My Lecture Notes

Middle Tennessee State University

Legal Writing and Research

Copyright © 2004

Clyde E. Willis

Table of Contents

The Beginning of Legal Research . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Elements of a Cause of Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Begin with the Encyclopedia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Digression on hazards of tunnel vision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Tennessee Practice Series, 3d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Jurisdictional Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Shephardization of Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Removal to Federal Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Searching for a Statute in the Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

The Opening Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

How to write a direct examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

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| The Beginning of Legal Research

A case begins when the client walks in and begins to tell you a story. As the client’s storyunfolds, you are already hard on the job deciding what possible cause of action your client, oryour client’s adversary, has. In other words, your client want to bring an action (file suit) basedon a reason or reasons that consists of a factual and legal component (cause). Ergo, a “cause ofaction.”

From the moment Merritt Gilbertson or Roger Holman begin their story, it takes only ashort, New York minute to place the cause of action within the wrongful death category due tonegligence. No need to epoché here, for the brackets would come off soon enough anyway.

We need to know the specific elements of a cause of action based on negligence. So, webegin at the beginning. We listen to the facts as we recall the elements (in our case, since this isour first go round, we must do some basic research), and begin to put the facts and the lawtogether so we will have a story that fits the law in such a way to enable us to obtain the reliefsought—either an award of compensation for the damage suffered or dismissal for failure tomuster the sufficient facts to fit the legal category.

| Elements of a Cause of Action based on Negligence that Causes Personal Injury orWrongful Death

Notice the search terms: “elements” - “negligence” - “personal injury” - “wrongful death,” so,let’s begin:! Go to LexisNexis “Tennessee Cases”! Go to “Guided Search”! Enter “Negligence” as the first search term! Enter “elements” as the second search term in the same sentence! Select “all available dates” and “Tennessee all courts”! We get 576 cases" Note: if we had used the two search terms in the “basic” search (which, after all, has two

search levels available), we would have a non-result because “This search has beeninterrupted because it will return more than 1,000 documents.” Thus, we go to “GuidedSearch” so we can ask that the two terms exist within the same sentence.

! Enter “wrongful death” in “Search within Results”! We narrowed the field of cases to 73! In order to look at the cases relative to “elements,” enter “elements” in the “Search within

Results” (reason: “expanded search” gives us the sentence context of the last search term)! We have the same 73 cases, but with a different “expanded list” than we would have with

the former search term! Notice case No. 3: Burroughs v. Magee, 118 S.W.2d 323 (Tenn. 2003) with the following

information about elements:“... plaintiff in a negligence action must prove each of the following elements: (1) a duty of ...”

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! Get the Burroughs case! Find “elements” using the browser’s “Find in this page” if you use Netscape, and “Find (on

this page)” if you use MS Internet Explorer, both are located in the browser’s task bar under“Edit”

! Voilá !!!!! We find the following statement of the “elements” of the law of “negligence” in“wrongful death” cases:

Under Tennessee law, the plaintiff in a negligence action must [**12] prove each of the following

elements: (1) a duty of care owed by the defendant to the plaintiff; (2) conduct of the defendant

that fell below [*328] the applicable standard of care, amounting to a breach of the duty owed to

the plaintiff; (3) an injury or loss sustained by the plaintiff; (4) causation in fact; and (5)

proximate, or legal, causation. Staples, 15 S.W.3d at 89; White v. Lawrence, 975 S.W.2d 525,

529 (Tenn. 1998).

! Drat ! Notice as well the next sentence that informs us that the “focus in this case is on thefirst element, the duty of care.”

~ We better pause, and consider what to do because we need to examine all of the elements andit would be much better to examine them together rather than case by case, one at a time.

The Adventures of Daniel Boon, by Daniel Boon. http://earlyamerica.com/lives/boone/chapt1/, accessed1

February 3, 2004.

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| Search or Re-search? Begin with the Encyclopedia

When we begin our case preparation with specific questions addressed to legislative and/orjudicial output such as statutes and judicial decisions, we are truly “searching.” We are likeDaniel Boone searching for Kentucky. Look at how Boone put it. “It was on the first of May, inthe year 1769, that I resigned my domestic happiness for a time, and left my family and peaceablehabitation on the Yadkin River, in North Carolina, to wander through the wilderness of America,in quest of the country of Kentucky.” Although “we proceeded successfully, and after a long andfatiguing journey through a mountainous wilderness, for some time we had experienced the mostuncomfortable weather as a prelibation of our future sufferings.” We do not have to leave the1

peace and happiness that comes from being within in the comfortable confines of those that have

already searched and found what we need. No we can re-search what they gained by an originalsearch. Let’s compare searching with re-searching using the conflicts of law question that hasarisen in Gilbertson v. The Everest Expreience.

The alleged act of negligence (delict) occurred in Nepal (loci) and the lawsuit if filed inTennessee and the defendant resides in Colorado. So, it is natural to be concerned about whichlaw (lex) is applicable if there is a conflict among the different laws. We could begin our search

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in the Tennessee Digest, that covers Tennessee Reports, Tennessee Appeals Reports, SouthWestern Reporter and all other standard reports, as well as Tennessee cases decided in SupremeCourt of the United States, Circuit Courts of Appeals and District Courts of the United States.(More about the use of digests later.) Let’s begin our search for a case that answers the questionusing LexisNexis since is so convenient for us.

