1L Exam Prep and Motivation Thread

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gdane
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Re: 1L Exam Prep and Motivation Thread

Postby gdane » Sat Nov 19, 2011 8:31 pm

I dont understand what peoples problem with twombley and iqbal is. Just make your pleading more specific.

Or am I missing something?

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ph14
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Re: 1L Exam Prep and Motivation Thread

Postby ph14 » Sat Nov 19, 2011 8:33 pm

gdane wrote:I dont understand what peoples problem with twombley and iqbal is. Just make your pleading more specific.

Or am I missing something?


I feel the same way, although that might be because my professor only spent a day on it. "Plausible" is a bit of a vague standard though, and there isn't a lot of precedent to guide us, so I can see how it might be a bit difficult to apply.

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gdane
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Re: 1L Exam Prep and Motivation Thread

Postby gdane » Sat Nov 19, 2011 8:36 pm

ph14 wrote:
gdane wrote:I dont understand what peoples problem with twombley and iqbal is. Just make your pleading more specific.

Or am I missing something?


I feel the same way, although that might be because my professor only spent a day on it. "Plausible" is a bit of a vague standard though, and there isn't a lot of precedent to guide us, so I can see how it might be a bit difficult to apply.

Instead of saying "Im suing D for negligence because he hit me with his car" you can say "Im suing D for negligence because he was texting on his phone while driving and hit me with his car because he wasnt paying attention."

Simple example, but I reckon that just being as specific as you can be in your initial pleading will satisy twombley and iqbal pleading standards.

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Re: 1L Exam Prep and Motivation Thread

Postby ph14 » Sat Nov 19, 2011 9:07 pm

gdane wrote:
ph14 wrote:
gdane wrote:I dont understand what peoples problem with twombley and iqbal is. Just make your pleading more specific.

Or am I missing something?


I feel the same way, although that might be because my professor only spent a day on it. "Plausible" is a bit of a vague standard though, and there isn't a lot of precedent to guide us, so I can see how it might be a bit difficult to apply.

Instead of saying "Im suing D for negligence because he hit me with his car" you can say "Im suing D for negligence because he was texting on his phone while driving and hit me with his car because he wasnt paying attention."

Simple example, but I reckon that just being as specific as you can be in your initial pleading will satisy twombley and iqbal pleading standards.


Right. But there are some strategy at work here too. If I recall correctly, the scope of discovery is limited to anything relevant to what you pleaded. So strategy wise, it makes sense for plaintiffs to plead as general as possible within the Twombly/Iqbal standard.

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Re: 1L Exam Prep and Motivation Thread

Postby ilovesf » Sat Nov 19, 2011 9:14 pm

gdane wrote:
ph14 wrote:
gdane wrote:I dont understand what peoples problem with twombley and iqbal is. Just make your pleading more specific.

Or am I missing something?


I feel the same way, although that might be because my professor only spent a day on it. "Plausible" is a bit of a vague standard though, and there isn't a lot of precedent to guide us, so I can see how it might be a bit difficult to apply.

Instead of saying "Im suing D for negligence because he hit me with his car" you can say "Im suing D for negligence because he was texting on his phone while driving and hit me with his car because he wasnt paying attention."

Simple example, but I reckon that just being as specific as you can be in your initial pleading will satisy twombley and iqbal pleading standards.

how do you know he was texting?

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northwood
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Re: 1L Exam Prep and Motivation Thread

Postby northwood » Sat Nov 19, 2011 9:26 pm

twombly iqbal??

what course is this? Crim? Torts?? my ohshitihavenoideawhatthehellisgoing on meter is in full panic mode..... back to the books i nee to go

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Re: 1L Exam Prep and Motivation Thread

Postby ph14 » Sat Nov 19, 2011 9:27 pm

northwood wrote:twombly iqbal??

what course is this? Crim? Torts?? my ohshitihavenoideawhatthehellisgoing on meter is in full panic mode..... back to the books i nee to go


Latest civ pro cases that raise the pleading standard.

