Session 01 - Foundations & Introduction to Torts
I. Foundations of American Law
Historical and Philosophical Foundations
Primary Sources of Law:- Code of Hammurabi
- Old Testament (613 Commandments, not just 10)
- New Testament
- Magna Carta
- United States Constitution
- Law is humanity’s feeble attempt to put into words our notion of justice and equity
- American judicial system is primarily a Judeo-Christian system
- Heavily influenced by Jewish legal traditions
- Primary commandments: 613 total commandments in the Bible (categorized as laws, testimonies, and decrees)
- Approximately 700 years old
- American jurisprudence is based on English common law
- The 13 original colonies imported English law as the law of the land
- Common law is still the law of the land unless overwritten by statute or appellate court decisions
Sources of American Law
Common Law:- Common law is the “DOS” (digital operating system) of American law
- Remains the law of the land today across all 50 states
- Can only be changed by:
- Legislative action (statutes enacted by Congress or state legislatures)
- Appellate court decisions
- Statute = a law (correct usage)
- Statue = a monument (incorrect when referring to law)
II. Constitutional Law Principles
Federal System Structure
Sovereignty:- The United States has 51 sovereign entities:
- 50 sovereign states (each acts as a “king” under common law)
- 1 Federal government (the “king of kings”)
- Federal law is the supreme law of the land
- When California law conflicts with Federal law, Federal law wins
- Federal law preempts all contrary state law
- Federal law preempts contrary state law
- Example: California cannot pass a law allowing waterboarding of defendants because it violates the 5th Amendment
- Example: Social Security Administration is Federal law; California courts cannot interfere with division of social security benefits in divorce cases
- You cannot be compelled to testify against yourself
- Protects against self-incrimination
- A law must pass constitutional muster to be valid
- Laws that violate the Constitution are unconstitutional and invalid
III. Courtroom Structure and Procedures
Physical Layout of Courtroom
The Bar:- A 2.5 to 3-foot high barrier separating public from court proceedings
- Only lawyers can pass beyond the bar
- Origin of term “passing the bar”
- Swing door that leads to the court area
- All courts are open to the public except:
- Juvenile criminal proceedings
- Dependency court proceedings
- Public sits to the left and right upon entering
- Two tables: one for plaintiff, one for defendant
- Party with burden of proof sits closer to jury box (preferential seating)
- In civil cases: plaintiff sits closer to jury
- In criminal cases: prosecutor sits closer to jury
- Can be on either left or right side of courtroom
- 12 jurors (based on Jesus Christ having 12 apostles)
- Alternates: Judge determines number (4, 6, 8, etc.) based on expected case length
- Alternates hear entire case
- Can replace voting jurors if needed to prevent mistrial
- Alternates do not vote
- Where judge sits
- Judge is called a “bench officer”
- Historical origin: In medieval England, King sent aristocrats to villages to dispense justice; they sat at a bench
- Area in front of the bench
- No one may walk across the well under any circumstances
- Historical origin: An actual ditch to protect the King’s representative from villagers (villainous villagers)
- Width: Arm’s length plus length of a sword (so villagers couldn’t pull sword and stab the King’s representative)
- Tradition continues in 21st century Los Angeles courts
- Where witnesses testify
- Usually sits to the side (not in center)
- Sits near the courtroom
- Responsible for courtroom security
- Will physically prevent anyone from entering the well
Roles in the Courtroom
Judge:- Decides questions of law
- Is NOT the “13th juror”
- Can hear post-verdict motions (additur or remittitur to increase/decrease judgment)
- Can grant judgment notwithstanding verdict (JNOV)
- Can set aside verdict as matter of error
- Judge never sits in jury room or acts as a juror
- Finders of fact
- 12 voting members
- Decide whether plaintiff wins or loses
- Award damages in civil cases
- Render guilty/not guilty verdicts in criminal cases
- Only attorneys can go past the bar
- Sit at council tables during proceedings
- Attorneys waiting for their case sit in chairs near council tables
IV. Burden of Proof
Three Burdens of Proof
1. Preponderance of the Evidence (LOWEST)- Definition: More likely than not; 51%
- Used in: Civil cases
- Standard: In a civil case, plaintiff’s burden of proof is to the preponderance of the evidence
- Plaintiff must prove it’s more likely than not that defendant is liable
- Definition: Evidence that there is a high probability that a fact is true
- Used in: Civil cases for certain claims (e.g., punitive damages)
- Higher than preponderance but lower than beyond a reasonable doubt
- Used in: Criminal cases only
- Prosecutor must prove defendant’s guilt beyond a reasonable doubt
- Higher burden because prosecution can take away life or liberty
Why Different Burdens?