What terms shall we use to [re]search for the answer? Let’s begin with “conflicts,” (since weheard it mentioned by someone) and “torts.” This search turned up seventy-seven cases, which isnot at all too many cases to examine more closely. Nonetheless, let’s see if we can be morefocused by adding “wrongful death.” I searched for all three terms in the same sentence whichturned up zero cases, so I asked for those where “wrongful death” is in the same paragraph. Thissearch turned up four cases, the first of which indicated success. An “expanded list” revealed thefollowing information about the case:

Hataway v. M cKinley, S/C No. 30, SUPREM E COURT O F TENNESSEE, AT JACKSON, 830 S.W .2d 53; 1992 Tenn. LEXIS 313, April 27, 1992, Filed

... lex loci delicti conflicts-of-law doctrine should continue to be followed in tort cases in Tennessee. The ...

... law governed the plaintiffs' wrongful death action under the lex ...”

Don’t let the first line of information fool you. It appears to say that the law in the place wherethe act occurred is the law to follow, the full sentence in the case states that “In this case, we areasked to decide whether the lex loci delicti conflicts-of-law doctrine should continue to befollowed in tort cases in Tennessee.” The opinion goes on to state “Our review of thebackground and modern development of conflicts of law rules convinces us that the lex locidelicti doctrine should be abandoned.” Nonetheless, Hataway is our case, the case! We learnthat the court will decide which jurisdiction’s substantive law is based on the general principlethat “the rights and liabilities of the parties with respect to an issue in tort are determined by thelocal law of the state, which with respect to that issue, has the most significant relationship to theoccurrence and the parties,” using the following criteria:

(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law; (2)

When there is no such directive, the factors relevant to the choice of the applicable rule of law include: (a) the needs

of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other

interested states and the relative interests of those states in the determination of the particular issue, (d) the protection

of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability, and

uniformity of result, and (g) ease in the determination and application of the

law to be applied. (3) Contacts to be taken into account in applying the

principles to determine the law applicable to an issue include: (a) the place

where the injury occurred, (b) the place where the conduct causing the injury

occurred, (c) the domicile, residence, nationality, place of incorporation and

place of business of the parties, (d) the place where the relationship, if any,

between the parties is centered.

Were we lucky or what? Have we completed the research onthis issue? Well, maybe yes, maybe no. How do we know?That’s it—we don’t really know. Going one case at a time, inad hoc, piece meal fashion can be hazardous. It is like havingblinders on. Our blind side becomes much larger, thus the possibility of being blind sided much

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greater. So, let’s take an encyclopedic look. Encyclopedia comes from the Greek words,enkuklios paideia, that mean “general education.” Statutory-based and case-based searches aremuch like our departmental majors in modern-day university curricular. We take many coursesthat tell us a lot about specific parts of the discipline, but we cannot be comfortable about having abird’s-eye view of the discipline. Away we go to the encyclopedia. Tennessee Jurisprudence(Tenn. Jur.), published by Michie, is located at “345.2 T25j” in the reference section of MTSU’slibrary. Completed in 1985 and supplemented annually since then, this 31-volume set has morethan 400 alphabetically arranged subject matter titles that can help you with most question raisedin any case. Extensive footnotes citing cases, statutes, court rules, and law review articles supportthe textual analysis. The encyclopedia is where we can obtain the bird’s-eye view that is lackingwith specific statutory-based and case-basedsearches. Moreover, we are actually re-searching. As noted in the graphic above,your research assistants, the Michieeditorial staff. supervised by M.J. Divineand P.A. Ernest, have already traveled, andcontinue to travel, the research path. Theyhave compiled, and continue to compile, the cases and statutes with commentary soyou can re-search their search and gain abird’s-eye view. There’s no need toreinvent the wheel.

We begin our research with the sameresearch strategy (using the key terms) anddesign (arranging the key terms in a specificorder) that we used in our LexisNexis search. Thus, we go to the index volume of TennesseeJurisprudence. Our research design is: first level: “conflict of law,” second level: “torts,” andthird level: “wrongful death.” Our index search takes us to page 207 where we are directly led to6 Tenn. Jur. Conflict of Law §§ 28 and 29. This encyclopedia search yields so much more thanthe case search.

Not only do we find our Hataway decision referenced in § 28, we find much more, beginningat § 1 with an introduction that discusses the general topic of conflict of laws, domicile andresidence. For one thing, we learn in § 4, “Federal Courts,” that conflict of law rules areconsidered substantive law and federal courts must use the law of the state from which a case wasremoved in a diversity case. Moreover, we have useful annotations for the commentary. Forexample, look at Refrigerated Transp., Inc. v. Worsham, 705 F.2d 821 (6th Cir. 1938) in footnote12 in § 4 to the effect that “since the district court sat in Tennessee, and a diversity case it had toapply Tennessee substantive law including Tennessee conflict of laws.” Hataway did not involvediversity or the federal courts in a diversity case, so this aspect was not mentioned by the Hatawaycourt. But, it is useful information inasmuch as our case is a diversity case and involves removalto the federal district court in Tennessee. We also see commentary and authority for the

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proposition that the federal court must apply Tennessee law regarding statutes of limitations,sufficiency of evidence, privilege of witnesses, and in personam jurisdiction.

