Instructor: Colleen GradyInstructor: Colleen Grady

Welcome to Seminar 4Welcome to Seminar 4PA 205PA 205

Introduction to Legal Analysis and Introduction to Legal Analysis and WritingWriting

Agenda for tonight’s SeminarAgenda for tonight’s Seminar

Review General MattersReview General Matters Discuss Analogizing and Discuss Analogizing and

Distinguishing CasesDistinguishing Cases Practice with the Practice with the DonnellyDonnelly case case Discuss Unit 4 written assignmentDiscuss Unit 4 written assignment Unit 4 Discussion BoardUnit 4 Discussion Board Wrap up/Unit 4 RequirementsWrap up/Unit 4 Requirements

General MattersGeneral Matters Office hours are held on Mondays and Office hours are held on Mondays and

Thursdays from 10-11 p.m. via the Thursdays from 10-11 p.m. via the chatroom in LIVE. I will also be on AOL chatroom in LIVE. I will also be on AOL Instant Messager (AIM). My AIM sign in Instant Messager (AIM). My AIM sign in is readlaw2. There are instruction for is readlaw2. There are instruction for downloading AIM on the syllabus.downloading AIM on the syllabus.

In DocSharing there are my In DocSharing there are my PowerPoints in case you want to refer PowerPoints in case you want to refer back to them.back to them.

This is a good time to look ahead so you This is a good time to look ahead so you understand what the final project is.understand what the final project is.

Questions?Questions?

Analogizing and Distinguishing Analogizing and Distinguishing CasesCases

Why do we look to prior cases?Why do we look to prior cases? PrecedentPrecedent Other cases are a main source of the lawOther cases are a main source of the law

Analogizing means that you are looking Analogizing means that you are looking for how the cases are for how the cases are in commonin common..

Distinguishing means that you are Distinguishing means that you are looking for how the cases are looking for how the cases are differentdifferent..

In non-legal terms, you are basically In non-legal terms, you are basically comparing and contrasting.comparing and contrasting.

Analogizing CasesAnalogizing Cases

In what areas should the cases In what areas should the cases resemble each other?resemble each other? FactsFacts IssuesIssues

Where should you look first for Where should you look first for cases?cases? To binding authorityTo binding authority Then persuasiveThen persuasive

Distinguishing CasesDistinguishing Cases

Courts will distinguish cases from Courts will distinguish cases from each other to avoid the outcome each other to avoid the outcome from a prior case. from a prior case. Argue that the differences in the Argue that the differences in the

facts require that the court apply a facts require that the court apply a different rule.different rule.

Conversely, you may agree that Conversely, you may agree that the same rule applies, but the facts the same rule applies, but the facts require a different outcome. require a different outcome.

Let’s PracticeLet’s Practice Remember the Remember the DonnellyDonnelly case? case? Daughter and sole heir of deceased seeks Daughter and sole heir of deceased seeks

to set aside a deed for certain mines that to set aside a deed for certain mines that was made by her habitually drunk father to was made by her habitually drunk father to two men. The father had spoken of two men. The father had spoken of transferring the deed to avoid the claims of transferring the deed to avoid the claims of creditors. The two men plied him with creditors. The two men plied him with liquor and encouraged him to drink to the liquor and encouraged him to drink to the point of intoxication. The father had been a point of intoxication. The father had been a habitual drunkard for more than 5 years habitual drunkard for more than 5 years and was easy prey. The father signed the and was easy prey. The father signed the deed over without consideration even deed over without consideration even though it was worth $10,000. He wants to though it was worth $10,000. He wants to cancel the deed.cancel the deed.

Analogize/Distinguish with BibeAnalogize/Distinguish with Bibe I.M. Bibe case: 32-year old with degrees in I.M. Bibe case: 32-year old with degrees in

accounting and marketing went out to lunch accounting and marketing went out to lunch to celebrate meeting a sales goal and to celebrate meeting a sales goal and earning a $150,000 bonus. Bibe drank lots earning a $150,000 bonus. Bibe drank lots of wine and ate a salad while co-worker of wine and ate a salad while co-worker Lotts only drank water and talked to him Lotts only drank water and talked to him about a coffee shop he wanted to sell. Lotts about a coffee shop he wanted to sell. Lotts ordered more wine and wrote up a contract ordered more wine and wrote up a contract to sell the business. Bibe signed the to sell the business. Bibe signed the contract to buy the business for $300,000 contract to buy the business for $300,000 (although Lotts says it’s worth well more (although Lotts says it’s worth well more than that) and then drove 20 miles home than that) and then drove 20 miles home awakening with a headache a few hours awakening with a headache a few hours later and regretting the contract.later and regretting the contract.