Civil vs. Criminal Consequences:- Civil case: Can only take money from defendant (lower burden = preponderance)
- Criminal case: Can incarcerate defendant or impose capital punishment (higher burden = beyond reasonable doubt)
- In civil cases, plaintiff first proves case by preponderance to be made whole
- To award punitive damages (to punish and deter), higher burden required: clear and convincing
- Purpose of punitive damages: Punish defendant and deter similar future conduct
- Example: Hate crime battery (based on sexual orientation, skin color, gender, place of origin, religion)
Party with Burden of Proof
In Civil Cases:- Plaintiff has burden of proof
- Must prove case to preponderance of evidence
- Defendant does not have to do anything unless/until plaintiff meets burden
- Prosecutor has burden of proof
- Must prove guilt beyond a reasonable doubt
- Defendant does not have to do anything; can “sit and twiddle thumbs”
V. Civil Law vs. Criminal Law
Fundamental Distinction - Firewall Between Civil and Criminal Law
IMPORTANT RULE: There is a firewall between criminal law and civil law- Do NOT try to reconcile them
- Different procedures, different lexicon, different rules
- Criminal law battery (Penal Code Section 242) has minimal commonality with tort law battery
- Never use criminal law language in civil cases
- Never use civil law language in criminal cases
Terminology Differences
Civil Law:- Defendant found LIABLE
- Liability (not guilt)
- Civil wrong = TORT
- Defendant found GUILTY
- Convicted
- Penal Code Section 242 = battery
- Thou shalt NOT use criminal law language in civil cases
- Thou shalt NOT use civil law language in criminal courses
Case Examples
O.J. Simpson Case:- Criminal case: Found NOT guilty (could not meet burden of beyond reasonable doubt)
- Civil case: Found LIABLE in wrongful death case (met burden of preponderance - 51%)
- No inconsistency - different burdens of proof
- If found guilty in criminal case, civil case would only need to determine damages (higher standard already met)
- If found liable in civil case, meaningless in criminal case (lower standard insufficient)
- State Court: Officers found not guilty
- Federal Court: Officers found guilty of civil rights violations
- Why no double jeopardy? Different sovereigns prosecuting
VI. Double Jeopardy
Double Jeopardy Doctrine
Definition:- Once convicted of a crime, cannot be retried for the same crime
- Once acquitted (not guilty verdict), prosecutor cannot take another shot at defendant
- Double jeopardy only applies to the same sovereign
- Each state is a sovereign (“king”)
- Federal government is a separate sovereign (“king of kings”)
- State prosecution does not bar Federal prosecution for same conduct
- State of California prosecuted once (not guilty verdict)
- State could not re-prosecute due to double jeopardy
- Federal government (different sovereign) prosecuted for civil rights violations
- Federal prosecution did not violate double jeopardy
VII. Tort Law Fundamentals
Definition and Purpose
What is a Tort?- A tort is a civil wrong
- To make plaintiff whole again (W-H-O-L-E)
- Cannot give back what was lost (e.g., missing toe, finger)
- Jury puts dollar value on injury/loss
- Defendant must pay that amount to compensate plaintiff
- Same injury worth different amounts depending on plaintiff
- Example: Professor’s finger vs. LeBron James’s finger
- Professor missing finger: Minimal impact on law practice
- LeBron James missing finger: Billion dollars in damages
Tort Law as Fault-Based System
Fundamental Principle:- Tort law is a fault-based system of recovery
- Must prove fault to recover
- If cannot show fault, no recovery
Three Ways to Prove Fault
1. Intentional Torts- Person intended to cause harmful or offensive touching
- Intent can be specific or general (defined below)
- No intent, but carelessness
- Conduct fell below standard of care of reasonable, prudent person under the circumstances
- Engaged in abnormally dangerous activity
- Can recover without showing fault
- Example: Dynamite blasting business
- Allowed to engage in activity
- But if anyone injured, they can recover without showing fault
- Does NOT apply to ordinary activities like driving
VIII. Intent - Types and Definitions
Battery - First Tort Definition
Battery:- An intentional act that causes a harmful or offensive touching of the plaintiff’s person
- Must memorize this definition
- Will be tested on California State Bar exam
Two Types of Intent
1. Specific Intent- Defendant wanted to bring about that particular consequence
- Defendant’s goal was to bring about those specific consequences
- Example: Intended to blind the person
- Actor intends a consequence of his conduct if he knows with substantial certainty that those consequences will occur
- Example: Swinging cane in proximity to plaintiff’s face with substantial certainty it will strike face
- Still provides basis for intentional tort even without specific intent
IX. Causes of Action and Theories of Recovery
Theory of Recovery / Cause of Action
Definition:- Theory of recovery = How attorney will make client whole again
- Also called cause of action
- Attorney must determine which cause of action applies
- Facts: Two dogs fighting; owner used cane to separate them; upward motion of cane blinded other dog owner
- Attorney analysis:
- Was conduct intentional? → Battery cause of action
- If no intent, was conduct careless? → Negligence cause of action
- Was it abnormally dangerous activity? → Strict liability (No in this case)
Prima Facie Elements
Prima Facie:- Latin term meaning “on its face” or “at first appearance”
- Appears in every law school subject (contracts, torts, etc.)
