1993 Advanced Legal Writing Final Examination

ADVANCED LEGAL WRITING

Section II, Professor Franks

Final Examination, Fall 1993

GENERAL INSTRUCTIONS

1. Carefully analyze the facts and grasp the issues in each question before beginning to write. Spend time reading the question slowly and carefully.

2. State the issues and answers to each question concisely. Lengthy answers are not necessary.

3. Do not repeat questions in your answers. Write neatly and legibly on only one side of each page.

4. Number your answers to correspond with the question, e.g., "I-2."

5. If you feel it necessary to assume additional facts in any of the questions, give the facts that must be added and state why.

6. Do not write in the margin of the book.

7. All major questions are equally weighted unless otherwise indicated. Subparts are approximately equal but may be weighted slightly differently according to the number of issues involved in that subpart.

8. Write your fictitious name and number and the name and section number of the course on which you are being examined on the cover of each examination book.

9. If you use more than one book, indicate "Book One," "Book Two" and so forth on the cover of each book and write your fictitious name and number and the name and section number of the course on the cover of each examination book.

10. A GOOD ANSWER IS NOT NECESSARILY A LONG ANSWER.

QUESTION I

(10% of test)

1. Explain the difference between a restrictive (essential) clause and a nonrestrictive (non-essential) clause.

2. State briefly the basic formula or paradigm for organizing proof of a conclusion of law.

QUESTION II

(25% of test)

The Honorable Bert B. Barefoot, Judge of the Oklahoma Court of Criminal Appeals, actually penned the following gem in the case of Camp v. State, 66 Okl.Cr. 20, 89 P.2d 378, 380 (1939). Obviously, he had had the benefit neither of your sage counsel nor of Professor Franks's course on Advanced Legal Writing.

Today you are Judge Barefoot's posthumous law clerk. Please help him rewrite the following sentence. You will be graded on all the organization, verbal expression, grammar, spelling and punctuation that you evince.

The party who purchases property from utter strangers and receives it under circumstances, and especially where all the facts of the case are passed upon by a jury, and the jury has come to the conclusion after hearing the facts and circumstances, that the defendant had knowledge that it was stolen property, and by so rendering their verdict, it cannot be successfully maintained in an appellate court that defendant did not believe the property was stolen.

QUESTION III

(75% of test)

Archie McBunker of suburban Cicero, Illinois, purchased a lottery ticket at the Circle K on Cicero's Western Avenue one optimistic Thursday morning back in June. For the fun of it, he even tried to memorize the ten-digit number on his ticket.

That Saturday night, Archie was seated at the bar in Pedro's Bar and Grill on Chicago's Lower Wacker Drive, pickling his liver and arguing with the owner-and-bartender, Pedro Sanchez, about the North American Free Trade Agreement. Archie had just posited the challenging view that all Mexicans are lazy bums who deserved to be legislated into even deeper poverty, which view was not greeted with great enthusiasm by Mr. Sanchez.

No sooner had Archie voiced his bigoted views than the winning million-dollar lottery number suddenly flashed over WGN Television 9. "That's my number," said Archie, as he reached into his shirt pocket and extracted his lottery ticket to compare with the number emblazoned on the television screen hanging overhead.

But before Archie could verify the number, Pedro snatched the ticket out of Archie's hand and tossed it into the open flames of the nearby gas grill. "As you would keep us Mexicans in poverty, so too shall you so remain," pontificated the poetic Hispanic restaurateur. As Archie watched in horror, in flames of glory did his ticket immolate itself to such a crisp that not even the ashes remained.

The following Monday morning, Archie McBunker materialized on your doorstep imploring you please to do something. You since have sued Mr. Sanchez and his corporation for assault and battery and for tortious destruction of your client's lottery ticket. Pretrial discovery has developed the fact that the winning number was indeed among a batch of 500 lottery tickets the Illinois State Lottery Commission sold to the Circle K on Western Avenue in Cicero. The winning ticket was never presented for payment.

Lawyers for Mr. Sanchez, his corporation and their liability insurers have admitted liability for the assault and battery, but claim that their liability for the destroyed lottery ticket is limited at most to the $1 that Archie paid for the ticket. "It is purely speculative that the ticket was worth anything more than the $1 Mr. McBunker paid for it," they say.

Your research reveals the following:

1. There is no Illinois case in point.

2. A copy of a statute, 5 Illinois Compiled Stat. Ann. 50/1 [The Illinois Common Law Act], is appended for your reference.

3. An additional statute, 735 Illinois Compiled Stat. Ann. 5/1-108(c) [Illinois Code of Civil Procedure ¶ 1-108(c)] provides: "As to all matters not regulated by statute or rule of court, the practice at common law prevails."

4. A copy of the short but venerable decision of Armory v. Delamirie, 1 Strange 505, 93 Eng. Rep. 664 (King's Bench 1722), also is appended for your reference.

On Archie's behalf, please prepare a memorandum of law on damages.

APPENDIX I -- COMMON LAW ACT

50/0.01. Short title
§ 0.01. Short title. This Act may be cited as the Common Law Act.

50/1. Rule of decision.
§ 1. The common law of England, so far as the same is applicable and of a general nature, and all statutes or acts of the British parliament made in aid of, and to supply the defects of the common law, prior to the fourth year of James the First, excepting the second section of the sixth chapter of 43d Elizabeth, the eighth chapter of 13th Elizabeth, and ninth chapter of 37th Henry Eighth, and which are of a general nature and not local to that kingdom, shall be the rule of decision, and shall be considered as of full force until repealed by legislative authority.

APPENDIX II -- ARMORY v. DELAMIRIE, 1 Strange 505 (K.B. 1722)

In Middlesex coram Pratt C.J.

The plaintiff being a chimney sweeper's boy found a jewel and carried it to the defendant's shop (who was a goldsmith) to know what it was, and delivered it into the hands of the apprentice, who under the pretence of weighing it, took out the stones, and calling to the master to let him know it came to three halfpence, the master offered the boy the money, who refused to take it, and insisted to have the thing again; whereupon the apprentice delivered him back the socket without the stones. And now in trover against the master these points were ruled:

1. That the finder of a jewel, though he does not by such finding acquire an absolute property or ownership, yet he has such a property as will enable him to keep it against all but the rightful owner, and consequently may maintain trover.

2. That the action well lay against the master, who gives credit to his apprentice, and is answerable for his neglect.

3. As to the value of the jewel several of the trade were examined to prove what a jewel of the finest water that would fit into the socket would be worth; and the Chief Justice directed the jury, that unless the defendant did produce the jewel, and shew it not to be of the finest water, they should presume the strongest against him, and make the value of the best jewels the measure of their damages: which they accordingly did.

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