~ Digression on hazards of tunnel visionWatch out — especially if you are doing a case-based search — for cases that continue to bequoted, have not been expressly overruled, and, yet, are no longer good law. We must realizethat leading cases may expressly overrule other leading cases, but the judges do not make a listof all affected cases and expressly overrule them. No, that is our job. Moreover, it is notuncommon for treatises and encyclopedia to leave these cases languishing around on pages longwritten and forgotten. For example, we see the case of Myers v. Hayes Int’l Corp., 701 F.Supp.618 (M.D. Tenn. 1988) mentioned in § 28, footnote 2 for the proposition that Tennessee has“steadfastly adhered to the traditional rule of lex loci delictus. If we Shepardize Myers, we findthree Tennessee decisions that discuss the case in terms non-related to lex loci delictus. OurShepard’s search reveals one federal district court case reported after the Hataway decision wasrendered. This case, McKinnie v. Lundell Mfg. Co., Inc., 825 F.Supp. 834 (W.D. Tenn.1993),February 3, 2004 rendered by Judge Todd from the Eastern Division of the WesternDistrict of Tennessee at Jackson acknowledges the Hataway decision, but, surprisingly, followsthe Hataway citation with a reference to Myers without any mention that Myers has beenoverruled by Hataway. (Perhaps it is not surprising. After all, Judge Todd’s clerk may havefallen in the same aperture that this digression describes.

| Tennessee Practice Series, 3d (T.P.I.-3) located at 345.2 T25p in the Reference Section ofthe MTSU Library is a West Publishing Company product that is very useful as an adjunct tobasic research.

Pattern Jury Instructions Civil, 3d (Vol. 7 Criminal,Vol. 8 Civil) Prepared by members of the TennesseeJudicial Conference, these instructions are carefullydrafted with clear, non-legalese language that isunderstandable by average jurors. The set is also a goodsource for applicable statutes and cases as many of theinstructions are accompanied by committee notes citingcase law or statutes that support the instruction, as wellas by use notes suggesting when and how an instructionmay be modified. The useful thing about looking atpattern jury instructions at the beginning of your casepreparation is that you will not only gain insight into theelements of your cause of action, but it will be useful tophrase as much of your opening statement in thelanguage that a judge is likely to use when charging the jury on the law at the conclusion of thetrial. For example, go to T.P.I. 3, Vol. 8, no. 3.05 for a definition of negligence that states:

Negligence is the failure to use ordinary or reasonable care. It is either doing something that a reasonably

careful person would not do, or the failure to do something that a reasonably careful person would do, under all

Tennessee Practice Series

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of the circumstances in this case. A person may assume that every other person will use reasonable care.

Using this or similar language can resonate with the jury having heard it in your openingstatement. Example:

For the plaintiff:

Members of the jury, the evidence that we will present

to you will show that Mr. Holman, acting by and

through The Everest Experience, was negligent, that

by neglecting to monitor the weather that fateful day,

he failed to use the ordinary care that a reasonable

person like P.J. Gilbertson had a right to expect under

the circumstances. In fact, the $60,000 that P.J.

Gilbertson paid The Everest Experience gave him a

right to expect that Mr. Holman would act like a

knowledgeable mountain guide and monitor the

weather at all times. You will hear the testimony of

Mr. Baker, one of the climbers on that disastrous

climb, who will tell you that Mr. Holman did not

monitor the weather during any part of the trip. You

will also hear the testimony of Mr. Xyz, an

experienced mountain guide from Timbuktu who has

successfully guided dozens of trekkers to the summit

of Mt. Everest, who will tell you that he and all

competent guides constantly monitor the weather

when ascending and descending that treacherous

mountain.

For the Defendant:

Members of the jury, the evidence that will be

revealed by our witnesses will convince you that all of

Mr. Holman’s actions were that of a reasonable

mountain guide and that P.J. Gilbertson received

everything a reasonable person had a right to expect

from a capable and competent mountain guide. Ms.

Weathervane, a noted climatologist that has studied

the weather patterns of Mt. Everest will tell you that

the weather surrounding Mt. Everest is so erratic and

capricious that monitoring is a futile exercise, and Mr.

Climbingman, a seasoned mountaineer from

Switzerland who has conquered Mt. Everest more than

any human alive, will tell that he has never monitored

the weather, and that, as far as he knows, most

reputable mountain guides think it best to use the

expense and space that weather-monitoring equipment

require for other, more useful, activities such as

oxygen and medicine. Finally, Mr. Holman will tell

you that he, personally, has successfully taken many

groups up the mountain without monitoring the

weather.

Civil Procedure Forms, 3d (Vols. 5 and 6) This set, organized according to the text of the Rules,provides forms for every step of litigation, from commencement through appeal. Pluscommentary, practice pointers, checklists, and timetables.

Rules of Civil Procedure Annotated, 3d (Vols. 3-4) Full text of the rules, plus in-depth discussionof the interpretation, application, and implementation of each Rule, as well as the case law andstatutes that support it. Commentary includes valuable practice guidance. Committee Commentsdiscuss the spirit and intent of each Rule.

The Tennessee Practice Series includes volumes on debtor-creditor law, comparative fault, legalforms for areas of practice including property, business, estate planning, and domestic relationslaw, probate, and the Uniform Commercial Code.

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| Jurisdictional Considerations

! Common sense tells us that we need some authority for Tennessee courts to have authorityover citizens, persons, corporations located in another state.

! So we locate the authorizing statute:! TCA § 20-2-214 and 20-2-223! Now we want to make sure that The Everest

Experience is amenable to Tennessee courtsunder the statute:

" So, we can go to LexisNexis to find relevantcase law or interpretation of the statute

- Go to Tennessee case law- Go to “Guided Search”- Enter the statute “20-2-214: into the first

query, specifying that it be in the samesentence

- Enter “corporation” in the second query- [generally we select “all available dates” and

“Tennessee all courts”" We obtain a list of 26 cases

! We can further refine our search by using“Search Within Results”

" Let’s look for the cases within the group of26 that might concern “personal injury”

" So, enter “personal injury” into the “SearchWithin Results”

" We get 4 cases

! Next we want to know even more about theselected cases before beginning a detailed lookat them.

" So, we select “Expanded List” and at thesearch queries within some context, viz,associated with other words in their sentence

- Notice that we expand only the last search term used. If we want to expand on the statuteand “corporation,” we need to go back to the results list for that search and expand the list.

