Property F: Information Memo #1 (8/16/07) s1

PROPERTY F: INFORMATION MEMO #3 (10/3/07)

TABLE OF CONTENTS

A. INFORMATION FOR STUDENTS TAKING PROPERTY F PRACTICE MIDTERM (IM35-36) B. EXAM-TAKING TIPS (IM36-40) C. ASSIGNMENT II: COMMENTS FROM PRIOR YEARS (IM41-47)

A. INFORMATION FOR STUDENTS TAKING PROPERTY F PRACTICE MIDTERM

(1) FORMAT & COVERAGE a. The practice midterm will be a closed book one hour exam consisting of two questions, each of which will be similar in form to the shorter Review Problems. I will attach relevant portions of the syllabus to the exam for you to use as an aid to memory if necessary. b. For the first twenty minutes, you may read the question and take notes on scrap paper and on the exam itself. You may not write in the bluebooks or type on your laptops during the first twenty minutes. You then will have forty minutes to write your answers to the two questions in the bluebooks or on your laptops. Since the questions are weighted equally, that gives you about 20 minutes of writing time for each question. c. For the exam, you are responsible for the material in Chapters 1-3. I may use modified forms of the Review Problems in the materials as one or both iof the midterm questions. (2) SOME SUGGESTIONS SPECIFIC TO TAKING THIS EXAM a. During your 20 minute reading period: (i) read the questions carefully more than once (you get little credit for writing a smart answer to a question I didn’t ask); and (ii) make a quick rough outline of each of your answers (a little bit of structure makes it much easier for me to see what you are arguing and to give you appropriate credit) b. You will not have time to answer both questions exhaustively. Make sure you stop working on the first question you answer early enough to leave yourself sufficient time to answer the second question adequately.

IM35 (3) PRE-EXAM QUESTIONS: a. I will hold pre-exam office hours on Saturday, October 6, from 2:00-6:00 p.m. As with my weekly office hours, no appointment is necessary; I will answer questions on a first-come first-served basis. b. If you submit specific questions by e-mail by 6:00 p.m. on Saturday, I will get back to you by 10:00 a.m. on Sunday. c. If you want a sense of what I look for in an exam answer, look in Info Memo #2 at the comments and best answers to old exam questions and read the following section on exam tips. B. EXAM-TAKING TIPS I. KNOW YOUR TASK A. Common Task on Undergraduate Exams: Show What You Know B. Task Here: Show You Can Address Problems Using What You Know C. Typical Exam Question Asks You to “Discuss” a Short Fact-Pattern 1. Respond by “Issue-Spotting”: a. spot major topics you must address to resolve problem b. spot arguments lawyers might make about major topics 2. Helpful to View Answer as Draft of Analysis Section of Memo a. Because it’s the analysis section: i) no need to summarize facts at beginning ii) no need to lay out question presented at beginning iii) need to apply relevant rules/policies to facts iv) need to include best arguments on both sides v) helpful to try to determine what a court might do vi) arguments should be based in legal authority b. Because it’s a draft: i) no need to spend time polishing sentences ii) no need for elaborate introduction/conclusion iii) use abbreviations and short form citations 3. Telling Us “What You Know” Is Not Responsive a. don’t write everything you know about major topics b. simply listing rules & holdings of cases insufficient c. discuss “law” in conjunction with either i) a discussion of which rule should apply to the facts; -OR- ii) applying the rule to the facts

IM36 II. RESPOND TO THE QUESTION ASKED A. Read Carefully B. Follow Any Directions Given 1. If I say assume something is true, don’t argue. 2. If I ask you to take on a particular role, do it. 3. If I specify issues for you to discuss, do so. C. Discuss the facts you are given 1. Assume all facts given are relevant 2. Not helpful to discuss at length result if facts were different 3. Discuss missing facts if necessary to respond to the question a. example: torts question re Jim’s liability i) problem says “Jim hit Ken with car.” ii) need to know Jim’s intent to resolve question iii) if Jim intended to kill Ken, then …; if not, … b. don’t discuss outside facts that alter nature of problem i) if there had been a fire, it might have been arson … ii) if the tenant was married to the landlord … III. USE YOUR TIME WISELY A. You Don’t Have Time to Say Every Possible Thing 1. Always more arguments than you could write in allotted time 2. You need to make choices about what to address B. Spend most time on hardest stuff: what lawyers will argue about 1. Easy to resolve issues don’t show off your abilities. 2. Focus on issues difficult to resolve from course materials a. shows that you see where case isn’t easy b. gives opportunity to use lots of tools C. Time-Saving Tips 1. using abbreviations, especially names of parties (Fred  F) 2. use one word cites to cases (Jones, not Jones v. Hambletonian) 3. use headings instead of topic sentences. Compare: a. “The first issue here is personal jurisdiction. The first question we need to ask is what contacts the defendant had with the jurisdiction.” b. Personal Jurisd.: D’s Contacts: 4. develop a concise writing style 5. prepare concise versions of frequently-used rules/policies 6. avoid long introductions and conclusions

