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WASHINGTON UNIVERSITY SCHOOL OF LAW
TORTS
Sections E & F

Professor EllisMailbox                                                           Fall Semester, 2006



      Torts is a required first-year, four-credit-hour course at Washington University School of Law. The instructor for Sections E & F is Professor Dorsey D. Ellis, Jr.  

            Sections E & F will meet weekly Monday through Thursday from 9:00 to 10:00 a.m. in Room 305. Make-up classes for anticipated class cancellations are scheduled for September1 and 8.




Course Materials:

            The casebook we shall be using is Henderson, Pearson and Siliciano, The Torts Process (6th ed. 2003).  I also highly recommend Peter N. Simon, The Anatomy of a Lawsuit (Rev'd ed. 1996).  A Bibliography of related materials, some of which I may specifically recommend during the course, is on this website. The more important of the works mentioned are on reserve for this course in the Law Library. They are listed on the Syllabus page.

First Day Assignment:

            For the first class meeting on Monday, August 21, read the homepage for this course and read and be prepared to discuss pages 1-15 of Henderson, Pearson and Siliciano [hereafter, HP&S]. Prepare a written brief of the first case, Vosberg v. Putney, following the outline that appears at the end of this introductory page.

           The tentative Syllabus for the course, which may be changed as the semester progresses, indicates the topics we plan to cover and the order in which they will be discussed. Specific assignments will be made in each class for the next class; they will also appear on the Assignments page of this site. It too will likely be changed as we go. In general, if you keep about fifteen pages ahead in the Assignments you should not fall behind. Do not attempt to prepare much further ahead of the class, as you will find that class discussion will frequently inform your understanding of subsequent material.

How to Contact Me:

            Please feel free to come by my office, Room 559,  any weekday afternoon. You may also contact me via email, ellis@wulaw.wustl.edu,  or by phone, 55811, where you may leave a message on my voice mail if I am not available to take your call.

Course Objectives:

            As you are now in law school, you probably expect to learn something about the law of torts in a course called TORTS.  And you will. The Torts course comprises the study of a system of law that provides civil (as opposed to criminal) remedies for wrongs other than breaches of contracts. The substantive law studied in Torts is predominantly common law, i.e., law crafted and honed by judges over centuries. (In the Anglo-American tradition, legislation has played a peripheral, almost ephemeral role in the law of torts.) The remedies provided by tort law are usually -- but not exclusively -- money damages.

            But learning the law of torts, in the sense that you might have learned history or chemistry, is not the sole or even the principal objective of this course. Because tort law is court-made law, understanding process is critical. "Process" here has a dual meaning. It refers to the process of the law's evolution from case to case as different circumstances call for different results. It also refers to the interplay of substantive law and procedure. You must develop an understanding of the elements of judicial procedure to appreciate how the procedural posture of a case influences its outcome and the reach of its holding. Finally, as will be true of your other courses, we will strive to sharpen your skills of critical reading, thoughtful analysis, and articulate synthesis, all of which are fundamental to your legal education.

Seating Chart:

            Please be aware that the seat you choose on the first day of class will be your permanent seat for the semester. Be sure to sign the seating chart as, inter alia, [note how lawyers sprinkle their writings and sometimes speech with Latin phrases -- they display our erudition to lay persons] it will constitute the attendance record.

Class Attendance and Participation:

          You are expected to attend class regularly.

          You are expected to be on time.

          You will be allowed eight absences during the semester. Prudence suggests that you reserve these until you need them, perhaps because you become very ill or you urgently need to be elsewhere (e.g., for family emergency, an interview, or participation in a law school activity). Excessive absences, more than eight but fewer than twelve, will result in the reduction of your final grade in this course by one point for each absence in excess of eight. Twelve or more absences will result in your being withdrawn from the course.

        When you are called upon in class, stand up so others may see and hear you and so you become accustomed to thinking on your feet. You may find that your initial response to a question is inadequate, incomplete, or incorrect. Don't let that upset you. This process is not intended to embarrass or humiliate you. (So be kind to your classmates when they are being questioned.) Lawyers commonly find themselves in situations where they must make a persuasive presentation -- to a jury, a judge or panel of judges, an administrative body, a board of directors, a large audience, etc. -- in the face of vocal skepticism or opposition and must be able to think on their feet. Your experience in this course will help you prepare to face such situations confidently.

           You have a professional obligation to prepare for class. I shall conduct the class as a Socratic discussion, which means that what you get out of the class is a function both of your own preparation and the level of preparation of your classmates -- and vice versa. Should you not be prepared, give me a note at the podium before class. If you are unprepared and notify me in advance, it will count as one-half an absence. If you are unprepared and do not notify me, it will count as two absences.

Class Preparation

      Preparing for class encompasses two elements. First, it requires reading and understanding the assigned material. 