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Re: 1L Exam Prep and Motivation Thread

Postby ilovesf » Sat Nov 19, 2011 9:28 pm

northwood wrote:twombly iqbal??

what course is this? Crim? Torts?? my ohshitihavenoideawhatthehellisgoing on meter is in full panic mode..... back to the books i nee to go

civ pro, it overruled notice pleading and made the allegations be plausible and more specific than the previous standard

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Re: 1L Exam Prep and Motivation Thread

Postby ph14 » Sat Nov 19, 2011 9:29 pm

ilovesf wrote:
northwood wrote:twombly iqbal??

what course is this? Crim? Torts?? my ohshitihavenoideawhatthehellisgoing on meter is in full panic mode..... back to the books i nee to go

civ pro, it overruled notice pleading and made the allegations be plausible and more specific than the previous standard


I don't think it overruled notice pleading-- just heightened the standard. Correct me if i'm wrong.

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Re: 1L Exam Prep and Motivation Thread

Postby ilovesf » Sat Nov 19, 2011 9:32 pm

ph14 wrote:
ilovesf wrote:
northwood wrote:twombly iqbal??

what course is this? Crim? Torts?? my ohshitihavenoideawhatthehellisgoing on meter is in full panic mode..... back to the books i nee to go

civ pro, it overruled notice pleading and made the allegations be plausible and more specific than the previous standard


I don't think it overruled notice pleading-- just heightened the standard. Correct me if i'm wrong.

my professor specifically said this, but he's also a total noob at teaching and maybe misspoke, it's what i'm writing down for his test b/c he said it.

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Re: 1L Exam Prep and Motivation Thread

Postby ph14 » Sat Nov 19, 2011 9:32 pm

ilovesf wrote:
ph14 wrote:
ilovesf wrote:
northwood wrote:twombly iqbal??

what course is this? Crim? Torts?? my ohshitihavenoideawhatthehellisgoing on meter is in full panic mode..... back to the books i nee to go

civ pro, it overruled notice pleading and made the allegations be plausible and more specific than the previous standard


I don't think it overruled notice pleading-- just heightened the standard. Correct me if i'm wrong.

my professor specifically said this, but he's also a total noob at teaching and maybe misspoke, it's what i'm writing down for his test b/c he said it.


Fair enough.

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Re: 1L Exam Prep and Motivation Thread

Postby ilovesf » Sat Nov 19, 2011 9:38 pm

i am already reading the e&e right now (impleaders, ugh), and i went to check what it says about twombly - is it not in there or am i missing something? also, the e&e doesn't discuss interpleaders.. grrr.

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Re: 1L Exam Prep and Motivation Thread

Postby ph14 » Sat Nov 19, 2011 9:39 pm

ilovesf wrote:i am already reading the e&e right now (impleaders, ugh), and i went to check what it says about twombly - is it not in there or am i missing something? also, the e&e doesn't discuss interpleaders.. grrr.


Yeah, I don't think the E&E discusses pleading at all, unfortunately.

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Re: 1L Exam Prep and Motivation Thread

Postby alicrimson » Sat Nov 19, 2011 9:41 pm

Good Lord, forget what I said about not being stressed. I just looked at my exam prep calendar, which has the little days marked off, as many of you also do. Holy baby Jesus in Heaven, eight days of studying left until the first exam. I now understand what everyone here has been freaking over. I mean, this is still substantial amounts of time. I just can't believe we're already here.

ilovesf, kudos to you for being even closer in the exam timeline than we are and not flipping your s.

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Re: 1L Exam Prep and Motivation Thread

Postby ph14 » Sat Nov 19, 2011 9:43 pm

alicrimson wrote:Good Lord, forget what I said about not being stressed. I just looked at my exam prep calendar, which has the little days marked off, as many of you also do. Holy baby Jesus in Heaven, eight days of studying left until the first exam. I now understand what everyone here has been freaking over. I mean, this is still substantial amounts of time. I just can't believe we're already here.

ilovesf, kudos to you for being even closer in the exam timeline than we are and not flipping your s.


My first exam isn't until well into December. Glad I don't have to go first lol.

