American Legal English

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American Legal English
Using Language in Legal Contexts
Debra S. Lee, J.D.
University of Augsburg
Augsburg, Germany
Charles Hall
The University of Memphis
IYkmphis, Tennessee
Marsha flurley, J.D.
Ko.; C'niversity
Istanbul, Turkey
MICHIGAN SERIES IN ENGLISH FOR
ACADEMIC & PROFESSIONAL PURPOSES
A//II Arbor
THE LL'IIVERSITY OF NllGfIGrL'I PRLSS
Copyright to by the University ofMichlgJn 1999
All rights reserved
ISBN 0-472-08586-7
Published in the Uniled StJleS of Americ:! by
The University of MichigJn Press
Manufaclured in the United Slates of Ameri,:a
2006 2005 2003 6 5 -1 3
No part of Ihis publication mar be reprodu(cd.
stored in a retrieval system. or transmitted in
any form or by any means. deCironic,
mechanical, or otherwise. without the wriuen
permission of me publisher.
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Acknowledgments
We are grateful for the many students we have taught on three continents; with-
out them and the feedback we received in our cJ.\sses, this book would have been
impossible. Specidl thanks go to the students in legal programs fun by Intcma-
tionill HOllse in Helsinki, finland, and the students in the Law and Language
Program at the University of Augsburg in Augsburg, Germany.
In preparation of the final product, we received a tremendous amount of help
[rom students in the editing phase of the writing process. Our special thanks to
the following: Tracy D. Snyder. Tane! Duffy. Ton Davis. Mike Bodary. and Harold
Terrell from the ESL Program at the University of Memphis; It'ns Simone
Kraus, and Felix Mehler from the Law and Language Program at the UniversiLy of
Augsburg; and Jenn-Mllfc Colombe! and Adolfo Err:lzuriz from the International
MBA progrilm at the University of Memphis. Lars Barteit, a University of Augs-
burg law student, deserves special thanks for his willingness to revise his paper on
defamation for us to use for a listening exercise.
Throughout the writing process, many of our students from the Czech
public have reviewed portions of the book and provided critical We
would like to th<lnk them for their assistance: Jan Buben. liri eel', Simon Divis.
BohOr.Iil I-Ll'Icl, and Aid Janka.
We would also like to thank ali tho,:;!.' people who ilssisted in the cre;ltion of
the lislening tapes and whose voices you hear when you use them: lilfS Barteit.
Robert Pfaudler, Christoph Karl, Erwin Krapf, Christopher Lt'c. Uta Felix
Mehler, Sabine Neu, Angclik<.l Ruopp, and Jens Wuttke.
We also want to thank Mark Alpuente for his work with us at the bt'ginning of
the process as we were refining our concept of the book, i.1S well as for his editorial
assistance at the end.
Tha.nks to our colleagues for their reviews and critical feedback: Dawn Arrol.
City Col1t'ge of San Francisco; Teresa Daile and Emily Thrush of the- University of
Memphis; and En Valt'ntova and Janet Rees of the University of West Bohemi.l.
Debra Lee would like to thank Patrick Fort, the French legal lecturer a.t tht'
University of Augsburg, for his willingness to listen to her endlessly discuss the
book and for his ideJs JOci support, and also her hU.'.ib'lOd. Dolph Belton. for his
piltience during the writing process. Marsha Hurley would like to thank Tom
Miller of the USIA, for his encouragemC'nt on the project. Charles Hall is grateful
to the Salzburg SC'minar, the USIA. and the Fulbright Program for giving him tht'
vi . Acknowledgme
opportunities to put some of the material into practice J[ seminars and <lssign-
ments throughout the world.
We would all like to thank Kelly Sippell, our editor, for her patience and
prompt replies to our e-mail correspondence.
Source acknowledgments and thanks:
Black's [mv Dictionary, 5th ed. (\-Vest Publishing Company).
Rt:stltelllcllt oIlhe Law (The American Law Institute).
American Jurisprudence, 2d. (The La"''Yer's Co-Operative Publishing Company).
iy/odd Pellal Code (The American Law (nstitute).
\-Yest Group for headnote materials in Chapter Two.
Learning Company for the clip art. AJi clip art 1996 the Learning Company, (nc.,
ilnd its licensors.
Contents
To the Student XIII
To the Teacher xv
Introduction
Chapter One: Origins of the Amerkan legal System 3
Level I: Discovering Connections 3
Activity 3
Levell!: Legally Speaking 4
Introductions 4
Conversation Model q
Applying Your Knowledge <1
Level II!: Legal Thumbnail 5
Founding of the U.S. Legal System 5
The Common L;JW System 10
Precedent and Sttlrc Decisis 12
Holding v. Dicta ].I
CbssifiGltion of Law in the United Staks 17
Level IV: Language Focus 14
Polite Commands 24-
Silence 26
Level V: Addilional Exercises 27
Case Comparisons: "Yriting 27
Collaboration: Pair Work 28
Oral Argument: Role Play 31
Reading for Dd<.lils: True or False 31
Simplification ;Jnd InterpretJtion: Paraphrasing ~
Legal Writing 32
Chapter Two: Leg.11 Authorities and Reasoning 33
Activi[y I 33
Activity 2 34
Activity J 34
viii . Contents
Level II: Legal Listening and Writing 35
Essenlial Terms 35
Putting the Terms to Usc 35
Level Ill: Legal Thumbnail 37
Understanding Legal Citations 37
Locating the InformJtion 39
Underst<lnding the Court System 39
Reading the Case 43
Case Briefings ":18
Shepardizing 52
LegiJl Reasoning 53
LevellY: Cultural Focus 58
High-Context <lnd Low-Context Cultures 58
Level V: Additional Exercise 60
Case Briefing: Reading and Writing 60
Chapter Three: Criminal law 64
Activity 64
Level II: LegJI Terms 65
ESSCnliJI Terms 65
PUlling the Tams to Use 66
Level III: Legal Thumbnail 66
"Theories of Punishment '-c
Cruel and Urmsual Punishment 67
Cbssification of Offenses 70
Cnminal 72
Specific Crimes 75
Defenses to Crimes 86
Crimin;J1 Law and Moral Values 91l
Level IV: Cultural rccus 90
The Cultural Defense 90
level V: Additional Exercises 93
Simplification and Interpretation: 'Writing 93
_ Research and Explanation: Brainstorming and Role Play
Chapter Four: Civil Procedure 95
Levell: Di.swvering Connections 95
Activity 95
93
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Contents . ix
Level II: Legal Listening 95
Essential Terms 95
Putting the Terms to Use 96
Jurisdiction 96
Parties and Ple<ldings 110
Pleadings 112
Diswvery 1 16
The Trial III
Reported Speech 120
Changing from Direct to Reported Speech 120
Level V: Addilional Exercise 125
Progression of a Lawsuit 125
ChJpter Five: Torts 127
Activity 127
Level II: LegJI Discussion 128
Esst"lltiai 128
Level III: Legal Thumbnail 130
IntentionJI Torts 130
133
Strict Liability 138
DefamJtion 139
Inldlcctll.d Properly 1-l0
level IV: Lmguage Focus 149
Building Connections between Clauses 1--!:9
Level V: Additional Exercise 164
else Synthesis: for Det.lils 164
Appellate Argument: Oral CommunicHion 165
Chapter Six: Products Liability 167
Activity 167
level II: legal Listening 16B
Essential Terms 16S
Putting the Terms to Use 16S
x - Contents
LeveillI: Legal Thumbnail 168
Building a Case 169
Damages 177
Litigation Costs 178
Gerunds, Infinitives, and 7111ltCIauses 180
Level V: Additional Exercises 191
Risk Management: Exploring the Law 191
Law in Action: vVriting to Clients 191
Chapter Seven: Corporations 196
Activity 196
Level II: Legal Speaking and Listening 196
Conversations in the Corporate World 196
The Entity Theory 198
Formation of a Corporation 200
Contents of the Articles of Incorporation 200
Changes in the Corporate Structure 207
Takeovers 209
Termination of Corp or arc Existence 210
Problems That May Arise 2! I
Modals and Semimodals 216
Case An<llysis 220
Chapter Eight: Contracts 223
Level I: Discovering Connections
Activity 1 223
Activity 2 223
213 Level II: Legal Listening
Essential Terms 223
Putting the Terms to Use
LeveillI: Leg,1 Thumbnail
vVhat (.s J Contr;]ct?
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How Is a Contract Formed? 218
vVhat'lf a Contract Is Breached? 2-1:0
vVhat Should Be Included in a ContrJct? 2--l2
Contents ' xj
Conditionals 245
Applying Content Knowledge 250
Legal Drafting 252
Chapter Nine: The Mock Trial 255
Activity 255
Level II: Legal Listening 256
Essential Terms 256
LeveillI: The Case 257
Obtaining Information 258
Level V: Case Preparation 261
Teams 261
Case Theory 262
Discovery 162
The Trial 263
Index 267
Table of Cases 275
To the Student
Ama;Cllll Legal English: Usjllg Lllnguage in Legal Cvntex(s. What does that meJn?
This book is designed to provide you with an introduction to basic leg.ll informJ-
tion anu to improve your ability to understand and communic.lte with your legal
counterparts around the world. This is not a comprehensive introduction to the
law of the United States; that would be impossible in a book this size. However,:"I$
you go through the materials you will discover that the basic legal information
given to you enhances YOUT ability to use legal language.
Ellglish projicicllcy IIceded: In order [Q gain the most benefit from this book,
your gent'rai English skills should be fairly well developed. In instructor terms, we
would S,lY you should be an intermediate to <,dvanced student of English, As an
interrnediJte studenl you will have to work a little harder to understand all the
material that is presented. \Ve have, however. not set you ;]11 impossible task.
Topics: We hJ.ve chosen the topics in the book for three reasons: (1) to intro-
duce you to lhL' process of lcgal reasoning in the American legal system; (2) to
give <1 gencral introduction into American law; and (3) for gener,ll int\?rest or
usefulness in the \VorkpL1cL'. Each chJptt':r addresses a particular J[e,l of thl' I'lw.
\Vithin t\l(h chapter Jrc exercises designed to make you think ,lbout the leg;]1
topic in seneral, followed by il more det:1iled explanation of the law, incorporating
materials from ,Kiual (ases. treatises. and stJtutes.
Organization: The five lcvels within each chapter provide a smooth trJnsition
Crom .... impk COJl(Cpt$ to rlllne compkx ones. Levell, Disco....-ering Connectiolls,
servcs ,1S a warnl-up, building on what you JlrcJdy know about law in your coun-
try ami giving you an overall sense of what it is like in United St.Hl'S. Level II
is a slightly more difficult level that not only incorporJtes vocabulary
alrcady possess but also adds legal yocJbubry and then gives you an opporlunity
to ;lpply that voclbubry through a variety of exercises thJt incorporate speaking,
writing .. 1Od listening ;lS YOll would expect to encounter it in context. Level
III provides.1 simplified sUfilmary of the taw, which is the subjct;:t or the
,1Ild is slightly more aJv;tnced_ Level IV offers either a language focus [0 iil1pro\re
language skills that you will need in the legal worid or.1 cultural focus to cnh'1ncc
your understJnding of communication and law. Finally, Level V includes JJJi-
tionall',xercises that MC often slightly more complex but that can provide JdciJ-
opportunities to pull together everything you\'e le.Hoed in the chJpter.
The lhellf)' bellind this book is th,lt you will Jtre.1dy have an idea of how the
xiv To the St!,J"nt
law works in your own country; what we have is provide a simplifiC:Hion of
some of American law <lnd the vocabul<lfY to discuss them along with op-
portun,ltles ,for you to employ th<lt vocabulary. Although you will learn many new
words III this text, we have chosen to boldface only legal terminology, You should
pay careful attention to all boldfaced terms Jnd their definitions that we have
!n square brackets. Though the legal exercises arc less complicatcd than a
attorney might encounter, they nonetheless contain the same types of
skills that the attorney must put to work for his or her
,lbout an area such as iJw is h,lrd work; the issues ,He complietted,
the eVidence not always clear Cllt, and the statutes frequently ambiguous, It is our
hope th<lt after h.wing completed your study of this book YOll wiIl not only find
that Americ<ln law is J bit more comprehensible to you but also thilt 'VOLI have im-
proved your understanding of how to decipher leg<ll English and make that lan-
guage work for YOll and hopefully, in the future, for your clients and colleagues.
To the Teacher
This text represents a collaborative effort to put together ,10 introduction to the
basic concepts ofl.lw in the U.S. legal system, while at thl' same time' providing
communicHive activities that allow students to put that newly acquired knowl-
edge to use. Law is a profession that requires critical reading skills, the ability to
write well, the ability to synthesize sources resulting from research, ,md the ability
to speak dea_e1y and concisely, In this respect, a legal English course is no different
from any upper-intermediate to advanced English course thJt requires those same
skills.
The text is not intended as a comprehensive introduction to U.S. law because
Ihat would be an impossible task to ask of one book. It docs, however, aadress
major areas of the law, giving students real cases and statutes to work with so that
they can become familiar with both legal syntax and legal vocabulary. We have
tried to choose topics and cases that will be of interest to the students ,md be 0 f
use once they enter the workplace.
You do not have to be an attorney to use this book, even though ..H first glance
you might think so. If YOli have been assigned a legal English course, you need to
think of ii <1S you would any other ESP (English for Specific Purposes) course.
,'\pproach the course with;.\O interest in the subject matter ;mJ use your stuJents
as resources. Your approach to the class may be different from thilt taken by an
attorney/ESP instfUt:tor, but the tinal goal is the same. Your students should be
able to communicate Jbout legal matters in English by the lime they finish with
Ihe book.
Although the book is prim;lrily intended for upper-intermeJiLlte to advanccd
students of English, with some adaptJtion a teacher of intermediate-level students
should be able to make use of it. A good basic knowledge of general English on
the part of the students is assumed, but there is no assumption that the students
have any commJnd of Icg;ll terminology or even a basic understanding of the U.S.
legal system. A knowledge of the bi.lsics of the legal system in their own country is
extremely helpful, for then the student has J schema for somc of the concepts that
this book introduces.
Organization
The ch,lpters ,He ordered so that students are given import,tnt basic information
about the U.S.leg"ll systl'1l1 first, then move into specific areas of the bw (criminal
xvi . To the Tel.
law, civil procedure, torts, etc). Edch chdpter, though they can be reordered if the
instructor so desires, builds on information given in previous chapters, moving in
the end to a culmination of iJll the skills in ChiJpter Nine, "The Mock Trial." Chap-
ter Nine requires students to use all the skills that they have learned in the text,
from oral communication, both spoken and written, to critical reading and re-
search skills, by conducting a mock trial involving an automobile accident.
Throughout the book, they have been given insights into the operation of a trial
in the United States, and in the end, they are given the opportunity to put what
they have learned into acrion.
Each chapter has five levels, which are organized as follows.
I. Discovering Connections: A schema activator-an activity designed to stim-
ulate the students' thoughts about the chapter content.
II. Legally Speaking, Legal Discussion, Legal Terms, Legal listening, Legal Lis-
tening and Writing, or legal Speaking and Listening: A practical application
of legal language-designed to pur into practice some of the language used in
a particular chapter.
III. Legal Thumbnail: This section of each chapter is designed to provide some
basic legal information, since this is, after all, a content-specific text. The in-
formation, however, is not intended to represent anything more than general
knowledge, for as is pointed out repeatedly in the text, a statute mayor may
not exist in a jurisdiction, and if the statute doc:s exist, it is most probably
subject to different interpretations within those differenl jurisdictions. The
Legal Thumbnail also presents legal vocabulary_ Law h,ls its own Lmguage,
and it is vital that one understands lhe precise meaning of J legal since
decisions in the United States may hinge on just such a point
Central to the Legal Thumbnails are the Flash Reviews; these short
quizzes function in m,lnY different W;lYS. Often they m,lY serve as VOGlbul.lfY
reinforcemt>nt exercises if Lhe preceding passage is pafticularly dense with le-
gal terms. Sometimes they dre presented in order to gauge the student's un-
derstanding of how legal reasoning is applied in a particular set of facls. Thev
may also be used to focus the student's attention on facts that would be of '
crucial importance in arriving at a legal decision. No specific directions are
given for any of the Flash Reviews so thJt your instructor IllJY choose to have
you provide the answers individually or in J group eilher in writing or orally.
If you happen to be an attorney, you will notice what might appear to be
glaring holes in"the law; but the purposes of the book are to provide a basic
legal overview for students (Jnd to exercise language use. This is not intended
to simulate a legal nutshell [abbreviated overview of the law written bv
law professors for American law studentsl, but it is intended to provide a '
framework for practicing lise of kgallanguage.

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IV.
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To the Teacher . xvii
Language Foclls Of Cultural Focus: Chapters Two and Three have a cultural
foclIs-high-context and low-context communication and cullural defenses.
Both topics are of current interest and have proven to be extremely interest-
ing to students. In Chapter One, we talk about polite forms and silence as
communication. In the remaining chapters we have a grammar focus based
on areas that we have found to be a problem when teaching law and language
courses.
Additional Exercises: Depending lipan the difficulty of the chapter, various
exercises are included for the instructor to use if necessary_ The exercises arc
designed as a review of the information covered in the preceding levels
(I-IV). Not all of the exercises are advanced; we included some that easier
for intermediate-level students. You will have to determine which exercises
will best benefit your students.
Listening tapes are availClble to use with the text. You will notice that the rapes
include both native and nonnative speakers of English. This was done purposely
because in the kgal world much of the business is conducted in English among
speakers whose first language is not English.
Finally, this book is meant to help you engage students in collaborative aClivi-
ties JOG create ,111 active classroom environment. Students actively engaged in Iht::
process ofle;uning are students who succeed in the classroom. "Ve wish you luck
and hope that enjoy using our work.
Introduction
Are we writing a law book with an emphasis on language or a Jangu<lge book with
an emphasis on law? That b.tsic question underlay the tension essential to the
compromises we all made to CTeate this work. As in all compromises, no one is
completely happy with the outcome; each of us would like to have seen certain
sections amplified. clarified. or even eliminated. American Legal English: Using
Language in Legal Concepts is in all meanings of the word a collaboration.
We edited, augmented. and rewrote the chapters so extensively for both style
and substance that each chapter is the joint product of all three authors. It is only
publishing convention that requires that one name come first and one last. Since
the concept and initial organization were Debra Lee's, it is only fitting that her
name appear first. Charles Hall and Marsha Hurley are then listed alphabetically.
However, in the end it was our willingness to discuss and help educate each
other that demonstf;]ted that central purpose of both law and language Archibald
Macleish called "makfing] sense of the confusion we call human life."
"Far too little language for those desiring langu;]ge ,lnd far too littk law for
those seeking law" will be the basic criticism of this work. This book written by
two ;]ttorneys/EFL instructors and a linguist reflects the need for Americm mate-
rials targeted at nonnative English speJkers, law students, and legal practitioners,
both in and outside the United States. The materials are designed to be usable by
instructors who may have legal or ESL training or both.
The need for this book arose when Debra Lee wns kaching lcg:1i English in
Finland and could not find any ESP (English for Specific Purposes) materials lor
American law. Upon her return to the United States, she asked the other two fo
join her in creating those materials.
The careful reader will note a lack of consistency in the handling of sexism
in lilOguagc. Although most statutes and decisions in the United States still use
the sexist forms, we have attempted to make our own work as gender neutral ilS
possible.
An attorney will note the oversimplificatioll of the law. In order to create a
tatbook combining elements of law <lnd language, we omitted m<ltcriJI that an
attorney might consider essentiJI to J complete understanding of the law in J. par-
ticular area. For instance, we don't discuss the parole e v i d ~ n e rule in contr,lCts or
vicariolls liability in torts. But, on the other hand, we use l1l;Jtcci.li.s from Jctuill
r " ... ,.L,.," ... ..:'JUI ':liYII';,{/
cases and statutes to introduce the studenfs tI ., II Th .
.. anguage. en, we provide
role plays so students can practice using the language.
students work through the exercises, you might find that their legal
.IS not what you would expect of an American law student. However, we
did m.tend that students would produce that type of <lnalysis. What we do
expect tor them to use the oversimplification of the law plus the language pre-
In each chapter to communicate on legal topics. In the end, that is what we
deCided was the most import t thO . ..
an mg. commuOICallve use of legal language.
Chapter One
Origins of the American Legal System
The history and development of a nation innuence the shJpe, focus, Jod scope of
its legJJ system. For eXJmpJe, the United States, Canada, and Gre'll Britain once
shared the same system, but since the American War of Independence that com-
mon system has split into three distinct systems.
The United States has one relatively brief document that is known JS the
Constitution; all other !;l\VS in the United
States, whether state or federal, must be i-"
consistent with it. Because of its importance, -.... \"
the Constitution is very difficult to <lmend \
[change]. In Canada, however, there are \
documents that together form tlwt country's con-
stitution. The United Kingdom, on the other hand,
has no such special documents, and PJrliament may \
change the law at any time. L-________ -'
Activity
A. Divide into groups of three. As a group, choose the five most significlI1t
events, documents. or even people that have shaped the growth of your
system. Your answers might include items such as
the Napoleonic Code
your constitution
joining the Europe;)n Union
English common law
World War I or II
becoming an independent nation
the Koran
Roman law
B. As a group, prescnt your choices to the rest of the class. Be prep;Hcd to defend
your choices.
3
4 . Amedcan Leg(
--------
Conversation Model
Level II: Legally Speaking
Introductions
Hi Listen to the conversation twice. The first time you should just listen. The second
I U f time you should attempt to answer the following questions on a separate sheet of
paper as the conversation is read to you.
1. Is this a classroom presentation?
2. Who tells everyone to sit down?
3. Is this the first time this group has met?
4. "Vhy doesn't the moderator introduce the
5. What does Professor Arm teach?
6. Vv'hat is Mr. Simone's problem?
7. How does he Correct the problem?
8. Why is Mr. Simone talking about the origins of American
9. Is Mr, Simone an attorney?
10. What kind of American judges is Mr. Trommel writing
11. How is Mr. Trammel financing his work on his dissertation?
Applying Your Knowledge
In groups of two, fiil in the ptlfentheses ( ) with appropriate items to creatl' your
Own convers;]tion rh;]t you will then present to thl' class. You may change any-
thing, be anyone, or have any title you want. \Ve have given you a few suggestions
.md done the first line for you, but you m;Jy change that.
Speaker 1: (Good evening). My name is (Thomas Wang). I am (president) of
(I ). \Vekome to our (2 ) meeting.
Our (3 ), (4 ), will introduce
(5 ) speaker.
Speaker 2: Thank you, (6
Our speaker for (8
is currently (10
( [2
). It's (7
) meeting. (9
) of( [[
) and was abo (13
) to introduce
) at
)
(14
(16
). ( [5
).
) me in welcoming
Speaker J: Thank you, (17 ), for that (18
welcome. I'm pleased to ( 19 ) have the
(20 ) to (2[ ) this group.
Origins of the American Legal System . 5
Suggestions:
1. the Law Society the International Club the Defenders of Freedom
2. annual monthly weekly
3. vice president founder chair
4. (choose any name) John Drum Dahlia Tran
5. tonight's this afternoon's our first
6. Tom Mr. Wang Mr. President.
7. a pleasure an honor a privilege
B. tonight's this afternoon's this morning's
9. He She Our speaker
10. professor president director
II. law marketing personnel
12. DuVal Corporation the University of Shelby the Treasury Department
13. UN representative founder on the Board of Trustees
14. of mathematics of Dragonfly Software for ecological concerns
15. Join Help
16. him our distinguished guest Dr. Tao
17. Fred Madame Vice President (you could leave it blank)
lB. kind warm generous
19. once agam (you could leave it blank)
20. privilege honor chance
21. speak to address talk to
Level III: Legal Thumbnail
Founding of the U.S. Legal System
To begin to understJnd U.S. law, you must look at the founding of the United .
Statl's .1OJ the uniting of lhe individual colonies into <l single The
GII1 WJr of Independence (1776-83) brought the original thirteen colonies
together to fight a common foe, the British. The colonies. declaring themselves
independent states, originally agreed to a very weak confederation in order to
defeat their common enemy. This first federal constitution of the United States,
"The Articles of Confederation," was written in 1778 and was linally ratified [ap-
orovedJ by the states in 1781.
, In this first form of American government, there were neither federal courts
nor J president and the single chamber of Congress had no way to enforce its
LIWS. The individual states could and did ignore federal laws with impunity
[without fea.r of consequences]. It quickly beca.me clear the United St=:ttes
would not remain united long unless the role of the feder;]1 government was
strengthened.
.. .. " Lr;!;J<J( r.ngl1Sn

In [787, a constitutional convention was Ivened to form a stronger, man:
durabk union. The primary COncern of the participants, all European-American
men, was the formation of a strollg union without the disappearance of the states
as individual powers in the system. The inevitable compromise among the dele-
gates led them away from the earlier loose confederation of sovereign states to-
ward a stronger central government. In the end this movement resulted in a
central government, still protective of states' rights, but with broader federal
over individuals.
powers, however, didn't mean unlimited powers. The "Founding
Fathers" (remember, women were not allowed to Vote in the United States until
ratitication of the Nineteenth Amendment [0 the Constitution in 1920) designed
the federal government with limited powers, which included the right to impose
certain federal taxes, to wage war jn the name of all the states, to regulate inter-
state and foreign commerce, and to make treaties with foreign governments or
nations (such as the Native Americans or "Indians," <IS they were called). The
remaining powers belonged to the states.
This new constitution added two branches to the government: a fed-
eml system of courts with the Supreme Court as irs head and [he executive
branch under the control of the newly created office of the president. Addition.
ally, to help solve a major problem of representation between the large and [he
small states, the legislative branch was changed to its present bicameral [two
chamber J form-the House of Representatives and the Senate, known .c?.'lectively
as Congress.
. The Constitution established a series of checks and balances so that each of
these three tederal could maintain a watch on the other two. These
checks <lnd bah]flces ensure [hat no one branch of the federal government be-
COmes too powerful. Additionally, the states, ever mindful of retaining their
pOwers, also provide an external check to ensure that the federal government as
a whole doesn't become too powerful.
Rl'ad the following questions and write down your initial responses to them. As a
class discuss the answers.
I. How might North Arnerie] be different if the United States had retained the
Articles of Confederation?
1 \Vhydo you think [here was originalJy no executive officer [president] in the
United States? Is it possible [0 have a nation or state without an executive offi-
cer? If so, give an example or two.
J. \Vhat kinds of problems would ;.uise if there were no federal COurts and all dis-
putes between the sfates had to be decided by the Congress?
, f' d 't seems odd that the Constitution did not explic- pOint 0 view to ay, I h
our f judicial review [the ability of a court to deCide on t e
itly give t,he fOI . I fo J to the newly created federal judiciary. One of
constitutlonal.lty 0 edg.ls a n e however not long after the adoption of the
the first steps III that Ireetlon cam, ,
Constitution. . hid k [changes the law extraordinarily significant] h d .. n In t e an mar , .
In IS u:el;':ladison, 5 U,S. (J Craneh) 137,2 LEd, 60 (l803), the farnam
case Marb, Y , f h 5 e Court) John Marshall established that federal
Ch' f}ustIec[head ate uprem , h
Ie , b' t to j'ud'le'lal review in the federal courts. In thiS case, t e 1 . I tlOn WJS su }ec . f
egIs :me COllft refused to give effect to [authorize the use of] a section 0-' d
Supr hief Justice argued the Constitution had granted lImIte "
federal statute. The C c' the j'ob of the federal courts to decide It
owers to the Congress. Therelore, It was . .. h
Phd dhered to the rules in the Constitution, whlch In thiS case t e
Congress a a 'd b all
C urt decided Congress had not done. Consequently, It was accepte Yd '
a f h . d" ywas to etermInC b h of rhe federal government that the role 0 t e}u !Clar ..
had overstepped its powers and, if it had, to declare the legIslation
unconstitutional. I h IJ h t th
ot lano 'JEter that decision, the Supreme Court successful yet a.
N .::> ( ber each of the states has its own state cOnstitutIOn)
federal to the validity of stale statutes [codes J if they
gave with the federal Constitution. Thisjudieial review of the state
has become one of the major unifying forces In the UnIted St' in-
. h h h Su reme Court carved Its powers rom
tth: C:nstitution, The powers the Supreme C;urt
itself Jnd the federal judiciJry have been crucial in the developmell t a
Ameriem ];Jw.
1\s a class revicw and discuss the following questions.
d . the Supreme Court the 1. \Vhv did the decision in lv!arbllry v. fvfa /5011 not give
, , t' la 5'
right to review sta e.s w . . ation is "reviewed" in your system. YVnat op-
2. an Can vour courts tell the legislative
t. . . to be :'illegal"? Are those opportunities even
that a bw It IS conSidering IS gOIng
necessary in your system?
, j b fore -jvi1law countries, such as the continental European sys-
we rnentlonet e 1'- d are not
. co', based iJw systems. In other words, laws Jre statutory an terns, are ut:- .
---------------=-::-j--'-"-"-"-''>-'-' ---------
based on case law created in COurls At this 't thet Id h
I
. . '. I n J wou appear t at U.S.
aw was moving In the d' f f 1
. Irec Ion 0 J elVI code: there was a central federal author-
that could declare state laws invalid, and enforce irs deci-
sIOns. the cUlzen,s of the United States thought it important to put both
the ConstitutIOn and Universal civil liberties (the federal Bill of RightS-the first
to the Constitution in 1789) in a written form, something that
Umted Kingdom .has never done. However, the crucial principles and ap-
that the Untted States inherited from its British origins have kept th
traditIOns of common I I d h. e
. awa lye to ay In W ICh case law does carry authoritative
weight.
. Exe(ose 3: Paraphfasing
following exercise is designed 10 practice paraphrasing. First, individual!
review the sample section . Th.. Y
. given to you. en, In pairs, paraphrase the section in
WrItmg.
l. In many cases a lawyer mu t h [J .
I . 5 parap rase restate or summarize i1 statute or
egal document for client. A summary includes only the most important
A paraphrase Includes everything found in the original but expressed in
less Complex language. Look at this example of paraphrasing.
ng103. The Senate of the United States shall be composed of two Senators
from each State chosen by the Legislature thereof, for six Years; and each
Senator shall have one Vote." [U.S. Constitution, Article I, Section 3( I) J
Each state legislature will seiect two senators. Each senator will
serve a sIX-year term and have one vote in the Senate of the United States.
Now, you try to paraphrase Section 3(3).
Original:, "No Person shall be a Senator who shall not have attained to the Age
of 30 Icars, and been nine Yc;.us a Citizen of the United States, and who
shall when elected, be an Inhabitant of that State for which he shall b
e
Paraphrase:
J H . h . .
-- ere IS t e text at the First Amendment to the USC . .
h ". . - onstltutlOn. try to para-
ras.e I.t simple English. Your instructor mav choose to have you
a thiS individually or in small groups Remember ' h
k - " In a parap rase we try to
t
eep
all of the Ideas but change the wording so that it might be more under-
s andable for others. vVe've given you three hints to help you.
<I. the word COl/gress now seems to mean any form or branch of government
in the United States, whether local. stale, or federal.
b. Redress can mean "correction" or "remedy."
c. In the United States, the word government means the executive, judicial.
or legislative branches, not just the executive branch as it does in many
systems.
Original: Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof; or abridging the freedom of speech,
or of the press; or the right of the people peaceably to assemble, "and to peti-
tion the Government for.1 redress of grievances.
Paraphrase:
Even through the nineteenth century, U.S. judges, attorneys, and legal scholars re-
lied on British law; today, however, British law is no longer as influential as it once
was. There are a few British cases that are still mentioned in American law schools
today, but far marc importantly, there are fundamental concepts inherited from
the English tradition th,H are still flourishing and continue to separate the English
and American systems from other legal systems, such as the civil law systems of
Germany and France. Three of the most important"concepts that we have inher-
ited from the English arc supremacy oflaw, precedent, and the idea of the trial as
a contest.
1. The faCI that both the executive [the president] and legislative [the Con-
gress] bran(hes of the government are required to follow the law as set down in
the U.S. Constitution is;1O indicator of the suprem,KY of law in the United States.
2. Precedent (which we will discuss in greater detailla.ter) is the tradition that
requires that cOliTIS follow the Iilw as stated in decisions by ("lriicr (Ouns.
J. Finally, we "II know from watching infamous cases or court-
room dramas on television that the American trial is an adversarial proceeding
[contest], like chess, in which the opposing attorneys seem to be more concerned
with winning thJJl with arriving at the truth. vVhat is not clear from the televised
cases or TV dramas is that in the U.S. 90 percent of the cases do not proceed to
trial but are settled alit of court in settlements [agreements] that are satisfactory
to both sides. Cn other words, in most cases all sides work togetha to arrive at the
truth. The cases that one sees on television, whether actual cases or TV drama, are
the exception rather than the rule in the American system.
Televised G1SeS are not ,1 fair depiction of the American h::gJI system. Too
often it looks as though the person with the most money to hire the cleverest
attorney wins the contest. In these contests, the judge: is often a referee who must
10 . American I' '/ English
wait for one of the attorneys to cry, "Objection!" before he or she can step in to
decide if <I piece of evidence or the questioning of a witness is valid. Normally,
American judges don't gather evidence as judges do in many systems; instead they
look only at what the attorneys bring them, so the evidence may be only as good
as the attorneys care to make it. Unfortunately, TV trials rarely show that in the
American system, judges can and do step in to ask for additional information or
to limit questioning of a witness. It is true that the system is adversarial and that
most of the questioning is done by the attorneys; however, to compare television
courtroom drama to real/ife would be like comparing a pocket calculator to a
powerful computer.
Exercise 4. System Comparjsons and Discussion c
As a class, discuss the following questions.
I. How does the role of the judge in your system differ from his or her role in the
American system?
2. Much of the law in the United States is codified-written out. Why do you
think American trials are so different from trials in countries with civil law
systems?
The Common Law System
Law students and lawyers from non-Anglo-American countries learn that Anglo-
American law is "case IJW" or "judge-made law." That's true to an extent, but in
reJlitya significant portion of the law of the United States is codified [written in
the form of stalutesJ. Of course] it is true that in some cases no statutory or con-
stitutional provisions will apply. Under those circumstances, attorneys must rely
solely on earlier cases ("the common I,nv") on the issue; however, constitutionJI
provisions and statures take precedence over case law.
One considerable diJference that exists between common and civil law coun-
tries is the amount of research <1n attorney must do. Once an attorney finds the
relev;:lnt statutory law in a common IJW country, his or her research doesn't stop
there. Nor is it sufficient to read one or two explanatory commentaries written by
a law professor as it might be in a civil law system.
American attorneys will search to find the case law relating to astatute before
they can say they have thoroughly researched the problem. Without locating and
reading the cases that explJin rhe application of the statute or constitutional pro-
vision, they have not even begun their research. Modern on-line services have
made it faster and more efficient to find coses that might be relevant] but it is still
hard work. ,
Origins of the Americon Legal System . 11
Once cases pertaining to the issue h;J.Ve been found, have to be. an:llyzed
see if they are relevant. Or, if the attorney thinks that hiS or her cJ.se IS
previous cases, he or she must explain why those cases and their deCISions
are not applieablec c n d"
In this way, case law is not only judge-made but "attorn?-m uence
law. We can say thJt the common law is the law that IS created dJlly t.hrough the
interaction of judges i.lOd attorneys in the courtrooms across the United States at
L all levels, from local courts to the U.S. Supreme Court. _
All types of judges] whether appointed or the to mJke
c c fd c. Once a JCudge makes a deCISion, that decl::'lon becomes a
certain type:;: 0 eCISlons. .. d
cedent [a guideline that is to be followed by courts In the Ime of appeal un er
pre c. ci 1 Of course that JCudge's decision itseifwas based on the
that court 111 Simi <1r cases. , . . '_
precedents taken from previous decisions of earlier
sion can serve two purposes: to resolv:e tDat Jhe judge is currently
and'-if precedent to fol!ow:
EXercise 5. Case Hypotheticals and Discussion
In pairs decide what differences you see that might help you refute this precedent
case [show that this case is different from the case being cited as precedent I for
h d d C C pare your "lflSWcr to that of the situation. Once you have rcae e a eCISlon, com ,
your nl?ighbors. You are the driver's attorney in this case.
- For two weeks, a man Ius tJken a prescription drug rhilt a w;lrning: _
L "Mav Cause Diainessc Do Not PotenuallxDangerous
until You A(fects..YOJl .." As the man IS
down a city street _<1.1_25 (to mph below the posted speed limit),
the (olumn locks; the mi1l1 applies the brakes, but the C.lr luft.:ht's onto
the sidew.llk, striking and killing two pedestrians. '.
1 The illlorney for the exccutri.:< [the female administrator of deceased pe-rson::;
estate I cites the following case as precedent.
cd' c down a crowded city street at the speed limit (35 mph 1.
A nlJn IS flvlng .. k
When the steering column locks, the mJn immeJIJtdy applies the es,
but the car lurches onto the sidewalk, striking and two p.edestflJl1s.
Tn ;j civil suit brought by the families of the victims, he IS held lIable
[responsible I.
12 . American L I English
Precedent and Stare Dedsis
In U.S. common law, some precedents have greater authoritative weight than oth.
ers. The doctrine (or more accurately the tradition) of itllTe decisis et non quieta
is the umbrella under which precedent stands. Stare decisis [steri d;:}sUls;)s/
req.UIres thilt follow common precedents. But a court is
to pret.cdents that tHe bmdmg on that particular court. au-
thority IS a rulmg that was decided by <l higher court in direct lint' of appeal.
For example, J Tennessee state trial court in Tennessee, must follow
the precedents set by the Tennessee Court of Appeals for the \Vcstern District of
Tennessee (which includes Memphis) and the Tennessee Supreme Court on state
law issues. Cases decided by other courts, such as a court of another state or even
the Tennessee Court of Appeals for the Eastern District of Tennessee, are per.
suasive authority only. Courts aren't required to follow persuasive authority, al.
though persuasive authority from another district or court will generally be taken
into consideration. Courts will give persuasive authority special consideration if
the court that issued the precedent is closely related to one considering the prece.
dent: for example, if both courts ilre in the same state but in different districts.
I.f a pre.cedent is binding, judges have two options when they are looking at a
case mvolvmg that prec_edent: they are either forced to decide the pending [started
but not finished J case in :l.ccordance with the bw of the earlier cases or to repudi.
ate [overturnJ the earlier decision. Only the original court that issued the decision
or a higher court norm.llly repudiates an origil}al decision. For example, <l Ten.
triJI court in Memphis would in ,llllikdih'ood"never try 10 overturn a deci-
of the Tennessee Supreme Court. If a local Tennt.'ssee judge decided not to
a binding precedent of the Tennessee Supreme Court, the losing attorneys
m the CJse would most certainly appeJI and would probably win the appeal.
. For lawyers untamiliar with common law, this ;lhility to ()verr(de"<1
may bl;' one of the most difficult (oncepts in U.S. law to Given suffi.
(lent legal grounds by an Jl[orney. a judge mJY overturn a prior decision. Or,
based on the tJcts of a particular GISe, a judge mJY decide the case in a way that
seems to bl;' at odds with precedent. Since a judge has the power to overturn a
prior decision, American Jltorneys must review case law and then choose one of
two possible courses of a(lion:
l. reconcile the [Jcts of the current case with prior decisions or
2. attempt to convince judge to repudiate a prior decision.
Of .course, no matter how brilliant the Jttorney, rarely will a lower court repudiate
a higher court's decision; the svstem must be stable
The thilt a judge may J decision d'oesn't mean that the law is
un(ertain. In only.1 few limited arcas would most attorneys in the United StJtes
, .
;'
admit to legal uncertainty. of .the cases i.n the United States Jre
settled out of court. This datum allows us to mfer that In 90 percent of the cases,
attorneys for opposing sides reach a compromise based on research and an
standing of the law as a judge would see it. However, an attorney has the opportu-
nity to argue his or her client's position before the court even if it would seem
that the current law is relatively clear agai nst his or her client. It could be time for
a change. In fact the U.S. Supreme Court intentionally chooses to hear cases that
may be instrumental in changing laws.
Do the following in writing. Then discuss your answers with the class.
1. Read the following opinion from the u.s. Supreme Court. Mr. Justice Black,
with whom Mr. Justice Murphy and Mr. Justice Rutledge join, dissenting
[disagreeing with the majori,yj.
Frallc;s v. SOllthern Pacific Co., 333 U.S. 445, 68 S. Ct. 611, 92 L.Ed.2d 798
(1948)
It should be noted at the outset that tort law has been fa.shioned largely by
judges, too largely .1Ccording to the ideas of many. But if judges make rules
oflaw, it would seem rhJt they should keep their minds open in order to
exercise il continuing and helpful supervision over the manner in which
their laws serve the public. Experience might prove that J rule creJted by
judges should never have been created at all, or thJt their rule, though
originJlly sound, hJd become wholly unsuited to new physicJI and social
conditions developed by a dyn<lmic society. A of social ..lnd
economic interests affected by the old rule might reveal the unwisdom of
its exp.lnsion or imperatively require its revision or abandonment.
2. PJraphrase the following phrases or words from the text.
J. at the outset
b. '00 largely
c. keep their minds open
d. dynamic society
e. unwisdom
3. Traditionally, a child's mother is the woman who gave birth to lhat child. How
might auvJnces in scien(e cause judges to review rules they might have estab-
lished aboLit "motherhood"?
Give four .ldvances in science or medicine th.u might (JUSt' judges to reexam-
ine rules they hJve made about issues such as theft, copyright, murder, or
abortion.
14 . American 11 English
One additional factor that seems to make u.s. law opaque is that in addition to
federal law, there is also the complexity of the interactions of fifty sets of state
laws. However, model codes [for use in any of the states J, such as the Uniform
Business Code and the Model Penal Code, have been extremely helpful in recon-
ciling the laws of the fifty states. Model codes are written by law professors,
judges, and attorneys ilS guidelines for state and fedemllegislatures when promul-
gating legislation. Unless specifically enacted by a state or the federal legislature,
a model code has no force as law. Some states choose to enact only portions of a
model code, some enact it in its entirety, and others choose not to accept any of
a model code's provisions. However, use of the model codes by most states for at
least some of the provisions has ensured some uniformity in U.S. law.
For attorneys, this complex system has an especially important consequence:
in general, attorneys are licensed to practice only in their home states. If they wish
to practice in another state, they must fulfill that state's requirements-such as
taking a test on the specific features of that state's law [a-part of the bar examina-
tionJ before they can practice. Fortunately, there are some states that have reci-
procity agreements [two or more states honor each other's rights or privileges,
such as practicing lawJ. While the specific forms of the laws may vary from state
to state, the bi1sic job of research needed to understand those laws is the same.
Although time consuming, research in a common law country can also be ex-
tremely interesting. Even though few cases will involve changing the existing law,
for a U.S. attorney there is always the possibility thal his or her work will indeed
bring about change and his or her case will be cited [referred toJ for many years.
Most of the time, however, the process of researching and preparing a case in-
volves deciding between differing interpretations of prior precedents that are un-
clear or don't quite fit the facts of the pending case. The attorney's major task
then becomes one of synthesizing the cases, taking care to separate persuJsive
from binding authority and holding from dicta.
Holding y, Dicta
Related to the concept of kiD.ding and.persuasiy.e authority is the distinction
between holding and dicta. Law students in most countries won't have to under-
take a long and detailed study inlO the distinctions between the t\'IO, but they
should be aware that an important difference does exist. American law students,
especially when writing legal memoranda [information regarding the facts and
the law on a particular issue usually written courts J should understand the
difference.
The rule of law or legal principle that comes from the decision or the
judgment plus the material facts of the case; binding authority.
Dicta-Other statements in the decision that do not form part of the holding;
persuasive authority.
The precedent established by the case is the holding. In general, the holding
of a case is binding authority, whereas the dicta are merely persuasive
arguments based on dicta are not binding. However, do not assume diCta .
in a case are totally unimportant; sometimes the dicta become more Important III
later years than the actual holding. For example, the dicta in the famous Supreme
Court ruling in [mernatio1lal Shoe Co. v. lrVashington 326 U.S. 310, 66 S. Ct. 154,
90 L.Ed. 95 (1945) are still cited in many cases.
In International Shoe Co., the U.S. Supreme Court established the require-
ments for personal jurisdiction over a defendant ina civil action. Personal juris-
diction is important because it whether a court can force a defendant
to appear before it in response to a civil lawsuit. The specific holding in this case
relates to corporate agents in the state of Washington and the systematic conduct
of business within the state. In its opinion, the court discussed but did not rule on
traditional ideas of fairness. The dictum that arose from this discllssion h<lS be-
come increasingly important in the jurisdictional decisions of other courts. The
U.S. Supreme Court stated:
It is evident that these operations [those of the corporation, International
Shoe] establish sufficient contacts or ties with the state of the forum to make
it reasonable and just according to our traditional conception of fair play and
substantial justice [emphasis addedJ to permit the state to enforce the obliga-
tions which appellant [International Shoel has incurred there.
Although the termfllir play and substantial jl/stice was part of the diet1 of the
Court's opinion, courts to this day use the term when making decisions regarding
person.11 jurisdiction. .
let's look at;l hypothetical example of how we might try to holdmg
from dicI.\. In J case of .lrmed robbery, the plaintiff, J shorr colkge prokssor, was
robbed while walking down a dark deserted street in downtown Memphis by an
old AlbJni.m man who waved a new Colt 45 pistol around and then shot one shot
into the air.
If the judge says that all of these facts (anned robbery, s!.arr (v/lege professor,
lValking, dark deserted srreer, downtowtl AJemphis, old Albanian waving
nelV Colc 45 pistol, shoot olle shot, iT/to the air) are essential in makmg th: deCISion,
the judge's decision will be binding only in cases in which a.ll.the a,re
present ,md thit will never happen. In other words, the deCISion be bl.ndtng
in no other cases except where the same facts are present. However, If the Judge
leaves Ollt some of the facts and makes broader descriptions, the
holding will be For example, was it impon.Int that it was
an old man? Probablv not. ,",Vas it important that it was J til/iii and not a 1V0/1II111?
Again, probably not.'But do we broaden the term to pasoll or adlllt? vVould we
want our holding to JPply to children or just to adults?
_________ 1_6_, _A_m_e_n:.,:"-,an ,Legal English
( --------
Exerdse 7. Case Hypotheticals and W n9
J . Either alone or in groups, decide which of the facts you can either broaden
(e.g., old man to mlln to person) or leave out completely. We've done the first
two. but you may choose to disagree with us if you have a good reason.
Fact Leave out or Broaden Change to
armed robbcry ncilhc.>f stays the .same
!ihort (DJlege professor broaden
"
person
" :'
dark deserted street
downtown Memphis
old Albanian man
waving a gun
new Colt 45 pi'stoi
shoot one shot
into the air
2. one sentence that would be binding on as many cases as appro
pnJte. We ve started the sentence for you.
"The court held that a person is guilty of armed robbery when ... "
If all these terms it's (ammon
lur studt'nts (rom civil (ode cou ntries to J. bit confused. Let's look J.t what a
German law student in Augsburg, Lars Barteit, wrote when he was asked to pre
sent il paper on an aspect of U.S. law for a seminar on constitutional law. Here are
some of his comments on the preparation for the seminar presentation.
As the case law system is based on the different cases decided on a topic,
I started to get a feeling for holding and dicta, for opinion and dissent. I
learned to distinguish between a plurality and iJ. majority opinion and under
stood that they hilve i1 different weight within the argument to decide a case.
Now. ho,,:,\eiver, my professor wanted to hear some kind of general rule includ-
ing all the of the opinions of the court. Impossible-[ shook my head
and pa?sed my hands over my tace. There is no way to put one of the systems
into the other.
Remember that even though it looks as though there is no way [Q understand
comp
ared to yours there actually is, although it does take some work. Let s
system '.,
look at another difference that IS not as Important.
Classification of law in the United States
American attorneys do not normally see the broad general categories of law seen
by their civil law counterparts. American think in the
more specific terms of torts, contracts, products l!.1bllIt y, or cnmmall.
ilw
rather
than just public or privilte bw. This is partly true because of the absence of SPC4
cialized courts such as those found in some civil law countries. Nonetheless. U.S.
law can be separated into three ?road divisions:
I. law and equity;
2. substantive and procedural law; and
3. public and private ];.lw.
Although the most important distinction for an Amcriclfl attorney is the one be
tween substantive and procedural law, let's begin with the development of II very
old distinction.
Law and Equity
In everydilY English, equity means "fairness." In legal English it has J slightly
different meaning although it is .still based on an idea that f.lirn('ss sometimes
means the courts mllst go beyond the strict kgal codes. This distinction between
actions ill: law <lnd thost' in equity developed in England beginning in the thir-
teenth century. Eventually. separate courts of equity were established in the
fifteenth century.
Basically. a "suit in equity" enjoyed more procedural flexibility. didn't have a
jury, and could be reviewed in brllader terms if it were 'lppt'.llcll. :'\\mc important
for the plaintiff ,10<..1 ot""fendant. a court of equity could order injunctions [order il
defendant to do or not to do something specific that might cause further injury
or 11arrn to the pbintiffl or order specific performance [require the defendant to
complete a contractual ,lgreement] while a court of law normally c;.ln only use
money as.1 remedy.
In' addition to injunctions or specific performance, there ,1re other types of
actions in such as equitable estoppel in which J party is stopped by his
or her conduct from doing something he or she otherwise h<lS;l right to do. The
roHowing appeal before the Supreme Court of Alaska, !'vlortvetic v. State, Dt!pt. of
N!ltllfal R60llrce.s 9...J.\ P.2d \26 (Alaska 1997), is one in which the .1ppellant re
4
quested equitilblt' estoppel.
(
Mr.lvlortvedt (the <lppdLlnt) was a \;, 'frness guiJe. He wanted (0 use the
land where he bu.ilt;l cabin for his Wlluerness trips, but he needed to get gov-
ernment Pl'fnllssJOn trom the Department of Natural Resources (DNR) (the ap-
pellee) to continue using the land. The basic problem in the case revolves around
the (Jet thJt the DNR est.lblishcd J program (PUep) that could have given Mr.
J\[ortvedt that permission. However, the PUCP program W;]S a one-lime-only
program, and Mr. Morlvedt did not file an .lpplication for reasons th.lt Mr.
Mortvedt ilsserted wcrt! not his fault but that of the DNR. Mr. Morlvedt wanted
the ,10 the DNR to review hi.s PUCP application L'ven though Ihe
deadline tor applications was long pilSr. Mr. Mortvcdt's daim for equitable
c:toppd (making the DNR review his applic.Hionl was vcry important to him
since there would be no other ch.lnces to gain permission to use that hmd Jfta
the program expired.
.. .. ..
Many of the relevant facts have previously been set forth in Mortvedt v.
State. Department of Natural Resources, 858 P.1d 1140 (Alaska 1993) (Mort-
vedt I) .... In 1981 Mortvedt built a log cabin ar the site. He asserts that in
1984 he asked a friend who worked at the DNR to send him information per-
taining to the ONR's upcoming PUCP program. Mortvedt subsequently traveled
to Antarctica, and never received the requested information. The relevant filing
period expired before Mortvedt returned to Alaska, and he did not Submit a
PUCP application for months foHowing his return, After the ONR denied his
untimely PUCP application, Mortvedt appealed to the superior court, which
affirmed the DNR's decision. On appeal to this court, we reversed the superior
court's affirmance of DNR's denial of Mortvedt's PUCP application, and re-
manded the matter to the DNR with directions to determine whether Mortvedt
had established the elements of equitable estoppel. Mortvedt I, 858 P.2d at
1140-44. On remand the DNR again denied Mortvedt's PUCP application.
.. .. ..
the two J\lortvedt casl'S and make notes on tht' J.nSWl'rs to the following
questIOns. Comp.ue your answers to those of your neighbor.
I. VV11Jt Jre the facts of the C.1Sl'S so fu?
') Is time an important element in this case? Find phrases or words in tht! discus-
sion from Aforlvcdr II that support your argumcnt.
J. Did Moftvedt file <l PUCP <lpplic.ltion when he returned from
Antarctica?
ungms Of rne Amencan Legac :,ystem . 1 fJ
Un. 'the ruling in Afortvedt I, if the DNR determined that Mortved.r had
established the elements of equitJble estoppel, the DNR could not reject IllS appli-
cation solely on the ground that it WJS untimely. Notice that Mr. lv[ortvedt was
not asking [he court in IHortvedt I to approve the application, only to force the
DNR to review the application,
Unfortunately for Mr. Mortvedt, for a variety of reasons, on remand [return
for decision to lower courtl the DNR again denied Mortvedt's PVCP application,
in part because hc had not established the elements of estoppel: Pa.rt of
the problem was that some of the blame for the untimelmess ot the application
did lie with Mr. Monvedt himself. In other words, he did not appeal with "c!e.ln
hands." The clean hands doctrine is important in equity since it is based on fair-
ness and equality and prevents a person who is partly at fault from placing all the
blame on the opposing party.
Mr. Mortvedt then appealed the second decision by the DNR to the Supreme
Court of Alaska, Among other issues, he maintained that the decision by the
DNR that he had not established the elements of equitable estoppel was incor-
rect. Then, in In interesting legal twist, in this second appeal before the Al.aska
Supreme Court, other factors were brought up that allowed the supreme court to
affirm the DNR's rejection of Mortvedt's pvep application without needing to
look at the DNR's equitable estoppel decision.
This disposition [raised in this second appeal] makes it unnecessary to
address merirs of DNR's estoppel decision made in response to our initial
rcm.lIld.
Although appeals were unsuccessful, his appl'JIs would not
even have bl'cn possible in a case just .It bw. In a normal law court, the only
award would be;l monetary amount after the damage was done. Thus, even if
Mr. ivlortvedt had asked for normal monetary damages and a court ilwJrded him
sOl11e .1!l1t)Unt of IlltHle\', Mr. would not ever h;wc beell able to gain lise
of the bnd. However, that the types of remedies [solutions to the
problem of plaintiff] available to the courts of equity can only be used if the
regular remedies at law are not sufficient.
In the modern American legal system, the courts of equity .1Ild law have gen-
er:llly been mergt.:'d. However, the concepts found in the two courts didn't always
merge. In most cases, the right to a jury trial is available only for cases that Jre
"tri" .... ble at law" but not for those that historically are "triable at equity." Conse-
quently, in jury [ri.lls, the jury dCJls with a set of the issues, those at law,
while rhe judge is responsible for other issues, those "at equity." However, it is
import ..mt to remember that even tod.lY if legal remedies arc sufficient, equitable
remedies can'[ be used.
Substance and Procedure
20 . American J.egal English

The distinction between substantive Jnd procedural law is much more important
for modern attorneys. Basically, procedural law establishes the rules for enforcing
or administering law. It involves issues of jurisdiction, pretrial actions, admis.
sibility of evidence, and appeals. Procedural rules in part ensure that a trial is fair
and timely. If a juror is biased, he or she can be dismissed. If evidence has been
obtained improperly, for example. without a valid search warrant, procedural
rules ensure that it will not be admitted in COUrt. Procedural rules .1lso govern
whether or not the Court has the power to hear a case.
For example, there are set procedures that normally must be followed before
evidence can be used against a defendant in a trial. A police officer cannot just
walk up to your house and demand to be let in to search for anything that might
be illegal. The officer must get a warrant from a judge first that basically says what
the officer is looking for and where the officer will look.
Another principle based in common law is that police officers, even with war.
rants, must knock on the door of a house and announce that they are police offi.
cers, as heard in many films: "Open up. It's the police!" Let's look at a case taken to
the Supreme Court in which the defense attorney tried unsuccessfully to argue
that the "knock and announce" principle must always be enforced. In its decision
the Supreme Court uses several English cases as precedent including the famous
seventeenth-century Semayne's Case, 5 Co. Rep. 91a, 91b, 77 Eng. Rep. 194, 195
(K. B. 1603), which contains a reference to a statute on the same subject from
1275 that was based on even earlier common hlW!
Wilsoll v. Arkansas, 514 U.S. 927, lIS S. Ct. 1914, 131 L.Ed.2J 976 (1995)
Facts: Arkansas undercover agents bought illegal drugs from Sharlene 'Wilson. Po.
lice officers were then given warrants to search Ms. 'Wilson's house and to arrest
her. However, when the police omcers arrived at Ms. Wilson's house, they dis.
covered that the front door was open. The police officers opened rhe screen
door, which was unlocked, and walkt'd into the house. As they entered, rhey
said rhey were police officers and that they had a warrant. "Once inside the
home, rhe officers seized marijuana, methamphetamine, valium, narcotics
paraphernalia, a gun, and ammunition. They also found petitioner [Wilson]
in the bathroom, flushing marijuana down the toilet."
Attorney's reasoning: Because the police had not knocked on the door and an-
nounced their presence, Ms. Wilson's anorney moved to suppress [not allow it
to be used in the trial I the evidence (i.e., the drugs and gun) that the police
. h . h Tho> attorney maintained the police had violated thl:!
und In t elr searc. ... h d
a I' w knock and announce principle required by the Fourt Amen -
common .1 ,
t's reJsonable search and seizure clause.
The Supreme Court agreed that knock and announce was a common law
Rui g .. I d tlng from at least 1275 and was part of the Fourth Amendment but
prmclp ea.
noted that it was not a principle without exceptIOns.
Nevertheless, the common law principle was never stated as an
I cquiring announcement under all circumstances. Countervmlmg law
ru e r . d. h th at of physical harm to po-
enforcement interests-Illclu 109, e.g., t e re
lice, the fact that an officer is pursuing a recently arrestee, the
'stence of reason to believe that evidence would likely be destroyed If
eXI , . en-may establish the reasonableness of an unan
advance notice were glV h k f
nounced entry. For now, this Court leaves to the lower courts t etas 0
determining such relevant countervailing factors.
Action: The case was sent back to a lower court to decide if the facts in Wi/sofl
would support the reasonableness of the unannounced entry.
This case shows the importance of procedural law in the United States. On
the other hand, substantive law concerns the law dealing,with the facts of,the case
'tself such ;1S the law of torts, products liabil ity, corporatIOns, or contracts. In. the
I , . IbId be an element of subst.m-
"'1 the possession of dlega su stances wou, .
yy/ son case, Id b t at pro -c-
tive law, but gelling thl' evidence admitted into court wou e a p.lf I..
dural bw. . . T II
S c distinction between procedural and substantive law IS taml lar to <l
legal :y:ems. There is evcn ;10 International Association of Procedural How-
o .t .oms in the United St;]tes that this distinction has taken on ;]
ever, 1 s...... _ P Roth 'r
importance. The complex interactions among the hfty st.Itl'S, Ul'rt.t.)) c.:
territories JnJ the feder.ll government have made procedure very :-.Iljlllitl..anl ..
Each state'has the right to make its own substantive and procedurallJw, but In
. when the case reaches the federal level, the federal courts may use state
some cases 'f the pro -edural
slIbstalltil'c 11W bUl fedcral procedllral law, whIch may vary rom 1... h
law of the st:te. Fortunately, many states now usc national uniform t lese
areas such as the Uniform Rules of Evidence, whICh has been a e
or in part. by most states. The issue becomes even mor,e com,plex It IS any
problem in determining what is substantive and what IS prol..cdurallaw <dthough
fortunate-Iy that doesn't h'lppen frequently.
In the Wilso
ll
case, the Supreme Court decided nO( to make a final judgment on
what might be good reasons for unannounced entries. Let's see how you would
ha ndle this issue.
I. Your instructor will assign one of the scenarios below (J-e) to pairs or teams
of
2. Then your instructor will randomly tell your group to defend or attack ver
4
baIly the stilnCC that this scenario contJins a good reason for an un;.lIlnounced
entry. Don't Worry; there are no real right or wrong answers in this exercise. In
fact, these cases would keep American lawyers busy for a long time.
J. As a group, you will prescnt your arguments to the "court," your classmates.
4. Afrer eJch group presents its arguments, the entire class will act en banc [as a
group) Jnd decide if you proved your point or not.
5. Of course, you molY appeal to the supreme court, your instructor, if you are
dissatisfied with the "court's" decision.
ScenJrios
a. A police officer is chaSing a man who was shooting at people from his front
yard into his house. The police officer doesn't knock and announce as he enters
the man's house through the back door.
b. \oValking by a house,.1 police officer hears someone inside screaming: "Please
don't shoot me!" She kicks in the door and rushes in without knocking and an-
nouncing and finds a man pointing a gun ar a woman who turns out to be his
wife.
c. While checking doors of businesses ro make Sure they are locked for the night,
a police officer finds one unlocked. He enters quietly thinking there might be
burghus and discovers the Owner of Ihe sitting in a chair sllloking
marijuanil. HI.' arrests Ihe OWner for possession of an illicit drug.
d. The police have a warrant to raid the house at 132 Robin where a band of dan
4
gerous, armed counterfeiters are thought to be working. \oVithout knocking and
announcing, the police kick down the doors and break in through the windows
at 123 Robin by mistake. Inside the wrong house, they discover hundreds of
TV sets Ihat all turn out to be stolen,
e, The polie-e think that a 78-year-old con artist [thief who tricks people out of
their money) [or whom they have In arrest warrant might be living at 44ol3 Ar-
ro!. At that house, they knock on the door and say, "Hello, pizza delivery." As
the man opens the door to say he didn't order J pizza, the police arrest him.
': '
5 O,r me IHnencon Legal )ysrem .
ungm J
, 'd private Law , ' " I
pub . - an "v t> s hal'S is of very lIttle practlL<l
,', separation of U,S. law into public she never thinks of the law
- . -' 'U S attornq., .. '
,- (0 a prildH,mg ". h I 'r dents from counlfles In
However the followmg may e p s u
'. this manner. , .
:"w 1 'divided in IhlS manner.
. ,which a\'llS
Constitufion.lllaw
Administrative 1;IW . .
',t 'ontrol ot !;tbor relations)
Labor law (govcrnmci I..
Trade regulation (government control of busml!ss
I
Criminal law (relationship bel ween the indlYI ua an
goyernmrnt.'nt) , '
,', b" se or dose reiatlOnsllip to
Tax law (controwr:'l.lI, which ,Ire private law
corporation and property ;JW,
fields)
Private law
Civill,lw
(Ol1lr'l(\S
Family law
Property law
CommerciJllaw
Negotiable instruments
Saks
St.'cured tr .lIlsactions
Business enk'rprises
Agency
Corporations
P;utl
Reasoning I'd 'ar
b hold of Jell-o [gelatin]?" to quote a Illr -ye
So "How can YOli comc to d ' d ,h, "nonsoliJ" nature of
" 'ng to Ull ('[stan e, , h
German law stuJent who was try! d 'h" thl! methoJ of taug t
' h' to understan .1 I '
American law. First, you ave , d-t" rent from th.lt t.lllght to ;1W:.tu-
' h U 'td States IS very I "" d
to a law .student 111 t e III <.; h _ :, d 'n's are taught to be obJcctlve.In
' , h " 'I . d's T c::.e sue.... f" h-
dents in CDuntrll.:s wll LIV! LO e . " rht to think in terms 0 w.1t
' 1'1' A r'em students are {ilUg . " ._, 1'4
think like Judges w 11 c me!. ,. "h '-I to receive I hI..' bt.:st "idt c
' "n" or If the-y can tWill, 0\ , \v,
'11 b"st heln my clients WI, d' ',c' ".I"mcnt not a IfI;lI .
... , t I .t .. \ 'es en 1O .. .,c... .
nJent for Illy dil.'nt"-remember, IlIOS L,S ',I,"n "lllght to mold, but not to change
I " 'd students are '- , ., I' s
With tho')l' goa s In mill , h'l their dient. ObJ,-"ctlvlty p ;IY
- t' I '-e or 'he IJW '0 C P I I ' ,
or to lie about, the tacts 0 t 1e . b, ,hey Jre 'lisa t;Iught that t le aw l.s
' J, ts' educatlon, u " h '
a part in Ame[lcan law stu I,;n , d on how the prism was Cllt: truth as many
like a prism: the colors you see clepen
sides. . n law a form of civil law, to compare
Let's take an example from Germa h' t fthe 8GB, the civil code ot
I U der Pi.lragrJp .J"t't 0 .
soning and research styes. n, I ' "hout notice for health
'I rn;Ite a ease Wl " _, II
Germ;;!n\', <I tt.'n,lnt IS ab e to b P r 'r'ph Sol4 and more specltiL<i '!
' - h- t me'mt v a .
S ho
w do vou detefl1lLne w .1 " '. ',t'n bv [aw professors or
a " " d the commenta[les W[I c .
he,llth fklslcally, you re.1
I r'
< ,h'lt "lpplv to Paragraph :>4-L ot ler expe., .. .
These commemaries state Ihal thI ,ragraph applies only to seVere health
problems involving the "partment its imildew, noise, elc.). In Germany, your
client would not be able to rely on Paragraph 544 if his or her health problems
were creJled only by the polluted air in the neighborhood.
Time to research: approximiltely thirty minutes
Reasoning: The commentary only addresses the apartment itself; the pOlluted
geographical area obviously is not subject to Paragraph 5<14.
In the United States, an attorney would, after checking the statutory provi-
sions, Use on-line services Or extensive legal libraries to research the case law for
decisions of the court on similar iSSues. If the statute were similar to Paragraph
544, the attorney would synthesize the case law, looking for a reasonable way to
include the geographic location under the statute, even if that had never been
done before. This activity is not simply a question of reading a commentary; the
attorney must at least try to make the Case fit the law or the law fit the case. Un-
fortunately, that means researching a legal issue in the United States can be a very
time-consuming process and therefore expensive since an American lawyer can
charge from $/00 to $300 an hour, even for research.
Time to research: approximately I 1/2 hours
Reasoning: If the policy behind the law is to protect the health of the occupant,
the problems caused by the polluted area are similar to problems such as
mildew Or noise in the apartment, so it would be worth PUshing Ihe case a little
further.
So as a student of U.S. law, remember to take your research a liltle further.
Think in terms of your client. Head both the dissenting and concurring opinions
from the cases you find; the reasoning contained in them may be jUst what you
need to "change the law."
level IV: language Focus
Polite Commands
In the United States, even business conversations are normally quite informal by
standards in many COuntries. But there are many levels of informality, and altor-
neys must be able to use different styles of language in different situations. Look
at the sentences (a)-(e). Basically, they all have the same content and Can be used
to bring about the same result.
""'!j"'" "'J
~ .. "" .............. " ......!;I ... ""'.J-.H """'
, me that book.
~ b . g me that book.
nn k'
b
. g me that boo .
you nn '}
b 'ng me that book.
YOU n k'
. d bringing me that boo .
youmm
. e is a little more polite or formal. Although in
(
a) through (e), each sentene d' normal working relatlOnshlp
(
) would be felt as ru e, m a ". that
circumstances, a Id not hesitate to use (a) BrIng me
informal office. peers wou. ." used (a)-to address
'mloa,era'l 0 the other hand, If your supenor
with one another. n Perha s that's the reason many
't would seem a bit harsh. too b r u s q u ~ b
P
. them a drink or an item
1 d () r (d) to ask a walter to Clng waul use c a
the kitchen.
. . . there is a problem with the command. It
. of the following mm,d,alogues, Id au mind trying to correct them' (You
. olite or even too polue. Wou y
lmp d ')
: don't really have a choice though. a you.
I. At the law library:, .
Law librarian: Can I help you. f the Cornell Law ReVIew.
Law stlldent (politdy): Give me the latest copy a
correction:
2. In line at the bank: . l"k ). Would you mind giving me your name,
Bank clerk (politely but busmess-l e.
address and account number?
, k 3456 W 12th,907845 Customer: Joshua Bar, .
correction:
3. In IJW school: . [; . ). Would you not forget to turn in your briefs.
Law professor (as a matter at ad .
Stlldems: Oh!
correction:
4 At the law library:
. . d I
Libmricw (firmly): Keep [t own.
Law .HI/dcm: Sure, sorry.
correction:
5. In the study group: k t Ikl'ng' I'll be right back .
. kl ) C Id you 'eep a .
Lllw stl/dellt (qUIc' Y.: au se don't hurry.
Second law :ill/de/It (frIendly): Plea
(orrection:
correction:
, . '_0
. ct...
_________ 26 . American legal English
Silence
Many Americans are afraid of silenc .
vous. As J result, they}'ump in I fiJJ"h
n
a mnkes them ner-
o [ w at they consider I . d .
a conversation. Unfortunatel Ih' ong perlO s of silence in
d
. y, IS attempt to rescue the .
ru e or Impatient to sp' k r h conversatIOn often seems
..a efS 0 at er langu' E I' h
cultures. ages or ng IS speakers from other
Exerdse 10. Listening
Lis!:n to the following dialogue on the tn e and identi
of dIfferent perceptions of silence. P fy what happens because
2. Write down the probl h
em t at was created and h . I
3. Compare your answer with a t ow It cau d have been solved
tions the same? par nero Are the ansWers the same? Are the solu'-
Exercise 11. Fill in the Blanks
Legal Vocabulary. When writing about the law
as possible. Use the correct term [ h you normally need to be as precise
s rom t e text to com I t h 'J .
tences. Pay aUention to Ih . h .' pee t e ,0 lowmg
. eng ttense(l[thet . b
III the blanks. erm IS aver ) and [arm 3S you fill
I. An amendment [0 the U . d 5 .
3/4 of th b flIte tJtes Constitution must b..:- b
e states dare it becomes part of Ih C . . ------ y
. e onstttutlOn.
2. Ninety percent of the cases in the United Stat.
COurL e!) are ______ out of
3. Model codes. such as the ,\-fodd Penal Code. have been helpful in
. laws of the 50
-I. After attorneys practice law tor f .'
. Ive re.ns III Tennessee. they m,IY praclice in
Georgia Georgia grants ..
attorneys. to pract IClllg Tennessee
5. In InternatioJl(j1 Shoe Co. v. Washington the US S C
. . . upreme ourt
- ____ Ihe .
6. A case that is sent for personal jurisdiction.
e tna Court for i1 rehearing after an appeal has
been .
---___ to the tnal COurt.
7. The person responding to an appeJI is oiled the
----
8. In order to obtain a search warranl, a police omcer must establish
_-----(show the judge that there are reasonabk grounds for the
search}.
9. If an attorney wishes to prevent the use of supposedly illegally obtained
evidence during a trial. he or she must file a motion to ______ the
evidence.
Level V: Additional Exercises
Case Comparisons: Writing
In a way. the case being: heard by (he supreme court of Wisconsin asks the reverse
of the question asked in Wilson v. Arkansas. After WilSall many courls assumed
that exceptions to the knock and announce rule would need to be done on a case-
by.case basis. Could there be a general type of search warrant that allows the po-
lice to dispense with knock and announce? Read the following case summary.
+ + +
State v. Richards, 201 Wis.2d 845, 549 N.W.2d 218 (1996)
. .. Richards argues that because the police failed to 'knock and announce'
prior to entering his motel room to execute a search warrant. any evidence
seized must be suppressed. The issue is simply stated: whether the Fourth
Amendment allows a blanket exception to the general requirement of 'knock
and announce' (the rule of announcement) for entries into premises pursuant
to a search warrant for evidence of felonious drug delivePJ. We conclude that
exigent circumstances are always present in the execution of search warrants
involving felonious drug delivery, [such as] an extremely high risk of serious if
not deadly injury to the police as well as the potential for the disposal of drugs
by the occupants prior to entry by the police. The public interests inherent in
these circumstances far outweigh the minimal privacy interests of the occu-
pants of the dwelling for which a search warrant has already been issued.
Accordingly, we State v. Stevens, 181 Wis.2d 410, 511 N.W.2d 591
(1994). wt. denied. 515 U.S. 1102. 115 S. (t. 2245. 132 l.Ed.2d 254 (1995).
and conclude that police are not required to adhere to the rule of announce'
ment when executing a search warrant involving felonious drug delivery.
+++
Write oU[ the amwers to the questions based on the previous ("Jse.
1. What is the dilTeren(e between a case-by-case exception ,lOLl a blanket
exception?
1 What <lre the two b.lSi( reasons for permitting police to ignore kno(k <lnLl
announce in this parti(lIiar case?
.......
3. 'Nhy is this court not overly con (
rhis case? .vith the privacy righrs of Richards in
4. The defendant maintains that;]n error wa '"
error? s made In hJS {nal. What was that
5. In what way is (his case based on Wilson v. Arkansas?
Collaboration: Pair Work
ReJd the folio ' "
wmg portIOns trom the US Su
Wisconsin,_U.S._. 117 S CI l416 .. preme Court decision in Richards v.
" .137 LEd 2d 615 (1997) Th . .
out answers to the questions that follow Each' '. . en, In pairs, write
one report. . pan will be allowed to submit only
Richards appealed his case to Ihe US S .
The fOlloWing is a portion of th d ..... upreme Court, whJCh chose to hear it.
e eCISlon In that case.
+ + +
In Wilson v. Arkonsos 514 US 927 (
Amendment incorporates 'the . I 1995): we held that the Fourth
. Common aw reqUIrement th t I' .
tenng a dweUing must kno k h _ a po lee officers en-
c on t e door and announ th" .
pose before attempting forcible ent . At . ce elr and pur-
the "flexible requirement of re rybl the same time. we recognized that
asona eness sho Id t b
ngid rule of announcement th t' u no e read to mandate a
a Ignores co t T
ests," id., at 934 and (eft Ut th 1 un ervallllg law enforcement inter-
, a e ower courts th t k f d ' .
cumstances under which, e as 0 etermmmg the cir-
n unannounced ent .
Amendment." Id., 936. ry IS reasonable under the Fourth
In this case, the Wisconsin Supreme Court co '.
are never required to knock d ncluded that police officers
an announce their p
search warrant in a felo d . '. resence when executing a
ny rug lOvestJgatlOn In s d" .
Wilson holding and concluded th t W.ts . . 0 Olllg, It reaffirmed a pre
disagree with the court's con 1 1 on dId not preclude this per se rule. We
c USlon that the Fourth Ad'
blanket exception to the k k men ment permits a
noc and announce requ' e t . .
gory of criminal activity But b . If men or thIS entire cate-
. ecause the eVidence
officers' actions in this case establishes that to support the
nOunce was a reasonable one d h . the declSJon not to knock and an-
un er t e CJrcumstanc ffi
of the Wisconsin court. es, we a rm the judgment
On December 31 1991 I' . ,
, , po Ice officers 10 M d' W
warrant to search Ste' R' h' a lson, lsconsin obtained a
lOey IC ards hotel roo d
nalia .... The police requested a t h m or rugs and related parapher
warran t at wo Id h .
authorization for a "no k k'" u ave gIVen advance
noc entry mto the h t 1
explicitly deleted those p rt' foe room, but the magistrate
o Ions 0 the warrant. App. 7, 9.
Origins of the American Legal System 29
The officers arrived at the hotel room at 3:40 a.m. Officer Pharo, dressed
as a maintenance man, led the team. With him were several plainclothes offi-
cers and at least one man in uniform. Officer Pharo knocked on Richards' door
and, responding to the query from inside the room, stated that he was a main-
tenance man. With the chain still on the door, Richards cracked it open. Al
though there is some dispute as to what occurred next. Richards acknowledges
that when he opened the door he saw the man in uniform standing behind Offi
cer Pharo. Brief for Petitioner 6. He quickly slammed the door dosed and, after
waiting two or three seconds, the officers began kicking and ramming the door
to gain entry to the locked room. At trial, the officers testified that-they iden-
tified themselves as police white they were kicking the door in App. 40. When
they finaUy did break into the room, the officers caught Richards trying to es-
cape through the window. They also found cash and cocaine hidden in plastic
bags above the bathroom ceiling tiles.
... [T]he Wisconsin court found it reasonable-after considering criminal
conduct surveys, newspaper articles, and other judicial opinions-to assume
that alL felony drug crimes will involve "an extremely high risk of seriou-s if not
deadly injury to the police as well as the potential for the disposal of drugs by
the occupants prior to entry by the police." Id., at 847-848,549 N.W.2d, at
219. Notwithstanding its acknowledgment that in "some cases, police officers
will undoubtedly decide that their safety, the safety of others, and the effec-
tive execution of the warrant dictate that they knock and announce," id., at
863,549 N.W.2d, at 225, the court concluded that exigent circumstancesjusti-
fying a no knock entry are aLways present in felony drug cases ....
We recognized in Wilson that the knock and announce requirement could
give way "under circumstances presenting a threat of physical violence," or
"where police officers have reason to believe that evidence would likely be de
stroyed if advance notice were given." 514 U.S., at 936. It is indisputable that
felony drug investigations may frequently involve both of these circumstances.
[n.2] The question we must resolve is whether this fact justifies dispensing
with case by case evaluation of the manner in which a search was executed.
[n.31
The Wisconsin court explained its blanket exception as necessitated by the
special circumstances of today's drug culture, 201 Wis.2d, at 863-866, 549
N.W.2d, at 226-227, and the State asserted at oral argument that the blanket
exception was reasonable in "felony cases because of the convergence in
a violent and dangerous form of commerce of weapons and the destruction of
drugs." Tr. of Oral Arg. 26. But creating exceptions to the knock and announce
rule based on the "culture" surrounding a general category of criminal be-
havior remphasis addedJ presents at least two serious concerns. {n.4]
First, the exception ( isiderable overgeneralization. For example,
while drug investigation frequently does pose special risks to officer safety and
the prese/Vation of evidence, not every drug investigation wilt pose these risks
to a substantial degree ....
A second difficulty with permitting a criminal category e>:ception to the
knock and announce requirement is that the reasons for creating an exception
in one category can, relatively easily, be applied to others. Armed bank rob-
bers, for example, are, by definition, likely to have weapons, and the fruits of
their crime may be destroyed without too much difficulty. If a per se e>:ception
were allowed for each category of criminal investigation that included a con-
siderable-albeit hypothetical-risk of danger to officers or destruction of evi-
dence, the knock and announce element of the Fourth Amendment's reasonable-
ness requirement would be meaningless.
Thus, the fact that felony drug investigations may frequently present
circumstances warranting a no knock ent'Y cannot remove from the neutral
scrutiny of a reviewing court the reasonableness of the police decision not to
knock and announce in a particular case. Instead, in each case, it is the duty
of a court confronted with the question to determine whether the facts and
circumstances of the particular entry justified dispensing with the knock and
announce requirement.
Although we reject the Wisconsin court's blanket e>:ception to the knock
and announce requirement, we conclude that the officers' no knock entry into
Richards' hotel room did not violate the Fourth Amendment. ...
+ + +
1. What Me the cruci;]1 facts of the casl..'?
2. What is the legal reasoning that aBc-wed the Wisconsin Supreme Court to
issue a blanket exception to the knock and announce rule?
3. In what way had the U.S. Supreme COUrI "invited" courts to create exceptions
to knock and announce as was done in R;chards v. W;scvmin?
4. Does the U.S. Suprcille- Court agrt'e th.u in Richards v. lVis(ol1sili the otlkers
were justified in ignoring knock and announce? Why or why not?
5. "ThaI is the U.S. Supreme Court's basic response to the Wisconsin blanket
rule? Why?
6. What is meant by the phrase '''culture' surrounding a gener;)l category of
criminal behavior"?
7. Do you think thai if the \-Visconsin bhlnket rule were allowed to stand, a judge
granting a search warrant could order officers to knock ilnd announce in cer-
tain felonious drug investigations in which it appeared there were no special
risks? Why or why not?
8. In the end. who must determine if a "no knock" entry is
Origins oj the American Legal System . 31
_. . h US Supreme Court's decision satisfactory for thc
9. In your opmlOn. t Cd 'h' rts'
r tl e'lCcuseu an I e cou .
po Ice, 1, . h I nded if you had been a justice of the Supreme
How would you ave respo
10. Court and had to decide the case?
Oral Argument: Role Play
. work in airs; one of you is a judge and the other is a pro:e-
Select;] partner ,Ind. . P b. . 'rch warrant to search Sharlene Wd-
ho IS tryIng to a tam a !:ie... .
cuting attornt.:y . a warrant The attorney must attempt to
h e The Judge agrees to ISSUI..'. f
sons ous. b d this information rom
. h dge to issue a no knock warrant ase on convmce t e JU
Wilson v. Arkansas_
+++ .
. November and December 1992, petitioner Sharlene Wilson made a senes
sales to an informant acting at the direction of the
P I I late November the informant purchased manJuana and me . p
o ICe. n, b 0 December 30
. t the home that petitioner shared with Bryson Jaco s. n ,
ammea dt etherat
the informant telephoned petitioner at her home and 0 me d b l
a local store to buy'some marijuana. According presented 't
etitioner produced a semiautomatic pistol at thiS meetlOg and wav: 1 10
face, threatening to kill her if she turned to be working for the
police. Petitioner then sold the informant a bag of manJuana.
+ + +
Reading for Details: True or False
Use thl..' extract from Ricll/Jrds v. Wisconsi" to determine if the followi ng S[Llte-
rnents ,Ire True (T) or (F).
.. J. . ,':1. lOOUlh:cmcnt rule in I. The U.S. Supreme COLIrt mantiJrt: J f1gll al
v: Arkallsas. _ ffi pted to
. . '. knock search warrant, a police 0 lcer altern
2. Atter securing a no . . _ . n
of
3.
the ruling in W;{SO/l L'. Arkclllias. .
E -I rt must decide if a no knock warrant is not.
4. ,lL 1 COU b -f!' t t JUStify a no
5. The possible destruction of evidence may e sut lClen 0 .
6 U.S. Supreme Court agreed that the no knock entry was jus-
. . . - d h 'tV' - n 'in blanket t'xLepllon tified, in their Jict.l, the court crltlcrze t e ISLa!:i .
to knock and announce. h k-k
7. Tht! U.S. Supreme Court agreed with the trial court th.1t t e no nOL
entry in this case was appropriate.
32 . Amedcan Legal English
;----------
,
8. U.S. Supreme Court criticized the magistrate who (ailed to give the
police officers a no knock warrant.
9. In its decision, the U.S. Supreme Court wanted to achieve a bJlance be-
tween the needs of the police and the rights of citizens.
The U.S. Supreme Court held that the evidence obtained by the no knock
entry have been suppressed in {he original trial bcc.mse the blanket
exception the Wisconsin Supreme Court mJintained was incorrect.
Simplification and Interpretation: Paraphrasing
Here is the federal "knock d " '. .
" . an ,lnnounce stature wntten In torma/leg,1/
USll1g English, rewrite this statute and add <It /e,lst five examples to"illus-
trate the me;lI1l11g of the text.
18 U.S.c. 3I09. Breaking doors or windows for entry or exit
The officer may open any outer or inner door or window of a house or
any. pan a house, or anything therein, to execute a search warrant, if,
o.t hrs and purpose, he is refusL!d admittance or whl'n neces-
sary to liberate himself or a person aiding him in the execution of the warrant.
Rewrite: __________________________ _
Examples illustrating the mcaning:
I.
2. ________ _
3.
4. _____________ _
5.
Legal Writing
You. law pro.fessor .It the University of Memphis and have been asked
In a legal history conference with both law .lnd history professors
tram the regIOn You h;1Ve b k db
.' cen as e to su mIt <l tVlo-page summarv of the legal
your for the conference proceedings. Although it ;vill
.] ILUII to your system in two p.lges, that is all the SP;]ct' that is .
"IvaI able. :ou will obViously have to limit your description to the most import'tnt
t' ements. '
Chapter Two
Legal Authorities and Reasoning
Activity 1
In Chapter One, we talked about the development of the u.s. legal system. Let's
say that you are an attorney defending a woman accused of involuntary man-
slaughter [unintentional killing of a human usually caused by reckless conductl.
If you were defending this case under your laws, in which order would you rJnk
the importance of the following types of legal documents.
1. lin article in J law review (a legal journalJ discussing trends in involuntary
manslaughter punishments
2. a treatise on involuntary manslaughter written twenty years ago by a fa-
mous law professor
3. a five-year-old (national or federal) statute defining the elements of invol-
untary manslaughter
4. a case decided Ins I year in the same jurisdiction that is almost identical to
your client's case and in which the defendant was found not guilty
In Chapter One, we discussed many of the premises in AmericJn ;lI1J
common bw: holding/dicta, precedent, and the adversarial nature of the common
law system. In this chapter we will examine the ways lawyers apply their under-
standing of the:o;c premise:o; in prepJring lheir (,1St'S through rcsc,lrch.
Perhaps the simplest way to go about explaining legal re;lsoning in the Ameri-
can system is to examine it from two different angles-legal authority, which is
the raw data that an attorney may gather through intensive kgal research, and
legal reasoning, which involves an ability both to read and to understand the
sources that the research yields. The lawyer then lIses these two different Jngles
to assemble that information into a coherent whole used to represent his or her
clients.
33
IiIll/m(On Legol English
-------------------
Lawyers in any jurisdiction in the L :'ed StoHl'S rely on legal authority in Of-
def to win their cases. Ll!glll tllllhority is a very general term used to refer to a case,
slatute, regulation, treatist', law review article, or other legal reference Source.
These Sources may either provide information tha! will be binding on a court,
forcing it to follow the line of reasoning in a previous decision (precedent), or
they may provide information that is merely persu.lsive information that may
possibly sway a judge to decide in .1 client's but does not require the judge
to act in accordance with the previous decision.
legal authority is binding only when it is precedent Precedent is.1 case opin-
ion that guides a judge in subsequt.'nt c.lses bcciluse Ihe prior C.lse has similar facts
or raises similar issues of 1.1W. Judges decide Cases before them on the basis of
principles established in prior decisions. As We discussed in Chapter One, this
common law concept is called stare decisis.
Activity 2
You are an attorney prep<1ring an appeal for your client, who has been convicted
of involuntary manslaughter. Keeping in mind Ihe principle of stare decisis set
out in the paragraph above and the concept of binding authority you learned in
Chapter One. rank the SOurces below, which have been slightly changed from
Activity L. based on what you think their authoritative weight would be in the
U.S. legal system.
I. a recent law review article discussing trends in involuntary manslaughter
punishments
2. a treatise on involunt;]ry manslaughter written twenty years ago by;I fa-
mous law professor
3. a fi.ve-year-oldslate statute defining Ihe dements ofinvolul1t.lry
mJnslaughter
4. J case decided last year in Ihe juri:.;diction that is .I/most identicl1 to
your client's case and in which the defendant Wi1S found not guilty
Activity 3
I. Divide into groups of three and discuss your .1I1SWcrs. vVae there any signifl-
CJIl[ differences in the rank order?
1. If so, discuss the differences and arrive.lt one group answer to be presented
and supported for the rest of the cbss.
Legal Authorities and Reasoning . 35
Level II: Legal Listening and Writing
EssentiaL Terms
I
. t'ff' the aggrieved party who institutes a Ieg<1l action
paIflI. . .nId
h t ag-linsl whom the gnevance IS I e
defendanl: t e par y '. . 'e to have a higher court review the
appeal: a reqw:st by the 10sIIlg party III a cas
application of I.l\v . .
h t lpp ding '1 lower court s deCISIOn
appellant: t t.' pM y. t.:. .' . ,.' t hom the appelbnt sceks
appellee: the prevailing p.lny In J lower court agalns W
an appeal . h h ower to hear cases and im-
jurisdiction: the area(s) over whICh a court as t e p
ose its judgment . .
p d the case back to the lower court III certam remand: An appellate court may sen ,
circumstances for further action. . b th fa -Is Jnd
. ] ourt: the court having initial jurisdiction over a case, heaTing 0 ,L
and blsin its decision on an application of the law to the facts .
ce;; denied 'the of the Supreme Court of the United St;tes to an
a' eal' the document filed to ask for the appeal is the writ 0 .
PP f' t' ,the legal basis for a court case; facts that trigger the appbcatJOn
cause 0 ac IOn, d f;'1 t state.1 C;JUSC
of a particular law; C;JSCS are sometimes dismisse or;.11 ure 0
of action
. h t i -e The first time. ius! tl listen to the following conversatIOn on t e t.lpe W L '. . .. , .,r.,te
. h f; II . questIons on a ::ocp listen. The second time, ;Jtrempt to answer t I..' a owmg
sheet of paper.
In which countrY is this conwrsation laking
What does pulling something out of the fire:' mean?" d' .he reollv
3. 'When Simone says "you might want to keep III mmd, what ot.;s S ,

