The final paper for my Torts course, summarizing the history of tort reform in Colorado and taking a position on what kinds of reform are most appropriate. I chose to focus on medical malpractice torts, as the rapid growth in health care costs as a percentage of GDP and the recent passage of the Patient Protection and Affordable Care Act (a.k.a. health care reform, a.k.a. Obamacare) made the topic particularly apropos.
Category Archives: Acquisition of Legal Knowledge
Comparison of IRAC briefs, Part 2
As promised in my earlier post, here are two IRAC (Issue, Rule, Analysis, Conclusion) briefs from later in the semester. You can see how I’ve got a better sense of what needs citations and what does not, as well as gotten better at condensing the rule and the verdict down as far as possible without losing the essential information.
The first is from my Torts class, and presented a particular challenge as there were 5 separate issues being contested in the appeal.
Here is the feedback I received from Prof. Chase on my work:
The second is also a Torts brief. I feel this one represents my best work in distilling a lengthy opinion down into the shortest possible document that still covers all the relevant facts.
And the audio feedback for the Turner v. General Motors brief:
Comparison of IRAC briefs, Part 1
Case briefing was one of the most important skills taught this semester, comprising a major part of the grade and the instruction time in Introduction to Law, Family Law, and Torts. It sounds like it should be a snap–just pick out the most salient features of the case, arrange them in order, and then you’re done. Yes, it sounds very easy…right up until you’re eyeballs deep in a court opinion bristling with references to other cases trying not to get distracted from the thread of the argument and miss the one sentence in seven pages that contains the actual ruling. Still, once you’ve gotten over the initial learning curve with briefs, it gets easier to find those needles in the haystack.
The brief format used in all my classes was called IRAC, for Issues, Ruling, Analysis, and Conclusion. Ruling and Analysis are in the opposite order in the brief as in the court opinion, so they are often the hardest to lay out clearly.
What follows are two briefs I did very early on in the semester. In a second post, I’ll provide two more done at the end of the semester for comparison.
First, a brief from Introduction to Law:
And second, one from Torts:
Articles of Incorporation
One of the last assignments during Introduction to the Law was to compose articles of incorporation for a for-profit entity. I was frankly stunned at how short such a document could be–stunned enough that when I found the instructions on the Colorado Secretary of State website I thought it must have been an error. But no! It was entirely correct.
The forms provided on that website, by the bye, are available only in non-fillable/non-copy-paste-able PDF format, forcing one to either print them out and fill in the blanks by hand or to transcribe the necessary language into a word processor.
And the Department of State is not the only governmental agency that seemingly encourages electronic filing but fails to format their digital documents properly. The Federal District Court for Colorado uses all .rtf or WordPerfect document types, despite the ubiquity of Microsoft Office and the availability of non-proprietary formats. The El Paso County Combined Courts have family law forms with checkboxes made not with macros but with Wingdings. It took me a good half an hour just to figure out what key combination in Wingdings produces something approximating a ticked checkbox.
Suddenly instruction in how to apply styles in MS Word seems a bit more important.
Supreme Court decides to enter the same-sex marriage conflict
The Supreme Court has chosen to weigh in on the same-sex marriage issue, announcing that it will hear both the appeal of California’s Proposition 8 (the case formerly known as Perry v. Schwarzenegger, now called Hollingsworth v. Perry since the state of California declined to attempt to defend the law in court any longer) and Windsor v. United States, a challenge to the clause of the federal Defense of Marriage Act that prohibits the federal government from recognizing any same-sex marriages, even those lawful in the state of celebration. The other major clause of DOMA, which holds that no state can be forced to recognize a same-sex marriage celebrated in another state, is not in the immediate scope of the Court. Most longtime observers do not expect that a ruling will touch the state recognition clause, which would be seen as a much more radical social change. A ruling against the federal recognition clause–already far from certain–would compel the federal government to recognize lawfully celebrated same-sex unions but would not extend gay marriage to any state where it is not currently legal.
It is likely that arguments in these two cases will rely heavily on the Due Process and Equal Protection clauses of the 14th Amendment and the justices’ analysis of whether sexual orientation is a suspect class like race and religion or a semi-suspect class like gender or neither. A law discriminating on the basis of a suspect class distinction must pass strict scrutiny, with a compelling government interest, with the narrowest scope and least restriction of liberty possible. A law with a semi-suspect class distinction must be substantively linked to a compelling government interest. If a class distinction is neither suspect nor semi-suspect, the law must only show a rational link to a government interest. Legal scholarship is, of course, currently divided on how to deal with discrimination on the basis of sexual orientation. Windsor v. United States was given intermediate scrutiny by the 2nd Circuit Court of Appeals and found to be lacking. The Iowa Supreme Court applied strict scrutiny in Varnum v. Brien when it struck down that state’s marriage statute.
But to me the most interesting recent ruling–and one that has implications for the cases going before the Supreme Court–was Golinksi v. Office of Personnel Management. The federal district court of Northern California found that DOMA should be held to intermediate scrutiny…but that it failed to pass even the rational basis test. It found that the Republican-led Bipartisan Legal Advisory Group (defending DOMA since the Justice Department withdrew from the case) offered no reasons for the law’s existence that were rationally related to the putative government interests involved.