! We are doing two things here:" First, we are looking for the general law or definitive interpretation of the statute" Second, we are looking for a case that is factually similar to our own" One good way to do this is to select the most attractive according to a variety of factors:

- Date

LexisNexis has the hardcopy and electronic version of Shepard’s. LexisNexis at MTSU has Shepardization2

for recent U.S. Supreme Court decisions. WestLaw has Shepard’s as well. You can also purchase some electronic

versions of Shepard’s from various vendors.

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- level of court, Supreme Court favored over Appellate Court decisions- likelihood of getting a factual situation as close to “all fours” as possible

! So, let’s select number 22. Hall v. Bradbury Inn, C.A. NO. 03A01-9410-CV-00384, COURT OF APPEALS OFTENNESSEE, 1995 Tenn. App. LEXIS 252, April 21, 1995, FILED... assaulted resulting in personal injuries to both. T.C.A. ? 20-2-214 ...... plaintiffs in the foregoing personal injury action. The undersigned is a ...

! A good trick to use right away is to search for “leading case,” because once you find this youare on to a jewel for two reasons:

" First, you know you have found the definitive authority on the issue (assuming you havelocated the relevant issue)

" Second, you have a case to Shephardize to learn if the law has changed.

! To search the case:" Select Edit in the browser’s task bar" Select “Find in this page” or “Find (on this page)” depending on which browser you use" Enter the query “leading case”

! Voilà, Eureka, and jubilation! We find the leading case:

Masada Inv. Corp. v. Allen, 697 S.W.2d 332 (Tenn. 1985) is the leading case in this jurisdictiontouching upon the issue under discussion in this case. In Masada it is said:

In determining whether or not a state can assert long-arm jurisdiction, due process requires that a

non-resident defendant be subjected to a judgment in personam only if he has minimum contacts with the

forum such that "the maintenance of the suit does not offend 'traditional notions of fair play and substantial

justice.'" International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L.Ed. 95 (1945).

The absence of physical contacts will not defeat in personam jurisdiction where a commercial actor

purposefully directs his activities toward citizens of the forum state and litigation results from injuries

arising out of or relating to those activities. [*10] Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.

Ct. 2174, 2182, 85 L.Ed. 2d 528 (1985). In such a case, "the defendant's conduct and connection with the

forum State are such that he should reasonably anticipate being haled into court there." World-Wide

Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed. 2d 490 (1980).

| Shephardization of Cases

Masada Inv. Corp. v. Allen, 697 S.W.2d 332 (Tenn. 1985) on MTSU’s LexisNexis:2

" Return to “Basic Search” for Tennessee case law" Enter “697 S.W.2d 332” as the search query

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" We find one case that has mentioned Masada, and, incidentally a very good case to reviewbecause it contains a very good discussion of Masada and other “leading” cases. (SHELBY COUNTY HEALTH CARE CORPORATION, d/b/a REGIONAL MEDICALCENTER v. ALLSTATE INSURANCE COMPANY v. WILLIAM GARY HOLT, GARYEUBANKS AND ASSOCIATES LAW FIRM, and TERESA STIVERS, COURT OFAPPEALS OF TENNESSEE, AT JACKSON, 2003 Tenn. App. LEXIS 613, August 28,2003)

" An advantage of using LexisNexis to Shepardize is that we get the cases with the flick of afew fingers on the computer’s keyboard within the friendly confines of our home-study

" The disadvantage is that while we get the cases we don’t get the detail, or the manner inwhich the subject case was treated. That can become a labor intensive task if the subjectcase has been frequently cited. The best cure for this is to go to the latest cite and check tosee if it is still good law. Another point to remember. If the subject case is not still goodlaw, it would probably not be cited. But, you can never be sure.

| Using Shepard’s hardbound volumes:

! Start with a case citation, for example: Masada Inv. Corp. v. Allen, 697 S.W.2d 332 (Tenn.1985)

! Select the appropriate Shepard's Citator: Shepard’s Southwestern Reporter Citations orShepard’s Tennessee Citations (a Compilation of Citations to the United States Constitutionand Statutes, Tennessee Constitution, Codes, Acts, Court)

! Shepard's units are usually divided into two basic sections: one for court decisions ("reports")and one for materials that are not court reports (constitutions, session laws, codes, treaties,city ordinances, etc.). Check spines or covers of the various pieces.

! Once you have found the correct unit of Shepard's, check the listing on the cover of the latestpaper supplement to be sure you have all the pieces needed. (Obviously, if you areshepardizing a recent case, you may not need earlier volumes.) Read the volume spine (orcover) to make sure you are in the correct part of the unit (example: cases, statutes, courtrules). Once you open a volume (or pamphlet), read the heavy black print across the top of thepage, matching it with that of the document in hand. Where the item you are Shepardizing ispublished in more than one edition or series, be sure the year or series or edition numbers atthe top of a Shepard's page match your document. At the top of the page, one will also findthe volume number (or article or section or title numbers) that you should match with thenumbering of your document. In Shepard's, a volume number may change in the middle of apage, but the change is indicated in legible, black print.