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Re: 1L Exam Prep and Motivation Thread

Postby ilovesf » Sat Nov 19, 2011 9:45 pm

alicrimson wrote:Good Lord, forget what I said about not being stressed. I just looked at my exam prep calendar, which has the little days marked off, as many of you also do. Holy baby Jesus in Heaven, eight days of studying left until the first exam. I now understand what everyone here has been freaking over. I mean, this is still substantial amounts of time. I just can't believe we're already here.

ilovesf, kudos to you for being even closer in the exam timeline than we are and not flipping your s.

oh no, my first exam is december 1st.. i have longer than you :P i go through stages of flipping out and being totally confident about the exam.. i don't tend to flip out online though... i cry in bed, watch scary movies and eat ice cream.

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Re: 1L Exam Prep and Motivation Thread

Postby ph14 » Sat Nov 19, 2011 9:46 pm

ilovesf wrote:
alicrimson wrote:Good Lord, forget what I said about not being stressed. I just looked at my exam prep calendar, which has the little days marked off, as many of you also do. Holy baby Jesus in Heaven, eight days of studying left until the first exam. I now understand what everyone here has been freaking over. I mean, this is still substantial amounts of time. I just can't believe we're already here.

ilovesf, kudos to you for being even closer in the exam timeline than we are and not flipping your s.

oh no, my first exam is december 1st.. i have longer than you :P i go through stages of flipping out and being totally confident about the exam.. i don't tend to flip out online though... i cry in bed, watch scary movies and eat ice cream.


Or play with your 49er loving dog?

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Re: 1L Exam Prep and Motivation Thread

Postby ilovesf » Sat Nov 19, 2011 9:48 pm

ph14 wrote:
ilovesf wrote:
alicrimson wrote:Good Lord, forget what I said about not being stressed. I just looked at my exam prep calendar, which has the little days marked off, as many of you also do. Holy baby Jesus in Heaven, eight days of studying left until the first exam. I now understand what everyone here has been freaking over. I mean, this is still substantial amounts of time. I just can't believe we're already here.

ilovesf, kudos to you for being even closer in the exam timeline than we are and not flipping your s.

oh no, my first exam is december 1st.. i have longer than you :P i go through stages of flipping out and being totally confident about the exam.. i don't tend to flip out online though... i cry in bed, watch scary movies and eat ice cream.


Or play with your 49er loving dog?

:lol: that too. i actually can't study at home because he takes up way too much of my attention. i'm totally bummed though, i'm skipping the niners game tomorrow because i need to study.. my whole family is going :(

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Re: 1L Exam Prep and Motivation Thread

Postby daesonesb » Sat Nov 19, 2011 9:59 pm

On Twombly/Iqbal
Saw this thread. Having been where you are, I will stretch into my Civ Pro memory banks and see if I can give a summary from them. Take this for what you will, its been about 6-7 months now. I did well on my Civ Pro exam though, and feel like I still recall the stuff.

As said, you first need to allege specific enough facts to explain to me why liability would arise, were it that all the facts you are alleging are true. The point is that (unlike Conley's notice standard) you aren't just telling the defendant what theory of liability you're using, you are telling him how you're going to meet your burden.

More importantly, though: you can't assume under Twombly that the judge will agree with your conclusions. Judges are told to disregard the truth of all of the plaintiff's legal conclusions. Instead, they must ask if plaintiff's conclusions are "plausible" simply by looking at the facts in the complaint. (Note, this means that if you have a tort like NIED, each element is its own conclusion, and needs to be supported by its own set of facts and reasoning).

Plausibility is hard to pin down, as it is going to be based on the judge's experience trying cases like this, and a healthy dose of common sense. The idea is this though: If you say facts W, X, and Y lead to conclusion Z, but a judge looks at your complaint and says "No, I think that W,X, and Y more credibly support conclusion A," then the judge's reading wins. If this leaves a necessary element or factor of your cause of action unsupported, then you are going to be 12b(6)'d.