4. Can vou address the judge from your seat?
do you call an American judge in the
5. .' ]
6. Is there a speclilJterm tor attorneys.
"" h,,'"
7. \Vhv does Simone say. ouc . . I f h
8. would YOll spdl the American pronunciation ot the last eUer 0 I I..'
alphabet'
C e "iVls" for IIlV American woman?
9. an vou us I. '. I . ?
Why. 'does Simone joke with Jens about the term Il/g I tu1JC. [0.
""'" ILUlI I..l:fya( tngl1511
n. Use the esscnti;11 terms and the oncs yl .blTned (rom fens and Simone to
compldl! the memo st<HkJ lor YOll.
Lee. Hall, :lIIu Hurley. P.c.
Ttl: Weihraut:h
From:
SubjeO:I: Prl'lilllin"ry fnforlllallOn Oil lile BraJ..-c Case
Dale:
Simone Fort has ;lskeu me 10 explain Ihe (;:U;IS and issues orlhe Hradec
CISC 10 you. OurcJieni. Lorella Hraul'c,:1 well-known dancer. :iUetllhe privalcJy
fundcd j\hly Ballci or Prague (hencefonh MBP) [or breach o( COniracl. As
anomey for the _______ B
, en Johnson allcmpleJ 10 show Ih:ll MBP
had brc;lChed Ihc In N<.:w York hy nol paying Mo;. HrauL'C (ollowil1"
o
hcr car accidcnI in whi'h h b k hi'
(" S t: ro e cr ell arm. mainraillcd Ihalll could
nOlbcsuedin!h'US" M H d
t: ... S. fa cc was 10 ha\'c pcrfonned in MOP's homc
Ihealcr in Prague, Ihc Czech Rcpublic. The
____ coun. misl,lkenly
illlerpfCIinl! Ihis cas' '1 . C- rr u h .
. -t:. S a 109 un cr I e ForeIgn Sovereign fmmunrries Al'I.
lilUnti fnrihl! - ____ ..... k has chm'en 10 ____ Ihe
tkclsion. Alll1a( poin! Ms. FOri was givl!11 r..:sponsih,liIY for Ihl!
---
As anomey for Ihe _______ _
. Ms. Fort musl!ilc an
------brid oUllining Ihe r", lh .. _____ _
- - ., L' .. ,\1:;. FOi1
fl!els IhJI our ground lin i.o; Ihe Jurist/klion;!1 Werc Ihl're
minim;LI II ilhin Iflc l'Jlik'd SI:" ...:;; 10 grant Ihe CLlurl
--------? As ajurisuiclional you will provc invaluable
in cOlwincing Ihe appe,lis CtJUi1 10 _____ _
Ihe 10 Ihl! lower coun
for;] ret:valualinn of Ihe
Normally. when we think of reason or reasoning, we think in terms of motive. \rVe
watch our friend Paul throw his piano out the window. \<VhJt made him do that?
Had he decided never to play again. or had he simply pushed the instrument too
hard as he was cleaning his house?
The same need JnJ search for a reason apply in the legal context. but the
dedying motive is b,lseJ bOlh on statutes and on case law. In order to underst.md
the legal rc;}soning in a particular jurisdiction. a prJcticing attorney must not
only look ,It thl' codes/statutes but must also review the case law thJt 11.15 evolved
through of the original statute or statutes. By understanding how
to read cases. which in the American system are interpretations of the statures. a
practitioner is able to research a point o( law thoroughly and thereby effectively
counsel clients.
Case in the legal sense has two meanings. First, it refers to a legal action be-
tween two or more parties that is initiated in a trial court, often with ajury {citi-
zens who issue a verdict (decision by the jury on liability of the defendant) Jfter
hearing bOlh facts and law]. The case may move through the v;Jrious of
the court system on a series of appeals in which there are no juries. Second. case
is also a term used [Q refer to the written opinion of a judge aniculating the
tiona Ie of the decision of the court through an explanation of the I;J\V Jnd its
application to the in that panicular case.
Understanding Legal Citations
A leg,ll cit;}tion refers to the full text of a statute. a C;JSC. or some othcr source of
legal information. The important thing to remo::'mber is lhese cit,ltions Jre
illways unambiguous: rhey tell you exactly where you can locate the original
menL If the legal citalion is to a statute. the citation will direct you to the appro-
pri.lle volume and section Ilumba of the coJe. For II{ FS.C. 100 I
woulJ rl'lt-r to the 100 1st sec lion of the 18th volume of the United States Code.
It the cil.Hion is [Q a case, it will cont:1in both the style of a case or heading
{the names of the parties who are involved in the litigation] and sufficient infor-
m;Jlion to iocJte the text of the C;lse. Full texts of cases are found in volumes
called reporters. which record and preserve decisions of J particular court or
courts i.llld are usually based on geography. There are slate reporters. regional
rcporters. federal reporters, Jnd U.S. Supreme Court reporters. In regional
poners. for example. cases heard in state courts in Delaware Jnd Connecticut <lre
reponed in the Arhmtic Reporter while cases he.ud in state courts in Alaska Jnd
Arizona are found in the Pacific Reporter. Other region;}1 reporters for state cases
inciL:de tht! South Eastern. thl! South Western, tht! Southern, and the North East-
ern g,eportcrs. Feder.11 Reportt"rs (F.lF.2d/F.3d) report on i.lppdlale C'1ses. Jnd the
Feder;}l Supplement (F. Supp.) reports on CJses heard in district courts.
In a civil case, rhe losing party may apJ at least once as a matter of right.
The court that has power to hear that appe ..... called the appellate court. Nor-
mally this is the intermediate appellate court since most states and rhe federal
system have three-tiered systems. Since the facts are considered to have been de-
termined by the trial court, the appellate court will only hear questions of law. In
other words, the question becomes whether the trial court understood and acted
in accordance wilh the law in the jurisdiction.
The following Cholet will help you visualize how the cases move from court to
COurt.
Levell
Trial COllrt_
State system: e.g., Circui! Court
of Shelby County, Tennessee
Federal system: District Court
State Courts
Level 2
Appellate -
c.g., Court ofAppcals
ofTenncssec
U.S. Court of Appl'als
levc/ 3
COllrt of Last Resort
e.g., Supreme Court
of Tennessee
U.S. Supreme Court
Each of the fifty states and several territories has its own system so the chart above
and the explanations below are very generalized overviews.
Level J: Trial COlirt
Also referred to as the court of general jurisdiction, the court of record, or the
court of origillJI jurisdiction
PlaintiJI versus ddendant: jOllllSOl1 v. PletllikoJI
Issues oUJct: what happened?
jury is presl'med with evidence and renders verdict
Issues of hnv: was the defenda nt's action legJ.1 or illegal?
judge presides over case, instructs jury on 'olW, enters juJgment
The losing party has appeal as;l mJtter of right to Ihl' next It.'\'eL
Level 2: Appd/flle COllrt
Intermediate appel/a Ie jurisdiction
Appellant versus appdlee Or petitioner versus respondcnt
lOSing party versus winning party in the previous trial or sometimes appellee
versus appellant depending on the triJ.1 (ourt designation
Only issues of law may be considered by thl' appellJte court.
<1. prejudicial error-remand for new tri.ll: start over
b. reverse trial deCision-judgment for appellant: 10.st'T in Level I becomes winner
I'd' '.' -J'udgment for appellee: winner in Levell stays c. affirm tnal court t;CISlon
winner I <. om this level is normally at the discretion of the next higher court.
An <lppea Ir
Level 3: State Supreme Court
Appellate jurisdiCtion or the court of last resort
ellant and appellee/petitioner and respondent . >
App , 11 th the US Constitution or leder"IIJw, no appeal" Unless there IS il can ICt WI ..
possible. , r I
- t - re the liml Jrbaers 0 state aw. The st.lle supreme LOur S J ,
Federal Courts _
. 'd d . I geographic circuits, plus a circuit tor
The f:deral e f and a federal circuit. 18 U.s.c. 41 gives
Washmgton, D.C. Istnct 0
the jurisdictions.
41 Number and composition of circuits '..
'. . d- -- I -- -t f the United States are constituted as follows. The thirteen JU ILia LIfClll s 0
Circuits Composition
District of Columbia
First
Sc:cond
Third
Fourth
Fifth
Sixth

Eighth
Ninth
Tenth
Eleventh
Feder.ll
District of Columbia
Maine, Massachusetts, New HJmpshire, Puerto
Rico, Rhode Island
Connecticut, New York, Vermont
DelJwarc, New Jersey, Pennsylvania, Virgin Isl.;mds
rvfJryland, North Carolina, SOllth Carolina. Vir-
ginia, \Nest VirginiJ. . . ' ..... _ .
District of the Can;]1 Zone, LOUiSIana, MISSISSIppI,
Texas
Kcntucky, Michigan, Ohio, knncs:ice
Illinois, IndianJ, Wisconsin .
Arkallsas, Iowa, Minnesota, Missoun, Nebrask.i,
North Dakota, South Dakota
Alaska, Arizona. California, Idaho, Mont3I1a.'.
Nevada, Oregol1, \Vashington, Guam, Hawaii
Colorado, Kansas, New Mexico, Oklahoma, Utah,
\Vvoming
Florida, Georgia
All Federal judicial districts
.18 Legal English
------------------
are also special of U.S. Court r u.s.
(U.S.), Supreme Court Reporter (5. Ct.), and the lawyer's Edition (L.Ed.,
L.Ed.2d) I and the various state reporters, which are often just excerpts from the
regional reporters.
Of course, it would be impossible to report all cases heard at the federal and
state levels in the United States. Statutes establish the criteria for inclusion of cases
in the reporters, Once dL'cisions are published, they serve as precetil!nt for Jny
future decisions in the same jurisdiction.
The style of case (the names of the parties involved) W,IS mentionctl earlier,
and it is good to keep in mind that the order of parties may, in some states, switch
back and forth through a series of appeab. This name changing can be very
fusing unless you are able to decipher it. For example, in Alasb Sherrie Johnson
sued Patrick Pletnikoff. The trial court designation (as in all states) was johnson v.
Pletllikoff. Sherrie Johnson won at the triolleyel, so Patrick Pletnikoff appealed
the trial court's decision. at which time the style changed to Pletniko!f v. johnson
[P1ctllikoff v. /ollllson, 765 P.2d 973 (Alaska 1988) J.
In most other states and in the federal system. the appellate courts retain the
original trial court designations on appeal. fn:1 Tennessee appdlate case (one of
the states that retain trial Court designation), Sandra Kilpatrick sued James "V.
Bryant for medical malpractice. She lost at the trial court level and appealed.
The style of the case on appeal was Kilpatrick v. Bryant (Kilpatrick v. Bryaw. 868
S. W2d 594 (Tenn. 1993)). The same would have been true if ,he had won at the
trial court level and BrY'lOt had appealed.
How, then, does an attorney know Wh.H'S going Oil? fn th.e he.ldnot\!, many
states indicat\! arter the party n.lmes the case history (e.g"
ff not, the attorney's next option is to read [lie summary of
[h .... case in the headnote or delve into the ,Ktual court opinion.
Actually loc.lting the case in a reporler is simple once you understand the
shorthand used in case citations. Let's look:lt one citation (often called just a cite)
to see what we can learn: P/l.'llIikojfl: 765 P.2d lJ7) 19X5). The
case is found in the 765(h volume of the Pacific Heporla, Second Series, on
page 973. The case was decided ill AIJska in 1988.
Exercise 1. Citation Review '
In pairs, review the fol/owing citations and answer the questions for each.
UI/ited States v. Alvarez, 755 F.2d 830 (I' th Cir. 1985)
-12 U.s.c. 9401 (1938)
CromptOI/ v. Commol/lVealth. 239 V;]. J 12,389 S.E.2d 460 ('990)
Dav;; v. Monmllto Co., 627 F. Supp. 413 (S.D. W.Va. 1936)
Kan. Stat. Ann. 59-102 (1933 & Supp.
Hal/l'. United States, 454 A.ld 31 <! (D.C. 1982)
What type of authority is cited? .
In which publication on which page would you expect to find (he materIal?
Is it a state or federal decision/statute?
3.
locating the Information
Th first step in researching the legal authority in a jurisdiction is il search
.e d scriptors lwords that represent general categories of informatIOn]. You
usmg e LEXIS \V tI
may conduct ;l search using.1 computer if you have access to " Of_ es aw,_
for example. Or you may conduct J manual search in which you go to s,hdves ot
law books and search for statutes, cases. ,md other types of legal authonty that are
on point [deal with the issue you are researching].
There are general information sources. also known as secondary sources, such
as Corpus Juris Secundum [C.J.S.] or American [Am. Jur. J (both
forms of legal encyclopedias I that will lead you to speCIfic cases. You may sea.rch
by word descriptors (e.g., "wrongful death") in the-indices of the encyciopedJas
for references to specific sections in Am. Jur. or c.J.S. A general statement Df the
law is provided in the section, and case references interpreting prior cases and
statutes are listed in footnotes. Be sure that you also check the pocket parts I up-
dates that indicate the newest decisions]. In addition, there are also
updates that should be reviewed or you may find and use deCISIons,
You can also check other types of materials such as
1. Words and Phrases: an set that ust's cast's to define-legal
words and phrases; .
2. federal and state digests: volumes wilh extensive c<lse law sumrn,lfit's (an
be localed using a \Vesr Key number (discussed later in this ch;lpter) or
scriptive words; and
3. annotated statute books: code books with cases listed in footnotes, such ,lS
Ullilcd ShUt'S Code ;\/IIJOtated I U.S.C.A.I.
Understanding the Court System
In order to read cases and decipher "lse histories. it is necessary to understand the
general framework of the American court system. When a cause of action. [(called
claim for relief in the federal system) the acts or omissions necl'ssar: ,to J
lawsuit] occurs, the plaintiff. or injured party, files a comphlint I petIt.lOn I the
court having jurisdiction over the marter. The petition reque:ts a ot the ,
facts by the (ourt. Every plaintiff who follows the procedure tor submJltmg peti-
tion receives his or her day in court regardless of the merits of his or her
However, lrial judges may almost immediately dismiss cases they to be
010 us. or the m.Jtter may be settled out of court prior to or even dunng the ,lelu;\1
trial of the case itself.
42 . American I -, English
--------
Th!'" following ch<lrt gives <In of structure of the courts and
the various types of opinions the U.S. Suprcme Court issue.
u.s. Distl"icl Com!
I . ; .... bJc 1Ip or lrial of origin;l! jllrisdit:tilln: ninety.lilUr
tllc or Columbia ;I1lJ Ill": ILrfilmi..:.';! -
, Olll' juJ!:,e :Lnd. ir d..:sin.!d. ;1 jury
3 ..\prc;11 l1l;Jth,:r III right
tel'eI2: V.S. COtlrt1l of . .\ppcnl
I. Thirtcen courts or appell.ltt: in Ihe I'arious ,ircuils
, Bank t;Jlso refcrrcd 10 as a pand) or (hre..:
J. Appc.llio U.S. Supreme Coun only via petition forl\rit of certiorari
Irequt:sl 10 Ihe U.S. Suprcrnt: Coun ror rt:vio.!w)
Lenl J: U.S. Supreme COlirt
I. Nino.! mernbt:rs:
nomin.lled by the pro.!sido.!l11 and eonlimlt:J hv lho.! SCn<lh:: rnav So.!rvc for life
1. Appellants must pctilioll for writ of the to hear lhe
appeal
a. ct:rtiorari (ccrt.) granlcti if four member.; \"ole 10 he;Lr Ihe case
b. cert. denied i( less than rour rncmoers vote to hcar thc GLSe
J Opinion lypes
a. per curiam Opil1l0l1 [unanimous dccisillr1J
b majorilY opinion jopininn sharcu oy Ihe m;ljorilyj
E\alllple: 6) six juslit:es .lgfL'l.' on nnc opinion
1.:. pluralit) opinion j Jin;llllutenme agreerJ 10 by majority but fur

E:mmple: 6-3 write (lilC concurring opinion.
threc writ!! ;Jllo[her concurring npmion. one her own
opinion. ;LnJ
d. concurring opini(lIl j.L.:;rct:s \\ ilh [he m;ljnrilY Jccision for ditTen:nt
reasonsl
c. disscnling opinion jopinion ,gin'n by a jU\III.:C not Jgn.ein!! wilh Ihe
ll1tiorityl -
-I. No .1ppeal is
Supreme Coun deCisions arc binuin,g in ;ill jurisdiction:. in Ih..: Uniled Stales.
Howewr. the Supreme COlin may Il\"('rru!c own (';lrlier dccisions_
,
f .
Legal Authorities and Reason;ng . 43
I. At whallevcl is;1 jury trial possible?
2. In wh;.!t \\'ay is the Supreme Court difrerent from all other U.S. courts?
3. HO\-'J can ;1 stJte case be appealed to the federallevcl?
4. \Vhat would lat. dCl/icd mean to an appellant?
5. \-Yould ,11ll.llmity opinion C<lTrY as mw.:h authoritative: weight i.lS;\ plurality
dl'cisioll
Reading the Case
Alter locating;J case in your jurisdiction. it is necessary to lJke a clost'[ look to de
termine ii it will prove hdpful in answering your reseJrch question and providing
precedellt. To the uniniti<llcd. cases appeuing in any of the reporters can at first
seem very confusing. However, once a few basic org<lniZaliollal concepts Me mJS-
tered, the rese;ucher will appreciate that the cases are arranged in il way lhat pro
vides maximum amount of data in the minimum amOUnt of limt.'.
The order and n;:lture of information given usually follow the same or J similar
format based on a system used by West Publishers, the primary kg<ll reporter pub-
lisher. Cases obtained from the Internet will not normrllly have headnotes but will
go immediately into the opinion. Headnotes from West's simplify rCJding of the
case bec.lllse they attempt to summarize the important inform.Hion. So, let's look.lt
u.s. 1'. \I/IIJIC, 552 F.2d (8th Cir. 1977). a criminJI case. from J West publication.
Headnote
The Parties
This scction includes lhe nrlmes of the PJ rties. identification of parties (plaintiff.
defendant. etc.), an identification of the court in which the recorded case was
heard, ;lIld the d;HC of lhe opinion. In the following (hart, we'v!.' prinkd.m ;lCttlal
he;lJnole .IS it would "ppe.lr ill its vertical format in the Idt column ,tntl
tions of each of the lines in the right.
UNITED STATES of .\merica, Appellee
Prosecution
v
\wsus
D;l\'id Lce WHITE, ,\ppd[ant

Dockel Numba
No.
the court's system for finding the (ase in
its Illes
UnileJ St.Iles Court of Appc;.lls,
the courl h.:Ming Ihe Lasc
Eighth Circuit
the
Submittcd :-'1.1r(h 1977
dil(e dppeJI fikd
DC(lded .\pril6. 1997
dille Jecision millie
44 . American Legal English
,---------------
Procedural History
The history is a brief recitation of whilt the courts have done- with this
casco This also includes the basis for review and an abbrevi.lleu recitation of
the prcvioll!i court's holding. There is also il single line indicating the court's dis-
position orthe (;.Ise [Wh,lt the COLIrt decided to do \'I-'ith the casel. V.,Ic have JdJed
e.'\planatory statements in bold to the va rious sections of the procedural history.
+++
Defendant was convicted in the United States District Court for the District
of Nebraska, Warren K. Urbom, Chief Judge, of interstate transportation of a
stolen motor vehicle [previous court's holding-the District Court], and he
appealed. The Court of Appeals held that the evidence was sufficient to support
the trial court's finding that defendant knew the vehicle was stolen and that he
caused it to be transported across state lines [basis for defendanfs appeal
implied-insufficient evidence to support lower court's decision].
Affirmed [Court of Appeals' disposition of the case].
+++
Hlesr Key NlIlIIbfr System
Sections numbered according to a s)'stem of key words provide references to legal
issues. General topics discussed in the case (e.g., Labor Relations, Sales, or Civil
Rights) arc in bold print followed by a key symbol and a number reference to
sections in the reporters' indices that list similar that is, cases that rely on
simil,lr legal principles. \Vhen there is more than one kC)' number in the head-
note, thL'Sl' numbers are numbered 1,2,3, and so forth. The opinion is then
diviued inlo sections by\Vest: [II. [31, ;lnd so on. ThL' numbers inJic,l[e the
sections in which a discussion of the p,lrticular legal discussion can be located
within the text of the opinion. In our example, there is only one key note; how-
ever, a complicated case may contain references to many points of law.
+++
Automobiles 355(12) {Note: A section number woutd be before "Auto-
mobiles" if there were more than one key number in the opinion. Key and
KeyCite West Group.]
Evidence in prosecution for interstate transportation of stolen motor vehicle
was sufficient to support trial court's finding that defendant knew vehicle was
stoten and caused it to be transported across state tines. 18 U.S.C.A. 2312.
+++
Legal Rep'CSetlf11livC5
The nJmes of the attorneys for both plaintiff and defendant, the ,lUorncys' law
tirms, and the city within which the attorneys practice are listed.
+++
Floyd A. Sterns, lincoln, Neb., for appellant.
Daniel E. Wherry. U.S. Atty . and F. Kokrda. Asst. U.S. Atty . Omaha.
Neb., for appellee.
+++
Opinion
The opinion includes thl' names of the judges who heard the case, the holding,
and the rationale. This section is the official court deciSIOn and is what is used
attornevs when writing legal memoranda. The he<ldnOle, which we discussed car-
lier, while useful as a for undastanding rhe case, is not the official opin-
ion. In U.S. I'. White the disposition of the case comes at the beginning of the
opinion. In other cases, the disposition of the case is found after the recitation
of the procedural history/facts and at the end of the opinion.
fudge or fudges Henrillg the Case
+++
S.fore HEANEY, ROSS, AND HENLEY, Circuit Judges.
PER CURIAM.
+++
Procedural Hi5tory
+++
David lee White was convicted by a jury of interstate transportation of a
stolen motor vehicle in violation of 18 U.s.c. 2312. He appeals that convic-
tion, contending that the evidence was insufficient to support the verdict.
We affirm.
+++
I. What is the first word that shows that this case is an JPpeal?
1. \Vho lost in the original trial?
3. Is this a federal or state case?
4. Which word shows that the ilppeals court agreed or disagreed with the trial
court?
5. How many of the circuit judges agreed on the decision? How do you know?
46 . Amedcan Legal English
-'--'--------
Stlltutory or C0ll111101/ Lal\' Basis/or thl' Dt'{is//JJI
After the specific procedural history, the court will often summarize lhe statutory
or common iJw bJsis for its decision. Sometimes.1t the end of the summary, the
court will give the Jisposition or Ihe GISI.'.
+++
To sustain a conviction under 18 USc. 2312. there must be some evi-
dence before the jury which establishes that the defendant transported a motor
vehicle in interstate commerce and that he knew that it was stolen. White con-
cedes that the vehicle crossed state tines and was in interstate commerce. His
principal contention is that the evidence did not establish either that he knew
the vehicle was stolen or that he caused the vehicle to be transported.
When reviewing the sufficiency of the evidence to support a conviction, we
must view evidence in the light most favorable to the government, Glosser v.
United States, 315 U.S. 60,80.62 S. Ct. 457, 86 LEd. 680 (1942). and accept
as established aU reasonable inferences that tend to support the jury's verdict.
United States v. Overshon. 494 F.2d 894 (8th Cir. 1974), cert. denied, 419 U.S.
853.95 S. Ct. 96,42 l.Ed.2d 85 (1974).
+++
FactslBackgTOllllri
A detailed recitation of the t:,cts of the case is given. This includes identitic<ltion
of the parties, the series of events thJt precipitated the lawsuit, and often more
detailed procedural history (rom the lower courts than initi;]/ procedural in-
formation. In our Cilse, u.s. v. White, the (ourl is combining the bcts with the
legal conclusions to be drJwll from the particular (.KtS. This lype of combining
is not Jhvays done.
+++
While in Connecticut, White and two acquaintances were in need of trans-
portation. They located a station wagon which was unlocked with the ignition
key inside. The three men got into the station wagon and drove away, traveled
to Georgia, then Indiana, and finally abandoned the vehicle in Nebraska.
We conclude that a jury could infer from this evidence that White knew
the vehicle was stolen. United States v. Horris, 528 F.2d 1327 (8th Cir. 1975);
United States v. Wilson, 523 F.2d 828 (8th Cir. 1975).
White did not drive the vehicle during the journey. There was testimony
by the other two men that White discovered some money in the station wagon
which was used to pay for gas, that White read the road maps and instructed
the driver as to the proper route, that he helped siphon gas from other vehicles,
and that he was not coerced to remain in the vehicle. Based on these actions,
the jury could find beyond a reasonable doubt that White had joint control over
the vehicle and that he effectively transported it. United Stotes v. Williams, 503
F.2d 480 (8th Cir. 1974); United States Thomas, 469 F.2d 145 (8th Cir. 1972),
cert. denied, 410 U.S. 957. 93 S. Ct. 1429, 35 l.Ed.2d 690 (1973).
+++
I. Wn.lt kind of vehicle was slolen?
2. How did they get the car to start?
3. How did they get gas for the cJr?
4. Was White being forced to travel with the two other men?
5. Vlha! role did White play on the trip'
6. What is interstate transport;]tion?
1. What are the two elements necessary for conviction under IS U.s.c. ::!31::!?
2. Are they present in u.s. v. White?
3. What's the difference between knowing and inferring that \Vhite knew the car
was
4. '-'Vhat allowed the jury to determine that \Vhite transported the car across state
lines?
5. '-'Vh)' is il the (ar be transported across state lines and not just
driven around in ol1e
Rcasolling (Legal DisCHssioll)
A discussion of the point of law important to a final disposition of thc case imd
the for the COllrt's decision normally follow the i.l(ls/backgruunJ sec-
tion of the opinion. When more thJn one issue is involved, the court normally
discusses lhe ration.lle for e.lch issue separately.
+++
Although this evidence was not all uncontroverted and a great deal of the
evidence supporting the verdict was testimony of White's accomplices, it is the
province of the jury to determine the weight and credibility of the evidence.
Even the uncorroborated testimony of an accomplice may be sufficient to sus4
tain a conviction. United States v. Knight, 547 F.2d 75 (8th Cir. 1976); United
States v. Cody, 495 F.2d 742 (8th Cir. 1974).
+++
48 . Amen"coll Legal English
Fillal DispOsitiun vIr"!! Case
The last section of each opinion contains the conclusion of the COurt regarding
tile C"se_ In some instances, the holding of the court is foond in this scction; "t
uther times, however, you must m"ke" determination of tile holding by com-
bining key clements from the wion,Iie of the COUrt_ Here is the holding in OUr
example (;1Se.
+++
The jury had sufficient evidence before it to determine that White knew
the car was stolen, and that he caused it to be transported across state lines.
For this reason, we sustain the conviction.
+++
1. Read IS U.S.c. 2312.
2311. Transportation of stolen vehicles
Whoever tr"nsports in interst"te Or foreign commerce a motor vehicle or
"ircr"n, knowing the same to h"ve been stolen, shall be fined under this
title or imprisoned not more than 10 ye;Jrs, or bOlh.
, look back "t the holding. the difference he tween "tramported across
st;ltc lines" ;1!ld "caused to be transported across st.He lines"?
3. PafJphrose the holding from this case to show that the elements of 18 U.s.c.
2312 necl'ssJry for conviction have been met.
Case Briefings
law students in the United Stales brief countless numbers of c"ses during their
legal studies. One of the rlSons for this is to enable them to brn how to re"d
"nd understand the Coses, especially those that are long and complicated. Briefing
helps you capture the import"nt elements of a case. For shorter cases of one to
three pages, the "brief" is sometimes longer than the actual case itself The point,
however, is an amplified understanding of the law underlying the case and, .once
),ou h'lVe that understanding, the abilit), to read severol cases and synthesize the
to come up with a general rule o(law.
Since there are many ways to brief J c"e, your instructor may give YOll a dif-
lerent format anJ instructions to follow. If not, follow the format given below.
USc the Jctual opinion [or briefing the (Jse rather than the headnotes.
Legal Authorities and ,Reasoning . 49
B . f Eler;;ents . ..
Case ne .. n if you need to review 11 In
.. h Id be able to find the case agal , .
J. CitatIOn. It-, ou _,
full. .. ( . to show the COUrt that the case you
. .. I t r svnthesls I trying - th t h.ls
2 Facts. N'eec:-.: tor a e '. . d .. tinguishable Ir011l the CJse a ,
k I: n is either sllndar to or Is
arewor 10_ - _ -"'-milar"tSSlles. _._,
been lnJ IIlvolvc::. Sl _.. d].lb completely understand the L.lse,
. .: 0 ('tiurJI backgroun .d d.
3
Legal HISlOr. : pr L -ourts h.we dcCI e
f I - t th' lowerc, _ f h
Y
OU must bt Jware 0 \\' 1.1 t: s of hw as rdated to the laLlS 0 t e
. . form] The queslion. ..
4. !ssuc(s) I In "uestlon :. e What are the problems In thiS case. . __
case that tht' ..::ourt must deLld . to the issues plus the matenallaLls
. .. The answers . 1ft 5
Holding(s) and DISpOSitIOn. h I of law becal.!Se the essentla ac s
Id' d'ffers (rom t e ru e , (I
of the case. The ho mg., d' I holding and nol in the rule 0 :.1W,
. I .. mclude m t 1e .
of the partlCu ar c.be are h. f different holdmgs.
I d f om a synl CSIS 0 h. b a
which is de\e ope r .' . f hy it decided JS it did. T IS can t:
6 Reasoning. The court's diSCUSSion 0 w II as public polio, depending on the
mixture of CJses and stamtor}' law, as we ,
issues invo/yt'd in the case,. . dl a licable in this case. This is normally
Rule of Law. The law that IS broa y pp . I fa -IS Other elements of the I.IW
7. .. _I sion of tht! matena . L
the holding wnhollt IIlL u. . ht ;Ilso be indudt:tl here.
that weren't Jppliclblt: to the law nllg ,
., - t and brief u.s. I'.
P
"I)' thiS lorm.l Now let's see how we (;111;1 r
Brier
\1'1-, -,' "'J '68 (8th Cir. [977) u.s. v. II t', :> __ 1-._ _
Facts . .ove that he kne-", the vehicle W.IS
h the evidence docs not pi
Whit" alleges t at I . I to be transported. .
stolen or thai he c.lused .the ve llC e unlocked station WJ!on in ConnectiCut
\Nhite and two <lCcomphces found an
with the key in the- ignition. d d through Georgi;}-md Indiana and
- gon m rove They got in the stattOn \Va .
abandoned the car in
\Vhite did not drive the vehicle.. d the ITI,lp found money in the car, gave
. - -c, I th t Whtte rea , . h'-I
His accompllCes te .... tlllt:( a . t forced [Q stay \\Hh the ve IL e.
- h . s lOd \-vas no directions, helped SIp on ga "
. t tnnsport.nion
Legal HIstory .. h d trict court 0 mtent;lte .
.. d bv\ Jury III t t: IS
\Vhite was (om'lde .... '. .. of 18 USc.
of a stolen motor vchKle III VIOlatIOn
50 . Amen'can Legal English
Issue
Was sufficient evidence presented to the iury to find I\'h', 'It t"
, ." J e gUi yo Illterstate
Iransport<l(Jon of a stolen motor
Holding
Ye,s. evidt'ncc was plact'd before the jury, whose it is to uell'f-
mille weIght ,lIld credibility of tht' evidence, [0 find tl1;11 \Vhite knew that
vehIcle was stokn and th,l( hL' clused the I't'hiclc [0 be trallsported across
mlerstalt' boundaries.
Reasoning
a cOl1viction under I S USc. 2J 12, the defendant must know Ihat the vc-
was stolen and the defendant must have Irllnsported said vchicle.
must bc in the light 1110st favorable to the government when
reviewing lhe suffiCiency of the evidence 10 support a conviction,
All rc,lsonable I hat tend to support a jury's verdict musl be accepted.
The [<lets were sufficlcnt 10 show that \\o11itl' knew Ihe vehicle was stolen and
that he had effective control over it.
The jury is responsible for ddermining the weight and credibility of evidence
before it could find that the accomplices' testimony W,IS of weight
and credibility than thilt of While,
Rule of Law
It is within the jury's prm'ince to ,]scertain weight ,1IlJ credibility of the evi-
Gence, All r('.l:;on;lble inferences that could be dr-lwn b\' til' t' 'd
' . e Jury rom CVI cnee
presented at COllrt will be acceplt'J bv the 'lppcJhtc ',)urt u .
, ' 'I.. pon review.
Now ,that we've you how ro read and brief ,] case, use the briefing format
dC,scrlbed above to bnef /summarize]lhc following case. Some terms that vou
mIght not know are explained first. '
system g,L1,arantees perm,1Il,ent employment for teaching profes-
U.S, Ulliversltles and community coUeges ana a probationary period
ot several yeilrS '
sum
m
"? detCfmination by the court solely on the plc;]dings th,H no
matenal ot klct exists and that one of the p,lrtics is cntitled to win i.l:; a
matter of hlW
chairman: (chair) head of LlJl LlcJdcmi..: department ilt a univer:;itv or communi!\'
college ' ,
Legal Authon'ties and Reasoning . 51
+++
Plummer v. Board oj Regents. Murray State University 552 f.2d 716 (6th Cir,
1977). PER CURIAM.
Gordon S. Plummer was employed as Chairman of the Art Department of
Murray State University for a one year period beginning in 1971. His contract
was renewed for one year commencing July 1, 1972, and for one additional
year beginning July 1, 1973. On June 26, 1973, more than a year before the
expiration of Plummer's third contract, the Dean of the Ulliversity informed
Plummer in writing that his contract would not be renewed for a fourth term
when the current contract expired on June 30, 1974.
Plummer filed suit under 42 U.S.c. 1983, charging violation of asserted
constitutional rights, relying upon Board of Regents v. Roth, 408 U.S. 564,
92 S, Ct. 2701, 33 LEd.2d 548 (1972), and Perry v. Sindermonn, 408 U.s. 593,
92 S. Ct. 2694, 33 LEd.2d 570 (1972). The District Court granted summa",
judgment in favor of the Board of Regents. We affirm.
Murray State University has a welt defined tenure for which Plum-
mer never qualified. We agree with the District Court that the facts of the
present case are clearly distinguishable from those in Rotfr and Sindermonn.
We affirm on authority of Lake Michigan (o{lege Federation oj Teachers v. Lake
Michigan Community Coilege, 518 F.2d 1091 (6th Cif. 1975), cert denied, 427
U,S, 904, 96 S. Ct. 3189, 49 Ud.2d 1197 (1976) [otheratations omitted].
Plummer contends that he received a contract right for tenure under a let-
ter written to him March 30, 1971, at the time he was first employed. He relies
upon the following language of this tetter;
You have been selected as Chairman of the Art Department by a student
committee, the faculty and its committee, the Dean of Fine Arts, and the
administration. We have offered you our highest academic rank Jnd a
salary which is the upper range for chairman. The university has tended,
over a period of years, toward strong departments administered by strong
chairmen. OUT administration provides support for a chairman in this and
would not entertain unprofessional or hasty actions Or movements to un-
dermine a chairman's position. We would operate fro.t] a position of agree-
ing with the chairman when possible, and discuss th! reasons at such
times as requests might necessarily be denied.
We would further propose a procedure in which, during the first three
years in which you might serve as Chairman of the Art Department, a
yearly review would be conducted. This review and cCnsultation will be
conducted near the ninth month of the contract year. This consultation will
provide any guidelines necessary for continued If satisfactory
progress is indicated by the Art Chairman, the Dean cf Fine Arts. and the
President of Murray State University fsicl or his will
52 . America. gal English
Within this same period, if you ceased to act as chairman (for any
reason other than immorality, inefficiency, incompetency or fai/ure to co-
operate with the plans and policies of the University, or faIlure to perform
satisfactority the duties assigned ta you, or far conduct that has destroyed
your usefulness to the institution), you would be considered for immediate
tenure as a teaching faculty member. Existing Murray State Uni
v
e
r
s1ty pro-
cedures for consideration of tenure would be foHowed and Would include
consideration of Murray State University and prior service.
The short answer to this contention is that during his three years at the Uni-
versity Plummer never ceased to act as Chairman of the Art Department and
never became eligible for consideration for immediate tenure as a
faculty member.
Reliance is also placed upon the opinion of this court in 50ni v. Boord of
Trustees of the University of Tennessee, 513 F.2d 347 (6th (if. 1975), cert. de-
nied, 426 U,S. 919, 96 S, Ct. 2623, 49 l.Ed.2d 372 (1976). This reliance is mis-
placed because Soni is clearly distinguishable on its facts from the present
case.
The judgment of the District Court is affirmed. No costs are taxed. The
parties wilt bear their own costs on this appeal.
+- ....
Shepardizing
The..' Aml.'rican legals),sleTll rdies hl';lvily upon Ihe developmenl of bl\' Ihrough
cases. Flexibility, a benefir of that syslem, is a dis.ldvanlage to the legal research
novice. Since there are many influences 011 the court, both legal and societal, a
decision wilh basically the same facts may be decided in two different ways at dif-
ferent times bec]use of or policy changes. Though leg.11 reSC;1 rchers do
not usually encounter Ihis problclll wilh more reccnr C;lses, it is important to bl'
thorough. J\Jerely locating c.!ses is not enough. Ir is ,lIsa necessary to nwke sure
lhat rhe cases found are still considered "good law." Tht' cases may have becn re-
versed, overruled, or reinterpreted in ways thaI make them in,lppropriale or evcn
dangerous to the case you are researching.
In order [0 make sure that the cases cited .1S precedent are truly precedcnr,
you should usc Shepard's Citators, either as hard-copy books or as an Oil-line
service. These cit.ltors give the history of the case in a concise form and identit),
other cases and authorities th,\[ cite the Case as precedent or note thaI the case is
no longer considered precedent. Looking up a GISt' in this work is so crucied that
d h'lS become an integrallerm and concept of American the term shepar IZlI1g
Legal English.
Legal Reasoning
',' .' 'lS drJwn between It'gal authority and legal
Earlier in the a.JI:.rmLtIOn wI', ,1, thorilv is Ihe "What" alld legal reJson-
. T " prj\, It even morc, ega ,IU, . I '.
reasonmg, 10 Slm I. '", J 10 have located sources Iftlere]S
"h "I Ih'r ,,,,ords II no goo
ing is the ow. nOt: 'k' II '111 work for your client. Though there may
d t nding of how to m.l t: l\: h .
no U11 ers a I ' I, 'In t to 'I p.lflicuhlf set of facts, t ere 15
. of 'I code t 1.1l IS re eV, , ,
be only one sec lion , " e -edent A legal researcher or practl-
I I)' one Clse lh.lt can serve as pr l . , d
very rare}, on . . I . h t relate the statUle and the case law In or er
. must find SOllle wa\' Ifl W lie 0 lioner, "
to underst ..md how the bw is appIJed.
Synthesis , .
h f 0 11 onc of two dirccr]onsdepemlrng onlhe oa 'h Icgal reseilfC r I I'
One can appr l .., d' b' ' d and attornevs do nor rc yon cases
' t" CIvIl law ]S co t.: ase , ,
type of law 111 ques d legal commentaries. Common law relies
I 'fy t r" rdvlIlg mstea on ,
to c an SI<1 u t.:!:i, , B' the American legal svstem IS
' I to clarify the statutes. t.:CJuse , .
heavily on case JW I e ability to read and synthesize cases is crucial.
based upon precedent (cases) and SiJrutes work together,
In order to undLT!:it.1Il h" f b th precedcnt;:lOd statutes. There
..' ." to io a legal synt C:;IS 0 0 ,
IllS otlen necess.lq l, I Cd ynlheses aflaw: Corpl/s JUriS
I d'lf 'nt t)'pes 01 works lwt prO\ I e s . I
are severa I (:'[1.:, d I b ks (treatises) on vaflOliS lega
' Jun prudence an lorn 00
S<!ClllltiWtl, Alllt:rICtlll) 'd . I', b Tt), or corporations. However,
' . -h'" I '1 'ts torts, pro uds la I I ,
subjects SUL ,\:. Lon r. , d k' no American ilttornq should ever
"" , nlv lor backgroun wor , d'
these souru.::s arc 0 . Th' k of them as basic en9c1ope las.
. . I' I 'morandJ or III court. m ,
cite these 10 eg.l me J (I [ts 'onlracls elc ) ;,1:;0 proVIdes a
. ,. JlS oj t II' I III V on 0 "l , , .
Thl'ser]es t"Stll/l.lIIt/ . . I ,hi' authority lh.m genefilllt.:gal en-
I . r 1 but is more va U.l e ..
synt leSIS 0 il\V L, '1' f law by various legiil authofitIes,
,. TI" volumes are a COlllpl atlOl1 a . d
cyciupeU];1S, le:.e ' h 1 '\ze the hw on various Issues an
I r"orswosyntles
including judges ,lOti .1W pro ess" , ,, not considered law in Ihe Unired
' t form These statule.s are ..
put it III a statu ory . I' can be found in court opl11lOns
. II t' l-es to Restoternen s St.lIes, but OCC.ISlOIl;l y re ere, c
J' 'ubmitted to the courts. ,
or legal memoran '1:', b I 31 s)'Ilthesis consider the followmg
d d "hat IS meant ya eg., I
To UI1 erst.lIl \ d) f T t K493 (J96j) relating to c asses
" h R' '1' t III 'nt (Secon 0 lor s y ,
"statute' fro,m t t! t.:S.1 e c _", . , ongful death actions, which was de-
. "d I' h mw be beneflcld,fIes 111 \\ r h
of IlldlVI UiI:. \V 0 '. '. , d the comments to the stalute t .11
' .' l tion ot vaflous cases, an
velopt"d tram ,I Lompl a k \II rhal contributory negligence means par-
follow. First, however, you need ro no. " " e 'I de.nh
ti.ll responsibility tor whatever happens, III th]!) Las,. .
54 . American Ltytll English
...(1)3 Beneficiary Under;l Death Statute
(I) Unless otherwise provided bv st;Hutc the con ' .
beneficiary under a death stat .'d ,. tnbuto_ry negligence of one
olher beneficiary. ure Oes not bar recovery lor rhe benefit of any
(2) VVhethcr the contributorr ne '1'" '
st.1turc bus 'd" ,g Igenct' of a bene(jclary under a de'Hh
. or rt' Uces feCo\'en' to the nl' I (h'
upon the- statute. " en 0 IS O\\ln bL'nefit depends
. a. DijJerclll kinds OJdl',lth 5lll/lIlcs. r\ "death' , .".", '
"IVeS'1 right of '1'( . ' st,lIl1tl' IS a st<ltute whlCh
h' ,L agJJnst olle who has WfOngli.dh kilkd .moth.
e.lI statures varv 1I1 (orm d . tT ... ,
(arm of stJtutc is . an pllCpose. ThL' purpose of the more usual
could deriv comPlcnsatc survivors for the benefits which the\T
e rom Ill' e<1rnll1g power of til d d h .
been cut short Wh, h ' e eee eot ad his life not
.... cre t e statute IS of this ryl1e th [; h
is himself guilty of neglige h' h _ ' t' e actt at a beneficiary
nee w lC Lontnbuted to the d [h f h d
does not prevent recovery u I . h ' h ea 0 t e ecedent
n e.'iS e IS t e sale beneficiary,
After fe<lding through such i1 passa Je it is easie Ii "
to have some sense of the are' I . hgh' r Of [he beglllnmg rese;ucher
a In W lie e or she will ' h Th .
Restatement have researched d. h ' reSl'are. e "'nters of the
an S\'nt eSlzed the stat t, d h
pret those cases. ' U Cs an t e cases that inter-
, Another major source of general statements . ,
senes AI1It!ricall /Ilrispnl(/"'.' E h " concerning law IS the reference
(: L(. ae passage m 1\ ] ., ,
law, thl'n partieul"r '.t'l' . 1'- m. ur, gIV(:S an overvIew of the
" "" (: Or reglOn-l cas",l tell I
look at the section in Am ju _ . 'h" (:s 1.\ 0 ow (le general rule. Let's
. r. l.:ovcrlJ1g t e S'ID] , n t - I .
above PJA A J _ "' e 1;1 {'na as 111 Rest. 493
-- m. ur. 2d, Dealh (1988)).
Contributory or c ' .
. , omp<lratlve negligence is availabl > '
eficlJnes whose negligence " I . e Js a defense Jgamst ben-
pro:\lmate v contnbuted t) [h, J h
not against those not guilt,. 01 'h '1' ,( e eat stled on, but
, , SUL Ill'g IgC1lCt: CI til d' I
Imputation. ' er Irect y, or pursuant to
That is the basic rule that allows those benefici-l '.
negligent to reCOver damag" 'f fit'S who arc not contributorily
'-' .. s even lone of til, b, f' , . '
ligcnt. This statement ,'5 the I e t:ne IClaf\CS IS contributorilv neg-
same ru eset fa th' R .
493 (I) (1965). Then Am.lur o'v .. r 'n <statement (Second) of Torts
inrerpreted. . ,.} es an eX<lmple to show holV that rule might be
,in for the deJth of the plantiffs' J 8-month-old Son the
er s fig t to recover against a third "",'
nOI to be affect'd b I' person <lS hlS son s survivor was held
e y neg Igellec on the part o( the mother.
Legal Authodties and Reasoning . 55
Though it looks relatively effortless, it requires putting the skills that you have JC-
quired so far in this chapter to their ultimate use. To be unable to synthesize cases
in legal research is like being a painter who only knows the color chart but cannot
blend its components to produce ncw colors.
Srnthesizing cases GIn be a rather complicated process. Let's take a look at
four cases from Louisiana and try to deduce a general rule oflaw from the cases.
Continuing with the ide.l of contributory negligence of a parent. let us see what
determination Glll be nli1de about parental contributory negligence in wrongful
death cases. Louisiana courts agree with the following genertll rule.
A parent is required only to use reasonable precautions with regard to a child
under his supervision, JS judged by commonsense standards for a reasonably
prudent person under similar conditions and circumstances. Argus I', Schcp-
pegre/l, 472 So.2d 573 (La. 1985).
The question is what constitutes reasonable care.
1. A mother allm ... cd her three-year-old son to go to a swimming pool under the
supervision of tello, and eight-year-old cousins. Returning from the pool,
the child was hit by a truck while crossing the street ilnd killed. Ms. Anderson's
child had bcell laken away from her before for lack of supervision. The mother
was found contributorily negligent. Anderson v, New Orlealis Pllblic Sen,ice,
[IIC.. 572 So.2d 775 (La. 1990).
2. A mother, rel1izing thilt her nineteen-year-old daughter Was high on pre-
scription drugs, sent her to bed. Shc then searched the dilughler's purse ;lnd
removcd the drugs from it. When the daughter came out of her room, the
mother sent her b'lCk to bed .. nd left her under the supervision of a younger
(hild while lhe mothcr attended a meeting in the building. \Vhile the mother
was Jway, the nineteen-year-old daughter found the drugs her mother had hid-
den, took them, and died of a drug overdose. The mother was not found con-
tributorily negligent. Argus v. ScheppegrdJ, 472 So.2d 573 (La. 1985)_
3. A six-ye<lr-old child drowned in a gravel pit 100 feet from his family'S trailer
while under the supervision of his mother, who was in the trailer. The mother
was found contributorily negligent. Humphries I'. T. L. /tw!es 6 Co., 468 So.2d
819 (La. 1985).
4. r\ nine-year-old child drowned in a neighbor's swimming pool. Neither the
mother, who W,lS in her house nearby, nor the grandfather, who was babysit-
ting, knew that the neighbors had a pool. Neither the mother nor the gr,ll1d-
was found contributorily negligent. Simmons II, \Y/li!tillgtoll, 414
1357 (La. 1984).
56 . Amencan Legal English
The following chart might help in your an'llysi:; of thest: Glses.
C<I$C Name Age of Child Supervision
Calise of Death
Negligent
Anderson J years
minor cou:.ins-prior hit by truck yes
lack ofsupervisioll by street
mother
..\rglls I'} years
I
young o..:hdd
drug lH'erdosl' no
Humphries
I fl yeJfS
I
mothl'r
drowned in gravel ycs
pit
Simmons 9 years
I
mother and
drowned in no
grandf.lthl"
Ill'ighbnr's pool
1. In pairs, dccide wh.lt (,Ktors st:em to be tht: most important in determining
whether,] p<1rent was contributorily negligent or not.
, Read the following excerpt from Am. Jur.
One of the most important factors in determining whether il p,lren[ has
been contributorily nl'gligerH ill the de.llh nLl child is the child's age.
1221\ Am. Jur. Dellih (ItJRR)]
3. Does that excerpt aid in rour an<llysis of the Ci.1Ses? Did you draw il conclusion
based on age from the cases? Is it possible th,1\ other factors should be includcd?
Distinguishing Cases
Sometimes'lI1 attorney wishes to show how his or her case is JitTcft:nt frolll pre-
vious cases that provide the general rule. In this situ.lfion, Ihc researcher will
attempt to provide reasons why thl' facts of a case allow till' general rulc to be
modified or even ignored. Making explicit what is different about;J particular
case from other apparently simil,lr Cases is known ;lS distinguishing a ClSC.
For example, as the attorney for the t;1Iher of an eight-year-old child killed in
an automobile ,lCcident, you (Quid use the cases on contributory negligence above
to help build collnterarguments when the ddefl<.iJ.nt attempts to use the defense
of contributory ncgligence to lower or eliminate tht' dam.lge award.
Let us say that the child was struck by Jil autolllobik and killcd on a Saturd.:lY
afternoon while riding his bicycle on Ihe quiet residential street where he lived.
The father, who was watching a football game 011 lL'ievision, had lold his SOil that
it W,1S okay to ride the bicycle 011 IhL'ir street hut not to go further.
As the attorney for the father, you would wtlnt the courl to use the Simmons
and Argll.:i cases. SimllIo11s would probably be the best precedent. since the child is
much closer in age to the child in this case, assuming your case is being heard in
Louisiana. Of course, the age of the child will not be all that is considaed by the
court when determining what a reasonably prudent parenl \youlJ do, but the
Simlllotls Gl.se might a good place to start. You would also to find more
traffic t1cciLient Gl:o;es :iincl.' (he Silllmolls involves a swimming pool death ilnd
might bi.? di!::itinguishabll.' on Ihal fael.
Before liability in <l wrongful death C.:lse (or any tort case) CJn be .:lssessed, proxi-
mate cause must be determined. In other words, who is direcrly responsible for
the t1ccidcllt with no intervening causes [an action that after the initial
accident]? To help determine proxim.:lte cause, the "but for"kst is used by courts:
but for the- defl.'ndant's actions, the plaintiff would not have suffered harm.
1. Paraphrase the "but for" test into simpler English.
2. Use the following cases to fill in the chart, which will help you distinguish the
"Ises. \'''e've done tht.' first two for you.
I
Type of Intervening
Case Name Accident I Action Cause of Death Cause
Outcome
Jackson auto ;"\ccident auto accident none
for plaintiff
Janovitch illllo accident tuberculosis none
for Jdenlbnl
Janus
Ii
JJdc
I
JOh,lllsson
i
krod
I
Cases
Jackson: A janitor suffering from fatal lung GlnCer is killed in an auto Jccident
c.lUscd b,' a cement truck. His wife sues the cement COf1!-pany. She wins.
Janovitch: A teacher suffering from tuberculosis dies from that several
wCi.?ks after being hit by a car. His injuries were very slig;'H. His estate loses.
Janus: A judge willl severe heart problems and limited chd.'")ces of surviving a
he,lrl trJ.nspbnt dies during the hcart transplant because the
ancsthesioiogisr uses the wrong mixture. Her heirs win.
58 ' Amedcan Legal English
}i: A lawyer dies sever<ll \\'ceks after.l CJr <lccident <lfter catching pneumonia
caused by the injuries, The lawyer's estate wins.
Jade: A musician's son is killed in an airplane crash for which the defendant. an
airline. is responsible. The musici.m commits suicide after learning of her
son's death. Her heirs sue the airline based on the musician's suicide. The
musician's ('stale loses.
Johansson: In ol crash c.lUsed by the driver of the other vehicle, a young mo-
torist dies of smoke inll<1lation because he is pinned <lgainst the steering
column in his own smoking car ilnd is unilblL' ro esc;]pe beCore losing con-
sciousness. even though he sustained no injuries directly in the crash. His
domestic partner wins the ci.1im.
krod: A young man with no history of ment;]1 illness was arrested on a public
intoxication charge and placed in jail. He suffered no abuse from the police,
and it clear th;]t he would be rl'le.1sed the next thy. \-Vhile in jail he
hanged himself. It was hiler discown:d that /eroJ suffered from occasional
bouts of depression. His heirslosc.
3. VI'ritc a general rule that covers all of the cases.
Level IV: Cultural Focus
High-Context and low-Context Cultures
Although every culture is unique, it is convenient to place a given culture along a
continuum r;]nging from low context to high context. A high-context culture is
('r.,-, in which most people share the S<1me backg.round, the same values, the same
history. On the other hand, a low-context culture is one in which the participants
don't really know or seem to share all of the same values or history that the
others do.
For ex;]mple, fapan is.1 prolotrpi(ally high-coil text culture while the United
States is generally regarded as a low-context culture. "All" Japanese share the same
history. and there might be said to be a general consensus of values and beliefs.
On the other hand, in the United States there arc thousands of different back-
grounds and beliefs, from those of the Native Americ<1ns to those of the refugees
who first arrived in the United States yesterday, Of course, these classifications
are just gener;')l; there are Ill,llly exceptions. There are many high-context groups
within the United States such .15 the Amish, Hassidic Jews. and even certain
corporations that have very eiabor,lte. unwritten cultures.
Review the following chart for ,10 overview of some of the dements of low-
and high-context cultures. As you read, try to determine whether you come from
<l low- or high-context culture.
Legal Authorities and Reasoning , 59
Low-Context Culture High-Conlext Culture
Direl:t communicltion: "get to the point" Indirect communication: "bC;.!1 around
the bush"
Timc moVl'S J.nd in J strJ.ighl line: Timc moves slowly, and Illan)' things ..:an
happcn at onct'. Emph<lsis is nn building "Time is mon ... y
relationships.
In an initial contcxt." ccrlain 1\lore slatus Jll.lrkers (:-'Ir., Dr., :-'15.)
level is exp ... cled, such J.S and used for IOllgl'r periods of time.
shaking hands and using titles. However, Oflcn there arc gr,lnllnalical markcrs
a casual approach rapidly adoptcd. such as different linguistic forms (If)'VlI
(First nJmes used: freJ. Paul. Marina.) for different relationships.
Low tolerance for sikncc High toler.1nce for siknce
Inter;lI.:tin': "Hey, Yuu'rc sure Ihat's Authoritarian top-down
the W.IY 10 Jo
High tukrance (or qUl'stions Sense of authority threateneJ hr
questioning
Advers;lrial. blunt Build consensus
Self-disclosing Discussion of intellectual issues
Low value placed on "phatic" Phatic communication important
communic<ltion (small talk): "Let's get ("grooming" spcc..:h)
down 10 business
Prccise ;mJ !echOlcal MClaphors .llld
1. Usc the chart (0 determine whether the following scenarios arc of it
low-conlext or a high-context (uiturc.
<T. At ol school: A teacher asks a difficult question of.l stuucnl; the student
doesn't answer immediately. The teacher says, "\Vhat? Didn't you do your
work last night?"
b. Two meeting for the first time don't discuss business for the
entire dinner.
c. Subject tor a TV talk show: My husb.wd snores too loudly for me to sleep in
lht' SolJlle room_
d. 'An oral agreemenl and a handshake seal il three million deal.
e. In a restaurant at lunch: "Hello, June. good to sec you again. This is Glenn,
my boss."
!
I
!
I
!
,
I
!
I
I
, In terlll:-; of high-context and low-context cultures, explain the miscommuni-
cation:-; in the following scen.lrio:-;.
<1. An American imtructor is frustrated because no one asks qw:stions in J
legal methods c/;,ss in Japan.
b. A nevI.' Aml'fican employee ,11 ;In Americlll corporation is Sl'n! h0me by his
Americ.ln supervisor when he shows up ill t('nnis shoes 011 "CaslI,d Fridav."
The supervisor explains, evervbodv knL'w [hat vou (;1Il't we;lr .
tennis shoes on casual day."'" .. .
c. ,\ German LJwyer LOll tin w ..'S to (;111 his AmericJIl (ouilierp.ln "Mr. Bodary"
although "Mr.l3odary" l1<1s .Iskcd the Gernull to call him "l'vlike" Illany
times.
d. A Japanese firm decides not to award a contract to an American firm whose
attorneys made a brilliant presenl.nion but insisted on discussing business
during the evening Jinnl'f \\,l'koming tht'lli to lapan.
e. A law professor bridly Ch'1I5 with a "orean student on her wav tn her offill'
and says, "St't' YOll Liter." Scvcr;t! hours later sht' \vJlks out of her office and
sees the student sitting in front of her office. She .Isks, "\Vhat are you doing
here?" The student answers, "You told me to sec YOLl later."
Level V: Additional Exercise
Case Briefing: Reading and Writing
Usc th(' format we gave you or one (JroVitil'd by )'our instructor to brief the fol-
lowing ('Ise Somt' terms might not know t'xpbineJ first.
contempt of court: an act disrupting the propa administration ofjllstice
punitive sanction: a penalty designed to punish the lawbreaker
+++
City o[Grand Forks v. Dohman, 551 N.W.1d 69 (N.D. 1996)
VANDE WALLE, Chief Justice,
Raymond Dohman appealed from a district court's order assessing a puni-
tive sanction in summary proceedings for contempt of court under chapter
27-10, NDCC, and him S300.00 as provided for by sections 27-10-01.3(2)
and 27-1O-01.4(2)(b) of the North Dakota Century Code. We conclude that the
trial court did not abuse its discretion, and we affirm.
On December 19, 1995, a jury found Dohman guilty of disorderly conduct
in violation of section 9-0201 of the Grand Forks City Ordinances, a class B
misdemeanor. See City o[Grand Forks v. Dohman, 552 N.v/.2d 66 (N,D. 1996)
[affirming Dohman's conviction of disorderly conduct}. After the jury rendered
its verdict, and after the district judge discharged the jurors and thanked them
for their service, Dohman stated, "Yes, I want to thank your,] too. You're won ..
derful people:' Continuing, Dohman referred to two of the jurors, "You can go
back to the Air Force Base and brag now. You're a wonderful little old lady. I
hope when you get in [the hospital], you are treated the same way. You have
every right to be glad." Subsequently, the following eXChange ensued:
THE COURT: "Mr. Dohman, that was entirely uncalled for."
MR. DOHMAN: "No, it wasn't."
THE COURT: ''I'm finding you in contempt of this COurt. You are hereby
fined the sum of $300.00 for that outburst which is entirely unnecessary."
MR. DOHMAN: "No, it isn't uncaUed for."
THE COURT: "And you will be sentenced-Judgment will be entered against
you accordingly for that $300," . , .
MR. DOHMAN: "Yes, you're wonderfuL Judge. You people should be proud of
yourself."
By statutory definition, "contempt of court" includes "[i]ntentional mis-
conduct in the presence of the court which interferes 'Nith the court proceeding
or with the administration of justice, or which impairs the respect due the
court." N.D. Cent, Code 17-10-01.1(I)(a). Under chapter 2710, NDCC, courts
may impose a remedial or punitive sanction for contempt of court, N.D. Cent.
Code 27-10-01.2(1); see also Blaesing v. Syvertson, 532 N.W.2d 670 (N.D. 1995)
[recognizing courts' inherent contempt powers, which may be limited by the
Legislature}. Section NDCC, provides a Summary procedure in
which the presiding judge, without a hearing, "may imPllse a punitive sanction
upon a person who commits contempt of court in the actual presence of the
court." The statute directs the judge to "impose the punitive sanction immedi-
ately after the contempt of court and only for the purpOSe of preserving order
in the court and protecting the authority and dignity of the court." N.D. Cent.
Code 17-10-01.3(2); see, e.g., State v. Goel/er, 163 N.W.1d 135 (N.D. 1978)
[citing United States v. Wilson, 421 U.S. 309, 95 S, Ct. 1802, 44 l.Ed.2d 186
(1975), and warning that, as a narrow exception to due process requirements,
the exercise of summary contempt power exists "only where there is compelling
reason for an immediate remedy and, where there is no such need, its use is
inappropriate"].(l) [Footnote omitted]
Section 171001.3(3), NDCC, provides that an appeal may be taken from
any order or judgment finding a person guilty of contempt, and that such order
or judgment is final for purposes of appeal. On appeal, Cohman urges that the
trial court erred in finding him in contempt. The ultimate determination of
whether a contempt has been committed is within the t.ial court's sound dis ..
cretion. Mehl v. Mehl, 545 N.W.2d 777 (N.D, 1996); Knoep v. Knoop, 542 N.W.2d
114 (N.D. 1996). The decisIOn wilt not be overturned on appeal unless there is
a plain abuse of discretion. Mehf, supra; Knoop, supra. A trial court abuses its
discretion when it acts in an arbitrary, unreasonable, or unconscionable man-
ner. Knoop, supra; 5pilovoy v. 5pilovoy. 488 N.W.2d 873 (N.D. 1992). We witt not
find a trial court's decision arbitrary, unreasonable, or unconscionable "if the
decision is the product of a rational mental process in which the facts and law
are stated and are considered together for the purpose of achieving a reasoned
and reasonable determination." Gissel v. Kenmore Township, 512 N.W.2d 470
(N.D. 1994); see also Bachmeier v. Wallwork Truck Centers, 544 N.W.2d 122
(N.D. 1996) [stating abuse of discretion standard].
Dohman refutes as not supported by the record several statements made by
the appellee in its brief and during oral argument For example, Dohman chal-
lenges the appeltee's assertion that Dohman made his comments "in a sarcastic
and demeaning manner" and "jabb[ed] his finger [at] the jury." Appellee's Brief
at 1-2. The appellee also stated that "[aJs the jury was leaving the courtroom.
Mr. Dohman, while standing and gesturing at the jurors, ... verbally assaulted
them" using a "threatening tone of voice and intimidating body language." Id.
at 2. We agree with Dohman that some of the appellee's accounts, whether or
not they are accurate, are not preserved in the record. But, our opinion is not
based upon these unsupported assertions. See Flex Credit, Inc. v. Winkowitsch,
428 N.W.2d 236 (N.D. 1988) [refusing to consider on appeal evidence which did
not appear in the record of the trial court proceedings]; N.D.R. App. P. 28. Nor
is our decision based upon Dohman's accounts which are not evident from the
record, such as Dohman's characterization of one of his comments as a "rather
quiet wasn't a yelling, or a pOinting, or a gesturing." Rather, we
rely on the judge's description of the colloquy, which is found in the record, to
conclude that the district judge did not abuse his discretion in finding Dohman
in contempt of court.
Following Dohman's comments directed at the jurors, the trial court de-
picted Dohman's conduct as an "outburst." Consistent with the statutory defi-
nition of "contempt of court," an "outburst" is defined as "a bursting out" or
"a violent expression or demonstration of intense feeling." Webster's Third New
International Dictionary 1601 (1971). Similarly, in his order, the judge de-
scribed the context for his finding of contempt. explaining that Dohman com-
mitted contempt of court "because of his unwarranted and outrageous behavior
in making disparaging comments in a loud angry voice to the jurors after they
had delivered their verdict ... ." The judge further clarified that "such behav-
ior occurr[ed] in the presence of the Court" and that it was "necessary to im-
pose a punitive sanction in order to preserve order in the Court and to protect
the dignity and authority of the Court ...
Judge Bohlman recognized that jurors have the right to expect that the
judge presiding at the trial will prevent verbal atta:ks a a party, or
other participants in the trial. In fulfilling that obl1gatlOn to the Jurors,
ud e may very Vlell impose punitive sanctions For disparaging comments dl'
at jurors following the announcement of their verdict. We conclude that
the record supports and justifies the judge's order of contempt and pumtlVe
sanction. We affirm the district court's order.
+++
Chapter Three
Criminal Law
level I: Discovering Connections
People Jrollnd the world h'l\' - . '" .-
crimes ,md [he crimintlis \ e.1 Pl:Cu.JafhfasCIIlJUOn with law as it relates to
v a comma ( em Open <1 ,T U S
the television news any day oftl' _ . ,fl, .. newspaper or turn on
. le year, ilnd no doubt I ( . I'
will be discussed. In 1,1\'1 we should ' 5 ory IOYO vmg a crime
only be concerned with ft;'-
ror Ihc crilllc,'-Inu 111Of.11
Issues will always plaY;1 roll' in the
devdopmclll of thc law (as in the
leg"Jliz<1tion of abortion) and de-
fenses to the cammiss,' on of 0 '
<l crime
(such as mental incapacity). How do
reconcile the moral and legal issues
Ulvolvcd in the commission of a crime?
Activity
Your instnl(tor wili place you in groups (Of thi -' . -.
. there afC six (hartlcter, TI '-' <1dlvlt}'. In the toUowmg stan',
the Bar OWller
Jack
l\Ian leaving the Bar
. ley tire '
Carl
JeJn
Gail
I. Using this Jist, individuallv rank the chanet 'r .
most and 6 the least respo'nsible i . t' S I to 6 wuh I being the
lean's death. ) n the order ofrhelr moral responsibility for
2. Now, work with other members of .
the six charJcters as a grou Vi your Jnd on the ranking of
3. Explain the p. ou must n;ach a unanimous decision.
group tlnSWers to the cJilSS and try to reach a I
c ass consensus.
Criminal Law . 65
]can's Death
Around 5 1'.;\1. one evening, J man and his wife el:[ercd the Bluebird Bar. The
man, rack, ordered .1 whiskey for himself Jnd a cola for his wife, Gail. hICk
continued to orda the same drinks about every 112 hour.
At 11 1'.:0'.1. the bar owner refused to serve Jack any more drinks bec.lllse he
was obviously cxtn.:mcly intoxicated Jnd bothering oLht'r clistomers. G.lil was
used to rack's behavior and never h('r husband 10 drinking.
"Arc you driving him home or should r c:J1I a taxi?" Lhl' bar owner asb.'d
G.lil. IJck shouted, "Get out of Ill)' face! I'm driving hOnle ilnd neither of you
can SLOp me!" Jack then shoved the owner aside and walked out the door. The
owner just shrugged his shoulders and walked off. Gail went to the p.lr phone
in the corner to call her sister for a ride.
As JilCk kft the bar a m;10 walking by lhe bar shoLlteu ro him, "Hey
Buddy, cal/ a t.lxi!" Whcn f;t..:k draw off, the man simply shook his head ami
walked down the slrcet.
MC;1nwhiJe, ]ciIn and Clfl were having a lovers' quarrel on the next corner.
The quarrel soon eseal.Hed into a major fight, and CHI struck jean, saying,
"Don't ever tell me not to touch you ag.lin. I'll show you who's boss here." At
that point. Jean, crying hysterically Jnd paying no attention at aU to the traf-
lie, ran into the street directly in front of Jack's car. J;lCk was not able to SLOp
in lime, and lean WJS killed instantly.
level II: Legal Terms
Essential Terms
culpability: bIJll1cworthines:s; requires showing that a person acted purposely,
recklessly, or ncgligently (a requirement 01 tht' Model Pen.ll Code
ii\-IPC]-a sample criminal code sponsored by the Ameri(;ln 1.;11.,. ilnd
'lpprovcd in 1962; hilS been adopted in whole or in part ill most u.s. staLcs)
mens rea: the. mental 5tate-lhe intent
ilctuS reus: the act-a wrongdoing that can be an act or all omission
causation: The a(t (actus reus) is the cause of (rdated lO) harm done.
concurrence: the union or the mental state and the act
standards of proof: the level of evidence thJt must be presell{ed tri.ll to estab-
lish guilt of the ddend,lIlt. There .ue two levels.
beyond a reason3ble doubt: facts proven at tri,11 .'d UST (,stablish
preponderance of evidence: The evidence offered at trial must show th.]t the is-
sut' that is to be proved is more probable than not.
'.n order to. lind guihy" of.1 aime, (he prosc.'cution has to prove lhe de-
lend.lOt glllliy ot all dements of the crime (,IS dt'lilled SI<ltutl.' or at common
law) beyond a re<lsonabk' doubt. Three ':ssenti.11 dl.'Illl'llts orall crimes .Ire
I. IIW/)' rell (replaccd by in SOllle sta:l'S IIIlder the r.lodd (\:11;11 Code);
rlCl1IS T(.!II:i; and
J. ellls.ilioll.
A. In the 5ame groups (or COlllll'ctions," tletamine jf the party
y.ou found morally responsible lor Jean's death could also be found legally rcspOIl-
from the of criminal law. Are tht.' common dl.'mellts of crime presem?
r HlIIr: In determmlllg whether U/L'I/j n:a is prcseJ1t or not, usc rhe MPC fcrms
pllrposely. kllowillgl),. TecklcHI)". or IIf'gligt'II/(I: j
U. There is no crimillll/liabilit)' for ta\'ern Owners who continue to sell drinks to
patrons who are obviously intoxic;Jted whell those palrons later commit crimes
such as vehicular homicide I killing of another person through d,lIlgerous use
a motorized .. some stnlcs do have dramshop or civil damage
!>tarutes that plnce on a tavern owner in some instances. In your
look.lt the tollowing SIJtufe rcg.Irding civilliabilitv of a tavern owner
co.lllmincd by J patron who is intoxicated. \-Vol/ld tavern owner in
OlscovcrJllg be civilly liable /'{)r the dc.llh of kan?
+++
Every who is injured in person or property by any intoxicated person,
has a nght of action in his own name, severaUy or jOintly, against any person
who by selling or giving atconolic liquor, causes the intoxication of such
person. [lopez v. NOel. 98 N.M. 625. 651 P.2d 1269 (1982)J
+++
Theories of Punishment
The difference between criminal and civil law is punishmcnl. Criminal law
IS deSIgned to punish J wrongdoer for;1n action against socictv. Civil law, on the
other hand. is to compensate an injured pari}' with J'amages (usually
money) for the InJurv In d 'd' I .. I . .
.'. .' eCI IIlg W 1.H crrmrna punIshment IS appropnate. the
b,lSIC quest lOllS to be askcd art' the following:.
I. How mtl(h has the injured s{)(ietv?
2. Howcan you best punish this .
Criminal l.aw . 67
The question of how best to punish an individual depends to a great extent
on \..\'hich theory of punishment a society finds most effective. What is society try-
ing to accomplish with the punishment? The four basic theories on which punish-
ment is based Jre as follows.
Reformation. This concept involves teaching a criminal how fo function in soci-
et}' without committing any further wrongdoings: helping the crimin,ll become
a "good" citizen. \Vhile few people .......ould disagree with the notion thal prison-
ers should be rehabilitated, the question of whether reformarion works is more
deu;lt<lblc due in pMt to the high degree of recidivism [committing of further
crimes arter rcle.lseJ among released prisoners.
Restraint. The need to keep criminals "off the streets" (i.e., imprisoned) so
lawJbiding citizens are free from potential harm. While this is not as noble a
concept .IS reform.llion, thc idea of protecting citizens is important. The qucs-
tion becomes, however, whether restraint works unless it is permanent or com-
bined with some (arm of rehabilitation.
Retribution. The theory that a wrongdoer should pay for his or her crime: get-
ting even with fhe criminal. Many people find this idea barbaric; however, it
seems to be onc of the major factors in determining punishment, as seen in the
sayings "the criminal owes a debt to society," "make the punishment fit the
crime," and ";11l eye for.1I1 eye."
Deterrence. There two types.
I. Individual: The .Iim is to keep a particular individunl from committillg an-
olher crime. rf he or she is punished for a wrongdoing, perhaps it will help
to kt'cp him or her from committing another offense.
2. Gener;]l: The basis here is that punishing one person for a crime will keep
others from committing the same crime. The question is Ivhether people are
aware of the sentences that art' imposeJ on criminals. or course, propunents
of the deterrence theory believe that punishment does, at least to some ex-
tent, deler crime.
fn groups, decide what theories of leg;11 punishment are used in your legal system.
Do you think one theory predominates?
Cruel and Unusual Punishment
:\ hotly deb.\tcd topi..: in the. United States is the imposition of the death penalty
for certain classes of crimes. If you believe that retribution is a suitable theory
upon which to determine punishment, then the idea of capital punishment might
68 . Amen'can Legal English
/lot be ,IS abhorrenL to YOll' "t . 'h b
t" . h . ,IS I mIg t L' to someonl? who believes that rehabilita-
t e mo.st sUllable theory. In the United .states, the debilte reaches constitu-
ImenSJOIlS because of the Eighth Amendment ro the USC ' ,
h 'h hOb' " onsWutlOn
w Ie pro 1 Its crud and unusuJI punishment. '
Excessive h.lil sh,dJ not b' . . I ., " _ .
'I' e rcqulrc( ,nor eXLeSSlve Irnes unposed, lltlr cruel and
pUlllshmcnts intlicted.
b '. generJlly rd,ucrant to rule that il punishment is crud and unusual
e(.lUse t e JU ges usually feel thaI if the legisl.IIure permits it then th' P "I
ment mUst b" bl ' e unlS 1-
cabilit of th: e. However. on have considered Ihe appli-
"
'I .g. h Amendment to certam punrshments, particularl)' in cases
mo vl/lg ImpOsitlOn ofth d h I
Ihe
C II . C e eat pena ty. ""'hen doing so, the\' have considered
.
I. the re/;.lIionship of the t I '
. sen enLe to 11(' maXllllUm sentence for other crimes
conSIdered more heinous [horrible/;
2. the severity of the punishment in other jurisdictions; and
3. the absence or relative nbsence of violence.
ile are both for and against the death pen;.ilty, il is In o.lS
l1
ect
a JW In most Amencan stal A ,. f' r
eight f I 'Ii' . es., mnt.'>ty OlernatlOJ};11 reports that in 1998 thirrv-
. 0 I Ie Itty t\merlcJn st,Hcs have the death pen,lit" ThL'dL'JII '.1 '1' '
exists under fcder 11 IJw A . ." ] pen,] tya so
d
,. <.'. pproxlll1atdy three thous,mu prisoners (;IS of 1998) .t
un carh row [Sl'ctron at 1r' 'h '. . . SI
. f Ison. \\ ere pn:iOnt.Ts aWJHlng execution are keptJ.
of ,tsd
lhe
:Ighth Amendment IS the constitutional basis against the imposition
b e .. pen,lIty, d.ue process c/.luse of the FOllftl'enth Amendment has
een ustd the constuuIIOn"lI'I'" .
. to .,uPP0rlthe Im/1()silion "I'lh, I., II
penalty. . e (t,l 1
Secti:J: ': p.\:.'rso
ns
born or naturalized in the United Stales, and sub'txt
to tht !UflsdlCtlO.
n
thereof, are citizens of the United Siales and of the
they No St<lte shall make or enforce any law which shall
: ndge the or immunities of citizens of the United States; nor shJJJ
State depflve any person of life [emph<lsis added) liberty
wUhout due '. f I ' ,or property,
e I 0 ,:1\V; nor deny to any person within its jurisdiction the
qua protectIon of the laws.
VVhatever your perso I b I' I' ,
.. '. na e Ie s are regardIng the death penalty it rem 1,'ns'
lact ot hw rn m 't US' . ' '.1
. '. , . ' _ OS.' . Slates, otten leJding to he;:lIed debate when the sub/'ect
MIse::. 10 LonverSatron E h I h ' ,
. ven r oug 1 t e m.l/oritv of th ' U'" I' '
. . t .J. popu ,HlOIl now
Criminal Law . 69
favors the abolition of the death penalty, state and federal legislatures have done
little to change current legislation. Numerous Supreme COUrt cases discuss the
death penalty and its imposition. Two landmark Supreme Court cases are Fur-
man v, Georgia, 408 U,S, 238. 92 S. CI. 2726, 33 L.Ed,2d 346 (1972), and Gregg v,
Georgia, 428 U,S, 153,96 S, CI. 2909, 49 L.EJ,2d 859 (1976),BOIh of Ihcse cases
and nun>, others that discuss the death pen.llty can be found at the LegJllnfor-
malion InstiLUte website (www.law.comdl.eclu) in the u.s. Supreme Court his-
toric section.
In Fun11lllJ the Supreme Court in a 5-4 decision (ound the death penalty, JS
then implemented in most states, viol<ltive of the Eighth Amendment prohibition
of crud and unusu;J.l punishment. There W;J.S no majority opinion, however, as
each justice wrote his own opinion. This led to difficulties for the state courts
when slale statutes in light of Furman were held unconstitutional and problems
for Sla.le legisbtures ;lS they tried to redrJft and enact capitJI punishment statutes
thJt would fit within the scope of Fllrmall. As the states tried to follow the U.S.
Supreme Court's direction, there followed a period of no death penalty sentences.
Four years later. in the Gregg case, the Supreme Court held that capital punishment
was not in and of itself cruel and unusual punishment. However, the Court, in its
dicta, staled that capital punishment would most likely be disproportionate, con-
sidering its finality, for crimes other than murder. After Gregg, which in effect gave
courts and legislatures the ;Iuthority to impose the deJth penalty again, the use of
capital punishment in sentencing began to increase. The number of executions
remained low (0-5 per year) until 1984 when the number of executions began to
increase, from 21 in 1984 to a high of 74 in 1997.
1. Since the usc of capit.l! punishment is so hotly debJt('d, you will now have the
opportunity to usc much of the information on the subjq:t during a debate .
.2. Divide into (cams for a debate on the death penalty. If you have to support an
argument th.lt is contrary to your personal beliefs, remember tha.t as =.in attor-
ney you will sometimes have to a.rgue cases with which you may not totally
Jgree. Although the death penalty tends to be an emotional topic, you must
support, in an organized format, your position to the be.sl of your ability with
fiKts, including historical or data.
3. If you have no experience using the Internet, your instruQor will give you
b,]si( instructions before you begin your research. One of the best ways to start
is to use a general se.lrch engine such as
w\V\v.altavista.digital.com WW\v.lTIctacrawler.com www.yahoo.com
-to Simply type in clcm/l pCllalty and review your hits [infoflllation received on the

