioners' documents.
You'll cite in the statement of facts and also in the argument.
"Partial transcript of evidentiary proceedings" = Deposition, so
abbreviate "LAST_NAME Dep."