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Re: 1L Exam Prep and Motivation Thread

Postby ph14 » Sat Nov 19, 2011 10:05 pm

daesonesb wrote:On Twombly/Iqbal
Saw this thread. Having been where you are, I will stretch into my Civ Pro memory banks and see if I can give a summary from them. Take this for what you will, its been about 6-7 months now. I did well on my Civ Pro exam though, and feel like I still recall the stuff.

As said, you first need to allege specific enough facts to explain to me why liability would arise, were it that all the facts you are alleging are true. The point is that you aren't just telling the defendant what theory of liability you're using, you are telling him how you're going to meet your burden.

More importantly, though: you can't assume under Twombly that the judge will agree with your conclusions. Judges are told to disregard the truth of all of the plaintiff's legal conclusions. Instead, they must ask if plaintiff's conclusions are "plausible" simply by looking at the facts in the complaint. (Note, this means that if you have a tort like NIED, each element is its own conclusion, and needs to be supported by its own set of facts and reasoning).

Plausibility is hard to pin down, as it is going to be based on the judge's experience trying cases like this, and a healthy dose of common sense. The idea is this though: If you say facts W, X, and Y lead to conclusion Z, but a judge looks at your complaint and says "No, I think that W,X, and Y more credibly support conclusion A," then the judge's reading wins. If this leaves a necessary element or factor of your cause of action unsupported, then you are going to be 12b(6)'d.


This is not my understanding. I learned that at the pleading stage, the judge is not supposed to be weighing the evidence. Just taking the facts alleged, if true, support the claim, i.e., Not going on a fishing expedition like in Twombly and Iqbal. The way my professor taught it was that, on a scale of evidence, 0 being none and 100 being proving the case:

l-A--B----------C-------------l

With A being possible and C being a preponderance of the evidence. You need something more than A, and facts to support it. In Twombly and Iqbal, they pretty much had evidence that, taken as true without further discovery, only amounted to point A. For example, the facts of parallel telephone business (forgive me if I am not recalling the facts perfectly), taken as true is not "plausible" that there is illegal collusion going on; especially since there is another, equally likely explanation.

So a mere claim of parallel business for antitrust is not enough-- you would need something more that could plausibly suggest illegal collusion.

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Re: 1L Exam Prep and Motivation Thread

Postby alicrimson » Sat Nov 19, 2011 10:11 pm

ilovesf wrote:
alicrimson wrote:Good Lord, forget what I said about not being stressed. I just looked at my exam prep calendar, which has the little days marked off, as many of you also do. Holy baby Jesus in Heaven, eight days of studying left until the first exam. I now understand what everyone here has been freaking over. I mean, this is still substantial amounts of time. I just can't believe we're already here.

ilovesf, kudos to you for being even closer in the exam timeline than we are and not flipping your s.

oh no, my first exam is december 1st.. i have longer than you :P i go through stages of flipping out and being totally confident about the exam.. i don't tend to flip out online though... i cry in bed, watch scary movies and eat ice cream.


Oh no, I don't kick off until December 6th. I just made a study schedule where I set aside whole days for each topic. I understand this will likely fall by the wayside as the crazy sets in; however, I can dream. :D I understand the cry in bed. I usually like to alleviate my pain by pretending to online shop. Pretending because I don't have the money/need said money for purchase of xmas gifts to spend on the pretend lovely outfits.

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Re: 1L Exam Prep and Motivation Thread

Postby daesonesb » Sat Nov 19, 2011 10:14 pm

ph14 wrote:
daesonesb wrote:On Twombly/Iqbal
Saw this thread. Having been where you are, I will stretch into my Civ Pro memory banks and see if I can give a summary from them. Take this for what you will, its been about 6-7 months now. I did well on my Civ Pro exam though, and feel like I still recall the stuff.

As said, you first need to allege specific enough facts to explain to me why liability would arise, were it that all the facts you are alleging are true. The point is that you aren't just telling the defendant what theory of liability you're using, you are telling him how you're going to meet your burden.

More importantly, though: you can't assume under Twombly that the judge will agree with your conclusions. Judges are told to disregard the truth of all of the plaintiff's legal conclusions. Instead, they must ask if plaintiff's conclusions are "plausible" simply by looking at the facts in the complaint. (Note, this means that if you have a tort like NIED, each element is its own conclusion, and needs to be supported by its own set of facts and reasoning).