70 . Amedcan Legal english
5. Never forget to verify the validity of your source. For example, an Amnesty
Internation.ll web page is a more credible web site than a web page of an
individual.
6. If you can't find anything appropriate via the general search engines, check the
fOllowing sites.
Against the Death Penalty: htrp://www.essclHi;ll.orgldpicldpic.html
For the Death Penalty: http://ww\\.nra.org.!crimcstrike/(sdp.html
UVvtt!: The lnterner is constantl), ch,mging, so if these Sill'S are unavaihlble,
rou will h.we to find other useful to prepare your arguments.]
7. Prepare your arguments for an or:J1 debate on the necessiC)' for the death
penalty. You can also consider constitution;]1 arguments.
Debate
1. Review the arguments gathered by members of your group during the research
phJse of this exercise.
1 Consiuer possible counterargumcnts that might bl' proposed by the opposing
tcam and prepare responses to them. (You might want to do some reseJfch on
the opposing side of the argument.)
3. In larger groups, select a spokesperson for eJch separate argument so that
everyone has a chance to speJk.
4. L1Ch side will hJve a total of fifteen minutes to present rhe argument, with a
rebuttal time of ten minutcs.
5. The team to begin will be determined by 01 coin toss immcdiJtcly prior to the
dd);]fe.
Criminal court judges don't make decisions about punishment solely on the
basis of public policy and social welfare. The judges are guided by legislative or
case guidelines that have classified offenses bJscd on their severity. Punishments
h.we to be meted out in ac(ord;lIlcc with thl' law. Thc next sections provide a brief
introduction into the classification <lnd elcments of criminJI bw. A discussion of
.111 types of crimes, including the intricJcies of practice in crimin<11Iaw, is beyond
the scope of this chJpter. However. statutory law and cases for a few of the differ-
ent crimes will be discussed.
Classification of Offenses
Because not all crimes are punish ments vary; the degree of the seriousness
of crime determines its category, which in turn determines the punishment that
can be imposed.
iv1isdemeanors constitute a minor class of offenses that are punishable by a
fine or imprisonment for up to one year. EXJmples of misdemeanors Jre disturb-
ing the peace {,In 'Jct th.l[ interrupts the peace of an <IceJ] or reckless driving
f poor driving lha t elldangers others I. Some states further divide misdemeanors
into classes (:\, B, etc.) based on thc It'vel oCpunishment fnr Ih,.,. n{r"' ......
Cdminal Law . 71
Petty offenses arc often considered a subset of .
lowest ciJssitic;uion of crimes. Examples include parkmg or VIOlatiOns 01
building codes. Depending on the state law, be a ?ne
t)
"In1pr"IS"Onment in the county ,:ail [local Jilll for mrnOr or for
pavmen , . ...
ho'kling convicted felons. people who h<l\'e been found 01;] more SCHOUS
crime, prior to tLmsport to ,mother prison] or both. upon la\\'.
'\ felony is <lIlV crime (hat is punislublc by death Of JI11pflSlHlment III a sLate
"" I I" "t"n"t""lry for felons) for more lhan one year. [adl stolte ilnd
or In aa pen I '- I. . . ..
tht' federal further dassify fdonies into v;uiuus 01 Vir-
ginia. for e;ample, hJS six degrees of felony, classified according to the pU/llsh-
ment fOf each class of felony.
Cbss I-dcath or life imprisonment
Class 2-lifr.: or a sentence of marc lh.lIl Yl\lr<;
Class 3-imprisonment between 5 and 20 years
Class 4-imprisonment between 2 .1Ild I 0 . . .
CI
.. -imprisonment for years or less 111 the dlscretlOnot the court
"
Cbss 6-imprisonmellt for years or less in the discretion of the court
\Vhether crimes are lirst-, second, third-, or even sixth-degrce felonies
on the cicclllllstances of each case. FJctors that raise Of lower the of
arc given in the statutes. For example, kidn;}pping unJer lhe is;,l IdOIlY
I
,- J I e th" kl"dn"lpp"f volunt'Uily relcases the Victim unharmed III ,I
tle Irst egree un cs.. '- ..... '. . . ' .
s.lfe location. Tf those conditions .1fe met, then kidnapping bCI..OIllCS.l IdOIlY III
the degcec.
I
"d"J' til -In<'\''''rs to the following questions. as a cbss com-
n pairs eCI e all t.:, .,y,-
pare your answers orally.
H
,." . '1"1 "S"I"t-l"d I"n your country? Are the chlssifiC<ltions similar to
1. ow MC () Lcn::;es I.. . S '-
in the United States?
2. Classify the following offenses according to the system useoin youc country.
" Ik" [- ,,'Ino 1 str"et 'It'l place other than the marked crossw;llkj
J. jaY'''J 'mg I..fOS:-r t:r' '-
b. lruancy [skipping school]
c. disturbing the pc.lce
d. drunk driving
e. murder
t: I heft .. . _ . > > '. >.?
3. How do you think tht':it' olklls(.'s are chlssdled JI1 thl.'
72 ' American LeYl11 English
Crimina! liability
Ikcall from Level II that there an.' Ihree common clements in all aimes: /IIcns fCll,
IIC/US fClIS, i1l1(1 causation. Man)' jurists would also include concurrence [both the
/IIellS rca and t/(lllS rells mUst be connected[. [n other words. the prosecution
[allofllt'y representing the statl', ,1Iso commonly n:rerred to ,IS the prosecuting
attorney, district attorney, or OA[ hilS 10 prove Ihal these clemt.'llls \Vere prc;;t.'nt
bt.'fore he or can obtain il conviction.
The prim;lr}' of proof in ,I is that the prosccution IllLlst
prove all dt.'ll1('nrs of an offense bl'yonJ a reasonJblc doubt"-the tJcts as proven
establish guilt. Public policy re'-l.uires Iha[ thl' burden on the prosecution be it
heavy one beGluse in the U.S, system c\'ery person musl be consicit.'red innocent
until proven guilty. Determining which standard is appropri,Ite is a legi.11 dccision
b'lsed on case Jnd statutory law.
Mens Rea
MCIIS rca or tbe intent is often tht' most difficult aspcct of the crime to prove. If
the required mental slate for the offense is be-king. no crime hilS been committed.
The mental stJte required to commit a crime varies with the crime. In CO/rl11loJ/-
lI'call" I'. Woodward, 7 Mass. L. Rptr. 4--19 (J 997) (the trii.11 of .1 British au pair
accused of killing an infallt in her care), for example, the stare of 11,:I;]ssachusclls
cllJrgL'd Woodward with sl.'cond-degrec Illurder.ln iviassachusclts, rhat ch;nge
rcquires "01;1Iice," which becll intl.'rpretcd to mcan an intentiollal ilct [h.lt
crL'atcs i1 risk of dC;l[h. WooJw.lrJ \\',lS colwictcd of :;ecolltl-degrce
murder bY;1 jury, a verdict fhat WJS bter reduced to involuntary Illanslaughter by
Judge ZOl'bel. (A reductiOIl of it jury Vl'rdict is possible..' in a limited number of
states ilnd is <In extraordilliuily rare Wie of power by;l judge.) Judge Zocbd did
not lind that the circumstances surroulltiing the supported a finding of [he
inlL"llt requircd [n commit second-degrel' Illurder.
+++
The test for malice (in the circumstances here) is whether, under the cir-
cumstances known to Defendant, a reasonable person would have known that
her intentional act created a substantial risk of death to Matthew Eappen ....
Viewing the evidence broadly. as I am permitted to do, I be!ieve that the
circumstances in which Defendant acted were characterized by confusion. inex-
perience, frustration, immaturity, and some anger, but not malice (in the legal
sense) supporting a conviction for second degree murder ....
This sad scenario is, in my judgment after having heard all the evidence and
considered the interests of justice, most fair!y characterized as manslaughter.
not mandatory-!ife-sentence murder. I view the evidence as disclosing confusion,
fright. and bad judgment. rather than rage or malice, .. ' [citation omitted1.
44+
Criminal Law ' 73
For the prosecution to prove intent in a personal property theft [stealing
b I
'0 la another 1 case he or she must prove that the defendant
property e onglIlb' .
h h ty
belonged to someone else and that the defendant Intended
kllew t at t e proper ,
d
' Ih '.'n 'r of rightful use of the property (m other words, the defen-
to eprlve e 0\ t: , '. I
k
'd'd 't b 'I(lflg to him or her and meant to steal II). The Model Pena
dant 'new It (n c .
Code divides intent inlo four ci.1tegorll.'s.
f II
'lnSC'I(lUS desire to engaoe in the conDuct or desire to (Juse the
il. purpose u y, L{ . b
resuil d ' h' h
b k
'I 'rsan is aware of his or her conduct an IS aWare that IS or er
, 'nOWIng y, pc . .
conduct is practically certain to cause the thallI dl.d . .
kl I rson
must be of a substantial and unJuulfiable risk that he
c. fec ess y. pe
or she consciously disregards .. . _ .
I
, I 1 lIould be aW\fe of a substantial and UfijusHli<lble risk that
d. neg Igcnt }', persol S ' . '
a reasonab!c pason would have perceived In the circumslilnccs
"Vilh those definitions, the ....lPC can avoid the distinction bc{,-.,reen general.<1n.d
'fi ' h' 'h h I' been sub)ect to some controvc-rsy. However, the dlstlllC-
speci IC I!ltent, W 1<.. s . ., .. '
, h" d' 'd and in some )urisdictions intent IS stlll diVIded lllto three
tIOn asn t IsappeJre .
categories.
1. general intenl
') spccific intent
3. strict liability
General intent commonly means that the proseculion is not required to
I
, It'' the specific result. In Ihe \\'oodll'llnl (ase, the prosecu-
provc t 1C mten 0 L,m!'t.: ' .
, " J J '\'r('e murda had 1O pf(we only J (Om-
tHm, to provc ::oeeon - Ci;)' ..... ,. _
, t [' thl's c'lse rouah handting]. [t was not reqUired to prove a speLlfiL
mit an ac III ., b .
, I Ih' b b tvl'ltlhew Eappen. fudge Zoebd stated: "The only Inlent
IIltent to larm e J y. I .
h t d prove I
'S the intent to perform the ilCt. not anv partlCul.H
t e govcrnmcn nce .' .
, t t th 'lct'S consequences." The rough halldhng demonstrated a disregard
II1ten as 0 e. . .
, h II b' f Ih" bab)' but no specific intent to actually harm him. SpeCific
tor t e we - emg 0 '-
, , t I on Ihe actual thoughts of the defendant althe time of the
In lent COIlLen ra es .. .
ff Th d
' d t m(lsI have intended to do the particular <lct that IS prohIb-
o ense. e Clen an ,
, Kid . [ I {ut restraint .md movement of <l person bY'll1other] IS Jtl
ned. nappmg un .1.... . . . ... ,
I [
'. - . equiring J specific intent. Crimes mvolvlllg stnct liability re-
examp eo ,1 Lrlme r '-' .'
, " t A son is guilty simplv by havlI1g committed the act. Examples
qUire no Intcn. per . . ',., _ '
, d [hlvIno sex wIth a person who I::. by StJIUle defined J::.
lI1du e statutory rape :::0
d I
, d 'r'lmes lgainst the public welfare, such as seiling altered food Jnd
un crage .In L "
drug products.
Actus Reus
Perhaps the :,Jf the, to is the actus reus or the "wrong-
ful deed." It I,., ')Imp!' .lCt th.u the defendant has committed [hat has caused
h.lrm. Norm;JJ/y rr.t: <1([ Involves the commission /Joing somethingJ of an -I
. . .l
Sometime:s I1l)t p!.,!f:{)rmlng an act, an omission, such JS fJilure 10 pav vour in-
come tax. can JI.v1 r.r': the ;h.'-[ or (Il'lllj reflj L'ieml'nt oflhe: offense:. ;)[ the
P
remises of crimin,J! l.Jw is that IlJrm h'1S b .... en dOll e [0 socil'ty 1'''I'l"'' Ih .
, , " ... ... t" requIre-
ment of ;In ,leI. ThiJ.Y.Jng robblllg, a hank is 1101 normally J crime (however,
see the section Oil Inchoate CnOll'S later III this chapta), but actu,dly robbing the
bank i.s In the /;llIer, harm has bcen done to society' in the 'ornl"r h h
. , ' II ... ,no arm as
been done.
Causation
Causation is abo ,III ckm,l'nr o(l'vcry of'fl'llse. It beCOlllcs part of the 1I((U5 TCIIS
whenever the: crime ,rL"(julfe:S a ,]S shoplifting [removing properly
[rom a retail stofe WI,hout paYlIlg for It I, A prosecutor h'1S two steps to
cJusJtion. Firs1, hl' of must show causation in fact-the defendant's conduct
was the cause of [he inCident. This test is USUJlly phrascd as a question.
Would thi .... l];Ive /J;IJ'pened if the defendant h.ld not acted?
Sccond, proxi male I..i1
L1
'iC, musl shown. Proximal(' ClUse, which is ;1150 discllssed
in Chapler Two. is ... cllm'tlllles reterred [0 as the "bur I()f" test. Th.1t is, it mUst be
shown {hat Ihe deJ<:"d,lllt acted in a scqut'nce of events, unbroken by
any intervening ":-;Il""e r II1Y other aCllOn I, that harm re.sulted, and that without th
action by the: dclclld.IJI[ ("but for"), the restlll would Ilot ho1Ve occurred, e
Concurrence
Concurrence simply IIll';IIlS that the /laUj TCIIS and mens Tca must be cOllnected.
The results or ,I (rilll!' (;111 occur IJ{er_ Concurrence.:' doesn't require simultaneous
action and intent, but rhe ,two must be connected. That is, you can commit mur-
der even r
OLif
victIm injured by a criminal ,Kt) dies a month latf..'[.
Courts havc eft',iled Iht' doctnne at transferred inten( to handle cases in which
intent is prt'scnt .1I1d .111 ;1([ occurs; however, the harm huns a person other than
the intended viltiJll. Fell' if Cristo shoots at 1\.(us[a<I ,lIld m.isses him bur
hits and kills Thierry. Ill' (;111 stili be found guilty of murder. Cristo h,lS used un-
lawful (orce .1 peL ... !)I,l, so the hold rhJ[ his unlawful intent (to kill
J\fustafa) is lel hiS act against J. third party (killing Thierry) even
though he did Illl[ illll'llll to harm the third party_
Criminal Law ' 75
Specific Crimes
Criminal i:lw is further divided into broad categories, each having specific crimes
associated with the categories: crimes against persons, crimes against propert}',
and inchoate [attempted I crimes, Each specific crime, such as theft, has addi-
tional dement.s that mllst be provcn before a defendant can be found guilty.
Crimes against Persons
ASSfllllt find Btl/tay
Assault at common 1.1W was actually two different crimes: (I) attempt to commit
a battery r ulllawful usc of force I or (2) inlent to frighten. Some jurisdictions have
now combined the crimes of assault and battery, so a person who commits an
assault Gin also be tried for battery. The Model Penal Code defines assault and
battery ill 211.1 ,IS follows.
(I) Simple Assilult. A person is guilty of assault if he:
(a) attcnlpts to cause or purposely, knowingly, or recklessly causes bodily
injury to another; or
(b) negligently causes bodily injury to another with a deadly weapon; or
(c) attempts by physical menace to put another in fear of imminent serious
bodily injury .. ".
(2) Aggravated Assault. A person is guilt}, of aggravated assault if he:
(a) atre:mpt$ to ClUSC scrious bodily injury to another, Or C;luses such injury
knowingly or recklessly under circumstances Illanifesting extreme
indifference to the value of human life; or
(b) attempts to cause or purposely or knowingly causes bodily injury to
another with a deadly weapon .. _.
In groups or three, discuss the following questions, Be prepared to defend your
answers orally.
1. \-Vhat ,lre the differences between simple and aggravated assault? Explain the
differences in terms of dements of a crime (mens ren, (/clllj rellS, causation,
elc.).
2. vVhich p.uagraphs cover "ass,lUh" as it was defined at common law?
Although the MPC combines assault and battery, at common law <.md in some
states bJttery is still" separate crime that simply takes assault a step further
and genaally requires an intentional bodily injury or In offensive lOuchlIlg
of another. t\ barroom brawl involves a batten' as does fondlinfl;' wnm,1n (nr
Kidl/l/ppillg
Model Pell;!1 Code 212_I Jdines kidnapping tiS follows.
A person is guill)' of kidnapping ifhe unlawfulJ}' removes another from hjs
/emphasis addedl place of residence or business, or a 5ubsl;1ntial distance
from the vicinity where hl' is founo. or if hi.' lInlawfully confines another
for a SUbSIJlltia/ period in J place of iSO/;ltioll, wilh ilny of the following
purposes:
(a) to hold (or ransom or reward, or as a shield or hostage; or
(b) to facililatl' commission of any felony or flight thereafter; or
(c) to inllict bodily injury on or to terrorize the victim or another; Or
(d) to intafere with the performJnce of any governmentJI or political
function_
I. Carefully rend the provision on kidnapping in the MPC.
2. To whom does the his refer in the statute?
3. 'Vorking in pairs, review the following scenJrios and determine if the actor is
guilty of kidnapping under the MPC.
4. Pay p;1rticul.lr Jttention to rhe l,lngllJge of the code itself and be prepared to
defend your ansWCT in class.
Scel/arios
a. During a bank robbery, one of the robbers holds a gun to the bank president's
head while her cohorts arc getling the money fmm rhe s;lli:. 'she tells the presi-
dellt he is her "ho5/;lge." The robbery takes 10 minutcs to complete after which
the robbers leave the bank president unh'lrmeu.
b. A farmer picks up a menIally ill hitchhiker and takes him to his farm, which is
50 miles from the nearest town. The hilChhiker is told he h.1S to work at the
farm ulltil he is able to pay the IJrmer back for the ride. Because the hitchhiker
is mentally ill, he doesn't realize that he can simply walk away from the farm
and find another ride /0 town.
c A I3-year-old girl agrees to go to an oUI-of-state concert with a 16-year-old
boy from her high '.school. They .wend the concert without/elting her parents
know ilnd don't return for three days, during which time her parents have in-
formed the police thar their daughter is missing_
d. A who was granted the right during a divorce proceeding to see his
dilughtcr on rhe weekends fvisitCltion rights/, doem't bring the girl back on
Sunday night. He and his dal!ghta h,1\'e gone to for two weeks without
obt3ining prior approv;:d of the mother, who \\';IS granted cu.;fnnv Iw tho __ ___
Criminal Law . 77
_. - ,d 1 other takes her daughter and flees the .stak,
DUflng 1 divorce pro!...ee mg, a m .11 b
e. ' .. _ I h hld because she fears that the fa.ther WI e
. nino in hiding \Vii 1 t c C 1 b
remal _ v. d " h gh the mother believes that the father h;'IS een
granted JOint ClLSto even t au
;busing the child.
. d h' MPC a written in the dr,lft (Ode i!selL COlor.ldlJ N,jl ,'very st.lIe h,lS en;tLte Ie.::. _
l ... , i kd gStHutc
is one of tht' states Ihat chose to change Ill' 'I napplll _
d . kidll"lpping in the first and second degree. 1. Re;ld the Colora 0 statutes on '-'
close attention to the language of tbe statutes.
R 'v St-II I R-3-30 I. First degree kidnilpping
Colo. t.: . h d . an)' of the following acts with [he intent thcreby
( I) An\' person w {) Ot.:S. . .
- ' - - - other person to milke ..my conCCSSl(m or give up to lorcc the Vldll11 or any r
" I" J to secure il release of a perSOll under the 0 - anything of va lie 111 or er _ .
I" 'I '. -"Iual or apparent control commits first degree bdnapP1l1g;
enl t'r s..... c: I th T or
"bl "" d c'urics any pt'fson I rom one p acc to .1Il0 t.:, (1) Forc] v seizes an
, I .. J 'S any person to go from ont' pbce to ;lOother; or (b) Entices or perSU,l l: .
(c) Imprisolls or forcibly secretes ;Jny .persoll: ...
I I' S" t "'11..'-'1-10" Second degree klllnapplIlg (00. ,C\' . t.l _ Y <J _ _ _. ... _ _,
" h k winuly 'icizes and C;1rnes any pl"fSOn lrom nnl:
(I) Any per.son w 0 no b. _ ,. . ....
"I I I -s 'onsell( and wahout lil\\lui ju:.l1li ....HlOlI, place 10 .mother, Wit lOU. 1] I.. .
commits second dcgrel' kldnapplllg. _ . _.,
I k' >nliccs or decm's away ;lIlY lbild not 111... m\ 11
(1)\nVpL'L"ollwlot3cS,t.: '. 1"11
- '. - - I ., ''us wilh intent to kcl..p or (on(t';11 thl" (lil
under Lhe age oil'lg l11ul } 1,;. _ '-1
. - r or with intent to sell, trade, or ba] Icr :.1I1.. 1 rrom hiS parent or gu.lr( 1.111 .,
child for (onsiticration commits second degree kldnapPlng __ ..
_. ..,. - . d .. J if the il1lwers you rC:Jched in Exercise 5 2_ \Vorklng In lhe s:all1c..: p.lIrs:, e
would be true in Colorado.
. f k-d . pping are the crimes of falst imprisonment
C11' ,Iv reilled to the CrIme a I nJ [ I "II
lSI:: .' . h I"b f another] and interference with c{JslOdy (11 (
[. t 'rfenng With t e ] erty 0 L
111 l: . _ . Th' illtcrjcrcllcc with Cl/stody statutes rCl.ltively recenr 111-
quesilon.s I. t: bl th.lt arise in custody he.1fing.l .IS in examples
(lOS in response to pro ems I < I "
nova]{ _ k.d.. g Some state thoug lilt
f 1nd t: from rhe exercise on I nappm . ::J __
' , " -I -I i -usrouv provisions rather than rely on kIdnapplIlg best 10 enact spec] II.. ... 11 ( I.. , .
statutes thilt may bc in.1ppropriatc or lI1<idequate.
78 . Amen"can Legal EngUsh
Crimes against Property
Common property crimL's indude larceny! taking of property of another with
intent to permanently deprive the person of the propertyl. embezzlement !fraud.
(o.nversion of the proFccty of accountant t.lkes 1lI0llCY belong.
IIlg to his or ha emplnycr lor or her own lIseJ, robbery /which is larceny with
two .1ddition.11 property must bt.' l;lkL'1l from Ihl..' victim's pl..'rson or
presenCt' and the tilking must be by violencc or intimidation/, arson f 1ll,1liciolJS
burning of the dwelling of modern st.Uutes define arson as i n-
eluding nonresidential buildings/, ,llId burglary.
Burglllry
At law, burglary was defined:1s the breaking and entt'fing of a dweIIing
ilt night for the purpose of committing a felony. The "breaking" clement included
entry through usc of forct', fraud. or Ihreat of forct.' in .IJJitinn to ilctuJlly OPCI1-
ing a door or window. The 't.'ntry" element WilS defincd as the entry of <lny pari of
the body or an instrument that was to bc used to commit the fdony. For example,
an "entry" would have included a thicfbreJking open J window and using a (oat
hanger to reach a purse on a chair in the house. Even though only the thief's hand
and the coat hanger "entered" the roOlll, it was still an cntry. i'vlodern statutes have
eliminated several of the elements Jlccded at COlllmon law.
L No breaking is required, simple cntry is t'nough.
") Any time of Jay suffices.
3. Structures other than dwdlings ;lfe incilided.
Model PenJI CoJe 221.1 defInes burglllfv as follow')
, .
r I J (I J '" A pcrsnn is guilty of burg/Jry if he t'lllers a building or occupied
structure, or Septlf.lldy secllfcJ or occupied portion thereof: with purpose to
commit a crime therein, unkss the premises arc at the time opt'n to the public
or the actor is licensed or privileged to enter. [2J It is an affirmative defense to
prosecution for burglary that the building or structure WJS ;lbandoned.
[bracketed numbers added I
I. Heread Model Penal Code 221.1. We h,lYe numbt'red the sentences for vou as
[II and 121. .
Criminal Law 79
2. In groups of two or three, break the rule down bit by bit to understand its
meamng.
a. First write each sentence on the board or a piece of paper. Erase all but the
absolute minimum you need to understand the central message of this rule.
b. When you J.'i a group have Jgreed on the basis of the sentence, you mJY go
on to the next step.
L. Clause by clause or even phrase by phri.lse add parrs back to the sentence in
ordcr of importance.
3. What ;Ire the essential eil'ments ofburglt:try under the MPC?
Now, let's look at the burglary statutes from two different sliltes, Mexico Jnd
Alaska, as reported in Slale v. Sallchez, 105 N.M. 619, 735 P.2d 536 (1987)

In New Mexico .. the crime of burglary is defined by Section 30-16-3, which
reads:
Burglary consists of the unauthorized entry of any vehicte, watercraft, aircraft.
dweUing or other structure, movable or immovable, with the intent to commit
any felony or theft therein.
A. Any person who, without authorization, enters a dwelling house with intent
to commit any felony or theft therein is guilty of a third degree feLony.
B. Any person who. without authorization. enters any vehicle. watercraft, air-
craft or other structure, movable or immovabLe. with intent to commit any
felony or theft therein is guilty of a fourth degree felony.
In Alaska, burglary is defined under Alaska Stat. 11.46.31O(a) (1986). which
reads:
A person commits the crime of burgLary if the person enters or remains unlaw-
fuLLy in a building with intent to commit a crime in the building.

_8. Stat.!ltory-Comparisons
Working on your own, compJre the statutes and answer the questions. Then com-
pJre your ,mswers with a pJrtner.
l. In wh.1I wavs do the statutes of New Mexico and Ari:.:::on.l differ from the MPC?
From one Use the method described in Exercise 7 if you ;lfe hJving
trouble underst .lIlding the statutes .
.., Is the Alaskil statute more like the MPC or the New Mexico
The Mexico COLIn of AppeJls explored the differen(es beLween the
sl;lItitt's. including history and policy, in order to distinguish two
80 - Amen"can Legal English
burglary lses in New Mexico from one in Alasb. In the Alasbn case IAmvic ".
."i/lltC o/Af"ska, 699 P.2J 81)0 (Alasb Ct. App. 1985) [. rhe defendant was apprc.
hended [(aught) in a walkin cooler with a case :.>f beer in his h,Inds. The ..:ooler
section not open to the publiL. bUI the twt'ntyfourhour store WJS open 10
the public He \\,;15 LOllvi(ted by the Irial (ouft but 'lppeJkd, contending Ihatlh .....
st;l!Ulory ..... It'ment.') for bur:;lary were flot Illet. On appe,ll he argued that he(ause
the building W,IS opl'n 10 the public, the "unauthorized enlry" oJ" Ihe 0[" ..
knse h,ld nlH been proven. The Court of Appeals agreed and reversed the coll\'ic
tion, Iwlding that the "unauthorized ent r( requirement under the stat LI te had not
been met.
In the Ne\,: hicxico case, two convictions were consolid.lled for purposes of .lp
peal. One Glse Involved facls substantially similar to those in Ambic. The ddendant
found. with the intent to ste,ll, on the loading dock of an JUto parts store. In
Inc SCCOllll lSe, thl" Jdt:lldallt cnlercd'l hospital ol:lee and stolc.I purse. Bolh de
fendallts ciled Amlnc and requested lhal the New I\-Icxicn court reverse the
lions because their acts did not fall wilhin the statutory definition ofburg1arr.
\':'ith your partner from exercise 8, decide on the amwcrs to Ihe following
tlons. Be preparL'd to defend your amwers orally.
I. \\'hich of the three statutes PC, Alasb, and i':ew ;"Ie.'\ico) include breakinl!
into a p.lrkcd car as burglary?
1 Is a person who enters his own house in order to commit a crime of
burglary under any of the stllwtes? Why or why not? '"' .
3. \Vould brc.1king into an RV r fl.-ere'llion;11 vchicle I be hurt:laf\' under ,lll\' of the
statutes? L' .
--I. look at Alask,,'s definition of a building.
AI"sb Stat. I LB 1.900 (b) (3) Cum.Snpp.19S(i: "I Bluilding': in addition
t.o Its usu;11 lllL'aning, includes any propelled or structure adapted
lor overnight accommodarion of persons or (or carrying on business ....
Now, how would you answer question Y
Continuing to \York with the same partner from exercises and 9. write the fol-
lowing E.'\ch<lnge your first definition with ,motha pair <lnd <lnswer
parI 2 or the exercise. Compare '1I15\\'("r5. :\;-c thev Wh ..11 Ill;ltk the dell.
[n"m;nal Law . 81
I. It's not clear a backpacking tent is;J structure or nolo Write two dif-
ferenl cidinitions of structrlrc. -Write the first version so tll<lt it includes back-
packing tent.') but write the second so that it excludes backpacking tents from
structures.
2. Using your first definition of structllre or one provided by your instructor,
would the following be included?
a. a large box used by J poor to sleep in at night
b. J h;Jll1mock used by mountain climbers to sleep in ..11 night on a multiday
climb
c. the doof\v,.y of.1 house used by homeless people to in at night
d. a beach hut built of natural miltcrials on a public beach used regularly by
various peoplc
e. the arCJ under a bridge where homeless people regularly live ami sleep
Inchoate Crimes
Bfllck's Ltlw Dictiol/{lf), 686 (5th cd. 1979) defines inchoate crimes as
An incipient crime which generally leads to another crime. An dssauit has
been referred to an inchoate baltery, though the assault is a crime in and or
itself. Tht: Model Pen,ll Code classifies auempts, soliciwtion and conspir.lCY
as such. 5.0 15.03
Atte1llpt
The policy behind the punishment of attempted crimes is to corred or reform Pt'[
sons who represent II danger to society. In other words, it is better to punish some-
one (with a lighter sentence) who has exhibited criminal intL'nt rather Ihan allow
the person to go free .mel actually succeed in the commission of a crime on iI
nnd or third ;lltempl. Four clements arc Ilecessary to be ({lIl\klCd of ,In attempt:
1. an act in furtherance of a criminal intent to commit a crime Ih;lt remains un
completed;
") intent to commit the crime;
3. apparent ability to commit the crime; and
4. the legal possibility 10 commit the crime.
Both /IIellS rClI and /JeWs rellS are required for conviction of an attempted crime.
The state of mind requirement has been stated to be that the defend.lIlt must have
the specitlc intent to commit the intended crime. For example, to be COllviClL'd of
attempted burglary, the defendant must have intended to commit or the
IIIC1JS rea clement is missing. The actllS rCllS element must be satisfied by showing
that the defendant has t<lken a "substantial step" toward completion of the crime
that he or she intended to commit [UI/ited Stall'S 1'. ]tlcksOIl, 5M F.2d II (2d (ir.
, .... , ... - "" ... ,.---- -. , ... , ... , ... ".
82 . American Le!j ... l English
SvlicjtatiOIl
As wilh attempt. the specific crime (such ilS burglary) does not have to be com-
pleted to convict a pany o( solicitation. Solicit.uion in and o( itself is a crime.
Solicitation is the act of convincing another pcr!:iOIl to commit OJ crime. The
persuader doesn't have to lake part in the crime to b .... guilty of solicitation. A
common example might be the hiring of ,1 thief 10 steal business records from a
competitor. If Bill solicits James 10 break into Bauxite Corporation ilild S!t\11Ihe
latest profit reports, and James reports the cOllvas;llion lO the police, Udl canllol
be charged with burglary, but he C,ln b!..' charged with solicitation. Under the MPC,
Ihe solicitor of a crime can abo be charged al the- sarnL' level as the person actually
com milling the crime if the crime is successful. In the above example, if James h'1(1
stolen the records, both },lmes ;IDa Ui/l could have bl'e-n charged with burglary.
COIJspimcy
like conspiracy is a crime in itself..-\t comillon law, conspiracy re-
quired an .lgrcClllent betweell .It leasl t\\'o peoplL' to commit an unlawful act.
However, the MPC changes the definition some\Vh,H so that olle person agreeing
with another who is simply pretending to agree to commit the unlawful <lct (such
as an informer or undercover law enforcement officer) is a conspirilCY. The
agreement is the a.ClllS rws of the crime.
Of Course, only the person who intended to commit the crime can be con-
victed of conspiracy because it is a specific intent crimL". There hJS 10 be more
involved Ihan mere knowledge that a crime is going 10 be cOlllmittl"ti.lfVeronik,1
he.lrs her next door neighbors talking Jbout committing;l b.mk robbery, but
Veronib is not involved, she can't be convicted of conspiracy bec1u!:ie she h,1d no
intent (mclls rea) to commit a bank robbery.
Homicide
Current homicide law differs (rom [he comrnon law oJ/ellS!.' of murder
because at earliest common law, no degrees of murder were recognized and all
murders were punishable by death. Now, however, .1l1 states recognize different
categories of homicide ranging (rom the most heinous, murder, to the lesser
crime of m;:msiJughter. Murder has further been divided into degrees by state
legislatures (first- or second degree murder), and manslJ.ugh ter has been divided
into voluntary and involuntary mans/;lUghter. Additionally, some state legislatures
hilve created new categories, such ;IS negligent or vehicu/;.u homiCide.
The mos.t important thing to remember is that homicide is now a statutory
offense; therefore there will be differences (rom state to stale. is secolld-
degree murder in Massilchusetts mily be voluntary manslaughter in Tennessee.
Again, the MPC provides draft statutes for the states to use when promulgating
but there are differences between the states reflecting stale legislative
policy.
. ,;-.
Criminal Law . 83
lvJllrder
A legal term of art {term with a specific legal meaning) is used to distinguish
b d and manslaughter lIIalicc aforethought. You must remember, etween mur er . . _.
however, that it is a legal term of art and cannot be by ot .ordlnary
" d 1- 't'on' For e",mple a woman who kills her terminally III husbJnd dlctlOnarv C IIlI I:;. .'1. ,
b 'h' -, not I)("'r to see him surfer is guilt\' of murder, even though It IS eCHISI.'::. t' 1...1fl '-' '. _ .
' It" ",1, -.,.' W1S intended in killing. The lour stJtes 01 mind that ObVIOllS [1<1 no 11, L'"-
Jrt' said to make up malice aforethought Me
I. intent to kill;
2. intent to inflict great bodily injury;
3. intent to commit a fdony; or
4. awareness of a high risk of death or serious bodily injury.
h ' th' lbov, e'"ample hld an 'intent to kill" Jnd is therefore guilty So t e woman In l:, A', ". .
of ilt least second-degree murder. In the ordin;lfy ol.the words, she dl,?
" I" I" but '", tIle legal sense she exhibited malice aforethought. nol act ITlJ !Claus y" .
Second-degree murder is ,lilY homicide with "malice aforethought" that IS not
specifically lirst-degree murder. .
Firsl-degree murder is con::;idered a more heinous than
d tl er"I'or" '1" -ldditiOllJI element indicating such hClnousnt:'ss IS reqUIred. nlur er; 1... ...,' , . . .
f ' I, ., , "t'ltut(lr)' 1nd there Jre substJnlitll dilferences between
Degrees 0 mUll cr <In: :. '_' _ . .., . ,
H " nv 't,t", Im;t-degree murder mduJes fllahLC ,1forethought states. owcver, III m,l .::. ,"-J,
I I
'd" , I 'I'm '"t ()f one o( the following: (a) delibcrJtion and premedl- all( tle au llion,l c t l: . _
' (' n 't'on)' (b) .. killing committed dunng th{' res gestae ot a tclony tallOn Jlter relll'1.. I , u .. .
h
"1 d's' II 'lets ,n the immediate prepi.UatlOI1, Jetual commiSSIOn, (t e res mc u c ,I . .
and immediate escape); (Jf (c) murder by poison, lying In .
.. - _.. 'I' t, 1'1\'" 'n 'Iude differences in inlerprel;lllon of prl'nledJt;ltloll. Dlllerl'lILeS Ills ,1 C ,y L
, , ppr '(',lbll' amount of tim(' is needed for rencction; it can be a In some state!:i, nO.1 c. " ..
f ' , I tIler states evidence of reasonably calm conSIderation IS matter 0 IT1lmlles. no, ,
required. In Slatc I'. Billghalll, --lO \Vash.App. :53, 699 P.2d 26.2 court.
refused to accept the inference of premeditation from the fad that It took several
, I tl v',-t',nl to de-lIh The dissent, however, stated that the de- mill utes to strJng e le I.. '. ,
d
" th 'n tes it took for death to occur, had ample time to de/ibcr-
fen ant, uunng e ml u
ate on what he intended to accomplish. , .. . ,
On t e ot ler 1,111. l: h I I , d th' Court of Appeals for the DlStfict of CoIumb" m
, U" Ie t .. 6'S \ppDC 167 94 Eld636(1937),cwl,dcllied,303U,S, BostIC I'. Il!tCl ,.da 0, < I ... , ._
- S C -'3 3' I Ed 1095 (1938) stated that the gowrnn1ent IS not reqUired
630,53 , L"_, - ", " 'f h
h "I S' 01' d'lYS or hours or even minutes." Tht:' Jury llIust deCide I I ere to s ow ,1 ,lP l', ,
has been sufficient time for deliberation.
84 Amen'can Legal English
-------
In 1t):-l7, W,tshington SupreJlll' Court an appeal bv ::;t a tl." of
[SttllC I'. (JIIt'IIS, 107 W;Jsh. 2d :-l48, 733 P.2d 9:-l4 (19871' ofa pretrial
revlt.,'w [revie\.-\' ofkgal issue prior to trial I to \vhether the jurv should
he allowed 10 consider whether premeditalion WJS present or not. the lrial
court refused to allow the jUf}' to decide on the issue of premeditation, thl' stale
appealed.
I. Ikyiew the following 1:lcts bellm.-listening (0 a tape slImrn.uizing lhe Offcns
judgment. \Villi<llll Tyler, a (axic,lb driver, was fat;llly sl,lbbed du;ing;l robbl'fY.
lawrence Ollells has bcen ch,uged with aggr;lY<lteo murder.
I of Wounds Injury Caused Fatal
I I
I
jll'r!ilr'1Ied!cn lung and h ... ;lrI
I
Iml illlllll'diatdy
I 2 pedorat ... d rightlobl' or livcr ;lJl(1 kidn ... y nOI illllll ... di.1tdr
! ; , . pellel rat ... J right lob ... or iiHr not Inllnl'dialciy
I '
penetrated right
I
no
I 5 sbsh ... d throOl! pOlentially
The bt.'lwecll Tyler and Olkns W;IS estinuted to havc lasted ap-
proxlIllald)' two 10 three minutcs after Tyler's neck \\',1:; slashed. Numerous
dcfensive wOLlnds wac also noticcd Ihe coullty examiner [do(-
who examines bodies of people stl!>pected of dying unda suspicious
indicating th.lt thae had bcen a struggle.
1 Now listt.'11 to the following tape extrJd thai summarizes the judgment in Srale
011015.
3. Answer the following. questions Jfter listening to the tape.
a. \Vhat was the disposition of the case?
b. \'\"nal ,nguments wcrc m,lde by st,lIc?
c. \Vh,lI ;ugufllents were made Ollens? .
d. \'V11.H rcasoning docs the cour; lise to find Billgha/ll distinguish.lble [rom
Ol/CIIS?
MOllsllIl/gllrer
Most distinguish between voluntary and involuntary manslaughter. Others
,1dJ ,HldltlOn<l1 degrees of manslaughtcr such as negligent or vchicular nt,lil-
slaughter. A homicide that-would otherwise be second-degree murder may bt.'
;'r"
-;.-
(n'minaL Law . 85
r ... duced 10 volunrary m;llls/aughter if it was commilled in response to adequate
provo(,llioll, sometimes referred to as killif,lg in the "heat or passion." In general.
four requireJlll'lliS must bt.' nlt.'t.
I. The provocation must be reason<lble (judged by the standard of the reaction
or an objective. reasonable person, not a subjective stJndardthJt relates to the
Jctor).
') The provocation mllst bt.' what actually caused the actor to kill.
The intcrval betwccn the provocation and the killing must be short (a reason-
able pt.'rson would not have had time to "(001 off").
4. There must have been no ,Ictu,ll cooling off bctweell tht! provocation and the
killing.
Think ,lbout the following questions for two minutes. Then discuss )'our answers
as a class.
Should the fourth factor listed above be judged by an objective or a subjective
standard? How can you lell if someone has cooled off?
involuntary manslaughter is an unintended killing ir it is clused by reckless (or
Ilegligent ill some jurisdictions) conduct or if it is \Used br the commission of an
act not amoullting to ;l [dony.
in Srell!..' i-". WiJlitllllS, -l 'Nash. App. 908, 484 P.2d 1167 (1971)' an infant died
because his parents didn't obtain medical care in time to saVe the child. The par-
ellls were ch,lrged with involuntary manslaughter. The court specifically found
that the parents loved their child and had no intention of harming him. However,
under thl' \\'ashinglon :-;tatute, simple negligence W..l$ ellough to c(lJwict the ddcn-
Jants. court st,lIeJ:
......
On the question of the quality or seriousness of breach of the duty, at common
law, in the case of involuntary manslaughter, the breach had to amount to more
than mere ordinary or simple negligence-gross negligence was essential [cita-
tions omitted]. In Washington, however RCW 9.48.060 amended by laws
of 1970, ch. 49, s. 2) and RCW 9.1i8.150 supersede both voluntary and involun-
tary manslaughter as those crimes were defined at comrr.on law. Under these
statutes the crime is deemed committed even though the death of the victim is
the proximate result of only simple or ordinary negligen(e [citations omItted].
......
86 . Amedcan Lega{ English
\'Vork in p,lirs on the following writing l'xercise:.. Each pair may turn in only one
mL'll1oran{lul1l.
I. You ;lre working in the distrIct attornt:y's officL' in Bangnr, :\L1illl'. YOll havL' rc-
cenlly been infof11ll'1.i of;l C.lse Involving il de;uh in.l hun ling accident (b;ISL'd
on an .[("tual case). As IhL' prosecuting you Lo decide if Lh...' perpe-
lrator [person accused of committing;' crimL'j has indeed committed J crime,
wh;1t the crime is, Jnd if you should prosecule.
; \Vrile a memorandum for the file (informal bUI infornltlti\'c) discmsing vour
options .mel your decision. ,
.1. The bcts .m.' as follows.
Da\'id noth, forty-five, wenl deer hUIHing in lhc ,"'Iaine woods with a
friend. Hc fired al Wh;ll hL' thought was a deer bUI instead killed t-..larjorie
WcstOll, who \vas sta.nding in her b,lCkyard.lvls. Wcston \\".IS wc'lring white
mittens <lnd did not havc on an orange bi.Jzc jacket, which are re-
quired to wear.
fI.-Ir. ROlh WilS hunting in a lindul .lrea and allegcs Lhat he shot at a dccr
;lild did nm know lhal a house was in lhe ;Hca. Hc is.1 scolltmaster, (atht:[.
husb.lI1d, illld [wrd workcr. l\"o (rJces of Jl'er havC' bCL'1l found in the arc;:].
The following statUiI..' will be' of use in your lktl..'rminarioll. Tht' statute was in
effect a.t the time of the incident but has since been repealed.
Rev. S(;lf. :\nn. 17;\ (IY61)
A person is guilty of manslaughter if hc ... recklessly, or with criminal
ncgligenct:, C;luses the death of .lilOlher human being.
Defenses to Crimes
If (he proseclltor es(,lblishes a prima facie casC' [providcs el10ugh proof on the
elc11lcnts of the crime for the casc to be sent (0 ajur}' for deliberations/ of wrong-
doing, then the dcfendant mily offer a defensc to the crime, slich ;15 sdf-dcfensc
or ins,lIlity, that \..\'ould relieve the defendant of lena I resnonsibilitv for the crime
t> I ,
with which hc or shc has been charged ('\,en if the defendant actuallv commilted
,hex,. .

[nminal Law . 87
Self-Defense
Self-defense and its rclated defenses (c.g., defense of others or defense of prop-
erty) ;lre only applicable when crimes against persons are involved (murder,
kidnapping, rubbery, etc.). In gt:ner,II, a person may use whalever reasonable force
is necessary to prolect him- or hcrself, short of deadl)' force. Deadl}' force Ithat
likely [0 kill or cause serio LIS bodily injury I may gencrally only be used where il
appcars to be.: reJsonably neccssary in lhree insl.mces:
I. to prevent immt.'diale death or scrious injury;
2. ro prevent the commission Of.l felony; or
3. to catch a felon.
The "retreat rule" of tile ['lIPC has bcen adopted by a numbcr of stJles ,lnd
says thai if it is possible to run away sately, that should he dont.' rather than using
deadly force. The policy justification is that it nukes more senSe to run rather
than to take a life. Thcre arc, of course, limitations to the necessity to retrCJr.
I. A person only has to retreat ifhe or she would otherwise bt.' forced to use
deadly force.
2. The person must know that he or she can retreat safely.
3. II doesn't normally apply La the defense of one's own hOlllc.
There;Hc other defenses Ih.1t areapplic.1ble to all crimes. inciuJing ins;lll1ty, ne-
cessity, duress, and elllraplllcnL
Insanity
A dcfcndant hI.' fOUJld not guilty of il crime if at the lime the COIl\-
mitted the crime he or she WJS insane. In all criminal triilis, Ihere is;\ general pre-
sumption of sanity; howcver, a defendant ffiJY raise the defensc if appropriate.
States differ as to procedural requirements for standards .md burden of proof al
tri.ll. Some states require that the prosecution prove sanity of the ddendJllt be-
yond a reJsonable doubt. whereas olhers require that the defcndant convince tht'
jur}' that hI:! or she was insane by ,t preponderance of the evidence. There are also
differing methods for determining insanity that vary from stale to state.
The three major attcmpts to define insanity arc the M'Naghten test, the
irresistible impulse test, ilnd the Durham test. The tradition ..,1 method is the
M'Naghten test, which requires th,lt the llccused must show that due 10 his or
her mental illness the defendant either
L did not know the nature and quality of the <.lct, or
; did 1I0t knlw/ whether the ;1(1 was right or wrong.
88 . Amedcan .;"nglish
have a/wJys defined the word know (or juries but have simply left it to
[ C Jury to dccait' what kllow means. This test h']s b"n 't' ,'. d' d' ,
bee >,' ec cn IUZI.' III 1110 ern tImes
JUSc someone who IS men rally ill might know that what he (lr 'h ' d' ,
".;rang b r b .::; e IS olng IS
lest. u may nor t' able to resist the ad. led to the irresistible impulse
The focus \ 'itl th' "1 I .
( I h ,\ 1 L' IrreSISII) L' lI11pulsL' Il'S( is nol thl' de-rendallt's knowlt'dge
o w It't er i1n ,let is right or wrong bUI whether Ihl' ddl'nthnt -1 "., .' .....If
conlrol Sr'lI 'S tho t . h - . . ' L,1l m,UI1l,111l 5e -
h' . t: ;J p('rn11l ( I.' use oj !IllS ks[ usc both lhe irrl.'sislible impulse 'lIld
L I ag teo test when in'l L1cr" I' "
tl t-. !:i r mg r Ie .Jury on [he insanity adensl.'. An\' of the
uce ,IdOLS IS '1 complete d f 'n" (h '
..:rime) t h .. ". . l: 5e . ( e cannot be convicted of the
ate comnm;slOn at the ..:rllllt' for which the defend'ilit h'l' bid
' ,!:i cell c large .
1{lash Review. Piscussion ,_
H.l'\'iew the section On the in.'.;anilv dl'lense Whu -lr" 111' II t' ,
. h I,' " " "'" l: ]fCC '1(tors mentIOned
t of the section? As, a class dccide what Ihe three factors an:.
Ill. e anSWer IS not the names oj (he three diffcrenl t"st'
Thfil' ",
which :./l1a major attempt al insanity was rhe Durham or product test,
") s firsl u:ed by a COlift In DllrhallJ v. United States, 9-! U.S.A 0 C "8
b J 4 F.2d (I 9:>4) Jnd has since been abandoned as being too bro::' It
.the M N<lghten test and the Irresistible impulse tests '15 too n ' , d
J
st[lctrve A d d. . <1[10\\ an re
_ Id h' e
h
en .lO( could be acquitted by of insanilv if the deknd'lllt
LOU s ow t al th" h "
l: Cflllle was t e prodUClllf;1 menIal illness.
As a discuss the to the following qucsi inns.
I. Is insanitY;J defense in your COuntry?
2. \Vhi(h of the <lbove let " I'k' h
.5 s IS more I"C t t.' test used to d"l . . '.
. . " ... crmllle Insanltv In
LOuntry? How does It drffer? '
Necessity
If an act is cOl11ll1iued that is i/legill because it is ncceSS"1fV t
hJ th J d (' , , a prevent <l greater
rm, en t 11.' elense at necessity is a I' bl F' .., .
to '1 d k . . pp 1(,1 e. or IIlstanLe, If you lie your boat
.'1 OL
f
IIIl a storm 111. order to prevent loss of life or property, vou mioht be
gUI tva tleoffenseottr's .. H " ' ' . 0
, t' p.1S:-;. \'our defense to 'I tre'p . I' ,
n - 't I' ' . . .' <ISS olC IOn IS
h
eLeSS(1 hY' It wa.::; necessary tor you to dock there in order to prevent -I ore'lt"r
arm t e ass f h I'" . 0 < ...
a uman rte or property) from occurring.
Cdminal Law . 89
Duress
Duress is similar to the defense of necessity except it does nor involve an act of
nature but an act of a person. If you Jre threatened and forced by another person
to commit i1 crime (the Clelils rells only), then you cannot bc held crimin;Jliy li<lble
for the commission of the crime. Although there is not much case law in this arc.l,
courls have held that the person under tluress must believe that dl.'ath or great
bodily harm is imminent and lhl' submission to coercion must be re'lsoni1bk.
Courts h.\Ve generally held that the defense of duress docs not apply (Q intentional
killings.
Entrapment
Entrapment invoh'cs public officers inducing someone to commit a crime that the
person would not normally have considered committing with the intent of bter
prost'culing Ihe person ror that crime. The poliq behind the Usc of entrapment as
J defense is to keep government officials rrom inventing crimes. There are two ap-
pro.Khes to the entrapment defense. The first is the traditional (subjective) ap
proach, whi(h examines the derendant's character and predisposition to commit
the crime, This approach is still followed in the majority of Slates. The modern
(objective) approach examines the behavior of the police rather than the predis
position oflhe defend,mt. The modern approach finds that cllIrapmen( occurs
when Ihe police activity was rC;Jsonably likely to have convinccd a reasonable but
unpredisposed per.'ooll to commit the crime.
In p.lirs decitil' which of the derenses might be .lpplicablc, Be prepared to defend
.1Il.swcr-; orally.
I. An undtTcover police officer cOllvin(es a reformed drug dealer to return to
drug dealing by offering the former drug dealer J large sum of money for
drugs.
1 An inl11<lte just released from the psychiatric hospital where she was under
tre<Jtment for schizophrenia commits a bank robbery "frer voices tell ha th<lt it
is necessary for her to rob the bank because rhe people working there Jre evil
need to be punished. At the time she commits the bankrobbcry, she
knows that it is illegal.
3. :\ minor begins 10 work for a prostitution ring (remember. prostitution is h::gal
only in <l tew counties in one st.He-Nevada-in the United States) after being
told that if she docs not, she will be severely be.Hen and [h.lt if she tells anyone
,lbout the convasation or threat, she will be killed.
90 . American Legal Englisb
John Jones threatens to shoot Mrs.l ...Iycrs if she Jocs not hdp him rob a b;JJlk.
Myers runs from Mr. Jones and enters.1 stranger's house and rele-
phones the police.
5. lvlanin st.lbs J,lCob during a barroom brawl [har Jawb starlcd by hilling Mar-
tin ;1J"ter hl' saw l\brtin talking to his wife. claims th.1l J;Kob had.l gun
and hl' was ai"raid that j;1cob W;1.'i going to lise it [0 kill him.
Criminal Law and Moral Valu",
Thl' imposition of penalties in crimin.ll proceeJings is society's way' of milking
sure thJt the values it considl'rs important act' followed. Thllt is wily, from timc
Lo time, criminal law changes, uSllally through statutory enactmcnts but also
through judicial dccisions. For example, abortion was illegal in the United StJtes
foc man}' rears and punish.lhle under criminal law, but ana the import.lllt
Suprellle COllrt case Rot: I'. Ilildc, -110 U.S. 113, 'J3 S. CL 705, 35 l.Ed.ld 1-l7
(1973), which invillid,lIed a SI.ltl.' abortion statUlc, Ihat is no longer lrue.
A controvt.'rsy that has not yet been resolved is "right to die." Do term 1-
I1Jlly ill patients h.lVc the right to choose to die? If they so choose, does someone
have the right to assist them if they arc unable to commit suicide on their own?
Dr. Kevorkian, a U.S. physician, has been tried for murder (or assisting in suicides
hut ha!> yet to be found guihy by a jury. However, his act is not yet legislatively
;l(ceptable. In 1997, the U.S. Supreme Coun upheld the validity oflcgislation in
WJshington that it iI crime for a doctor to give lethal drugs to patients who
want [0 end their lives [Washillgtoll I'. G/llcksbag,-U.S.-, 117 S. Ct. 2258, 133
LEd.2d 771 (1997) I. According to the Supreme Coun, there is no constitutional
guarantee of the right to assistt.'d suicidc, but the justices also made it clear that
the question is onc for the state legislJtures to decide. The legislatures have the
pmH'r to han dllctor assisted slIicide ilnd to legalize thl.' practice. The decision is
011(' that no doubt will be based on the moral v,llues of the constituency [votersJ.
Level IV. Cultural Focus
The Cultural Defense
The conformation of criminal law to societal values is ont.' reason why criminal
law differs from stolte to state and countq' to country. Cultures have different con-
cepts of what is right and wr91lg as a reflection of their moral values.
Courts in the United States h.lVe begun to t<lke notice of the idea of differing
moral values between cultures. In gener.ll, an immigrant or a visitor to the United
St,Hes is required to conform to the hlws of the United States. However, in some
instances, prosecutors either reduce the chOlrge th,H is brought .lgainst a defendant
or ask {or lighter sentences after conviction in responsc to recl)gnition of the dif-
fe-rent cultural values.
Criminal Law . 91
For example. in the Co/lIlIJuia Law RCl'icw (June 1996) Doriane Lambelet
Coleman re-ports on a murder case involving <1 Chinese immigrant. In 1939 Dong
Lu Chen, after bludgeoning his wife to death with a hammer after learning she
had been unfaithful. was cOI1\'icted of second-degree manslaughter instead of
ilrst-dt.'gree murder. j\loreover, he was sentenced to only five years probation after
lile judge acccpted a cultural udense. An expert all Chine5e culture testified that it
is appropriatc in Chin.l for ,1 hllsb.lIld to publicly announce that he intends to kill
;]11 unfaithful wi((." alld tht:- community then acts to stop him. Un(ortun.ltcJy, in
Ihis casc, the community, not understanding the nature or the threat, did not act,
,lIld tht;' wife was killed.
Another case involving the use of the cultural defense involved Vietnamese
refugees in ConnecticLlt. Vietnamese refugee, Binh Gia Pham, set himself afire
to protest policies of the Vietnamese government. His friends Who had assisted
in ;lIlJ \,ideotaped Ihe suicide were charged with second-degree manslaughtec, a
charge with ,1 1l1.lXil1lllm penalty of ten years in prison. During the sentencing
phase, it would ilppCJr that the judge took cultural factors into account because
he sentenced the five friends to probation after determining that they h;ld no idea
that they had done anything wrong and that Binh Gia Pham would have commit-
ted suicide with or withoUl the assistance of his friends. -
I. [n groups or three, discuss the following questions. Be prepared to defend your
answers orally during class discussion.
"') In the cases of Chen and Bing Gia Pharn above, do you find the lise ofthc cul-
tur<ll defense more acceptable in one of the cases? If so, why? Ir not, why not?
3. Arc .,uh.il.'cli\'1.' such lack of a prior criminal record, C\W lIsl'd in rour
system for sentencing fJctocs? List three examples.
4. Arc eultur,ll factnrs less valid than some of the examples you listed above?
I. Read the following scenario, which is similar to that of the Binh Gi.l Pharn c<lse
above.
A monk from "Sholngra La" (an imaginary country) immolates [setting
oneself afirel himself, with the assist,:mce of two friends, in Hartford,
Connecticut, in protest of current policies in Shangra lao His two friends
\'ideot<lpe the incident, which they then provide to a news agent::y in Hart-
forti. After giving tbe videot;Jpe to the news agency, theyreport the inci-
Je-Ilt lO tbe citv Llolice. The two friends were aware of tho' "'"n,It.,
i1:-i:-iisted suicide in Conllccticut because of Inc publicity thilt the Uinh Gia
Phalll tri,1I received. 1mb:d, the two frienus wrote about the case for the
news/eltcr of the Shangra L:J community in the States. They have no prior
record and have been modd citizens sincc their arrivill in the United States
three ye,lfs ago. The slale dccid('s to prosecute, ;lI1d the trial has
rl';Khed the c1os,ng argument! su Illlll;llioll o( the CISI..') st;lge.
") Di\'idl' into It'a!l1S. O"e team shouid prep.lre the dosing argument /(}f Ihe
prosecution and the other lL'am tile dosing argument for the dde-JHe. You lllay
need to add .lddilion.ll facts.lfs(), make SUre that your in.strllcfOr is il\Vare of
the information you are adding.
3. The fOllowing information aboul closing argumenls may help in your
preparation.
A clo;o;ing argument is'lI1 ,Worncy's chancl' 10 tell the entirc story. Until
this point in il rri,ll, the judge or jury has only heard the story in bils and
pieces from Ihe witnesses and evidence pr('sented at trial. Now the attor-
nl'Ys get to dr;J\\' it illl logelher into a coherent whole, applying tacts to law.
The attorneys hilve to point out vital details, weave the witnesses' stories
together, and explain connections that an' signific'lnl (or their Cilse anu thc
lilw Ih.lI <lpplics.
The rules JboUl what an anomey mayor m,l}' nor Sity are not as strin-
gent as for opening statcments I ,Worncys' introduction of the else
to the (oun). You (an argue and draw conclusions, but your .lrgumenl
nel'ds to be /ogical ,Ind well orgJnized. Your job is to help the judge Or Ihe
jury belicvc your evidence Llnd nol Ih;)t of your opponent. Successful trial
attorneys approach the entire trial wuh a "theory" or Ihe C;)se ill mind.
This of the casc is 10 ",how the juJge ;Jlld jury Why a PM-
ticu/ar verdict is legally ;:l1ld morall)' necessary. Everything Ihat is dOl1e in
il trial is donl' with this [heor}' in mind. So, in your clOSing argulllent,
think about the theory you W<1nl 10 present 10 the judge or jury and pre-
pare .lCcordingly.
4. Choose OI1C of the group to presenl your group's ;lrgument. Prosecution always
begins, followed by the defense. ivlnsl courts <ll/ow a short amount of rime for
rebutt:!l [response to the closing argument of the opposing side). In this (ase,
dosing srat(,IllCllts should be limited to len minutes for each sidc-, with fjve
minutes rebuttal time.
Criminal Law . 93
level V: Additional Exercises
Simplification and Interpretation: Writing
f the state of Iowa written in rormallegal
. . dr:1mshop statute rom . h
Followmg IS a . I ,', this statute. Then compare It to t
- I - , 'ver)"da\' Enghs 1, rev, n e
Enolish. USlllg t.:. d' the questions that follow.
" I -[<ltu(e niven in Level II an answer
samp I..' 0
. -I r- bTt for S'lle and service of beer, wine, or intoxl-
Iowa Code 123.92. CI\'I 1.1 II YI' b'l.' , ur'lnc"
- . I A ",)- IJ. I Ity InS "-
cating liquor (Drams lOp roperly . bv an intoxicat('d person
. -" d m person or p . . "
An}' person who IS IIlJure. . r son has;l right of action for all
I , f m the intOXicatIOn 0 a per ,
or resu t1l1g ro II 'o'lnlly against any licensee or per-
Il -' ed severa y or J '
damages actua y sustil1l1 I'. ermit was issued by the division or by
, h I > nOlthe Iceme or p. . ,
mIlle!.?, w d It:r or h I' I' who sold .lfld scrved ill1)' bi.'er, Wlnc..:,
- . h -I of any at ('r s J e, .
the aut on y '. . d rson \-\'hcn the licens('c or permlt-
. . . rq or to the intOXicate pe d
or Intoxicating J U h n was intoxicatcd, or who sol to
h id hwe known I c perso ,
tee knew or s au. . h the licensee or permittee knew or
d I . son to a pomt were
Jnd serve t1(, pt:r Id b 'come intoxicated. If the injury was
k n Ihe person wou t: .
should have now 'ttee or licensee milV establish as an
b " xic;1ted person, a perml "
caused y an In 0.. ... did not contribute to the injurious
affirmative defense that the IJ1toxlcatlOn
,1(tiOll of the person ...
t rn ownl'fS both statutes?
l. Is the civil liability the d
r
avc
k
eslS under either of thc statutes?
I j' hie ,or run' gu . h
2. Is the host at ;1 par y I' bl' ,,:- -to lll(, r buvs alcohol which he or s ('
r I r store la t.: I a .
3 Is the owner 0 a Iquo , 7
. . d r either of the statutes.
drinks at a later tune un e. II d I th st-ltutcs does he or /],l\'e a de-
'. .. illv ha ) e un er)o .. .. 4. If a tavern owner LI ,
fense unJer either of them? er '-Ike advantage of the defense in
If a defense is available, could tavern own.
5. _ d' "D' -ovenng Connecllons
the scc-narIO lise m I .... L
d E lanation: Brainstorming and Role Play
Research an xp ,
. r native countn'. A young Amencan . 'minal attorney III you i
You are workll1g as a cn . r . uj" g heroin iJlto r
our
country, has been
. B- nle accused 0 smugo In . .
woman, NanLY a '_ k'il' criminal attorney .1fid your expertise m
. b "lUSt! ot your S I as J. .
referred to ec. 'derstand the 1.1I1guJl!;e or the law 111 your
the English hlnguage. She dot'sn t un .... ....
country.
94 . American .. ;lal English
A. RlCkground
1. Brainstorm Jbout r.lctliJI dC[ilils VOU llecd to kl1o\' .1
hcr. . v i/1 oruer [0 properly advise
, No\\' choose the facts (rom your brainstormin ",,'.
answer the Icgal question' tl . tN', ,', . g (,'x(,'rusc that will help you
J N ' .s la 'WLV s AmefJClll hwv' h. . . .
, . JIKy.s American l.IIWL'f Ius thI"' , I' I ' '. e r ,Is III que.stlt)n 3.
, \.11 ' n: eg,1 questIOns,
J, v\ lat dem(,llts must I. " .
b \Vh, " , . , ' pnJ\l.:1l to Ill' convlctcd ofsmug)..:/in"?
. .if l,lJ] shc l'XI'",'I,'I' . . I' --'- b
. "LOIl\'IL[l't .
l, Does VOur (Ount ' , ' ,
" pnsolll'rS (0 be ILIIlSf' 'J G- ,I. , ,
States to serve J sentence? . Lfft.: .ILl, to Ihe United
4. Prepare tI filX to NaIlcy' A . -. 1 '
, ,s 1l1('rh.Jn ;IWyer pa\,lIlg p- .. I. .
questions thai he h ., d' . .' .1: tllU.if attentIon 10 the
.IS reg.lf Illg the law of your LOUnrry,
B. Role Play
In pairs, the legal inform;nion (ronl vour r' "L"! ' '.. ,
thl' telcphone wilh h. -\ ., ,t.:s n.;h 10 Nann's L"";ISC over
lllerh.;lll a[(ornl..'\' 01' f 'Ill '
l<J\-\;."Cf and the other wilJ bl' II ' ," .. I I.: a ) ou WI k till..' Amaican
k Lnmlllalla\\'\'cr working in \"01' '
, '-'. r O\\'n LOUntn'.
Rt!milldcrJ '
J, Politeness COunts in English.
1, telephone calls <lre .slill expell::;ive.
J, t: Amencan la\.vyer knows ab::;olu 'l' .
-1. The United Stales is '1 I It..: } nothlllg .lhoUI your legal SVSIl:1ll
'. . OIV-COntcxt cuhllrt'. .. , '
Chapter Four
Civil Procedure
Civil procedure de;lls with lhe rules. methods, and practice used in taking a civil
(as opposed 10 criminal) case or action Ihrough the couns, Each court system
has its own civil procedure. The United States has Sep;][;1te coun systems for each
slate .md the federal government. This means there are OYer fifty-one different
court systellls in the Uniled 5131('5 cwn if we don't take into ;K(Ount special
courls such as thL' U,S. Claims Courl. The st;lte systems ilfld Ihe tcdl..'fJI system
are sep;Jrate but related,
Activity
1. Review thl..' flowch,uts on state and federal courts you were given in Chapter
Two .1Ild them to the courl struclure in your country.
"') With;1 parllll'r, draw .1 similar charI of your court .system for presenratlon to
Ihe class,
3. Did you h'l\'e to draw separate charlS for "state" and fede[al COllrts or (ivil and
criminal courlS? If so, does the power of different courts to hear cases OCC1-
overlap?
Level II: Legal Listening
Essential Terms
jurisdiction: the power of a court to hl"Jr and a else
original: the first court lO hear the case; decides (acts and law
appellate: " court that he,lfs a c;lse if a party is unsatisfied with the origin,ll
decision
subject matter: power over the particular issue in the case
concurrent: BOlh st,He and federal courts have origillaljurisdiction 10 hear the
case.
exclusive: Eilher the o[ state court hilS sale power 10 hear the case.
personal: ill paso/will-power over the p'lrties in the case
venue: lhe loc.](ion of the actual trial of G1St'
96 . American Leg,- .::nglish
plc.adings:. thc .statements fileu in (Our! that detail plaintiff's and dekndant's cases
wmpJaJnt the st;}tl!lnen t filed by the plaintiff srating the cause of action
the response tiled by the defencianllisring defenses to the complaint
( st;1temcnt by the defendanl attacking the legal suHJcicncy of the
pl<lJntlit s complaint
discovery thL' pro'C 'S f I " ..
. L :; 0 0 )t;lJnmg m/orrnalion ;Ibout the olher Inrtv's "I" .
to the ,letualtrial , L. pnor
listl'1l to the following -0" h
. L mersatlOn on t I.' t.lpe between a man Jnd his I. "
'\tIer vou he th d d !\-V\t:f.
. " ,ar c rccor e conversarion, you will be gi\'en ten questions to'all-
swcr lOur mstru t ' h
. " or m.IY c Dose to h,lve you write the JnSWcrs or prep.1fe them
tor ora presentatIOn.
level III: legal Thumbnail
Jurisdiction
Subject Matter Jurisdiction
Attorneys be ,able to detefmine which court has the power to dCclde the
that thClrclJents have entrusted them to handle. In other words, the first
( tCI.slOn an ,lIIorney IllU 'I - k .
. , .. . m,l e pnor to I] 1Ilg: a complainl is to decide ",,'hich
Lour{' h,.I::; !>ub./cct maHer Jurisdiction. This might simply refer [0 the subject mat,
ler 0 t 11.' case such 'IS tort, H
,. ., s or I.:ontracts. Owever subject m'Hter)' f' r. ,
rl'lale$tothet ,.' f" .' .,." UIStlLtlOnaso
courts. JUc.:!:itlOn 0 ncJuslvt' or concurrent JUflsdiction of state and tedera!
In of citizenship /citizens of dIfferent states or even COUIl-
T
,r
h
Y1
Ct.J,!:i,es, ,I state court or the fedefal COUr! has the power 10 hL';lf rhe L",.
I.' 0 0\\'1110 r'lli' d.'. ..t.:.
'. . j'- c.: provl eoS a kw L'X.lillples of the subject Jllatter jurisdiction of
state ant Jederal courts.
Jurisdiction
Exclusive Federal
of citizcnship'
probak
Concurrent (ederal and siale)
Exclusive Stale
bJnkruptcy
federal t]llcslions'
parl'llts Jnd copyright
suil::; against the United Siaies
"The "::OUrlS shall hJI'': origin.ll iurisJkliun of JII "'-1 .', . .
ol,lhe l'nilcd Slales" 2S l'.S,C JJ31. LIII Jdlllns ulldu Ihl' Cmlslilulilln.
1 he courts shaH hJI'e Ilnginal iurisdi"::lion of II .'.'. '. .
I'l'rsy l'xceclh I Ill.' slim or I'alul.' ofS," 1)1)1) J' b J [hc nl.llIl"f III (OlHro-
. '. J. ., . m IS 1.'[IVccn_
III (HIZI.'IlS OJ di/rcrcnt SI;l/cs;
'''' Of.l 51.tll" Jnd ciuz ... ns or subkcls of.1 fnrci"n S[ IIc'
-" ... c, . ,.'
Civil Procedure . 97
EXercise 1. Case Hypotheticals and Pair Work
vVorking in pairs, read the following scenar-
ios and decide which courts would have
subject maua jurisdiction over your
elSe.
1. YOUf client, Sue LillIe, feels lh;1t
portiolls of her book were used
in a television program without
the producers of the program first
obtaining her permission to use the
material.
2. Mr. i\larvin, a residenl of Ohio, and your client, i\-h. Ching,;l residcllt of
t-..-1ass.Khust'/ts, were involved in an automobile accident in Ohio. tvIr. l\'iarvin
is suing Ms. Ching for $76,000.
3. Mr. Forster wants to divorce his wife, Margaret Forster-Simms, Ms. Forster-
Simms is your client Both parties are residents of Illinois.
4. Your client is executrix [female administratorJ of the (,Slale of her mother, who
has just died. The mother died in a nursing home in Olympia, Washington.
Your c1iellt is <l resident of Seattle, \V<lshington.
5. r.,.'lr. Babon,;l resident of M<lssachuselts, hilS been injured by a product manu-
factured by rour client's compilny, which is incorporatedanJ h'ls its principal
pl.lCe a/business in Munich, GernlJny.
Let's follow the attorneys in an actual case as they make decisions regarding juris-
di..-lioll. Thc f.!Cts of the GISt' of Bybee I'. Opadcr Sial/dt [ski BOIIIl,
ESupp.1217 (S.D.N.Y. 1995) as follows.
+++
Bybee is an opera singer residing in New York City. She became acquainted with
defendants Bonn Opera Company and its "lntendant"----{;eneral Manager-del
Monaco in March 1991 when she auditioned in New Yor\- for a position with
that opera company. Del Monaco conducted the auditio;) .... Bybee alleges
that she was subsequently offered a position by del to perform for the
Bonn Opera Company in Germany. [Bybee's husband was also offered a position
with the opera company, which he turned down.] Bybee claims that the defen-
dants refused to honor her contract as a resuLt of her hUsband's decision.
+++
98 ' American Legal English
,Exerdse 2. Reading forlTetallS',',
- , . -
I, In wriling. ill1SWer the following questions,
,I. vVhere does the plaintiff reside?
b. When' do the defendants reside? ,\ (Orporatio/l IS considered;1 residt.:nt of
Ihe stal(' in \... hich il is incorporall'd or wherL' il h;ls its prilKipal pLio.' of
busine:->s_
c. \\:hac legal theory is the else ba:->ed on? -rims? COCllr;1Cts? ProLiuc!.s
Dot's the fl;.'dcral district COurt in the New York arca ha\'c :->ub.Jec1 matter .Juris-
diction? On what basis? If YOLI need more information. wh;lt is it?
3. Docs the Nt'w York Supremc Court (the name of rri;]1 courts in New York
Statt') hJ\'e subject illJtter Jurisdiction? On what b .1sis?
In I Ill' n)'hcc casc, an ;](Jdition,d cOll1plic;1fioll arose heClUSL' cLiim th.1I
Ihl'y.ln.: imillulle Irom subject matter jurisdiction beGlUse 1I1lJl'r the Foreign SOY-
l'reign Immunitics Act (FSIA) instrumentalities [,lgl'ncicsj of a fOf(:ign state arc
nut subjcct to U.S. jurisdiction unless they 1:111 within one of the l'xceptions listed
in the FSIA ("8 USC 1602-11),
L 011 Own, re'ld the following frolll the United S(.](es COOL' that
,.,-oJ1lprisl' P,lJ t o( thl' FSIA.
28 US.C 1603, Definitions
(a) A "foreign state'; ... , inciudes;J political subdivision or a foreign state or
;In agency" or instrumentality of a foreign slate ,IS ddillCJ in subsc([itJIl (h).
(bJ An "agency or m.slrumentalityo( <I foreign slare" ml'llnS <lny
(I) which is a sep,lfilte Il'gal persoll. corporate or olherwise, and
(2) which is an organ Of.l foreign state or political .mbdivision thereof, or
a maioriry of whose shares or other ownership intercst is owned a lor-
t.:ign sLate or politiGll subdi"ision thereof, 'lnd. _. ,
(3) {o} :\ "commercial JctiviLy" means either a regular course of comml.'r-
cj,11 conduct or <l particular commercial transaction or <lCt. The commer-
cial character of all activity sh;11I be determined by refereoce to the n'lturt'
of the courSt' of conduct or particular transaction or <lct, father than by
reference to its purpose.
(el A "commercial activity cJrried 011 in tht' United States by a foreign
state" means commercial activity Guried on by such state and having sub-
stantial Cont,let with the United StiHes.
28 U.s.c. 1 604. Immunity of a foreign sLate from jurisdiction .
Subject to existmg international agreements to \ .... hich the United .Statcs IS;J
part)' at the timc of enactment of this Act a (?relgn state shall be
from the jurisdiction of the courts of the .States anti of the States
except as provided in sections 1605[0 1607 _ot .
28 U.S.c. 1605_ General exceptions to the }uflsdlctlOnallmmunlty of a
foreign state . . .. _ _
(il) A foreign sLJte shall not be immune from lhe }lIflSOI(tIOIl ot COUflS oj Ihe
United SLales Of of the States in any caSL'-----
(I) .",' " " " " "I
(2) in which the action is based upon a commercial <letl\'lty to t 1e
United States bv the foreign state; or upon an act performed to Ih(' United
S ' c' t',on ,,,,'th a 'ommercial activitv of the foreign state elsewhere;
tates Tn conne '" \.. '......
"' ,t ol,t,,I(, the territory of the Unitcd St,Hes III connect lOll With ,I orupon.m,L "U. .
," I" "t,'\',"ty of the Cofeign state elsewhere; or upon <In ,1(t outSide the conlrnerLl,l ,IL, I' .
" f h U\,'t 'd St"lt"s in connection with a commefcial acti\,ityol the
terfltory 0 I e Ie.... ...,. _ ..
foreiun state elsewhere and that act causes.1 direct dfcct In rhe UfllLeo
o
2. In pairs. decide whether the courL should gra.nt motio.n.to
" h " d to I'ck of subJect matter )uflsdICllon_ provlSlom ot mIss t c aLlion ue " . . .
the FSIA, if any, will help the judge in lllaking the decls.lOn? Questions [Q con-
sider th,ll nlLly help you in your decision are the
<1. Is the Bonn Opera Company an instrumentality oll,he state?
b. Did it carrYall commcrciJi in the United
3. Present your decision to the class.
L' I' d ead'", her decision on the subject matter jurisdiction issLie 1. Istcn Lo I Ie JU ge r .. '
, I "b -, > \s YOU listen to the tape circle the prOVISIOns the court lIsed mtlt'D},ecL,lsc.:.J", ' ...
k " d _. on the delend mt's motion to dIsmiSS Iht' action dut' LO lo mol 'e as CLlSlon
lack of subject matter jurisdiction.
FSIA provisions:
28USC1603(a) (b)(I) (2)(3) (c) (d) (e)
"8 USC 1604
28 U,S,C 1605 (a) (I) (2)
Motion: Granted Denied .
2. Dot's t e eClSlon 0 e L " h d " f th' 'ourt mltch your decision? Old the court use Lhe
same provisions YOLI used when mLlking your dt.'cision?
100 . Amen'con Ley._ c'nglish
Personal Jurisdiction
The ncxt qllc.',;(jon that must bt: decided by when choOSing where to file
a cOlllplilint is rht: issue of person'11 jurisdiction.
Doc:. the coun have Iht: power /0 dt.'cidt' a else invor\'ing this particubr dt.'-
fend,ml? This question is of mJjor import.lllce in American Jaw. Note that the
question asks abOHI the ddt.'lldanl, who is [ht.' important PM!y as far a:. person,lI
jurisdiction i.s cOllccrnl'd, l'be plaintilT, by filing Ihe complaint, has sublllirteJ to
the jurisdiction of [hl' court. There is <1 IWo-prong test used by a (ourt to deter-
mine i( il has personal jurlsdic[ion u\'er I he deft'ndan I,
due process + a long-arm statute:::: personal jurisdiction
Due ProC<'H
Seclion one of the Fourteenth Amendml'nr to rhc U,S. Constitution requires due
proCL'SS; "nllr shaIJ any Sla[e deprivL' any person o( lik-, libL,rty, or property,
\vilhollt due process of law; . , ." The U,S, Supreme Court in /1IIt.'maliollol Shoe Co,
". State o[Washillgtoll, 326 U.S. 310, 66 S. Ct. 90 L.Ed. 95 clearly set
forth the rull's relating to due process for personal jurisdiction purposes. The de-
fendant mUst have "minimum conracts" with the stale in order 10 sarisfy the rfJui-
tional notions of" fair play dnd substantial justice."
Let's sec how this was defined in /lIfcmariolll/! Shoe. The Slille of Washington,
in J slate COllrl, attempted to collect ullemploymenr contributions frolll intefll,l-
rion,11 Shoe Company (or commissioll.') paio [0 sales agents who liveu and nude
sale.'i in \Vashington. Imemariona! Shoe cOl1tcnd..:-d Ih,lI il <lid 11tH h,lV(' a su(ficienl
presence in the state and, therefore, the state court (auld nor exercise pcrsollJI
jurisdiction OVer il.lntcrn:Hional Shoe !italcd Ihal
1. it had no office in
Ill> <lellial s;Jles were (olllpklcd there though It diLl employ 11-13 sales repre-
sentatives in the state; and thilt
3. no stock W;lS maintained in the state,
Therefore, suing Intcrnalional Shoe in the state of \'V'ashingron constituted a vio-
lation of due process.
The Washington Supreme Court held for the sta/('; rnternational Shoe ap-
pealed to the U.S. Supreme COUrl, which hdJ in part as follol\'s .
+
To the extent that a corporation exercises the privitege of conducting activities
within a state, it enjoys the benefits and protection of the laws of that state.
The exercise of that Privilege may give rise to Obligations; and, so far as those
obtigations arise out of or are connected with the activities within the state, a
Civil Procedure 101
r '1lought to enforce
procedure which requires the corporation respond to SUl,
them can, in most instances, hardly be saId to be undue,
+++
. !- . ,r'lnternational
!o 'tlte that the actinIC:>'
The U.S, Supreme Court wenl on ::;, , ,,' IllUS" itnd th;1/
I 'r '''s 'stematlC and \.\In{,,H
ShoL' within the Of\'\,lshmglon .... cre } JJ" 11\ the COLIrL held
" , 'll II 'stale '\ IIH1/1.1 '
Inlernational Shoe hJd .suHJclent tIt'S Wi 1, 11.:. '1' d 'I" I I[ II ill have the full
/ . b fair one 111 whIch t le t.: LIlI ,11
that the (arum [courl L J " , hi, 1,.lrlicubr C1SC,
. ! b' h"-'rd' J condition whIch was also mt't 1111 ' opportunHy 0 t.: '-<J ,
LOllg-Arm Starure . '. "se
. j I lUriS to t.:XtfLl . . d I 'I, ermits state or tel Lf.1 \l ,
A long-arm stJtutL' IS caddie J\\ t lilt P ' .. , I i'l'lluirement In
'd t defendants 1 he e:':;l:I1IT.I
P
ersonal jurisdiction over nonresl en , 'r:'d f. .,.!', III [h,ll has been
C j b perlv notlLIC a ,m, l \
American law, thilt a dL'H?n<. Jnt c pro. II , .... .; 1<1 per-
' " J' blenl, Norma }', iL PfLlll ' '
tikdagainSlhlll1orher,prl:st.:nte ,lpro '1/', _.
d'J" court matcnJ s 1:-; :-;t.:11
son ,lppoillled by the court to t.: ncr , '1.1.' is known as serv-
. h 'at court \1:- ,
defendant's address wHh t e appropn I.: , d"" 1 hl' ,m expl'nslvc
t'd a states boun anl!'il.1I
ice of process. Service of process au Sl e. I h' _ 'n'i(l' of process re-
. h b enacted to reso ve t l '>l ,
process so vanous St.ltUtcs ave een Il"'S contlOue
. '! Of course the requirements vary from state to slJIC, . qUlremen, ,
wilh our look at [hL' Bybee case.
. I
! 'd an internatlOna
" f 1993 The Court aplJOIII l
Bybee filed her complarnt 10 May 0 . , I ncc wi th the
d f d nts in Germany 10 accOI! ,L
process server to serve the e en a , were subse-
o C m any and del MOI1.H n
Hague Convention, The Bonn pera 0 p . I letter dated Oc-
b d N ember respectIVely, IL.1
quently served in Septem er an ov r d to Ihl' 1J,1r 10 Germany,
tober 6, 1993. Or. Erich Raeder, an attorney adm
h
'tthe II he representing
, t fng t at e WOlll
sent a letter to the Court, In German, s a I 'A to respond to the
- dd't' nal month In OI!Jl'l
the defendants and requestrng an a 1 10 ! I ,. sing the merits
h h t additional letter Jl ( II , , ,
complaint. The next mont e sen an d t II letters, plaintIffs
h th C rt did not respon 0 Ll
of Bybee's claims. Althoug e ou , I ',1 counsel and
ld d "t retaIn til,
counsel notified Dr. Raeder that he wou nee, 0 I I /the] Court."
, I' 'th the applicable ru tl
submit an answer 10 camp lance Wi , ! 1"' LOnal response,
Stewart Declaration <jJ7. Defendants never proVlded any ,1,,( I
....
, , " "1-(.'., ,1lIOrnt'y, you
' 'a rsonal )UnsdlCtJon. As B) I;. , R
-'view the etlllation conccrnm
v
pe , I ,,'l'_\ident Jdcn-
t: , , '-d' ,t on over t 1>..' !l,n h
-lVe to dccide if the cOllrt (an exerCise JuriS IL I , , _.. \\.ht.'lha [he re-
d:l 1/1.,1 'Tn Wflhnn Jants, Donn ODL'ra ComDilllv ,111 l e nn:l( ()
102 . Americon Legol English
As wllh subjt'([ ma[[a [Ill'rt' is ;lddi[ionaJ compJicltion in the
HL'beL' GISt'. A defauJt judgment did 110[ propL'rly respond 10 the
compbrn[ and Ihl'rdore had a Judgment (,1Ih.'red ;lgJins[ thel11 by thl' Courl in
thc L'nitcd SI;ItL's/ was l'ntl'red ag,lillSt the Bonl} Opa;} ,Ind dd .\'Ion,l(o
on )UIiL' 1-1, 11}l)-I, Thl' milgistriltc fa type of judgl'l \\ ho was to LiL'cidl' til\' dam.lgcs
iss lit.' dt'cit/l'd [11;11 the complaint W;IS not cllou!:;!h to ;l\v;lrd d;lJnagl's In
cess (If S50,U()f) and th;lt Uybt'e could citha ;tCCL'P[ 550,000 in d.lm'lgl's or mov(' to
\';1(il[C I in.l(liv.\lt' i Ill\' dd;wlt Judgmcnt ;tnd fill' .lIJ .1I11cnJl'd (ompi.lin l. AI thc
time of the tiling: or the complaint, Iht' doHar value limit (or diversify of
C;ISt'S \V;IS S50,000. dt'cidt'd to JiJt' a motion to \;h:J[1' and til .... ,In
;1J1lt'nded complaint, which tilt' (ourt acccpted.
+++
The (ourt ordered that "service of process upon the defendants, Oper der
Standt (sic] Bonn (the Bonn Opera Company) and del Monaco and
Dr. Erich Raeder, counsel for the defendants shaU be made with translations by
international federal with such service good and valid." Order dated
March 7, 1995.
On April 26, 1995, Bybee served defendants and their German attorney,
Dr. Raeder, in the manner set forth in the Court's order. Defendants are now
represented by counsel admitted to the bar of this Court,