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! Here and there across the pages, you will see smaller numbers in heavy black print, oftenbetween two dashes or after a "section" symbol. Match these numbers to the page (or sectionor part) numbers of the document in hand. Once you have found a match, Shepard's willusually give a string of letters and numbers in the column below the page (or section or part)number. These letters and numbers are the "citations" for later documents that have cited theitem you are shepardizing. For example, you may find "685 FS 1220 Cir.9". This indicates alater case from the U.S. Court of Appeals, 9th Circuit, published in volume 685, pp. 1220 etseq., of a series called Federal Supplement. (For abbreviations, check the Tables ofAbbreviations, at the front of Shepard's bound volumes.) The very small numbers and lettersin front of, or after, each citation tell you how the later material treated your document inhand. For example, a small "f" indicates the later case "followed" the case being shepardized,an "o" that it was overruled. Sometimes, when shepardizing a case, one will find very smallnumbers inserted within cites for later cases and printed somewhat above the line. These verysmall numbers (example: 3) indicate the later case cited the document in hand specifically forthe rule of law laid out in headnote number "X" of the case being shepardized (headnote 3 inour example). Be sure to check all Shepards' volumes/pamphlets that cover time periods afterthe date of your document.

! Shepards' Citations are an excellent tool for checking the validity of documents you rely on,for finding parallel citations, and for finding additional material similar to the material inhand.

| Removal to Federal Court

Our Next Problem is the defendant’s desire to get the trial out of Rutherford County’s CircuitCourt. For this, we heard about “removal.” Now, common sense tells us that it would be thenational government that would permit and provide for removal to its courts. So, we go tonational, so called federal, law.

A good way to find a relevant statute is to research judicial opinions instead of going to thecode. For example, lets look for “removal” in federal case law.

! Go to “federal case law”! Go to “Guided Search”! Insert “removal” as the first search term! Insert “diversity” as the second in the same sentence! Insert “Tennessee” as the third! Select “District Courts” (why “district courts?” later.)! Select “Previous ten years” (that should yield more than enough)! We get 312 cases! Click on “Expanded list”! Look for the relevant statutory reference" We notice case No. 4 mentions 28 USC § 1332 and removal, so let’s look there" We see that “defendant Davidson Hotel filed a notice of removal in this court. The case

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was removable because this court would have original jurisdiction under 28 U.S.C. § 1332,based on the complete diversity of the parties and an amount in controversy over $ 75,000.”

" We also see instructions to check or see “ 28 U.S.C. § 1441(a)”! Now, we go to FindLaw.com and check out the statutes" 1332 grants national courts jurisdiction over diversity cases where the amount in

controversy is $75,000 or higher, and " § 1441 provides for removal to national courts of these cases when the plaintiff has filed

the case in state court! Notice how we can expand our horizon when looking at § 1441 by clicking on

“CHAPTER 89 - DISTRICT COURTS; REMOVAL OF CASES FROM STATE COURTS,”that is located above the statute, and get the overview of the chapter that is very useful." 1446 procedure for removal tells us how to remove" 1447-48 what to do after removal" What to do with the state court papers

| Searching for a Statute in the Code:

! Go to Findlaw.com and enter “removal of actions from state court” and your get the pertinentstatutes we are looking for.

" We find and access § 1441" We can access the history of the statute, when it was enacted what amendments et cetera

have occurred by clicking on “Notes” atthe bottom of the page.

" But we don’t get other annotations thatare helpful, especially the cases that haveconsidered the statute. For this we, mustgo to LexisNexis

! Go to LexisNexis “federal code” ! Go to “Guided Search”! Enter “28" as the first search term and select

“cite”! Enter “1441" in the second! If we entered “28 U.S.C.S. 1441" in the

basic search, we would pull every statutethat mentions “28 U.S.C.S. 1441", including § 1441 itself, but we don’t want to plowthrough several pages looking for it

! This version of § 1441 has among its annotations" cross references to other statutes that are associated one way or another" research guide that gives us resources that will help understand and use the statute:

- “how to books” and forms- encyclopedias- law review articles, and, most importantly, cases that interpreted and applied the statute

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| The Opening Statement: The Jury’s Passage to Your Version

Opening statements are usually defined by writers like Thomas Mauet in rather general terms as“your opportunity to tell the jury what the case on trial is all about.” A judge might, as Mauetpoints out, explain the opening statement to the jury as “an overview of what the lawyers expectto show through the witnesses and other evidence that will be introduced during the trial to helpthe jurors understand the evidence when it is offered.” I suggest that you peruse Mauet’s text ontrial advocacy or some other standard work to learn more detail about writing an openingstatement. What follows here is a few practical suggestions about how to write an openingstatement in the specific case we are using — Gilbertson v. The Everest Experience.

Be wary of instructions on the content of an opening statement. Scrutinizethem—all of them very closely.

No Opinions Permitted Here. One instruction that causes so much confusionregarding opening statements is the ban on use of argumentation and personal

opinion. In other words, Mauet says, “the way to keep the distinction in mind is to remember thatopening statements state facts.” To illustrate, Mauet gives the following examples:

Proper:

He was going 50 mph in a 30 mph zone.

She will testify that she took a handgun awayfrom a 250-lb football player.

Improper:

He was racing his car, scattering everythingin his path.Common sense tells you that she couldn’thave done what she claims she did.

To be sure, stating that “he was racing his car, scattering everything in his path,” is rankopinion, and would be improper opinion and argumentative. The statement is both rank opinionand argumentation because it is a very ill-defined description that invites contrary opinions thatmay be equally ill-defined, especially compared to the precise statement that “he was going 50mph in a 30 mph zone.” Yet, the statement that “he was going 50 mph in a 30 mph zone,” may beopinion as well. While it sounds so factual, there may be others involved in the law suit thatclaim “he was not going 50 mph in a 30 mph zone.” If so, what then? Is one fact, the otheropinion. If so, which is fact, and which is opinion. In short, the fact-opinion distinction is notvery helpful.