This is congruent with my own impression from reading amicus briefs submitted by traditional marriage groups. Since religious definitions of marriage are out of the question in a federal courtroom, the opponents of same-sex marriage base their case on the idea that marriage is fundamentally about procreation and childrearing, and couples who cannot impregnate one another without help from science are not suitable for marriage. This argument is difficult to sustain as proponents of same-sex marriage immediately reply, “But we let infertile straight people get married. We don’t annul marriages of straight couples who decide not to have children. And we don’t force couples to marry just because they have a child together. How is marriage only about babies?” As Bill Nye says, “Extraordinary claims require extraordinary proof”, and a claim that marriage as it exists in our society is not primarily about emotional pair-bonding is an extraordinary claim.
DOMA’s rational basis argument also is not helped by the CSPAN record of congresspeople debating it back in 1996, when there was scant mention of children as the sole purpose for the institution of marriage and much mention of homosexuality as a form of moral decay. The inconsistencies in the arguments offered in support of DOMA could make it much easier for the Supreme Court to find that the law lacks a coherent rational basis without even elevating sexual orientation to heightened scrutiny.
Comparison between two Last Will and Testaments
This example was the first assignment for my Computers and the Law course, meant to display the use of Microsoft Word more than familiarity with the provisions and format of estate documents. I utilized online examples to find the best legal terminology I could with my current skills.
The second example, from Introduction to the Law about 3 months later, comes in three parts. The assignment was to create a joint will and a living trust agreement, but my research revealed that joint wills are discouraged (though still technically legal) in Colorado. Instead, I executed a pair of mutual wills and prepared the requisite trust agreement. By this point I had gained a much better grasp of the necessary provisions of a proper will and was able to modify the standard language more extensively to suit my needs.
Legal research cheat sheet
A list of web resources for fast, thorough legal research I put together for Introduction to Law. It was more than a little disturbing to me as a former librarian and FOIA officer that the state of Colorado farms its public statutes out to LexisNexis rather than managing their own website. The heavy reliance on the three dominant legal research companies (Lexis, Westlaw, and Loislaw) also made me uneasy. Call me a hippie or a hacker but I do believe that some information is meant to be free-as-in-beer and free-as-in-speech.
Primary Sources
Citation Web Location
State statute (CCR, CRS, COR) Colorado Constitution, Court Rules, Revised Statutes
United States Code (USC) United States Code
Cornell University browsable USC
Government Printing Office prior year codes
United States Code – Annotated (USCA) Westlaw signin
Code of Federal Regulations (CFR) Annualized GPO edition
Local ordinance El Paso County ordinances
Secondary Sources
Citation Web Location
State digest Colorado Law Digest purchase page
Federal digest US Federal Law Digest purchase page
American Law Reports Lexis signin
Encyclopedia Wex, Legal Information Institute free encyclopedia
State LoisLaw Connect federal + one state ordering page
Corpus Juris Secundum Westlaw signin
Periodicals & treatises Hein Online signin
University of Colorado Law Review
Separation Agreement
Family Law’s toughest assignment by far was the separation agreement for the Jack and Jill Hill divorce case. The separation agreement is where the differences between the spouses really have to be confronted for the first time and the nitty gritty of breaking apart a shared household puts everyone’s nerves on edge. No wonder, then, that each section of the document has a “yes we do agree on this/no we’re still fighting about it” box to check. Divorces, like torts, are grueling but necessary processes. The anguish of divorce today is piddling compared to the long-term personal misery and resentment of the fault-based divorce days when the law forced you to lie in order to get closure. There’s a reason the government put an end to that and now allows people an escape when “the legitimate objects of marriage have been destroyed”.
Civil pleading and answer
This assignment was interesting in that it forced one to look at a case from both sides and think about the differing points of view and legal strategies involved. Torts are not my favorite area of law (administrative law is really more my cup of Scottish breakfast tea) but just as “democracy is the worst possible system of government…except for all the other ones” (hat-tip to Winston Churchill) the tort system of conflict resolution is the imperfect best case scenario for disputes that used to be settled by blood feud. Humans are going to step on one another’s toes and crash into one another’s cars as long as we endure as a species so it’s vital that we have a way to systematically deal with these transgressions.
The complaint:
And the reply:
Prenups can be fun!
Or at least they can be when the assignment scenario is as humorous and ripped-from-the-tabloids as this one.
Personally, I believe that prenuptial agreements get a bad rap. The most common complaints are that being so concerned with how the money gets split up is mercenary and unromantic, and that making contingency plans for if the marriage fails undermines the idea that you’re supposed to work to make sure your marriage is for life. My response to this has always been that someone whose love for their spouse is strong enough that they want to make sure even a divorce is as amicable and fair as possible is more romantic than flowery declarations that one’s love is blind to matters of money. Marriage has historically been and continues to be more advantageous for men than for women. We need to protect ourselves, ladies, even as we follow our hearts.
Legal (Para)Eagle: Kimberley Hoff's legal blog 