Understanding the material may require you to
  • consult a law or general college level dictionary or other reference source; 
  • review previously covered material;
  • read cases or law review articles cited in the assignment or in class. 

        You know how to read or you would not be here. You may have acquired the ability to skim read a large quantity of material quickly, extracting the gist of its content. That is a skill that will benefit you as a lawyer. Don't lose it. But it is not the way to prepare for class (nor for an office memorandum or brief or oral argument). 

Preparation for class requires that you read the assigned material intensely

  1. Read once through the entire assignment, leaving your pencil, pen, or highlighter untouched on the desk and your computer turned off. But keep your dictionary open. This is the time to look up unfamiliar words and phrases. 
  2. After you have gained a sense of the general direction and pitch of the cases and related text, reread them, this time using whatever device you find best to pick out salient points -- whether it be highlighting or underscoring the text, marginal notes, or notes on your computer. 
  3. Then and only then, after reading the material a second time and highlighting or note taking, start preparing your brief, working your way (back and forth as necessary) through the assignment a third time. This is also the time to grapple with any provocative questions or problems the casebook editor has appended to the cases and text.

 

Briefing Cases:

    Second, class preparation entails preparing a brief of the principal case or cases in the assignment. Underscoring or highlighting parts of the text is not a substitute for your personally prepared brief.

        Why brief cases?

       There once was a time when a sufficient answer would have been,  "Because the professor requires it."  But, as parents quickly learn and law students soon come to appreciate, an answer such as that simply generates another question, "Why?"

       First, because the process of briefing significantly aids your understanding of the case and provides a foundation for critiquing the decision. It disciplines your reading. In effect, the briefing process compels you to read with a mental check list of questions that you will be asking the judicial opinion to answer. A "canned" brief, or a brief written by some other student obviously lacks this benefit.

        Second, as you brief the cases on a daily basis, you are compiling an invaluable source for review and reference when you prepare for the examination in this course and, later, for the bar examination.

        Third, you are developing a skill that you will utilize throughout your career.  As a practicing lawyer, you will draw upon your ability to encapsulate the essence of a judicial decision -- precisely and critically -- and then to marshal it in aid of your analysis, argument, or  advice.

        

         A brief, in the sense we are using it here, is a stylized written analytical summary and appraisal of the important elements of a judicial opinion. (Almost all the opinions we shall read were rendered by appellate courts.)  You probably encountered one model of a case brief during orientation. It embodies the critical elements of the standard case brief. However, you will find that different professors will emphasize different aspects, and not just because of personal preference. In Torts, we will be exploring the crucial interplay of process, substantive law, principle, and policy.  I therefore place more emphasis on your understanding the procedure in the case than your other teachers may. Procedure comes first. 

Your brief should generally follow this outline:

   

   1. What proceedings have taken place thus far in the case? 
  • What court decided the case as it appears in the casebook? 
  • How did the case begin?  
  • Who sued whom for what? ("A pedestrian sued a car driver for damages.")
  • What happened in the trial court? 
  • How did it get to the appellate court? 
  • What else has happened in the case?

    2. What did the appellate court do with the case?

    3. What are the relevant facts in the view of  the appellate court? 

  • [How does the appellate court know these facts?]

    4. What are the issues before the court?

    5. What are the appellant's (petitioner's, complainant's) arguments on the issue?

    6. What are the appellee's (respondent's) arguments?

    7. What does the case hold? 

  • What is the rule or principle that this case provides for deciding future disputes? 

 

Extracting the holding of a case is not necessarily a simple matter. The challenge is to state the holding with sufficient generality that it will apply to future disputes ("Amanda is liable to Cecil for $500" won't do) but with sufficient specificity that it will be of some help in the future ("A negligent driver is liable to the  pedestrian she  injured" [I hope you didn't need to come to law school to learn that] is likewise inadequate). 

There may be language in the opinion that looks like it could be the holding. Sometimes it may even begin with a phrase such as, "We therefore hold that ...," but that may be followed by something like "the trial judge erred in denying defendant's motion for a new trial,"  which by itself is of no interest to anyone except the parties in this case -- and perhaps the trial judge. 

You will have to write the holding in your own language in most cases. In doing so, pay heed to the message delivered by Professor Karl Llewellyn, a leading member of the legal realist school of jurisprudence (and principal author of the Uniform Commercial Code, of which you will learn more later in your legal education).

 

    8. What was the court's rationale? Why did it adopt the holding(s) that it did?

    9. Were there concurring or dissenting judges who wrote opinions? 

  • What position(s) did they take and why?

    10. How do you evaluate the court's decision? 

  • Was the outcome correct? Why?

    11. Does the case contain important dicta* ? 

  • Even though not necessary to the decision here, does the opinion indicate how the court would decide a slightly different case? 
  • Could that be useful in advising a client? 

_______________

(*You might need to look up that word.)

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