IM37 IV. ORGANIZE YOUR ANSWER A. Before You Write: Make A Quick Outline 1. Take a little time to i.d. major issues you want to discuss 2. Decide the order you’ll do them in 3. Maybe estimate time you’ll spend on each 4. Maybe jot down a few things you’ll discuss for each 5. Do not spend 25 minutes outlining a 1 hour question. B. Possible Organizational Structures 1. Chronology a. Discuss first things that happened first b. Useful if several transactions in question c. Often true in Contracts & Property 2. Elements of Cause of Action a. Discuss each element in turn b. Spend more time on contested ones 3. Do issues with most to discuss first C. While You Are Writing 1. Don’t obsess about what to do first/next a. more important to keep writing than order of topics b. nobody expects you to find perfect structure on exam 2. Make your structure visible to the reader a. indicate changes in topic with headings b. start new paragraph with each change in focus. 3. Do one thing at a time a. once you list a rule or policy, apply it immediately b. finish one topic before moving on to the next c. if you think of a point on a different topic: i) jot it down on scrap paper ii) return to it when you’ve finished current topic

V. PROVIDE ANALYSIS OF THE ISSUES YOU SEE A. Integrate Law and Facts 1. danger signal: long stretches with either no rules or no facts 2. analysis of a topic requires both a. rule without facts doesn’t resolve problem b. facts need context of legal rules or not legal analysis

IM38 3. useful structure a. begin topic by stating applicable rule b. explain ways it might be applied to facts of problem c. useful transition between rule and facts: “Here, …” 4. if more than one possible rule: a. do analysis under first possibility b. do analysis under second possibility c. discuss arguments re which rule ought to apply B. Show All Work 1. don’t simply lay out rules and conclusions 2. lay out all steps in your reasoning 3. prove to me that you are reasoning and not guessing C. Argue (at least) Two Sides 1. No party ever is an easy winner in an exam question 2. Look hard for serious arguments for both sides 3. If you write a paragraph that only supports one party, force yourself to begin the next with “However, the other side will argue” 4. Some types of counter-arguments a. different inferences from facts given b. different application of same law to facts c. different possible rules d. different application of policy arguments e. countervailing policy arguments D. Use Policy/Theory Arguments 1. Purpose behind a rule can tell you how to interpret it 2. Purpose behind a rule can tell you if it applies at all 3. Policy/theory can help you choose between rules E. Work Through Issues That are Hard to Resolve from Materials 1. Explain why you think issue is hard to resolve. E.g., a. Facts fall between case X and case Y b. Rule points to P winning, but that seems bad result c. Rule developed in very different context 2. Lay out more than one possible approach to issue a. Don’t be afraid to be creative b. Identify strengths/weaknesses in possible approaches c. Use policy/theory to argue about best way to handle

IM39 VI. GETTING THE MOST OUT OF THE PRACTICE MIDTERM A. Preparing for the Exam 1. Try to Get a Good Grasp of Each Topic You Studied a. review notes b. reread parts you aren’t certain about c. outline some or all of course 2. Practice working through hypotheticals a. Sources i) old exam questions if available ii) hypotheticals from casebook/course materials iii) hypotheticals from class b. ways to work with: i) discuss with other students ii) make list of possible arguments iii) try to write out answer in exam format (best) 3. If open book, prepare aids to help you during exam a. think through what would help you most. Examples: b. checklists of topics to look for c. checklists of issues to discuss for particular topics d. charts that help you understand a topic e. lists of concisely worded versions of important rules B. Self-Evaluation (After Test, Before Receiving Feedback) 1. Think About How You Prepared For Test a. What activities proved helpful? b. What activities were unhelpful or not good use of time? c. What could you do differently? 2. Think About Experience of Sitting in Test (if open-book) a. Were the materials you had with you useful? b. What materials you didn’t have might have helped? 3. Consider if there are ways you should alter your daily class preparation in light of your experience on the midterm

C. Taking Advantage of Instructor Feedback 1. Read/listen carefully to any feedback you get 2. Ask questions about anything you are not sure of 3. On your own time, take exams from the other three courses

IM40 C. ASSIGNMENT II: COMMENTS FROM PRIOR YEARS

(1) Overview To help grade this assignment, I will prepare separate grading sheets for each section, samples of which are included at the end ofthis memo. This memo explains the categories used in the grading sheets. Please read through the comments and explanations carefully; you are responsible for any legal discussions in this memo. Because this memo refers to prior versions of the problem, some of the dates below will not be the same as in your version, but I think the context will make clear what the parallels are.