i:kclwie there \\';1:. improper service of [hc counsd ! J1 torney / for tht' dL'-
moved 10 dismiss the complaint dUL' tn !;ld: of pcrson;ll jurisdiction. In
rIle original complaint st'r\'icc was eflcclu;lfed in .1lcorJ']flcc wilh the provisions
of the Haguc Convention. For the amended complainl, 1I0\\'c\'cr, Bybt'c
,HL'd st'n'ice ,IS onlt'rl'J hy Ihc dis1 rict Courl. I-/o\\'('\'er,.i urisdid inn O\'t'r /(In:ign
stales and [hcir instrumcntalitics can only bt' obtained in with thc
r-Sl.-\, ;lOti service of proccss undcr Ihe FSf.\ is govcfllL'd by 2:-: USC 160S. The
rc/(.'v<lnl pnn-islollS >vert' ..:::itcd by the COUr! ;IS follows,
28 U,S,c. 1608,
(b) Service in the courts of the United States and of the States shall be made
upon an agency or instrumentality of a foreign state:
(1) by delivery of a copy of the summons and complaint in accordance
with any special arrangement for service between the plaintiff and the
agency or instrumentality; or
(2) if no special arrangement exists, by delivery of a copy of the Summons
and complaint either to an officer, a managing or general agent, or to any
other agent authorized by appointment or by law to receive servic: of
process in the United States; or in accordance with an applicable mter-
national convention on service of judicial documents: or
(3) if service cannot be made under paragraphs (1) or (2), and if reason-
ably calculated to give actual notice, by delivery of.a copy of summons
and complaint, together WIth a translation of each 1I1to the offiClallan-
guage of the foreign state, . ' "
(C) as directed by order of the court consIstent with the taw of the
place where service is to be made.
+.+
Divid .... into t(,;II11S with one side representing Bybee and Ihe other side repre- 1.
senling nOlln Opcra Comp;Iny, . . . .
'I 'nls for the courl on the issue of personal }UflsdlCtlOn,
1. Prepare ora argu1l11.: . , ,_ . _ . ,
3. Facts t 1at were agree , I 'd to bv both Sides and possible argument ... tor e.1Lh p.Ht)
are listcd below,
bets:
N ,', I 11'-l11"cmenl existed between the parth,'s for sen' lee of prO(C:5S, ii, I () speLl.I, , C' C
b. The applicable (oll\'(,lltion govcrning service of IS [he Hague 00-
ventioll. "
' ' .[ I Il" <-''"'c'[I'on of th(.' Haguc ConventIOn that allows scrvlce c. (Jcrm;my n.'}t.'L Cl t: "... '-'
bv m'lil.
d. of 1 he .11ll(,IH.kd ..:::omplaint was not proper pursu;lnt to tht' H,lgue
Convention,
Possible Pbintiff Arguments:
il. Ser\'icc was ..:::onsislt'nt with il direct order of the court and consistent with
Gamanlaw.
b. Service W;lS propcrly made in ,1('cord:lI1ee with,2
d
8 lI
b
'SI'e. 1608(bH3H,C).
" 'I bl [0 force phintiff to incur conSl era e expense to ;]g;]tn c. It IS Incqul" c, _
'C -(o,dallce with the H;]oue Convention, whcn ddend;]nts servICe III .IL :::.
therebv benefit from their initial default.
The ,Ire uJl;lble to challenge service of process Dr.
d, RaeJer's leller in '''pon,e [0 the service ot [he original complaln[ was.\O
;lnswC[ to the ..:::Dlllpl.lint, which meJns thaI he acceptcd
104 . 01 English
Possible Defellse Arguments:
,I. Service of process w;]S only availJblc ill accordance with 28 USc.
I 608(0)(2). The language of 'he S""u'e makes ,ha' clear.
o. Public policy doesn', permit 'he lise of 28 USc. 1608(b)(3)(CI simplyas
a COSt saving measure becausl' to do so would nullil}' the Llsefulness of 28
U.S.c. 1603(b)(21 for ,!II cOuotri('s such .IS GermallY Ihat h,1\'e eJected not
(0 ;lCcept service by mail.
c. Dr. Raeder's letler!O the COLIrt not an ansWer to the complaillt.
tl. Dr. Raeda's letter was mailc:J prior to (he service of the <lmenJed
complaint.
..1. After you complete oral nrgumer.:s, your instruc!Or will give you the Court's
fin<ll decision on lhe personal jurisdiction issue.
Unl<>r'"llatcly, 'he importan, question of personal jurisdiction is even more COIll-
plicated ,han it would appear tram Bybee. Perhaps the most difficlI" of the iac,ors
is the determination of whether or not the minimum Contacts test has been meL
1t would appe,]( that the COurts now Use J two-prong fest.
purposeful Contacts + b;:dancing test:::: minimum contacts
Purposeful contacts em basically Ill' ueflned fo lllean th.lt iflhe ddendants
knew or should have known ,hat their activi'ies might give rise to lawsuits within
fhe lorum state, then purposeful (ontaos h;]ve been established.
l\Jditiollally,,, COlirt mUSI balance factors to determine if"fair plilY and suh-
stantial justice" will be met if a de(endJOl is required to appear before it. A Col-
orado ilppellate Court, Trnns-Col/lillcllt I'. A Little Rito/Swede/I, 658 P.2J 271
(Colo.API'. 19321, citing I 1'<>rId_1('"Ie I ',Ik.<""sm Corp" I I vodson, U.S. 286,
100 S. Ct. 559,61 L.Ed.2d 490 (1980) set forth 'he balancing "1CtOrs.
+++
The test. however variously stated. seeks to balance the burden on the defen-
dant with the forum states interest in obtaining convenient and effective
relief and the interstate Judicial system's interest in obtaining the most effi-
cient resolution of controversies.
+<}+
.;---
Read Ihe following scenario.
. I 'I' ''n;1 is driving his brand-new car 10 mph - , r 'sldellt a 1\' Gn... 1 hi
Shane Cern},.1 C I. 't Bucksnort, Tennessee. As I.'y
d I "t 10"' Iwo- ane stn:e 10 . .
over tht..' sp('c 1011 ( . J. (on is drivint; at the speed limn
., from the OppOSIte Ircc I , " .
!vlonterra, Lomlng h b" tiful sumer Ovcr thc rolling hills
., - I SI" , turns 10 look;11 t e eau '.-k
01 .1:.1 lllp 1. - l,me . . h' '.J' of MGntcrra s pICkup trul .
I" e crashing lIlto t I.:!il e
and crosses the center an.. '"'d b k 1 leg in lhecrash. She later sues
11 ulder an rea s <
Monlerr.l (iIsiocate!i leT!i 10 edges in excess or$100,000. Ten ..
,. THe courl lor ama
Cerny in a Tennessee!i . .. t n Code Ann. 20-1-124 and
nesscl"s long-arm statutes for thiS aCtion, en .
20-2-223 ( 1997), read as follows .
. d-th state. "
SerVice OutSI t; e '. .. . h". 'b 'O- '-22J-
. - , ,." . )erson;'11 jU[1sdlctlon IS aut onzel\ y _ _ "
When the eXl.:rLl::.t' ot F .d h state inlhe manner proVIded by
- "mw be made outSI e t IS
20-2-22), servICe " ." edure or as otherwise provided by law.
the Tennessee Rules of Civil Proc
I . urisdiction based on conduct. "
202-223 Persona J I. 'd fan over;l person, who acts directly
.. "exercise persona }uns IC I _
(a) A LOUr! m.IY I. (or relief iHising from the person s:
or indim':lly, as to ;j c O:lIm , '"'
I Iiness in thIS state;
( I 1 Tr,l[}::-i,l(tlllg any 1l S . h. (7 "n this state;
") C ntrauing to supply serVlCes or t lIlos. [. "" ." ..
(-) 0 - ... I," "l.torOIl1ISSlOflmlhh5tate, ...
(3) Causing tortious In.lury ) .m. L . b. ed soleI v uI)on this section, only <l
. . j. ver "' person IS .IS , .
(b) \Vhcll JUflS( JCtJOIl O. , , j .Ill this seclron may be Jsserted
. ." r 1 3CIS eJ1Unll:ra el , claim 11)f relief ..lflslng ron
again!'1 thaI person.
., contacts test for torts, determine in writ- . . h to-prong nllflmlllm C
I. Revlcwmg t e w - Id have personal jurisdiction over erny.
. .. 1 T ' , " 'e (ourt WOli
II1g II t le enne!i:-it:. , b.cct matter jurisdiClion? Prep<He your
' Docs the Tennessce state court have su J
response in writing.
. d ontracting via the Internet creates an added I " ')f computers an c .. h "
ThL growt 1 In ll!:>t: I.. d ton Courts In reccnt case::. ;l\e
. ,.. s of persona Juns lC I . . ..
dimension to the que!itlOn.. ,. th st.1I1d"lrd meaSUre of minImum
'
" "'0" Hon Issues U!illlg e <
decidcd persona Jun::. IL . I. on"ll ,urisdiclion "1110 contacts VIJ
a mvo vlng pers , (ontacts, but as more c,lse::; r l;
the Inland, lle\V laws Ill;!Y develop.
106 ' Amen'can Ll::gol L .ish
In COII/fIlSt'n'/.' 1'. 89 F.3d J257 (6th Cif. 1996), the court held that
COllfacts riwI wen: primarily electronic were sufficient to give a court personJl
Jurisdierion (wer a person doing business on-hne. P;:nterson, a Texas attorney who
t'ntert'd into.1 distribution ilgreemeflt with Compuservc, which does business in
Ohio, sUl'd in Ohio by COlllpust'rve. Parrerson had filled out the slandard
distribution in Tt'X;IS ;1nd [ransrniaeJ it elc(troniGilly to Compuserve
in Ohio.
Tht' agn..'t'Illt'nl st;ltcd tlut it 1..'1l[ered into in Ohio and that Ohio linv gov-
erned rhe A dispute bctween Ihe parties ,]fose after Compust'rve
distributing.1 product similJr 10 P<1trerson's.ln a 11'IIer to Compus('fve, Patterson
demJntkd S100,000 in d<1mages from Compllserve, whereupon Compuserve filed
'In action in Ohio seeking a declaratory judgment /judgment of the court on an
issue of law \\ithout an actual order (or enforcement of the judgment] that its
product did nor infringe upon of Patters 011. Patll'rson moved to dismiss the
:1([lon for b(k t)( jurisdi("lion. Tht..' Iri;11 court found in PatlL'r!ion's liJyor,
but the Coun l){ Appeals for tht..' Sixlh Circuit rc\'crsL'tl ,lfta flnding lh;]t the de-
fenJallf had Illt..'t the tests that the court set forth (or pt'fsonal Jurisdiction.

First. the defendant must purposefully avail himself of the privilege of acting in
the forum state or causing a consequence in the forum state. Second, the cause
of action must arise from the defendant's activities there. FinaUy, the acts of
the defendant or consequences caused by the defendant must have a substan-
tial enough connection with the forum to make the exercise of jurisdiction over
the defendant reasonable.
The court fOlilld that the minimum contacts t('.'It h;ld becn Illl'f: purposeful
cOl1tJds and h.1l.1I1(ing i;](lOr5.
I. \\-110 \\'as Ihl' pbintiff in tht' Ohio action?
2. \Nh:-r did P;ult'rson ask the trial court to dismiss tht'
3. \Vho appeall'd the trial court's decision?
4. Patterson li\l'd in Texi.1s; what gavc Ohio pcrson,,1 jurisdtction over him?
5. Vihy w;]s P;lItt'rson demanding dJmJges from Compuserye?
Venue
fn contrast to illri5diction, whi..:h relates solely to the power of the COllr! to hear
and decide il cast', venue concerns the physic;]/' gt'ogr,lphicallocHion of the hear-
ing. A (ourt (.li1 11,1\'1.' jl1risJictil1/l ,wd IhL'n dccide Ihat Ihl' \'Cmlt' is improper. 111
Civil Procedure 107
dCLiuil1g wht..'ther \'cnut..' is appropri;J te or not, courts norm.Illy considt..'r two pri-
Il1;lry factors:
J. litig;ult or witness convenience and
2. thc'-,lVailability of In impartial
'.'COlIt', whill' imporLlJ1t. is not as impOrt,lnl .IS the }urisdictionalqLJt..'stinn. A
judgment Glil he dl'd ,lfed inYJI id if jurisdiction is however, if
W,lS improper but jurisdidion (Orrect, thl' judgment wtll st;InJ. If delcn.sc at-
torney objects to v('nue (for instance bt..'cause he or shl' fecls (I.ll' Jury wdl
bl..' imp.1rtial), tht..' attorn,,-'}' must the objection at the begmnlng of the acllOil
or \'enue will be deemed w.lived.
Therc have bt'cn several criminal trials in the news in the 1990s that involved
qucstions ofwnLle. USll<lliy, the defcildafll{s) felt that an impartial jury \vould not
bt..' avaihlbk in the (OUllly/st.llc whcn: the action was filed. For eX;lOlple, Ihe de-
ft..'nse atlOfIlcvS for the four police officers accused ofbeatiog motorisl Rodner
King a ch;mge of vellue, which ' ...;1S granted, because the attorneys felt
that the offlcers would not receive a fair trial in Los Angeles County. Also, for the
same reasons, tht..' venue in the Timothy McVeigh Oklahoma Cily bombing (In
Oklahom,J) was to Denver (in Colorado) in a setlfch [or In impartial
Jury. ..
There has becn SOJllt' criticism of venue iSSllC.'I]/l recellt }'cars. With l.'xpanJl'd
media Glp;lbiiitil's (rom radio to tdevision news coveragc Jnu the Internct, it IS
difficult to lind jurv members in <lily part of thc United St,ltcS who haven't had
prior exposurt';o i;lform,llion on [he C;Jse in .'lome form or <Inother.
Fom/II NOli CO/lI'cl/icl1s
Let LIS rl'turn [0 Ihe Bybcc else for furrht..'r inform.ltion on VClllll' qut'stions in Ihl..'
["ornl OfJOfll11lI/o" WTlvCIlicJl5 [a court thaI has jurisdiction hut lor v.lriollS rt';]-
sons dcaiine; with collvenicnce is not lhe proper court to decide the c<1sel. Thl'
B)'bt:c cour;, C1ling tllJ.ny G1SeS discussingjorum 1/011 cOIII'el/iclIs issues, cnuma-
<lted the (actors;l court should consider when deciding whether or not 10 dismiss
a c<lse pursuant to that doctrinl,.'. These are the gener3] factors.
\. The courts hilve considenlbk discretion in making decisions.
2. Does a suitable ,liter native forum exist?
3. Substantial sliould be accorded the plaintiff's choicc of forum.
.J.. The court should bal;.1nce the public private interest [,Ictors set forth in
GlIlfO
il
ClIrp. , .. Gilbert. 330 U.s. 501, 67 S. Ct. 839, 91 L.Ed. 1055 (1947) and
KUSler I'. LIIIIl/Jt'(IIW/s Mill. CII5I1C1/t)' Co., 330 U.s. S 18,67 S. Ct. 828, 91 LEd.
1067 (1947).
108
.ric
ega' English
The public interest factors th;H shoulJ b - "d "
e l-{)ns] ered mdude
J. difficulties with app/ie-Hi()n f'" "
') 0 10[CIOn ChOi f I
,ldrninislrJ,iv(' problem dd" 1.
0
. ce 0 ,HV rules Jnd foreign law.
.:i J 109" IIH!,H1on [ I d I
gested centcrs; and '- .... ' 0 J [eJ y leavy case loads in
J. imposition of jury dun' on "I co '.
. ' nlmuoJly wrLh no rebrian (0 the lilig;Hion.
Those (;1(tors should b, b" I"" "
t J ,Jnu.'d w'th . .
, pnVJk 1l1[('JCSI faclors, such as
1. location of evidence and \ '"I
., . \ I i1essl'S'
availability of process to I ., ..
3 compe uowdlmg .
. practical factors fhat m k' ". J _ '-' WHnesses; and
J ,e In;] !> cas}', expeditious, and inexpensive.
The prior (0 giving its judgment On! '.
doctnne of j/JTI/m 11011 COIH'clii' d. '- _ hl: ISSue of dIsmIssal under the
l
UIS, !!icussed th, 1- -. (I
it' eVant f<lctors. l' ,lL(s 0 t le case <lnJ balanced the
l. Carefully read Ihe <'cerpls (a) ( b
"l Stop after re<lding g) dow from the Bybee case.
3 excerpt.
. Then reread the texl und r' I
d
. . cr mmg { Ie \\'ords lh-It h"
!.'ipOSUiO/l of this issue. ' you r mk predict the coun's
-to Wilh it partner c
1 ornpilre ,1IlSwers and de" i, 'h.
J. /{l'pe;H Ihese steps for eJch ,. _, I. li( l' ,11 the COUrt's will be
h L\:ll'rpL t \'our OpI .
t e exerCIses, list the reasons fo Ih> "h IlIOIl llanges ..Is you go through
b t b r t: L ilnoe If YOur ..
u ecomes sfronaer list th _ OP!J1WIl rClll'lillS the !lame
- - ;;" e reasons tor the in - '
opinIOn. crease In the strenglh of Your
6. Finish doino 1-5 b"l"or' " '
;;, ... t: gomg on to -Jh
J. , .. fTJhe contract at - . . I,. \\. IIC follows the excerpt.
ISSue IS wntten In German .
deutsche marks and d f d ' prOVides for payment in
. ,e en ants and certain oth .
Interpreters. While the. er Witnesses may require
necessity of obtaining t I
rates and the likelihood of n d.. rans atlons, calculating exchange
d . ee mg Interpreters are I t' [
eCldedly "practical problem" h" h re a Ive y minor, they are
b k
s W IC are among the . t "
eta en into account by th" ( pnva e mterest factors to
b
IS ourt
" In regard to the bl"" " " " "
. pu IC mterest factors which sho ld
determination Germany h f u be part of the calculus of
N ' as a lar greater inte t th
ot only does the SUbject matt . res an the United States.
f er Involve a German la
per ormance in Germany and . nguage contract requin"ng
!( . payment 10 German Curre b"
a egatlOn against a significant [t [.. ncy, ut It also involves an
. . cu ura mstltution i h" h
stantlal Interest. n w IC Germany has a
c. The interest of the United States in this dispute, however, is minimal because the
contract was to be performed in Germany and paid in German currency. The only
connection of the United States to this litigation is Bybee's place of residence
and the fact that the audition and negotiations commenced here.
d. Although the plaintiffs choice of forum is to be accorded great weight. this fac-
tor alone is not dispositive. {citations omitted] ... Furthermore, because Bybee
entered into a contract with a German agency to perform in Germany and she was
to be paid in German currency, she should not now be surprised to be forced to
litigate her suit in Germany. {citations omitted]
e. While certain of the negotiations leading to the contract occurred in New York
and Bybee is a New York resident. these factors are not enough to overcome the
substantial factors in favor of dismissal. {citations omittedJ
f. This Court, therefore. exercises its discretion in favor of granting the motion on
the basis of the doctrine of forum non conveniens.
g. Defendants' motion to dismiss the amended complaint on the grounds of forum
non conveniens is granted on condition that defendants waive any statute of
limitations [emphasis added-time limit for filing a complaint] defense that
would make a German forum unavailable to the plaintiff. [citations omitted]
7. At which point (a-g) were you absolutely certain what the court's final
sian on the issue of /ofllm flOIl cOIl1'eIJiens would be? VVby?
Answer the following true or false questions based on
I, The R}'ht!: court decidcc.l that it had subject matter jurisdiction.
1. The H.rbL'C court c.lecidcd it didn't h<lw personal jurisdicliol1 becluse of (he
improplr sl'[vice of lhe amended compbinr.
3. The court decided to hear the merits of I he case due to Ihe doctrine of
fom/II 11011 COIJIclliCIJ5.
-to The court decidl"d not to hear the merits of the CJse due to the lack of min-
imum contacts.
5. Ms. 13ybee has no further opportunity to Slie the defendants.
L Read the following bet situation and decide which courts have subject I11Jtter
or jurisdiction.
2. Next, in writing decide if one court might be the most appropriate forum.
110 . American Le!:J!.Il English
Relllember, however. that a defend;Jn[ has;1 substantial burden to overcome
before a (ourt will dismiss In acrion on the basis otJomlll 1101/ cOIll'wiens.
Fact Situation
J\hrp Ciliais, ,1 citizen of Ten nessel', W,IS walking near;1 busy street in NJsh.
ville, Tennessee. one dar when a large Conae[e blo..:k fell off a passing truck
and hit her. resulting in numerous iniuries 10 1\15. Cali.lis.ln addition to in-
curring p;lin and suJTering and medical t."xpensl,;'s, cOllld /lot \\'ork for Over
.1 ye;lf. Shl,;' wants to sue Ihe trucking firm for $300,000 in d.lflwges. The finn's
hc.ldquarters are in Oklahom'l. Jhhough the firm does busl/lcss in Tennessee.
fn which courts can J\fJrY3 bring suit? A Tennesst'c state court, an Oklahoma
state court, a federal court in the Sixth Circuit (Tennessee) or a federal court
in the Tenth Circuit (Oklahoma),
Parties and Pleadings
Parties/Claims
The simplest form of lawsuit has two p<lrties and only one claim is involved. The
parry bringing a civil <lction is Ihe plaintiff, and the party against \ .... hom the action
is brought is the defendant. On appeal, the party appealing an action is the .lppel-
bill or petitioner, and the party answering Ihe appeal (the winning party in the
lower COUrt) is the appellee or respondent.
As you have 'llso learned, Jaw is not that simple. More than one party can be
injured, and those injured pilfties can join togcther 10 SllC the defendant. There
CJn also bl! more thiln one defendant. The defendant can also hJ\'l' a claim against
the plaintiff. Joinder rules have been established that set ou[ the procedures and
rules for the joining of partil!s or claims in an There GlO even bt' an entire
group of people who have been ,1tTected by an action.
\Yhen parties are joined In an action, Ihey are called either coplaintiffs or co-
defendants, which simply means that more than one p.1rty is involved on either
side of the action. For example, if Pekka Lukonell Juha Arnhcim are injured
in an automobile accident with Jason Denbreeijen, the injured parties can be
joined; Pekka and }UhLl would then be coplaintiffs. If three cars were involved in
the accident, and Pekka and luha Sue Jason and the driver of the third car,
l\.brushka Valentova, then Jason .lOd Marushka would be codc'felldants.
Claim Joinder
A cross-claim is a claim filed by a codefend<1nt against who
for that particular action would be caJJed cross-claimants. If, for instJnce, in the
example above, Marushka decided to sue 1ason, she would tile a cross-daim
against Jason, and then, in addition to being codefendants. they would become
cross-claimants.
Civil Procedure ' 111
-I I clal'm auai"nsl the plaintiff if another cause of j ' I t -lO 11 e '\ coun er. 0'
t\ l dcnl;ln L. , . b ther than simply an answer or a
.. I d The countcrclJlm must eo. . . h
action IS llWO ve .. ' I' 'f'f r federal procedure J counterclaIm IS ell er
h' (/;lIm at the p ,1Intl , n ..
response to t e . _ ..n the suit] or permissive [JrlSlflg out
I
.. J oul ot [he transaction I .
compulsory ans:n
g
e resent claim by the plaintiff[, In the example above, If ,
ot actlDm. oUbldl: th p . . publl"- .lfter the "lccldent, 1'1son
. 'r ndalllJIllJCIO ,
Pekb n:peatedly oils Jason ,1 .. kk-
could f1k counterclaim (or agamst Pe a.
'I F d I R I,s of Civil Procedure that governs cross-
R d I, Ie 13(g) 01 t Ie e era u L 'III
1. ea \u h bered the sentences Jor you as
dJims in feder.ll proceedings. We ave num
and 121,
, d C Claim-(Federal Rules of Civil Procedure) Rule 13. Counterclaim an ross-
( ) C Cllim Against Co-Party.
g ross-. i , 'cross-d,lim any claim by one party against a
III A or occurrence that is the subject,
co-party arising . fa countercl<lim therem or relating
, I f the origin]1 action or 0
matter cit ler 0 . b. It of the original action. [2J Such
') nertv that IS the su Ject Ill;] er . . d
to I '. _I' ' h t the party whom It IS asserte
.. -1-. . Include <l L amI t a , .... .
crO:-;,,-L .11111 111,ly . I.. . I for 111 or part of a (Iallll assertcd
. .... b' Ii'lblc [Q the cross-c .Hman ,
15 or Illa .. L . . I' _ . -claim'lllt. [bracketed numbers added]
inlhe ;]c[lon "g,II11::.t LfO::;S
b k I' I- down bit bv bit tl) understand its ' In groups of two or threc, re.l tit: ru l: ,
meaning. h' I . d nr ,I piece of paper. Erasc all but the
... ,t' '1(11 sentence Oil I ){),lr . .. I'
<1. I-Ir.\[ \\ rl l: l. d .. .1 the central message of thiS ru t:-
. . Uti need to un ersl.lOu '-
ilh:.olute mlllllllUI11 y, d h b'lsis of the sentence, vou may go
h we on t e . b, \Vhen YOLl as a group, ....
all to the next step. h. . dd narts bLlck to the sentence.
b' -I- sc or even phrase by p r.lse J .
c. Clause } L , d 'J ,1, Compare your result with the other
d. Keep track ot when YOll ,ld l: \\ lat.
groups.
Party Joinder , .,
' -' I'onder devices class actIon SUIts, developed
h dOff 'nr tvnes ot speua J I ,
Among t I.' I en: , . . h nomena in U.S. law. A representa-
. f the more mterestlllg p e
in torm one 0 . _I' ' ) . mitted to file a lawsuit in an Jttempt
' 'I ' up ot people (a L .IsS IS per f I
tlve ot a arge glo . d.) nst the entire chlss. Rule 23 0 Ill'
.- I .1\' 'iWf()I1,rSCOnlmltte ag<ll _. . I ,.
to t It' ,1 l:g{;l. _. 'quiremenls for the tJlJI1g ot ( as::;
Fedcr;ll Ruh.'::; of CiVIl Proc('dure 3ds out our rc
action suits.
112 . American Legal fish
-------
Rule 23. Class Actions
(il) to a Action.
One or more Illcmbers of Ll class may sue or be sued JS representJlive parties
on behilJl' of all only if (I) the clol.,)s is so numerous that joinder of all mem-
bL"rs is impracticable, (2) there are qut.'stions of l,lW or fact common to the
class, (3) the claims or defenses of the rl'pn;'sL'llutivl' parties arc typic]l of the
claims or of class, and thl' paTties will fJ.irly
and adequately protect the inll'rests o(the LIJss.
Thae h;1\'e been both praise imd criticislll o( the ..::lass iI(/ion l;nvsuit, but it ap-
pears to be <l doctrine that will be arounJ [or One famous example of ,\
clJSS action lawsuit is the suit filed against A. H. Robbins Co., the makers of rhe
Dalkon Shield, J birth control de\'ice. The plaintiffs won the action ilnd almost
the corporation.
I. List in writing \vlwt you see as advantages and disadvantages of class action
lawsuits.
2. Do you have a similaT concept in your country? Be prepared to present your
ideas to the class.
Pleadings
PIl'mJings arc the JO(UlllCrllS filed with the COUrL by pbillliff Jnt! defendanr that
detail the facts, charges, ill1J possible defenses to the ilLtinn. The action com-
mences with the filing of a complaint (also cailed a petition or a declaration) by
the plaintiff that states fhe (]lleged wrongdoing of the defendant. Three require-
ments for tht' complaint are
I. facts leading to the court \ jurisdictional competence;
2. facts that show that plaintiff should be a remedy; ;lnd
3. the remedy n.:quested.
f""\ Listen to the attorney talking to her clienf ,lbout an automobile accident in whi(h
'U ;' the client was injured. Then till in the pleading form that hilS tllready been par-
tially completed you.
anJ
CIRClJlT COURT Of SHELBY COUNTY
MEMPHIS, TENNESSEE
Pbilllilr.
,.
DefeliJalit
DcfcnJ;Jnl.
i\o. ______ _
Icollrt Jockcl number-:J llllillher the
courL assigns (0 c:lch
PLAINTIFF'S DOMICILE
PI,lilltirr _______ , i:. of _______ C{IUIlI}.
1
_______ lcil ....I. ____ Il.ip coJel. _____ blreet aJJn.!ss ._
_________ [LClephonc numberJ.
II
DEFENDACJTS' DOMICILE
DefenJall1 _________ . resl(Jes :11 ___________ _
ISLrel't audrl'ssl in the City of ______________ County.
Stille 01' _______ _
Defend:L1H . fe:.iul's ,11 ___________ _
[stfC!.'1 adJressl in the CilY 01' ______________ County.
State nr _______ _
III
FACTUAL ALLEGATIONS
Plilinlirr ________ on _______ .19 __ . at
. I was drivin.!! west on JctTersnn ;'\\'CIlUl' in approxlmatl' y ________ _
She was proceeding at __ nules pl'r hour in the
____ lane of the four-Ialle street whl'n _________ . tht.'
defenl.bnt. driving. ___ on Jerrersoll Avenue, went into a spin :JtlU ,nln
IJllle diJ PI:]imi/T\ car leal l.' [hc ____ _
- ________ ---, __ . was o.ld:ing ou[ n,
OI[ Jdfersilll A ... into ldTerson .A"enue a[ [he time Ddcnuam
__________ 's elf was proceeJing ____ on Je/1cr'\on .-\n:nue, He
:..Ilkges th:H he swerveulO miss DdcnJant _________ \ (ar anu thereby
Illst control of his vchicJe, "pinning mlO Pl:.Jintiff"s lane uf Ir:lffic
,-\s a result of Ihc ncgligcncc of Plailllirr ________ _
W:1S Ibrown forward sharply. slriking l'arillUS p,lrI<; 0( _____ _
bouy. and
;:;IlI:-.ing serious Jilt! permallellt illJurie:-. [0 Ihe PI:1illlilf
IV
CAUSES OF ACTION
The collision on ____ _
. 19 __ . resulted from the negligelll:e
of [he DL'fenJ:lIll. _____ . _______ , ill Itl kCl'P ____ \'chicle
unJer cUllIrul. in uriving at cxcessiVL' speed in a __________ arc:..l. anu
m f;liling to gUIde _________ \'chicle so ;IS [U aVOId colliding wilh Ihe
vchicle 01" _________ in ,-iola[ioo ofTcnn. Code Ann. of thl.!
S[:.lte 01" __________ . which proviues:
\Vhencver any roaJway has been Jividcd illto two or more c1e;Jrly
marked lanes for Ir:Jffic. Ihe rollowing alies. in additIon [0 ;111 olhers
cOllsislent herewith ... hall apply:
(I) A \'chidc shall be urivt.:n as nl.!arly :is praclicahle entirely wilhin
,I lanl! ;lIlU shall (11)1 he llJoveJ rrom stich lane until the drt\'cr ha"
first such mOVCllh'lll C1I1 be maul' \\"ilh salety: .
And from Ihe negligencc or Defelluant. ________ . hy making;lIl
improper move illlo Iraflie in "HlI;lIilln of Tenn. Colic Ann, nrlhc Stall'
ofTellJlesser! thereby caw.;ing Dclcnuam. ________ - 10 s\verve into Plaintiff's
l:lne or Irarfic .. PlallltilTs \.-ehide. The :-.laIU[c as follows,
The driver of a vehicle \\."ilhin:l or residl.!nl'e district
from an alley. Jri\<ew;IY or bUilding SlOp such vehide iIllIl1eJi;liel),
prior 10 dnving 01110 ,\ sidewalk or onlo Ihe :.;iJcwalk area cXlenJing
acro:.;s :Iny alleyway or driveway, and .\hall yidd the right-or-way to any
pedestrian as may be necessary to avoiJ collision. ;md upon entering the
roadway sh;.tI1 yickl the righL-of-way to all vehicles approachmg on the
roadw:.ly_
V
INll'RIES
a proximale result of the Ilegligence Dr Defendants. Plainlifr.
---
.... ufkreJ injuries. induuing a hroken ___ . p<lin
. . I . Ih[ 'md Irauma to her sternum, As a result of such rnjuries, in ht.:r ";Ilecs. IIp ,1m I..: l::-'.. .
PlaintiIT ______ _ has incurred hospi[::tl and medical expenses and has
. I has been unable 10 aHeml sus(alileu physieal p;lin i.lIld menial angu[s 1. ____ _
10
__________________ . Plaintilf ______ _
waS employcu at the time of the collision '-JIld. a proximate result orthe negligence
of DerenJanls. is nllw unable 10 work and has been pbced on long-term disJbilily_
-----
will suslain physical pain :.lIld anguish for lhe remainul.!r
of ____ life,
Plainlill _________ allcge:.; that all charges sustained for mcdICal
hi
. ___________ chargl.!s for similar
servi(I.!" are tht.: USU;11. reasona e. anu
services renJered in County. Slate of ________ _
. . . and lhe clTccts thacof. arc in all reasonable probability _________ InJunes .
or:J bsting n:Ullre ;Jntl will h;.lI1uil';lp
_ ________ for the remainder of
-----
lift.:. By reason of Ihe negligence of the Defendants. Plaintiff
has been dam[!ged in the sum of $ ________ _
VI
TOTAL DAMAGES SUSTAINED
. ________ in Ihe sum of
PI:lillliff's :llIlornohik damageu anu
S, ______ _ , Plaintiff's 100ai uamages are in exct'ss of the sum of
Pl:lilllilf a\ws IS entitled to reco\'cr from Defendall\s Ihe amounl
of ___________ Dollars. and requests this court to grant slleh
----
... I1lU demands a 10 tl)' the cause. and fUrl her
requests other rclief Ihis court deems proper.
SignalUrc of PlainlilT
J-\llomey for ____________ _
Atlorney's Address
116 . Americon [eg{J1 English

Unce the Jefendan[ is norif'Il'J orlhe allegations against him or her through deliv-
ery of a summons (/lolice that legal aClion h,15 been instituted and that ddentfJnt
mUSI appear in (OUr[ on ,1 cert;lin dale/ and;1 (Opy of the complaint, he or she has
severaloplions,
The dt:fendant call file ;111 answer in response to plaintiff's compl;jint denying
sOl11e or all of the alll.:gations set forth In the: complaint and setting forth affirma-
tive defenses /nl'w intendt'd to ,Ibsnlve defenJant o( liabililY (or thl' wrong-
doing/, The :lnSWcr m.IY also set forrh permissive or mmpulsory counterclaims,
The defend;:lnl cln !IIe;1 motion to dismiss or.1 demurrer, in [his in-
Slo.ln(C, a pre;lnswer response stating [h.1I t,'\'t:n if the ':1(ts in the complaint 'Ire
HUe. they are Iflsufficient to .... upport;\ CJuse of action-in olher words, that the
defendant is guihy of 110 legal \\'rongdoing, Ifrhe court i1grees and dismisses Ihe
compbint then the defendailt is not required to file an JrISW('r. Plaintiffis nor-
mally given additionoll time to file an illllended complaint JlJeging addilional facts
sufficient fo support a cause of action. Preanswer mo[ions to dismiss may also be
based on the court's 11ICk. of sub,iect matter or jurisdjction, improper
Vl'llIle, or iIlSUr(iL'iclit proL'CSS, .1I11ong others,
" fi.nal option is lO simply not n!spond to the complaint at all, If defcnd,lIlt
chooses [0 do this, [he court will award J default judgment to rhe plaintiff that
will grant plaintiff the relief in his or her complJint.
W1}ich of the ahove pleadings/options can rou find in the Bybee case? List them in
writing, /Nole: HCllll'mber to distinguish between thc original complllint and the
amended complaint in the (;lSI.', J
Discovery
The purpose of pretrial discovery is to eJlsure that all relcv.lIlt information is dis-
closed 10 all parties prior to the triJi. \-Vith full access 10 the relevant (acts prior to
triai, parties have time to prep;lre and the Iri<ll becomes less of <1 conrest of
wits and a fairer procedure, If during the discovery process (he parties discover th ..It
there are no contested issues of fact, the p.tth t{)r J motion for summary judgment
is opened, A motion for summary judgment is J mOllon by one of the parties,
when facts are uncontested, for the court to decide the isstle(.s) of law without tht'
necessity (or J full-blown [ria/' which is normally expensive and lime consuming,
There arc various devices u:ied by the parlies in the discovery process, The
Federal Rules of Civil Procedure provide for discovery devices, two of which are
discussed here.
I, depositions of parties and witnesses (oral Jnd written) ,lila
2, interrogatories
OvU Procedure ' 117
Depositions _
" _, "lri'lls and art' iht' most expensi\'e and perhaps mosl
DeposliJOns lundlon <1:-, mlOl , ,
'" j '- G- enlly attorners from both sldt"s are present,
-.f I ollhe dlsco\,erv c.. eVH.:es, I.:n , ,
me u 1'0 [questioning by your own Jllorney] and cross-
, d there Jre direct exammJ In, '
.111 , "b Ihe opposing attorney!. The \Vllness or party testl-
, -:lminatlon /questlOOIng y 'b
eX. " 'fi ',I d> oath and the testimony IS taken down ya
(es 111 Iron I of a court 01 !C1.1 un I.:r, , ' ,
I, " ,'l)I' for recording Icstlmonyofwltnesses!, Undl.:r
rt reporter r person L .' f
(Ou " ""1 P . 'dure depositions may be used dUfing the IfiJI or
he Feder.1i Rule:> ot UVI roLt:, . ' , _" ,
I , , I _ hundred miles from the tflilllocatJOn JS paper
'illleSSl.'S linn!.! more t 1.1Il olle ,., d _
\\ , -- _'- I 'Ih' ','r is lor witness convcnience, the depOSition IS accepte as
wllnesse!i, no er \\ l -,
testimoilv the acw;" tri.l!' I d
' , ,. '- '11'n questions arc subject to the same as ora ep-
DepOSitIOns upon Wfl t: Th
. . " what information may be sought and who may be deposed. e
exchange J series of written questions to. the JC- ,
(direct/cross-ex,1mination and rcdircct/recross-examma_tlon.: fCr/,-
tll.I1 dl.:y , . _ I, I Ih. -I1lOrney who conducted the dire(t eX,IIl1111.I110n
'-r r'lers to qlleslllHl.'o t1.1 e. .
nl e ' , ' f hosing allome\'; recross are the que:;-
I-ks '1f'ter the cross-examination 0 t e PP , , d
.::. ' , , II 'V ']ner the redirect). which are then answcre
- , -ked bv the opposmg J orne, ' ,
llOI1.'o as, ' . . _ I' orter The court rcporter then tranSCribes the
bv the witness bdon:-.l Lour rep, , '_ . ,
' h 'I" > signs the transcription ;lnd swears to Its
Jnswers, and t e part} \\ !lncss
Interrogatories
. , '" If wriuel1 (]uestions for which written responses an.'
Interrog'I1orles .lfe;l Sl,;flt.:S ( , d h
d". I i r o'lth InterrolT;ltories may only be Jlrecte to I e
h' F1ren-1rc..d -1J1 lUll e .' ;:, b
[Lil r' . - :- _ h '-1' depositions upon written question:> (an c
F
1Mties and Iwtlo w ere. , ' "d h
' . _ ,'I '-'es AlsothequestlOllsarenotlllllltt: tot e
directed 10 l.'Llher or \\1 ' , , , '., >.
. I k ,Id, 'IS in deposllions but may rt.:qUlre th,ll tht: p.lft:
rnrlv s per:-;oll.l IH)\\ t.: b
C
' - , II 'd' '
" , d'!' II - nswers Interrogatories are not norm;:l y usc
se-uch his or her rccOf !i or 1e <l, 'h
' " j' l" ,t "Oldy burdensome on Ihe becll1sc t ey
evidell(c 111 (ollrl .11ll L.1I1 l( eX r_ _ b f __
" b f uestioils that can be '1sked .1IlJ the Illim er 0 10
..Ire unlinlllt.'d III Ihe m1lll er 0 q '_'
, I I 11 b' on the p;lrtles,
tt'ffO!ptOriCS t 1<1 C.l C -"-
The Trial
- I'd' -- I either party or the court may request ;J pretri;:11
\ft' the complellOn 0 ISLo\erV, , I
J Lr " I h -I'll 'rt of the pretrial process serYes to dett'r01me t 1e
conference whlLh t loug !i I PJ " I - ' 'd'
" ' I Th 'I' and Ihe )'udtJe in an mtorma diSCUSSIOn, I cil-
d" tthtrn eparlcs. ;:,'
Ire(tlon 0 e, d'" 'd phil the course of lhe trial. Throughout the
tifv the nntters In Ispute ,m , I
" , I, b 'en "bargaining" to sec if an out-of-court sett e-
r tri-Ii pro(etiu rc parties 1.We c " . I
P e '., _ t' s outside the court] is more ;}pproprwte I l.l!l an
nent /J"reement betwecn p.u Ie , 'I h
I ;:, " _ ' l' h-IVen't been concluded s,\tlsractorl y, t e p;lr-
.IClual trial. But 11 the ilcgot];HIOI::' ,
fies prep.ue to go to tri'll.
118
-c----__ _
The Jury
Not every trial in the United S[JIt:'> i.., a jury If;;:11. [n mJny civillawcJses, espe.
ciJlly 111 the field of lOris, th"'re an! jurics, hfJ'..,:evcr. If so, the first fhing that must
be done is 10 impanellchoose] a jury. "I his is done by means of the voir dire
f VW;lr <.lirJ f questioning of prospcctiYI' juror'> by ,Htornl'ysJ prior to the actual trial
on the issues. During the qucsrioping. the ;1 I IOrncys attempt to discover if jurors
might be in any \VilY prejudict'd tht:ir clients, Jnd if so, the attorneys eXer-
cise what ;Ife Gllled challenges f fI:que."ts for jurors 10 be femovcd from the jury
pant'I].
Thl'fe .1ft.' two types of challcnges: peremptory challenges, for which no (Juse
must be sT;lIeJ, .Ind challenges for CfIUSl', for which an ,Worney must show a reJ-
son for the rCllloval of thc juror. For l'X;lIllPIc:, if the juror and one of the parties
to the action arc neighbors, an alwrnc)' /ll]Y exercise a clwllenge for cause. Of
course, [he judge mJ)' refuse to accept lhe dwllcnge. In generJ! peremptory chal-
lenges are limited in number <lnd ch.llknges ror cause are unlimited.
Juries ILldilionaliv consisted or t\,\!l'h'C Illembers who h.ld 10 re;1ch a unJIli-
mOllS decision. In ye;Hs, however, Ih.1I rule has been modified somewhJI,
and a few stales accept juries \vith as lew ;IS six members, whereas others no
longer require a unanimous vcrdiLt in ci\lillriab.
AUorneys clnd students from civil I;]\\' often have trouble understand-
ing the lise of a JUT)' in common law s),slcrns. While there are cert;lJnly disadvan-
tages, there are also advantllges III h.IVing .I.iury of six to twelve Citizens decide
}'our f;He r<lther than one judge.
I. Review thc schema activ<ltor (nll11 <-JI.II'[lr Three in which ),Oll acted as jun'
members in deciding who W;b Ilh)r.dly 1111'.'[ responsible for the death of
Do rou Ihink YOU were bella ,11'k [l) ,I,yj,k ,1$;1 group, or could thaI dcci$ioll
have been e,lsily made by ,I Ill,l,:!c?
2. List four <Idvantages of tht' "ySIl'1ll 1).I:'c,1 on your experience as a "juror."
3. Now list four disadv<lnfages Ill" [he ;on' based on your personal
experience a::; a "juror," not ylHlr f'rl\.""lhxived notions of the jury
system.
Once the jury hilS been impant'klL the [ri.1I ,-.m pegin. The following figure
outlines the progress of a trhl!' l \\'l' will .. (emale plaintiff in Ihis
example.)
Plaintiff's opening statement
lilllroduction or case by plaintiff's aHomey/
t
Defendant's opening statement
I inLroduclion or by dcfemlant\ ;J(\omey I
t
Plaintiff's ca.,e (plainuff ;Jlways preseIHs C<lse firsl)
Dir .... CI examination of Johann thc Jirst
Crms-c.ullIinalion of Strauss hy defense (optional)
Redirect by plaintiff (optional)
Recross by ddenuant (optional)
COlltinues until all have been examined

PI;ull[irf rcst." case
I Ie lis the courllha[ she has proven her cause of actionl.
t
Ddense mOVC$ for a directed \'erdiet (oplional). ElemL'nls reljllircd:
I. Jmlgment as a mailer of law
,
RL'yuest hy ucfL'n"c for judge [0 uecidc in favor of uefensc hecause
plaintiff evidence to provc h!.!r
.1. Juuge vjews in light mos[ favoraolL' to plaintiff
-.i
DcfensL' case
Samc order of presentation <.IS wilh plaintifr
Defense rests case

Plailllill lllay nH>VC for a directed \'enlkt (uptional L
Same process as with th!.! Jef!.!nse motion
--'-
Rebuttal (optional)
Ipl;lII11ilT's 0PPOflUlliIY to enter additIOnal evidenc!.! 10 refuLe GIS!.! I
-.l
Rejoinder (optional)
(Jde-nse's reSpllnSL' to the evidence presented in the rebullail
-I
120 . American I oqo{ English
Plainriirs closing argument
Isummary of Ihe case in light most favorable 10 plainlirn

Defense's closing argument
Isummary of Ihe case in lighl musl favorable 10 defense/
t
Charge 10 Ihe jury (in jury In:11)
rjuJge's inslruclion 10 Ihejury unla\\: 10 be ,Irrlieu 10 the r:tcl.'il
t
Verdlel
UUr)"s decbioll as 10 Ihe liability of Ihe parties I
..
Judgment
fjudgc's decision as to liability oflhe panics/

Posttrial morions may be Jilcu by eilhcr pilfLy,
for example. a mali on for a new trial.
+
Appe:ll process may bein.
Level IV: Language Focus
Reported Speech
'rVorking in the legal world involves a great deal of reporting what others have
said. For example, after every formal meeting, someone nlU.'it prepare the minutes
of the what happened Jnd who said whJt or was assigned to do
thing. At other times, lawyers will be asked to draft depositions, reports, or
mcnts, all of which require reported or indirect speech.
Changing from Direct to Reported Speech
Past Conversations
In the following chart, you can see the major changes in (arm that occur when di-
rect speech from past conversations is changed to indirect speech.
Type of Speech
Dircct (prcsent)
Reponed (from
pJst convers,lIion)
Type of Speech
Direct (p,lst)
RcporlL'd (from
past convers,lIion)
Type of Speech
Direct (imperativc--order)
Reportcd (from
past conversiltion)
Typc of Speech
Direct (neg,Hive Imperative)
lkporled (from
past cOIIVerS;\lilln)
Civil Procedure 121
Example
Simon said, "I'm in ",y
fourth year of law school."
Simon said he was in his
fuunh year of law school.
Example
O;;lVid said, "She showed me
how to use the Inlernet."
David said she had show"
him how to usc the
Internt.'t.
Example
Evan said to Peler, "Bring
me the file right now!"
Evan fold Peter to bring
him Ihe file immediately.
Example
Evan said to Peter, "Don't
I I"
put the evidence r lere.
Evan told Pett.'r not to put
the cvidence Oil lIw table.
Explan;](ion of
Required Change
Present tense from direct
speech. changes to past
teose. Pronouns change.
Explanation of
Required Change
PJst statt.'ment to past
perfec!. Pronouns change.
Explanation of
Required Change
Imperative goes to
infinitive. Verb changes to
tefl. Pronouns and time
word change.
Explanation of
Required Change
Imperativc changes to Jlot
+ infinilive. Verb changes
to tell. Specific location is
named instead of rllac.
h -h'nges that ilre possible. Basically, just remember to make There Jre many ot er <.: u
the speaker's original meaning clear.
In writing, change this short conversation to indirect speech.
k d <1M Sammy where were vou December I. Mr. Coke, the district attorney, as c, r., .
lJ. 1996?"
122 . American Legr '7gUsh

"1 Mr. Sammy replied, "I was Jt home with my wife."
3. lv"lr. Coke asked, "Did Jnyone other than your wife sec you there" [Him: Use
an i/or a whetherclause.J
4. Mr. Sammy whispt'red, "Well, no, I guess not."
5. The district <Ittorney said, "No further questions. Thank you."
Modals
Modals such JS will, mllSt, may, Jnd (/11/ must also undergo changes in form when
direct speech is turned into reported speech.
Explanation of
Type of Speech
Example
Required Change
Dirl'ci (flJIUh'J
LlJIdJ said, "lwl1 will bring
III' 'ht' fill' b'er 1mb)'."
Reponed (from
Linda said loan WOllftl
Will changes to lYould.
past conversation)
bring her the file later
Pronouns ch:mge. Main
that day.
verb doesn't change.
Other modal chJnges would be call to could and lIIay to lIIight.
""fust has two possibilities.
Explaniltion of
Type of Speech
Example
Required Change
(present)
The judge said, ":VI r.
Sammy /IIltst repay his
client."
Reported (from
Thl' jUdgl' said tlldl ;"'-Ir.
.\11/51 changes 10 had 10 or
past conversation)
Sammy had 'ollllllst repay
Slays "IIISt. Can usc that
his dient.
but not necessary. Main
verb doesn't change.
Normally, couid, should, ilnd would don't change.
Type of Speech
Example
Explanation of
Required Change
Direct (present)
Thl' lav.,ryer asked the
judge, "Could we have a
ten-minute recess?"
Reported (from
The lawyer asked the judge
Add if or whether.
pas, conversation)
ij'tI1t'Ycould have a ten-
Pronouns change. tvlain
minute recess.
....erb does nor change.
Civil Procedure 123
Exercise 16. Modals in Reported Speech
In wriling, change the following conversation to reported speech.
I. The client .lsked his bwyer. Ms. Anna Janovich. "Do you think I should plead

1. St.Htied, f'vls. Janovich asked, "rs there something I should know?"
3. "Pl'rh;lps I could be wrong ;jbout the amount I asked the aCCOuntant to put on
the liJfnl," 11...: replied.
.1. She thought to herself, "Can he really not remember? Or is he just trying to
bluff me, too?"
5. "Yes, it could have been closer to a million like Mr. Able says it WilS," he
mumbled.
Present Time and Universal Truths
Notice what happens if the reported speech takes place in present time.
Explanation of
Type of Speech Example Required Change
lJirect (prl'sent) professor says to me,
"Yilllr ci;lSS will be the best
eyer."
Rl'pnrteJ (in My professor says ollrcl;lss Only the pronouns
present conversation) will he Ihe best ever. change.
If tile qLlok cont;lins information lhilt is "always" true, we don't ch;lIlge the verb
tense. It do('s not matter when the conversation took place.
"Always True" Information in Past Time
Explanation of
Type of Speech Example Required Change
Direcl ("alw;tys true") Yesterday our civics
instructor told us, "The
Uniled States is nol a
democracy but a republic."
(in Yesterday our civics No change in verb or
P;lst conversilfion) instructor told us tJwt the pronouns. Can use elilll
United States is nol a but not
dl'lllocracy but J. republic.
124 . American Legal -''llish
'--------
Exercise 17. Reporting on a Conversation
f'\ One d,IY 011 subway you overhe.1r the following conversation between a man
I ' and <l wom.1i1. Since the cOJlwrs<ltion deab with L1 case your office is working on,
you think you should give your supervisor a \\'rittcn report on h'hat you heard. Of
course, you'll need to ust' reported speech.
I. You'll heM convcrs.llioll {wio.'. The first timL' just listen.
.., listen the second time, n'coru the conversation as ;]ccur<ltely as pos'-
Sibil' 111 reported speech.
3. Usc the following chart (0 help you t<lke notes on the conversation.
Drafting Date Settlement ! Injunction
Chemcorp anorncy
I
Colleagul' ()11 SUbW.1Y
I
Exerdse,18. Changing Reported Speech to Direct Speech .
Let's reverse the process now. [n pairs. usc this slightly edited section of reported
speech from a U.S. Supreme Court case IlYlllryitllld I'. Wi/mil. 519 U.S. 408, 117 S.
Ct. 882, 137 L.Ed.2d 41 (1997) J to crc.tc Jialoguc for i1 role play. The transcript
from the tri.:t! court \Vas reviewl'd by rhe Supreme Court in making its decision.
but the J(tu.d qUl'stioning of the poli(c olTi(er W.1S conducted at trial court level.
The attorney was conducting a direct examination of the policeman who made
the original arrest in this case. As you write your questions keep the following
rules fOf direct examination in mind.
I. Le<lding questions arc not 'll1owed. (You cannOl provide the answer lo the wil-
ness through the phrasing of the question.)
2. Narrative questions are not allowed. (You cannot have lhe witness give the in-
formation in story form. You probably don't want him or her to do that ei-
ther.)
3. You cannot ask repetitive questions.
4. Nonexpert witnesses are not gellcrtlily allowed to offer opinions. There are ex-
ceptions to this rule that will be discussed ill Ch,lpter Nine. A police officer can
testify regarding estimated speed of J vehicle and a suspect's behavior.
We've done the (irst sentence for YOLI .1S an example.
Iv/arY/llllel Wi/s.!11
Reported speech: At about 7:30 p.m. on a" June evening, MJryland state
tmoper David Hughes observed .1 passenger car driving sOlllhbound on [-95
in Baltimore Counry .. l"J speed of 64 miles per hour.
Dialogue:
LlllI'yt:r: "Officer Hughl's. tell us ,,\o'hat yOll saw at around 7:30 p.m. on
the evening of June 14. 1996."
Hughes: "wdl, I saw.1 passenger car driving about 64 miks an hour."
I. The po sled speed limit was 55 miles per hOUf, and the c.lr hat! no rcguloir
license tag.
1. Hughes activated his lights <lnd sirens before signaling the car to pull over, but
ir continued driving for another mite ;lnd a half before it finally did so.
3. During the pursuit, Hughes noticed that there were three occupants in car.
4. As Hughes approached the c,lr on foot, the driver alighted [got outl .lIld met
him h.llfw;IY. The drivCf W;15 trembling and appeared exlrl'llIc!y llervoUS but
nonetheless produced a valid Connecticut driver's license.
5. Hughl's instructed him lO return to the car and the driver complied.
6. During this encounter. Hughes noticed that the front seat passenger. respon-
dent Jerry Lee Wilson. was sweating and also appeared extremely nervoUS.
7. While the driver WJS sitting in the driver's scat looking for the pJpefS, Hughes
ordered Wilson oul of the car.
S. When Wilson l'xitcd the Glr, a quantity of crack cocaine fell to the ground.
Wilson wJS then ,lfrested <lnd charged wirh possession of cocaine with in lent
10 di5rribuk.
Exercise 19. Role Play
I. Give your written dialogue to anolher pair (or revjl'w.
2. Perform the role play with one partner as the police officer and the othl'r as the
attorney. Remember that rhe attorney conducting the direct examination is
questio;ling "his" or" her" witness. Normally that me,lIlS that Ihe witm:ss is not
hostile and is willing to respond to all questions asked without hesitation.
Level V: Additional Exercise
Progression of a Lawsuit. Fill in the Chart.
1. Marg,lret Smith. an opera singer. was hired to sing for the Melropolir;'ln OperJ
Company by 1\.lason Jenkins. the managing director of Metropolitan. Jenkins
was fired by Metropolitan. which then refused to honor the (ontr;l(t between
Smith Jnd Jenkins. Smith wants to sue for bre.lCh of contract.
126 . American Leg
------
2. as for Smith, dun rhe progress of court c<..Ist:.
\Vt.: h,lVt.: Idled rn pnrflons ot Ihe dlJrt for YOU II' . I' ., . . no mon: In urm;\(jon IS
needed, draw an X in box. .
I Date Activity Expectcu Result
i
Panics
I
,\-lay'95 Snllth "in;ured" i
I
hre;\("h o{(()Iur,\("r
I
I .\krmjlll/it.J1l 0pt'ra
j (OP("[;l)
i_ rune
!}5
I Slllilh hirl.s Pe;lrson lillllg tlf!;tWSllit
I
Smith/her
.IS her I
I
luly'95 I.'vcnt{1,ll (\;ullJges
I
Pearson/court
luly'95 ;lnJ
lenkin.s's attorn..-y
('\Iorris)
:\ug '95 I judgml'nt I
I
S'P' '95 I COUri J,n;" 1110';0>1
,
lor SUmOl,l[\'
I
I judgment .'
I
Nov'95
I
Di.scovery proccs.s
begins
All parties
Dl'e '95 I Pearson 10 depose Obrain infnrll1;ltion
fl.'nkins ;tboul 1/11.' ;llkgeu C01][r;]([ reporter
Jan '%
I
Obl,tin illformatitllt !rom
i
the plaulliff, Smiill
I
Feb '96
i
I
F,b '% 1
I
,\/;u '961 Trr.tl set fi.lr
/\LIgusf '96
Aug '96
I
Trial bt.'gillS Someotle will "win." :\11 pMlies and iudgd
Jury
Aug '96
I
Verdi(t rcnderc.J
I
,-lug '96 Judgment enlered
I
Sept '96 Postlrial motions Appell I "Losing" party
filed
I
I
." .
I
Chapter Five
Torts
Tort l;lW is the body of I-.lw Ih<..lt deals with civil wrongs, except those that Jrise
from problems. The purpose of torts is to compensate an injured party
through lhe award of damages for the injuries incurred during a tortious la viola-
tion of tortl aCt. Policy considerations, such as maintenance of a peaceful society,
social responsibility, and the balancing of economic interests against
benefils. play \'ilal roks in lort law because it attempts 10 find J
betwct.'n the h,lrm causl.'d to individuals ,mci the benefit 10 society, Of course,
sociel31 wrongs are also dealt with in criminall ... w. The diifen:nce is that a tort
is a wrong ,lgainst an individual, whereas a crime is a wrong against as a
whole. However, some acts or omissions may be both criminal offenses clI1d tor-
tious ones. A simplified equation to explain the elements of a tort action is
,let/omission + personal/property interest + intent/negligence/inadvertence!
mistake.::: tort
Obviously, it would be impossible for any body of law to adJrcss injury,
so lhe questions then become, under what conditions should liability be imposed?
whal factors affect liability? and what types of damages/remedies presumed
suHicient under the law to redress these wrongs?
Activity
1. Review the fact situations below <Ind decide whJt "crimes" or [OrlS, if you h'1Ve
Ihem, might have been committed under the laws of your country,
.., Are there any situations in which both Jnd ton law might apply?
Flier Sitlu1CivIIs
a. A research scientist developed an injectible vaccine for AIDS. Unfortunately,
one in ;] million doses causes instant death. In the United StJtes that would
Illean that 260 people would be killed by this vaccine. The children of a woman
kilkd ins[,mtiy wonda wh"Jt actions they might take.
128 . Amedcan Leqal Eflglish
b. EXfL'ndcd wear COnlact /L'nses are very comfortable .lnd can be worn during
sleep. However, wearers of thL'se lenses are repeatedly told by their optometrists
lhal Ihe:-;L' iL'nses increase IhL'ir risks o( developing serious medical conditions
o( thL' L'ye. Adnan loses the sight of one eye as J direct result of wearing ex-
tended wear lenses.
(. J'vlary is shopping fOf a nev ..' coat at A-Iarkham's DepartmL'nt Store when she is
approached by a security gUilfd who that she accompany him to the
1ll.lIwger's offlcc. 1vI.IT), repealL'dly asks to leave, but the manager .md secllfity
guard refuse her request and question hl'r (or over all hour ahout merch;lndisc
they '1I1e);(' she has stolen. FinaJly, J second securit), gu.lrd approaches with .1
wom,lIl who looks slightly like lvlary ,1nd v:ho is indeed [he culprit. The man-
ager apologizes and lets Mary go.
level II: legal Discussion
Essential Terms
tortfeasor: person who guilty oftonious conduct
trespass: an unlawful interfering with the property or properly rights of another
intentional inniction of emotional distress: causation or severe mental suffering
or physical injury through highly aggravated acts or words. The acts or words
must be done with I) intent to cause an injury or 2) a re<lsonable certainty thJt
those acts or words will result in the injury
false imprisonment: interference with the freedom o( or restraining rhe move-
ments of an individual. There must be the intent to detain, ilnd the detention
must be without privilege or consent.
defamation: interference with one's interest in his or her good reputJtion and
name; defamation two tOrts, slander (spoken) and libel (written)
wrongful death action: suit brought by the beneficiaries of a decedent against J
person who allegedly caused the decedent's de<1th through negligence
battery: the unlawful intl'rfcrellcl' with another's person
negligence: /;Iilure to use such CMe as a reasonably prudent and careful person
would use under similM circumstances; applies to either In act or In omission
I. After bmiliarizing yourself with the terms listed above, return to the ;](tivity in
Levell and sec if you can find situ.Hions that meet any of the definitions you
have been given.
2. Next, look at the following story and indicate the appropriate tort in the blank
spaces provided.
Torts " 129
enm a an J "'" d G",org'"o were classmates ill Cleghorn Community College
" P "" h ntas Arbnsas. Though Giorgio, a male student from Greece,
III OLa 0 , . h" I
thought he and Jennifer, a female student from MIC Igan, were on y
"" d b k st to h",m she had become obsessed and deter- fnen 5, un e nown, ".
" d hOm at all costs She began to siJp Into hIS yard every mme to marry I . .
night and watch him sleeping through an open wJndow. She
d" b d th""lg in the yard' she merelv watched hIm. hurt or Islur e any "
" I J nn",r"r did not know that Giorgiu and his fiancee, Unlortunatc y, C II. .
i\tarv, whom he met while an exchange student 111 NO.rlh D.lkota, had
I "d J"cided to marry but had not ;lI1nounced theIr
a rea v ... U" " fT t
"'I " " mpl<>ling her studies al the nlverSIty a texas a Because tV ary was co '- .
" J"' r sow 'Iary-that is until Chnstmas break, when Austill, enllller neve .. IV ,
h "d" ht v"'gil revealed that Giorgio was not sleepIng alone anymore.
er ml mg . I"" h
'r ., d-hcr dreams dashed. Then she dccH.Iel II oS l' ]ennlter was st.lggcre , , . .
(Quid make Mary sec reason, all was not lost. She ;'vlary III lht:
" , th> I c ... 1 movie theater locked her In II to lid stall,;md
ladles room at l.: a " , . ., . .
would not let her out, all the while making a plea ror s
After twenty minules or so, Mary agreed to lip and Jenmfer
I d h 'I Y hod lied as Jennifer's moonhght VIgil soon revealed. re ease ef. 1V ar.. ,
Jennifer became incensed and waylaid Giorgio a.nd lvIary at church
d Sh "h rled terrible insolts at Mary, calling her all the most the next avo t; u . . .
" "I "II' on the minister to impose rehgl()us s.lI1ctlons Vile names;tlll la IIlg . ._
on Mary. i\[ary was so distressed thilt she palllL
k d I d h",v,s and lost her beaotlf,,1 blonde hillf" attac 's, eve ope "
" C J "tl tl "It J 'nnifer typed lip a scathing indictment of Nnt satlSlIe Will. , t:, ..
"" d t k a copy on every car i1t the ""ai- M uy complete wnh pICture, an s uc .
, b Ik p to Marv and yell at her for her Mart Superstore. People egan to wa u. .
wicked ways. . . .
Finall;, Jennifer began following Mary and bumpmg, shovlIlg, tnp-
" "h s,"ble though it always appe.1red to be an ilcCident ping her w enever pas ,
on Jennifer's p ..lrL h I
k ore' she seeks legal advice from you, t e new lot Mary can ttl e no m ,
lawyer in town.
I d" the answers Did vou all reach the same conclusion? If 3. Finally, as a c ass, ISCUSS .? .
there were differences, what caused them.
;3(;
-;------
level III: legal Thumtmill
From Ihl: ddillitions you h;1\:(' ill:ell given ,","" f" " 1 "
1 - I ' I:) aIr vobvlous rh I'
)c a tort, luI wh;Jt ',bout th . r ., .' ., ,In overt ;lCt can
. 'c ,11 ure 10 act? 51,Ilules ill 7' I .J b
{Ive [what you must not dol ruh' II. d" gcncr;1 lenu to e prahibi_
1
cr l.m Irectlve / wh,H vo d J"
Jut tort bw, possibly bccaus' f"", ". ' u must 0 I!l Ilature,
e 0 I S onglll In COflIm I .. b
law tbln on slatule. 1()rt law h' ' .J. 'I d on L1W, IS i1sed more on case
, .IS ucVc ope Ovcr th' c I '. 1
orgamzation; const.'qut.'llllv it' 'I .1 f" 1 I' l: ell lIfles anl lacks statutory
. .' IS It.: p U to t IS(US:-; lor I . b' ' ,
terms 0/ rhe degree or tault ' h'.' '.'. S Y LiHegorlZlng them in
'-' In I.:fcnt III thl' tort/nus (Ollducilliability.
I. Inlemionalrorts require fauli in Iht' form of inl' '
aClor kne\\1 Ihat Ihere \V'IS:'1 . I .," "I . t.:lll; II mUsI he showl1 that the
") N r . . SU)s .lJllla C('rtamlv of b'lfIll
torts require that the act (re.lte an ' '. . '"
3. Slf/ct lIability, . , rt.:Json,lble fisk of harm
rt.:qUires no s:howlng of intenl/ne r". .
The doctrine was de\/elop d I _ ' , g or laull by the ;lctOr.
. e 0 LOWr SltuallOns in wh'-h
]11 ultr;lhilzardous situJtions s "h ' " . IL a party was engaged
"UL ;Is Wie at eXI)lo' , I I" "
anirn.ds. . t" SIVe.'i or t ea Ing with wild
Intentional Torts
Proof of ,In Inlentlonal lort reqUires showi
It'mionally ObvlOu I 'h d"re n
l
g tl1,U.l pro tee led fight has been In-
f
s y, C I JICU t)' here Ii.
o mind, Since for obvious rea:';on- til ' . es In provmg another's state
hIS or her Own Intent,lfc ot the dele-nd'lIll regardlllg
h
. ..... ere are Intent' .
I rough circumstantial'd h ,IS most otfen proved
... eVI cnce:' L' defend IIlt\ co J _
hl'r surroundings ,1Ild wh HI, 1 ' 11 uL(, III Ihe Wnle-xt of IllS or
. It.: or S 1e presuJl],lblv knew d
makes preslllllpllOns reg.lrd/ntl In' d -f _ I .' .lIl percelvct.i. The I,l\v
, '-' 0 e c t.:nt ,lilt S lIltl'nt 1Il I ,I f h
flons, a:isummg th.lt the d 'f d ' Ig HOt e:.;c COllSlder.l_
f
. ... t.: en ,lilt Intends the n llur;ll d b
o hIS or her acts . . .In pro ,Ible consequences
, I.ntentio
nal
torts include actions that the j"v .' - .
cflmlnJI bw but are aCIU'lll ,. 1 ' person olten aSSOClatcs with
. so covcn:d bv lort I' 'T" ,
tlonaltorts .Ire ' .1\\, \\0 major trpes oj ill len-
1. personal torts such as assault batIer 'Ind fa . .
finementJ.lIlJ ,y" Isc Impflsonment funbwful con-
2, property torts such as trespass to land / 1I1lhwful ent .
and trespass to chattels linterfer' _, . h ryan property at anotherJ
othe-r/. ellLe Wll or damage to the belongings of il/l-
Tom " 131
Since it is beyond the scope of this text lO deal thoroughly with all of these torts,
one example from each category, beginning with the personal tort or f.llse impris-
onmenl. will be examined.
False Imprisonment
The tort of raise imprisonment involves Glses in which the has allegedly
been unlawfully cnnfint.'u by the defendLlnt. For faLse imprisonment to be proven,
these dt.'ml'nLS must be present:
1. intent LO confine;1 person within a certain Mea;
2. adual conlinl'men t;
3. awareness of plaintiff of the confinCrnt'nl or injury to plaintiff due to
ment; ;lnd
.:1. prevention of exit or no 5,lfe exit possible by plaintiff.
Of course lhe clelllenlS;\S in all legal descriptions mllst be clarified, What. for ex-
ample. is a legal exit or what constitutes confinement?
Consider the case of Big TOIYII Nursing HOI1lL', [IIC v. Nt'IVI1III1I, 461 S. W.2d 195
(Tex. Civ, App. 1970), The plaintiff, Newman, was confined in a nursing home
without a commitment order leaurt order requiring placement in an institution I
after his nephew took him to the nursing home and paid for a one-month stay.
Newman had health problems, including Parkinson's disease and alcoholism.
Shortly <.Ifter his piaccl1ll'l1t in the home, Newmilll tried to leave; however, he was
SlOpped by employees of nursing home, who placed him in the section of lhe
nursing hOllle reserveJ for sl'nilc patients. Apprehended several times during sev-
er;;l1 esci1pe i1ttcmpts, Newman was taped to.l chair to prevent his fUrLher escape
attempts. Approximately seven weeks after being placed in the home, Newm.lfl
successfully escaped. He thell sued the nursing home for false imprisonment and
won actual (compensatory) [the losses that arc readily provi1blt:and actually sus-
tained] and exemplary (punitive) 1 d'lmages designed to punish the wrongdot.'rJ
d;]m;]ges. Although the nursing 'Ippealed the case, the triJI court's decision
W.IS upheld on appeal; the appellate court held that a nursing home cannot force a
patient to stay when there is no legal justification.
If the pbimiff agrees to the detention, obviously there is no false imprison-
ment. \Vh.ll h.lppens, however, if the piaintiffhas no knowledge of the confine-
ment at a1l? The majority of the jurisdictions hold that the plaintiff must have
been aware of the confinement in order far there to h;]ve been a false imprison-
ment. In Newman's case, he was obviously aware of the confinement despite his
illness, so that argument (lack of awareness) could not be raised by the nursing
home.
________________ __ 'i_Sh________________ _
Exerdse 1. Case Hypotheticais and Discussion
f 11 groups of three. look ;J I folJmving (act situations, determine whether there
has been false imprisonment or not, and give reasons ror your decisions. Be pre-
pared to defend your answers in class.
Fact Silllc1(;OIlS
a. Sue W;IS hired as il waitn's ... at Greenhornl' Rcsl'lurant. Two weeks bter, il fcllow
employee fe,ported (0 the illanager fhat he 11,1(J seen Sue stl"lling money from
the ("Jsh fcglster. The next day. the mallilgcf, saying th;lt he needed to t;lk to
her about s',lfety procedures for dosing the restaurant, took her to his office.
J police officer w;'!s waiting for her. She WJS questioned and I.1grced to a
he detector test. She passed the test. Could she sue for false imprisonment in
the manager's
b. The captain of a fishing trawler a!;H.l'd to Ict olle of his (few leJve the tr.lwler at
the next port of call. However, once Ihey reached port, Ihl' (;lpt;1in refused to
allow Ihe crew member to use the dinghy to get ashore. Since it was the only
way ashore, the crew member had to remain with the trawler for two more'
until the fishing season ended and the home port WJS reached.
Co In a police officer questioned the owner of a dog Ih;1( was not on a
,m .viOlatlon the leash law. During the questioning, he demanded her
s license, which shc refused to provide, giving him her name and address
IIlstead. He thereupon arrested hlT for failure to produce her license and took
h.er to. the police station. At the station. only ch;lrge filed against her was a
vlolill!on of the leash law. She sued for false imprisonment.
d. who was dearl.y under the influence of alcohol or drugs, was found wan-
d enng around the city streets 2 A:o\l. one morning by J security guard. He
rove her to a beach area outSide ot town and left her there in an Jbandoned
:lllt: Jane went to skep. When she awoke thc llext morning, she had no
ectlOn of what had happened the night before. However, arter told the
story by <lcqu<lintance who knew both the security guard ,1I1d Ja;(', she sued
thesecufity guard for false imprisonment. During the trial it was undear
whether Jane had gone willingly to the beach hut or had requested that the
guard let her out elsewhere.
Trespass
the familiar of the properly torts, prohibits the unJuthorized entry
O.t;l person or th.mg onto .the property of another. The right to exclusive posses-
SIOIl of the land IS the baSIS for this tort, a right that had its origin in feudal times
and was most fiercelv defend'd f 1 '"k" h " " "
, e . un I e III at er countnes where citizens Ill.ly haw
Torts " 133
the right to temporary access to ali undeveloped lands (sucn as allemansriitt in
Sweden), U.S. 1.1\" allows landowners to close off land completely to others.
A prima facie [basics that must be proven] case of trespass must include an
act, coupled with the intent LO cause entry by the defendant, and an invasion of
the plaintiff's land. In other words, the person must have intended to enter an-
other's land.
Damtlges are not required to be proven for intentional trespass. Only when
the entry onto allOlher's land is negligent (.lIld then faUs under negligent torts) is
there any requirement for showing actual damages.
The intent to cause entry docs not mean that the defendant must have knowl-
edge that the land he or she enters belongs to another but only that he or she in
tends Ihe act that would effect an entry. In most U.S. jurisdictions it does not
matter whether a ddendant's presence on another's land is a mistake, caused by
ignorance orthe ownership or the boundaries, or even that the trespass may have
benefited the land. In all cases, it has been held to be trespass. For example, if Jan
builds a Sill all lake tn atlr;1ct migrating ducks and the pond extends over onto Al-
fred's property, Ian has trespassed even though Alfred has a benefit because he can
use the lake water to irrigate one of his fields. It's of no matter that Jan thought he
was building the lake only on his own property; Jan has committed trespass.
Property interests are such that failure to remove something from the land
can be considered a trespass. If, for example, you had been given permission to
leave your car parked on your neighbor's property for six montns and you didn't
remove it at the end of six months, that could be considered a trespass. Trespass
can even be rem<1ining on another's land after a privilege (either the owner's con-
sent or a legal privilege irrespective of consent) expires; for example, because
generJlly the privilege to be on the campus in a classroom building expires when
the university doses for the night, it might be possible in some states to charge a
student who is studying in an otherwise empty classroom building wilh trespass.
CJusing another to enter phlintiff's land may also be held it trespass. It is also in-
Icft."sting 10 note th;!t rights inherent in the possession ofland extend above
and below the
I. Listen to the following discussions on the tape. The first time,just listen to the
conversation. The second time, decide if a tort has been commilted or not.
2. In pairs, review your answers and list the reasons for your decisions.
Negligence
The cenlr::d factor in negligence is determining what the standard of care imposed
upon the public should be: as a general rule, all persons are undera duty to con-
duct themsdves in such a manner as not to create unreasonable risks of physical
134 Amen'can Legal Enplis,h
1------_
h;mn 10 others. During a trial, the conduct of the defendant is rt:viewed to deter-
minI.;' if ht: or has mel the reJsonable person standard: th.lt is, \ .....ould a re;l:-;on-
able person have acted :-;imilarly under similar cin,:ulllstJIlCes? For the cOllrt [0
impose for negligellcl.", the following dements, which we will discliss
separ:lIdy, Olust be proven:
I. Ihat thl." delendant h.ld a nfclre;
1 [hat there was a breach o(that duty negligel\t cOllduct la(l or
3. IIiallhL' 'let or nmission causL'u injury (proximate C;lUSL'); and
..I. that Ihe aLI or omission 11tH subjL'ct 10 the defenses of ,lssumplioll of Ihe risk
or negligence.
Although [he dements are isolated for discussion, Iht."}' arc interrelaled Lo the ex-
tellt that it is almost misleading to speak of them sep.lfately.
Standard of Care
Tht: of carl' 111;11 Illust hI,;' t:xercisl'd is Ih;1I which a reasonablc pt:rsoll
wOlild use under similar circull1sl<lncL's. II is impOflant to nOIt: Iha[ this standard
is an e.xtanal, objective Oile, in which all pt'ople arc uL't'J11ed to USi.' ccrlain mini-
mal levels of C.lrt..' in all of their activities. Bt'ing;l fool is not;In exclIst: from that
standard of care.
Proximate Cause
ProximiHt' calise, which you werL' introduccd to in Chapter Two, is one o( Ihe
1ll0",t dilficult and dusive of the collcepts i1ssoci;l tcd with lort law. Proximate
cause is re/;]IL'J [0 the concept of dUly. Jf the dd"end;lllt is found to have h;ld ;l
duty to prott:ct the pIJintilTfrom the consequences of the harmful act, and
breached that duty, then there is proximate Cluse. Dcterminations of proximate
C.luse by courts ilre true exercises in the use of precedent and legal rl"lsoning;
case law, public policy arguments, and common Si.nse .111 pIa)' a part in tht: court's
Jt:cision.
However, a person does not have Ihe SJme Juty of care to all [3;lSi-
calJy, a person only hJS a duty of CJre to someone with whorn that person logi-
cally would be likely 10 inreract. In otha words, we arc oblig.lted only to those
people or that property that (orest'eably Ollr actions or inactions would helve an
effect on. This issue of foreseeability is enormously complex since the courts have
held that the du[yof care is owed only to J. pJ.lintiffwho is reasonably /oreseeablc.
The question then bccomes, who is foreseeable? A landmark cast..' on loresee<tbility
is Plllsgmf I'. LVlIg IS/lil/d R.R .. 2-t8 N.. 339, 162 N.E. 99 (1928). The facts of the
case were set ()rth by Chief Jllstice Cardozo, il distinguished American jurist, in
his opinion.
'.!- .
Torts " 135