How are these cases the same?How are these cases the same?

How are these cases the same? How are these cases the same? (analogizing)(analogizing)

Both involve drinking immediately before Both involve drinking immediately before entering into a contract.entering into a contract.

In both cases, the party benefitting from In both cases, the party benefitting from the contract encouraged the other the contract encouraged the other person to drink. (This was seen as person to drink. (This was seen as evidence of fraudulent intent in evidence of fraudulent intent in DonnellyDonnelly))

Both parties (daughter in Both parties (daughter in DonnellyDonnelly) ) regret what they did once they sobered regret what they did once they sobered up. up.

How are these cases different?How are these cases different?

How are these cases different? How are these cases different? (distinguishing)(distinguishing)

Bibe is very educated in business and not Bibe is very educated in business and not easy “prey.”easy “prey.”

There is no evidence that Bibe was a There is no evidence that Bibe was a habitual drunkard like Donnelly.habitual drunkard like Donnelly.

Bibe was able to drive home 20 miles so Bibe was able to drive home 20 miles so maybe he was not as drunk as Donnelly.maybe he was not as drunk as Donnelly.

Donnelly got a bad deal ($10,000 value Donnelly got a bad deal ($10,000 value for no consideration) but Bibe might have for no consideration) but Bibe might have gotten a good deal based on the facts.gotten a good deal based on the facts.

Written Assignment Written Assignment CitationCitation: : Donnelly v. ReesDonnelly v. Rees, 141 Cal. 56, 74 P. 433 (1903) , 141 Cal. 56, 74 P. 433 (1903) FactsFacts: Daughter and sole heir of deceased seeks to set aside : Daughter and sole heir of deceased seeks to set aside

a deed for certain mines that was made by her habitually a deed for certain mines that was made by her habitually drunk father to two men. The father had spoken of drunk father to two men. The father had spoken of transferring the deed to avoid the claims of creditors. The transferring the deed to avoid the claims of creditors. The two men plied him with liquor and encouraged him to drink. two men plied him with liquor and encouraged him to drink. The father signed the deed over without consideration even The father signed the deed over without consideration even though it was worth $10,000. The daughter prevailed in the though it was worth $10,000. The daughter prevailed in the trial court and the deed was revoked.trial court and the deed was revoked.

IssueIssue: Whether a deed should be voided where the : Whether a deed should be voided where the recipients encouraged the maker of the deed to drink to a recipients encouraged the maker of the deed to drink to a point of intoxication and the deed was tendered without point of intoxication and the deed was tendered without consideration.  consideration. 

RuleRule: It is not proper to gain a legal agreement by a : It is not proper to gain a legal agreement by a “violation of trust” whether it be by actual fraud or undue “violation of trust” whether it be by actual fraud or undue influence. Encouraging another to drink to a point of influence. Encouraging another to drink to a point of intoxication prior to having a deed executed could be seen as intoxication prior to having a deed executed could be seen as evidence of fraudulent intent. evidence of fraudulent intent.

AnalysisAnalysis: Defendants tried to argue that the : Defendants tried to argue that the plaintiff/father/maker of the deed should not be plaintiff/father/maker of the deed should not be protected since his intent was bad when he protected since his intent was bad when he executed the deed. He wanted to execute the executed the deed. He wanted to execute the deed so that the mine was protected from deed so that the mine was protected from creditors. This argument failed because the court creditors. This argument failed because the court found the defendant’s action even more found the defendant’s action even more fraudulent. They acted fraudulently or used fraudulent. They acted fraudulently or used undue influence in order to get the father to undue influence in order to get the father to execute the deed. The court would not let this execute the deed. The court would not let this stand.stand.

ConclusionConclusion: The deed is not valid so the : The deed is not valid so the daughter as sole heir will get the interest in the daughter as sole heir will get the interest in the mine.mine.

DispositionDisposition: Affirmed.: Affirmed.

You will add one new section to You will add one new section to each briefeach brief

Analogizing/Distinguishing: Analogizing/Distinguishing:

Both cases are similar because both involve drinking involve drinking immediately before entering into a contract. In both cases, immediately before entering into a contract. In both cases, the party benefitting from the contract encouraged the the party benefitting from the contract encouraged the other person to drink. (This was seen as evidence of other person to drink. (This was seen as evidence of fraudulent intent in Donnelly) Additionally, both regret fraudulent intent in Donnelly) Additionally, both regret what they did once they sobered up. However, they are what they did once they sobered up. However, they are different because different because Bibe is very educated in business and Bibe is very educated in business and not easy “prey.”T here is no evidence that Bibe was a not easy “prey.”T here is no evidence that Bibe was a habitual drunkard like Donnelly. Bibe was able to drive habitual drunkard like Donnelly. Bibe was able to drive home 20 miles so maybe he was not as drunk as Donnelly. home 20 miles so maybe he was not as drunk as Donnelly. Donnelly got a bad deal (10,000 value for no Donnelly got a bad deal (10,000 value for no consideration) but Bibe might have gotten a good deal consideration) but Bibe might have gotten a good deal based on the facts. They seem more different than similar.based on the facts. They seem more different than similar.