(2) Factual Summaries: Comments a. Understanding of Assigned Task: The stated purpose of the factual summary was to provide a partner familiar with adverse possession law with a description of the relevant facts so s/he could evaluate the strength of the case and make suggestions as to how to proceed. The first section of the grading sheet addresses tasks that you should have accomplished in order to meet this purpose. i) Presents Facts Neutrally: Remember that you are not trying to persuade anyone with this type of fact summary. Do not slant the facts in your favor. The partner cannot assess the case unless s/he knows exactly what evidence exists. Similarly, avoid characterizing the information as you report it, unless you are quoting from one of your sources. Words like “even”, “easily”, “in fact” and “furthermore” all suggest that you are making an argument rather than reporting. ii) Indicate Sources of Information: To allow the reader to assess the strength of the information in your account, you must indicate the sources of your information. You can do this in each paragraph, or with a general statement at the beginning followed by specific exceptions: “All information unless otherwise indicated, comes from two interviews Dennis O’Neal had with Boggs and Martinez.” Then in the body of the text: “Boggs arrived on the property in July, 1994. In his Answer, Boddicker claims that Boggs arrived no earlier than 1996.” iii) Integrate Facts into a Unified Narrative: Almost invariably when you summarize facts, you rely on material from several sources. Generally, the reader wants the whole story in the order it happened, not snippets organized by source of information. Here, you had three sources of information: two interviews and the opposing side’s legal submission. By incorporating information from all sources into a single chronological narrative, you provide the reader with a good sense of what happened, while highlighting factual disputes as they occur. You should take special care to include allegations from the other side that contradict what your client has told you. These allegations probably will be the focus of the dispute. iv) Accurately Conveys Information: Be precise. Boggs’s lawyers should explain that Boggs’s vacations generally lasted from July 1-September 1, rather than just stating he took vacations every summer. Boddicker’s lawyers need to make clear that while Mrs. Gordon’s and Boddicker’s versions of the confrontation in the street generally

IM41 agree, they remember Boggs saying different things. If you represent Boddicker, make sure you keep what happened on #47 separate from what happened on #49 and Mr. Gordon’s statements separate from Mrs. Gordon’s. If you represent Boggs, differentiate what Boggs did, what Martinez did, and what they did together. Similarly, read your materials carefully. Some Boddicker lawyers repeated Boddicker’s error and referred to Ms. Gray as “Green.” The interview with the Gordons and other circumstances strongly suggest that they must be the same person. Some Boggs lawyers referred to their clients as having been evicted “last month.” That was your boss’s comment when he wrote the memo last June. The eviction was four months in the past when you were writing. iv) Includes Most Important/Relevant Facts: Self-explanatory. v) Refrains from Legal Analysis: Only do the work you’ve been asked to do. Don’t spend the client’s money (or the firm’s) by doing tasks nobody wants done yet. Here, you were only asked to lay out the facts. It is very early in the case to really do much legal analysis; you don’t know all the facts yet. b. Inclusion of Helpful Elements: All of these make the reader’s job easier and make the case easier to understand. i) Introductions of Case, Characters, and Incidents: Introduce the summary with a sentence or paragraph that reminds the reader who the parties are and what is at issue. Introduce your characters as they appear: “Mrs. Gordon, who lives across the street from No. 47, ....” Be careful not to assume that your reader knows what you are talking about. Passing references to “the eviction” or “the business” will confuse the reader if you haven’t previously described them. ii) Procedural Posture/Other Side’s Claims: Include a description of the procedural posture of the case either at the beginning or end. It doesn’t need to be anything more than “Boggs filed a summons and complaint alleging that he adversely possessed #47 by July 2001 and that Boddicker used unnecessary force in evicting him. We filed an answer on Boddicker’s behalf, denying Boggs’s factual allegations and stating that he had not met the continuity, exclusivity, or open and notorious elements of adverse possession.” You do need to make sure you understand that your firm drafted the pleadings for your client based on the interviews you have read. As noted above, the partner needs to know the specific factual allegations the other side has made to understand what is at issue in the case. iii) Indications of Passage of Time: Because this case turns on people doing things over a period of time, you need to make clear when activities continue. Thus, “Boggs cleared most of the property and planted beans, corn and tomatoes. He continued to grow the garden every year until he was evicted this spring.” Or, “Since the summer of 1998, Boddicker has stayed at #49 about one night a month.” iv) Evidence/Witnesses of Important Facts: Because the purpose of the memo is to help a partner make suggestions about the way the lawsuit will be conducted, you should provide information about the existence of evidence that supports your clients’ claims. Thus, you should note the receipts that Boggs claims may be left in the cottage and the statement the realtor made to Boddicker that nobody had used #47 in the two weeks the