[The second statement is not permissible because it is clearly argumentative. The statement that“common sense tells you that she couldn’t have done what she claims she did,” is an obviousreference to some anticipated testimony by the other side’s witness. The rule againstargumentation in opening statements to the extent that it precludes an examination of the

Caution

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adversary’s case is both clear and understandable, and in this example does not help understandthe fact-opinion distinction.]

Mauet reminds me of so many composition teachers that have an absolute prohibition againstpersonal opinion. The best I can figure, it that as long as we avoid use of the personal pronouns“I,” “me,” and “my,” we are not expressing an opinion. Fact of the matter is (pun intended), the isconsiderable opinion that the fact-opinion (or fact-value) distinction is faulty because of the natureof perception, namely, that the perception of anything, facts included, involve value judgments. Be that as it may, let’s get back to Mauet. He says “it is also improper to state directly yourpersonal opinion about the facts.” (p. 49) Yet, he says on the same page that we incorporate ourtheory into the opening statement, our “version” of what happened. Moreover, “as an openingtheme, he suggest “This is a case about a company that refuses to do business the American way,”and “This is a case about police brutality.” Explain to me the difference between thesecharacterizations of the “facts” and “He was racing his car, scattering everything in his path.” Mauet, correctly instructs us to include a statement about the issues. For example, we shoulddiscuss the legal basis of our claim, and for example, he has defense counsel stating, “We willprove that we were driving safely, and that if anyone caused this accident, it was the plaintiffhimself who was negligent and at fault.”

So, how is one to know when is opinion and argumentation (about facts in general, not aboutthe adversary’s anticipated case) permissible and not permissible? The fact-opinion distinction isone that makes a difference, but not because one is straight-out fact and the other is straight-outopinion. The difference is how fact and opinion come together in a legal argument. The law canbe seen as “opinion” about “facts.” For example, Bill Bradley (not the senator from New Jersey)shot his wife seven times. One might say that is the facts. Attorney General Winstead, makinghis opening statement to the jury, stated—as a matter of fact—that Bradley committed murder inthe first degree. Now, is that fact or opinion? By whatever name you choose to call it: opinion,judgment, interpretation, explanation, it adds something to the experience that occurred at theBradley home on the evening Ms. Bradley was shot. What is important, is that it is notinappropriate for opening statements because it is opinion, and that is because it is opinion that isstructured by the law. [Incidentally, Bill Bradley was of the opinion, based on advice of counsel,that he had committed murder in the second degree, and offered to so plead. The AttorneyGeneral disagreed with that opinion and the case went to trial. The jury was of the same opinionas Bradley.]

To repeat: opinion about facts are okay when the opinions are structured by thelaw. In fact, law can be seen as the organizing principle that gives facts anysignificance to begin with. The moment we begin an experience, say, as jurorslistening to the facts in an opening statement, we seek understanding of theexperience by assimilating it into our personal framework or structure that is at handfor understanding. We don’t receive facts in some neutral, objective form and wait

Myth Ahead

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for someone to tell us how to interpret them. We begin the interpretative process instantly. Theinterpretative process is pervasive and continuous. And the more we permit someone to use theirstructure as opposed to ours, the more they will control meaning, and the less we will. It is a myththat the jury receives the facts, and only the facts during the trial and then at the conclusion, thejudge begins the charge to the jury by saying “It is also my duty at the end of the trial to instructyou on the law applicable to the case. You, as jurors, are to decide the facts. But in determiningwhat actually happened in this case—that is, in reaching your decision as to the facts—it is yoursworn duty to follow the law that I am now in the process of defining for you.” True, but not trueenough. Truth be known, the attorneys have been presenting the facts all along part and parcelwith the law. Now, to be sure, they would not have used the technical language of the law, norquoted statutes and case law. Nonetheless, as we will see, the law is ever present.

Facts are messy business. They don’t come clothed withunderstanding, interpretation and explanation of what they mean for us. No, that is our job, and it is and exciting, and at times frighteningenterprise. But,that iswhere thelaw helps

us. The law is the organizingprinciple, the structure for makingsense of what we sometimes callraw facts. Law identifies thehighway (US 20); law tells us thedirection of the highway; the lawtells us which traffic lane to be in,which one to avoid, when we canturn right on red and when wecannot. We know from the lawwhich way trucks cannot go,which lane is a turn-only lane. Inshort, the law does the work forus. Let’s illustrate this with agraphic.

As you can see from thegraphic, the law is theorganization principle that gives facts meaning, which is nothing short of an opinion about thefacts, but an opinion that comes from the legal process, a process that involves public opinion,individual litigants, attorneys, judges, jurors, legislators, regulators—all of us acting in concert in

Which Way?

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our own individual way. It is a dialectical process, by which I mean, that the law constitutes thefacts as the facts determine what law is applicable. It is not a linear process whereby the facts areascertained independently and, as the judge’s charge would have you believe, then, and only then,is law applied as if in some mechanically fashion. No, we would not know what facts areapplicable if we did not know what law was applicable, and mutatis mutandis (I simply must usesome fancy Latin occasionally, else I lose my membership in the world of the judicatorycognoscenti), if we don’t have the facts, we don’t know what law is applicable. That is why weuse each to create the other as it is created by its other.

| The Opening Statement: What’s in it? How do we write it?

A good opening statement is like a good set of directions thatsatisfy your need to arrive at a predetermined location with the leasteffort. Just recall how often you have receive good and how oftenyou have received bad directions. Jurors are in the same position. They can get either from an opening statement, and guess which oneworks best for the attorneys that give them? One of the most classicmistakes of directions and opening statements is going straight todetail without giving the listener an overview that works as aframework for the detail. In other words, detail without a framework is a dead-end street. Let’stake a look at the difference.