Plaintiff was standing on a platform of defendant's railroad after buying a
ticket to go to Rockaway Beach. A train stopped at the station, bound for an-
h 1 T n ran forward to catch it. One of the men reached the plat- at er pace. wo me .
form of the car without mishap. though the train was already movlIlg. The
." pac'"age J"umped aboard the car but seemed unsteady as other man. carrymg a 1\
if about to fall. A guard on the car. who had held the door open. reached for-
h 1 h" " nd another guard on the platform pushed him from be- ward to e p 1m In. a .
hind. In this act. the package was dislodged. and feU upon the ralls. It was a
package of small size, about fifteen inches long. and by a news-
paper. In fact it contained fireworks. but there was nothmg In Its appearance
" t" F't contents The fireworks when they fell exploded. The to gIve no lCe 0 1 S .
shock of the explosion threw down some scales at the oth.er the
F F t ay The scales struck the plaintiff. caus1ng InJunes for whlCh orm many ee aw .
she [Palsgraf] sues.

1. Review the Pa/sgmfdecision and underline the sections which
h Ih nol Ihe Court will find that thl! pl<llntltf, Palsgraf, was or wa:) cate weer or
not a forcst."eable plaintiff. . .
'f "r' 'xpl",",ninfT the case to another 'lttornl'V to dmt"y a 1 On your own, .1S I you \\1.: I.: c.. ..
" '1 ". 1- . 'nt 'nce summ"lfy of the folels. Not all thl' t.lCts are
po lilt ot aw, wflfc.l our-51:: I.: ..' '. . ,. ,
essential for the exvlanalion of who is J toreseeable plallltllf. 't'ou must dt:uJt.:
which facts can be omitted.
C<trdozo resolved the iSSUI! of foreseeability as follows.

The conduct of the defendant's guard. if a wrong in its relation to the holder of
h '" not a wrong in its relation to the plaintiff, standing far away.
t e pacl\age. was .. '.
Relatively to her it was not negligence at all. NothIng 111 sltuatlOn gave
notice that the falling package had in it the potency of pent to thus
d N I" nee ,"s not actionable unless it involves the invaSIon of remove. eg 1ge
a legally protected interest, the violation of a right.

. . . - I I . 11",I"r was not foreseeable, the railroJd owed her no in Simple SlnLe t 11.' P .m
dutv Jnd therefore did not Jct negligently. '.
" 1 "". obl'OlS in determining proxlm.He ,ause IS the Another area t 1.11 Lames pr c:: . . _
. '. ...., Tile -ourts have to determme It .mother ;Id, either
Issue ot lIltervenlllg L.lU",(.:S. L . _.
1 t- -, . ",es between the tortIOus ;lCt Lommltteu by tht' by a person or a l1;ltur.\ orLC, LO
1] ci . American Legal English
JefentiJnl dnJ the plaintiff. Furl..'seeability is also:Jn issue in m;lking this determi-
nation.If the Jefenlbnt should h,lYC foreseen fhe intervening act, then lack of
not a defense. For exampk Tracy lights;] campfire in windy
weather in Ihl..' Sierra Nevati;\ mountains, a four-month dry spdl. She leaves
thl' fire burning ;md gOI'S off to lakl' a short hike. The wind spreads the fire, and
Martina's house is destroyed by the resulting forest/ire. Tracy will not be allowed
to rely on intervening forces (thl' strong wind and dry conditions) as a
because it was (oresee;lble th;ll strong willds in dry woods could C1l1Se ,I forest fire.
She was negligent in leaving the tire burning when she Il'ft thl..' c1mpsitl'.
CExerdse ,4. Summarizing and Pail Work : >I. ,
I. In pairs, review the material on proximate cause and foreseeability.
2. Synrhcsize the material ilnd write a definition of foreseeability with a
mum of75 words.
Defenses to Negligent Conduct
There are two distinct ddenses to nl'gligl'llcl'--("ontributory or comparati\'e
negligence and assumption of the risk. Contributory negligcncc has irs origin in
common law and, simply speaking, bars iI plaintiff from recovery [winning the
C:l.se and receiving an JwardJ if his or her own acts or omissions contribute to
the injury. The nature of this ddense led many to question
whether such a defense was ;lctually As a result of such discussion, contribu-
tory negligence W;lS ddeted as defense from tile vast l11ajority ;mu re-
placed with comp;lrative Ilegligence.
The more equitabh.' doctrine of comparative negligence docs not automati-
cally preclude the plaintiff's recovery if the pl,lintifT is guilty of Some degree of
negligence. Under comparative negligence, we compare the pacentage of the
negligence of the plaintiff and the defendant and reuuce the plainti{(,s damages
by the percentage of ':tult. Many ;lutomobik ;lcciul'llts havl' comparative
elemcnts attributable to thl' plaillliff. For cxampk, I{andy is tailgating Rachel [rol-
lOWing Rachel 100 closelyJ along B<lmboo Grovc Drive, traveling.1I -15 mph in-
stead of the posted 35 mph. Rachel. the driver of the first c.1r, slams 011 her brakl's
to miss ,1 cat running across the road and is reM-ended by R;md}" who then sues
her. Her defense to his suit could be based on compar,Hive negligence; he was fol-
lowing too closely and was also speeding; therefore, he W;].'j also negligent ;:\nd
must share the blame and the damages.
There Me two types of t.:oIl1par,lIive negligence: pure and pilrti.11. Pure Com-
parative negligence simply IllC,lns that if pbintiff is 90 percent at (Jult, he or she
can still recover 10 percent. Another name for pMti;li comparative negligence is
Torts " J37
i-
I h" "11 m",ns that if the pbintiff is more than 50 percent at
h' 50 percent ru e, W IL ... ... h f
t .. c\ he or she (;1I1not recover. Let's two dilfercnt SituatIOns. In t e Irst
t.. J" "Il.'h I r $ 100 000, and the court fimJs Randy 65 pacent;\t
situatIOn Ran '! \..lL eo,. . _, > t f;lUit.
fault [or the accidenl. In the second situatIOn, Randy IS .found 4:> ilarti;:d
The following ch;Jrt shows what his recovery would be III both pure an p
compar;:nive negligence states.
r
I
Amount Recoverable
I Percent Fault Pure Partial Party ,
ILlIlJy
I
fl'i'tn $35,000 Nothing
Itmdy
1
L'''" S55,000 S55,OOO
" f th" rl"s"k the second defense to negligence, releases the defen-
Assumption 0 C , . .., ..', h'.
d f Ih h'ntiff's slfety. The plalfltltf sown act 10m trigger t IS
danl from a uty ur e p ,I, _', _ .', J
d of, . whi(h is the plaintiff's knowing ilnd voluntary .....oment to t:n ..... '.
t: t:BSc, b , ... 1"( Thus the diffaence between these two deienst:s
known danger,"1 su Jt:Lll.VC t:s .. '. ' du.:t that reeludes the
that in comparative negligence It IS unreasonable . PI" "
. . . f tl e fisk there IS a vo untarv Lon plaintiff from recovery, while III <1ssumptlon 0 1, ,
sent to the risk by the pl.lintiff.
Exerdse:5. Analysis- "
L '51V Consider the following C.1se, Yilllllg tel/II vert, _. <1. _. , _ . _ , __
I "J" g together in a vehicle driven by one of thc:m,
Four voung peop e n 111 . I
" "J 1 ther Rutherford, were killed when lhl' vehlC e
Lambert, and ownt: )yano , . . h "
. . ,,,'1' lminislralOrs of Rutherford s estate hroug I ,I
crashed mto .1 tn.'L 1t: <It 'J ""
" h' 1-' t Lambert's estate. Blood tests u)lHludt: .1111.:r
wrongful dc.ll .1((1011 agams b h d II i
h . --d' 11IldsubmittedduringthetriaiprovedLillll crt a a )OOt-
l e .1LLl cn , . J" d h "t "hould hJve
- - t (BAC) of .12. Experl testimony III lcate t ..H I oS
an observer that Lambert was intoxicated" Witnesses who saw
during the evening in question stated, ho\".t'v:r, Lambert not
d k ""t b"fore he began driving: Rutherford s vehiCle. Ruthertord
"ppe,lr rlln ... . . h """d t
" \"00 til 2:40 a.I11., the time ot I e au.::1 en . was with Lamberl trom I. p.m. un
vVho do think should win this lawsuit? ..
I. " d h f this deCISion"
1. \Vhilt reason or reasons 0 you ave or .'..,.
I h f ts to make an argument tor use 01 the assumption 01 3. Do you lave enoug .1L
the risk Jdensl'?
-I:. If not, what ;Iddiriollal fads would you need?
1.:3 . Americon LilJGl English
----_ ... _-----.
Strict liability
Sif/Uliabilily is li;]bililywilhout tallit-it is based on the policy ofl;l\V tim under
cenain circumslance" a plainliff mOlY be ,IIIowed recovery even though tllere is
no fault on Ihe POI" of the de/endant. It ,hould be noted here that" finding of no
/c'gal "lUIt is nol the "lI1e;15 " finding of no Illoral blall1e. You can be leg,IIIy inno.
cent bUI morally guilty. leg,,1 bult stem, Ii-om a deviation from a st.lnd"rd of
conduci needed to protect ,ociery and it, citizens. Historic"IIy, strict li"bilil, cov.
ered silll;]tions in which ;]clivilies-blasting, sloring inherently dangerou, slIb.
st;IIKes, keeping wild animals-were abnormalll' d,lngemllS ones. These ;]ctiviti"
were and ;tre still allowab/c,;1S long as no harm occllr,; in olher words, the activi.
til" may be carried on but only if the actOr is Willing to insure Ihe public "g"insr
h.:1rm.
Sellers "nd manuf.lcturers (;10 be held respon,ible under strict liabilit), even if
the seller or manuf.lcturer exerci"d all "ason"ble COlfe in production and s,,'e of
the product and even if there i, no privity of contract lcontr;]ctu,,1 rel"tionship
between the p.trtiesl.ln Ch"pter Six, you will find Illore inli"'''ali''n ahuullhis
rarliculilr CllJs\.' of ;lclion.
I. Divide into groups. Read the fol/owing lact situations "nd reach a group con.
sensus on whether the cause of "ction should be b.lSed on intent. negligence,
or slrict li,lbility. The causes of action "re nOI lllutu;lI/y exclusive. For e"'mple,
you can file a suir based bOlh on negligcncc and slricI li;lbiJity.
") List Ihe rcasons for your decisions.
Faer Sill/Clliolls
a. Fletcher owned co'" mines on property Ilext to Rylan"'s prIll'erty. Rylands had
1 reservoir huilt on his pmpert\". During coll.'trucli"n of the reservoir. workers
discovered old mining shafts th,It we"kened the reservoir structure. The reser.
voir, Once filled with water, burst and nooded Fletcher's co;" mines. Flelcher
sued. Fletcher I: Ryfl/luis, LR. 1 E'\:(/l. 165 ( j 866).
b. The Arizan" Public Service Company hung copper wire aloll poles that were
irregul;trly placed. In the "ulumll, Brittain Ilew his helicopter into Ihe wire be.
cause Ihe copper color blended with the landscape. Britt"in', wife sued for
wrongful death. Arizo"" P"blic Sm'ice Co. " Brill"i", 107 Ariz. 486 P.2d
176(19711.
Torts . 139
,
'. rt not belonging to Herrin, repe"tedly shot'" ducks
Suther/"nd. trom prope y fi d over Herrin's property and diS'
c. <lnd other game birds. The shots wdcre. Ire He rin sued Herrin v. SlItherland,
b d h' ... nll' and his peace an qUiet. r . (Ur e I:) Lu
74 Mont. 587, P. 328 (In
,1
5)k' sl'nger was criminal/va"aulted in her
. G 'J/" we - 'nown, I
d. Connie FranCIS <HZl., a , tor lodge in Westbury, New York, when
H rd Johnsons,. h . I
motel room at own I'd' lass door Proof W<lS offered at I e tnJ.
k
i "hrough a $I 109 g. . d h
the Jlta.c cr came I . d n from the outside. FranCIS an er
Id be c'lsliy force ope . .
th,,"he door cou '. . r 111 .nt,,1 suffering and deprivation
d h otel ch'lIn for, 1tIlcr (j la, t: ,
husbJndsue t em .' H df hllSon's/v{otorLodges, ltlc.,419 F.Supp.
. h' G v owar 0 of companions Ip. If.L
1110 (E.D.N.Y. 1976).
Exercise 7: in.dividual .
J. Read Ihe following parag"'ph.
the need for changes in the 1<1\,0/ or at least . hi' . I changes create d I'
lee no oglel . h I N"wscope Technology, Lt ., a
d f' t rpretmg t e aw. ....
new melho so In e I h chat line. \Vomen are given free
I . perates a Ie ep one
Seattle, Was 11ngton, 0 C f about fifty cents a minute to talk to
I I' d men pay a ,ee I
access to t Ie me, an f the male chat room participants, a _
. I hat room Jazz. one 0 I'
others III t 1<.' C . '. t after talking with them on- Inc
. d en to hiS apart men .
legedlyentKe worn d'd at conduct any background reVlews
d th Newscope In. d'd
and then rape . th 1 1 access lO the line; however. It I
of participanls belare allOWing b. wscope has J disclaimer [denial of
. h l . 11' on a random ;JSIS. e b
monitor t C 1..1 !) ,. hI' J that states that mem ers are
'bT f someone 5 Tlg t to a c aim I .
responsl lllya . I' . II "'ponsibilily for any actions resu ling
1 -J ntl diSC ollms a r ... s .
not prescrct:nL: a . t' about whether Newscope was
I . 's There IS a ques Ion . .
[rom meeting. . I I" through its monitoring function
. d I tIl, problem wit 1 ,IZZ
1l01lfie ;l )Oll . b .. k a Ihe chat room 10 warn olher women
since one of Ihe vKllms wenl <1(.; t
about him .
d 't down three things you should consider as b 'nstorm an wn e h .
2. On your own, ral .. 'f he asked you to represent er In a
an ,lltorney for one of the rape vlctlm5 I s
civil actioll against Newscope.
Defamation
. . I d ithin those communities a good reputa-
tv amma 5, an w '. h h
Humans are commulll '. f . law addresses interference Wit t e
.. ssesslOn. De amatlon '"
tion IS an Wlport:.1nl po . Obviouslv defamatory mformatlOn
. f good n.mle and reputatlon. .' POsscsslOn 0
"
" .'
140 ' Amen'can Legal fngli5h
IliLl:-;t be COIlHllUllicllc:d to'l third per\un 'IIlJ it ,) - . h
' I r" ' ., IS (Ile me.lnS 01 t at coml11unica
11011 I.. Ihe Iwo loris enWl11pils .... eo bv oe(am .J.Iion I "'I ' -
,I"n,l-r I h'l I'b ,aw, In s lOr[
,u t or.1 ,w I C I el is writtcn. '
The law g(H'erning tilt: lort of ddamation is complicated In I' ,t '
would ." d. ' f ' .K , some
C\CIl tSjJilir 0 ever the intricacies of tile I" d'
'I I '., h aw .... urroun 109
I . Iskn, owever, as a law student summilrizes Some of Ih ' I' "
dctJmiltion hlw. e In OrmatIOn III
.Exerdse" 8. Listening' -.--
, , '
I.'
lO the presentation, h \\'ill bt' played Iwice.
2,
3,
.,
hSltllmg the second tllne, ask for ciarit:..:ations (rom the teacher if au
dl,d.n t undersland Somt' of the vocabulary, Y
\\ nte a summary of Whilt 'Iou heard and I" ._,
, I b ' . t lc:n l.Ol11pMt: your Summary with a
nelg 1 or s summary, . '
'Ig.ree 011 th'e If not, li"len 10 Ihe recordilll a third
Illllt, Rtlllt: mbL'r th'll dL'lall1.11 it In is 0111.' or tht: COll1plic,lted
Inte((ectual Property
We hJVC discussed tOrls Ihat address interference with the crs
another and his Or her right to a good Th' P on or property of
name. ere (s yet ;morhe [ f
which relates to the intellectual properly of an individu:d or 'I b r ('gory 0 lort,
propcrly r,ighls are often included in the cltegory
fig ts have theIr basis in II, br. r'. . .' esc:
Iinm or ccollomic"1 -liv' le pu [L po [LY LOnl..epl or (ompetuion .IS the approved
,'. '1-" b .' L Hy. Most people would agree thaI competition results in
IL.lIlt cnellts to COn' , '. .
rd, . r h' . ::;umers, II enLourages buslllcsses 10 keep prices low and
and product diversity, Unlike
r ' cd I g on law, the law of entellwual pro"ert)'
les Ifl Ie era statutes, Included in Ihis (Jle 0 t
r', 'ht' .-' g ry ilre tradcmark, pJlcnls 'Intl "(IP"-
!:, Jnlnngemcnt. " .. .
Trademarks
A trademark is il svmbol us 'd b 'I ' ..
, ,t Y merc lants to Identify their goods add'. '
!UJsh those of others thaI may be similar but not in
!a
r
By that no other merchant can imitate a ;he
h
es
a strong lI,Kentlve for the merchant to invest in goodwill, fn other
s, I t e company Improves its products and makes then, comm' 'II
erCla y
Torts ' 141
tractive, then consumers will reward the company by seeking out products
ing its trademJrks hecause from the cOllsumer's point of view, he or she can rely
on getting a product of the same quality (rom' the each time he or
she returns to the marketplace.
There are both ad\'anlages and disadv<lntages to trademark protection. On
one h.l/ld, <l company motivated to improve its products and cst<lblish a broad
consumer base is protected from the unscrupulous behavior or a competitor who
tries to sell an inferior product under the same trademark as the original. How-
ever, where trademark protection is strong, merchants invest heavily in advertis-
ing and promotion in order 10 cultivate brand loyallY on the part of the consumer.
""hen this happens, il is hJnJer and more expensive for new companit's to break
into the market, which consequently reduces the incentives (or established firms
to maintain product quality and keep prices down.
Patents
Patents are protected b)' federal statute in order lo stimulate desirable cre;lIivity
and to reward those crcators with limited mOl1opolit's, In gCI1L'ral. mOllopolies arc
not allm .... ed under American law; however, p.llents are re\-V,lrJs to il creator, giving
him or her a strong financial incentive. This incentive of the monopoly, however,
is of a limited duration and is only renewable under exceptional circumstances,
such as delay in issu;]nce or because of appellate review. In <111 instances, the
sion can total no more than five years, Read the following section from Title 35 of
the United Stales Code, 154.
Conlents and term of patt'nt
(<1) In Gener./.-
(1) COlllenlS,- Every patent shall conttlin a short litle offhe invention Jnd
a grant to the patcntee, his heirs or assigns. of the right to exclude others
from making, using, offering (or sale, or selling the invcntion throughout thc
United St;l1t.'S or importing the invention into fhL' Unilcd Slales, 'lIlli, if Ihe
invenlion is a proccss, o( the righlto exdude others offering for
sale or selling throughout lhe Uniled States, or importing into the United
States, products milde by that process, referring to the specifiC<ltion for the
parliculJfs thereof.
(2) Tam.-Subject to the payment of fees under this title. such grant shJIl
be for a term beginning on the date on which the patent issues and ending
10 years from the date on which the application for the pafent was filed in the
United States ... ,
J 42 American Legal English
------------------
Flash Review. Reading for Details
Carefully review thl' st;Jtute and answer the following
a. What is the holder of i1 paten I to?
b. W11Jt must the palent do to his patent?
c. \'\fhat is the st,mdard of a patent?
Before being grilnted the privilege of piltellling his or her invention, an invl'ntor
musl satisfy three statutory tcsts of novelty, Ilonobviotlsness, anJ usefulness. To
meelthe novelty test, an item must be nt'w, a departure from what h'1S gone be.
fore. Thus, if a product were alrcady patented abroild, it could not satisfy the
novelty requirement ;lnd therefore would not be patt'nt,lble.
The nonobviousness test simply means that the differences between what is
sought !O be patented and prior knowledge must not have been obvious to people
of ordinary skill in the field in which Ihe patent is sought (35 V.S.c. I 03). The
patent applic.lIlt mmt also show lIscfuhless. Title 35 U.S.c. 101 staks:
\Vhocver invents or discovers any nt'w ilnd useful process, machine, manufat.>
ture, or composition of matter, or any new and useful improvement thereof,
may obtain a patent therefor. subject to the conditions and requirements of
this title.
\-Vhat will satisfy this requirement is a question off<l(I.lt is interesting to note that
regardless of the infringing party's intelll, thl.' p.lIclltce has ,l Gluse of action. Thus
an innocent subsequenl inventor who unknowingly m;lkcs, lISt'S, or sells a dcvice
that was previously patenled is liable, ;mJ he may be punished with the same
severity JS an intentionJI infringer.
It is possible to be liable for patent infringement even if one docs not actually
make, sell, or use the device. A person who induces another to infringe a patent
m.lY be held liJble. In addition, a person who provides an ingredient that permits
another to infringe may be held li,lblc for contributory infringement. The penal-
ties for reiid' include injunctive relief [court order requiring <l person to do some-
thing or stop doing something] and damages. Though the damages are generally
the reasonable royalties I p<:lyment for right 10 lise a product, process, creation,
etc.), 35 U.S.c. 284 allows dam.lges to be increased lip to treble the Jmount of
actual damages.
Torn . 143
Exerdse 9. Analysis '
Consider the following fact situations <lnd determine if there hJS been an in-
fringement of someone's intellectual property rights and if so whether tha t in-
fringement is a trademark or patent infringement.
Faa Sill/ariol/:>
3. The owner of 50l.lr Tortilb Chips, a product well known to consumers by its
logo of a bright rl.'d sun wearing a sombrero, is surprised on his weekly trip to
the grocer}' store to find products that he has not manufJctured being sold
under the n.lmc of Solar Tortilla Chips and sporting the same logo.
b. Mehdi is an eleclrical engineer who has been working at home for years on .1
new type of electrical circuit that will revolutionize electronics. He begins to
produce and sell these circuits and makes an enormous profit. Amir, anQ[her
engineer, had previously patented a process that was substantially simil,IT [0 the
process Mehdi discovered. Mehdi is a very honest man and had no idea th3t he
was not the original creator of the circuit.
c. Koke COmpilnY, trring to capitalize on the reputation of Coca-Cola Company,
begins marketing its beverages as "Koke."
Copyright
Copyright law provides for the protection of original works, in multiple lields, in-
cluding art, liter.lIlIfe, music, and drama. to name a few. Ide<ls or processes from
these works of art, however, are not copyrightable. ft is thc parficui;-Ir expression
that is copyrightable, not i\ particular idea. Let's look at 17 U.S.c. 102 (1992),
which covers whJt mayor may not be copyrighted.
I 02. Subjecl matler of copyright: In general
(a) Copyright protection subsists, in accordance with this title, in original
works of authorship fixed in any tangible medium of expression, now known
or later dewloped, from which they can be perceived, reproduced, or other-
wise communicated, either directly or with the aid of a machine or device.
Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
( ..I) p.lIltomimcs and choreographic works;
144 - American Legal English
(5) pictorial, graphic, "n" "ulptur,,1 works;
(6) 1110tiol1 picture..; and other <IuJiovisual works;
(7) sound recordings; and
(3) architectural works.
(b) In no case does copyright protection for;.ln original work of authorship
extend to Jny idcil, procedure, process, system, method of operatioll, concept,
principle, or discovery, of the form in which it is described. ex-
pl.lined, illustr.lfcd, or embodied in such work.
Something copied verbatim from another source is !lot original work within the
mL'<llling of the copyright statute, nor is;\ work that currently exists in till' publiC
domain, so no one is entitled to il copyright on that type of m.lIeria!' i\krely au-
thoring a work does not satisfy the originality requirement-it must also possess
a degree of creativity, However, the U.S. Supreme Court has hdd that "the requi-
site level of creativity is extremely low; even a slight amount will suffice",Fei.sl
Publications Y. Rural Telepholle Service CompllllY, 1111..-., 499 U_S. I I I S. Ct.
12g2, 113 L.Ed.2" 35M (1991 )1.
Thl' statute also requires that the expression be "fi);c:J in a tangible medium of
expression." Clearly, then, live performances are not copyrightable unless they are
simultaneously recorded. For e);ample, the Olympics, which arc broadcast live and
simultaneously videotaped (a "fixed medium"), are protected by the copyright
laws. If they were not simultaneously videotaped, however, the actual perform-
ances of thc athletes would not be copyrightable.
The author of a work owns the copyright in the work ilnd h'ls access to the
court systl'Il1 to protect his or her rights, which inciw.k reproduction .. Idaptation,
distribution, performance, ilnd JispJ.IY. Sometiml's, IlllWl'Vef, all of these rights Me
not retained by the owner of it work. Consider the case of <In artist who creates a
one of a kind painting, which he or she sells. The owner (purchaser) of the work
does not own the copyright. The Jrtist retains the right to make prints or posters
even though he or she has !iold the original; the individual who bought the p<lint-
ing is barrl'd from doing so.
When a person other than the owner of the copyright uses the material with-
out prior permission of the author, that person has committed a copyright in-
fringement. It is often impossible to prove that someone actually copied a work,
so the courts now usc a two-prong test to dl'termine whether there has been an
infringement or not. The original author must show:
I. th.lt the aUeged infringer ["copier"l had .Kcess to the material and
1 that the copied material is substantially similar to the original work. Whether a
copy is substantially similar to the origin,ll is a question of fad using an objec-
tive standard of an ordinary person.
;",-
rorts . 145
Fair Use
An exception to the infringcment rule is called fair use. This means that a party
can use part of a work of an author as long-as the use is "fair." In other words,
there must bl' a balancing of social, economic, and constitutional interests of both
parties. Section 107 of Title 17 (17 U.S.c. 107) of the United States Code defines
fair use and its applic:>,bility.
Statutory I.lnguage is complicated, and one way to ensure that you are cor-
rectlv reading a statute i!i to draw a flowchart of it. The nowchart permits division
of [h'l' sentcn:es into parts, thus making the section easier to rcad. In
the example, the m;lin idea of each sentence is italicized. However, this docs not
mean that only the italicized information is important. In sf;ltutory interpreta-
tion, you cannot leave out any of the information; you Gin simply order it so that
it is easier to undcrstand.
Sentence one:
rhe Imr liSt.' oj {/ copyrighred
work
i,\' I/Ot WI illj'rillg,lI/t'lIf
oj ('ofJyriglu_
including
for purposes
such as
Notwilhstanuing the provisions of
sections 106 anu 106A
such uSe by reproduction in copies
or
phonorl'cords
or
by any other means specitied. by
that sl'ction
criticism
comment
news reporting
leaching (including muhlple copies
ror classroom use)
scholarship
or
research
146 American Legal English
Sentence (wo:
.1'//(/1/ ;I/dllrle
( I I (he jJIII/JiJ.I"t' IIl1d e/Wrtlf'll'"
o/rli'l/.\'l'
III rfll' //(IllIft' Oflhl'
copyrighted I\'ork
(3) rhe lIlI/O/II//lIfld .wbSfalllia/ill'
o/Iht' pOrIi(m lI.\ed .
(-I J Ih{' l11l'CI oj Ih" If.H'
Senlencc three:
IIIIPllhli.\!t"t! sllall 1101
ilSe/f bar lillI/ding of/air lise
induding
anll
if
In uClcrmining whcllJa Ihl.! lISC
of a work in .my
ca-;c is a us!.!
to be consillcrcll
whelher such use IS of
commercial nalure
or
is for nonprofit
purposes
in relation 10 the copyrif!lucu work
'IS a whole
upon the potentIal market for
or
value of Ihe t.:Opyrighlcd work.
The fact that a worf... is
. a finding. made upon
consillcralioll of allihe above
factors.
TOrt5 . 147
ExerCIse .1Q, Statutory
1. Now compare the flowchart to the original format of the statute provided be-
low. Which is easier for you to understand?
17 USc. 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair lise
of i1 copyrighted work, including such use by reproduction in copies or
phonorecords or by any other means specitied by th.lt section, for pur-
poses such as criticism. comment, news reponing, tcaching (including
multiple copies for cbssroom use), or rese,Hch, is not an
infringement of copyright. In determining whether the use milde of;\
work in any particul.H case is a fair use the factors LO be considered shall
include-
(I) the purpose and character of the use, including whether such use is of
;1 commercial nature or is for nonprofit educational purposcs;
(2) the n;ltun: of the copyrighted work;
(3) the amount and subsfantiality of the ponion used in relation to the
copyrighted work as a whole; and
(4) the effect of the use upon the potential mJrkct for or value of the
copyrighted work.
The fact that a work is unpublished shall not itsclfbar a finding of fair use.
if such finding is made upon consideration of all the above factors.
2. In groups, prepare an explanation of the statute for a client.
Until recently if the work "'<IS for a commercial use, courts generally disregarded
the remaining elements of the statute. Now, however, courts when making fair
use determinations consider all four factors and, in fact, hi.we begun to add J fifth,
nonstatutory dement to their determination of wil;]t constitutes fair lise: trans-
formative usc. This is a tcrlll coined by Pierre Leval in Tmvllrd /I Fair Usc S/IIII-
d"rd. 103 Han'. L. Rev. 1105 (1990), and adopted by the U.S. Supreme Court in its
decision Ofl [Jir use in Campbell v. Acuff-Rose !vIllsic, IIIC., 510 U.S. 569, 114 S. Cl.
1164,127 L.Ed.2d 500 (1994). Transformative use requires the transformation of
the quoted m ..ItCrhll: lhe purpose and the manner of use in the copied work must
be different from those of the original work .
________ :.A:oomerican Legal Engljsh
-----
Exerdse 11. Analysis and Role Play
I. Review the- five eJCIn 'n(' .
Th' .. 1 h ,e:s ,LOurts now me to make a determination of fair use.
t:n fC.lu r t' court s reclI-nion fll '" C
, C . . . 0 lL' Jcts trom LeibOl'ilz Pan/mol/ill Pic-
orpvmllOll, 9<18 ESupp. 1214 (S.D.N.'t: 1996) bdow.
+++
This action examine th t .
f
. 5 e ex ent to wlllCh a parody that appears in the form
o an advertIsement ca tOt f "
n cons I ute a aIr use of a copyrighted work. Plaint'ff'
a well-known phot hIlS
ograp er who shot a photograph of the actress Demi Moore
that appeared on the A t 199
ugus 1 cover of Vanity Fair. Ms. Moore was eight
months pregnant and nude in the photo. the publication of which aroused a
great,deal,of It is undisputed that plaintiff is the sale owner of the
copynght'" thlS photog h j 19
'. . rap . n 93, the defendant was developing advertis-
with the release of its film, Naked Gur.: The final Insult 33 1/3
e defendant eventually selected a "teaser" ad which it contends was a
parody of the Vanitll Fa' j h "
. ':I If Cover. n t e advertIsement, a model who was also
eIght months pregnant h .
. was p otographed agamst a backdrop similar to that
used In the OemT Moore ph t h h " "
o ograp ; t e bghtmg and pose were also similar to
the Moore photograph F rth h
. I . . u er, t e photograph was subjected to some computer
mampu at.lon in order to duplicate the skin tone and body configuration that
appeadred In the Moore photo. On top of the second model's body, however ap-
peare a photograph of th f f " " '
'. e ace 0 leslIe NIelsen, the star of the Nok d G
senes of films In c t, e un
'. on rast to Ms. Moore s expression of fulfillment, serenity
and pnde, Mr. NIelsen's f '. '
[
d
"'0' ace wore a gUIlty smJrk. Underneath the photo ran the
egen ue ThIS March."
Plaintiff brought s't h .
. h . UI , c argmg that the advertisement infringed her copy-
ng t th.e Moore photograph. Defendant conceded that plaintiff owns the
copynght '" the photogr. h d th" "
p an at Its advertIsement targeted the Moore ph _
tograph, but contended th t th d 0
. a e a was a parody and a fair use of plaintiff's
copynghted work The part' d "
. Jes rna e cross-motIOns for summary judgment.
+++
2. Divide into team' on' f p
. t: or aramoullt ;Ind onc ror leibm'itz. Develop argu-
for each SIde on the b- .'. I" h' ' , '.
I
" I' OJ.sI.s 0 t c .st.l!ule and translormatHlila/ use Addi-
1011.1 cases In Level V [Ih' I .
" d 0 IS C l<lpter be used to develop more sophisti-
c.He arguments.
Torts " 149
These facts may help you develop your arguments.
a. Paramount did not request permission to use the photograph.
b. Parody means to wpy lhe way someone or something looks or behaves in or-
der to make fun of it.
c. Leslie Nielsen's character in the movie did not want to have children though
his wife so mOlherhood and childbearing were also elements in the movie.
J. Once you have developed your argument, h;1ve one group member present it to
the dass. The plaintiff's team (Leibovitz) should present the argument lirst; the
defendant's tcam second.
e. ChIss members who are not presenting the case should act as the jury ;md de-
cide, impartially, on the team who presented the best argument. Once the jury
has rend\!red its verdict, listen to the court's decision on the tape.
Penalties
The penalties for copyright infringement may range from recovering actual dam-
ages, to a (Oml ordering i111 offending copies to be seized and destro),cJ, to crimi-
nal sanctions. Under ordinary circumstances thJt can mean up (0 011(' year in
prison and a line of up to The jail sentence CJn increase (Q five years
under certain circumstances-infringement of more than one source within a
ISO-day period. These penalties are clearly targeting large-scale pirating markets,
especiJlIy with reg.ud to audiotapes, CDs. videotapes, and software.
EXerdse 12.' Analysis
L You are <1n attorney who specializes in copyright law. Ann Author m.lkes an
appoinrment with you to discuss her ideas for making copies of ShJkespe<:lfc's
plays, copyrighting them, then retiring on the royalties their sales will generate.
a. \Vhat is YOllf advice to her?
h. "Vhat is the reasoning behind that advice?
i Ann Authur's seconJ item of business with you involves her own original
work, a novel of 412 pages titled How/ing at tlte /v/OOIl.
a. "Vhat would you advise her regarding this?
b. If your Jdvice is different, why is it different?
Building Connections between Clauses
MallY sentences in legal English of two or more clauses connected by a
subordinate or coordinate connector. A clause has a subject and a verb; a main (or
._----------------
independcnt) clause is olle that call stand ;Jlo[ "pl' a subordinalc (or
delll) clause has a sUbject and a verb but cannot ."J'nd alone:
lllJin clausc: She SIJl'ci,I/izcs in intention,]! torts.
subordin.lll' cia usc: 'llthough she enjoys COlllract law as well
subordinatc Whcn V;lc.mcics hanpcn in tht'
conne..:(or ReprCSl'nlalil)1l fmlll ;lIlY 'ilall', Ihe
IItlfhvr;ty thcreo/shall issuL' writs
v/dcaiull to Jill slIch YfltWlcics. U.S. COIlSI.
arl.], 2
coordinale 'l1Jt' trial v/,l1l aillleS, t'XCl'/JlIII t'iI:;;l'S 0/
conneclor ;IIIPt'lIdulIl'm, shl/II be by jllry; and mch
trial shall be held ill Ihl' SflllC IV/urc fht' sl/id
ailllC:s shill! II/lVe beell cofl1l11illt'd. U.S.
ConsL arl. III, 1
combincs main d/l/IS/:
wirh J. su/J()[dinalc c1ausl'
combines two main dallScs
of equal imporrallo:
conncctors are ust.'d extl'mivc!r in English 10 ilel as Ir.lnk directors;
Ihey guide 111e reader in Ihe interpretation of lht' text. The connectors can only be
used to combine c1'llIses th.lI are in some W;J}' related, For example, the following
sentence combines two unrelated clauses and therefore is not correct.
Torr law excludes contracts, ;lnci the octopus has eight tcntacles.
Remembcr th.u the- b.1Sic purpose of connectors is to show how clauses re-
lated. Connectors arc like the nails that hold pil..'ces of a eh.lir together-the
pieces must litlirs! odi)[e the nails elll be lIsed.
To show thC5t.' re!:Jtionships, we usc three different lypes of connectors fhat
have ditIercllt struC{urcs but similar functions.
Type o( Connl'clnrs
Group I Chwsc, CVIIJIl.'t"lord;1usl. COJlnil' W;l:; I'kcll'd (0 Ihl' government last
week, bill sill' won't lake offio.' till next mOllth.
Group 2 CVIlIII't"lvr datlsl'. AltlltHigh emnie is mOVing 10 OUawa now, her
husband may not join hl'r tiil next ye:lf.
Group 3 Cbuse; COlI/ltitV,- Connie will be living ile;lr On.n ....a; her husband
will Slay in V.1ncollvcr, hown',-'r.
Ewry time you learn a new conncctor, you should dett.'rminc to which of these
three groups it belongs. In th is chapter, you will learn some rules that \ViII help
you do this.
Tc;r-.s . 151
Connectors' Coordinate Conjunctions
. d t I. ses
Notice thaL the Group I connector always goes between two Illdepen en c au .
[clause lJ, cont/ector [clause 2 J
Group 1: Coordinate Conjunctions
Lcvel of
Connector Function Example Formality
and addilion We will be filing in Tex.ls, and the others will ,II
bl' filing in Florida
but (ontr'lst 10rts arc civil wrongs, but they exclude ,II
contracts.
,II He must apologize to my neighb?r, or she or choice
will file s/;mder charges against him.
so (allsL'/eJTect I wanled La go to law school. so I majored in ill(orm<ll
I G111Sl'S ' English in college.
for lof[ ec t I CHI se They were disbarred, for they had commined formal
2 causes I mail fraud.
formal He normally supports the yet this yet contrast
year he vOled for the Republicans.
nor ilnJ not She has not yet been charged with trespass,- formal
nor has her husband . .04-
..
NUll":': ch:lI1ge 111 \\orJ orJl:r. I/or I/IIS Ill .
<'EXercise 13. Sentence Combining
. . ., [ I to combine the following sentences. Don't USL' the conjul1(IIOnS In brackets . . .
. . d the cJplfahzation. torget 10 change Ihe punctuatlon an
Waved into it in April. I. land! 'vVebought ,I new house last yea.r. em
. . d to (Jet ;llong well with 2. [.sol The neighbors very Illce. 'vVe expeLte ;::,
them.
J. [hut) vVe tried 10 gel 10 know Ihelll. Th
cy . ..:d cold Jnd unfriendly.
'I. Isol Their dog barkeJ all nigh' IV'd"d '
t; I n t 1.'[ <Iny sleep.
5. [yell Wc <lskl'J Ihelllto ::.top thl' dog- (rom barling Th', dOd '
;Hlt'ntioll. t;} I n [ PJy any
6" Ifor) We eouldn', 'olk or 1V",,"h "I .- " h "
and all "h ,C t: e\ ISlOn. T elr stereo blasted loudly all day
nlS f. .
7. [nor) They wouldn't discuss the problems with us Th' '
letters we sent them IB c fl' h . l'y wouldn t respond to
t; are U WII word ordt'r in this one!)
8. [or) 'We decided we could sue thelll V' - Id
Vt; ,,-ou move out.
9" land) We moved out f 'h h "
o e ouse. rhe neighbors' best friends bought it!
10. Ibut) vVe think they made liS miserable-on purpme W .. 'II n k "
sure. .. .. ever now tor
Comma Splices and Fused Sentences
abobl.!.t the punctuiltion of sentences. When we
. a Com Int' two claus's
In a very com I' d t: ,we must use a comma (or
, p JCJte sentence, a semicolon) before the coni"une,"
IOn.
Torts " 153
The I11l>ot court swdents \\'ill be the yellow room, but they must not
1110\'e the furniture.
Forgetting to follow that rule causes three ITIJin errors. However, they are ;-tlso
vcr)' CJsily correckd.
Effor I Example
Exphmation
,
Comma Thl' moot court swdl.'llts will bl.' lIsing ..:ombining two indo.:po.:ndenl
splicc Ihl.' ydlow room, thq must not move d,lUses wilh no conjunction
Ihc (UfllllUfo.:,
Corralioll Tho.: moot courl stuJl.'nts will bl.' using adJ ;}ppropriate conjun(tion
the yellow room, bru thl.'Y mu:.1 not
I11Il\'e Ihl.' furniture.
Fuscd The moot court students will bc using no punctuation, no
Sl.'ntencl.' thl.' yellow room they must not move the conjunction
furniture,
Cvrrt'oio/l 1 Thl.' moot COLlrt "(UJo.:llts will be using ,lJJ apl'ropri.lte conjunction
thl.' yellow roOl11, IHllthey must not anJ punctuation
mo\'e the furniture,
Correctioll ! The moot court stuJents will be using (a) add semicolon or (b) ;Jdd
the yellow room; they must not move period 'lOd capitalize first
the furniture. word of new sentence
No comma The moot court students will be using conjunction but no comma
tho.: yellow room but they must not 1110\'1.'
the rurniturt:.
Corrnlioll Thl.' moot court will be using ,ldtl cnllUIl.l
thl' yellow room, bUlthey must not
mow thc furniture.
14.Jrror Identification and Correction":,;
For each of the following sentences, identify the error and then correct it.
a. missing comma c. fused sentence
b. comma splice d. correct punctuation
..iL I. NormJlly, trespassing is a property tort but it can <1150 be <l crime.
I
I
A.-lIerican legal English
"1 are nol . d f. . I
_. '-. require or IIltenrlOl .... trespass only for negligent lres-
p.lSS mUst damages be shown.
- 3. Last YeJr f was ch d h
' argc Wit trespass and the owner took me to co t
ur.
_ 4.
I re,lh' Ihou"hl Ih" I .... '11' . j I .
, 0 \\,lS s{J mSlt c t Ie clI\'park th"I, d ,. I d
lvfr. LJbd. ' ,,-- n ue onge to a
:J. out from behind that trec, he frightened me, and I nearly
- 6. Then he pointed his shotgun at me [ had to go with him to his house.
_ 7.
He called the local sheriff, we waited for a couple of ho C h'
show up. urs (or 1m to
_ 8.
r WJS very embJrr . d b h .
a::ose , ut t e sheriff seemed to think it was funny.
_ 9.
_10.
As he drove me into town to fill au h .
about others who had trespassed told me funny stories
Well he rn, h h h'
aver '$iOO . Yr, ave L aug t It was funny but I didn't when I had to pay
- III mes fees!
-.'-.--
Torts 155
Group 2 Connectors: Subordinate Conjunctions
This second group includes important connectors such as IIlthollgh, because, if,
Jnd sillcc. Lel's St.:l' how its rules differ from those of Group I.
Rule I: Group 2 connectors IUdause I], I clause 21 JJhe is not sick, he
c:ln come at the of NOie comma between clauses. will stili address the
the Group I jury.
(OIHlectors cannot.
I
Rule 2: Thl'}' (an ;llso be III (Clause 21 Lifclausc II. He will address the
I
Ihe middle of the two (buses. Nllle no jury i{he is not siLk.
Group 1 (onneclors cannot.
Rule 3: Group 2 dillises Incorrect: {Bcn/flSc clause]. Bec/ll/Sc stJte of mind
cannot be complete sentences Correct: (BcCIll/sc clause], is difficult to prove.
by themselves. They must [clause].
always be combined with a BeclIuse stale of mind
m;lin clausl'. In so nil' cases, is difficult fa prove,
..:1.H1ses liwt with ,I most intenl is proven
Group I connector com through (ircum-
(omplete by themseh"es, stantial e\'idcnce.
but ESL writer!> avoid
those forms.
The following c1wrt will give you lIses and examples of the most common
Group 2 conneclors, called subordinators.
Group 2: Subordinating Connectors
Function: Cause/Effect or Effect/Cause
Connector Example
hccallse Shane must ride the bus becausc his license has been
.<iusp,,-'nJeJ. I efrect blYffllSl' (ause]
since
Shane's license was suspcnded since he was arrested for DUI
(driving under the inOuence-ot" alcohol or drugs).
as (slightlr formal) Shan(' must ride Ihe bus as his license has b('('n suspend('d.
I
so {hat ShJne must compkte an alcohol/drug program so thJ.t he can
I apply to have his license reinstated.
wherei1S (formal) \Vhereas you h:lve been found guilty of driving under the
inJ1uence, we hereby revoke your driving privileges for Ihe
period of six months.
in.lsmuch ilS (Cornull Inilsmuch as this is your second offense, your license will be
suspended for eighteen months and you will serve ninety
in the counlY jJ.il.
--
Function:
Connector E . ..;ampk
.tlthough Sh;lI1e likes LIking the bus Jl!hough his license hJ:) been
rcin!'.t,lIed. ....
.... ven though Shane will cOlltinue to tat .... the bus ewn though his license was
reinsl:lted lJSI week.
whereas Sh:1ne Il? time in iail whereas his sisler had to spend six
mnllths 10 lad lor her :il'cond DCI offense.
I
while Shane cOllpl'r;lIed with the ,lrrt.'Stillg officers his si::;tcr
I
,1ltL'mpled to IlL-..: the of rhe ;Jccid":lll.
I
Function: TimelOrdcr
I
Connector Example.'
ShaHc Jlways dron.' bdon.' hc st;lrlcd 1;lking thl' bus.
drovc his mOlon:ycle until his license W;lS slIspcndeJ.
, \\hik , .)h;1Jll' williI.' hl' wa!'. ,ll'.liling rCkJSl (Will j;lii.
oncc Sh;lllC will lake the bus cl'erywhcrc ollce hl' learns the bus
routes.
when Shane ll11gl11 ride the bus evcn ..... h .... n his ftcense has been
rcstorcd.
whencver He will continue to take the bus whenever he necds a liulc
e:(tra sll'cp.
EXercise 15. Fill in,the BlankS ":,
_ -'- --
Usc a Group:::! connector to connect the followin)j p,lirs of cbuses. Make sure that
the connector you use performs the cued ftlll((ion. SUfe your punctuJlion is
COrrect.
I. [cause/effect] I always thought that airports wcn:buih _____ _
airplanes needed long, smooth surf;lces to land on.
1_ [conlrast] Recently I read that that's not true ______ most people
think the S<lm(' thing I did.
J. [time/order] phllles were first bt'ing used in Europe in the
early 1900s, governments made;l lor of money from import duties, taxes on
goods brought in from olha countries.
-to [contrast! Ships had to land at docks to be unloaded ______ planes
could, at th.H time, hllld in a field.
I
I
I
,
Torts 157
5. [time/order] Governments were worried that people would import goods
without paying taxes ______ they figured out how to use planes for
transportation.
6. kausdeffectJ So they passed laws that planes had to IJnd at airports
______ that way, they could be sure of collecting all the taxes.
7. [Lausddfecl]I <llso lhoughllha\ the landing was the most dangerous part of
a plane ______ the phlne has to come in at the right
;lIlglL' and spel'd.
[contra'it] But a friend who nies told me the bnding is not the most
dangerous lime ___ __ many pilots worry most about the tJkeoff.
9. I time/order] He said thaI the plane is in the ::tir and flying
wdl. Ihere is less d1JnCe of anything going wrong.
10. r Gll1se/dfect] The tilkeoff is the chanciest time the engine is
cold and the pilot may not know about problems with the equipment.
'EJ(erdSl! 16.'5!mtence Buildin.!! . -
=-
I. Work in groups of [our or fivC', Pick one of the topics below.
2. On 3 x 5" cards or squares of paper, writc clauses about the topic. Write onc
cbuse on each card or piece of paper. Write at least fifteen clauses.
3. Ext:hangl' cards with anolher group. Each person should draw two of the
cards ;:Ind try to conneclthe clauses with a Group 1. connector. The group
decide if the sentence is logica\. One person should write the sentence
on a pit'(e of paper.
4. Replilt:e the cards in the pile. Continue until eJch member of the group has
madL' three good sentences. Share your sentences with the class.
Topics:
torts
common IJw
law school a city
a movie/TV show a historical event
Time/Order Subordinate Clauses and Verb Forms
\Vhell we usc subordinate clauses to talk about time/order relationships, we have
to be careful about using the right verb forms. For example, look at the use of
future time in the chart.
I
.--<.:;.;nwn English
')
Timc Example txplanation
lulUn' \ViII ShiT/IC to the bus wllcJJ m;lin dallsc Ifl fUlurc, subordillil/e
hi) hl"/'lIsc IS r("il/stll/cd? dt/llse ill prcscH(
fLnuH: SIl.lo!: Ip I']lish his h(lnll'WOfk Ill.lin d,lme in fUtUfe, slIbvrdillute
lornnrrow while he is 011 the bus. datlSt: ill prest'''1
":ith time/orda (Onnl'(tors, when tht' main clause.' is in Ihe future, the
:-.ubo[(Jm<1tt' clau.se IS In Ihe present.
Look atlhese example.'s or' othe-r time relationships.
Time Example
I
Explanation
"l.'Iernal" Shane drives too (,lSI wht'n he drinks.
I
bOlh clauses in prescn!
trelh
pasl Shape drove ton lilsl lI'ileli he II"fIS
I
bnlh dauscs hapPl'lll'J Jtlhl'
raul/sa. sallie time; bOlh in simple PilSI
P;]st The appeal was ovcr bt:Jim: I go/ to Ihe occurs bcfon! elallst.' B'
cOllrtroom. oOlh in pasl '
past Ih!:: IDi1l1 whQ wa<; [cjllly dause B occurs bdofC
after JollIJS(JII htld been eXt'cuted. past theo P<lS[ pefle([
Fill in ,the Blanks - .
,the fill in the right verb. form. We have already done the first one
. r }ou . .sun:e of tht.: connectors not In the charts we gave you. To help you, we
have underlined the connectors for you_
1. Ion, ":ho works for Jil international consulting firm, will leave PrJgut' hefore
the winter wCJther starts. [start) ---
1. However, most of the local pt'opk will be re;Juy for winter beforc it
_______ for the (irst time./snowl
3, Most peoplc ______ I k
P an.s to go.s -iinS long before winter begins.
[makeJ
4. Stldly, soon after tht.' snow ______ _ it will begin melting and turn
intO.l horrible mess.lfaH!
Torts . 159
5_ TI,,- children will rlln into (he.' streets and plJy in the melting snow as soon
their p.lfents ______ them tu. [Jllowl
6. The parents "..:ill quickly take their fami/it's to the mountains and hope Ihal
the snow won't have mdted bv the time they ______ there. [getl
7. L;)st yeJr, tht' sno",,' fdl e;)rly, before most people _______ their winter
cO,Its and bO(lts. [buy]
H. Bv the time Ion in Prague. the snow _______ already. [melt]
9. Ion \\'.lS studying EU bw \\,hik he _______ Ameri(;J1l lJ\\! dJsses in
Pr.lgUt:. [[cach]
10. Ion _______ in Puerto Rico this winter until the we.Hher is \\':Jrnl
;lg.lin in Praguc. I star]
Sentence Fragments
.-\S we- discu:'Oscd l';ulil'r,;t subordill;'ltc cbusc c<lnnot stand by jlst'l!.
Incomplete: BC(;HlSC you arc presumt.'d innocent until proven guilty.
This sentence is only a part or afragwt:1I1 of il compiete. grammatically correct
sentence. Fortunately, it is easy to correct this type of fragment once we recognize
lilt.' subordinate wnjum:tio
ns
.
I ncmrcct: The burden of proor is on the prosecution. BecJuse you art' presumed
innocent until proven guilty.
Corrected: Tilt.' burden of proof is on the prosecution because you arc prcsumed
innocent until proven guilty.
}-Ill\\-, did we correct thi:-- :'Oe.'lltellce? We took out the period ami ch.mged Ihc capital
II to il small b.
In e.lCh of the following, there is;l sentence fragment. Correct the mistake.
I. Because you enjoy it. VIc will do the first one for you.
c-------
1 Educ.I1cJ speakers of English dOll't I ike fragments. Although shorr .sentences
arc sometimes gooJ.
3. Since they're easier to read.Some people like short sentences bettcr than long ones.
4. \Vhenever r sec shorl !:il'l1h.'/lCes.! remembt.'r tht.' books J read in dementary schooL
5. BUI scntences mllst complelt'. Even though they Jre short.
Group 3 Connectors: linking Words
Look at the position of hOIl'I'I'Cr in the following cxamples.
Aimee has left; however, she did leave you the forms to fill in.
Aimee has gone; she did, however, le.lve you tht.' forms to Jill in.
Aimee has gone; she did leave you the (orms to fill in, however.
Aimel' has gone. However, she Jid leave you the fOfms to fill in.
\Nords sLlch as /10 wel'er are called linking words or transitiollal expressio1ls because
they help make links clear betwcen sentences Of independent cbuses. Linking
words can occur in four positions.
Position' [Clause I I; Ih()wt:I'cr, dame
Position 2- [Clause II; Ipan ofd;JlIse 2, Iwwcvt'(, fest ofdause 21.
Position 3 [Clause II; Iclause 2. hOll'cverj.
Position -l [Clause '1./HolVcvcr, cbuse 21.
Now we can summarize the structural diffcrences among [he three groups of
connectors.
Group 3 connectors can occur in four positions but only in the second
clause.
Torts, 161
Group 2 connectors can bl' only ,It the beginning, of the first or seconJ
clause.
Group I
connectors OCLur only 3t the of the second clause.
I I
,I' Group I connectors and no more can be created. Although
T lere .lre Oil y.l ew J .
there arc many marc conneclO:-S that belong to Group 2, It difficult to
'H 'v'r th"re are manv Group 3 connectors (linkmg words Jod
creatl' neW Oile",. OWl: e, ..... .
expressions) ,\l1t! Ill'W Olll'S arc crealed Let's at Just ;1 few of the most
comlllon OlleS that you will VI-'ant to use m your wriling.
Connector
therelilre
Lunsl'qul'nlly
(forlml)
as J rl'::,uh
I
(slightly formal)
;Iccordingly
(slightly formal)
thus (slighily
formal)
Connectur
furtherrlwre
mon .. n\Tr
ill other words
Connector
however
l'\'cn so
Ile\'l'rlhell'ss
Group 3: Linking Words
Function: Cause/Effect
Example
Slwle ridl'!> the bus; therefore, he will s<lve money on caf insurJnce.
Sh,ml' the bus; consequently, he.: won't nel'J ,J Con III the
city.
Shane rides the bus; as a result, he saws money on gJsoline.
Shane rides Iht: bus every dar; ,lCcordinglr, hc Iws bought a bus
pa.,s.
Shane rid!.!s the bus; thus, he doesn'l hj"e 10 try to find a parking
space.
Function: Addition
Example
Sh,lIle rides the bus to school; furthermore, hl' may st.lrt ritling itlo
work, too.
ridcs the hus; nlllfeu\'t:r, he is urging all (olh:ertled (ilizcns 10
Jo the
Shane rides the bus for in othcr words, he
W,Ults to help dean up the pollulion 111 our clly.
Function: Contrast
Example
Shanc ritles the bus; however, he won't scll his (ar just yet.
Sh;.\lle rides the bus; eVl'll so, his girlfriend still drives ('\'l'q",vhere.
SIMile rides the bus every dllY; nevertheless, his neighbors insist on
to work in separatc cars.
162 . Ameri Y-egol English
------------------ -----------------
Funclion: Tim"IOrul'r
Connector EX:lmple
(or.1 Slarl ShLInt' has begtlll 10 riJe Iht' bus; for a start, he will ride il to school
during Ihl' w('ck.
I
iniri ..dly Sbnc h,IS begun to fiul' the bus; inilially,he will riue it only 011
Sundays.
/lexl Sh.1111' hilS 10 ride Ihl' bus; nexl, he h'l(ll'S 10 (ollvin..:-c IllS
family 10 d050 .11.\11.
Function: Summari7.ing
Connt'ctor . Example
in Shane ha5 begun riding [he bus, recycling [fJsh. :llld conserving
cnerg!'; JI1 summary. he is becoming more responsrble aDoul Ihe
em'ironmenl
r in g,"",1 Shane is not the only on:.' riding the bU5 these days; in general, more
responsible people are choosing 10 ride Iht' bus to redUl.:C pollution.
Choose one of the following simations. \Vritc a letter to the appropria te person.
Use at least five Group 3 connectors bur do not try to use J. connector in every
sentence,
Situation I: Your city is considering building a rapid-transit system to help peopk
get downtown from the outlying areas. The system will be very expensive, so
the city will h:we to raise tJ..'\es to pay for it. Write <l letter to the mayor of the
city. arguing either for or against the rapid-transit system.
Situation 2: You have distant relatives who live in the United States and only spe3.k
English. They would like to return to your countryund start a 5mall American
restaurant. As their relative and a lawyer, wrile them J lerrer giving tlwm rea-
sons why they should or should not do that.
Situation 3: Write a leiter to the president of the United States outlining why you
think the United States should spend morc time and effort on increasing tics
between your countr), o.nd the United StJ.tcs.
Comma Splices and Missing Commas
vVhen we use linking expressions to relate clauses, it is easy to create comma
splices and accidentally leave out required commas,
Torts . 163
I
I
\ E;camplc
Explanation I
Stat u5
twO mJin dOl usc.'; juined
,
, Binh Vu was lirst in his as a
I
Inwffl.'d:
result, tn' gave the graduation spl'cch.
a comma i
Comm3 spli(('
\ Binh Vu tir5t In his As a
add perioJ, capitalize tirs!
\ Cvrrce/ivn 1
result, he gave the graduatIOn speech.
h'ard of new sentence
\ <ldd semicolon
I
I I3inh Vu W:l5 first in his dJsS; 0.5 a
I
Com:e1ivl1 :!
\ result, he gave the gfJd uation speech.
!
\ \ P 'op" ror"" Jor ,'x,,,,,pk wh,n ,he
linking expressions
I
Incorrect. .1; .' , .0 cssion comes in the
be "sliffOund.::d" by
!
commJS
\ , conlin", clause to use comm",
\
\ P,ople 10rget.fouXIlmpic, when 'he
surround linking
Cvrr,:e(1V1I expres5Lons with comn1.1S
11Ilktnge:cprcsslOn comes In the ,
nllddle of the cI;Iuse to usc
I
'fxercise 20. Fill in the 'BlankS ::.,
. fill in rhe blanks in the following sentences.
Choose 'an appropn,ltt' connector to I .
sure your connector performs the cued function.
I I d to Paris to consult with an aurhorin'
1 [time/orderl______ trave e. d .
. . - I w an embarrassing thing happen
e
.
In European a , . I' d'scuss estate planning,. w"J.llted to take
2. [clUsdd'fectj Before meettng 11m to I
. I put my money and P,lssport
"J quick walk the CIty, tho t fastened around my \,'aist like a belt.
into a "fanny pack -:1 purse <l
[wanted to see the Eiffd
3. [contrast] I W.lS a 1"Iitie hungry; --h-' --t -ea-t-'
Tower before I stopped to get samet lng 0 .
Ch
"Ivse'es' ________ ' I did,
, ' ,d d 'Jlong the ampS-c, ,-
4. [additIon] I ere . I gal bookstore ncar the university.
little window shopping and went Jnto a e
,I fInally found the lovely little outdoor cafe
5. [time/orderl______ d d rofessors
that I knew waS frequented by law stu enlS an p .
I watched the people walking by.
6, [addition[ I order,d (off", ___ __
. I went to pay the bill, I discovered that my
7, [time/order! --------
1
money and passport were gone.
___ -'---- they said I would have
8. [contrast] I went to the police station,
to go [0 the embilssy about my passport.
_________ '_egol English
---'-------
9. fcau:se/effectJ [ hJd to spend three hours al the embassy expbining the situ;J-
lion and filling out forms; I .
-----_, InJssed my appointment with
the allorney I had intended to see.
10. [timelorder) I t b k h
f go J,C [0 my otel room, what do you think
. ound? My money imd P;]ssport-in my suitcase where they hJd been all Ihe
tIme!
.Exercise anI! [euTeCtfon ,
- - -" < -, - - '"
Cor,rec! rhe error,s in Ihe follOWing paragraphs on a separate sheer of paper. There
rna} be punctuatIOn problems, misused connectors, or verb (orms.
1. Although, we don't always realize it, but people who commit crimes are nor
very smart. For example one man in California was nrrested, after he tried to
a stereo (rolll a He broke into Ihe car then he climbed into the t k
to d h k . run
Isconnect t e spea ers. Willie he W,]S in the trunk the lid clos 'd, h
Ikd.Wh. ,e,so,ewas
oc e In. en neighbors heard him yelling and pounding on rhe trunk lid
had called the police. The police officer reported hearing the man veil '
Let me out!" ,
2. another case, a man was trying to rob a bank. He asked the teller to give him
a.1 the money, when she told him that bank regulations required him to give
hi: and address. He wrote the information on J. piece of paper. And she
gJ. e him t.he money. Because he gave the correct address. The police were able
to arrest hour later. While some crimin.lls may be the masterminds we
see on televIsIOn shows. in general I think crooks are prelty stupid!
level V: Additional Exerdse
Case Synthesis: Reading for Details
In Two you were introduced 10 the concept of synthesizing cases to come
up wuh the of for your You will now be given
other .0pporruflilY to that sktll by determining whether fair use is
In a case that will be given to you in this exercise. First, however YOll
nee to re\'lew some olher materials 011 fair usc. '
1. Review 17.U.S.C. I 07 Paramount Pictures Corporation.
2. Now, conSider the followlIlg mformation from another Cilse on fair use.
Torts . 165
2 Li\'e Crew. a rap musIC group, Ray Orbison\ song "Oh. Pretty
,"Voman" in a r:l.p song titled "Pretty Woman." Acuff-Rose Music, Inc . the holders
of the copyright on "Oh, Pretty WornJ.n," sued 2 Live Crew and their record
pany alleging copyright infringeml'nt. 2 Live Crew responded cliliming that their
rar song, as J. pJrouy, fell under the fair use doctrine. The case, Campbell v.
Rose AllISic. 1t1C., 510 U.S. 569, 114 S. Ct .. 1164, 127 L.Ed.2d 500 (1994), terminated
at the U.S. Supreme Court, ,-",hose opinion, in pilrt, states:
+++
The threshold question when fair use is raised in defense of parody is whether
a parodic character may be reasonably perceived. Whether, going beyond that,
parody is in good taste or bad does not and should not matter to fair use ....
+++
The U.S. Supreme Court rhen criticized the court of appeals for applying too
much weight to Lhl' commercial nature of the p.lrody. The court of appeals erred
when it held thJ.t si nee the nature of 2 Live Crew's song was commercial, there
was a presumption against the applicability of the fair use doctrine.
+++
The central purpose of this investigation is to see, in Justice Story's words,
whether the new work merely "superseders] the objects" of the original cre
ation. (citations omitted1 ("supplanting" the original). or instead adds
thing new, with a further purpose or different character, altering the first with
new expression, meaning, or message; it asks, in other words, whether and to
what extent the new work is "transformative." levall111. Although such trans
formative use is not absolutely necessary for a finding of fair use, (citation
omitted] the goal of copyright. to promote science and the arts, is generally
furthered by the creation of transformative works. Such works thus lie at the
heart of the fair use doctrine's guarantee of breathing space within the con-
fines of copyright. [citation omitted] and the more transformative the new
work, the less will be the significance of other factors, like commercialism,
that may weigh against a finding of fair use.
+++
Appellate Argument: Oral Communication
I. Divide into teams. In the next scenario, one team is to represent Dr. Seuss
terprises, the plaintiff, Jnd the other Penguin Books, the defendant..
1. First decide what law you think is applicable. Review the material from Chap
ter Two on synthesis to help in reconciling the two cases.
166 . Americ t!gal English
3. Prepare to debate (oral appellate argument) the issues with the opposing team.
-I. Iftimt! permits, additional material is available on the Internet under general
search engines such as W\VW.metacrawler.com or specific legal sites such as
wWlv.bw.COl nell.edu or www.findlaw.com. Search terms would include fair
lise, copyright, copyright infrillgement, LeivOI'it:, and Acuff-Rose, to name a few.
A combination of the terms will most likely provide more specific informa-
tion. Full text opinions (or f e ~ r a l decisions and many state cases are available
Jt WW\ .... iJw.comell.edu.
Scenario
Dr. Seuss Enterprises, copyright holders of the popular U.S. children's book The
Gu ill the Hat, written by Dr. Seuss. a pseudonym for Theodor Geisel, are suing
Penguin Books for copyright infringement because Penguin has published an
illustrated book entitled The Cat NOT in the Hat! A Parody by Dr. Juice, inspired
by the original The Cat ill the Hat. The subject matter of The Cat NOT ill the Hat
is the 0. J. Simpson murder triJI, written in rhyme, as in the original work. Nei-
ther the ;lllthors of The Cat NOT ill the Hat nor the publishers obtained permis-
sion from the plaimiff prior to publication.
Chapter Six
Products Liability
Activity
'Work with a partner to answer the following questions about products liability in
rom country_
1. Have \'OU ever bought a product that had problems? What were the problems?
)'Oll:
Your partner:
., If so, what did you do when the product didn't function or couldn't be used in
the correct way?
You:
Your partner:
3. What can a person in your country do if he or she hJ.s bought a faulty product
and hilS been iniurcd while using it?
You:
Your partner:
4. Do you think i1 person injured by a faulty product should be allowed to sue the
manufacturer of the product?
You:
Your parrner:
5. If a person is allowed to sue the manufacturer,
should he or she be able to recover for pain
and suffering, including mental pain and
anguish?
You:
Your partner:
167
i
168 . Ameri. Legal English
Essential Terms
products liability: law of torts; manufacturer or seller of a prod.
uel (an be hefd ilable for InJu,ncs or damages Glused by defects in chat product
damages: monetary (ompL'ns.ltlOJ1 for injuries
compensatory: d<lmagcs rh;lt fepbec money lost by pl,linliff Jue to the injury
(lost wages, medJ(ai bills. etc.) .
punitive (exemplary): damagL's awarded to punish (51,000,000 for coffee burns
at restaurant) someone for wrongdoing (in products li<1bility cast's, generally
a product seller or manulncturer) ,
f\, Your w,ilI play a on the tape for you about a famous prod-
' " ucls liability case In the UllItcd Stales. He or she will tell you if you will hear the
once or twice. If the lecture will be plJyed twice, first time vou should
Just listen. The second time you should take notes that will enable to answer
the following questions. '
I. Why was Ms. Lieback's case the first to reach the public's eve?
2. In which state did the accident occur? '
3. In what way did the coffee injure Ms. Lieback?
4. How serious were Ms. Lieback's
5. To what extent did tht' jury decide Ms. lieback WilS responsible for the
accident?
6. How much did Ms. LiebJck receive in compensatory damages? \Vhy?
7. What was McDonald's attitude to the general problem of injury from their
hot coffee?
8. caused the jury to <lgree to ilw,lTd Ms. Lieh'lCk punitive damages?
Y. Did McDonald's and Ms. Lieback fimdly reach an out-of-court settlement?
10. How did this case alter McDonald's behavior? .
Products liability law purports [is intended] to hold manufacturers and sellers
of goods Ii.abl.e. for .goods that cause personal injury or property damage.
Products lIability, as It 110W, is a relatively recent legal development that was
and expanded In part to protect consumers in an age of increasing tech-
complexity. In other words, there has been a policy decision by law-
makers and the courts that the responsibility for an injury caused by faulty
consumer products should lie with the maker or seller of the goods and not
the consumer.
Products Liability . 169
Exercise 1. Hypotheticals and Discussion_ -
Don't worry about the actuall;!w in this exercise. In each of the scenarios you
should determine v.tho is "morall}'" responsible for the damage or injury caused.
Your instructor may ask you to defend or explain your choices in either written or
orill form.
ScclI(Jrio5
l. Aftcr drinking alcohol all day, an obviously drunk man buys a shotgun from a
department store. He takes the gun home and shoots his girlfriend, who now
will never be able to walk again. V/ho's responsible: the clerk, the drunk man,
or the manufacturer of the shotgun?
2. An IS-year-old woman rents a waverunner [like a motorized wind surfer\; she
injures her f.lce severely as she hits the unpadded steering wheel when a large
W:lve swamps lsinksl her. \Vho's responsible: the woman, the rental agent, the
manufacturer?
3. A pharmaceutical company hides and falsifies data about very serious mental
side effects of a drug. A man taking the drug commits murder. \Vho's respon-
sible: the murderer or the drug company?
4. A man who is killed in a minor car accident is clearly at fault [responsible].
However, it can be demonstrated that he would not have been killed if the
car had been designed correctly. Who's responsible: the dead man or the car
manuf;1clurer?
5. A supermarket allows a cake manufacturer to set up an unattended table with
samples of cakes for customers to try. A customer slips and falls on a piece
of the cake on the noor in front of the table and breaks his hip. Who's respon-
sible: the customer, the store, or the cake manufacturer?
Building a Case
The causes of action in products liability cases are generally not exclusive. For
you can file an action based on breach of implied wilrranty and negli-
gence: a claimant is not required to choose one or the other doctrine.
However, no matter what the underlying theory of a products liability CJ.se,
certain elements are common to all cases. There maybe no recovery [<lward-
usually monet:lry-from the court] unless
1. the product is shown to be defective or harmful: 'something about the product
is capablc of cJusing injury;
2. the seller's act or omission with regard to the product is causally related [the
I
170 . Amer Legal English
------------------------------------
<leI or omission is prO\'en to be directly connected to or caused by the defect in
tht: productlto the injury; and
3. the seller is Jctually connected .somehow to the product (i.e., shown to be the
scller or mJnufJcturerj.
Because of rh-,:. increasing complexity of the issues involved, the most impor-
tant of the current Closes of action in products liability is strict liability in tort,
followed closely by warranty protection in contract !JW or, morc specificall}" the
law of sales.
Strict Liability in Tort
Strict liability means liability without fault. Even if a manufacturer has worked
hard to develop a safe product. he Of she is still responsible for damages if the
product later turns out to have been sold in an unreasonably dangerous condition.
Prior to the development of strict liability in LOn, a claimant was required to
prove privity of contract [that he or she had some form of legal relationship wit h
a person or entity] in order to succeed in a lawsuit against that person or entity.
For example, if liri Cee bought a Miniraur car from Golden's dealership in Min-
neapolis, Minnesota, and the car later exploded due to a faulty gas line and Iiri
was injured, Jiri could only sue Golden and not Minitaur even though it was
Minitaur who unwittingly manufactured the faulty product. Jiri's legal re/ation-
ship--the sales contract-was \... ith Golden and not Minitaur. In other words,
there was no privity of contract between lid Cee and Minit;lur.
Cases such as MrlCPhersofl Buick Motor Co., 217 N.Y. 382, III N_E. 1050
(1916) circumvented [got aroundJ the onerous [difficult) requirement of privity
of contrac!. Prior to MacPherson, privity was required in almost all products lia-
bility lawsuits. Now, however, privity is required for none of the causes of action:
Iiri can sue both Golden and Minitaur.
Restatement (Second) of Torts 402A is commonly cited by courts or has
been codified in various states as the rule governing stri(t liahility in products
cases. It states:
(I) One who sells any product in a defective condition unreasonably dan-
gerous to the user or consumer or to his property is subject to liability for
physical harm thereby caused to the ultimate user or consumer, or to his
property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial
change in the condition in which it is sold.
(2)
(, )
ProduCts Liability . 171
The ruk stated in Subsection (I) applies although
the seller h,lS exercised all possible care in the preparation and sale of his
product, and .
(b) the user or ..:nnsumer has not bought the product from or entered mto
contractual relation with the seller. [Restatement (Second) of Torts 402A
(1965)1
Flash Review 1. Reading for
L Which subsection eliminates the need for privity of contract?
') Does the seller have to be a "professional" seller for this section to be appli-