IM42 realtor had shown it. In addition, you should make reference to the existence of witnesses and any information you have about their credibility or reliability. The success of your client’s case will depend on what you can prove reliably. c. Presentation: These categories should be self-explanatory. A point on organization: organizing by elements can get you into trouble. It is possible to do it well, but the most important thing here is that the reader understand what happened and when. Listing facts by element can interfere with that sense of how the story unfolded.

(3) List of Issues: Comments a. Hits Important Issues: Both sides need to get a complete sense of the events on #47 over a ten-year period, and so need the same information from the witness. In particular, you should see if she can confirm or deny any point made by other witnesses or by the opposition in their papers. The topics listed are my sense of the most important major categories you’d want to cover. You should assume that the witness might have some information about all of them. For all any of you know, she may have had an affair with Finley or may have been sneaking onto #49 herself. Most of the categories are pretty obvious. Categories that often were omitted or slighted: i) General Info re Witness: Find out the witness’s background, how well she knows about the neighborhood, her relationship to the parties, her view of their credibility, etc. This type of information can’t hurt, and may strengthen your hand by helping you anticipate reactions by witnesses and actions by the other side. You want to know as much as you can, especially if you have to decide whether to try the case. ii) Prior Owners/ Info on Other Witnesses: Try to determine what other sources of information might be available. Who else knows about the issues in the case? Who has opinions about the case, etc. b. Confirms Client Story: When interviewing a witness, remember to try to confirm your client’s story as well as to poke holes in the opposition’s. Your client’s story might be inaccurate for several reasons: the client could be mistaken, could have forgotten things, could be leaving out useful information, or could simply be lying. Even if your client’s story is accurate, a jury might not find your client credible. Confirmation from a believable third party is always helpful. Many of you, particularly on Boddicker’s side, never would have found out about information harmful to your case because you apparently trusted your client’s version of events. c. Avoids Legal Terms: Try to use words the witness will understand. Many of you listed questions about “improvements” or “open and notorious.” You may confuse your witness by using legal terminology; to make sure you don’t, write things down the way you would explain them to a lay person. Ask about “any repairs or construction” instead of “improvements.” Similarly, asking about “cultivation” may not get the answer you want; it may make the witness think of big commercial farms. Instead, whether Boggs and Martinez were growing anything on the property.

IM43 d. Level of Specificity: The purposes of drawing up a list of issues are to provide your supervising attorney with some idea of what you intend to do so s/he can make suggestions, and to provide you with an outline for your own use during the interview. The most difficult problem for you to resolve is trying to determine the appropriate level of generality or specificity in your questions or issues. General questions provide witnesses with an opportunity to respond without being fettered by the question. The response to “What happened on the night of April 17?” may be “Damned if I know!” The response to “Have you ever been at the Montagues’ house?” may be “Oh, yeah, there was that party in the middle of April.” You generally should ask questions that include dates only as follow-ups. Similarly, you should ask first about “any confrontations between Boggs and Boddicker” before referring to “the confrontation in the street in June, 2001.” On the other hand, if your questions are too general, or you don’t follow up with specifics, you may miss information that is important. You need to be ready to go on if your witness simply responds, “yes” to a general question like “Have you ever seen Boddicker do anything on #47?.” Moreover, if you don’t list specific things you want to check on (e.g., points made by other witnesses), you may forget to raise them. One good way to deal with this conflict is to list general issues/questions, followed by a list of specific topics on which you hope to elicit information. I refer to this as “funneling” in my comments. Here is an example:

5. Knowledge of Boggs’s use of property Residence? Starting when? Grow crops? What? How much? Starting when? Every year? Building/repairs? What? when? Business? Starting When? Other?

Note several things about this example. First, I begin the section with a topic heading. The heading is helpful here both for you in the interview and for your partner reviewing the list. It enables both of you to quickly determine whether you’ve hit all the major points. During the interview, you can use these headings as transitions: “Now, Ms. Gray, let’s turn to what Mr. Boggs was doing on the property.” Second, I am careful to ask “when?” all the time. An adverse possession case turns on when people did things and whether they continued to do them. You need to nail this information down as best you can in the interview. Listing “when?” as a follow- up question will remind you to do this. Third, I asked about other things I hadn’t listed. Perhaps the most important questions you ask in interviews begin, “Is there anything else ...?” The witness may know things you hadn’t thought of or that your client has forgotten or never knew about. Try to end each section of the interview with an anything else question. One that is particularly important is “Is there anyone else who you think may have information about the matters we’ve been discussing?”