- The required components of a cause of action
- Plaintiff must prove each and every prima facie element
- Duty
- Breach
- Causation
- Damages
X. Anatomy of a Trial
Plaintiff’s Case in Chief
Opening:- Court says: “Attorney [name], you may proceed”
- Plaintiff’s attorney presents evidence to establish each prima facie element
- Evidence can be testimony, documents, or other forms
- When plaintiff has met burden of proof for each prima facie element
- Attorney states: “Your Honor, plaintiff rests”
- Legal meaning: “We have met our burden of proof to meet each and every prima facie element”
Defendant’s Response
Motion to Dismiss:- After plaintiff rests, defendant moves for dismissal
- Argues: “Plaintiff has failed to meet his or her burden of proof”
- Judge rules yes or no
- Burden of proof shifts to defendant
- Defendant must raise affirmative defenses
Affirmative Defenses
Definition:- A complete bar to recovery
- Even if plaintiff proved case, affirmative defense defeats claim
- Plaintiff sues for battery
- Defendant raises affirmative defense: Self-defense
- If proven, bars plaintiff’s recovery
XI. Case Briefing Method - IRAC
Components of a Case Brief
1. Facts (Operative Facts)- Identify only facts that matter to legal analysis
- Ignore irrelevant details (e.g., “dark and stormy night,” color of cane)
- Example (Kendall v. Brown): Two dogs fighting; owner used cane to separate; upward motion hit other owner, blinding him
- What legal question is court deciding?
- Example: Did defendant act intentionally?
- State the black letter law
- Example: Intent is either specific or general intent [followed by definitions]
- Apply facts to the law
- Show reasoning process
- Final determination
IRAC Method
Issue - Rule - Analysis - Conclusion Repeat for each issue:- Issue → Rule → Analysis → Conclusion
- May have multiple causes of action in one case
- Each gets own IRAC analysis
XII. Study Tips and Bar Exam Preparation
Memorization is Critical
California State Bar is a Memorization Exam:- Not open book
- Must memorize black letter law
- Cannot sit and think about definitions during timed exam
- 100 questions in 3 hours
- Must retrieve information quickly
- Memorization essential for speed
- Memorize as you go throughout law school
- Do NOT wait until 2 months before bar to memorize 11 subjects
- If you memorize material now, it comes back faster when studying for bar later
- The act of writing/typing helps with memorization
- Professor will provide all black letter law needed
- Given slowly for students to write down
- Writing/typing aids memorization (proven by studies)
- Do not need to buy study guides
Essay Writing
Grading Emphasis:- Great emphasis on correct statement of law
- Must write black letter law correctly on bar exam
- Friday academic support classes available
- Can submit essays for grading
- Free if not taking for units
- Essay writing and MBE practice available
Language and Grammar
Importance for Lawyers:- Language is the art of lawyers
- Front and center of what lawyers do
- Misspelling and grammar errors reflect poorly
- Judges judge attorneys by grammatical skills
- Cannot = one word (not two words: “can not”)
- No such thing as “close proximity” (proximity means close)
- “Very unique” is wrong (unique cannot be modified)
- Effect vs. affect
- Latin is the language of law (Lex = law)
- Learn Latin legal terms
- Gives advantage in court
- Res ipsa loquitur = “The thing speaks for itself”
- Recommend: Watch “Latin for Lawyers” on YouTube
- Use Latin in court to establish authority and potentially intimidate opponents
Case Analysis Tips
Check Case Year and Jurisdiction:- California cases: Pay close attention - California leads in legal innovation
- California Supreme Court cases: Really pay attention
- Cases from other jurisdictions: May be included for pedagogical purposes only
- Look at historical development (some cases go back to 14th century)
- Sexual harassment originated in California
- Intentional infliction of emotional distress originated in California
- Negligent infliction of emotional distress originated in California
- Every good legal development happens in California first
XIII. First Semester Course Overview
Sequence of Topics
1. Intentional Torts (First):- Battery
- Assault
- False imprisonment
- Trespass to chattel
- Conversion
- Intentional infliction of emotional distress
- Learn all defenses applicable to intentional torts
- Example: Self-defense
- 8 weeks this semester
- 6 weeks next semester
- Total: 14 weeks on negligence (largest topic)
- Prima facie elements:
- Duty
- Breach
- Causation
- Damages
- Learn all defenses applicable to negligence
- Professor’s favorite subject
- “Litmus test” for whether law is right for you
- “Highlight of law school”
- “If you don’t like defamation, law school is not for you”
- Liability without fault
- Abnormally dangerous activities
Next Week’s Topics
Intent - Detailed Study:- Specific intent definition
- General intent definition
- Analysis of Kendall v. Brown case
- Battery in depth
- Additional intentional torts
Key Latin Terms
- Prima facie - On its face; at first appearance; sufficient evidence
- Res ipsa loquitur - The thing speaks for itself
- Lex - Law
- Fora - Plural of forum
Exam Tips
- Memorize definitions exactly as stated - particularly battery
- Focus on burden of proof for different types of cases
- Remember the firewall between civil and criminal law - do not cross-contaminate terminology
- Practice IRAC method for all case analysis
- Watch for intentional torts issues - analyze whether specific or general intent
- Identify all prima facie elements for each cause of action
- Consider all affirmative defenses after establishing prima facie case