3. The five essential elements for proving a case under strict liability can be found
in 402A. \-hat are they?
4. Do YOU have a similar theory of liability in your country?
5. have been held liable under the doctrine of strict liability even
though no negligence on their part could be found. What social goals are met
by them responsible for injuries caused by their products?
Many strict liability in tort cases involve a failure of duty to warn [advise con-
sumers of possible dangersJ. For example, if you buy spray paint to paint your
f.lctory storage room and a worker has to be hospitalized due to inhalation of
paint fumes in an unventilated -area, the worker can sue the in strict
liability in tort if there was no warning about a need to ventIlate on the spray
paim packaging.
Express Warranty
Now let's see how warranties enter into products liability cases. The underlying
basis for all products liability actions is that the seller of a product owes a duty
bevond that of the simple conlract to the buyer of the product.
, In almost all tra.nsactions, there is an express warranty [a promise stated by
the manuf.lcturer! th-.}t does not need to be label ed "warranly." For ex-ample, if
there is a description of a product on the packaging, that description becomes
art of the express warranty. If a s<llescIerk shows you a sJmple of a dish, that ac-
;ion becomes an express warranty that all of the dishes you buy will be identical
within a range accepted within the industry. On the other in many states
there must be a specific nature to the warranty. If a store sImply posts a satisfac-
tion guaranteed sign, there isn't necessarily an express warranty.
172 . Amedc, egal English
Implied Warranties
IMlrranty of Merchantability
Of course, the product bought must not only meet the terms of the contract or
express warranty (it must look like the sample), it must also not harm the buyer.
In legal terms, the seller is obligated to warrant merchantability [the product is
salable and fit for general purposes]. ivierchantability means that the product does
what it should; for example. a pen writes. It doesn't have to be the best pen in the
world to meet the merchantability standard; it simpl)' must write. Failure to pro-
vide a machantable product is a breach of an implied warranty I a warranty that
is implicit in the sale of the goods and does not have to be expressly stated by the
product sellerJ. Thus, a pen that does not write on normal paper in a normal en-
vironment does not meet the implied warranty of merchantability.
Since the Uniform Commercial Code fmodel code governing commercial
transactions] has been adopted in part or in whole by most states, we can look to
it for a definition of this implied warranty. Uniform Commercial Code de-
fines the implied warranty of merchantability as follows. .
(I) Unless excluded or modified (Section 2-316), a warranty thJt the goods
shall be merchantable is implied in a contrJct for their sale if the seller is a
merchant with respect to goods of that kind. Under this section the serving
for value of food or drink fa be consumed either on the premises or elsewhere
is a sale.
(2) Goods to he merchantable must he at least such as
(:.1) pass without objeclion in the trade under the contract description; and
(b) in the case of fungible goods, are of fair average quality within the
scription; and
(c) are fit for the ordinary purposes for which such goods are used; and
(d) run, within the variations permitted by the agreement, of even kind,
quality and quantity within each unit and among all units involved' and
(e) are adequately contained, packaged. and as the agrecme'nt may
require; and
CO conform to the promise or J.ffirmations of fact made on the container or
label if any.
(3) ...
The concept ofheing fit for ordinary purposes has been held by courts to include
actions that are reasonably foreseeable. For example, it is common for a person to
stand on a chair to reach something_on the top shelf of a kitchen cabinet and not
just use the chair for sitting. So, standing on a kitchen chair can also be considered
ordinary use.
',."
In aJdition to the requirements in U.Ce. 2-314. the plaintirf must be fore-
seeable. u.e.e. 2-31 S offers three options regarding foreseeability. States, when
enacting warr,lIlty :ilatutes. choose the option that best suits the needs of the citi-
zens of that particular state. The options are: (a) members and guests of the pur-
chaser's household; (b) all natural persons whose contact with the product is
foreseeable and who are injured by the product; and (c) all persons whose contacl
is foreseeable and who are injured by the product. Note thal option (e) includes
corporation:;. There is no requirement of a "natural" or "live" person.
I. In pairs. revicw the statute on the \ ...Jrranty of merchantability given to you
above. Using 'whatever form of statutory interpretation you find easier (elimi-
nation of sentences as demonstrated in Chap. Three or a flowchart as demon-
strated in Chap. Fi\'e), analyze the statute.
2. Now, ill writing list the essential elements required to prove a breach of war-
ranty of mcrch;mtability under the U.CC Don't forgel to add in one of the
dements of foreseeability from UC.C 2-318.
Warrant)' of F,tlless for a Particular Purpose
Additionally. the seller is obligated to warrant fitness for a particular purpose
[the product is appropriate for the special purpose for which it was bought] of
a product. I f you tell the salesclerk before you buy a pen that you are going to use
the pen underwater, his or her selling: you the pen creates an implied fitness for <I
particular purpose: writing underwater. U.Ce. provides:
\Nhere the seller at the time of contracting hilS reason to know any particular
purpose for which the goods are required and that the buyer is rel)'ing on the
seller's skill or .iudgment to select or furnish suitable goods, there is unless
e,Xdudl'd or modified under the next section an implied warranty that the
goods shall be fit for such purpose.
1. In pairs, decide if a warranty has been violated in the following scenarios. If so,
what kind of warranty?
2. YVhat dements are you required to prove? Present your answers orally to the
class.
174 . Ameri( .)901 English
Scellarios
J. You buy tl loaf of bread thaI turns out to be moldy when you open the package
at home.
b. The new em opener you bought cuts your finger every time you try to open
a can.
c. [n a dive you talk to about your next diving trip to
Greenl'lI1J. You tell the salesperson that you hayc to be Jble to dive in very (old
water with the equipment he or she wants to sell you. The sJI ... spcrson sells YOLI
a Jive suit that is not suitable for the extremely cold wilter off the coast of
Greenland. You develop hypothermia [lowered body temperaturcl.lOd almost
die as J result of using the inappropri;lle di\'e suit.
d. "Guaranteed to rid your house of roaches in 30 days." On day 3 I you find sev-
('ral roaches picnicking in kitchen.
e. Serge can't find his screwdriver and uses a knife manufactured by Messing,
IIlC, to screw J dining room ,.lble together. The knife snaps, and a piece nics
into his left eye, blinding him in that eye.
Disclaimers
In many states it is possible to disclaim cert:J.in lypes of warranties. Here is a typi-
cal universal disclaimer (or an instruction manual that mayor may not actually be
\'alid depending on the state in which il is to be used.
Disclaimer of Liability
Neither Dragonllyer.lnc .. nor any of Its employces make any warranty. express
or implietl. including the warranties of merchantability or fitness for a particular
purpo<;e. or a::;sumc any legal liability or responsibility for the aCl'l1[,ICY Of
completcness of any inf{lrmation contained ill this manual or represent that its
use would not infringe privately owned rights. Inform<llion provitleu in Ihis
molnuaJ by Dragontlyer. Inc .. is provided "AS IS." <lnd any cx.prc!>s or irnplieJ
warranties of mcn:h:lIlt>Jbility and filncss fOf a particular purpose are disclaimed.
[n no event shall Dragontlyer. Inc .. or its be liable for any direct.
indirect. incidcnt;]!. special. exemplary. or conscquential u::Jmagcs (including but
not limited 10. procurement of substitute goods or services; loss of use, data, or
profits; or business interruption) however caused and on any theory of liabililY.
whether in contract. strict liability. or tort rincluding- negligence or otherwise)
arising in the usc of this infomwtion.
Exercise 4. Writirg and Pair' Work ,-
I. The use or plain English is now being taught in U.S. law schools. The disclaimer
on page 174 is obviously not written in plain English. Taking into account that
courts have accepted the use of the terms as is and with nil [aults to pUlthe con-
sumer on notice that there is no warranty, what can you eliminate to make this
discl;]imer easy for a consumer to read? List your deletions in writing.
'l Arter you have decided what you would dim inate, compare your anSwer to
'lour neighbor's. As a pair, rewrite the disclaimer to make it easier for a con-
to understand. Limit your disclaimer to approximately 50 words (the
example contains 150 words).
Reckless Misconduct
In addition to the warranties of merchantability and fitness for a particular pur-
pose, the seller/manufacturer is also obligated not to include any hidden dangers
in the products. !=ailure to meet this obligation is reckless misconduct. In a well-
publicized u.s. auto case [Grimshaw v. Ford Motor Comp(my, 119 CaLApp.3d 757,
174 C,LRptr, 348 (19SI)]. Ford Motor Company was held liable forserious
injuries to a passenger in a Ford Pinto automobile caused by the t;xplosion of the
gas tank arter the Pinlo was rear-ended. Although Ford aWare that the danger
existed, the claimant was unaware that there were defects m the gasoline tank;
thus that defect constituted a hidden danger in the Pinto. Ford was aware of the
defect before the accident but it found it more economical to leave the car on the
market as it was rather than issue a recall [notice by manufacturer to consumers
to return a faulty product!. [n response to the perceived misconduct of the defen-
dant, the plaintiff was awarded $125 million in punitive damagcs, which was laler
reduced to $3.5 million on appeal.
Negligence
From the claimant's pefspective, it is better to file suit on the basis of breach of
implied or express warranty or striclliability in tort rather than negligence be-
cause the elements of proof are not so burdensome [difficult]. In negligence,
the claimant is required to prove: (1) a duty of reasonable CJre on the part of the
seller who doesn't have to be a professional seller; (2) a breach of that duty; (3) an
to a person to whom a duty was owed; and (4) causal connection bet\veen
the injury and the breach of duty.
In limited circumstances, the doctrine of res ipsa loquitor may also be used in
products liability cases to prove negligence. Res ipsa which means that
the facts and circumstances surrounding the injury lead directly to the conclusion
that the faulty product was the cause of the injury to the claimant, eliminates the
necessity for proving a causal connection between tile injury and the defect. In
Escala v, Coca-Cola Battling Co, o[Fresno, 24 CaL2d 453, 150 P,2d 436 (1944), ra
176 . Amen'cor
yo! En9lish
[0 apply whe.:n a Coca-Cola bOlile exploded, injuring: the
b
p
.untll/,.a wailn:ss. 1 he driver (or the.: Coca-Cola Bottling Co. had delivered Ih'
ottlcs d,rectlv to th . rest d. ,
t'(f ' ...' l a.uranl, an no ont' disturbed [he bottles until the plain-
I \\ilSbInJUred when movlllg them. This gave rise to the inference of negligence'
no Ol1e ut the defend, ,. Id hi. ,
"n LOU ave )eell negligent.
I. Divide in teams of three.
") Each k;lm writes a scenario about a j'. IT, .. , h
(; J/ d' '. m)l It} I.a:-,e ( at te;lm members .. sure
1 sun t:r the doclrll1e ot rcs ip::itl JO'/l/itor.
3. After TeJIll A reads its scena' T B h I
11. " " . flO, cam as tnee minutes 10 ask questions of
cam A to prove that res Ipsa loquitor docs not ilpply.
4. Tlhe other teams act as the jury and VOte on whether Team A or Team B won
t Ie argument.
5. :eam B reads its ilrgument, and Team C refutes it, and so on until the
lIrL t' complete and 1c lnl \ I - I I I '
t 1.1:'0 1,1( a.: lance to try 10 refute someone's aT-
gumcot for res ipsa loqllilar. .
Burden of Proof
In . in a products liability action, a claimant must always prove that he
or was In}ured or suffered Joss due to a faulty/defective product and that this
pro uct was causally connected with the jn)ury or loss "ro s,mply ,h ..
I' (. . H ow an InJurv
or a . ass IS ficJcnt to Sustain an action, unless thal action is in rcs i sa '
the c/,limant must show tnat the- product was at
' C 'd,mt.c II. eft the co."trol of the seller. Tt is not enough to show that the product
was eCflve at the time of [I '. .. .
If' 1(' Injury, PlrtJcularly If there has been a substantial
the st
e
p.roduct. and the time of injury. This places a
. . 0 proo on t e ChlimOlnt In a products liability case even if
the cJalmaoht IS filmg suit the theories of strict liabilily in tort or brel1ch of
warrantv, W CTe he Or she J' n t . d
d I d ' :s 0 require.: to prove.: IIcgligence on the p.lrt of the
t' en anI. ,
I. Which cause of action is more difficult to prove, negligence or brerlch of
warranty?
2. Is proving that an in) h d .
Wh ury appene suffiCIent to prove negligence?
3. elemen's IS a cI,im'n' required '0 prove in a breach of warran'y
4. warn, which is often used in strict liability in tort cases.
5. 0 as t e urden of proof in a products liability case?
Products Liability. 177
Damages
The monetary damage :lwards in products liability cases are a cause of great con-
cern both to U.S. businesses and to international businesses doing business in
United Stales. There are two primary aWilrds.
1. Compellsatory damages are designed to provide the claimant with a monet;uy
a\\':ud to compensate for the injurr or loss (such as hospitalizJtionlrepbcement
co:'Ots).
2. Punitive damages are designed to punish the seller of the product for wrong-
doing .
The Ford Motor Company case [Crimshnw v. Ford Molor Co., supra] involving
the explosion of the Pinto's gas tank when struck from the rear gained notoriety
because the jury initially awarded the claimant SI25,000,000 in punitive damages,
which W;JS reduced by the trial court to $3,500,000. This was the beginning of
what some people feclto be extr;Jvag,lJ1t punitive damage awards that have be-
come commonplace in products liability Cilses.
In a recent U.S. Supreme Court decision [BA'fW of North America, Inc. v. Gore.
517 U.S. 559,116 S. Ct. 1589, 134 L.Ed.2d 809 (l996)J i, would 'ppear 'hat 'he
Court is in favor of limiting "excessive" punitive damages. Gore, aher buying a
new BMW, later discovered that the car had been damaged by acid rain during
transport to the United States. He sued BMW for, inter (Ilia. fraud [intentional
deceptionJ and in a jury trial was awarded $4,000 in compensatory damJges, the
amount by which the value of the car had been reduced. The jury also awarded
Gore $4,000,000 in punitive d;Jmages. The jury's decision was based in part on a
BMW policy (hat was to repair vehicles that had been damaged and sell them as
new if the damages were less than 3 percent of the value of the car. The Alabama
Supreme Court reduced the punitive damages award to $2,000,000; the size of
the award prompted BMvV to petition the U.S. Supreme Court for a writ of cer-
tiorari, which was grantt.'d. The U.S. Supreme Court found the punitive dam;lgcs
award grossly excessive and in violation of the Due Process Clause of the U.S.
Constitution.
How the lower courts will interpret the Supreme Court's holding is yet to be
determined. It would appear, however, that the U.S. Supreme Court would require
lower courts to look at three issues in determining the issue of excessiveness of
punitive damages:
1. the reprehensibility {deservingness of of the conduct;
2. the ratio between compensatory damages and punitive damages; and
J. the difference between the award and civil/criminal punishments for the same
actioll.
178 . Amen'CDI, 11 English
I. the fallowing fact situation and decdc, in light of the BMW v. Gore de-
c.lslOn, If the punitive damage award is excessive. You must support your dcci-
on U.S.Ia ......, and undt'r U.S. law the of punitive dam;Jges to a
plaintIff In an action is acceptable.
Angel::! Harper sued Man la.'!;! Bottling Comp,my J.Jr physical a!1d
men!;]1 distress she alkgeJly suJfered when she drank pari o( an iced tea
bottled by their company that contained the remains of a partiaJiy decom-
posed mouse. At the !rial a toxicologist (expert on poisonsl testified that
his examination of the bottle shClwed mouse feces on the bottom of the
botlle, which indicated that the mouse must have been in the bottle before
the liquid was added. The jury awnrded Ms. Harper $5,000 in compensa-
tory damages, based on lost wages and medical expenses, and $500,000 in
punitive uamOJges. No criminal chJfges were brought ;]g;1inst the
company. L
2. Would plaintiff be entitled to recover either compensatory or punitive
damages III your country?
litigation Costs
Businesses have often been pbced in the position of settling a products liability
case out of court to avoid the of litigating the action. Taking into account
attorneys' fees, expert witness charges, filing fees, courl costs, possible punitive
damage awards or even bad publicity for the firm, as well as the time involved in
preparing to defend against an action, many businesses have decided that it is in
their best in.terest settle even though the claimant might not have a supporlable
of action agamst the manufacturer. This is especially truc in GISCS where the
c1;'lImant, in attempting to reach thc deep pocket [the seller with substantial re-
sources/, brings in parties who are so far removed from the Jction as to be free
from fault.
One example of a settlement thaI WJS "forced" for the aLo\'e reasons involved
a European corporation that WJS Slid in strict liability and negligence even
{hough the product, cable cars, had been sold over twenty years before and scvcral
other companies, such as wholesalers, refurbishers, and concessionaires, had had
access to and control of the cable cars in that twenty-year period.
The ffiallUfaGurer of the cable CJrs .:ho:se to settle out of court after a cable
car fell at an amusement park, killing a man and paralyzing ,I young woman, even
though intervening parties [companies or people who h;1ti to and were 10-
volved with the product between the rime claimant waS injured by the product
and the time it was placed into commer':-cl and circumstances existed.
The cable car was originally sold by the manufacturer to a company in Call-
forma, which resold it to ;1 second (;.)mpany, which refurbished and upgraded the
cable cars and then leased the cable car to a third company, a concessionaire at
the amusement park. This third company did not perform the m;1intcnance as re-
quired in the manufacturer's instructions and disengaged safety switches designed
to prevent operation in windy conditions. On the day of the accident, the ens
were swinging violt:ntly in heavy winds: however, the operator did not reengage
the safetv switch and shut down operations. Finally, the cabl.: :mapped, causing a
C<lf to fall, killing a man standing below and paralyzing the claimant, who was rid-
ing in one of the cars that fell, from the neck down.
The claimant, a young woman, induded the manufacturer in the suit bCCJllSt'
none of tlw other pJrties had sufficient insurance or capital to pay a multimillion-
ooilar award. The non-U.S. manufacturer was concerned about two things:
I. the possibility of punitive damages because of the sympathy that the young
(twenty-tWo years old) woman's plight would have aroused among jury mem-
bers, and
2. tht' high cost of nltorney's fees in the United States.
If the case had gone to tria\' the would most probably not have
been held li<lble, but since nothing in law is (er{Jin, they chose [Q seltle. The cor-
poration decided th;1t it was simpler to settle for $3,000,000 rather than risk hav-
ing to pay the requested award of $1 00,000,000.
1. The cable car accident happened in the" early 19805. Do you think the company
might have reconsidered its decision to settle out of court after the BMW \'.
Go;c decision? In wiiting, list the reasons for your stance.
2. The U.S. altorneys for the cable car company recommcnde"d taking the case to
trial. The European attorneys were Jgainst this. In wriling list possible reasons
for tbe difference of opinion.
180 American 01 English
Usmg the information from the legal thumbnail (level III), determine wh;]t is
wrong with t';Jch of the following statements. Your instructor will tell you whether
to respond in writing or or;]l/r.
J. The plainli{( and Jdendant must always h'l\'e privity of contract in products
li'lbilitY,l(tions.
, A pl'limiff may nm fil!."l0 action in both negligence and bre:Kh of\varrant\,.
3. The manufacturer's only duty to the burt'[ is contra(iu.l/. .
-J.. Products li,lbilil}' law is a tOlally new innovation in lhe field of collSumer
protection law.
.). damages are awarded to compensate a cJ'limant for mone!:ur loss.
6. A dalman t can Will J products liability suit if the seller's act or omission with
regard to a product is not causally relatcd to his or h!.'r iniun'.
7. The burden of proof on the claimant is easier in negligence :Ktions tlMn in
breach of implied Warranty JctiollS.
If injure yourself using ;J m.lilu(acturer's or sdler's product, YOli Jrc
entitled to recover if you file a products liability lawsuit.
9. In for breach of implied warranty of merchantability, the buyer is not
to recover}' if he or she is using the product for other than the pur-
pose Intended by the m<lllufacturer.
10. \Nhc-n businesses settle out of court, it is solely due to fe;lr of punitive damaQe
,lward:;.
level IV: language Focus
Gerunds, Infinitives, and That (lauses
To make the relationship betv .. een two sentences closer, we Gill use that clauses or
gerund .md infInitive phr'1st's.
I Form EXilmple
Explanation
I fhllr Luc is furious tflm he 100t a cas.:.
must ha\'c pronoun ;md verb
I following tbat
I gerund Luc cant .stand 10SII11';"t CilSC.
I
no pronolln needed; illg form of verb
I infinHil'e LUl: can't stand 10 IOSL' a case.
I pronoun n.:ocued; fO + base form
ot verb
Th.:re Jrc many structurJI possibililies when we use that clauses, gerunds,
and inllnitiws with I'::'rbs. Some verbs only t;1ke infinitives; olhers can only take
gerunds.
1. Statutes tt'llt! 1P be easier to inteipret than cases.
2. Three times I p05fpollrt! tJking the bar exam.
Some LilJ1 t'1'cn all three forms. However, we be careful, or the sentences
we produce may be ungpmmatical and hJrd to understand.
Since gt'rund phrases rl'quire In -ing form and iniln[(i\'c phrases require a
to plus a simple verb form, we cannot use mod'lls (s'.lch JS IIIIIY, wi/l, (till, shU/dd,
or WIISl) to form a gcrunJ llr an infinitive structure .
3. Incorrect: Luc G1I1't stand I/I/lsting study torls.
4. Incorrect: Luc hopes not to IUlISt address the court tomorrow.
Vie must replace thl' moJals with their non modal equivalents, such as 1Hm.' to for
/11//5f or be (lble to for ({l/I.
s. Correct: Luc can't stand hm'jllg to study torts.
6. Correct: Luc hopes not to have to address the court tomorrow.
That Clauses and the Mandalive Subjunctive
In formal English, when a tJwt clause is uscd with J. smail group oherbs and ad-
jectives, the verb in the that clause must be in the bare form [infinitive without
ta]. This structure is cailed the mJndative because it is used with these verbs ,1I1d
;ldjectives when they aee used as demands, very strong suggestions, or commands.
Verb or
Form Adjeclive Example Explanation
prescnt til.:lTIanJ The courts demJnd that the Be is the simple foem.
pleading be filed by Tuesday.
past rcqum: The statute required that metE still. be even t.hough the
rea be establisheJ. maIO dause LS in the past
fmurc imper;lti\'e It will be imperative [hat the cant use modJls (lVil/, Cilll,
jury be able to believe the s/JOlIlcl): e.g, there ;s no
witness. infinitive of /lllIst or will
or should
passi,'c insist His insist!.'d thJt he be aga.in be for all forms
released immediately.
negative request The company was reque.sting 1101 precedes form of
thJt we not discuss the case verb: nllilo
\\lith (he medl:l.
.. _._------- ---..
182 Americl.. English
nJ
1
.
ay
use both the subjunctive and present JnJ past tense
on meaning of the \'erb, If the verb is used;]s il strong sug-
or .1 Lomm;lnJ, It I;lkes Ihe !:iubj lln<--ti\'L" but if it is being used;1!:i a S\'Jl-
!.or verb such a!:i 5(/)' or uffer (as in offer all eXpll1l;alion) then'the
JTl lea tlve lor!"l1 IS used.
I \'l'rb Example !
Explanation
I
suggest I suggesled that the fmms I: Here the verb is a svnonl'm fo
might have alread ... b 'e (; . d h .' I r
, t: n axe. <lnot cr nonslIh}uncti\'e vcrb:
::: IlII I'Xplmll/fioll,
The detecti\,e SUt'!!ested that Ihe I .- . I.
-'lIggcsf IS u<,ing used 3$ ., polil<'
pleaJings be faxed rather than mo,'I ..,,',
..... command, so we necd thc
subjunctive form.
the parts of the sentence, You may need to make changes in the verb
lorms. Jr there tS strono su'" " h " ,
t> <:.>t,es IOn use t e manuatlve subjunctive; otherwise U!:it'
normallorms. '
Example' lit ' , 1 h 'I h
-. . . IS essentH] t atl t e transcripts must be released bv Monda\'.]
It IS essential that the transcripts be released by Monday. ' ,
L [The ,iudg
e
ordered Ih;1IJ [the iaw),crs don't uiscuss Ihc case until then.J
1. [He stressed that it w:ts tlutl le\'ervo!1<! should h'" 1.,-,
h
.. . j , " ,\\e equa to
( .:: mtormatlOll.]
3, [Furthermore, he thre:ttened thatl [he (harge ;]nyonc who spoke to the
press before then with contempt of court.]
-t, collcague proposed that] [we should hold ajoint press (onreren.:e.]
J. I We think that would meet the requirement that) I no one kaks the neWs of the
settlemellLj
Gerund or Infinitive: Whkh to Choose?
)\s we look at the different ways we can USe the infinitives and gerunds, we should
keep two general guidelines in the back of our minds, There are numerOU!:i cx(ep-
lions to our guidelines, but ther will help in many cases.
Guideline l: Infinitives are often used with verbs that talk 3DoUt events or states
that haven't happened yet or haven't been fulfilled,
l Verb Example Time Frame of Infmitive Phrase
1 want B13nc 11'1lIlfJ' to thL' hL'aring "future"; hearing hasn't been postponed yet:
I
postponed, unfulfilled event
[ hope
il.kDonald's hoped to settle au[ "future"; they hildn't settled ret: unli,lltllkd
of court. event
Guideline 1: Gerunds nre often (but not always!) used with verbs that talk abou[
states or events thJ.l have already happened or arc happening. These events or
states are fu][ilkd,
I
I Verb
I
Example Time Frame of Gerund Phrase
regret I
Blane rcgrcrrt:d t:Jking the (ase, "past"; (ase was rakell bdore it was
"regretted"; fulfilkd event
den)' /1'. IcDollald's dt:f1icd servin!; a "past"; serving of allegedly Jef.:ctive produ(t
defective produ(t. preceded the denial: fulGlleJ .:Yent
!
184 Amen'( ;Jot English
Verbs That Use Only Infinitives
There afC two basic types of verbs that take onlv infinitives. Lei's look at an ex-
ample of a verb (rom each group first. .

Group 2
withoutJor
persuade
Examplt!'
Thc Judge ;nh'J/ch"f 10 hl':Ir the
lapc bcrnn.: ruling. ---
I Thcifldgc for thc Jun'
I 10 hl".lf the tare .
I Example
I
[persuaded my dil'ot to poesent
lhe 13P(, as eVIdence.
I paslIllilcll myself!n present
the tape as t'VjdCI1L'L',
I Ex!-'Ia.oiltion: Allows S<lmc Subject l
I Ddl'fJon
I
subjects of i'Jh'nti ,1nJ hl'ar Ihe ,
Ihejudgl'
I subjects of illkrll/aoc. hc,n nOIIh.:
i samL'; must .lod (or
Explanation: Does Not Allow Same
Subject Deletion
subjects of paslIllde and pn:S(,nl nut
lhl , I. di<..'nL (nn (or!)
Here is a bridlist of the most important verbs in these t',vo uroup
o 5,
Group I
Group 2
agree appe:Jr Jdlise Jllow
cafe consent JPpoint
decide desire
authorize
belieye cause
fail
happen
guarantee challenge command
hesitate convince forbid
hope Intend force
learn man"ge ht'lp
get
hire
mean ulTer instru(t In\'ite
plan promise name permit
refuse seems persuade remind
swear tend request teach
vow
tell
Products Liability . J85
Using the list of ,he most important Yerbs, make sentences from the parts and
verbs provided. The first one has been done for you.
1. wc ch3Hengc IlYou wil! make sentences]
We challer to make sentences.
"l Last week I tht' tc'lcht!f remind! [we should study for our prodUCTS 1i:lbiiitr
cxam]
3. I ask I [the study group helped rn ..' understand striclliabiiity in lortl
4. I I force! [I studied every day last week]
5. The work and effort I permit I [We ail passed those difficult exams]
Negative Infinitives
What h'lppens whell we try ro turn a negative Ilwt clause into an infinitive phrase?
form
/lWI daU5c
Group I
ir!finitivc
{/lilt d,lUse
Group 2
infimtive
Example wilh Negativc
The company decided lhat it
wouldn't move to Ohio.
The company decided not to
movc to Ohio.
The ,,::ompany had warned lhe
employees that \'Ie shouldn't
expect to be transferred.
The company had warned liS not
to cxpect to be transferred.
Explanation
necds pronoun referring to subject in
(IJelt clause (it)
decide is a Group I verb; delete
pronoun and modal; use infinitive
form
needs pronoun refcrring to subJcct in
tl1l1tdausc (we)
IVClfll is il Group 2 verb. delete modal
but must leave "subjec(" (liS) o( the
infinitive expect. From
]we expect to be transferred]
186 Ames legal Eng[;sh
Change the following underlined negative thac clauses to infinitive phrases. Some
of the verbs may collle from Group I others from Group 2.
I. All ror;' employ,:es, whom I'm in rhe negotiations, agrccd that thev
wouldn't ask t(lr a raise for vca ..
Thl' union members dccided that tht'" wouldn't strike \",hile tdks continued.
3. For its P,lit, Jld promise it wouldn't cut health benefits.
.J. Everyone expects that next ven won't be as difficult as last Year,
5. ,\Iost employces are simply glad that thev arcn't being tl;-ed frolll their iobs.
Infinitives and levels of Formality
fn the case below, the first sen fence is grammatical but sounds very formal, while
the second sentence is a less formal version of the same sentence. rn legal English
you often see the more formal version, so underslanding its usage is
Level of
I Expian"ion
I
Formality Example
'vcry fOfll1J1
Not to j2rovlde free legal collmd
begins with infinitive phrLlse (here in I
to the indi"ent would be
negative form) th;]t is the subJect I
unconstitutional.
less 'orm;!1
11 would be unconstItutional D.Q!
it holds the subject place; inlIllitil'e
to wovide free legal counsel 10
phrase at end of sentence after verb
the indigent.
Rewrite the following sentences to make them marc formal.
1. It is <I moral i!11perative [Q follow the code of ethics at all times.
') It is not easy to put aside your persoll;)1 beliefs when representing a client who
rOll believe mighl be guilty.
3. It would be unethical not to be as prepared as possible for each casco
4. It would be necessary to prove unethical behavior before an attorney could be
disbarred.
5. Even if she a personal friend, it is improper to address a judge by her
given name.
188 . Americur; Legal English
Verbs That Use Only Gerunds
For certain verbs and adjectives, there is a required preposition th<ll must be
added when we ch<lnge a that clause (0 a gerund phrase. Unfortunately, YOU will
need [0 learn most of [hose verb/preposition or adjective/preposition
lions through memorization. We have liSled a few, but there are many others.
:\Ithough every good dictiormry will tell you which preposition is pai'red with
;my given verb or adjective, we've provided a short list of important legal
cornbin:1tions.
i I ! Form Example
I eha; clause I They were excited that thev
, would be hloaring the Chid
I lusti..:!.:' speak.
VerbS/Adjectives Requiring
Prepositions
no preposition since there is arhat
clause
I
gerund il The)' were excited about
the Chief Imticc speJk.
Tho.: prepositions var),; chc.::k a
dictionJry if you arc uncertain.
Combinations of Legal Verb or Adjective plus Preposition
absent from in accnrdiJnce with according to accuse of
acquamtcJ wilh J.dvisc on in agreement with <lnswer to
approve of aware of base on bdicve in
blame on coll ...ct from conceal from conscious of
contribute to critical of deprive of difficult for
disapprove of eligible for engaged in incapable of
independent of inf ... rior 10
I
intenllJll j ... alolls of
obtain from opposed to persist in prevent from
profit from prohibit from I tolerant oi
I
wary of
Change the underlined tllm clauses to gerund phrases, \Ve have done the first one
for YOli.
I. The manufacturer insisted that he could produce;1 safer product. The manu-
facturer insisted on his being able [Q produce a safer product.
1. He intended that his settlement orfe:- would SJtisfv those filing the cbss action
suit.
3. Of course, the pbintiffs' attorneys were confident that Ihev would win the case.
4. As a result, the}' weren't at all doubtful that their clients would b ... awarded a
large settlemenl bv the cour!.
5. The manufaClurer wasn't yet aware that the a[[ornevs were able to gather so
much clear-cut evidence of negligent behJvior.
Verbs That Use Both Gerunds and Infinitives
There are even .some verbs that can be followed by either a gerund or an infinitive
\vilh ;dmost no change in meaning. For other verbs, there is a mJjor difference in
the meaning whcn we choose to use an infinitive or a gerund_ However, foe mosl
of the vcrbs that allow either gerunds or infinitivcs, the difference in meaning is
very small.
No i\.JcQl/ing Changes: Ncar and Far
S0111!.' vcry common verbs. such ;15 helle and like, can be followeJ by ... ithcr;l
gerund or an infinitive. The differences in the use of a gerund or an infinitive
with these verbs are very. vcry slight. However, some native speakers do feel that
there is a slight difference. which is nOled on the chart below.
Type of
I Explanation Speech Example
gerund Mr. Sampson hales trying The gerund (arm is felt by some native
products liability cases. speakers 10 be more concrete.
infinitive
I
{>.Ir. Sampson hates fO Iry Native speakers often feel the intinitive form is
productsli;,biliIY (ases. a little more dist<lnl or hypothetical.
190 Amen. tegal English

Mctll1illS Changes
There is a vcry sm;lH ..::lass ofverb!i that can lake both gerunds and infinitives with
J n::gul'lr change ill based on the concept of fulfilled and unfulfilled
events tliat we discllssed at [he of this section. You mil}' wish to refer
to the two guideJine!i we gil\,C.
Type of
I
Specch Example
Explanation
I gerund
I
He rcmembered pus/pollillg
I .-\ fuifillcd I'vcnt.
till' meeting unlll
i HI.' is looking back and might SJ},. "{ know
I
that told to P?stponc the ml'l'ting.
I Here s ;:! recording ot that
inliniii\e
He remembered l(l pUSlrVII{'
i :\n unfulfilled even[. .
the mecting unlJl TucsJa)-.
I He would S<lr. "Jase, I'm sorry but r just
remembered; we'll need to postpone aUf
I meeting till next Tucsdar."
Do we need an infinitive Or a gerund? We have tjlled in ,he first blank for you.
I. Witlless: I'm not sure if he was the one who mugged me or not
LIlLI')'L'r: /sec] How could you forgel seeing him outside building?
Lml')'er: /takcj Had vou forl!otten ______ I
' L - rour wal et when you first
left your apartment?
George: Yes. ( did go back in for my wallet and my cigarettes.
3. Lawya: What did you do when you left for the second time?
George: /smoke] I tmmediately started . (can't smoke inside.
p..(y has asth rna.
..j. George: [blly]l\j beell up all night wurking .md my head hurt. ilfld my wife
wanted me to stop ______ some aspirin while I was taking my morn-
ingjog.
J. George: [see] \-Vait. now r n' ,"n v.
s
h.'s .1.
------ '. '''' " l;,e one.
Products Liability 191
LeveL V; AdditionaL Exercises
Risk Management: Exploring the law
FIa:.h, Inc., developed a cube flashbulb ror use in cameras without a buill-in Jbsh.
Thl:' knew lhat the cube exploded on rare occasions (approximately
onc(' out of cvery 100,000 uses), so the product label warnl'J of that risk .. -\t .1
board meeting concerning the marketing of the flashcubes, the chief executin:
officer (CEO) questioned the Jttorney regarding merchantability under the U.Cc.
Are the Jbshcubes fit for their purpose if they are subjcct to explosions, eVl'n on
rare oc..:asions? .-\S thl' leg;ll advisor, you are expected to providl' her with some
idea of lhl' risks involved to Flash, Inc. Consider tht: falloh'ing questions J.nJ
answcr them in writing.
L Would the term mcrc/Illllt{lbility include suitable and safe for operation under
the appropriate U.CC code section?
1. If a produ..:t is not merchantable, w11;11 might possible penalties he?
law in Action: Writing to Clients
Procedural Background
The following case was heard in the Court of Appeals of Georgia, which held
that the lrial court correctly sus[;1lTlcd demurrer to the pctition whert:
the defendant's negligence was not the proximate cause of the plaintiff's
[CrtlllksJllm' \'. Piedlllo/l{ Dril'illg Club, 111[" 115 Ga.App. 820, 156 S.E.2d 208
! 1967)1.
I. \'\1'00 "won" the appeal-the plaintiff, Ms. Cranksh,lw, or the defendant, Pied-
mont Driving Club?
., As Ms. Cwnkshaw's lawyer, you need to simplify the procedural b.lCkground
sentence to he ,lblc to tell her wh,1I the court of appeals ruled .
Consider the Facts
+++
Plaintiff Elizabeth Crankshaw seeks dam<lges against Piedmont Driving
Club, Inc.. alleging that on January 15, 1966, she in company with R. r<1. Harris
and Miss Arlene Harris patronized the dining room of the defendant that Miss
192 . Amen'cc English
------------------ -----------------
Harris ordered shrimp and began eating same at which time she noticed a pe-
culiar odor emanating from the shrimp dish cal:sing her to fee! nauseate!!; that
Miss Harris excused herself and proceeded toward the rest roor,1; shortly there-
after plaimiff proceeded toward the rest room to give aid and comfort to ,\1iss
Harris and as plaintiff entered the rest room she saw Miss Harris leaning over
one of the bowls: that "unbeknownst to plaintiff, MISS Harris had vomited just
insidE the entra.nc::! to the rest room" and that as she fCrankshawJ hurried to-
ward her [Harris] she [CrankshawJ "stepped into the vomit. and her feet flew
out from under her," causing her [CrankshawJ to fall and break her hip. The pe-
tition alleged negligence of the defendant in selling unwholesome, deleterious
food and in failing to clean up the floor of the room or to warn plaintiff of
the condition of the floor.
+++
1. \\110 was Ihe appeJiant in this apPt.'aJ?
1. How does [vI iss Harris fit into the case?
3. Does sht.' h;]\'t.' anything to do wilh the callst.' or ,l(linn?
-I. From the facrs givcn, what set.'ms to havt' happencd 10 :-"liss Harris?
5. \Vhy does rhe plaintiff consider thL' deft.'ndan( IlL'l:dil!t.'nt?
6. caused h-fs. Cranksh;l\v to laU?
7. Approximately how much time would the defendallt h,lVe had to clean [he rest
room no or?
8. does "[s. Crankshaw allege that the defendant's selling of "deleterious"
lood \Vas Ihe proximate cause oCher in.iury?
The Court's Holding
.... +
AppeHant in her brief properly abandons the allegation of negligence
due to defendant's faiture to clean the regurgitated substance from the floor
since under the facts aiteged the defendant had no notlce, actual or con-
structive, of its presence on the Hoor prior to plaintirf's falL AppeUant Con-
tends, however, that "the heart of the legal question presented" is whether
or not the negtigent serving of unwholesome food to Miss Harris was the
proximate cause of her (appeUant's) injury. Viewing the case from this posed
question we conclude that the trial court was correct in sustaining the general
demurrer.
"If the damages are only the imaginary or possible result of the tortious
act, or other and contingent Circumstances preponderate largely in causing the
injurious effect. such damages are too remote to be the basis of recoverJ
against the wrongdoer." (ode, 105-200B. Damages must flow from the "legal
and natural result of the act done." Code, 105-2009. The question of proxi-
mate cause is one for a jury except in palpably clear and indisputable cases.
We think the facts alleged in this petition bring it within the exception and
subject it to be ruled upon as a matter of law. The court must assume this bur-
den where a jury can draw but one reasonable conclusion if the facts alleged
are proved, that conclusion being that the acts of the defendant were not the
proximate cause of the injury. Stallings v. Georgia Power Co., 67 Ga.App. 435,
20 S.E.2d 776. In our opinion a jury could not reasonably conclude that the
plaintiff's injury was proximately caused by the defendant's negligence in serv.
ing unwholesome food to another person. Judgment affirmed.
++.
I. Compare the follOwing sections of the Georgia Code that were revised in 1981
with (he section ust.'d by the court in Ihe Cml1kshtll'., case.
2. Are there any differences in the sections? Would the revised sections still be
detrimental to i\h. Crankshaw's case?
GJ. Code Ann. 51-12-8 (1981) fformerlyIOS-2008J
If the damage incurred by the pbintiff is only (he imaginary or possible
result of a tortious .lct or if other and contingent circumstances prepon-
derate in causing the injury, such damage is too remote to be the basis of
recovery <lgainst the wrongdoer.
G". Code Ann. 51-12-9 (1981) I formerly 105-2009)
Damages which are the legal and natural result of the act done, though
contingent to some extent, are not (00 remote to be recovered. Howcvcr,
damages traceable to (he act, but which are not its legal <lnd natural COl1Se-
qucnce, are too rcmote and contingenllo bc recovereu.
legal Writing
Ms. Cr:mkshaw wrote you a kner after the appellate judgment was rendered ask-
ing YOll (0 explain the court's decision. During your discussions as you prepared
thL' initiJI casc, ,'all realized that shr..' did not understand leg;]! terminology. In
your letter La you will have to explain the decision in nonlegal terms. You are
also to advise her on whether it is to appeal the court of appeals judgment.
'We have begun the letter for rou.
"Tn
..
(D,ne)
194 Ami. n Legal English
\Y./ ALTON, J\1AOISON & JACKSON
Atrornc),5 A[ Law
(vbdison Building, Suire 2033
Ins Washingron Avenue
Arbllt:J, GA 15632
EliZJbe(h Cranks haw
1398 W. _vfain SL
Fulton. GA 156-tO
D(!:Jf Ms. Crank.'ihaw:
As you arc aware, the CO!Jn or Appeals announced its decision last
week. We gave you a brief outline of the decision on lhe telephone the day
v.:e were informed of the outcome. The court, unfonunately .
Sincerely,
Lucille A. Walton. Esq.
Interviewing
In pairs, complete the following role play.
One partner is the attorney in the C3se; the other is Ms. Crankshaw. Based 011
the earlier facts (pillS any that you may need to invent), interview Ms, Crankshaw
when she first contacts you regnrding filing;J products liability suit against the

'..,.
_e-_
I
Products Liability 195
Piedmont Driving Club. Remember that you know nothing ;lbout the ;}ccident
when she first comes to sec you. Some questions which you might consider are
the following.
J. Tdl me what happened, Ms. Cranhhaw.
2. Did Piedmont Driving Club advertise its shrimp in Jny way other than in-
cluding it on the menu?
3. Do you know of any other incidents of food poisoning involving the Picd-
mom Driving Club?
4. \'hen did Miss Harris (irst become aware that something was wrong with the
shrimp?
5. Did you notice the odor from Miss Harris's shrimp?
6. How much lime passed before you went to see about Miss Harris in the rest
room?
7. Would the staff of the Piedmont Driving Club have h;1(itimc to nolice and
clean up the vomit in the rest room?
8. Why didn't you see the vomit on the floor?
9. What happened after your fall in the rest room?
10. Did the manager make any statements admitting the responsibility of the
Piedmont Driving Club?
Chapter Seven
Corporations
I: Discovering Connections
Corpor<1tions an:' "born" through Ihe operation of!aw. Tn the United StJtes, inLii-
\"idu,ll stJtcs may haw :.Iihtly JiITl'rl'nt bws for forming corporations, but for the
most part these lJws share many similarities bec;luse they Jfe ail modded <lncr [he
Uniform Business Code. Though they are creatufes of Jaw, corporations share
many of the same rights and responsibilities that Teal people do.
Activity
A. Un'ide into groups of three. With rour group members decide which of the-
following actiVities you think corporations might bl' allowed to participate in.
voting
dil'orce
having children
Icnding/borrowing moner
negotiaLing/cxt'culing (on/ElLIs
marriage
nuking campaign contributions
buying and selling businesses
suing someone or being sued
going to jad for criminal activities
B. Can you think of ally other examples of acti\'ities that corporations might be
allowed to participate in? Expfain your choices to your group, then (O the class as
J. whole.
level II: legal Speaking and listening
Conversations in the Corporate World
Conversation Model
1. The sentences in the following chart are in the order spoken by e,](11 person
but are not in the correct order fOf a telephone conference call. Indicate the
order in which the sentences should appear for the conversation to make sense
by numbering them. Each block in a horizontal row must be numbered before
moving to the next row (I-Hi). \o\ie've done lhe first row for you.
196
I Dc, H,nna Snell""n, I
i CEO of Carlons, Inc.
, GooJ aftl'rnooJl, Dr.
! Kastl.:man. It's a
I to talk With
I you ag<lin, I.i.
I 2
j Fin>.', 'J.nJ
I
I
YI.'S, we ar.:. Y.:stcrday
YOU reminded us thai
officers an:
not personall}' liable
(or o(
! the
I
I
I
I
I Yes, I'm sme they ,,,e,
I
!
I rm 111); sure th,lt WIll
h.: A bri ... f
, U\.:nl':W win suffice
I
lor now. Won't ir, Dr.
I
;';.lstkmJn?
Corporations 197
Dr.lv[aija Kastleman,
H de legal Dept.
"
artons, nc.
Hl'llo, Dr. SndlTllilll. Mr.li,
,."hom we spoke With rcstl'rdJ.Y,
I:. on the line wilh us.
I
Great. I'm .surl.' that you
rl.'membl.'r that we ;,Ife verr
concerned about potential
li,lbility in the United States.
But wh<lt ;J.bout Canons. fnc.,
the parent Can it be
held liable in any action against
the disfribulion center?
The wore gmcmfl), worri!.'s me
;1 bit.
Yes, we're certain you and your
people are doing your best.
Uut if there IS a possibility til,H
the corporale veil could be
pierced. then Cartons, Inc ..
coulJ b.: held liab!.:. That
concerns liS.
Yes, if \ve neeJ more
information, we C;:lll then
request a m!.'morandnJl1.
,
I
I
I
,
,
,\Ir. Li,
Senior Partner, Li & Yao,
Wilmincrton Dcla\ .... are
0
The pkJsure is min!.', Dr.
Sndlman. How have you

3
:\Iso rlnt'. We've bl.'I.'Jl
makmg prngn'ss on tlll'
distribution center
incorporation.
I 5;liJ thai's gcnl.'r.lll}, lrul.'.
In most inslan..::es, the
corporal<.' veil will not Ill'
pierced.
I
I
I
,
I
I
I
!
I
I
I
I
.Again, as with corpor-,lI: I
offiws, p",cnr comp''''''' I
;1fC not generalJ)' liJble for
the wrongdoings of a I
daughter company.
I wouldn't worry. We art.'
drafting the articles of
incorporation so thai It
could almost nl.'ver
h;Jppen.
Th.:re ;Jre a!l\'il"s
,
exceptions to gl.'lll'r<ll
statements. I would be
happy to provide YOll wHh
a memorandum on Ih.:
current law and liahility

Of course.
198 . Ame' Legal English
2. Working wirh two parlncrs, reaJ the conversation aloud <1S) ou have ordered it.
One person is the CEO /chid executivc officerl of Cartons, Inc.. a major box
manuf.1cturer based in Europe, one person is the head of the legal department
of Cartons, Inc.. and one person is an American allorney hired to help set up a
distribution sUJsjdia,y ! ''claughter'' compallY overseeing placement of goods}
for Cartons, Inc., in the Uniled Stales.
I)' Now lislen to the recording oflhe conversation anu check your answers against
Ii' ol! Ihe recording.
Applying Your Knowledge: Conversation Closings
The conversation has come to a close. All Ihree parties arc satisfieJ with the
arrangement. End it by filling in the final blocks on the chart with appropriately
form.,! language and a request from Cartons, Inc., that Mr. Li call in a week and
report on his progress ill Jeafting the articles of incorporal ion.
\"'hen doing business in a foreign country, it is always a good idea to familiarize
yourself with the laws governing corporations there. There arc oflen benefils and
disadvantages that can be derived from incorporating; consequenll)', becoming
familiar with the laws of the state within which you intend to conduct business is
always a wise move.
The Entity Theory
A corporation is a legal entiry /a bod)' having rights and powers similar to thM of
a person! created by sl3tu[e J.nd separJ.te from those who own and manage il. In
the United States, state laws allow a corporation's creation for the purpose of
conducting business within state boundaries, A corporation can sue or be sued,
own property, make contracts for the sale of goods or sen'iccs, borrow anJ lend
mone}', ;!Tld purch.ISc or rCliccrn shares.
In some states, a corporation may even be subject to criminal liability for
homicide offenses (e.g . manslaughter, vehicular manslaughter, voluntary man-
slaughicr, involuntary mansl<mgnter. negligent homicide, murder). Indeed there
is a growing trend in the United States to hold a corporation liable for homicide
offenses that do not require intent.
There arc basically two types of corporalions: public and private, A private
corporation (also called a closely held corporation) does not sell (offer) shares
or stock to the public. A public corporation, on the other hand, is one whose
stock is sold publicly all a stock exchange /a place where shares of corporations
arc bought :lnd sold commercially, such as the New York Stock Exchangel.
Corporations 199
Corporate m.lJlagemcllt is two tiered: 'corporate officers handle the day to day
and directors dt.'lerminc major policy changes, Shareholders rrm'idt.' the
financing for (orporalions when the)' invest by buying shart.'s or slack. There ue
occasions when shart.'holders may vote on important company issues, but the im.
n;lct nne sh.m:holdcr CJn have is usually quite m,nginal unk55 he or she owns J ,
hr"e P(TCt.'llt'I
O
e of sh,lfes of the corporation .
;;.> o! (orplJr.lti:rls sh;ue in the corporate profils, but th.:rr liability
fllr the corp{lraliolls '1(lioIlS is limitd to the amount of rheir invl'stments, AI.
there an.- trends 10 hold corporate officers li'lbl..- lor cl:rwin a([s or olllis-
this Il<Isn't been exlt.'ndt.'d to cover shMeholders.
r\ y ... ar ago Tlbi({) Corporation was selling for S 1.00 a sh<lre, fana Drlln1l11t.'r
bought 55,000 worth. O\-er the Year, her stock bt.'Glnle worth S.:!,OOO,OOO. Two
weeks ago, fana, who is also the 'CEO of Tabico Corporation. sold .111 of her shares
because---her fortune-reller friend told her it "",IS a good timt' to sell. Last week,
a rapid serics ofb.ltl business deals, lilbico Corporation managed to lose
.111 o! irs 'lsSl'h pr.lc"llo':::'Illy o\-crnight ;md still owes it.s deblors 52,000,000. ThaI
huge liebt doesnt .1I1:ct lana DflIl1llller, however. [ven though she was also the
CEO, she acted in good faith (absence of intention to take 'H.h-anlage 01 somt'-
OI1t.'],:>O she Gill just ht.'r shoulders and go on vacation bt'fore she begins 10
St.Ht UQ ailother ncw (orporation.
The person or group that wishes to form a corporation mllst complt'te and
tIle Ihe corpor3tions proposed articles of incorporation f docuillent th;H creales
a corporalion). Since in lht.' United StJtes the power to illt:orporate resides not'1\
[he feJt.'ral but at tht.' st.llt.' level, those articles are flIed with Ihe ;'lppropri;lle Slale
oftlci;ll in Ollt.' of lhe filh sLlfes.
Till' requi;ell1t'l1[s for lhe formation of a corporation are suniLH in
most states tht'v follow the Uniform Business Code, It is llecess.HY to ha\'e
an indi\'idual or indiviliuals who function as incorporators. There is gellt.'rally no
or requirl'mcnt for an incorporator, ,mti his or her primary respon-
sillili!" is 10 eX:<.:llle [draft ,lOti compkte) a form known as Iht.' anicles ol"il1<.:orpo-
ration', which is Iht.'11 filed with the state's secretary of state,
For ex.lmple, if the (orporJtion were formed in Texas, the ilrticles of incorpo-
ration be tIled witll the secretary of state of the state of Texas in Austin,
which is the stale capit;l!. Although that statt: official is often c.dled the secret,ny
of stale, lll.s or hcr pm,'er is limited. The se<.:rt't.lfY of a state is not to be con.
fused with the federal secretary of state in vVashington, D.C., who is fourth in line
to become president in the ('Wilt of a catastrophe.
Finally, after ,111 other state regulatory requirements have been Illet, the bw
recognize.:; the corpor.llion as a separa!e entity.
200 . Ameri(, .. ega( English
In pairs n!\-il'w the following scenarios ;lIld aIlSWl'f the qllt'stions Ihat follow
each aile.
I. You an: the president of St;Jr Corpor;lIion. You como.' lip wil h all idea th,11
c(lu!d 1/1I.:n.',I,:;e rour company's profits by p!..'rcellt, t'Ven though it wouhl
restructuring the L'lltire YOLI don't him: time to caB;l board
',l!" direclors illeeting.It's import,1ll1 t!Llt mo\'e.: quickly In tho.'
company profits. Do you han.' tho.' ;Jllthnrily to takt.' this 'Ictinn since it would
be a nliljor change in policy? or why
") You arc in a large dcpartmt'nt store whell you stumble over a display Ihat was
left in the middle of the .1isle by a derk. YOll suffl'r a broken leg, losl' thrt.'l'
weeks of work, .md dt'velop an ulcer from tho.' stress. YOll discover during .111
of this tr,ltll1l<l that the store is OWlll'd hY;1 corpnratioJl. Your rriend tells you
III sue thL' corpor.ItHlIl thill 0\\'11., the dt-partillellt store. em you do lhat? \Vhy
or why not? Could rOll sue the clerk pl'fsonally in your leg,11 system?
3. You and five of your friellds decide to go into the business togelher
in Florid:t. Onl.' of your friends Ih;ll you form a corporJtion, and you
have filled out <l form titled "Articles of Incorporation." \Vhere and to whom
should it be senl?
Formation of a Corporation
:-,pl.';lking, the stale ofincorporatioJl shoulJ be the st,He when.:' the
..::orporation will be its business; flowC\"!.'r, even though they \\'ill be doing
business in I1lJny other Sl3les, Ill,wy corporatIons in the United States Me leg3Uy
incorporated in DelJw.lre (,lbbrcviated DE) beC<luse it is considered the most hos-
pitable state for business. Delaware's corporate ioJ.w is a wdl-derLllcd, predictable
body orla\\' that SOl11e of tho.' prohkms n( managcmcnt.
Contents of the Articles of Incorporation
The ,Hticles fi:u ('very (orpof<1tion must include the corporate name, which must
not 'lJrl';Jdy bc in lISC. For t'xillnple, if;l COl11pall}' in TI.'I1Il:.:ssec w;111tcU to USI.'
Xnbisco for lis n,lme, it would not be .1110\\'ed tn bccause that name is in
usc by another company. Each state k('cps fccortls of the l1;lmeS of businesses op-
erating within its borders, and lISU;l!!Y all problems 111 be .lVoided by;,l simple
telephone (all to the secretary to check on the availability of il name bL'-
fore any tiling has been done.

Corporations . 201
Occasion,llly, companies use nal1l':s that are so sil1lihn ttl one alrcadr in use
Ihat a sliit fur trade name infringement I use of a rradl' n;lmc <11-
re;ldy in l1sej is brought. In Tn-Coutlty F1I1I1.'.ra/ S.:n'lcc, fllC, (d/b/a Howard Fu-
Ilcral Home) 1'. Eddie HOII'(/rd Fllneral HOnle, fllC., 330 Ark. 789, 957 S.W.2d 694
(1997) that is exactly WI1;lt happenl'd. f;1crs, \\hich are r;lther complicated.
and the court's iudgl1ll'nt .Ht' Sl't forth in Judge Ne\\'bern's opinion:
+++
This is c trade-name infringement case. The appellant, Tri-County Funeral
Service, Inc. ("Tri-County"), which does business as Howald Funeral Home in
Melbourne, sought an injunction pursuant to AricCode Ann. tj71-113
(RepI.1996) to prohibit the appellee. Eddie Howard Funeral Home. Inc., also
located in Metbourne, from using the name "Howard" in connection \vith its
funeral business. The Chancellor declined to issue the injunction. Our determi-
nation in this de novo review is that Tn-County was entitled to the relief
sought; thus we reverse the Chancellor's decision.
In 19tj9, Roman and Wilma Howard began working for the Roller Funeral
Home in At some point in the 1950s they left that employment. The
funeral home changed hands several times, and Mr. and Mrs. Howard returned
as employees in 1961. A !'-lr. Robinson purchased the business while it was be-
ing operated as "!,-lcCoHum Funeral Home," and in 1968 t-lr. Robinson asked the
Howards for permission to operate as "Howard Funeral Home:' although the
Howards owned no interest in the business. Permission was granted.
In 1974, Billy Howard, l-1r. and Mrs. Howard's son, joined them as an
employee of Howard Funeral Home. In 1978, the business was sold to Justin
Jones who, in 1984, sold it to Rhodes-Madden, Inc.. the parent company of
Tri-County. In the sales agreement. there was a provision seHing the name,
"Howard Funeral Home." The ensuing bill of sale, however, did not mention
the sale of the name. Tri-County continued to operate the business as Howard
Funeral Home.
Roman Howard retired sometime during the 1980s. Billy Howard left his
employment with the business in 198tj. Wilma Howard remained until 1989
when hr, employment was terminated because of rumors that Billy Howard was
attempting to open a competing funeral business.
In 1991. Billy Howard was rehired by Tri-County to manage the business,
and he rehired Witma Howard as an employee. In 1992, Bilty Howard hired his
younger brother, Eddie Howard. to work in the business. Billy Howard died. and
Eddie Howard became the manager in 1994. In 1996, Eddie Howard's employ-
ment was terminated due to his apparent efforts to begin a competing busi-
ness. Wilma Howard then resigned from her employment with Tri-County.
202 . Arne , Legal English
Eddie Howard established "Eddie Howard Funeral Home. Inc.." a corpora
tion of which he and his wife are the only shareholders. Tri-County sued to pre-
vent that corporation from using the Howard name. alleging that the name had
acquired a secondary meaning and that it constituted an interest protectable in
accordance with ':-71-113 ....
+++
I. On your own, firs[ reriew Lhe (.IS':, thl'll outline the fa(I.S fmm JuJgt' New
bern's opinion.
1 Now, ilnSWer Ihe follOWing qUl:stiuns.
;1. \Vhen does it appear that the namc "Howard Funeral Home" WilS first used?
b. Did the bill of sale to Tri-Cou/lT)' colltnin a provision rding the sak of
the n;mlt' "How;lf(i Funeral Home"?
L. When did Eddie Howard jirst b.:gin to \\'()rh: lin Howard funl'r.11 Homc?
d. Whell did thl..' owners of till' HOWMd Funeral HOIllt' Jlrst begin to suspect
thilt one of the HOW;lfds might open a busint'ss?
e. Did Ihe court find that nilme"Eddie Howard Funeral Home" was too
similar to the n.lme "Howard Funeri]l Home?"
f \Vhat remedy was by (he COUrl?
In sOllie caSes,;J wrpor;ttion th,[t (hoosl's;1 nallle sil11ilar to the name of an
alre.[dy ('xis(1I1g corporation is required [() sla[e lh,l[ [here no connection Le
tw('('n them in advertiscmcoLs . .-\S;\ r6ul!, a ch,lin of stor('s (;[lIed Burlington Coal
F,1Ctory JJWiJYs states that it is not CUJlllt'Ctcd to Burlington l'.tills, a well-known
corporation and m"1I1ufa(lurer.
In addition to listing the corporate nalllt'.lhl' -.Irticies must ellso list the prin-
cipal officer, who is the president. A corporJtion must have ilt INsf IWo officers,"1
president ,llld il st'crt'[ary, but CCrI.lillly can have Illore.
Since a corporation is often fin'lnced through the s:11c of stocks or shares [in-
ownership in il corpor,l( iOJl j, the number of authorized shafes [shart's thaI
are listed in the articles of il1wrpof.Jtion/, thl..' classes of the shaf(,s [different
kinds of shares with YilfLOllS rights i111d bl..'llefils dl'pending on eli1SS/. and tht'
rights of the shareholders musL be sct forth [Iiskdl in rhe 'lnicks. For examplt',
there may pro\'isions for (uture preemptive rights, which would gi\'l' the initial
shareholders the first opportunity 10 buy fulure shares of Ill'W or additional stock.
That type of provision is to thl' shareholdl'rs' advantage since it would protect lhe
shareholders against the dilution of their interests in the wrpora lion.
For example, lohiln, i'vlariss.I, and Tomas are sh,Heholders of Ji\IT Corpor,l-
tion; they each have 500 shares of order to gener:1te .:tdditional Glpit;ll for
Corporations . 203
the corporatioll, 1,300 additional sh,lres (){ stock will be issut.'d. j\'(arissa dl'(JJes
no[ Lo ha prct'mpt ive rig,ht, so ha interest in the (orpor;.lIinn .:hanges
trom 33.333 pacl'n! (SOO QU[ of 1500 ::.hares) to 16.6 percent (SOD Ollt of 3,000
shares). Thus. her shM!..' of any future profits will be signitl(antiy lower.
E:](h Sl.it;: usu.lllv .llso requires that the articles of incorporation set forLi! the
and address 0(: the corporation's registered agent. Tht' registered ag.ent is
tht.' person who reccl\t.'s any leg,ll nOLic\!s on behalf of the (OrpllLltion, incluuing
service or proccs,,-rl'lllembt'r that the corporation (iln SU!..' ilnd be sued. This re-
quircment proU.'Lb the citizens or a slaLe within \"h](h thc (orporation is Joms
bllsine,"s by pro\-iding its citizens wil h the inform.llion \\'ould n('('d if tho..'Y
h,l\'e ,I of action ,lg;linst tht' corporation.
The n.Jnlt' and ,IJJress of each incorporator must be induded in th!..' articles.
,llong wilh the- dura [ion of the corporation. Unless it is otherwise stated, a cor po-
"Iives" Cor('\"cr; il exists in perpetuity. If a company anticipates a limited
bllsinc)s collnccLion, it is neceSS',H}' to st;lte cle,lriy the length of a corpora
[i\lJ1 \\'ill L'xiSI, or th.: law will presume th<lt it is perpt'tual in naLure.
I[ is <lisa l1eCl'SS;lfV to sel forth the purpose of the If the
lion is forllled for.t limited purpose, and therefore limited Ihe ,\f-
ticles must purpose just as they need to indicate limited duration. If
tht.'re is no specific purpose anticipated for the corporation, then the purpose- is
usually put in terms like "engaging in any ftmfrd business." In other words, you
can't set up a corporiltion willi the express purpose of breaking the law.
.\fter sevt'fal m,ukct surVeys ;1nd studies, Simb;t Ltd., hJS d('cideJ
enter the U.S. miuket in' order to sell its produ([s. You hJvt' been .IS
its incorpor;lIor, ilnd it is your duty [0 meet with an attorlle), in ordcr In st'l up a
C{lrp!lrat[()I1.
I. In pairs, m'Ik..' n list of the information th;}t you would n;[vc 1O take with you 10
the office.
2. Compare list It) [hill of a partner. Do you have the sallle information?
Once vou have "our list, consider the following information: Simba [nternatiOI1;\l,
Ltd .. to ;etJin the same name in the American market thilt it uses else-
where. Simba Ltd .. hJS decided to isstle twenty thoLlsand shares of
C01111110n stocl-:: ,md wishes-to have a prov'[sion providing for preemptive rights
for its sh,m:holdt'rs. They have designated Jason y..1llg ,IS their prcsident but h ..we
made no further decisions as to officers. Simba International, Ltd., does not know
how long corpor.lIion nt:eds to be in existence but is very clear as to its pur-
pose: importing gorilla skins, live p,lrrots captured in the wild, zebra skins, ,mti
the skins of snow leopards ..llltl Bengal tigers.
204 AmE 11 legal Engf;sh
J. the addition.]1 information ere,He new concerns rh.lt should be onlJeu 10
your jist?
-I. Do you have sufficient intcHmation 10 Sl't Up;1 corpor,Hion? If not, what else
do you Ileed?
5. In your country is it leg,d to dl'.d in gorilla skins. live parrots captured in the
\,\'dd, or the skins of .SIlOW Icopards ;md Rl'llg,\I tigers? It isn't in the United
arc protl'ceo hy bl\'. Dut's this C.1U.>;l' problems fcu VOLJ ill
Incorporating Simba? '
6. Whal .ltivice could you give Silllba IlltcfIl,Itinn.ll, I.td.?
form, is a sample of il fOfm U.'iCU 10 draft Jrticles of incorporation. Tn
tIllS exerCIse, lIsten to the taped conversation .md prepare;I rough draft (i.e., fill in
the blanks) of the articles of incorpor;l!ioJl.
ARTICLES OF INCORPORATION OF ___________ _
:he un,uersigneu subscriber to of Incllrpor;uIol1. a person cumpctent ru
Lomr.lCl, i1en:hy forms:1 corpor:lIiol1 Ullu!.'r !hl: nrrhl: SI:.!!e of
ARTICLE I
Nr\;\IE
The l1all1(' ofrhe corpofJ!ion b.: _____________ _
Lilircu Ihe SI;\le of
(general).
ARTICl.E II
NATURE OF BUSI:-.1ESS
---___ Of any ,!Iller enunlry. terrllory or n;Jlill!1
AJ{TICLE IT/
CAP1T.\L STOCK
The nw\"imulll number of shares of ';(odi: th:1I rhl'; l'1lI1111r:uin/1 is ;llllhnrizeu [(l ha\"e llutS[;lnUJllg
r er sharl' {YIIU may rJise the \"alue ifYIlll wi.,h I
Corporations . 205
ARTICLE IV
ADDRESS
Thc \lre.:t ,11' Ihe initial r.:gislered uOiee of thl: curporation be
_______________________ . :lnu name nfloe illili:.!1
ARTICLE V
SPECIAL PRO\,SIONS
TIl<" sl\1d o( Ihis corpm;lli'lll is inlellLh::u to l.ju;Jlify unuer the requirements nr"Seclion 12--1--1
,II' the Illtern:.li Re\"l.'l1ue CIlue ;JnJ lh.: regulation., issued lhercumler. SUl.:h may he
ncces .. sh:.lll he uC':I11I.'J (0 h:.m! been l:lken by the ;Jprn1prt;Jle nllil:l'fS tll ar.:eomplrsh lhis
cll1npliann.'.
This curpor:llinll \h:rH .::\i.'l
a) prrp.:wally. ur
ARTICLE VI
TERM OF EXISTENCE
bi for:l spcl.:ilic p.::rillu of lime: ______________________ _
(Chllme one oi the
ARTICLE VII
LIi\I lTAT10N OF LIABILITY
Each uire(wr. swd..:lllllJer anu olTicl.'f. in consideration fur his \<:nic.: ..... sh;JII. ill tht' aosenel.'
of fraud. pe iruJl'mnified. whether Ihl.'n in orfice or nOI. for the fe:l\(mahk ..:nst anu I.'XP<:IlSl'S
inL:llTTL-o by him in (OIm<:clil1n with the defense of. or for au\ ICt' e(llIl.:cming any daim
\lr pfrlceluing hruught Jgainsl him by of his berng or hJ\"rng Ot!l!n:1 uirel.:lor. s(lII::kholuef
,If IIIliL'l!f ,),- the c"rp'lr;Jlioll or 01 ;JIlY of lhe L:lll"flllraliull. \\hClhcr IIr nOI wholly
,'wlIL:lI. hllh.: 11l;I\imul!le:\lcnt pcrllliHcd by law. The foregoing right "r illdel11nilicuil11l \h:lll
he iTllhl\i\"e of I1ther fighls to which any (Iireclur. slo..::kholu.:r or ,ltTicer 111:1)' be emilku
;IS a ll1:lller III law.
VIII
SELF DEALING
contfactor nth.;>r lr;msaelilln bClwecn lhe corpor..ltilln anu olhl'r l.:orpllr.lIions. in Ih<' ;Jbsenec
Ilf fr;ruu. shall hc alfcl.:lcu or im':.!lid:llt:u by [h.;> facI llr:1I Jny Dill' or mor<' of lht' uifeclOfS l)f
Ihl.' I.:orpuralilill is or ;lfC interesled III a COnlf;Jct Ilr mlOsaclion. Ilr arc uirectors IU ollict'rs Ilf
<Illy 1l1ht'f 1IIrpnr:uion. :tnu .111)' Jircclnr or uirectors. inuivlthilly Of jllimly. 11M)' be ;J (If
p:ll1i<.'s 10. Ilr Ill:T)' be intefCsted in such commCI. :\ct or trans:lclillil. or 111 any way connl'ch:'u
Wilh p.:rsOIl tl[ p<.'fsllns finn or corporal ion. anti <,aeh anu e\t'ry p<:rson who m:.!}' bl'CnJ11e
J direclor Ill' Ihe eorpor:llinn is hotr.:by relieveu from :::my li..loililY lhal mighl Olherwise c);is(
206 Arner Legal English
l"rol11 II ilh rhL (IIrpnr;lIloll for ,I]" him_,dl ur :111\ Ilrm. ;I.\_,nci;uiml
or Lllrporallllil ill which he hI.' ill :.lIly way direcWf of;hc Lllrpnr:llioll
\"Ill.: UP(l1l ;my 11'11 Ii rlrl' (llfpnr;lIion wirhllur reg'.mJ hi Ihc [":1(1111'.11 hl' i, abo:1 .
Ulrl'(lur ,If ,'r l' 'rp' 1f;lli,m.
. -\J{TICLE IX
OF DIRECTORS
Tlli_, corpor:lliull l1Iillll1l11l11 til' "lie din:(l<lr. Th,.. inilial Il,;ard
.If Lllrl'(lurs culisisIU(:
__________
__________ I);-\\IEI
ARTICLE :\