IM44 e. Sense of Legal Rules: Several of you made mistakes regarding what information goes with what legal element. You might review the adverse possession materials to remind yourselves of the focus of each element. The especially problematic element is “open and notorious.” Many of you wanted to make a big deal about whether one could see Boggs’s activities from the street. This is legally irrelevant. The question is what you can see standing on the surface of the property. Similarly, the element “exclusive” focuses on what Boddicker (or others) did on #47, not on what Boggs and Martinez did. The element “actual” encompasses residence and business operations, not just cultivation, improvements, enclosure. f. General Points About Interviewing: Remember that you are doing an informal interview to gather information. There is no record but whatever notes you take. Hostile questions appropriate for cross-examination (“Isn’t it true that …” or “Were you aware that …” will annoy your witness and limit the information you receive. You are not bound by the rules of evidence in an interview. In particular, you can ask about things the witness has heard from others. Hearsay evidence is useful in the investigation of a case. Although generally your witness can’t testify in court about things other people told her, you can use hearsay information to point you to witnesses and documentary evidence that you can use in court. Thus, you can ask if she’s heard anything about, for example, why Boggs and Martinez left the property. On the other hand, be careful about asking your witness to get into someone else’s mind too much. Ms. Gray probably doesn’t have a good answer to “What was Boggs’s intent when he first started using #47?” You are better off putting the question in terms of things she is likely to know: “Did Mr. Boggs ever say anything to you about whether he rented or owned the property?”

(4) Writing & Presentation Issues  Breaking up your work with headings and relatively short paragraphs makes the reader’s job easier.  Avoid sexist assumptions and appellations. Ms. Martinez is “Mrs. Boggs” in many summaries, even though in the legal papers she is referred to as Manuela Martinez. Some of you referred to her by her first name and Boggs by his last. She also played a much smaller role in the summaries (particularly on the Boggs side) than she did in the interviews. For example, the interview does not say whether he, she or they built the shed. Many summaries say he built it. She is also a furniture-maker; you can’t assume he did all the building.  Be careful about possessives, plurals and words ending in “s”. Only use apostrophes for possessives, not for plurals. Thus, 1 Bogg, 2 Boggs; 1 Boggs, 2 Boggses (like keeping up with the Joneses). The possessive for one Boggs can be done either as Boggs’ or as Boggs’s; I think the latter is clearer. The possessive plural for the couple only can be Boggses’. Similarly, if there are two plaintiffs, their counsel are plaintiffs’ lawyers. On the other hand, plural non-possessive words never use apostrophes. I ran out of patience with deleting the apostrophes in “the Gordon’s” but even when I missed them, they still are wrong.

IM45  Don’t use “said” and “such” as adjectives in your writing. Such usages make said writing seem stilted and awkward. “This,” “that” “those” and especially “the” are almost always easier on the reader.

FACT SUMMARY: GRADING SHEET

I. Understanding of Assigned Task

______Presents facts neutrally.

______Indicates sources of information.

______Integrates facts from different sources into unified narrative.

______Accurately conveys information.

______Includes most important/relevant facts

______Refrains from legal analysis.

II. Inclusion of Helpful Elements

______Brief introduction.

______Introductions to individual characters & events.

______Procedural posture of case.

______Claims from other side’s pleadings.

______Indications of passage of time.

______Evidence/witnesses of important facts.

III. Presentation

______Concise.

______No grammatical/spelling errors

______Organized.

______Readable.

______Active voice.

IV. Other?

IM46 ISSUES LIST: GRADING SHEET

1. HITS IMPORTANT TOPICS:

a. Use of land by Boggs and Martinez

b. Use & Monitoring of land by Boddicker

c. Prior owners/residents of Boggs/Boddicker properties

d. Absences by Boggs/Martinez

e. Interactions between Boggs & Boddicker

f. Circumstances surrounding Boggs/Martinez Leaving

g. General Info re Witness

h. Info on Other Witnesses

2. CONFIRMS CLIENT STORY:

3. AVOIDS LEGAL TERMS:

4. LEVEL OF SPECIFICITY:

a. Begins topics with general Qs

b. Follows up with specific Qs

c. Ties down “when?”:

d. Checks for “other?”:

5. SENSE OF LEGAL RULES:

6. ORGANIZATION:

7. SPELLING/GRAMMAR:

8. OTHER: