 Hello, I'm Professor Vaneel Urando and I'm going to talk to you today about distinguishing and using facts in legal analysis and legal application. So when you are working with a problem of any kind, especially if you're getting a story told to you by someone or as an attorney, are you working on a law school exam or bar exam? There will be a lot of facts and the key to you being able to decipher out the problem and solve is being able to categorize the facts appropriately. This method of categorization that we're giving to you is only for your internal use. It is not terminology that you would ever use on an exam or with a partner. This is just a way for you to be able to understand the facts and categorize them appropriately, but you should never talk about background facts or key facts or colorable facts or preclusion facts or red airing facts. That terminology is only a terminology that we're using with you to help you understand the facts. Okay, so to move into that we're going to provide a definition for each of the type of facts and give you an example of those facts. So to start off with, let's start with a problem. I have to smile because this problem uses the name of my youngest son and my niece and it's an old problem. It's a problem that both of them are in their 40s now and to tell you how old this problem was, I made this problem when they were teenagers. So time passes, but the law and how you approach the law isn't really different after 20, 30 years. So Issa, a 4'10 white guy, was riding his bicycle when he sees Cuyah, a 6'11 black girl walking down Shoryer Street at 11.30 p.m. Being jealous of Cuyah's height, Issa gets off his bike, goes over to Cuyah and intentionally hits Cuyah in the back of the head. Issa then remounts his bicycle and pedals away. The blow knocks her out and she's hospitalized for three weeks. Cuyah is completely unaware of who had hit her and later she learns it was Issa. Can she successfully sue Issa for battery? So this is a basic fact pattern and to start off with, with any basic fact, the call of the question will dictate how you look at the fact. If I had said can she sue for assault, it will change which facts are what kind of facts. Can she sue for intentional infliction of emotional distress? Can she sue for false imprisonment? The role that facts play is completely dependent upon the call of the question, which means you should always read the call of the question before you read a problem. Because if you don't, you can be thrown off just through your reading because you will make judgments about the importance of facts that are, will be wrong when you get to the call of the question. So when you're faced with a problem, start with the call of the question. When you're faced with a question, start with the call. And that's whether it's a hypothetical, whether it's an essay question, or whether it's a multiple choice question. Start before you read the body. STEM are major part of the question. Read the call of the question and see what it's asking for. And then you read the rest of it in light of that STEM. Can she successful sue ESA for batter? So essential facts are those facts which create a dispute. Remember now, we define an issue as those things over which two attorneys will argue about. If two attorneys won't argue about it, then they are not key facts. They are not, they don't create a dispute. They are essential facts. And again, facts can play more than one role even under the call of the question. So essential facts are facts that if change, this dispute would no longer exist. So battery is an intentional tort. Okay. If you said she accidentally, instead of intentionally, you no longer have a dispute over an intentional tort. You may have a dispute over whether there was negligence. You may have a dispute over whether there was strict liability, but you won't have a dispute over intentional tort. If there is, if you change the fact that he intentionally hit her. Again, he hit Cuyah. That's for a battery. That's a key fact because if you said he threw a rock at her and missed her, then there's no touching. There's no contact. A kit battery requires a contact. And again, this goes, one of the reasons we didn't get into the facts earlier is because there is a level of law that is, that you need to know to be able to determine whether or not something is a key fact or essential fact. You are, so here you have, we say under a battery, there has to be hit. If we were trying to show for an assault, we would need to show that she actually saw the blow coming in order to show apprehension. The blow knocks her out and she was hospitalized for three weeks. Those are two different facts and they're both key facts because they both go to show a harmful contact. The hospitalization for three weeks can be, goes to show a harmful contact. If without that, we could still argue battery, but we have to argue possibly that it was an offensive contact if there was, if we cannot show harm. So those are key facts to the battery. It's not always easy to agree on what is a key fact, and so you will make mistakes, I will make mistakes, and we will, and in fact the dispute itself may be over whether or not it's a key fact. If you have a factual argument, go back to one of the earlier videos, you could have a factual argument over whether or not it's a fact, whether or not it's a key fact, but a key or essential fact is a source of the dispute. The dispute can be over the problem, the dispute can be over an issue in the problem, but there is a dispute. A lot of what you get in exams and especially when you get people off the street are background facts. Background facts helps round out the story, but when you change, but they're not a source of the dispute, because if you change the fact, they don't affect the dispute in any way. Now if they affect the dispute, that is if they cause the dispute to go away, if they introduce a doubt about an element being solved, then they're not a background fact, they're an essential fact. So for the problem that we just talked about, where she got hit is not a really significant importance. She was hit in the back of the head and the question becomes, so what? She could have been hit in the harm, she could have been hit on the leg. The key here is that there was harm and we show there was harm, but it doesn't matter if she was hit in the back of the head. That is a background fact. His riding, his bicycle are her walking down Shoria Street. The name of the street is unimportant. The time is unimportant. What difference is it 11.30 or 11 o'clock or 11.45 or midnight or 2 a.m. or 1 p.m. Is getting off of his bike doesn't affect the battery? The question is, how does any one of these affect the dispute in terms of whether she can sue for a battery? In my estimation, it doesn't affect it at all. Now you may want to argue that it does and you could make a credible argument and I'd be willing to listen to how this particular fact affects whether or not there's a battery. But as far as I can see right now, it doesn't affect. You want to make sure that you don't get into arguing background facts. Even putting background facts into your discussion takes away time and effort. One of the things you want to remember is if it's a background fact, you probably don't need in your analysis in your application because it's not going to change anything. You're just telling a story at that point and when you have a limited amount of time in a limited amount of space, you don't need to tell the story. You need to do analysis and application of the facts that are essential and important. So emotionally charged facts should not make a difference in the case. That's why I call them colorable. It's not the kind of facts that you will want to bring up on a law school exam in terms of affecting whether or not there's a battery. In fact, I doubt that your law school exam will even include things like race and gender, but you might want to, but there definitely be something you should take into consideration in the practice of law that these kind of facts should not affect the outcome of a case, but they will. Preclusion facts are facts which on their face satisfy an element or make it incapable of a element being satisfied. That is, you can hardly argue that he didn't intend to hit Cuyah when the fact says he intended to hit Cuyah. You can't argue that the contact wasn't harmful when the facts say he knocked her out. You can't argue that it wasn't harmful when the fact says she was hospitalized. Okay. And sometimes people, because they want to do IRAC, issue rule analysis, conclusion, they will make arguments that are completely unnecessary. It doesn't, when you have preclusion facts, facts that preclude you being able to make a two-sided argument, you still need to deal with it and we will show you a way of dealing with it, but you need to know that there is no dispute here. You must apply the facts to show that the element is or is not met, but you do not want to argue that they are not met. You're precluded from making that argument. Red herrings are facts that look and act like a key fact, but they aren't. They can be emotionally charged and sexy, but they have no impact on the outcome of the issue. And what they do is divert your attention. So being jealous of Cuy's height is interesting, but doesn't have any impact on a battery, because his motive has no impact on whether he intended stuff to do something. Now, if intent wasn't satisfied and the only fact was being jealous, then that might be an invitation for you to say motive is irrelevant. And it still might be an invitation to say motive is irrelevant. It in motive is irrelevant. Eesa mounts his bicycle and pedals away, again, an emotionally charged fact because it looks like he's fleeing the area, but it doesn't change the battery, because whether he stays around and tries to help her or runs away, neither one of those situations affects the battery, the existence of a battery. So part of the problem is then how do you deal with a red herring? Another red herring is that she was completely unaware of who hit her, a red herring for a battery, but an essential fact for an assault. But the call of the question said battery. So whether her being completely unaware of who hit her is irrelevant to the battery. So the question becomes how to handle these red herring or none issue fat? Ask your professor, he or she will want you to either ignore them and to not even mention them or explain why it's not an issue. I believe it's a better, it's adds to your analysis to explain why it's an issue as long as you do it quickly and succinctly. And this is true for bar exams to explain why it's not an issue, but it's again, you do not Iraq and it's important to do it quickly and succinctly. And we will, as we progress through the course, we will give you a method for doing that. Right now, we just want you to begin to recognize that when the facts are red herring. So when in doubt, tell your press professor why the fact is ill, that the fact is irrelevant and why. Again, do so in a brief manner. Here's an example. Although Kui was completely unaware of who hit her till later, she can still hold ease the liable for battery since weariness is not required in battery. Boom. One sentence taken care of, but do not Iraq, do not crack. The issue is whether there's a contact. The rule is awareness is not necessary for contact. In this case was unaware, Kui was unaware, however, awareness is not necessarily consequently there is a contact. You don't want to do all that. See the difference between the one sentence that I did and the Iraq, which was for sentences. Instead, you want to make the statement as a part of your analysis of an appropriate issue that's not you don't want to make this a separate issue. So reading a law school exam for facts. First, whether it's a large exam with a lot of facts and a lot of problems or a short answer question. Read the call of the question first. Read the whole question thoroughly and isolate key facts from non key facts. The figure out a way that you will identify key fact and start practicing that method now. So circle a key fact or underline of these key fact or annotate the key fact in the margin of the exam by identify writing the problem or the issue it raises. So if a key fact will raise an issue or solve an issue put in the margin which issue it raised or which issue it solves. Read Pete step number two looking for additional key facts that you may have missed. That's how you read a law school exam for facts or read a short answer exam for question or a multiple choice question. Read the call of the question first before you read the body. Read the body sort of looking for key facts quickly because the key facts will help you solve the problem. So trust the process. You trust the process by working on these different parts. You've got to practice like someone who practices just notes or scales or one type of shot. You're going to have to practice just spotting key facts. It will give you some practice on in this course. But if that's all you do you won't have practice enough. What we do in this course is really to introduce you to the things that you need to do more of because you need to be studying three to five hours a week per credit hour that you're in a course. Half of that time needs to be in exam preparation and the kinds of things that we've outlined for you are the kinds of things you need to be doing in exam preparation. If you have any questions or comments post them on Moodle.