WIT;\iESS WHEREOr-.lhe un,ll'rsign<.'d hh !JLn:11I1111 h;rnu anu ,o.:;d
STATEOF _____ _
COUNTY OF _____ _
___ UJy uf ______ , 'ycIO. ___________ -
____________ I:\:\\IEI. Publi..:
ISE.\li
SI,Itl'l.1f ___________ _
o\ly Expircs: ______ ID..\TEI
Corporations . 207
On your uwn, in writing simplify Artide VII of Lhl.' ArLkles of Incorpor;ltinJl
"bore. esc very simpl.;:, b.1Sic sentences ::rhhough your simplificItion I,'ill sound
r"'pl'litlv(' .
01 igin;1i: [;ICI1 difl''':1I1L $tockholder and officer, in considl'fation for his sen'ices,
shall. in thl' of fr'lud. b .... inucmnified,
SUllplified: Ihac is fr;Hld involved, l'.!ch dircclOr, swckhLlldcr, or ollico..'r
sh,lll ht' Sl'curl'd ,1sainsl dan1;lge, loss, or injury,
Changes in the Corporate Structure
ChJllge
s
in corpor,lIl.' struClUre can be nKldl' in a number of ways besides th .... ob
vious" killing" or termi nation of the corporation. Tht're <lfe tour generic Illl'lbods
of ..:hangl':
J. consolidation;
-, merger;
3. assets transfer; and
4. reorganization,
A. consolidation oc..:urs \\'hen two corporations ..:ombinl': bOLh arc dissolved,
,llld both lose their itkllLity in.l nl'W corporate entity. In formal kgal English,
..:onsolidalinn is a "till ion, blending, or coalescence of t\\-'o or more corpor.1tiollS
in one curporate whereby, in general, their powers, rights, and
privill'ges inure to, -.llld their dutit's and obligations devolve UPOIl, ,l nl'W org;llli
zalillll thus (alied into being." 19 ,\m. Jur. 2d CorponlliOH5 250!),
For cx<\mplc, if two corporJtions, Greystone ;lIld T,niled, wish 10 consolidate.
ther hOLh (e;lSl' to l'xi:;t, thc nl'W corpor<1tion Tarstonl' l'Tlll'rgl'S;
,\ + Corporation B ;:::; CorpOrJtioll C
A merger or" ..:orporations consists of a in which one of the (On-
slituent ! c011l[Joncnt J (omp,lIlies remains in being, absorbing or "merg.ing" in it-
sdf the other ..:orpor.Hion or corporations, In this case', if Gre}'stolh:' Wishes 10
Illt'rgc with TMht.'d, Greystolle will (eaSe to exist but T<lfheel will continue to exist
,1Ild will be biggl.!r and stronger-or at least the shareholders hop'" so.
Cnrporation A + Corporation B;:::; Corpof3.tion A
In other w(lfds, ill ;1 consolidation, both corpor;ltc entities "disappear" i 11 tht.'
cre.1tion Of;l Ilt.'W clllilY, In a merga, however, ont' of the corpor.\IiOn5 conLinul's
10 exist. /u\'ing. "ingested" the olh ... r.
208 . AT Legal English
.. \n lransfer is merely Ihl' sale or lea"l' or property br Olle corporation
to anolhl'r.lfT;lriled hots a SO;IP !;\Ltory Ih;lt Greys/olle \\'oldd like to buy,
slolle C;11l the fJc[orr to T'lrhl'd and still cUIl/inut' to he an indepcndent
corporil lion.
This transler of proper! y is dilTL'ft'1l1 from I he of propel fy in consoli-
dations.:\ clll.'>olidatl'd lakes nut only the properly o( its constituenl
corporatIons bUI a/",o their liabilities and obligations. In '1Jl <Iss!..'t tr:ms{er, the
\'eIHIcl' ! bUYl'r/ IS notliablc ttl[ Ihe obligal :Oll'l oj" tht' yendor / sdh:r I.
In the ;ISSl'ts l[a/l:;fl'r example abo\"l.', il '1:llhl'd (tht' \'endnr) has a COntract
\\';[h Queen's Own to product' a speci;d pine SO,IP in the tlClorr th;lt Gre}".':ilolle
: Ihe ventil'e, hought, would !lot required to produce the sO"I' ror
QlIel'n's Own. Of COurse, Tarhed would still h,n'e the obligation to QU!..'(.'n's OWI1.
An exceptIOn to that ruk would come into Pl;IY if (or some reason, Grcystolle 1'01-
III/fliT;!.!' c1sS///IIcd T<lrhed's li<lbilities.
Another e.xception to the general rule that li,lbilitil's are not transfern..'J is if
the transaction was fraudulent to Ihe (reditors .
..\ reorganization is not the I,,-olllhining oj' exisllIlg corporations but, rOll her,
the out (br proper agreelllellts and kg'II prOceedings) of a business plan
or schelll!.' for winding up thl' a{(,lirs of an insolvent IbJnkrupt/ corporation Jnd
organizing a new corporation to take O\,er the business ;tnd property of the dis-
corpor<ltioll.
Reillember our imagin;lIT companr the Tabiw Corporation that OWed its
creditors Under <l reorg.miz,Hion, a !lL'W corporation. Glowco, could
be /(lrlllt'd to take over the properties ;mQ perhaps payoff ils creditors.
Insolvent Corporalion t\ - Pott'ntially So/vellt Corporation B
On your Own, review the definitions above 'Inti name the typl' oftr;llls,Ktion in
e,l(h of the fOllOWing When h;1\'L' Ilnishl'd, Cllll1p;ue your answers
\\'ith.1 Ileighbor.
L 5imba Internation.d wants to join I\'ilh Uaglw.:ra, Inc. RIgheer;l, Inc., \''o'ill IlO
longer exist, though 5imba International will.
ilagileera, Inc., h'1Slud st'vere t"iI1;lIlciaJ setbacks. The CEO thinks th,H he em
still save the flrm . ...\ group of investors think ther can run the corporation
much more efficiently.
3. 5imba Intt'malion;11 wants to purchasl' choice real property from Gaght't'fa, fnc
"':I. Bagheera, Inc . has had Sl'vere tinancial setbacks. Bagheera, Inc., will wind up
its atfJirs and then organize.1 new corporation to take over the business.
5. Simba International wants to join with Baght't'r;l, Il1c., to form ant'wcorporation.
Corporations . 209
Takeovers
,
- In nw\' wish to ;lCquire or take over another corp()- r 501111 .' ("Ises Ollt.' corpora It " bl-h
n " .' I' be Jcquired lw Jllother to csta .\ .' For example, olle corpor,lllon m. _ . . _.
.. I- ',.11 ror one o( its (,Ktories. Somo.:trmes a large wmp'ln} dedlcHed SOUfL.e () 1ll,1 t.:J ,. S
-
' - -I - - - J 'I,-minate a smaller competitor. At other IIml's, a group 1" WIsh to IlurL l.lSe;1n t.:
m".. <"Ition becallse Ihev ted they can generate of investors \\ Ish to buyout ,1 corpor, .
'revel1ue than the current managell1enL .
,hell, "'" "II ",keo"m are Ifiendl),; ,here arc
which one CO;IIP,111\' rna" tn' to acquire control oyer anorher by t at 00
. '.' h I '\' voclbuhn' e'Llked III the rn .ltter of
",slliciouslv w'lIlike. III lilCt, a\\'o e nL \ , "'I bl k k 'h' I'" 1
' - IF' 'J np L' ac - '010 re er l . . .',' lns lobtalllln!! a Ill'\\.' corpofatlOn. or ex I, CI
at.:nUI:SI H I' 0 0', _,_,_'"
-I ... h 'I' - k' . ttack 011 :.omeolle e se scarp r" t: .:. c . Illl'one I III tl<1tmg ;1 Ostl t: t,1 cover ,1 .
so . '- b - , "J'o IS and only;\ tl'mpOr,lry part 01 Ihe "O(;IU- These terms arc USllless lIn , '"
uhuv, but they pepper t It' angu.lge l r I I . , of -ontemporarr corllorate IJ\\';t'rs and pro\c
b'lrJlinu to the uniniti'Hed. , 0
- h d'l- '(on' to match c;](h v ... ith Oil': o[ follOwing busi- Use the dues In tee 1111 I :s
ncss idH.lI1IS.
a. white knight
b. nuclear war
c. crown .iewels
d. shark r('pellenl
c. killer bees
r. strike te.lm
g. midnight raid
h. poison pill
- licitor [person who obtains voting <Iutillirity for
I. .-\ J.I\V /trill,;] pro:-..' so . d _ h'
h I 's Inr'sl 'lIld'1 public rebtlons firm prepare to Pltc rn
ot er pl'Op C. S , L: " . d d
. , - ,. tm 'nt b'mk when the alarm IS SOlln e to say(' WIth the company.s 1I1"\e5 t: ,
the"hi\e." . " .. "
2. An alternatIve mergtr no , . ," bleman" toward whom a corporatIOn S 1I1,1I1.lgl.:-
Illent is (rienelly. '. _. .'. I 'C"
.. 1'1' I - l' ,I investment Dankers, the tm.II1Lhl o( Il..cr, 3 .. \ tcam conslstmg 0 ega LOUl .
:md the direclOrs of the t<1keover raiders. ','. . .'.
. . .. I .' j, epel the hostrle predators 111 ot an .ilt,lt.k
4 or , '. "
"'. 0 of J companv s shafes bv the s
- A Glkulated JtlutlOn or ' ... ' . h Id
:>. '-. . , d off takeover, usuall\' dIslIked by sh,ue 0 _ ottlClills 111.111 ;Ittempt to \\ar "
(rs, whom it hurts _,.\ . -I' <1'
- - h' d to gain control when the StOLt, ExL I,Ul.,c 6 A timc-setlsltl\'t' tee nlque lise .
" b" b d" for the night (between 4:00 1'.:\1. ilnd 10.00 ,.U!.1 has t'en put to e
... The main of the target company _
,- I I' t l fa. tarO"ct COlllD.lIW ch.1Os. s. batr es or con ro 0,., ..'
210 Ameri"" rgal English
-----------------
to Ille t.IPCtl cOllwrs;llion ,1I1d in writing ,lIlswcr thl.' [ollowing qucstions.
I. il
I. What words describe Sp.IWJ ,mJ Drum:.::o's relationship to Bluestocking?
") \\,h.lt is tlie betW!:e!1 ":OQhli,lliol1s?
3. Is one of Ihe corporations LInder al t,lCk? \Vhich corpor;ltion is an;lcking.?
.1. Who would Sl'rH' as sh'lrk repdl:.'lll?
='. the poisoll pili? \\'hy?
Termination of (orporate Existence
The dissolution of ,\ corporation is ,I termmation of its eXlstencc .lnd extinction
as an entity. Since the corpor,l[inn no longer exists. no obligations em exist nor
can H.lbility be imposed. 5'n..:e thl' states ..:re;1(L' corpo[<Itions by ch.lrter. only thl'
stJtc- in which a corporation has bl'l.'ll incorpof<lled has .llilhority to dis-
soh-e tll.lt coql()ration.
The methods by whi..:h .\ corporaLion nuy be dissolved ,Ire exclusive; a corpo-
ratioll Illar not bl' terminatl'd in oLht.'r m.lIliler than the lThlilner prescribed
by statute in the Slate- of incorpOrJtlOll. For ex.lmpk if a corporation is formeu
undL'f the laws of Rhode Island, then ill order to dissoke the corporation. the
state law of Rhode IsI;:lJ1d for dissoluliolls muSI be followed. Only then would
Island issue.1 (ertificate of dissolution/an official do(umcnt from the
slate decl.iring that lht.' corporation is '\kld" and no longer doing; busille$s ill
thl' stall.' I. dissolutiun is \'olunt,lry, but under sumt.' circlilllstances, it
call be innllullt'lrr.
Consilkr the following suit b:;.1 shan:holdt.'r for dissolutioll of the corporJtion:
+
Gimpel v. Bolstein, 125 Misc.2d 45, 477 N.Y.S.2d. 1014 (1984).
corporation invol'led in this case was a family corporation, which,
rather than pay dividends. distributed its profits as salaries, benefits. and
perqUisites. Gimpel. the plaintiff, was an employee in the family business dis
charged for embezzlement: however, as a family member, he stiU retained own-
ership of his shares of stock. Gimpel sued for dissolution of the corporation
aUeging that its of not paying dividends was "oppressive" behavior
by the majority.
The fact that the company was making a profit was not at issue; the man-
ner in which the profits were distributed effectively precluded Gimpel. from ever
receiving a profit from his shares. In other words. though a shareholder in a
corporation could normally expect to share the profits. Gimpel was barred be-
cause of a majority agreement on the maUer.
+.+
Corporations 211
In writing, .1Ilswer the following qUl'stions about the ClSt'.
I. Is it f;lir to deprive Girnpd of tht' profits thJt dle other shareholders
") Should [he CKt t1wt he embezzled from the company ai"iect his right.s?
.' W11;\I do you think JhOlIl the ideJ of withholding Gimpel's share of the profits
until ill' pays back thl' amount he embezzled frol11 Iht.'
.,I. \\'h<11 if he WCfL' nut gu ilty of \\'ould th,lt .1lTecl your
Outcome: ThL' court \\";]s unwilling to order dissolutioll in this GISe, though rt
indi":,lIcd in its ti..:cisilln that;l corporation IlIrI)' be slIbject to dissolution if the
majority fails [0 act fairly ,lnd thilt failure to so act results in oppression of the
What the court did was order the other shareholders to find some \\'Jy
tor Gim'pcllo sil;lre ill the waS slJted in the form of a mandatory in-
jUllction ! order bv thl' court requiring a part}" to comply with the ordL'r or sul"fL'r
const.'lllll'nCesl. However, one of the remedies av"ilable to Gimpel if tilL'
':;)fpor,llioll :lrd nni finll way for him to share in Ihl.' profits was
Problems That May Arise
Since.t corporatIOn is <I legal "person," it may be held Ii.lbk for many, rf not ;11\,
otTenses /01 which all illJividu;1IIllIlY be held liable. As a result, tort li;lbility <Ind
criminalli.lbllity art.' Important issue:> to consider when doing busint.'ss in the
L'llitl'd Sl;ltt.'.".
There mav even be political problems that may 'lrise. For 1.':\-
ample, tht.' Stah.'s has passed the Helms-Burtoll Act, which would pt.'n.llizt.'
fort.'il.!;n busilll's::.es thaI opt.'r;lIe within the United States for Joing business with
if that activity involves properties or ::Issets seized from Al11aic'lI1 (itizells
wiLIHlut compl'n";,llion. Sevcr,ll nations (including Canada ,md ,\kxico) and
group:-; 11,1"L' 1lI.lIllt,lind Ihat this law violall'S international /;J\\' .!lld the
spirit of several internation'll treaties regulating trade. The resolution of the prob-
lelll rellli.lins to be worked out.
Use the legal thumbnail'lt the beginning of this section [Q determine if the
following statements are True (T) or (Fl.
1. A corpor:.1tion C1I1 own property.
2. Directors of a corpor,ltion handle rhe d,lr to day business of the corpor;Hion.
3. The articles o( IIlcorporation must be tiled with the st'Lretary of state in
\Vashingtoll, D.C.
212 . Arner I.ego/ English
-I. ;\ corporation any name il wrshc.".
5. ;\ corpoLltlun Gill only engage ill 1,lwful business.
incorpor,ltion, a corporation is gr,lll1ed certJin rrivilcg;cs by the state III
incorporation occurreu. [n order lO continue receiving those privileges, the
tJlIJcei'S ;:nd Jlrectors of the (orpora[ion must folio,,' the st;He's rl'quln':llll'lllS for
lll'lintainin3 wh,\( may he tCfllll'l1 corporale integrity /standards o( CUII-
duct fix cC)rjl{lralions!_ For ,:xamplc, I hI.' orficers ,Inti Urrl'(lOrS Illllst follow thL'
ruk's they L'S[,lblishl'd in IhL'ir MUclcs of ill(Orpnr;1tion. If the Oftl(L'fS .1ild direc-
tors (";Ii1t(l m,lintain corpnratl' intl'grrtr, thcy (an ill' subjeci to till' piercing of the
corporatc Ycil, which is .iust aSltnpll'.lsillll as It SOlZllth.
Piacing thl' corpora:e \cd is the process or impnsing li.lbility for (Orpor'HL"
,Kti\'ity on a person or an cntity other th,1\] the offending corporation itsdf. Re-
illr.:mber tlut in gencr.ll, incorporation isobte; both p,lrcnl companies and
"iduals from [iability for .::orp{)rate Howe,,!..'r, the ignore [he
corpor'll\.' elll ily ,llld !Ind organ iZL'rs ;lnJ m,1l1;lgers of thl' (tlfpOr,llinJl liahk un-
da (efl;lin (irClllll ... t,IIl(l'!>.l.et .... louk;1I ,I s,IJllj'ic stalut!..' Ihat 'Iddressl's this issul'.
:\11 ,1!..'11I having prim.ur responsibility for Ihe Jisd1;lrgc of;t dutv to ;lct
poseJ by law on ;J (ofporatioll or association is for
Lo discharge the duty to th!..' same cXl\.'nl as if the duty were imposed
by law directly on him. Tex.Pell.Code Ann. (1974)_ (Texas statutorv
law is being recodified, so this section numbef wi [I (h.lJlgc.) .
Orally paraphrase the abo\'e slatute for a dicll!.
Piercing the corporate veil call be a very import,lOt issu!..' for foreign comp;lIli!..'s
doing business in Ihe l'nih . .'d States bL'c;lllsl' the p.lrL'llt comp,lI1Y lll,ly be hdd rL'-
sponsible for the actiom o( its subsidiary or d.IUghtCf corporatlOll. lust;IS in any
business venlure, J littll' ad\'Jncc planning and will gl'llCf'llly avoid mas[
prohlerns. Wh;1I then mighl allow ..:;reditors or olhers to pil'fCe the carpor.lte veil,
and why is IhJt $0 imp(lrtant?
Remembo.:'r the im;lginary CEO J;lil,l Drummt.'f who n1;]de 52,QnU,OOO
though her corporation could not its debt of two million dolhlfs? If it could
be found tholt the corporoJtc requirements were not fo[lowed. the creditors might
bt:' able to pierce the corporate veil./an'] might have to come back fro111 her Va'-Gl-
tion and might be forced to giw up her to the (reditors.
There are severdl problem ;lreOiS that mightic'ld to a piercing of the corporate
veil. These areas are easily .\Voided by taking a little cafe in the initial stages of in-
corporation and the running of Ihe corporation. The following is a brief lifit ilnd
is in no way intt.'ndcd to he all inclusi\'L'_ '-
Corporations 213
I. InaJcquillc capitilli:tation. The corporation nceds to han.' enough C<lpitill
for its fore:;ee,lh[e husiness needs. If },rark wishes to establish a calering firm
(Food on thc Cn.lne) but only has enough monq from his invcstols ihis pMcnts
and ncig;hborsJ to Oll'et the expenses orthe first month, he Illay bc "guilty" of in-
adL,t}lIate capitalization if something gOL'S wrong with the corporation.
2. F;]ilure 10 follow corp orale formalities. Corporate formalities include such
things as making sure that shares .Ire actually issucd. tJking cart' to maintain cor-
pm.lte paring allnual [axes, and holding regular 'lIlU annual shareholder
meetings. T,,'o afler starling Food on the Go. Inc., 1\lark is doing very wcll-
IllO \\,dl. :\ow i-.lark is \'ery busy and forgcts to submit wage, business. and n.:'al
cs[ate taxL'S for thL' nL'Xl two ycars. ;'-Iark may bt' pt'rsonJJiy li.lole ior thc back r;lxes.
3. FrauJ. Thl'r.: is a wide range of acts that can be constru.:d as fraud [inten-
tion'11 d..:ception that CJUSL'S haflnl.In cases where fraud is In issue. both facts ,lIld
intent are important. For cxample, a corporation thilt is set up for fraudulent pur-
poses would be susceptible to having its corporate \'eil pierced.
The norm.11ly hesilate 10 pierce the corporate vcil some fairly
signific,lIlt d,l\ll,lge or has occurred. Usually allthrce dements of th..: .Iltcr cgo
doctrine must be prcsent before thc veil can be pierced.
I. The sh,lrciloldcrs control the corporJtion in such a ".:ay that there is basica[lr
no distinction between the shareholders Jnd the corporation: the corporation
becomes tilt' sh.lfeholders' alter ego.
"I That control is misused (fraud, criminality, etc.).
3. The misuse of that control is the proximate cause of Ihe alleged
It'l\ return to lana Drummer now. If ,m invcstig.llor founJ menll)S Ihal
provcd th,lt hill;' intendeJ to misrepresent the corporation's slrengths so that shl:
could make de,)[s that she knew could not be honored but would bl'lldlt hef. she
could be found guilty of fraud and forced to accept persollililiability for the COIll-
P,lIlY's losses. She might evellcnd up in jail for insider trading' using knowledge
obl,linl'd from inside a corporalion for stock tr'lding[.
You Jre a ne\\' 'lssoci,lIe in a corporate bw firm. Yom aunt and uncle, \Vho set up
J corpor.ltion s(:"erJI years ,lgO for the purpose of running: their ice cream p'lrior,
,15k you to look ,It their corpor3te books. You note that there h,we not been regu-
br board of directors' meetings, nor h,1\'e there been any sh;.lreholder meetings.
Also. a dose inspection reveals th.lIthey are operating their business with no fi-
nanci,11 reserves or liability insurance. In YOlll mind's eye. you see some customer
slipping Oil a spot of pistachio fudge swirl ice (rNm and suing your aunt and
214 . Amen'( English
-------------- -----------------
llI11:k. \\'h,lt rou thelll to Jo to limi[ vuln .... rahility? Sin(c.' you
wallt thc.'ll1lo undl'rstand ex;\(tly wh,lt ),Olllllean, writl' thc.'l11;l shor[, informal
].:tla. \\,,,,'\,(' st.1rted it for
Emily :mu I'knry G.tle
67.1 Grand Juncllllil LlIle
Lawrencc\'ille. KS U677
Do.::;lr .\Ullt Elllily alld Ikllry.
Dorothy Gak
[9 lllrn:u.hl Alky
K;ms;]s City, hS -I6Y:)7
[Dale I
It nict! 10 [;llk with you buth Ihe phone. r've had:1 chance to look
at your book ... ;IS you asked. t nnliced a cuup],: tlr things wanl to r::JJ...:e
earc of ;lS soon <IS possibk.
jcolHinuc un your 11\\'1} fmm here!
Your mece.
Dorothy
Corporations 215
Let's lOOK ,n Ihl' l"ollowtng GISC involving an attempt 10 pierce the corporale wil.
COII::Wllcr'j Ctl-Op o/W(I111'orlll COllllly I'. Glit'll, 142 WI$.2d ..J65,4t9 N. W2d
lIt \ 1981))
Fa(ts: Olsc.'n.thL' defcnd,mt. set up a corporate accolln\ ior his corporation,
ECO, with Consumer's Co-Op, which e:-.tenJed ECO (rI.'Jit. At the time of in-
corporation, tht.:re was sufficient G1pitalization. Later, [CO began to have
probkms, but Con:-;ul11cr's Co-Op (onlinueJ to cXlenJ. teO credit ahhough
[CO to pay its ;lCCOUIlI on timt.'. Though ECO's board of directors met
Jour or fIve tmIeS;\ week, tht.' only formal records or me;,'tings were to deC! 01'-
ficers a.nd to authorize a ChJpter t t bankruptcy la reorganization of the cor-
poratt.' assetsj. Consumer's Co-Op maintained th;lt ECO was inadequately
(apitalized <ll1U sucd to "pierce the corporate veil" to nUke Ols,;:n pt.'rsonally
li,]hk for ECO's dt.:hrs 10 COIlSUIl1t.'f'S Co-Op.
USI.' the c:lse 5ull1ll1J.rizl'd above to complete this eXl'rci:>e.
1. Di\'ide into two groups.
1 Choose a client. One group Will <lct as the attorneys for Consumer's Co-Op
and tht: otht.'f group for Olsen.
:.. Revie\\' the f;lCtS ,:lIld determine if additional inforlll<ltiolJ is needed in order 10
wril<:;l mCJ1l0rJIlIJum for the court .
..J. Revil'w the following questions and. as;] group, prcpareJ preliminary memo-
r;ITldul11 .. \t thts roinl dOll't worry about the lack of sourccs, simply provide a
research oUlline with proposed solutions. Focus on the [,Icts th;lt f;lVor your
client. However, don't forget to .ludress the issues that [he opposing :Htorneys
will rdr on.
:1. M what point in ECO's history should the courtsiookin order to tkla-
minL' \\hethL'r \\",1$ inadequatc capitalization?
b. Do you think ECO obst:fved the corporate amenities?
c. Do you think the facts as set forth warrant the (Ourt'spiercing the corpo-
rate veil and holding personally liable for the corporation's debts?
d. What should Olsen haw done to minimize Jnrchanceofthis ofb\\"-
suit being brought agJinst him as;[n individual?
:\fter youl1<lw finished preparing the preliminary memorandum, your
teacher will (ell you outcome of (,1St'.
216 . Ame n Legal fng{i5h
Modals and Semimodals
z\lod,lis an: words, such as III//:,t, 1I'lfI, shollld. lilli, or lIIay. th,lt modify the Illean-
of .11:..' :nain verb, T!1L'Y JJJ information about ,lbilit)', possibility, necessil y, or
pnbabdi!y. ,\lod,l!s form <1 unique Sl;!1Sl'f of and Glill1ul occur in ccrtJin
gramm,HI(,]1 tiley must be replaced with a semimod:1J, such as
11tI1"t" /0 [or 1/1/61 or be tlblt' 10 f(lr (1111. Let's look;][ just ,1 few strllC[Ufes ,md how
[hey inter.Kt with moJJIs in normal, llolllcgallangu'lge.
:
Strucllln:
;
I
(vcrb forlll)
!
modal?
I
Example Explall.ltion
i Jedarali\'e
I

I
Modal: The juJ!,:e l'.JoJ,lls haw nn 5 for third person
I
i.prl!Sl!1l1 tillIc) Cllil dismiss the slIlgular pres<.'J1t rorm!i.1\.lotb/5 arc
i !
;Vol/lJlodal: The followed by rhe Simple form
I
I
I
judg.e t/i.\misscs the (infinili\"C wirhout To before vcrb):
I
CI.'l'. di.<J/Ji.-:.-:.
,
inlpl'rdl in' I IHl
I
HI.." ,I/IIt: III tkseriD>.? have 110 inllnitiws (tv mllsr ,
I
,
(sil1ll'k li)rm)
I
the court by 15 incurnxl) to form illl pCr;ll;\cS ur
I ncxt week! subjun(livl's.
;
1 progressive
,
I
She "rwing Iu ;\Iodab have no .illg form:
I
n,)
Ijug form) study ever)' nigh!. semimodal must be useu.
! an
I
no
I
/111151 be lIull.' til 5in(c a .\imple form must follow J
I auxiliary \'erb JL'scribl' the (ourt Illotbl (must), two modals call1lot be
comblll<.'d. ! or modal ! syslcm.
,
I (slIl1pk 1i.)fIll)
,
i
Using Modals to Express Advice or Suggestions
j\lodals in deci<lf;1ti\e sentences can also be used to express different levels of JJ-
viet' or suggestions.
,
,
,\Jollal in ()et.:!ar;ltiv..'s
I
Example
I
must n"'" h",,'i,l-obl;ga,;on ! "'''51 pa" 'h' b,,, exam bdo" 'hey
i
or IlCCCSSII)'; reqUired by c,ln pr,l(tKe III K,ms;]s.
1;1\\' I
,
should iorcctul hut noL required: Evcn'orlc of,l rcionl' sJwilJd hirc.1ll ,
I
speilkcf expe(!s bUL of courst.', ir is not required by Jaw.
utTered to bc tJk..:n
might polite ad"i..:l'; 5pc;Jkcr Yes. Hilrry is J good lawyer. but you might
would IlkL but docs not to talk with Phyllis; this is her speci3lty.
agrel'lHent
":.Hl politl' ncgariw ;1J\icl' Of course, Harry (J/II represent you. but Phyllis
would be belto.:r. 100nt let H,l,ry represent you.)
":",111 vl'q' WCJk advice; spcJJ..:a \Vhom would I recommend? Wt'll. ClIII
has no slrong opinion you.
I
,
Corporations 217
!\IHwer the:\e from;1 prospective lJ.\\' student in al1 inti.JrJllal e-Illail (or

I. Why should I study law:
") Whv should I studv law Jt your
3. I h.H'c to studied btin in seconJJry school?
..J.. What (ours!.'s dll , hJ"C to
.). \Vh;ll (DUrst's should I (;Ike?
6. Can! sllldy bw without working too h.1rd?
7. Wh;1t should I do now to prepare for mr first yr:lr?
s. If there is an entrance eXtlm, how Gln I stud}' for it?
9. \Vhat Gill J l'xpect to do \-vith J 101..... degree?
10. Wh;]t would you suggest other thJn low [0 study?
May and Shall
in kg.11 English. declarative I/Ia)' sign ..lls;1 right or pri\"ikgt' to bl' L'Xl'n.:iseu
.15 one st.'l'S IiI.
(c) Rcstilution.-An order of restitution under seclion 3663 of [his title with
respect to a vio\;Jtion of this section may also include restiwtinl1-
(I) (or the (ost of repeating any experimenl;Hion that \I';IS illlcr
rupted (}f irwalid;lled ;lS a result ot [he offt'nse; ... (IS LSC. -I3).
l7nuer that then: is no requirement thilt restitution in(lude Lhose
listeJ in (I). but it maY;lt the discretion of the judge. S/ldll. 011 the other h'lI1d, is
ofrell used in legal English to indic<1te an obligation or to establish form;llIv a state
of belllg.
SeWllll 2. The Presiuent 5h.111 be Cotllnl,mder in Chief of the Army and :\avy
of till' Uniled States, ... (U.S. ConsL ;HI.Il, 2)
:\nd, in nther Llses, shall ind](<ltes a m<1ndatory a(lion, olle lh,lt is to b<.'
tJken.
The United States shall guaranLee to every Slate in this Union J
Form of Government, ... (U.S. Const. ,1ft IV)
218 American "Jl English
------
U!il' ilia), or slJrlII ill [he :'Ol'nll'JlLl's.
J. Till' govcrnmcnt _______ one or two nonvoting fcpn:scnla-
lin e.ICh
1:,lCh fqm':sl'lll'1Iin' _______ t..hnosc ,II k'ls( UIlI.' or thl' following anti
_______ chOl)sl' aI/ [bn.'l.': [oris. Sl'cu.jlil's. ,lIll] organizl'J crimI.'.
3. [;I(h person CllIlI'il:tt'd unJcr Ihis SC(,HH\ be Sl'llh.'IKl'd [0;1t
1e.]S! six Jl10nrhs ;llld IlO more th,1ll Olll.' }'I..'.lf ill Ill..:: j.ll!.
-I. Tbt.' rights not spl'cificall), granted Ihl.' gow'rnml'nt _______ bc fl'-
t:lll1cd the pl'opk.
5. Thl' age of consent _______ be no lower [h'll1 r 8 in any of sCI'cr,ll
S[,Ir...S.
In 1110S[ a person _______ fur;\ driver's iJ(l'IlSC;1[ 16.
- \\'ithin 30 dars or his I HIll c;h:h lllJn _______ registcr with
Ihe Sckctin' Sl'n'ict' (mili[,lrY sCf\'ict') or face penalties.
3. Whoever lISCS <1n .lircraft or a motor \ehicle to hunt, for the purpo::;e of
turing or killing, any \\"lId Lll1bran{kd horse, mare, col!, or burro running at
tlrgc on or!hc public land or LlllSl'S be filll'd lIlldcl this
litle. Of IlllprisOllcd no! Ilwrc Ih,1I1 six mOllli1s. or both. [18 USc. .J:7LdJ
9. The SUpn'llh: Court _______ ":OIWl'lle on thl' first i'.londay in Octobef
of e,l(h fear.
10. The term "official act" me.lns any dt'cision or ilction on any question. m;ltter.
Clllse, slIit, pruceeding nf which _______ ,11 ;lny time bl'
pending, or which _______ by law he brought hefore <lily public offi-
cja!, in :-ouch orticial's oliicial C.lp'lLitr, or in such oJ}icial's plact: of trwa or
protit. I I S USc. 20 I (3) J
Nonlegal Shall
Although shal! is sriIlextensin'ly uscd ill kgal English, it is f,nd)' llsed in nonlegal
English, with a few llot,lblL' exct:pliol1s.
Corporations . 219
EX'lnlplc of .%afl Frequcnc),
in :--'onrl'gal English in Spcech :-'lcaning
I pnlilc liT
! impcr,L[i..,c
ShJJJ we bl':;in the
inkrnJg..llion?
polil>.o' ShJIl r begin? I'm goint; to 5t;].t now.

dl'lll,llld Shall I (Jllthc pol icc? rarc Leavc or I'll (JJi the police.
or Ihr<.'<lt
wry
(fl1lfidl'Jlc\'
in Olll(u[1lC
Predictions and Inferences
\cry rare \Vl' (.lIlOut ,,(1"[" succced.
,\IDdals predictIOns and inferences. lJy choosing our nloJals (;lfefully,
we em indicHe the strength of our conviclion, that our prediction is il(Cllf3tt., or
that our in(crcIKL' is b .... lie\",lbil'-.
I PrcJiLtion: \\'ill the .\byor Run Again? Le\'cl ot PreJiclive Strength
! Tnc c::uulJ rlln blll I doubt it.
The 1ll.lyor mighl iun .lg3in if no new scand,ll
pops up.
The mayor fUll
I 11.11' mayor Shllllid rUIl ,IS,lin. He sc:.'rm to h,1\"l' Ints
I II/ support.
Thl' nuyor musl rim He is hound to \\in.
r ThL' m,n-or is rtmnllH! I-k Ihrew hIS hat Inlo
Ihl' ring tonight.
fnlcrence: Why Is ha :'\'ot at Work?
She ("ould hc sick, hUl she h,I:;n'1 called in yct.
Shl' might be sick; she (,llled in, but I didn't heJr {he

She mllst be sick. SIl .... j,lId sh .... going to the
do(tors.
Shl' is sick; , sa\\' hl.'(.\1 chI.! hospitaL
not likcly
I
perhaps
possible but not certJin
morc likL'iy
I
\'cry likeh-
,
(CHalll
InfcH'lIli,lISlrenglh
lillk inl;"n:n(c, more predIctive
weak InferCIKl'
mrlJ mk'rt:'I1'-l'
strollg
;
I
i
!
I
i
,
!
I
,
!
220 Aim n Legal English
r---.. III a rL'corJed (ollvi.'r'iaLion, )'on will he.n two neighbors a IrJiTic acci-
IS II dell!. :\L the end o( Ihe you will be ilsked to make sever;]l predictions
and inierencL's orally, You mllst carefully chuose the correct lllo(hll to indicate the
,!pprnpri,He rL'spnnse 10 the based on dlL' material:; you he-:IL
Consider the Facts
Level V: Additional Exercises
Case Analysis
SllbiJle ItIC. I', State 7S() S.W. 2d 365 (Tex. Ct. App, 1980)
In Scptembt'r 1985, t\\'o construction workers by Sabine Consoli-
d,lIed, Jnc., a construction compary, were killed when the tn.'ncb in which
they were working coibpsed, Joseph l:mtillu W,IS pre5iden t of Sabine at [he
lilllt', Th..: Sl.lle char!;!ed S,lbille ,lIld l:lI11illo wilh
hlll11i(iJt', lSSl'llti,llIy, till' stale 'lssL'rted IhOll ,Ippelbnts failed 10 adequately
shore and slope Ihe trl'nch, which the \l'orkt'rs' d..:-aths,
In pairs, oral .1i1swers to the following three questions. Comp;ire your J.n-
S\\er5 with your J.n$wers.
I. Based upon your understanding of corpor,Hlons, do you Ihink the st;1te of
Tex;l,S righl 10 hring (hargl's ofhornicid ..' ,lgail1st [he defl.!nd'lllts?
Since both the and its senior o(ficl.!r, Tamillo, wert' ch,ngcJ, what
problems could you forcsce in trying to prL'pare th..:- delellJ:H1ts'

J. How could the ac[u'11 puni'shment thJ.t might be imposed be difft:'fcnt for the
two dL'lenJ,lOts?
Statutory Interpretation
The Tcxas Occupational Safet)' Act (TOSA). which IS:I staLL' coditication of OSHA
(Occup'llionaISar-..'ty and Heahh Adj, a law imposing st,1Jldards in [he
I\'orkpl;\(t' III the United Statl's, dictatl's that employers h,n'e the duty to
Corporations ' 221
IF )urni.sh ;ll1llmaintain l'tllph!YTl1L'l1l and ,I place of l.!mployllh.'lll \\'11 i.cll :-ih;III
be r..:-asl1n'lblv sa(..:- and h":-;Ihhful for employees. E\'ery L'mpiuYl'r .shall IIlSl.1 II ,
lluint,lin, us .... such methods, prucessc:., devices, and including
methods of s'lIlitaLion. ;lIld hygiene, as .1re to }'rotcct
life, he:Jith, and s;l(cty of such employees, and ::;11,111 do every other thing re:l-
",onah]\, to render .such employment and pbce of cl11ploynlL'lH.
iTex, art. 51 t;2.1. 093 (I9t;7), I
1. RC:ld Ihc st:llllttHy bnguage Girelllily ,Inti put i[ in owIl wllrds. If nL'(I'S-
sarv, use ,I Ilowchart to m;lke it to
) Sal;inl.! ConsolidatL'd, Inc., argul's Ihat this statute is!Ot) \'agul.!. Wh;u dn you
Ih:nk?
3. Compare rour \'ersion with a classmate's version of rill' st.HUII', Du you both
agree on the basic Illeaning oj' the statute?
legal Writing
Tantillo ,Ind 5,lhinl' \Vcr..:- (ullnJ guilty of crimin.1lly negligcnt homiCIde by the
trial court after ple:1d ing nolo cOlltclldcrc [no J to IhL' charges, On appl'al.
lhl.!ir ;11.tornl'V would like to argue thaI the federal OSHA stalute ukcs pro.:cL'Jencc
over the TOSA statute unLicr which Tantillo and Sabine were charged. The aLtor-
nl'\' will use a cons[itutional argument citing the CI,lllsL' of the U.S.
(US. Const, art. VI, cl. 2), which states thilt in the e\'t'nt of cunnict
federal law t.1kes precedence over statc la'>\,. The OSHA stand:uds governing
digcinl!; of trl'n(hes 111 bt.' found at 29 CF.R. 1926.650-1'J:'.6.65.1, on-linl' <It
ill is. an ,
OSH:\ sl.l(ute providing for criminal sanctions in the l'\'cnt 01 ;J wlilJul \'lol,\tlon
otOSHA standards that leads to the dt.'ath of an employee 1':9 L'.S.C 6(l()(c)!.The
Tex,!.s S[,ltule prm'ides:
,\n h;lving resJlonsibility fur the disch.lfge of a to acL im-
PlISL'J hy law (lll.1 .:orpor.ILilll1 or asso(iation is 1\11'
omission to discharge the dUly to the same extent ,IS It the \Vele 1111-
po.sL'd by law directly on him. :\nn. 7.23{bl (llJ7..J-)j
You ',1[<0- \[r. or Needle, [he .Htorn.::,:, for S,lbint' and Tantillo. Arta
\\'ith about the appe;ll, you write a forlllal (ollow-up ktter to S,lbine ..1111..1
1:1ntillo expi..1lning your ,Ulalysis of the situation. \Ve'vc begun the form'lllettl'r
fonnat for
222 Americ .gat English
Wilson, I3linken, Needle and Associates
J!J ClI1dh: L.ml:
IDalel
i\1r. J,)l' "ElIlIiiln
.... d. lnt'
Chile COUr!
r\: 7
DC:lf i\lr T<Jutilh
.\lls[ill -1:\ ; I H-!
As lIt" ,1l!fI.'CU at OLlr [;IS[ m .... elillg \)11 (d;IIO:J. r ha\'l,: likJ:1II ;[prea] nn behalf
\11' ;IIlJ Sal-illl' elm""li.I;!!..::d. Inc. I ill(,1Trlll'J Pli. ill',llIld Ill' "o.:n'ral
Illll!uh.\ hC(lln: 1\'(' hL,lf frPllIlhe C,IUI"L 111 lilt' 1111:;lIlIill1c. I \\-ill ,",ccp you
infofJ11l'd of any JI'n.:hlPIl1l.'111"',
L':l Ill\.' simplify Ihl.' CI'IHr.d argull1ent 011 \\l11..:h I baso:J the "preal.
[":l1llliIIlIC OI[ Yllllfll\\ll]
I)'llllf naml!)
Alwrn..::y ,Il Law
Chapter Eight
Contracts
\\'h..:n or sludYlIlg.[;J\", we often think of contracl:; -.IS .:kllll.'llts of thl.'
(Orpur.1!e \\'{lrld, forgetting th;llll1L'Y arc ..1150 an l'ssential part of our J.lily lift.". Wt."
have 110 trouble identil)'ing certain exchanges (such rL'llting ,m ap.lftI1lCnt) that
require wrilll.'l1 Jm:ulllcnts ,IS contracts, but therc arc multitudes of ,Ktivities Ihat
imply"contracllike" obligotions or are simply informal even though
there is no \,rinen agreement.
Activity 1
A. Break up mlo groups ot threc <lnd list six exchanges covered by (()lltr,lCts, such
;.15 tho.' selic of a house. Wh.lI common demt."nts do till' ex..:hanges hJ"c?
B. Next, list six contr,Ktlike transactions,
stlch;ls buyinga loaf or" bread, going to
the 11l11Vi.... s, or I .... nding SllmL'one J. pellcil.
On you SCI.' any sunilarities .111l11ng those
'Ktlvitil.'s?
Activity 2
Now ,IS J cbS$, lkcitle on items thai you
think should he included in ,I ,:()rHrac\ or
conlLlcliike Ir.m:.,[ction. UOll't \\'orry about
the exact tcrmliloingy ret.
__ /1,/

Essential Terms
,
offer: a promise to act or refrain from .Icting
offeror: thl' person or wrporation Tllaking an offer of goods or scn'iccs (seller)
offeree: the pt'fson or corporation accepting lhe offer (buyer)
acceptance: agrcl'Tllt'nt to tht' terms and conditions of the offer
consideration: what the offeror has lhat the offeree wants .md vict' versa
223
224 ArnE .'1 Legal English
;\, Arter familiarizing with the e::.scntial [crm:.;, fL';IJ th..:: following (011-
Ir,1(\ limn,;\ bill D( s;lk h)f 'lUlolllobiles. Sino.: you will mt:' thi.') contract in the
nl'xl ,It.:ti\ily, dOll't \\'orry it" }'OU don '[ unJcrst;lnu l'ver}' word right now.
IHLL OF SclLE
Dalcd:
rig!u." rille ,JIlt! lIiter.:.'\ in:
__________ _
\11I,Id' __ _________ _
Vchidl' IUl'nlifiC:lIioll IV]X): ____________ _
'" --------____ " III 'BUYER." hi:-. ;IOU
-----------_________ &nw'lOfJDnIlJfslfWnl
-------__ " ER. in panial payment of,il..: agro.::cJ 101.11 price of
'-------1---------________ &: no/tOO
DtlJ/arS).
CIK'lIillhr;lno.:c_,. SELLER. . wan;tnls Ihallhl'fC an: nn liens or
on Ihe and Ih,1l _______ . .; [ilk ;\, :110.: gUilds
,IIIJ Illl'fLilanl,lhll' _________ " SELLER. shJillkfcnd
(rum ;111)1 adITr.;-\.' 10 SELLER '.\ 10 the gnmh so/(L
Th\.' ho:rl'in;lf\.' not s(lld hy a 1I1\.'rdwnI in Ih\.' lidd. THESE GOODS ARE SOLD
\\ITfrOLT V_Ce. WARR.--\Kn' Or- :\.,-:y I\:I'\iD_ AND
flT.\ESS FOR A P.-\RTIClL.-\R PURPOSE. Tho: BU)'ER. _______ _
Contracts - 225
:\L"kllll\\Io:Jg\.'\ C\.lIllllllllg Iho: g"nd., .\(lid Ih:rcill. 1l1i, pro\"J'llIl1lll>ly Illlll1\: :111<1
10::;:11 1;lry h<.!(v'll'n .,(:111.'.\.
Thl' pal1i..:s ;Igr..:c h) ;!ie terms ,lIul ({Judilions ,laleJ herein:
_________________ . SELLI:I{ hign;!llIre I
_________ llypI'J mill":)
___________________ ' fJLIYER I\I'o!JJ:lIUrl'l
_________ HYPl.'d 1l:IIllO:I
B. Listen c;Herullv 10 the tape your instructor will play for you. P;-l'lelld rOll ;HI.'
(he bW\'l'r th(' clil.'llt the s;lll' of.lIl .1Iltil]1l<..' elf. :\s you
lisl(,11 the lap ..... fill in thl' blanks in thl' "Client \\'ork Sheet for S.lk of Goods"
bdo\\',
I, Aftl.'r you h:1\'e completed that sheet, use- it to till in lhe blanks In till' contracl
;1boYe_ You m<lV Ilcl'd 10 "il1vent" SOl11e or inform.ltioll .
.., (n pairs, comp;lrc your colltr.lCt with" c1assnlJtc's. Du you on any of
lhe information?
elienl \Vork Sheet for Sale of Goods
Ciil'nt's Full _________ ______________ _
Tekphnne NUnlhl'r: _________ ______________ _
Description (If properl;.' 10 he con\'eyeJ: ________________ _
BUY(,f; _____________________________ _
S,II,,, _____________________ _
__________________________ _
Dale ft1fc.'\ecuttnll [11:11 sh(luld appear 011 ('\)I](f:lCI: ____________ _
226 Americ egaf English
What Is a Contract?
As is ohviolls lrollllhc cx,lInpk's ill LL'\'cb l.lnd Ii ,]b{l\'c, J ...:Oiltract is not mcrelv
;1 prollli!>l', JI is;1 promisL' thai nlll' gives yo/uIlI;lrik ;lnd with [he intent Ihat the'
I.'llforcl';.l-k;![ 1,111' 'j Ill' Cun{r;lCl Ie!:!;,' (or both par-
I Illl.'rl' i.);\ rd.l!ionship tile rights j\\h.H one is t'l1litied toJ and
the d .ltll'S I \\'h;lt {llh.' nlusl do j o(lhl,.' Clllllr.I":ling p:lr[ ies. :\ (0l1lr.1(1 gi\'l.'s
indmdu,ll.1 duty hl Ih.,' oth"'r p.lrtics, hu! l."l..:h indi\'idll:11 also h:IS;1 rigilllO
.,1 remedy !snlUlitlll J (or breach of conlr;]c! ; (;Idur<.' {If !iI ... olha P;lrty [:1 rul-
rdl 111.,\ or hl.T 1e!?;'11 dUll'!. Vl'f\' sllc'lkin" It' h, 'n'-",-""-', -, 0''\ -, . . . . t' to' I. .... U I; I.. ra ....
III LIS t h.1
I. comp,-'tl'll[ parties;
..., Icg,t/ slIil.il.'CI m,lIler;
3. k!!al (llIlSidLT:ltilln:
.J, IllUlll.J/ity of .'grL'l'llll.'nl; .llld
5. of obligalioJl.
<lbsel](l' o( anro( thcsl' delllenis n1;IY render ;1ll;lkL').1 (Ontri](t un..:n-
torceabk. i\OI\' Ids uis(uss thl'm one by onl'.
Competent Parties
In order III dl.'JlHlilSlf,lle Ihe compl.'lencl,.' r ..'nder.1 conlractl'nfllr..:l.'-
able. all 10 a (ontra([ musl /w\'c Ihe .lhility 10 unJt.'r51.lIld and agrce [0 Ihc
11.'1 Ilh (l,(.t he conlr.lCl. Cndasl.lllding th ... (Olltr.l(t rder .... only tn the pe;son's in-
na[e .liHluy 10 lh;l[ ,I (Ontr;l..:t Ius b ..cn forllll"tl. not to his {)f htCr
fool.ishll(,ss, or lack of (are. Clearl)" menial incompetents fall
the pro[ectlon ot this n:quireiTIt'1l t: howcv('f, dcfining _iust who is men [aliI'
InOll11petent C;lT1 hc I n ,I si III ibr Jll;HlIlL'r, minors 11Ildi\'idu,lh ulld .:r
,I ,Igl' lillli[ th.lt C.111 \.Iry frolll :-;tatl,.' 10 SI.lll'j .111.' oftcnllol'collsiJered "com-
pe.lent." For e.'Glmplc, in a \wll-knowll (.1St:' f I': fred Hpl!'l' .H%rs, 111(" 39
\\'1"" "'j ,() 1-:-;:-.1\"'1'''(19 'I - .. _t _ , .), ,. ._t _0:) (10), iI young mall. tcchmcalk;1 minor, bought a
car. Howe\!..';" he Ihl'l1 dl'(idl.'J til;lt he (hdn'l like [hc Glr .md to take i[ llack
to the dealer. The dealL'r wouldn't t:lke Ihl.' (;If b,](k and rl.fund the young man':;
money so the young mall :-IlIl'd !IX rescission 1;llll1ulmcll[ of [he wntr.KtJ. The
young Jl1<l1l won, md [he tle'lll.'r h,ld to giw hilll b;lI.:k his mont'V because 3. COll-
tra..:t. isn't v,1Iid. Additlon.dly, in c;l'ses, one of
p.!ad or II'rite thc language o( the (Ontr;](l nlily be impoftan[
In dl'[Crmtlllng It the i.'i competl'llt or not.
ContractS 227
Subject Matter
Till' subject lllJlil'r of ,I (ont,a(t Le legal. Thu:-l, one (.1111101 form <l legal CDIl-
Ir;1(1 in the l'nilcd to h:l\'c a third party killed; in other words, hit mell (and
hit ,\'omc.nJ-profe.<;siollJI killers-cannot be sued if the)' miss thl'ir IJ.rgds.
!.egal Consideration
Consider.1tion i:, thl' induccment TO enter a contract. Althuugh the (()mideration
for L'nll'ring.1 (011[[;](1 is ni"Il'1l rl'du(ed to ;11l :.llllount of money, il (;111 also be a
right, tungible I fl'.11 or personal property], bend!t, or some othcr inla-
es!. Conslder.llion must, Illlwevcr, be 11.'3/; those things that :lre wllsiderl'd "ilk-
or "11I11110r,11" ar!.' not kg;d consideration.
Mutuality of Agreement
l\lutu,llity of agreement is.J meeting of the minds of all parties to a contr;Kt The
phrasc "meeting of thL' minds" ;IS it is used here mC;lIls thai the p:H[ies undcrsl;lnd
and sh.lfe thl' ":Olllmon purpose th;11 (crt;,in property, fights, or bl'ndilS will
tr:mskrred and ,1 1l1L1IU;ll obliS;llion incurred.
of Obligation
i'.\u[uality of obligallon is espo!ci311y important when il comes to ;l question of
Jction for brelCh or con[r;]ct, for unlcss both p;lrties to a contract are bound,
neither is bound p;uties must both incur legal before a contract 'IS
cnforceable.
I. Listen to Ihe tapcd COllverS;1 tions and decide if ,III, some, or none of the eS$ell-
ti.11 delllL'1l ts of d contr.lCt ,I re present. Your instructor will pby each conver-
sation twi..:-e. The first [illle, just lislen; the second time wri[e [hI.' rl'quifed
int"ofJll;l[ioll il1lhl' bbnks belol\'.
2. Prepare an ofal explanation of your d('(ision on the coni racwal clements.
A. In the park
(II compelent parties
(.2) subject matter
(3) legal (onsideratioll
(-1) mUlu;llity of agreement
IS) mutu:llity of obligation
228 . Amp' I Legal English
B. On the beach
(I) COlllpl'h.'I1L
(1) Illutualitr or agrel'mL'llt
How Is a Contract Formed?
Before a (ontf;lct can bl' formed, there must be both an olTa and an acceptJnce
oflhat otTer. Sound simpie? It's not; lawyers h.l\'l' earned millions of
dolLlrs in fees .lrguing ,iust whctht'l or not a v;llid col1tra([ exisll'd.
In commun 1<1\1', contr,l(ts ;lre [ormcd in the following manner.
I. ;lll ,,(fcr is m,ldl' by.I ;)crsnn or corpllr;Hion ll(lrmaUV rcferrl'd [0 as ;111 o(tcror;
Lhe offcr is Lhen acccpted I accepLancc I bY;l persoll corporatioll nor:n;llly
rderred to as ;111 offerce.
Lei's reduce wh .. t we've le.nned about contr.Kts to a formula:
offer + acccptance:::: bona fide [v,llidj contran
if ihe p;lrLil'S ;lre (II) (Olllpclent, (b) ll1uw,llIr ;lgrec and ob!ig;11C dlL'IllSL'!\'CS re-
specifIc subject, and k) thcfe is legal
In the contract you Jr;lhcd ill LevellI ([he hill of sale):
L \Vho was the offerce?
, Who was the offeror?
J. What \\'.IS the consideration?
-!. \"ouLl thL' contract h.m.? be;:'n bona fide;\I common law?
In order to understand contr.lCls more fully, we must add. to and c1arif)' our origi-
na! equation by Lonsidcl jng what constitutes J valid otTer and ;lcceptalKe and br
discllssing what constitutes legal consideration.
t"nforce'lble contract:::: niTer + ,lCceptance + legal consideration
Contracts . 229
Offer
The dL'll1ellls of all ofkr aL coml11on bw arL' Sd forth in thl' formula bL'low_
olTer:::: intl'nt + idl'ntif'led olTcrec + dear ,mel dclinite terms +
specified duration
it seeills complicated in the forl11ul.l "bove,.111 offer itself is Illerck a
pledge [,1 promise I to ,1([ or to refrain from acting. In the (untracl that rOll
drafted in Levd II, [he of tile car was the to tr,lnsfer Lhl-' aULo's titlc
[a legal documenL of oWllcrshipl from the seller to the buyer. An Of;l
pledge to rerr,lin froill ,Kling wOllld be a nl)J1cOmpetiliun agreement, su(h ,IS
those found in many L'mploYlllellt contracts. Let's look aL <llll'xJmplL'.
Read this contract.
EMPLOYEE NONCOMPETITION AGREEMENT
for gnoJ cllnsideralion anu :IS an inuur.:emem for {COIllP,IIlYI
III employ Ihe unoersi!incd Empluycc herchy
agrccs Jl()[ uireclly or indireclly Lo (olllpcle with lhe business orille Company ;lTld ils
and uurin!i Ihl.: Employec's period of employment ami (or a perimi of __
following [erminalillil of the Employee's t'mploymelll alluno[wilhslanding the call';c Ilr reasun
ror [errnillalion of Lhl' Employee's 1'lllployment.
The lerm "11l1\ compelc" as lIsed in Ihis dlll'umclll mcan Ih:llihe EmplnYl'I-'
nOI own. Illililage. operale. cOflSulL or th:! employed in a slIhs[annally Similar Ie' ('If
cOUlp(:lili\ c wilh 11,,-' of the Company or such other husincss 'Klil-il) ill which
111..:: Company m'1Y SIIQS1.ullially eng;lg-c Jurin,;;: the iCilllOf the Emplnycc's clllplllymelll.
Till' Employee ,lcknowledgl's lhat the Cornp;my shall or 1ll.1}" in reliance nn Ihis
agreement pro\'ide Employee <lceess 10 Iraue sccrl'lS.ClISIOlllers. and olher cnnlidenlial Jala
,lIlU goodwill. Empluyee .Igrecs Lo retain saiJ inrorm.llion as CIlllfidenlial and IWI tll US\! s.ud
infnrlllaLion on his or her own beh;]lf same informalion III any IhirJ pany.
230 Am Tn Legal English
Thi_\ 'lgn.'eillelH \haJJ he nilltiillg Upllll antI inure to the hellelilllflhe panies. Iheir
and p ... repn.\\elll;lli\l'.\.
'year).
ClllllP,'IlY
J J1 fell r
h:tt:nt, in is to be confused with moti\'lIion. ivlotive prompts ;]
person to ,lLt or rn or hl'r failure to aCLlntent, on the other hand refers
to tht: of mind with which the .K! is done or omitted. In the of
legal must be.1 st;l!cllll..'nt that the offeree (;111 re<];-,onabJv rely on
'lIll,1 rl'C'ipond tn. Ieg.11 English (nol In he confused \\'ilh legalese',
,III} lor (kn.,>l'. conmllltcd kgal j,lrgOI1), intent is present: whcll
0111..' exhIbits wdltn"lless to e It" . I "
,. . _ .;:. ". I er lI1!O ,I ),lrg.lI11 111 such ,\ manner that the other
III the tlul his or her assent to Ihat bargain not
I:. lIl\Jltd but also, II gn'en, will seallhe
Intellt is mor.: ,1 simple stateillellt in Jest. For example, if \'ou arc
.\':?: Y(lll n,'_It!ht S,? in "I \\'(lldd give ,1 million dtlllars pin;I!"
nol :'l10W kg,11111tent since 110 reasoll,lble per.R1ll would b.:
Justified III rdying 011 tl ,f, I I '
. . ,. '- It: Jet t lat I 1e lIllenng that statement would ;lctu-
!(lr;l pizz,] no lllalL':l how th02 persoll was. How-
l \<..f, :-'Ol1letlllleS It IS hard 10 intenl.
Consider the {)( th,-' rollowint' c,s,'. ! :".,. 7 J
S.E.2d
516(195-1).
Dcfendtl!1t's Stnry:
. Zehrllo.:r his wife (the arc being sllc'd lw "Ir. lUL\' an j
IllS brother ,\Ir Lu -v -, II' b I II [ '- , . (
_., 1...' \I{ liS roller a cge unproven statemellt] th;\t :'.1r.
,llld l\ Irs. Zehmer entl.;'rcd into a conlLlct with lhem to sell the Zc'hmers' -171
Contracts 231
;lLrc brm to ;'vlr.lucy for $50,000.1 ....1r. Zellmer chlims that the offer was made
in j .... Sl while the of them 1!"I.'ir. and Mrs. Zehmer and were
drinking ;1I1d that he only wished to bluff Itrick] lucy into admitting that
did not h<lve $50,000,
Plaintiff's Story:
:--".Ir. Lucy (the plamtiff) says he took the offer seriously and that he had no
reason to suspect [hat [\'Ir. Zehmer did not; after all, they discussed the terms
togethef and m,ldl' sure the agreement (written on the bi.lck of a bill from Ye
OIJe Virginnie Reslaurant) had a space for Mrs, Zehmer (0 sign, and then Mr.
Lucy gave 1',,1r. Zehmer $5 10 seal the bargain. After the evening of"negotia-
tions," Mr. Lucy arranged fOf title examination. lit is a common practice to
arrange ror a title search of real property so that the land transferred will have
clear title-in oth-:.::r words, no one else has a claim to the landl. Mr. Lucy even
suld half interest in lhe contra.::t to his brother (who then became part of this
Ieg,ll action) to raise the $49,995 he needed to complete the deal.
Answer these questions in writing.
1. Do you thmk there \ .... as a valid conlract? vVhy? \Vhy not?
--, Is ;\Ir. Zehmer's claim that the offer was in jest important?
3. ShoulJ t-.lr. Zdllller be required to sell his farm to the Lucy brothers?
4. Nuw look at a legal definition of intent.
Design, resolve, or determination with which a person acts .... [citations
omillcd I A m.:ntal attitude which can seldom be proved by direct evidence,
but must ordinarily be proved by circumstances from which it mJ.Y be in-
ferred [citations omitted}. [BJack's Law Dictio/Jt1ry T27 (5lh cd., 1979)]
5. Summarize the legal definition of intent in everyday English. Does the defini-
tion ",bove change your perception of the outcome in Lucy I'. Zclll1ler? If so,
how?
6. Would the fact that Mr. Zehmer was acting in jest negate the contract?
232 Amenr Englis};
;'\iuw lISl' the olthe case ,InU follnw direclions bdow to prepare;1 rok pb;,.
The Trial
I. Choose a stud(:nt to rcprl'Sen! the bwyn for Ihe and one for the
pl.!inlins 1.1WYCr.
For l"lCh of the "1;1\\':CfS" 51'b.:t (llle or more students 10 Sl'rve l)n h is or h.:r
kg:!lle'1111.
3. stuuents to pLi;l';lCh of the VOl! plan I() qUlstiOll.
-I. :.hotlse to be the 1hl:.' others will serve as [hL' jUf}'.
5. S.ince Ihl' 1;1(15 ;ifl'. known.cJch of the legal tC.ln1S must prepart' qucs-
to ask the witnesses in order to show its CJse in the bl'st light.
6. Atter e,lCh teilnllws 'lskeJ all of its questions, the jury will renda (give] ;1 verdict.
Remember that the jur;' CJ.fl only bJ.se i15 decision on wh,1I it hl:."lJ"s in "court."
COlblJl'r Ihl' flJllowing arguments in Y(lL!r Clse.
. .
The existence of an offer depends 011 the rea:wnable meaning of the offeror's
.]..::Is ,1I1d words.
Undisclosed intentIOn is immaterial.
The memorandum W;]S signed by both dl'fl'ndanrs.
The tarns .llld .1grecd to b}' ,111 parties Wl'fe clear and ddinite.
Defend'llll:
The offef W,15 made in jest.
There was no intention on the part of either defendant tn sell the farm.
All p;UI ies were in to\:iclll'd at the time of the "contract" and
t.'\lCllti(lll.
The "contract" does Ilot contain dear and dl'finite terms.
1. Re3d the judgment and paraphrase it in simple oral Enghsh.
.........
Lucy v. Zehmer
The of an offer depends upon the reasonable meaning to be given the
offeror s acts and words. For the formation of a contract. the mental assent of
Contracts . 233
the parties IS not required. If the words and acts of one of the parties have but
one reasonable meaning, his undisclose<l intentlOn is immaterial except when an
unreasonable meaning which he <Jttaches to his manifestatIOns is known to the
other party. Accordingly, one cannot say he was merely jesting when his conduct
and words would warrant reasonable belief that a real agreement was intended.
...
1 Do ,he Zehlllers have to sell their farm to the brothers?
3. em YOLI think 01 any olher"evidellce" ,h.lI ..::auld hJ..vc heiped i\1r. Zehl11l'r
prove that hI' W;]S only jesting?
Offem:
Normally. an offeree must be specifically identified; he or she cannot or
ambiguous. For example. in the contract in Liley I'. Zellmer or the one you drJ..fied
in Level II. you know exactly who the offeree (buyer) is. However, thl' offeree is
not .llways so de;u. For example, in m3nr cases, advertisements (often including
Gll.llngs from dep.lfllllellt such as Sears) <Ire not ofTers but <Ire Simply de-
vices to begin negotiatiolls because there is no ddmite offeree.
Tn an J.dvenisclllellt ad in American English) most people would
think of the ads [the readers} as the offeree. In legal terms. however. the
people \...-ho rcad the ad orren become the offerors when they "offer" to buy what-
ever the ad is selling. Thus, when the buyer contacts the seller, bOlh parties (the
advertiser/offeree and the buyer/offeror) are finally clearly identified.
Clear (lIId DcJilllle Terms
The terms of.lIl offer must 11e deJr and definite. For example, 0.1r. Saidulla (tilt:
seller) promises to sell fifty biles of cotton to l\lL Bobur (the buyer), whom he
has just Illt.'t. ivl r. Bobur ;Jgrees to the sale and promises to pay i\h. SJ.idulb cost
plus "J. good profit." There IS no contrtlct because l\'lr. S;]idulla ,md Mr. Bobm
could eJ.eh hJ\'c a different idea of what a good profit is: the terms are not
and definite. All panies must be certain what is intended .md \\'hat action is to
be taken once they cxccute contr.1Ct. In general, Ihe more speCifIc Ihe
terms of an}' dowment are, the more likel}' one could cI,lim that.lI1 olTer was
made.
1. Review the noncompetition Jgreement. W11<1t steps .lre taken [0 ensure that
the terms of the contract ale dear and defmite? [Hillt: Defillite is related to
deJillitioll. J
234 Amenr egal Engljsh
1 WhaL i( we just wrote:
The undersigned Employee hl'reby agrees ilot direcdy or tu
compete wiLh the business of Lhl' .ma its successors .ma assigns.
Wmdd that br0ild statement prnb'lbly be a,.:ccpLable <I::> cklf and definite?
Why? Why nOL!
For s,de of goods, ma,ket practices (somL'!imt's known .\s standard
business practices) Ill.l)' be .Kccpt.lblt' in lieu of 1 in piace on spt'ciflcity. let's
ch'lllge the of lilt' C'lse with Mr. S,lIdull<l (Lhe seller) and Bobur (the
buyer). let's assume that they hav(' bcen doing business tog<:.'tha for :;everal years.
Each Bobur h'1S p,lid Mr. S'litiulb cost plus 10 percen1. Their business
history establishes;l reasonable market pra(tice b('tween r-.,Jr. Bubur and
Saidulla. Now in their sixth reJr of doing Lhey could st ;]te "cost pi us a
good profit" and each could probably m,lkt' a good cast' in cou,t regarding thL'
nleaning; howl'vcr, it w()uld still he IlHh:h i".n Ihl'lll to St,ltl' t'.\plj,jliy Lhe
definilion of "goo": profit," in this GISC, 10 perccilt.
ReJsonable market practiccs do not .llways require a course oj dealing be-
t'ween the parties to be considered blOding all thcm.In tht? Babur/Silidulla case, if
the standard in the cotton industry were to 10 percent profit after
cost, then, just ns in the situation above, a strong argument could be made that
the panics were Ilware of wh;"!t "good prall!" meant and could held to a 10 per-
cent profit.
1. Based on what you've just read, look at the following "contract": "Come on in-
side, HOIll;], nnd we'll t;]lk about what you want for dinner." Can Honza insist
thM he be served what he \\'.11115 for dinner b;rscd on this contrac!?
1 Honz.l and his roollll11Jte h,IW;l deal. HOIlZ,1 pays [or the grocerics, ;Jnti the
roommate cooks. herr day for a year, HOIlZJ's roommate h ..1S asked him wh,lI
he wanted for dinncr i1l1d then prepared cX;lCtlr thaI. Tonight the roommate
cooks something that Honzil hates. Honza is furious and thinks the roommate
has vlobted the "contr.lCt." Do you J!;re::,? or why not? You in,l;' be asked
to present your opinion to the d'lSS.
Spccijit'rf Dllrflrjo/l lor ,kccptli//ce oj rIll: Offa
An offer is not vnlid forever but only (or a specified period of time. Normally. an
offeror should state the specifiC tinie frame (or .lCccptaJ1ce by the offeree. If no
time period for acceptance is speciticd in the offer, there will be an assumption of
Contracts - 235
J rcasonable time. Wh,lt constitutes a "reasonable time" is il question of fact that
Jept'nds on I he circulllstJl1ces of each case. For example, i1dv('nisements for sales
la temporary discount all a productl tell the reader how long the sale will con-
Illlue. Thus, ifli:d Vision tries to buy a tele"ision from Mark's TV Emporium for
the sale [discounted I price two days the snle ends (the time specified in lll;:,
;]dvertisemeni}, tile offer has expired and Mark may choose not to honor thl.'
lerms of the <ld. Of course, t\lHk also choose to honor the ad's price just to
make ,1 sale if he wishes to.
ff .10 offer is not accepted within the specified or reasonilblc time period, lht'
expires. The nt'xt ;lttempt to accept the now-expired offer becomes ,1 coun-
teroffer. A counteroffer is also;] termination of tbe origin.ll offer and not ,111 ;le-
o.:ptance of it.
Offers can be terminaLed or reyoked prior to acceptance by the offeree:". A
termination is cJused br factors normally outside the control of the offeror.
A revocation, on the other hand, is a statemenL by the offeror that he or she is
withdrawing the offer.
Ihal termination is caused by factors outside the control of tht.'
offeror while revocation is within his or her control. Ivan offers ta sell his car to
Maiia. She w;]nts;] few clap to think it over. In the meantime,'\ fire destroys Ivan's
car bt.'fore has acceptL'd or declined the offer. In this case. the offa tenni-
na tes. Other r;cwrs that may cnuse termination are death of offeror, rejection
by the offeree, or a counteroffer by the offeree.
On the other hand. if Ivnn simply changes his mind and not to sell his
('If. his nOlice to I'vlaija serves ;lS n revocJ.tion of his offer.
Acceptance
Before a contr<lct can exist, there must be dn JcceptJnce of the offer by the offeree.
;\cce:"ptan(e is a communication of ngreement to the terms of the otfa by words
or conduct. Joseph sees il cop}' machine in a cJtalog thJt he \vould like to buy.
Joseph"l clever law stu(knt, re'llizcs thilt the c;]talog is just an invitation for offers.
"ol"lt:rs' to buy the cupy m:Jchine; in other words, he completes and sends
in the order form. In this case when the copy machine is ddiVL'red the
following the ddivery of the copy machine is seen ilS the ;]ccept.:lJlcc of
Joseph's offer.
On the oth::or hand, many stHes have I<n</s that make ads more like offers.
Stores often advertise SJie items without noting the qunntity they have to sell.
Then if people want to buy more of the item than the store has, the store must
issue a rain check that allows the customer to buy the item at the sale price when
the item is back in stock even though the sale period has ended.
236 Amen"ca lal English
I. l;eorgelte's Goldfish and Guppies aJvl']"tises "two reguJ.1f goldfish for the pricl'
llf onc. This orIn good for days." They sdl out of gold!ish on Ihc first day
of the !i;]Je. Is it p:-obablc th.:t illL'Y will have to issue r;lin checks under ;\mcri-
c,ln law? How about in your kg;11 systL'm?
1 Six 1110l1ths i.lter, Cl'orgeltL'\ Coldfish ;Ind GuppiL's ,ldvL'ri is..!s "two re!!uiar
(or the of onL'" ,Ind changes Ihe second line 10 "n!{cr tin;ilcd to
stock 011 hand." Will thL'\' have 10 isslie rain ,-h..::cks at'tt:r Ih..::\" sclllh..:: six lish
they had on Ih..:: Hov.; do th..:: two Lases dii"!l'r? .
Acceptance I11I1St mirror terms of the most recent off .... r.:\ response that
looks like an acceptanct: but alters significmt tcrms is ilO! acceptance but;1 coun-
tcroffer. Joseph orders a Lee 6XY model copy miKhine. Howcver, thL' Lee 6XY is
out of stock, and the company's telephone :.aks repn:sentativc suggests that he
I.lh' ,I LL'C 7';\Y ill:-.h:,ltL The rcpreSt'nl,llin: has IIO! ,Iccepll'd Joseph's olla bm
1];15 made a ((luntt'Toffcr that Joscph can ,KcCpt or decline. Joseph, of course, can
l1l;lke a counteroffL'r to the counleroffc.>r and offer to buy the Lee 7X\" ,I newer,
Illon: expensiVe modd. for the price of the older Lee 6XY.
In many countries, this informal bargrsining, [rapid Otal give-and-take of
offas] is common for most transactions. However, in the United States, few com-
monplacc transactions permit bargaining. Instead. it price is clearlr posled and is
never debated orally. On the other hand, storcs often \),I\'C written "offers" slleh as
"buy thre!.! for the price of IWO" or "thirtccnth pair of ShllCS free" pos[cd thmugb
out the ston.'.
I. Explain in writing how in your cmllltn' differs from
in the L:niteo St.Hes? Which of the following I ypically
oral bargaining in your culture? We've listed a Iypil..<.t :\merican response after
e<lch.
buying vegetablcs in <1 store-Ilo huying;I Ill'W or used c.H-yes
a ,Ind i10 buying ,I p;lir of shoes-nil
gelllllg <l hili rcm-no having made-Ilo
buying ten pairs of shoes-yes .1 university employment offer-yes
buying antiques-yes arranging for someone to cut your gr,lss-yes
sdling or buying stock on the stock exclungc-ycs
..., \Nhieh of the trans.](tlOns you listl"d as "yes" would then require <l written COIl-
tract before the became "binding" in culture?
Contracts 237
Sftllltlmdj::cd ForlllS
i\'lany busincss,-,s lISC forms for repetitive transactions. These forms
,He called boilerplate forms. In the past, the use of these orten preprinted
ments prescnted problems with both offer and acceptance since they frequently
did not mirror every single term <lnd Getail. However, for the sale of goods, this
issuc has addressed in Section 2-207 of the Uniform Commercial Code
I V.c.c.).
U.c.e. Additional Terms in Acceptance or Confirmation
(I) A definite ;lnd seasonable expression of acceptan(e or a wrinen contirnlJ-
tion which is scnt within a reasonable time operates as an acceptance even
though it states terms addirionallo or different from those offered or agreed
upon, unless acceptance is expressly made conditional on assent to the
tiona I or different terms.
(2) The additional terms are to be construed as proposals for addition to
thc contrxt. Iktwecn merchants such terms become pan of the contract
unless:
(a) the offer expressly limits Jcceptance to lhe terms of the offer;
(b) they materially alter it; or
(c) notification of objection to them has already been given or is given
withm a reasonablc time after notice of them is recei\'ed.
(3) Conduct by both parties which recognizes the existence of a contract is
sufficient to establish a contract for sale although [he writings of the panies
do not otherwise i.l contraCl. In such case the terms of the particular
con tract consist of those terms on which the writings of the partiL's agree,
get her with ,Iny suppleml'ntaf}' terms incorporated under any other
sions of this Act.
Simplify the language used in U,c.c. 2-207. How would you explain the provi-
sion to a client?
SileJlce
Silence is not normally considered acceptance. although there are exceptions to
that rule (e.g., market practice). If Janny sends Pavel.lletter offering to buy Pavers
beautiful house for $lOO, Pavel does not have to ;lnswer Janny's
letter to reject Janny's offer.
238 . Amen"car. at English
AfllillJOX
Whell is;1 contract formed? [\ cuntr,h.:t is considered [ormLd ,H the moment of
postillb of the acccptance.ln common I.Jw Ihis ruk is known as the mailbox rule
and is binding la contract 11<15 been [c)rmcdj.lvana nffa5 to sdl i\larck J horse. If
.\-larck m;lils kana all accept.mel" of her offer twt Ivana tries 10 ic\'oke her offer
bL"fore the mail is (klivereJ, 1\,1;lfek's ;lcc('ptal1e(' is still "alid and ,\ legally binding
(Ontf;lCl has heen formcd belwc(,11 l\1.ln:k and 1\';111;1. or COll:-se, nwd.:rn commLl-
nicllion Illeans, such ,I:; e-!ll'li\ (ekcl ronie m.li\t and 1:\.\(':;, han: complicated tIm
isslle consida'lbly. For c.xalllpk, is;1 sign.llufe or: ,\ (;1>; considered an original?
How C;11l \\'e he Sll rc \\'ho fe.llly st'nt u:; ,In C-Ol,lil?
Theft'.lre two tfaditional t'xceptions to the mailbox rule. The first exception is
an otTer th.lt spt'cificlily states th.ll;tn acceptance is not effective until the accep-
tance is rcceJl'ed by the offeror. In this C.I:;e, !\,:1n.1 could revoke hcr offer to idafek
before the mail is delivered beCluse she woulJ not h.we recei\'ed his acceptance.
The second exception is'lIl option contract tll.1t :;tatcs th;lt the ;1(ct'planc(' must
bt: recein.'d lwforc the option t:xpin.'s. In .111 option corllr,l(t, a bUYL'r IS normJlly
purcfMsing ,1 window o[ tim(' in which Ill' or she GIn decide to buy. J n other
words, he or she h;1.-; a spccificd Jmount of [il11(, to decide if he or she wants to
e.wrcisl' the option or not. If J\t1,lrek JnJ han.1 have an option contract and l\-iarck
mails his acceptance of Ivana's offer within the option time, but IvaIl.1 receives the
acceptance after the option has expired, the mailbox rule does not apply.
One you go to your mailbox anJ there I:; ,I p.Kbge that canrains a book and a
bill for 526.75. You know th,lt you did not order the book. YOll like the book anJ
read it Usuall}', under American law you ha\'c no obligation to send the company
the money they "bill" you or even to send the book back; you GI.I1 consider the
oook an ullsolicited gift. Why or why not would that bl' the (nse in your legal

Consideration
Comideralion is a bargained-for exchange of kgnl value given in return for a per-
fOflll'1Il0! or of paformJllce .';0 lha, a contract c.m be fell J1l('d. Consider-
ation is most often monetary in nature, but il Jocs not have to be. ConsiderJ.tioll
call also <I to ,1Ct or not to act. In ;1 bmous case fro111 1891 [Hwllcr p.
Sidll'lI}; 1.21 N.Y. 533, 27 N.E. 256 (1891) J, a man offered [0 P;lY his nephew 55,000
if the nephew would not drink, smakL'. SWC;H, or play cards or billiards fer
until he was 21. The courts held th.lI the nephew's not doing something lIt' had
thL' right to do was sufficient consideration and ;twarcied him the 55,000.
Contracts . 239
In writing answer the following.
1 ..... \'1'.11 W,IS the consideration in Hi/Iller I'. Sidway?
, In States of 1999, it is illegal in almost all cases (oranyon(' under 21
to drink .lkohol and in many slJtes illegal to pby cards or billiJ.rd) for
Do rOll think the nephew would win his CJse todar b,lseJ on [ile same [lCb?
\,Vhr or not?
Detrimental Reliance
Often promises are broken. USll;tlly, the rC$ults of a broken promise Me not that
important. If, however, you rely on a promise ;tnd do something or don't do
something ;mel then thJt promise is not fulfilled and you are injured <1S;\ result,
vou r11,lY be able to cI;lim relief under the doctrine of detrimental reliance (somc.::-
urnes referred to as promissory estoppeli. For exampIc, if your brothc.::r-IIl-law
1!H'ltes you for a visit in Ma)' Jnd then has to cancel the invitation, th.H is
not a problem. \\"nat if he knows, however, that you plan on buying nonrefund-
able plane tickets for your family and doesn't let you kno\\' that he is likely to (;1Il-
eel [he invitation because [hat is the busy time of year in thc alterations business?
Even though it is unlikely th;tt ),011 would sue your brother-in-law, it is possible
that Ihe court would find detrimental reliance. In othLr words, thefe is no COI1-
tf:lctual basis for a suit, but under the equitable doctrine of detrimental rdianel!.
ynur brothef-in-law might be responsible for }'our "losses."
l. Let's look at the following chart which demonstrates the events th,Hled to <l
else based nn detrimental reli'lIlcc. The chart follows and dates the (OUfSe of
business ;]rrangel11(,llts and negotiations among D & G Stout. Inc', operatlllg
as Cellcral Liquors, Inc., [bcardi Imports, Inc, and National Wine & Spirits
CompallY [D G StoHt, I/le. l' Brlcarrii Imports, II1c. 923 F.2d 566 (7th Cir.
1991) I. General and National were both wholesale liquor distributors in
Indiana. In our sad storr, General detrimellt;:dly relies 011 Ihcanli.
') Note th;1l in the table there are several blanks signaled br an asterisk. Listen to
the recording and write down the important facts.
3. After completing the chart. in 20 words or less, write down the basic problem
in this case,
-!. General sues BaGlrdi for its loss. \'Vhat do you think the judgment will be? Why?
;1\ 5. Now listen to the decision all the t"pe. Do you agree or not? Would it be the
\18 II' samc in legal
April
I
I July S
!