Here is a plaintiff’s beginning opening statement that begins with detail, followed by thedefendant’s opening statement. Notice how the defense attorney gives the jurors a framework forunderstanding the detail.In this case, my client entered into a written insuranceagreement with the defendant, Vulcan Insurance Company, toinsure his building against any loss incurred by the fire thatdestroyed the insured's building. He signed this contract on May9, 1999 and paid the full premium. Then a fire, caused byaccidental circumstances, caused the building to burn downmore than six months later on November 17. A claim was filedto collect the value of the building from the insurance company,and that claim was denied. That is why we are in court today.Let me now tell you the details of what happened . . .

This case is about the burning down of a factory. About theintentional and willful destruction of a factory building. Aboutarson committed by the plaintiff Martin Sikorski. The plaintiffhad severe financial problems and burned his building down tosolve those problems. Martin Sikorski, on November 17, 1999,started a fire in the boiler room of his factory at around 1:30 inthe morning. The building was empty. There was no onearound. Mr. Sikorski took several gallons of gasoline stored bythe loading dock in the building and spread that gasoline aroundthe floor of the boiler room. He then lit on fire a rolled upmagazine and touched the flame to the gasoline, starting the firethat caused the destruction of his building. He left immediately.He had already opened up several windows in the factory so theflames would spread rapidly. They did. The fire engulfed thatbuilding, which was primarily a wooden structure, like afirestorm. The fire department responded immediately afterreceiving the first alarm. The alarm was made about fifteenminutes after the fire started. Despite the best efforts of thefirefighters, the fire intentionally started by Mr. Sikorski burnedhis building to the ground.

Notice in this case, which the defendant insurance company is defending a policy claim on the

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grounds of arson, how much “opinion” (that I have italicized) can be found in the openingstatement of the defense counsel. But, notice also how the opinion is structured to comport withthe three basic elements of the law of arson: (1) the insured had a motive to commit the arson; (2)the insured (or someone under his control) had an opportunity to commit the arson; and (3) thefire was incendiary or intentionally set.

I have found the pyramid to be a helpful aid in organizing not only an opening statement, butthe entire lawsuit. I will illustrate the pyramid approach with a graphic.

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How to write a direct examination.

Your case-in-chief witnesses are critical to presenting a successful case. You must consider

two primary aspects as you prepare direct examinations: maximizing the witnesses’ convincibility

while minimizing their impeachability. As Mauet says, “most trials are won on the strengths of

[the litigant’s] case-in-chief, not on the weakness of their opponent’s case.” (p. 73) Moreover,

Mauet strongly suggests that “if the jurors remember one of your witnesses as particularly

convincing, but are not sure who conducted the direct examination, you have done your job well.”

As Mauet also points out, many direct examinations fall short of effectiveness because many

attorneys—especially relatively inexperienced ones—write their questions then expected answers

do not arrive. Although the attorney and witnesses may prepare, the written questions and

answers become a script for them to memorize, which memorization, itself, is not an effective

way to appear convincing.

Following on this advice, I want us to consider the best way to assure that witness on direct

examination come across convincingly and avoids the possibility of contradicting their previous

statements. My suggestion is that we should approach our witness-preparation (writing the direct

examinations) from an “answer” perspective rather than the usual “question” perspective. Let me

explain. It is common for attorneys to listen to their witnesses or read their depositions or

statements, then draft the questions that will elicit answers wanted by the attorney and in the

manner wanted by the attorney, not necessarily the way the witness would say it. Although Mauet

cautions you to have your witnesses review all statements that they have made so they will freshen

their memory and not be subjected to impeachment on cross-examination, he implicitly supposes

a question-focused approach.

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There is no better way to insure convincing testimony and avoid impeachment than having the

witness provide their answers, rather than learning answers that the attorney has provided.

Though Mauet is not explicit, a close reading of his examination of preparing direct examinations

assumes that attorneys will prepare the questions, then the answers, then prepare the witness by

practicing, as it were, the examination. To be sure, Mauet assumes the attorneys are familiar with

what the witnesses will say, and even the manner in which they will say it. Nonetheless, there is

the question-focused approach. I suggest an answer-focused approach. Instead of writing the

answers firs, then drafting the answers that respond, take the answers that the witnesses have

already provided in depositions, dictated statements, interviews or notes of interviews, then write

the question that will elicit the answer. I submit that changing from a question-centered approach

to an answer-centered approach will achieve the twofold strategy to maximize convincibility

while minimizing impeachability.

I want to give you a practical way—though it will seem awkward at first—to write an

answered-focused direct examination using the technology of modern computer word processing

programs. Step (1) Obtain an electronic copy of your witness’ statement, be it a deposition, which

stenographers readily furnish these days, interview, which you can digitize rather quickly most the

time. In our case, take a statement by an Everest Experience witness.

Step (2) Strikeout the statements that you do not want to use in the direct examinations that are

not relevant (Rule 402) to your theory of the case, or you consider inadmissable. (To create

strikeout text, block the text with your mouse or cursor keys, then select the word processor’s

“strikeout” function as shown by the line in this sentence.)

Step (3) Save a copy of the strikeout copy so you can review quickly what was stricken. Then

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get rid of the strikeout text by using the appropriate function of your word processing program.

Step (4) Arrange the remaining text that contains the answers to questions that you will draft

later. You will need to consider how to organize your witnesses’ testimony—usually

chronologically or thematically. It seems that most of us prefer to watch a story unfold

chronologically, but since your witnesses cannot tell the complete story, it may not be so

important in trial. Moreover, if your theory is multifaceted, it may clarify things to present them

thematically, witness-by-witness. Presenting the witnesses’ story “thematically,” is to present

their testimony issue by issue. Say, in our case, have witnesses testify about (a)

health/acclimation, (b) weather monitoring, and (c) fail-safe issues.