AssignmentAssignment

Correct your 5 briefs and copy them Correct your 5 briefs and copy them into 1 document.into 1 document.

Add the new section to the end of Add the new section to the end of each brief.each brief.

Write a paragraph for each new Write a paragraph for each new section.section.

Submit the document. Submit the document.

Unit 4 Discussion BoardUnit 4 Discussion Board For this week’s discussion, read the For this week’s discussion, read the

Paugh v. City of SeattlePaugh v. City of Seattle case in the case in the document that is attached to the document that is attached to the Discussion Board intro.  Discussion Board intro. 

Then, determine whether the changes in Then, determine whether the changes in facts (1-5) listed on the bottom of the facts (1-5) listed on the bottom of the document text would change the document text would change the legal legal outcomeoutcome of the court’s decision. (Don’t of the court’s decision. (Don’t focus on whether the children could be focus on whether the children could be saved – focus on whether the city would saved – focus on whether the city would be liable in each of the factual be liable in each of the factual situations.)situations.)

Be sure to explain why.Be sure to explain why. You can separate your postings based on You can separate your postings based on

the factual changes.the factual changes.

Paugh v. City of SeattlePaugh v. City of Seattle588 P. 2d 1351 (Wash. 1979)588 P. 2d 1351 (Wash. 1979)

Facts:Facts: Ordinary pond owned by the cityOrdinary pond owned by the city Popular with area residents for fishing and Popular with area residents for fishing and

swimmingswimming ππ had taken his sons there several times had taken his sons there several times

before. before. There were no warning signs around the pond.There were no warning signs around the pond. The city has determined that a fence would be The city has determined that a fence would be

prohibitive in cost and not possible without prohibitive in cost and not possible without destroying the residents’ quiet enjoyment of destroying the residents’ quiet enjoyment of the land.the land.

RulesRules No duty to trespassers except not to willfully No duty to trespassers except not to willfully

cause the injury (cause the injury (Mail v. Smith Lumber CoMail v. Smith Lumber Co., 287 P. ., 287 P. 2d 877 (Wash. 1955)2d 877 (Wash. 1955)

However, in the case of infant trespassers, there However, in the case of infant trespassers, there is the is the attractive nuisance doctrineattractive nuisance doctrine::

1.1. The condition must be dangerous in and of itself;The condition must be dangerous in and of itself;

2.2. The conditions must be attractive and enticing to The conditions must be attractive and enticing to young children;young children;

3.3. The children, because of their youth, must be The children, because of their youth, must be incapable of understanding the danger involved;incapable of understanding the danger involved;

4.4. The condition must have been left unguarded at a The condition must have been left unguarded at a place where children go; or where they could be place where children go; or where they could be reasonably expected to go;reasonably expected to go;

5.5. It must have been reasonably feasible either to prevent It must have been reasonably feasible either to prevent access or to render the condition innocuous without access or to render the condition innocuous without destroying its utility. destroying its utility.

Analysis/ConclusionAnalysis/Conclusion Analysis: Drowning is a commonly-known danger Analysis: Drowning is a commonly-known danger

of which six and eight-year olds are capable of of which six and eight-year olds are capable of understanding. Furthermore, there were many understanding. Furthermore, there were many more instances of recreational use of the pond more instances of recreational use of the pond compared to the number of drowning. compared to the number of drowning. A natural A natural body of water, or an artificial body with body of water, or an artificial body with natural characteristics, is not in and of itself natural characteristics, is not in and of itself an attractive nuisance. Therefore, the pond an attractive nuisance. Therefore, the pond is not dangerous. is not dangerous.

Conclusion: Lower-court ruling affirmed that the Conclusion: Lower-court ruling affirmed that the pond is not an attractive nuisance under the pond is not an attractive nuisance under the doctrine. It does not meet the element of being doctrine. It does not meet the element of being dangerous in and of itself. dangerous in and of itself.

Unit 4 RequirementsUnit 4 Requirements Attend Seminar or do the alternate Attend Seminar or do the alternate

assignmentassignment Complete the reading assignmentComplete the reading assignment Post to the Discussion Board 4-5 Post to the Discussion Board 4-5

timestimes Submit the written assignmentSubmit the written assignment Catch up if you need to Catch up if you need to

QUESTIONS?QUESTIONS?