I
I Jui>- 22 I
I I
July.:!2
lui), :;3
,\. \1.
I
July 23
I

I
Aug.3
I
Aug.6
I
I
;'u:g. l-i ,
: :--:OV.
240 . Ameria English
--=----=-------
D & G Stout (General)
o( liquor
in I nJiana
o.:nL... rs with
i-JaLion;" of tn
Nalion.ti
tdls Bacardi lhal (h ... : intend
to rl'j ...ct i\J,lllllal"s offer
{elects orrer

loses another product line, in
p.lrt due 10 Bacardi's
of its products
>
(Ill's suit agLlinst ll,Ic;lrdi
I
I
I
i
I
I
I
I
I
I
I
;
I
Bacurdi
liquor mJllu(acturl'J
using Gl'n.:r,li.ls
JistribulOr
Iheardi ,ISSltr<:S
Gt"ncral thai the
produclltno.: will
rem"in with G ... n ... ral.
Bac,lrJi \1 ...ciJo.:s to
withdraw !me from
C ... ncral.
What If a Contract Is Breached?
I
I
I
National
.mother \\hulcsall.!
liquor distributor
inindiJIl'l
n ... ::\lllI.llioIlS
Ilnalil .... lI with
C ... neral
o.:ntl'rs into
TlI':;otiatio[1S 10
buy Gl'no.:ral
i
If one of the pMtio:s does not fulfill his or her promise in th ... contr,let, that failure
of p .... formJ.nce is clllcd a br(',1(h of con.tract. The kga! a([ions ,111 injured part}'
can take depend on both the specifi..: dauses of each contr,l(t ,md the facts. For
t'x<:!.mple, in Stambol'skv I', IkkfC)', 169 A.D.2d 25!, 572 N.Y.s.2J 672 (1991). the
plaintiff, Mr. Stambov;ky, slled i-or breach of contract because the house he bought
was not vacant when he moved in although the contracl had specified the house
would be. AILhough Mr. Stambovsky did eventually win hi.s cas!!, the first court
dismissed the case when thc plaintiff maintained that the unwanted inhJbitants of
the home were poltergeists, ,I kind of ghost. \-v11at is the plaintiff who wins her or
his action for breach of contr;Jct emitted to receivc from the defendant?
Contracts . 241
Damages
The (ammon remedy for nonfulfillment of the contract is expectation or
"benefit of the bargain" damages b<lsed on how much the in.iurcd person might
have gained if the _lther person had fulfilled his or h ... r promise. Monetary dam-
ages an injured par,y [or the loss of any be;)cfilS that he or she would
have received if the (Ontra..:t had been performed. Of course, il i.s time con.suming
;Jnd expensive (Q go Lhnugh the court process 10 d::lcrmine damJ.g-.:s. Instead,
contra.:tJng parties of len write contracts that contain liquidated or stipulated
damages sp<.::cifying'1 mondar), amount or.1 formula for computing
ages in the event of" breach of contract by either piHty. The ilmount of liquitj;ued
clam;lgcs specified in th ... provision must be based on a estimate of
what (he loss would be in the event of a bre'Kh of contract. Ii the amount speci-
fIed in the contract IS not based on a reasonable estimate, it is possible that the
court will find the d<1use La be invalid.
Specific Perrormance
Unlike other remedies, specific performance is a rem ... dy that does not relr on
monewry damages for compensation. Instead, the breaching party [the party
who breJb tho: contract] is required by the courts to fulfill his or her part of the
bargain to avoid irremediable damages [damages that no monetary award Gin
pair] to the nonbreaching p'Hty. This remedy, which was originally only heard in
courts of equity [an older form of courts now rarely found as separate courts in
the United States I, is avJilabl .... only if the following criteria are met.
1. Jalll.lges will not suntciently reimburs ... the nonbre.Khing, part y;
The contr;lct WJS for pcrson;Jlserviccs ullobtain;lble elsewhere lyou Clilnot
force someone [0 perform but can obwin an injunction to keep him or her
from performing similar services dsewherc-comlTIon in sports contracts), or
3. The property/service is rare or unique;
4. The of the hardships to both parties has heen consid.:rcd.
Since specific performancc has its roots in equity, a court will always attempt to
balance the hardship of performance for [he breaching p<lrty against lhe benefit of
performance to the nonbreaching party.
Albert and t-.fae j\.[adariagJ, n1;JnUfaCLUfers of "Albert's Famous t-.1cxican Hot
Sauce," leased their business to James i\:lorris and his partner. Both pJrties agr ... ed
that after ,\ payment of .'554,000 over a period of ten years, plus royalties [a share
of the profits given because onc party allows another to use his property} for sale
of the hot sauce, l\'[orris would olVn the business if he exercised the option for
conveyance [transferl of the business at a cost of $1 ,000.00. However, at the end
of the ten years, the ,\tiadariagas refused to transfer the business to Morris unless
242 . American nglish
------
"'Iorris to roY;lilies 10 them ollcach houle oj"their seer!.'t hot sauce
in perpl'tuity. \Nhl'll i'vlorri."i t)le ,\laJar;,lg:lS (or hrl'ach of contracl, the
courts forced them to COI1\'e)' their business to j\lorris in specific performancc
since no amount of money (Quid resolve the issue.: [Mllddrill\?il 1'. Morris,
639 S.\V.2d 709 (Tex. Ct. App., '"'
Ans\ ....cr the foHowing llUl'Slions in wrilil1g. Comp.1f:.' your ,lllswas \\,1111 a partner.
I. III Kleill Pepsicu. 8-!5 F.2J.76 (-lth Cil". 19SR)' Pepsico ",lgrt'ed-- to sell J. Gulf-
stream G-Ir (a vint,,c '.li:pblle) through a broker to ;\Ir. Klein ... J. liull'
Pepsico refused [0 go throilgh with the sale. Ale. Klein sUl'd. Thl' first
court decided 111,11 the G-fJ W.IS uniqul', Would specific performance (in (Hher
\\'ords, making Pepsico sell plane to I\lr. I--.:lein) be in this casc?
\Vhr or why not?
) Pl'psico ,IPPl';]IeJ ,md Illll..:d ill thl' appl';llth,lt b[l'r Alr. Kleill madl' on
two olher G-lls. Do you think (()url would nO\l" ,lgrel' '-"ith
th.ll the first plane W:I$ not unique? Wh" or h'h\' not?
3. \Vhat if Pl'psi(o's G-II hild becll the of il "cry fJmous pason
such as Elvis Presley or j\J.niIYIl Monroe? WoulJ Ih,lt :liter the court's
reasoning?
What Should Be Included in a Contract?
;Htorneys begin drafting Iwrillng) contracts lw rl'ferrillt! to (ontract forms
or s,llllples [hal have proved kgally ,md reading older
sampk comr;lCts should know that J nHWl'llll'nt is under wav In bw school; in the
Cniteu States to simplify kgall:lngu'lge anu to lll'Ik..' cOlHrac'ts and other docll-
ments morc a few herearierS or hcrciJJflbOL'cs will not diminish
[he nliJily or of ,I contrat"l; ,'Ill' lk'k[IOHS \\"ill simJ1ly make [he cnn-
[fact mOft' ulltkrst,llldabh:.
Although no pMticul;lr form is rl'quin:d when drai"ling.l conLract, many con-
tracts consist of se\'en P'l[ts.
I. The is a Litll' lor the agreeI11I..'nl.
ExtJl/Jplc: Dill of Sale or Noncompl'lition Agreelllent, as in the
examples in this chapter.
Contracts . 243
") Thl' exordium the parties and tile ..Iction.
Examplc: Agl'ncy agrel'ment m;lde on 15 June 1998 betwel'n Dominican
;., 1,lnuJ"actu ri ng, Inc., Princip:l], ;lnd Singh Engineering, Inc., Agent.
Althuul..';h this inforn1Jtion is not necessary. you will often find items such;ls
bllsincs: address, (ountr)' at and principal place of busi ness in
the exordium.
3 Thl' rccit,lis ;Ifl." design.:d 10 gjve addition:Jl infornl:Jtion :Jbout Ihe panies in-
\'olved. TIJis Gill include background infofmation about prior contracts or the
premisl's [mlportant points upon which the contr:lct is bilsedl.
EXlllllplc: WHEREAS. the Principal h:ls developed products specific for
ditfercll! types of mming operations. Exports of the equipment to COUI1-
tries other lh:lll those included in tht' Territory can lead to problems with
usability of equipment. Therefore, it is the inlention of the partics thai
the Agent be lii11ited to and marketing operations solely within the
tl'rrilory indudl'd in [he agrl'ement
Some (ontr.1(t5 includl' in the recit.lls what is more properly termed a repre-
sentation Istatement oUact important to dcceptance ora contract). For ex-
ample, the f:lct th:1I a corporation is incorporated under the Inws of the sLate
of DelawJre is a representation,
-L The tmnsition contains the words of agreemem.
:\:l!lIIpk: Thl' Partil's ,Igrce as follows:
Or"tl'll, the transilion IS not that simple, Many contrJcts in.::!ud.:- bn-
OUcI"c such ciS "'ITi'iESSETH or KNOW MEN BY THESE PRESENTS or
NO\\', THEREFORE [hJl is oldfJshioned and unnecessary.
5. The definitions ilrc gi\ren of any terms that parties fed should be expbined
111 detail. Some contracts don'l include a definitions section but simply define
Il'rmS if Ill'CeSS;Hy in thl' body of the contraCt.
Enll/lplc: In this agrel'll1l'nt, the term Prodllcts shall induJe all items listed
in Appelldix Onl'.
6. The body of the COIHr;1Ct, what is better known as operative provisions, is
the containing the bnguage of the parties' agree-men!.
Example: The Agent shJlI have no right to solicit or ne-gatiale contracts for
Sille of the Produ(ts outside the Territory.
7. The testimonium or dosing indicates agreement to the terms of the contract
b}r the p.ulies who sign the contracr.
EX!1II'pk: IN WITNESS WHEREOF, the parties have hereunto set their
h;mdson this the l-llh day of October. 1998.
244 American Ley
Til .... us<..'d III the C';\"llllpk is ;lnd The
(;111 .llsll lill.'ir !].ll11o.:s.lfd,l' addrl'ss<..'s \\ .... n.'j][ indud .... d in
P,lrl ,1(lhl' contrac!' shoulJ bl.' included h.:r .....
!\g .... nt
:\lllllHlgh [\l()killt, ,II r ... li.llll .... (flnns is all t'x..:dknl \\'riling, you
ilHlS! hL' L.lfe(uilo [':\-IC\'" ih'-.' or p'lflicuiar (ase ,1:HI [eVIl'W Ih ....
(0:11 ..... Sp .... c1l1..: iL'rlllS ,lnt; (ondLllons wI! I \"My from (Oil IL1([ \n
(OJl(r.h':l ,l1ld shllukl b .... ,fr.l(t .... d ill rdkLt what th .... parli .... :; h,l\'\.' \d. Th ....
l,lIlgU,LgL' n( til .... (onl [,1([ sh'Hdd ,!Iso bL' ,J:; precis .... as possibr ..... C.'rt,lin \"l.'rbs
p.lrticubr rights OrdULil's: for l''\,lmpk :;},IIII impost'S ,I Jut; and i:. cllrilicd tf)
gr'lIHs.1 right.
Questions to Ask Yourself before Beginning to Draft a Contract
:\n.: 111..: roks of tht.' PU[lo.'S do.',lf?
\Vb,1t .1Ilt! condilions do consiJt.'r to b!.! most
:\n.';lll or tht.' terms Do han..' both ;mJ spt.'cific Li.llISo.'S
ih,lt rd.lI!! [0 ih ... same thing? .-\re tl1..:s<.' \.;'fms .:on I If lL'rms are contra-
dictory, tht.' lllOrl' spo.'cific contr,l(llerms afl' more binding Ih.mthe go.'nl'r.11
and ..:-onditions.
..\ro.' o.'xhibits ,Inti ,lnnt.'xo.'S part o( Iho.' contract? III Iht.' o.'Vl'l1t of ,I discrepancy.
11IHill;llIr Iho.' body of tho.' ....(1lllr,I .... 1 ['Iko.'s prl'ccdenco.' llVl'\' L'xhibib or .lnno.'XLs.
Tho.' ....ourt. ho\\:,'\t.'r. looks 10 finJ what rdkc[s tho.' agr!.!elllt:lll oflht.'
Do 1,';\f1l an arbitration clauso.'?
\-Vhich I,mgu'lge (e.g., English or Ar:lbic) I'l'rsion of the cOlltr.lCt should take
pft:c<.'del1cl:' in tho.' event of J. dispute if the contract is dr.lfted In more tll.1n onl'
hlilguage?
Do youlll'cd a liquidated in the C\0.'111 of a hro.';I.... 11 of cOn[rac1?
Do nCl.'d 10 agrl.'l.' Llpllil .I.iuri:-.Jicliull for resolllllOI1 Or.l It may
lluko.'.1 111,lior diffo.'felICl.' ifyollr ....ourts or the (nurts Ilflhe 1)1her .Ire used.
Do you llt;'ed.1 force majeure clJuso.'? 1_;\lso rl'lcrrt.'d to ,IS ,In ACl afGod,
clause relieves a pany of liability [or a br .... ach of (tHllr;I .... [ [or ['orces (It
;l.lIUft: (InrH,llhlCS, hurrlcant:s, sni)\\'storrns, '--'t ..... J or olher 'I(ls ollbide his or h.:r
conlrol. )
H,we spo.'cified tht' dliratillll of Ihe cOlltr<l(t?
Have you spo.'cifit.'d what l1.1ppen$ in Ihe (,'."o.'lH of parlial inYalidity or nont..'l1-
j()rce;lb iIi
Contracts . 2-45
Conditionals
.--\1101' the a(!I\ilil.'s Ihal surround contrJcts Of the bw involve Il1Jny types of (un-
SOl11o.' you em e.lsily as conditionals becJuse they corHarn ;111 if
..:I.tuse and J. result clause. Lel's look all..'xamples from Ihe Supreml..' Cllurt Rules:
I. If Ihe (,)un anlrms a the petitioner or appellant sh'llI pay (osts
the (ourt otho.'rwisc orders. tSup. Ct. R. --13)
If Ihe Court revcrses ,n a ilILlll1ent, th.,' ro.'spnnJ<..'1l1 or .lrpdke slull
pay (osts 1I1lb,s the Court otherwise orJer:.. (Sup. Ct. R. --13)
.-\i1hough lhl:' normally is th.: first dause, it isn'l J.lways.
;\ dowment is tIled , f it is received bv lht: Clerk within the time spl:'ci-
Ilt'd 1ilin\,:. (Sup. Cl. R. 29)
ThL' rules tllr builJmg .... onditional sentcnces in English are fairly comrliGIl:;:,d, but
only.1 few basic Jrt..' important to our discussion.
Future Real
Jililire tilllt:
(next Tueslby)
;1(/;011 rl'slIIt
truck isn't here
we don't accept deli\'cry
0:oticc thal th .... action, which is In the 'f d.lLIse, stJ.Ys in the present tensl:' o.'vcn
though the .Ktion t,lke:, pl.KC in the future.
Jil!urc llc:tillll: If tht.' truck isn't here by Tuesday
On the olher 1I.lnd. Iho.' result ,..:I'IUS!..' can LIS!..' will or .IIIY olhl'r marker p\ futuro.'
t i lilt'.
iulllrl' \\"1:' will not ;lcccpt delivery
{ri/un: reslt/(: we .Iren't going!O accept delivery
246 Americafl it..
ClHllbine p;Jir or sentcncl'S to m,lkl' one fUllln.' condilion.d Sl'llll.'IKe. In
each el:; .... , m,lkc the first Sl'ntcnce Ihl'
C.X.U!l{lfc will ,HflYl' ,lin g'.);.J',:; to
If th ... pbne .lfrin:s 1.11c'. I .lIll gUIIl:; 10 miss the m<.'l.'ling.
1. Your rathl'f will sign thL' (01][(,11.:1 fur you. \\'c ..:,111 sei! ymllhl' (,If.
J You don'1 smoke CigJfl'lh'S. YOUf liJ-":- insLlLlllc .... prel1liums will be IOWl'L
--
-1. Tht' (on[[J(1 can be re3dy next \"<.'l'k. clients won't 'Jbjt'cl to thl' extra
for express nlJil ddivery.
The brothers will.Kcl'pr Ih.H the Zehmer:-; were iokmg. Tht.' judgl'
to b(' ,lblt' to dismiss the C1S(".
Not Real or Contrary-to-Fact Events
If the actions and the result arc not n.'.ll ("lIltr,uy to LlLt") in [he or fu-
wt.' basicall}' _just use the past forms.
1101 rCII! flctiol/, prcsellt timc
If my lawyer worked here,
doesn't work
11,)[ (cul result, presl'nt lime
lVe could fill out the fnrllls right now.
so we (;1[1'[ fin out the forms.)
Contracts 247
The tnllnwing LIMn heir with the when shifting lrom the real
forms tn the ICTF) (orms:
Future
ft.,;,1 [(Inn
CTF fllr:n
i'feS<':l1t
fe:,1 fOfm
fl)fm
Past
re,lllnrm
CITfllfill
Pres.
re;]1 form
CTF form
Past Pro);.
r .... ,1
CIT form
Ifhe h:1S ,1 probkrn.
lfhl' hd,j ,I prol'krn,
IfIH: h:IS ,1 pmhkm.
I r h.: had .1 problem.
If he h.,1Jl ;1 problem,
If he II"" lidd .1
I(h.: is 11;\\-111:;:.1 problem,
If he IIWl' l,millg.1 probh::m,
It" he \\.h h.n" in:;: .1 prubkm,
If he 1,,/,/ bl'cl! IIIJI"ill!!, a problem,
I It
I wordd Sl)ln,: II.
I mlvl' 1(.
I wOl/h! i:.
I suh'cd Il.
I wlllild 11111',' 'illln:d it.
I il.
1,1'0,1111 soh".: il.
I soh-ell it.
I would hal'l' soh".J il.
:\otic::: th;H in formal :\meric;ln English, we must stiU use wac for all forms of uc
in tn;lI ;lre contr,lry-to-f;1ct events:
!lot rt,/d II(/ioll, prC51.'1l/ tillll..'
If the jlldgml.'llt were aft"irmeJ,
/lot rcal rcsult. prc5Cllllillll'
all)' penally by I.lw \\-ou!d be
applied,
eh,mge the pairs of st'ntl.'llCCS to unreill conditionals. You will net'J to lllilkt.' the
\crbs neg.,lilc.
E.-..-tllllpil': The budget is tight. (wnn't give YOU;J raisc.
If the- buJgct werl..'nt tight. I would give you a raisc.
The dam broke. ;-"'\y was destroyed.
If the d,Hl1 had not brok.:n, my house would not have bt';:'n destfO\'CG.
l. The appeal isn't tImely" The panelwoll't review your case.
His paper was too long. wert'n't ;lble to accept it for publicHlon.
248 America!. English
--------
5. file land reform laws were passed. Tht' lost 1111.' land.
-!-. I didn't read Ihe journal artiLie.1 didn't know aboul Ihe changt' in the law.
-, ill' 1,lIvyt.'r missL'd th<.' filing ThL" GISt.' was Jismisst.'d.
6. The studellts didn't They failed their eX;lms.
S. Tb: ded was found in his safe. \Ve (auld prove ownership.
9. :\11 important dil'llt is coming to sec 1llL' lata. I am working herl' at Ihl' oflict.'
Oll Sunday.
10. She IS vcr)' intelligent. She is working for thl' minister.
Unless
PerhJ.ps the 1110st .:onfusir:g of the wnditiol1i11 forms is ullk<s SilKl' it is the "nL'g;l-
live" of ij: Tht' following: two sentences mean just aboLH the SJme thing.
Unless he ",rrives by 6, we \\'ill not be to honor his request.
Ifhe doesn't ilrri\"c by6, we will not be able La honor his request.
Contracts . 249
If the following contain 1II'/{,55, rewrite them with if and vice versa.
EXl/lI1pl.:: Original: If he isn't late, let him take the exam.
Rewrinen: Unless he is late, tel him take the eXJm.
I. Unks5 they have k:ft a credit cJrd as a deposit. they mus[ pay the full Jrnount
in aJ"ancc.
2. The contr,1(t requires them to complete the work by next week if it doesn't
ram.
3. If either p.lrty is the contra.:t is not enforceJble.[Him: Replace
t:itlra wilh barlr.)
4. Generally, ;l(ceptance must mirror the terms of the offer unless you usc boiler-
pbtt.' forms.
5. Unless it is market practice, silence does 11't normally constitute acceptance.
I3reJk this complex passage down into a series of i/statements. Compare your
answers with your classmates' answers.
Whenever any record to be transmitted to this Court contains material writ-
ten in a foreign language without a translation made under the authority of
the lower court, or admitted to be correct, the clerk of the court transmiuing
the record shall advise the Clerk of this Court immediately so that this Court
may order that ,1 translation be supplied and, if necessary, printed as part of
the joint appendix. [Sup. Ct. R. 31]
250 A.mencan. r:ngli5h
Level V; Additional Exercises
Applying Content Knowledge
What Constitutes an Offer?
Y\Il! ,In: working lor Dinll.'b\)x, Inc., ,lnt! rl'u'ivl' tr., .. Dill1"'hox.I:K.,
ordo.'f form (rolll Bruton, Illc. Th ..' (ompich.'d ol"lkr [{>rill is Crorn;1 T-shin c;,t;llog.
In wriling this dOl"lIJlll'IlL IS nr is IhH.m
Shipper:
DlMEBOX, INC.
W. Grove SI.
Springlield. MO '38823
Receiver:
Brulon. Inc.
lJO N. filam
Kilgore. TX 22205
Dale' 30_ 1998
Orders
Item Description
I No. I Unil Price
X19881 While XL T-Shirt 100 5.00
X29881 Wilile L T-Shirt
I
500 5_00
X-39831 Light Blue XL T-Shirt 500 5.00
Shipping and Handling
Sates Tax
TOTAL PRICE
Total Price
500.00
2500.00
2500.00
0.00
0.00
$5500.00
Orders wllT:J1O :;h,:;pc-d I..!PS. Purct:;;s'Or IS fcr sh'>J;:Jlng be
\\I'lhm 30 G;';ys oJl lec,;o'OI aline Older
Hillt: .--\:;k yourself th ... til!lowing qUl'stions
l. I.s therc intent to contrace
1 Arc there identified parties (off..::ror/offcrcd to tho: Who are thev?
3. Are the tcrlllS de;lr .lflt! Jdlnitl'? .
--1. Is lhl'rC;l Juration for ,Kcept,lI1Cl' or Ill ... nffLr?
Contracts . 251
--------
Counteroffers
Diml'l)()x, Inc ro:sponds to lhl' order of Bruloll, Inc., with the l{lU'lwin); Il'[t..:::-.
BrUltlll.IIlL'.
100 N. \bin
Kilgl1ro:. TX
Dl'ar
Dl\fEBOX, I:-:C.
,nl ,,'. C!"O\'e SI.
\10
DUI: [u onkrs during th-..! ordering: \\C' unahle
tv yourorJ..::r withm 30 JdyS. \\C' within --!-5 Jays unk:-.s WC' he.Lf
l1[herwise frolll you.
Siol'C'rL'ly.
TL"J Halton
Dilll..::hox. Int'.
Tht' h ... aJ of the saks department of Bruton, Inc., wants your ;illVICl' on \\'hat
thiS lett;.;r me:1ns. Expiain the situ,ltiun to him by answering the followrng questions.
1. H;lS th ... ,.:on,,;"\ct b ... en ,l(cepkd?
2. Is this a (Remember thaI tile accept;mce fllmt mirror Iht' ll'rms
ofLheoffl'r.)
3. If this is <l coun tcroffer, wh,lt musl Bruton, Inc., do Ilext?
!fthey arc willing to accept shipment within 45 days, what should they do?
5. Should they remain silent?
6. Should they consider the offer terminated?
7. Do they nceo to revoke their offer?
252 Amen"mn rlf English
Remedies to Breach of Contract
I. IZ,:\il..'\\' tht.' Ill.:mn tormat in CIl;lprl'r Two.
In prepare a menll1 f()f tht' hl';ld nf Dimebox, 11K., who is collct'rnl.'d
abuut fullllling lilt' (Ontr,](ls b1'G11l5t.' t/1l'fl: have bl'l.'ll probkms with .111 8f5011-
1St in the warehollse aft'a, Dil1lebox is in I1cgoli,lIions [0 felleW ils fin.: iilsur-
,1l1(e an J has no insul ,1111':1: L:(Hl'rJgo.:. An'>\\'I..'r lht.' rollu\'.'ing que:'lions
in your Illemo.
,J \\/I1.1t il Diml..bo\" In..:., \"lntbiizL'd.wJ lilt.' building burnt"d? Ve \\'C'
(Dimcbox) respon-;ibk (llr pro '\'iding the T-shirts III Brulon, 11K., .lny
orht.'f dil'nls?
b. Will rhc- coun rl'qllirc ... ci:i..: pc frum
HillIs:
Are thl' T-shins unique ;me! nonrephtcl'Jbh::, or will mont.'t;lfY dafl1,lgl's
compt'nsatc Bruton, Inc.?
Cons](.ler tht.' order!ng it make a diffe:-l'nce?
Will Bruton, In(., sun .... r irn.'nledi.lblt' dam.lgl's if it dnt'sn't rt.'c::in tilL'
T-shirts?
\Vill it bt.' possible for Dimcbox., file., tt) perform?
\\,illspt'citic performJncc .:T'.'J[L';l hardship (or Dimcbox, Inc?
Legal Drafting
I. Rl.'view the following (:0l1lr<1(1 (not all provisions art' \\'hich \\',1;)
ac[u;llIy used as an .1gCll(Y 'lgn.'Cn1t.'llt betwCl'll Iwo firms (names, produ.:::!S,
and (ollnlrit.'s haw bt'Cll dl.lngr.'dl. TilL' llali\'c langu;lgc of the drafters of thl'
contfact \\',1S not English.
;\s rcad, try to CXJclly wh.1t the parties iutl'l1lied. Snlllr.' 01 Iht'
provisions are confusing, in part JUL' to improper 1,1llt:U,Jgc use.
3_ Diyzlle into groups and rewrite [he contract as if from Ihc
bw firm representing principal. Hints to ',lid in your revision Me provided
in buld.
-1, In rhe rl'Ji world, when .lbout the terms of an ;lgrecl1lt'nt lht'
altoflll.'},CH1 ;lsk m.magt.'B1cllt \l'h,lt \\',IS intendr.'d and wriTe the provision tn fit
the Ia\\, and mal1<lg:t'l11cllt\ expt'oJt!(lns. I n this contr;l(t, you don', hJ\'e [h,lt
ortioo, So makl.' equitable but don't forget rh.1t rot.! feprCSl'nl thL prin-
cip,d i!l this (<1$'C,
j
1
I
,\GE:"'CY,\GRED'IE:"'T
'\'0\\' THEREfORE, III.:: han:: :lgrc.::J ;IS roliu\\'\: .
inrormalioll In rhe teg!!1 Thumbnail. Somc or the l:mguagc abOlC IS
1IIlnl'CcssOlry.1
1. :\I'l'Ot:--'T\I[;-';T
Thl: app,}inls (Ill' :\g.::nt :IS llle e:;:L'luSi\'c :lgl:n! in lllL' T.::rrilllry 10
prnnmle Ihl: llrlhl: ProJuctS. r d "is entillcd
d
'"I t bc"n'" creared here'! esc "o;hall" Ilhen erca mg au."
lis a lit) ur a rlJ;.'1 I ..
to'" nhcll ercaling:t right.1
P
_. '1" ......,' t,l ;11 lIS Jiscrelion th.:: rig,hllo :mylirne
]...[. 111e [J IlUr,l . .' .. 'J'" II'
.. .. '1" Jill" ilo.:l11S lhereto or 111:I11S lherclmm \,LI .'
01 tuoed urdcrll " i ai's nmilo! Ih.... ,.l,genl. EXl:l:pllllll
ltl bo.: in o.:;lc11 lh';lSC
p
' 1I.pll.l.l llf lhl: production 111';\ prm]II..::11lr
\0 Ihe ahll\'c IS when I I: flllllP,l .
pnll]u((illn lille.lunnccc!.sary. old-fashioncd languagc!
I .fl, . '1l1e Prino:ipal II ill llie .'\gem 'l'ilh price lists :lI1u and shall mm !Iv
1""'",,,,-,, I I P r.
- '- u urc CmiC, nlll a duty.1
I 7
Hie Princip:J1 wil[HllIl tid:]\' inltlrm rhL' -\"cm whcther il ... , ., -
I '\ I,\Yh . - ' ,.. .Jc<.:cp Oful'rs lorwarJeu
'y Lll! c ;!<':J11. llt does ''lllrhouf riel:.}""
:'i. CO.\I:-OIlSSIO.'\'S
5. The .-\g,1'1lI is I'nlulcJ (() IhL' prlll'illed for un :111 s' J" r
j _ ,I . _ .JC\I!
T.' .' _ c a (urm;,. Lie lam III Ihl.' O:lll!!LlC[ 10 L'Ustomers in Ihe
crTllo0 .mu (0 which Ih.: r\gent comrihUll'u or II"hio:h 'Ir' til, . .
:\l.'cnl in [he Tl'IT!lllfV Th .. '" _ " . <.:. ,'" p"nnJnl'riI t:usrOnll'rs III Ihe
- .' C 1\ ntH clllllkd fU rhl' formht'r 's orth'
Pr(IUU<.:ts 10 thl! Tl'mlOr\" 'I d" h h' .. ., t:. t:
d" . lflL U UIIlOl I'lIIg 11IIlltl'u [0 S;tl\.'s.j,\re YOU ercalillg:1
, or a here? Wh,,,, docs che la!>t line meail? The phrase is Il;OSI often SC'C
a.o; but nol limiteillo."l . 11
ThL' A!!l'nl\ ri"hllll c')r ... ' "I "
0,;' ., -' , 1.1 ill'l"llml' JLlI: anu Ihl' commission sJrali h..:
tjuancrly on Ihl' caJl'lItbr ycan for lhl' Products ddil<.'red to :laid in full
I lhl! cu.,rtJrTlcr tlunn" lil ',)' . tI ..
. ' .. " III 'llIe.,llOn to lhi.'i Agrecllll'nl. Paltl1l'll! 01 Ih'
slnll be llI;Jd' bl' Ih p' . I .. . . t:
r h
.' .' '. <.:. I' nncrp;r wllhm lhrny (30) Jays rol1owim.! Ihl' full pJVIll'n!
o I I' !/lvorcl' 01 the ,lfOUUCIS Jr ...... b' . . - <.:
I 11'ctto conums,rnn 1''rh''l1 is Ihc \<>enl t b
paid?1 . - " ... 0 e
:\ppl'TlLiix
COMMISSrO,\"s
I", L',]SI'S where oflhe PfIluUCIS ul'ah Wilh ill lhi., Agrl'L'mell1 dfl'Cll'U b\' tht:: J".,., L
aonl'.llr;Js.lrcsuiloflh' 'omb' 'I'rr; . " .. ' . ,=,_11
. ..... . <.: l. InCI t: nflS oj IIII' PnrlClp.11 anti rhe ,-\gem.lhe .. \!!l'n! skIll hL'
\':Jf}'rng II [[h [he t,I'PC or s;rlcs inl'olved ;lI1d uL'lcfmincu in act:t;n.!;JnlT wilh
I t) o\\,lfl!, you simplify Jhis
\\'ithrl'sjll'Clof"iI' Ir!h-" I ,-
. ' .01 WI uelS iu :\pp<'ntlix I (1lI1lIlli .... uf[he '
1\llfks prrt:l' shall he p;lid: and . ex
..rr- I h \ . .
.... t:.\ In n I C " :;1'[1\ s tlrl!ll' rroJtIi.:LS u<.';ilt wilh in this J,,"rt:<'In 'n[
;lrl' eitected bv !hl' Prirrciptl il' \t1T C . . , .e t:
r" ,., ... :. .' ' s, . r !;tle IlIllP:lIlICS, or reg\llarly :Ippuinted a!!l'nts or
'.he S clllnnlissillll wi!1 :Inu 'unl 10 50", 1'[' til.:- ..:, 'mp .... pal 'Ihie [0
L 1<.: nnopa 0\' IlS Allrli;n' C .', '. . -' ,
, - Ilr II> 011 'weh lIs thb
CIJIlSISlelll mth Sectiun 5?1 ..
In cases where the Princip' I bl" tl r
h
. ','.,' ;J.o ,1t11S or L'r.' fOmlhirJ panics IJtllsitlL' till' A!:!l'nl's T..:rrilor; for
r cudllt:rvotthl'PrutlUo,;ISUlttJlh' \" '_T . . - .
. ' ., C I hell( 'l'TTlIOf)', Ihl' Agcllt S \l'ilt be retlu{;cd
II) II., III [h<, nomwi rJlcs.jls this COllslslenL with Seclion 5'!j
Chapter Nine
The Mock Trial
All countries h;lW Jifferent methods 01' conducting :rials. Throughout the chap-
lers inlhis book. you hJ.\'e been given insights into the manner in which a triJ.l is
conducted in the United States. Now you are going to put that information 10-
gether and conduct a mock trial. That is, you wil! be responsible for "conducting"
a trial from pretrial activities, such as obtaining depositions or imcrrogatories, to
the actual trial of the case. Members of the class will be assigned roles as attor-
neys, witncsses, jury members, or even (he judge, Before doing that, though. you
\, ill nLed tn revit'w wh,H )'OU know about trials. both in the Cnited States and in
your country, since thinking about the differences in the two s}'stems molY be
helpful to in the preparation of your case,
Activity
1. In your country, you arc representing a client who has been injured in an auto-
mobile accident. All attempts to negotiate a settlement have failed. and the case
is going to triai. What do you have to do?
If the same situation occurred in the United States, whJI would you have 10 do?
255
256 . An "r) Legal English
Essential Terms
SomL' or the-se 3re terms that you have encountered in other chapters; however.
you will need to refresh your memory before proceedi!lg.
pI adings: statements rtled in court that detJil plaintiff's and defen&mt's cas('s
complaint: sWemcnt fiJ.:d br the plaintiff stating the CJuse of anion
answer: fiJ.:d dcfend.lI1tlisting to the .:ompbint
discovery: rrocess of obt:1ining information .lbout the other p:trty's Lase prior to
the ,Ktual trial
depositions: norm311y oral questioning of a party or witness by attorneys; there
Jre also written depositions
series of written questions directed to one of the p3rties for
which written answers are prepared
admissions: requests from one p.1rtr to J.nothef requesting tJut the party agree
to the truth of different m'1iters
stipulations: agreements by the panies about the of certain matters that
are presented to rhe court
courtroom terminology: terms used whe-n conducting a trial
Your Honor: term used by when addressing the judge
[esteemed) colleague(s): term used by attorneys when addressing the opposing
attomers
bench: judge's desk
Your Honor, may I rlpproach the bench? a requcslto stl..'P close to rhl..' judge
and say something to him or her that you don't want the jury to heJr
Your Honor, could we have a sidebar conference? ;;:lme- as "approaching the
be-nch"
ladies and gentlemen of the jury or members of the jury: term used by judge
and attorneys when speaking to the .iury
recess: a short bre-ak, as in "Your Honor, \',,-oldd it be rllssible (or us 10 h;'H'c a
recess for minutes [0 (whatever re-Json)?"
bailiff: the "helper" in the Courtroom; swears in witnesses
exhibit: arlY documen t or olhe-r evidence you wanr physically placed ill the record
witness stand: where the- \\itne-ss sits when te-srifying.
jury box: where the jury sits during the [rial
1. Listen to the tape 3S the attorney for Ms. Cherrr, the plaintiff in this action,
describes the trial process. Take notes on the conversation.
2. Is there anything th.lt he has forgotten to tell1Yls. Chary, a woman who knows
nothing abollt a trial proceeding?
I
I
The Mock Trial . 257
Level III: The Case
On July 10, 1985. at approximately 9 "\.,\1., Theda Cherr}, and Gary McCullough
were involved in a traffic accident. McCullough, on his way to a meeting with a
loan officer at First American Bank, was driVing east on Jefferson Avenue (a four.
L:me road) when his car went into a spin, swerving inw Cherry's !rIne of traffic.
striking her (;1 1983 Toyota Corolla) on the front driver's side. Cherry was
thrown al!.ainsl the steering wheel of her (ar. She broke- her nose and complained
of pain her knees, right hip, and chest after be:.lg taken [0 the Brlptist jI.lemorial
Hospital Emergency Room. She remained in the hospital for seven days. She- was
the onlv one injured saiously enough to be t;1ken to lhe hospil:ll.
claims that he had to slam on his br:lkes, which caused him to
go into J spin, because iI fullsize CH, driven by Janelle SlI.'m, had backed out of a
lot into his bne of traffic. Base-d on McCullough's allegation, Cherry filed
a suit against both McCullough and Stem, claiming medical expenses, loss of
l'arning capacity, and property damage resulting directly and proxim,lIc1y frum
the collision ;l1ld neglige-nee of both defend.lllts,
Cherry states that she was driving west 011 Jefferson Avenue in the center lane.
She \"\'as driving about five mph because she was slowing down to stop at;l
red light that was approximately 100 feet a\v:ly. Cherry claims that McCullough
was t;avcling between fifty and sixty mph immediately prior to the accident. The
posted speed limit is forry mph. Cherry didn't move :lnother
she was worried .lbout hitting someone eLe. So at all urnes, she remall1e-d 111 the
center westbound lane. Cherry says that she noticed no vehicles in front of
McCulioug.h Jlld didn't see Stem's vehicle (,Lther before or after the- accide-IlL
\-\hell the- accident occurred, Cherry was on her W.1Y to work at the Semmes.
},lurphy Clinic, where she \Vas an Xray technician in the radi?logy
Chern' is years old, divorced, and has two grown children bVlng in the
She has a history of prior medical problems, induding breast can-
cer, wh ieh, after a mastectomy, required breast implants, .md arthritis of the- spine.
After lhe <leciul'nt, rceo/lStructi\'e surgery was rClll.lireJ to replace the breast illl
plants, and her arthritis worsened. Che-rry continued to work up until 1990 when
she was required to l1;.w(' knee surgery. Since lhat date she has been unable to
Him lo work.
McCullou!.!,h stared that he was driving e<lS[ in the center lane on Jeffe-rson
Avenue ill fifteeH to twentr-five mph, when the vehicle driven by Stem ap
peared ou[ of nowhere in h1S liIne- of traffic This s.tatement was at
the accident scene by an eyewitness who WrlS walklllg to her car In the parkmg lot
when the accident occurred. To .woid hitting Stem, McCullough slammed on his
brakes, which caused his vehicle to go inlo.1 spin, stopping in the cenler west
bound l.lne and colliding with Cherry's vehide. He was driving a 1985 Chevrolet
Camara.
McCullough. who is married with two children, was thirtyllve years old al
the- time of accident and was, Jnd still is, employed by Fede-ral Express in
258 . Amen'can L. 19{ish
hub Ilo\\'cr-le\'d managCTlll'nt). Hc suffered only minor
injuries in 1111.' collision.
Stl'Jll sLatl'J that prior to backing her 1975 Lincnln Continental out onto [ef-
ferson, shl! chcckeJ the traffic saw ,\kCullough's ('Ir in the center bnt'. As sht.'
backed nut of thl! pay parking lot onto Jeffersfln Avcnuc at all times in
thl' curb :alll.:. H::'f passl'gber in tht' (;lr, conlii""mcd her statl'rTIent;it [he
,IO..:iJelll scene. Slem SJid saw j\kCullouh lose con no I ot his Glf anJ collide
with Chary. Shl' ,.':-.til11,lll's tilal ;\kCullough W,IS ,II .lbout to
riftr mph h..: lost COlllro:' Ac..::orJing III Stem, Chcrrr was not "going
[1St" and never left her bne of Irafiic.
SIO:I1l, who works IUf Memphis City Schools ;IS a seCrl'r'Hr, was forty-five YC.lfS
old ilt the lime of tht.' accident. Ha )tepson was louftl'en, Th.1t Illorning she hJJ
taken time off work to take ht'f stepson to the dt.'ntisl's office for his annual
checkup. She was taking him back to $chool \\hen ao.:::icenl occurred.
Dr. Simmons, the emergency room physician ;It Baptist J\.iemori<1i Hospital.
st;l[ed. [hal Cherrr suffered a broken two i"r.lLtured rills, tr'\llm,l to ht'f Stl'f-
Illllll. pain, contusion (brulslllgJ 01 both and a sprained right hip. He
stall'd [liat the worsening of the spinal.lflhritis after the accident might have 0"::-
curred even if she hold not been involVl'd in an accident. He ;lIsa slaled that [he
pain involved with degenerative arthritis, p;lrticut.uly with bending, twisting, or
prolongec sitting, Gin be severe enough to cause someone to be unable to work.
Of. Witli,lms, Chary's fcgular physici;lll. st.lteu th;ll prior 10 the accident the
prcexisting arthritis, of th .... spinl! anJ right hip, W.I$ not causing Cherry any prob-
killS. Howcva, since the accident the .lrthrilts has pl.'rsisted .1IlJ not improved. He
estim.ltes th,ll sh..:: is 20 pl'rccnt dIsabled. Williams Jlso stated thJt breJs[
imphlnt::. rupturl'd. during the ,Kcldenl becJuse of the with which :::he hit
steering whed ,lnJ had to be rephKt.'d.
Obtaining Information
Asking Questions
When asking for mform,lllon, we lise four basic of questions to ;J.chil'\'e dif.-
ferent purposes. Let's look first;\t the slructure of the four.
Type Example Structure (\\'ord ord .... r)
.res/no Were .1'V/I drivin<> above Ihl:' spl.:ed limit? :il/bJt'ct \'crb
wil-
I
Wh .... re were rOil that
I
wh- ,Il\X iffl1j.:ct verb
negalil'e Weren't },Oll Jri"im: too tast?
I
,lUX -n't 5l1bj.:ct verb
I \"1.111 were driving too fast, wcr.!n 'I ),Oll?
I
$lIbjL'cr ,1lIX (neg) J.ux
The Mock Tn"a{ . 259
1.IUX:::: ,ILlxili,lry Vl'rbJ
i 11"11- include:,> Ll'llllf, lI'IJar. W!JOI, 11'11)" and lIOn')
\\'hv do h'e h.we lour diffcfent structures? Each of the structures rdll'cts wlut the
Jsking the qUl'stion bdi..:v::":s ,lbout bJ.si..::: premisc !slatemt'lltj bchinJ
the question. Let':-. look.1I ollrl'xamplcs ex'lmine whJ[ the b.1Si( prcmise in
c;h:h IS,
Type
Were you driving aho\'e thc
speed limit?
Wh..::re \\"('rl:' you goin!; thaI
ml)fmng?
)'llll \\"O:fe driving 100 (ast,
weren't you?
Whal the Person Asking thc
Iklicvcs
You were driving.
You Were driving some\\,hae
I Qeliev .... you were tOll r<lst, bIll I'll
chance to
I believe I'OU were driving 100 r;lSI, .md I
expcct \0 ,Igrcl' wilh fil('.
Chan!.!e the sentence in brackets to the correcl form 01 <1 question b;lst:d on wil;lt
tht: p:rsoll asking thl' seems to beliew.
E'Cillllp/l': Roxanne, the receptionist: Hello. ;\ls. Fernandez. Tuesd.IY, I 1'.\\',liko:
clockwork. ______ _
here to set' i\lr. Cross.]
;\nsw..:r: You're h..:rc- to see :VIr. Cross, aren't
1. fern,Jndt:z, the client: Of course, week the S'll1le. ______ _
I:'> free.]
Roxanne: I'm sorr)', he isn't qUIll' ready fOf you. ______ _
[\"\.)u would lib .. ..:oifce whil.! you wait.]
3. ;\Ir. Cross: Rox,lIlne, ob, hello, Ivls, Fernandez .. ________ ? Time is !lying
toJay.
lIt is I P.:-"1.
'_---,.
260 . American L, English
-I . \-!.s. Fcrnilndcz: Hello. I"m in no hurrl'.
----
l You nced more time before you sce me.]
:::>. :..rr. No, no. Ple,be (orne in. You're alw3Ys::.0 punclu<![ and orga!lized.
[You bwughl th!.' corrcc:ions 10 the contr,l(l I faxed vall.!
- .
Hiddt:11 J\;l'1.!rlli:C5
Then' are;l fcw ;]dJectivcs and adverbs th;H :1[e strong negativcs (such as Jwrdll'
and sc{Jrcdyl but don't look like ncg;Hiw5. \\'110:-n vou form lags with (hem
, - "
must treat them .iust as you would //Ot.
nOI: He isn't going to appe;l[ after ali, is he?
lrar,lly: He \\'ould hardly dJle to ;]l'pL'al, would hc:?
Answering Questions
B.:'C111SC different languages have di fferent ways of briefly JflSwaing -"l'S/I/O ques-
tions, it's "cry to be sure [h;ll you understand the brief answers you
gel to YOllr questions. 1'i.'s or 110 with the repcJted alDi:iliary (,'Yes, r did" or "No, I
haven't") is .1!W;1YS the safest answer to the three types of )'t'S/JlO other
answers ue possible but m3y lead to misundcrstilnding ofliol!u!si.ic

Tvre Example
!
,
-ec
Were (driving abol'e the speed
I
,\Ju, I wasn't (drlvJn!!. .lbove.
limit)? Yes, I was (driving above . . _J.
nqpllvc Didn't you (Jri\e luo fast)?
I
:--':0, I didn't (dri\'c too ... 1.
1''':5, I did (drive too. -.1-
tag I You \"en.' (urn'ing too fast), wcr..:n't YOll?
I
;-';l), I wasn't (Jrivillb too . .. J.
I
Yes, {driving too ... 1.
Here is J. fiction<11 biography of ,1 Chinese American b""yer that you will use in
answering questions JS though you were shl'.
- i.
j
I
I
I
Xu ;";,]imin ($s. Xu) is originally rrom Hong Kong, but she came to the
l:nitcd Stat.:::; with her PLucnts when she was young. Her fflends ('lli her
She ah\'avs wanted to be a lawyer and graduaLed at the top of her class
in law schooL .:'\(;W enjoys practicing trust and est;1te law in a firm on the
I 17th tIoor of the World Trade Cenler. She York and has onc ' .. ery
ugly cal, Chocolatt..' Torl,
L Isn't Xu your fir.[ namL'?
Answer: ;\"0, It isnt.lt"s my family name.
You're noL from H,)ng Kong, arc
Answer:
3. Aren't you working in criminal bw?
Answer:
-I. You didn't re;)Uy name your cat Chocolate Tort, did you?
,\nswer:
Are you working on the 11 5th floor?
Answer:
6. \V'ert' you c\'er not going to be <1];!\\.,}'er?
Answl'r:
7. Did you lurdy gradU;l[t..' from law school?
Answer:
S. Don't rou wish you could move somewhere ds!.'?
..\ns\\'cr:
$. bn't it dlat your Ieg.1i name is Naomi?
Answer:
10. Wouldn't ,1grL'c th.lt trusts and estates ,lft:n't wry inten.'sling?
Level V: Case Preparation
Teams
The class should be divided into three teams: one team to plaintiff
and one t..',1(11 for the coddend,mts. Team members will pby the parts of the
attorneys ,llld the wi messes who .ue to be called by that tealll. Your instructor will
cither the roles or you 01;)), decide among yourselves. Possible witnesses for
the different parties arc listed below.
262 . American Ll English
! Pl;linliff Dcrcnu<lnt t'-kCuliough Defendanl Stem
J,melll" Stem
'andk Sll."m Eyewillh:ss Stt"PSOI1

Dr. Si m:nons -------i----------------------j
Dr. Willi,lms
Cherry's empluyer
Case Theory
Auorneys need a theor), of the case, that is, something about the else that
can focus on to convince the iudge or jury that their client should win. After re-
viewing your client's story, you should hJ.\'e an idea of how to proceed. In this
case, negligence 011 the pari ofholh (kfcndanls is ",h.lt have 10 prove, but.1
.. asc thcury is mure than just deCIding who bl.' hdd ;l(cOlllltable. lour goal
as J trial altomey is to make the jury feel that their decision is not only legally
correct but also correct. How can you combine the legal and moral as-
pects of the case into a viable r Glpabk of bcing successful] G1Se thcory?
Before proceeding further confer with your group mcmbers to decide on
what you feel is the most effective theory of the else to maximit',e your chances of
prevailing during the triaL
Discovery
Your instructor will give e<1o.::h tC3m .Idditional inform.HlOn th;lt has been provided
in the teacher's manual. However, as you work on preparing your case, you rnav
still finJ that you need further information. YOII do not want to go into court un-
prepared, Never ask a witness il question to which you don't know the ill1SWer; you
might not like the rcspnnse. To avoid surprises, .lttorncys conduct depositions Jnd
submit interrogatories to the opposing parties.
If you need additionJI in form,ltion, submit written depositions or interroga-
tories to [hI;.' teams fro!:l \d'lOm you need J.Il JmW('L For purposes of this mock
trial, a nonofficial form;H is acceptable, such JS
IN THE MATTER OF
CHERRY v. McCULLOUGH & STEM
INTERROGATORIES FOR GARY McCULLOUGHo
I. When did you first see thJt Ms. Stem was backing out of the parking lot?
2. Approximately how fast was Ms. Stem going?
3. When were the brakes on your car last inspected? Do you have the records
.lVailable?
I
The Trial
The law
Depending upon tht.' resources available to YOll, your instructor may that
vou ("o:lduct research on :he legal or provide you With a sum-
of lhc bw. WhichcvCf is taken. remember that Ihis GlSe is bJsicaHy a
ElLa'lal onc. is linlc doubt as Lo Ihe law th'lt governs the issues, but there is
consider.lhle 'iurrounding the racts.
The Facts
Sincc are so lmporlant in this case, it is yitaltha.t
vour review the material lhat has
been givco to them. Witness credibility [believability]
pbys a IMge role in determiilations ofliJ.bililY, espe-
(jail)' \\'hen there is conflicting factual testimony. Pre-
p,lre lht.' questions you w.lIlt (0 Jsk your witnessl.'S
,lhcad of time. TIHHlgh .1ltOrlleys aren't allowed to put
words into thdr mouths, it is a rarC attor-
ney who doesn't let his or her \\'itness know what [he . .
questions will be. In the case of mock trial, coaching/prepnrmg the Witnesses IS
allowed. It is much more difficult to pia)' a part thJn to recall an incidenl.
The Order
R ..... ylt'W the order of ,I trial in Chapter Four. This is eX:1cllr the order that you will
1'0110\\' in this mock trial. Your instructor may choose to limit the lime <\vaitlblc
for opening sl;ltt'ments, closing argument. and rebuttal. If so, stay within those
time limitations.
Objections
During the trial, .1ttOfneys are permittL'J 10 ohject to sl;lteJ11cnts or questions
improper. This occurs most orlen during the examination 01.
\vitne::.sc's, but objections can also be maul' during opening slatements ;JI1d
.lrgumelHs. It's not wise to ob.ied Illlle you have i.I cause for an objection, tor
milny differen l rcasons, such .IS
l. Jurors' reactions: An occasional use of the objection is scen as part of the J.tlOf-
nev's job, but overuse is boring. Or even worse, the jurors might believe that
.1Itorncy is ;Hlempting to keep relevant information from them. The attor-
ney needs maintain his or her own credibility in the qes of the judge and
the jury.
264 . American Lt i I;nglish

ludg .... 's n:action: II doesn't look good to losc.lf Ihe judge overrules
r I man: of your aLiccl ions than he or she sustains [agrees wilh J, the
.iury will renlcmber IhaL The implication is Ihat you are not errective <IS coun-
.'lei, which negatively affects your ability (in the eyes of the jury) to present the
fJcts in ;} belicvable manncr.
3. 0rposillg rr.'acti'JIl: ShL or he will remember, Jnd a saying in English
is "\\'11;1t gocs around. come::. that is, you might the same treat-
ment ob.iectionsi in turn.
,I. If th .... exclusion of Ihe .... vidcncc isn't essential to .1dvancing your of [he
case. it isn't worthwhile (0 objt:ct, for ,my of rhl' abol'\.' rcasons.
5. II" the must simply be rcplu-.tseJ 10 be Jdmitted, then all objeciion
mis-hI be unwarr<lnted. This tS particul;trlr true of leading questions on direct
eXJmination.
C0l/111101J Objectiolls
Leading Question. A question that suggests or contains its own Jnswcr. LeJding
ljllt'..;1 ions arc not .lllo\,cd on din:t:t eX,lJ1tination hut are allowed durillg cross-
ex.lIllin.llion.
.4.rtOrllt'}': Isn't it truc that rhe defendant was not wJ.[ching the tfJ.ffic when
the acddenr occurred?
OBJECTION: Objection, Your Honor, counsel is leading the witness.
COllrt: SustJined.
Rephrased Question: What \\',1$ defenJ;m1 walching when the accident occurred?
Vague Question. A question is \';lgUC if it is not understandable, if it is incom-
plete, or if any answer will be ambiguous.
A.ttorlley-
OBJECTION:
COllrt:
\-Vhen do you leave the house every morning?
Objeclion, Your Honor, the question is V'I!,!Ut'.
SustaineJ. {Do.'sn't specify a day of the week or il p'lfticulJr
date.)
Rephrased Queslion: Do you leave the house ,11 a particular time on lvfond;1Y
mOrllmgs?
l
1
l
i
I
1
l
l
I
!
1
1
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The Mack Tn'af . 265
Narrative. A answer is one. thaI lasts (or a while withoul
Gener,llIy a question th;][ requires an answer of more than a le\\' senlcnces 15
.1 o<lfrative question.
.-\/torllt')':
OBJECTIO!':
Court:
1:::11 us what you were doing on the morning of July 19::;5.
Your Honor, thJt c<llls for a narrJtlVC.
SustJined.
Rephrased Question: \\'11,11 were you doing a.bout? f\.;o..t. all the' of July
10th, 1985? (Break lip the nJrra.tive into a series ot smaller .
Exper\ \\"ilncs.ses <lfe generally-allowed to tt'srify in n-arrJtlYe torrnJL\
Asked Answered (repetitive question). An attorney!s entitled to repeat
" d" " A "IOllg '5 the identical inform,ltIOn tS not endlessly re-
question.) an answer::..::. "
pealed, v,lriatiolls on a theme a.re allowed.

Your Honor, this question h:Js been ;lsked JoJ Jns\\'ercd.
r Note: This does not prohibit cross-examination on subjects were .c.o\ered o.n
" "" d t pr"vent askina identical quesllons of dttferent Wtl-
direct exammaliOn; nor oes 1
nesst's.]
Hea.rs;]y. A th,l[ is made by the witness outside of court or by anothcf
partYillld is orfereJ 10 prove the truth oflhe matter staled.
.4.ttorll l'.I':
iVilW:S5:
Altorlll')':
\ Virn1.'S5:
Alforncy:
OBJECTION:
Court:
Did you speak lO anyone following Ihe 'l(cidcn.t?
Yes. I spoke to a crossing guard who WJS standing on the (orner.
Did the ..:rossing guard tell you what he saw?
Yes.
\Vhal diu the crossing guaru tell YOli thaI he saw?
HC<lrsay, Your Honor.
Sustained.
266 . American. Engljsh
fmproper Lay Opinion. !'<ollt'xpens are nl)( ,dlowt'd to stJ.le opinions or draw
conclusions or inferences. However, Ilonl..'xperrs .If(' ,dlowcJ to tc.stJfy ;.}bOUl
speed, uistanc(', JIlU \'Jlul' of objects or th(' !llood, u(,nleanor, and tone of vOice
of anothl.?' pl.?rson .
. .\ ::i. StL'r;:" (,in you US no\\' j-'lst :"\.\ r. .\!cCullougn \\'as driving
prior (0 [he i.l(cidoll on morning in qUL'.slior.?
OBIl:':=T10:'';; Calb for ar. opinion. YOl:r HlmM.
COlirl' Oyt'rrukd.
Afs.Sh'I1/: Bctween forty-tin:- <lnd tl([\' hour.
!Xule: In rilis C,ISC, the witness was allowL'd to ,m.s\\er Ihc qu<:'stion becJ.ust'
ar:: a!lowed to about estimilkd vehicle spccd.]
Sp",cuiation. Witnesses may nO[ be 'lsked to speculate or guess.
AIWnh')': \\'li;H wuuld 11<.1\-,(' happened if I\lr. i\kCullough had been trJwl-
ing Jt .lbOUl flftct'n mik.s PL'[ hour, .IS hc
OBfECTION: Obicclion. Your Honor, [h,l[ ('111.s for specul.llion on In.: pan of
the witness.
Court: Sustained.
Index
'.;urnbln lilll!)wcd Jrl r intii':,l!l' 'ilJI 1:\0.' word is lIsed on 5cI'cr;I] f'Jg<'s.
Jhmlion. U. 6-1. (1/)
22J, .:'.;S
I<,om. 209!
J':li, itr l)f (OnlfJ(L 15i"\
,\.:[()I Cnd . .:'H
"OllS fCIIS, lISe /11'.:.; I f. so)
.ldmissiuJ1;>, 256
JJ"l'njscmmls,2JJ
:'.:>. 2-IJ
,1;!rl'l'Ill<'IlL 2331
,11Icm.lIlSf.llt.13J
.llhr U(l(!ri11l.'. 21 J
J1I\elld. _,
:-l1llt'ric'<111 /urisprlU/l''''' . . W. 53f. 20;
;\111crl(;111 LJ\\imtil\!I .... (,S
.-'..mnl'Sly intcrn.lliOllJl. 0:';]'
Jnncxc',21-I
Jnnot.Il.'d SUIU!<, bonks. 5'1
.Hlsw.:r. '16. .:"Sh
.IPI'l'.d,
JI'I'l'ILlnL 35
JPf'l'lJ.lk' (Ollf!. lof
Jrrl'lll'l'. jS
Jrl'endix.2-N
,lrllllfJlioll 2--1-1
.lfSOiL ;S
Sf
,lTlldes 'I]' ill<.:'lfI'Of.lII1111. I');. 1'Nt. .'.11
,Irlid<,s ofin.::orror,l1illll. _,.Imp!l' .'.0-1
.1I1J .lnswcrl'd. 2h-l;'
Jsk:ng qlll:.\lll111S.
JSSndl Jill! 751'. I::::;. 130, IJ9
lr Jllsf ... r, 20;(
oflhl' risk.I.H.]J;
JI (Jull. 1611
Jltl.'mpll'J (riml's, oS If
JUlhnrizcd :'.02
JlniliJry '-l'ch. '::59
bailiff,
bJl1krllpt.::y. 95 . .::ns, 15
bMC fOrln. Sec infimtivc
1-1
bngain.236
bcn(h.:!S6
beneficiaries,53f
bwcfil of Ihe ::'3rg3in. '::-lJ
bicanHfJ.I.6
Bill of Rights, 8
lJill of sale. :!::!-If. ::!,\2
l>inJing. CUnlrJ.:ts. 23-1. 236.
l>indulg 12, I-IL )..jf
B/,l(k's L"II' Dicriollllf!. 81. 2J I
board of dm'ctors. 200, 200.':: II
boilerplatc conlr;ICls. 237, 2-1'1
/101111 fidt'.
Bonn Opcm 9;f
brJnches of gO\"cfIllllcm. 9
hrcJching; parly. 2..[ I
hrcJ(h of (OlllfaCI. 3b, !2fJ. '::--1.01
of 17M. 1
briding a (;ISo.>. -lSI'
burden of proof. 17h. I SO
!:lUrdcnsomc. [;5
burghny.7Sf
but for to::st. 57
C.ln.ll!.l. constitution, J
(;lpil.ll punishllll.'llt. ." JI.'.uh pellJIIY
(apilalsto(k, :::O.J.
(asc cilallun. JSr
(asc 1.11\', S, 16.371'
CJSC :'.62
c,1Us.lllr rcilled. 1691'
(.lUs;ltion, 65.;-t
(Jus;ltion in facl. 7-!
(lUse. intervening. 7-1. \35f
(Juse, proximale. 57, 7-t. 1111'.213
CJuse oL\(tion. 3,1. 39. 169L 1761'. 1 '}2
CEO,191.197f.I99.21.'.
.::h('(ks Jnd ba!ancl.'s. 6
(Ifcumvcnl. 170
267
cite. 1.1
..::ivil J.lmJ.g<'. fi6
LII'ill.1"'. 7f. 17, :!J, 53. tH I JS
..:ivil pro..::ctiufC.', 'J5r
(ivil .\(11t, II
for rdid. J9
J(tion suits, I I If
.:k.ln Il,1!H:!s JI)O.:uiIlC, 1')
..::k:r ,]flU Jdinil": tams,:::!]J
dos..:!y IldJ ..:orpor;uioo. 1'.Ja
(losing ;lrgum..:nt. ')2,
COllllllb,,1 1.,rl,'U,l'i"II". 91
wrnrn;1 spli":C5, I (l2
..:nrnmcr..::i.1 Ln", 23
(J)mmission (ol an J..::t). 7.1
(J)mrnissions.25-!
commitment onler, 131
willmon L1I\", 3, 8, lOr, 3-1, .16, 53, 7S,
common stod;,
.:olllf'<,tcnt pJrti<,s.
wl11pl.rmt, ]<), :!S6
(OIlCurrln..:<,.oS, /2, ;1
(on..:urring npiniun, oJ2
conJitionJls,
COllgress,5r
wnnectors, rypc of. 150
..::onsiderJ[ion, 223, 23Sr
consolid<lrion,207f
conspira..:y,
constitu ... n..::y, ')0
(onlcmpt of (OUr!, 60!
("on[ rJ(t. <'lIfor"::"'Jul<,. 2211f
,,::onlrJ("[ 1.11\', 17. 98,
(uillr"iY-lO-IJ([ <,vents, 2-16
comcyance. 2.1 1
.:oordlml[C ..::onjun([ioos. 151
([)ordinJlc .:onn..:nors, 1-19f
wpyrighl, 13,96,1-10,1-13(, IUi. 1-19
fix... d m..:tlinm, 1-1-1
infringcm':nl, 1-I2f, 1-1'), 16S(
..:opyright in(rintl<'lllcnt, contributory, 1-12
corporate amenities, 215
..:orpoTlte crimimlli,lbdily, In
.:orporalc formJlilies, .:: I J
(orpor .1Ie 211
.:orpnrJtl' mlm ..., :!OO
..:orporale officcrs, 197, 199
..:orporalC veil, 197,:! I f, 2 I 5
corporattons, 19M
Cllrpm 111ns Sl'ClIl1drlllr. 39, 53
corrobnr;Jtc, :!S7
":ountcrclJim, III f
268 . It
..::ountcrLlairn. compuhor!, III
counkn:bim, permissiv .... I I I
(oullteroITa, 2J6, 250f
counl)' .j'lIl. i I
..:ourt orbst r("sort,-IQf
courtroom 256
Lourts of JPpeJI, 41f
..::rimcs JgJiOSL 7Sf. E7
..::rim!'!' J!::,aill5t pTOJll'ny, 7Hf
criminJ] law, 17,
1O(
cros-'i-..:xamiIlJti\)n,117f
6S1
Luitural ':lO(
(USloJ)"IM
dJllIagrs, JctllJI, 151
dJmJges, .::ompeOS:lton, I J I, ItlS, I :-7f
danlJges. consequenti;.l, 174
dam;!!,:es, c"lmplJ.r!', \31. loS, 17.J
1_\1, Illl"1. I;:;. 1771'
dJugh[l'f (ornpallf, 197,2 I:::!
force. So
death pen;Jlty, 67f
dl.!Jth SIJtUlc. 53f
declaratofY judgmcnt, \06
deep pockets, 17S
JdJmation. 128, \39
ddJ.uh juJgnh'nl, 101i"
35
l.kfensc. Jnirrn,lIil .... I JM
dd:':m ... 0" titf
J ... fcl1Ses 10 crime", 8M
ddinillons,2-l2
DelJwJre Jnd corporJrions,
delet ... riuus,l92
Jt.'murrer, 95f. 116, 19lf
d..:posi!ions, I 16f. 182, 25Sf.
J.'s..::rrpltlrS, .1,q
J..:[rimcl\lal feli;]ncc, 23'J(
devolve upon, 207
JiLta,Ilf,31,33
Jigc5tS,39
dirccted \''':rdi(l, 119
drrect eXJ"min.Hion, I 17f
Jis..::iJimer, 1.3'J, 17"(
liis(blmero(]iabiliry,I,-I(
Jis..::ov('ry, 11M, 126,256. 2o:!
discretion of the .iudtlc, 217
.1<)
dissenting opininn,-I2
Jissolu!JOn, 210
Index . 269
Jilt
distrid .1t\llrll<'Y, 72
the po.:,l(C. 70, LN
Jiwrsi[y of '}sf,
dil(lfce. iM, 9t.r
dr.lftill!,; ..::orllrJ([S, 2.J::!.
stJtU[o.:s. tiM, '!j
due pro..::css, I 16. 177
DL:I (driving undL'r Ih<.' i;-ulu... nn), 13Sf
S7, X'I
Durh:11ll (prodll':11
JUly of (;Ire, 1351-
JU1;-t() ,1(1.2211
Juty \(l warn, 17 I r. 176
"'Illoo.:ni.:mo.:nt. 7S. 21U1
... nmy th":IJf)', 19S
cllIrapment, S7, So')
cstoppd. lif
17f. 2-11
EUr!lpo.:.1O l'niIHl, J
cviJcll(<'. 20]", -lilt: 02, 10K
evidcllL"', (i r.:urnsl.lllli.ll. 1.10
... viden..::.:, 20
o.:xJmin;]til.ll1 o( 26-1
('Xl'Wle, 199, 2JJ
..:xecution o( .:onlr.lct, 223. 232
executive brJn..::h. ')
...xe(utiq' ofli"::<,r. 6
t::I:<,cutnx, 1 I. 97
... 24 I. 25n
2-1.1
<,sperl 26.1
\\".lif:H1ly, 1"7 \ f
::lirpl.ly .lnd jusli(e. 15, 100, 10-1
f.lir lise, 1ISf, losf
I)OC 132
Hlllo .,1" eil':1 \'rol-nlllrl. III r, II h
felollics, ([,\.\,... e5 <)1: 7 1 f
felollS. Xi
rinl.lIld, I
l:'n ..-'lIloljl'll'"(",
forcign '-\.::t, 98f, 10:"
!-or.:sO': ....luilily, U I. \J6f. 213
jl'TIIIII /1011 (0/1l.'lIi<'1I5, I U7f. 110
ffauJ,
fuseJ SeniCliCC5, 15::(
Germ<lll bw. iOJf
gerund. ISM, 18K
gerund or infinitive, .:hoosing, 183
gerunJs/infinitil'es,I,sQ(
glv.. tn. -;
gooJ bith. I 'J9
glll)Jwill,I1O
BritJin, cunstitution. 3
Cir<.'J[ PJfliJ[ll"'nl, J
HJgue 10:::!;
HJfI'artl LJ\\' ReY'icw, I-li
h<'Jtling. contracts, :::!-I2
h ... adnllll.!, J7(, 4;(
h ... JrsJY,
Hdms-Burwn ,\..:1. 211
hiJd ... n lleS:lli\<,s, 2hO
high-wlllext (ullUre$, 5S1
holding, I-If, 33
honllcrd .... 82(, I <}S
hOlmcide, n<.'gligell!, 21'J
homicide. vchi(u[;\f, 66, S2
Hous ... o( Hcpr<'s..:nl,lIil"cs, 6
hypothermi'l,li.1
identifi..:d orbee, 233
immobt .... 91
imp1[cd wJrrJnty,
improper !JY opinion, 2601
impunity,S
inadcqllJl(" c;JpitalizJrion, 215, 15
IllChOJle crimcs, i.Jf,
in..:orpOrJlillll, O. 212
incnrpnr.llors. I <)'.l, 206
. lio[l, 20S. 2n7
indcp{'nderH cI:Jus<,. Sff Ill,lin (IJlls<'
illlinitiw,ISOr'
inllictioll of emotion.11 12S
injun(lioll, 17,
injun(til'''' reli..:f. l.J2
in lieu 0(,
in pape'tul[Y, 2n}, ::1::
insJnily,8M
insiJer mlding, 213
insolvent. 20S
inlel1eLluJI I.\'H
intent. 72(, :::!29
intent, gener..l1, 73
inl ... 73
intent, torts, 127, 13S
intcnt, tr,lnsferred, 7-1
int ... rleren..::e with custod;" 77
Internal Rl'venue COJl'. 20S
Intern ... l, 691.105(,121,166
IIllcrrogJtorio.:s, 11M, 25SI: 262
270 ' InnO )(
inl..:rWllill!:! 17l)
inorllo.
irrl'llll'Ji,lhk lb11lJg..:. 211. 252
impulse :)7f
jay\dking,71
juirH.kr rub, IlOf
iuJiciJI brJIl(h, <J
juJiriJI rl'vi..:w, 7
lurisJi':lion, J-If, YJ, '.151
.lurisdi(llOn, (l1n(urr":J11.lJ5
iurlslli(llnn, pa51111;d.15. ':lSI. IOU, \05(. Ilil
jurisJictioll, suhjl'cI lll.lll..:r, ';151: 105
iur15lIi(liun, lypes 01, lJ5(
iury, 117f,
jury tlOX, 25t>
chJlkngl's for CJL!se, lIS
.lury, impJ.ncl, 118
jurr, peremi'lory lIS
jury, rearlions 10 objecrions, 26-1
IIIl
Kevurki,1I1, J .. \1.0 . 90
kidnappinr. --; I (, 76. 87
knock J.nd arHlOllnce-, 20f. 27(
Koran, 3
landmark,7
IJrceny, 70
IJw. ;"]Jmilllsrralil'c, 2J
IJw, husinl'ss l'nll'rprises. 23
1,1\".lOlllfJ.:lS. 2.1, 2251
law, (rimin;"]l. 23
l.\w, 23
law. priv,lIe. 17, 23f
lJw, pro(t'dural. 17,20
IJw, plnuUC[S 11Jbih[I', 7
lall', property, 23
1.11\', puolic. I;,
IJI\', ROlll.lll,J
law, I;LX, 23
bw, I mde reglll:llion, 23
bll'suil, progress 0(, 125f
kJtiing 26--1f
lease, terminJ[ing in Gam;Jlll',
law, 132 .
legal aUloority, 33
legal entity, 193
iegall's,,:, no
legal history, 4.9
Il'galmemoranJJ, 1-1
kgal rl'asoning, 33, 53f
kg'll k'rm 1\1' Jrt, 0]
kgis!'lli\'l' hr,tnch. 9
lo.'iho\'ilz.,\nnio.',I-t1l
kl'cls uf [orm.llil)', IS5f
liJbiJilY. (i"il. 6n. 93.197,211
li.lbiliLY, (rimrnJI, 72[, :! II
liJbilily, sirict in ton, 1701'
li.lhdiIY. I
lihd. iJ'J
iii"" ilhUfJn(e,
Ii l11il,uill11 llf [iJhilit 20S
linking "'orJs, IllOr
II'luiJar..:J d,l]11.1!;eS,
I,'ng-arm S1.1hlle. IUOt. IOsf
I,)"(ont..:xl cuhurl's,
!\.-[.l..:lo.'ish, .-\rchihJld, I
102
mailbox rule, 2]8
mJin cl.wso.', 1--I9(
llJ.lllltilY "pillion,
IIl.1li(e, ; 2
IllJli(c .Iforl'[houghl, 031'
lll;llldJtivl' iVe, I Sir
mandatory injunction, 211
Ill,lnsi,luglll..:r, 82(, 8-1(, 91,
involun[;rry, 33, 72, 82, 8-t1'
\'01 entary, 8-11'
lllcJi(J[ eX,1[lIInl'r, 1i4
lller.:ring (lrthe
111("115",1, 65f, -:-S, IIlf
l,-t
nlL'rch.lnl,lhilILY, 172(, 191
mager,207f
minimum 101ll.KtS l..:st, 104f, 106, 109
minor.
mirror lerms, 236, 2-19
misdemeJ.nors,70f
mlsdl'Jlll.lLH,rs, rl'lll' 70
:-;;1:
mud, [ri,ll, 255
Pen.ll Cod..: 1,4.20, 65f, 73, 751', 73. 87
modai ..., 21M
:liud.!ls, inlcrener.:, 2! ')
rnndJls. predicl iun, 2 i <}
illuJJls, .cPOrlt'J 12'::(
llluJ,lls with gerunds JlId inl;l1i[ll'es, IS I
;"I,'[oore, Oo.'mi, I-IS
mont court, 153
mow 10 dismiss. 116
IllOI-e to 102
murd<.'r, 13, 721', 87, YI
Index ' 271
rnulu,l!ily of .1gTI'..:rnl'lll. 220f
rnulu;llity t)1 'lbli!;,l1 iOll.
;-":,IPOI"'lllli( Cod ... , 3
[question), 2611'
SJli\'..: Alll..:ri(;Jns, h.
nq!Jlil'!;, I t}5f
nl'b,lIi,';:"' queslions. 25Hf
neglig ... ncl', 114, I 133f. I JI'>f. 1751. 257f
lleglig ... n.:o.', (Om[';lr.LLi\':,:, 5lf. Il6f
lomp.lr;llil'l', 50"" TUIL'. IJhf
comp:1Talive, ]lJniJI, 1.1M
... ollll'"ralll''':, pur..:, IJ6r
1l<:gligl'l1(e, lOnlrihulOry, 531'. IjM'
i-Jidsln. I.eslil" IIS
I1tl/,I(f1I1:c/Ir1t"rl',2.I')
nun((lmpl'tilion Llgr":l'llll'lll.
n')ll'ity <lnd nOllob"iuuSIlL'SS. [!2
ohj..:(li(J11S. Iri.11. 20-1
l klllI'Jti')llJI & I kllth ,\.:1. Sa 0"1-1;\
[IITl'r, 223
(llfal' ....
offeror,
omission lor ,m ;lrt). 7-1
onerous, 170
on point, 39
opening Slall'lll<.'n[, 92, 263
opaJlive provisions,
opiniun, of.-I2
option (Ol1tr,J(1.
urJn flilm.
(rime. 21:)
OSHA,
Iw..:rrul<.',2tl-lf
I-ISt', 165f
1'.lrok rule, I
p.uts uf.l (Olllr.l(i,
pJtl'nts, 'lS, 14Ur
71
I'<.'r curi.111I.-I2
pap ... tr>1tor, S6
pasonJI Iniury, 1681
rasuasi\"..: ,Hltho[][y. 12, I-If, J-If
phali.:: sl' ...... (h,:;9
p1.1in[ilf,35
pleaJings,9S[' II Of, 250
pll';idings,liHnl, II)!
pkdge,229
plurJlilY opinion,-I2
pl1(ket partS. 39
pol ill' cumm;lIlt!s. '::-1
pollution. 231
poltergeist, 240
prl,'Cl'delll, y, 11,34
preemptive righls,
prejudicial crror,-IO
pfemises, 213, 259
preposilions and lcga!lab." HiM
pretriJ.1 revi.:I'I. S4
pril/l.l j;,(it' c;:]se, 86, 13j
principJI ofli(ers, 202
pril'.lcy rights. 271'
pri"Jte corpor:ilion. 19S
pril'J.te IJII', Iypes of. 23
prl\';lyofconlrJ(t, 1701, ISO
probJ[c,96
procedurJI b,,', 20
rru.:ess server, 101
products li;rbility, 167(
promissory
proscculinb JIl(1rney, 72
proslitullon.89
rrm:)' solicitor, 209
public corpOra[IOn, 19S
publi.:: law, lypes of, 23
punctuation, 152f, 162f
pUnishment, crud and unusual, 67r
punishment, lypt!S of, 67
punillve san(tion, 60r
]1u rport, 161l
r,lin (helk, 235
r;lpc, 139
r,lIify,5
r":JsonJbk mJrke[ I'rJ([i(e-"" 23.\, 2.37
r..:buuJi, 92,
recall, 175
recess, 256
1-1
recit.lis,
feckless driving, 70
Tcckless misconduct, 175
rceol-err, 136
registered agent, 203. 205
r..:joindcr, 119
remand, J5
rt!medies, 19,226,252
remedies, equit;rb!e, I ':l
remedies, legal, 19
render, 226, 232
reorganiz.1Iion,207f
rephrased question, 26..J(
Table of Cases
.-\I/I!cr;"11 ': ;\<"\1' ()rIt'II,,; l'ul>iic S<'(I'/', /11<',
3(
\rllbi.' ", !illlle "f.'V",k,I, 7')-:>0
", :;5(
.-\ri,:o/l'1 PI/Mi. Sari,-.. L"". I'. jlrill.,ill. lJtl
ni;.: 7iJwII SlInillS H,m/,', {/J(. I'. Novm.II), 13[
lJ.\ /W 0/ .'lof/Ii Alllni,,". /I'L. v. Guri', 177 -7S
Basllc ", Uuil,'.I51r1/l's. :-;3
Il.d,,-.- ", Or'" ,It'( St.lld, I \i.:) II,)/I/!, ')7f
C,/IIIf'bdl,. :\w/T-Ros<' ,\JlIsic, /11(., 1<17, \6)
Ci'.I' ofC;r,lIulli,rJ:s I', J).dllll,lII. 60-63
G.JII/I'WIIII",',IIl, I: \\'UOdh'jJrtf, 72-73
COIII(,lIso.'n'( ,', PrUI<'f;U/I, lOll
C.'f/.<lI1II,"" Cu-up ojH'<!lIl"<lrlh eMIII/Y I'. 01;(11,
i5
Cnmlu/r,,1I' I', p:,dlllvnr Dr/I'illg Clllv, lI1C.,
191-'15
Crtllllf'11111 "_ CO,I/I/UII!IIT"lJl" J8
D ,-', (; Sltlll/, /IIC. ,: /1,K,/((/; Imports. !r,C.,
2-'4-10
nm'is I' \/011"'1110 Co., jl)
PllrT"UII l'wlcd Slrll.-S,
bal/I/I', CO(,/ GI/a C".
173-71'
PUI>iICtIl;IIIl; I'. RUnll'/;:h:pllOlI,' 5,'n';cc
Ci.IJIIP'H/.", 111(.,
I'/,'Idl," ". H.r/,wds, J J:)
Fnmeis v. Soullia11 Co.. IJ
FIIrIl1I/11 I'. C"'''gill, 69
How,mf jolll/wl/'s ,\lowr L,)dgcs, fllC"
139
Gimp..! ,: Bv15Uill, 210-1'
Gregg I'. G,'org;'/, 6')
Grilllsllllll' ". riml ,\(OIM COli/pi Illy, 175, 177
Culj'Oil Cvrp, 1', Gilbar, 107
HolI)'. ulljl,'d 51,110:5, 3i:i
Hrlmllla 1'. 5i'/"'IIF,
Harill I'. SIIt/la/,III,', J J9
HWllphrirs ,', TL. f,1I/l,'S e" .. 55]"
/IH.f11li1i'1l1'1/511d( Co. 1', \\;/ShJJJgIVII, 15,
100-101
Kitjcr \'. Frd How,- ,\((1/vrs, 111(,
J.:ilp,Hrick lirplllt, _'1\
K/"il1 I'. p,'ps/co,
Kost,'r I', Lllll/b(ml,'IIS .\1111. CrlSlI,tlly C,t.,
107
L,'jbv"ir= l'. HlrIlIJloJlIIJI Pi(lurc> Cvrpor,Jlioll,
I..fS, 16-1
Lop,'= )'. ,\flle::, 66
LII9' I', ZdIIllCf, 230-33
A/l!l'l'l,,'rsOII ". lirrid.: ,\/OIOf Cl., [;U
,\ I"drlr/llgil v_ .\forr;s, .:'.-1 [--I.:'.
,\lrlriJlJrr \'. '\/II,li,,>lI, ;
,Hrrrr/,;uJ I'. H'ill"illl, 1.:'.-1-25
:\for/l'cdr I'. SI,llt, Depl. of .'Jllftrnll R,SOllras,
17f
HllsgnlI ". Lvllg U,IJIr! KH.., IJ4-35
l'h'llIi('oJf I: /OhllStlIl, 38
I'/wllma I'. /i.',lf,/ ,'I N ..srUI5, ,\/w-r,n SI,lI( ('/11-
\'asily,
Riclmrds)'. \fil;OIl,
no.:: I'. \l'1I/h'. 90
Sabinc COllwiida:,'d, JII'. I'. Slilre. :?-20
5<'111"),11(5 Case, 20
5;1111/11)115 ,: \\'!;lIlillgtol1, 55f
S/allillgs I'. Georg;a POlI'a Co" 193
S/(ImbOl'sky I'. Ackiq, 2-10
SrJlle ,: [3;lIgIrIllJl, 83
SltlIi \', Ollem, 84
275
276 . Table 0) "S
Sill I, 1'_ /li,-hrmi>-.
Sirl/t" S,/1/,-h,:;, 7')
Sirl/C I'. lI'illi"IIIS. H5
"{rllllsClllllill,1II ,'. L\ i.itlle liilUlSWl'licll.
IIJ-I
Tri-Crllllll," FW/<'f<11 S<'(I/(,. IIIC- (J/b/.I !-iO\\'J:-J
FUlk';-;11 1 Lml<') I, bl.fi, .l-!,)I,,;rd 1"1I1/t'nLf
//0111,',111.... 201-2
------
l-II;/r'" 1'_ ,II,.,ITI"::. JI'
L'lIilcd S/rlt"S \'_ !r/(hml, S J
C.S 1-. \1';111,',
\\r/.iliiIlSWII 1', Gfu ..bbag, 90
1\ 'iholll ': .-\rl..-II',-".S, 27-:.'9, J \
\\,,,./.I-\\i,.' itr/bll'flgfll Cnp. r_ \I;wd'-u/I,

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