An important note: do not forget that most witnesses, if not all, cannot tell the entire story,

either chronological or thematically. This being the case, attempting to have witnesses testify

about facts that they do not know is usual for attorneys, especially relatively inexperienced

attorneys. This is where your opening statement comes into play. The opening statement tells the

story in a full and coherent manner and thus provides the juror and/or judge with a framework that

will enable them to understand the relevance of any witness’ partial presentation.

Step (5) after arranging the answers in the preferred order, create a document with columns and

place the questions in the right column, and use the left column to draft your questions.

I will now give you an illustrated example of the five steps by using a small portion of the

affidavit of Andi Denman, the meteorologist whose testimony is limited to: weather monitoring.

Pay attention, this is just a sample, not the one that you will do in your practice exercise that will

be the entire affidavit of the witness you choose.

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Steps (1) and (2) obtain an electronic copy of the witness’ potential testimony and strikeout the

unwanted statements.

Assume that I saved a copy of the strikeout document, and have the remaining text.

My name is Andi Denman. I am 51 years old. Currently I am a meteorologist forNational Aeronautics and Space Administration (NASA) assigned to the OceanicProcesses Branch. I received my bachelor’s degree in engineering from the University ofDundee and a master’s degree from the University of Wisconsin, Madison inmeteorology. I continued my studies at UWM until receiving my doctorate degree inspace science engineering in 1982. I spent the next several years expanding upon thematerials that I had assembled in my doctoral dissertation until successfully completingmy first book: Nowcasting from Satellites. Although not all that well accepted inacademic circles, my book took the world of broadcast meteorology by storm, and I wasdeluged with job offers. I could have been a meteorologist in any one of the nation’s top-ten media markets at whatever salary I desired. However, when I received the job offerfrom NASA, I had no doubt as to whether or not I would accept it. I began as anexecutive staff meteorologist with the Rocket Launch Branch of NASA until beingtransferred to my current position as Assistant Executive Staff meteorologist to theDeputy Chief Assistant of Operations of the Oceanic Processes Branch. Simultaneous tomy transfer, I began an independent weather consulting group based in southern Floridacalled InstaStorm, Inc. Last year we changed the name of the firm to InstaStorm.Com,Inc. to reflect our growing presence within the expanse of the World Wide Web. I amcurrently President and own 92% of the stock in InstaStorm. Our plan is to go publicwithin the next six months. I am also a member of the American Meteorological Society.

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My name is Andi Denman. I am 51 years old. Currently I am a meteorologist for NationalAeronautics and Space Administration (NASA) assigned to the Oceanic Processes Branch. I received my bachelor’s degree in engineering from the University of Dundee and amaster’s degree from the University of Wisconsin, Madison in meteorology. I continued mystudies at UWM until receiving my doctorate degree in space science engineering in 1982. Ispent the next several years expanding upon the materials that I had assembled in mydoctoral dissertation until successfully completing my first book: Nowcasting fromSatellites. I began as an executive staff meteorologist with the Rocket Launch Branch ofNASA until being transferred to my current position as Assistant Executive Staffmeteorologist to the Deputy Chief Assistant of Operations of the Oceanic Processes Branch. Simultaneous to my transfer, I began an independent weather consulting group based insouthern Florida called InstaStorm, Inc. Last year we changed the name of the firm toInstaStorm.Com, Inc. to reflect our growing presence within the expanse of the World WideWeb. I am currently President and own 92% of the stock in InstaStorm. Our plan is to gopublic within the next six months. I am also a member of the American MeteorologicalSociety.

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What is your name and age?

What is your occupation?

What is your educational background?

What have you done professionallysincereceiving your doctorate?

What did you do after that?

Where were you transferred?

Did you do anything else while Deputy ChiefAssistant of Operations?

How did InstaStorm perform as a newcompany?

What is your current position with InstaStorm?

What is the current activities of your company?

My name is Andi Denman. I am 51 years old.

Currently I am a meteorologist for NationalAeronautics and Space Administration (NASA)assigned to the Oceanic Processes Branch.

I received my bachelor’s degree in engineeringfrom the University of Dundee and a master’sdegree from the University of Wisconsin,Madison in meteorology. I continued mystudies at UWM until receiving my doctoratedegree in space science engineering in 1982.

I spent the next several years expanding uponthe materials that I had assembled in mydoctoral dissertation until successfullycompleting my first book: Nowcasting fromSatellites.

I began as an executive staff meteorologist withthe Rocket Launch Branch of NASA until beingtransferred

to my current position as Assistant ExecutiveStaff meteorologist to the Deputy ChiefAssistant of Operations of the OceanicProcesses Branch.

Simultaneous to my transfer, I began anindependent weather consulting group based insouthern Florida called InstaStorm, Inc.

Last year we changed the name of the firm toInstaStorm.Com, Inc. to reflect our growingpresence within the expanse of the World WideWeb.

I am currently President and own 92% of thestock in InstaStorm.

Our plan is to go public within the next sixmonths. I am also a member of the AmericanMeteorological Society.

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As you can see, the answers belong to the witness, they are not the words of an attorney, whomay well have more sophisticated, technical language; but, it will not be the language of thewitness, who, after all, is the one that must be convincing to the jury and hopefully not beimpeached on cross-examination because the words from the witness stand are different fromwhat the witness has previously stated. While an attorney may have better words that are morecompelling or probative, they may not be the words that make the witness comfortable, and, afterall, do not forget that it is the witness, not the attorney, that needs to be convincing.