Plausibility is hard to pin down, as it is going to be based on the judge's experience trying cases like this, and a healthy dose of common sense. The idea is this though: If you say facts W, X, and Y lead to conclusion Z, but a judge looks at your complaint and says "No, I think that W,X, and Y more credibly support conclusion A," then the judge's reading wins. If this leaves a necessary element or factor of your cause of action unsupported, then you are going to be 12b(6)'d.


This is not my understanding. I learned that at the pleading stage, the judge is not supposed to be weighing the evidence. Just taking the facts alleged, if true, support the claim, i.e., Not going on a fishing expedition like in Twombly and Iqbal. The way my professor taught it was that, on a scale of evidence, 0 being none and 100 being proving the case:

l-A--B----------C-------------l

With A being possible and C being a preponderance of the evidence. You need something more than A, and facts to support it. In Twombly and Iqbal, they pretty much had evidence that, taken as true without further discovery, only amounted to point A. For example, the facts of parallel telephone business (forgive me if I am not recalling the facts perfectly), taken as true is not "plausible" that there is illegal collusion going on; especially since there is another, equally likely explanation.

So a mere claim of parallel business for antitrust is not enough-- you would need something more that could plausibly suggest illegal collusion.


It depends what you mean by weighing the evidence. The judge will not question whether facts are true. BUT, they have to question whether the facts support the conclusion you are asking them to reach. In Iqbal, for example, the plaintiff alleged that A made it his policy to single out middle eastern people in a number of ways. The justices had to take that as true, but what they didn't need to do was assume that this implied that A was intentionally discriminating. Rather, they asked whether the inference of discriminatory intent (a conclusion) was supported by the fact that A picked out Middle Eastern people in his policies.

The heart of Twombly/Iqbal is that you take alleged facts as true, but you don't need to take and legal conclusions as true, unless they are plausible based on the evidence.

Edit: This is hard, because things like intent are often thought of as mixed questions of law and fact, but I think that Iqbal shows that you don't need to assume that mixed law and fact conclusions are true.

adonai
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Re: 1L Exam Prep and Motivation Thread

Postby adonai » Sat Nov 19, 2011 10:44 pm

Took the day off to do summer job stuff. I guess it is still work, but since it is not academic feelsgoodman. 8)

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Re: 1L Exam Prep and Motivation Thread

Postby gdane » Sat Nov 19, 2011 11:02 pm

daesonesb wrote:
ph14 wrote:
daesonesb wrote:On Twombly/Iqbal
Saw this thread. Having been where you are, I will stretch into my Civ Pro memory banks and see if I can give a summary from them. Take this for what you will, its been about 6-7 months now. I did well on my Civ Pro exam though, and feel like I still recall the stuff.

As said, you first need to allege specific enough facts to explain to me why liability would arise, were it that all the facts you are alleging are true. The point is that you aren't just telling the defendant what theory of liability you're using, you are telling him how you're going to meet your burden.

More importantly, though: you can't assume under Twombly that the judge will agree with your conclusions. Judges are told to disregard the truth of all of the plaintiff's legal conclusions. Instead, they must ask if plaintiff's conclusions are "plausible" simply by looking at the facts in the complaint. (Note, this means that if you have a tort like NIED, each element is its own conclusion, and needs to be supported by its own set of facts and reasoning).

Plausibility is hard to pin down, as it is going to be based on the judge's experience trying cases like this, and a healthy dose of common sense. The idea is this though: If you say facts W, X, and Y lead to conclusion Z, but a judge looks at your complaint and says "No, I think that W,X, and Y more credibly support conclusion A," then the judge's reading wins. If this leaves a necessary element or factor of your cause of action unsupported, then you are going to be 12b(6)'d.


This is not my understanding. I learned that at the pleading stage, the judge is not supposed to be weighing the evidence. Just taking the facts alleged, if true, support the claim, i.e., Not going on a fishing expedition like in Twombly and Iqbal. The way my professor taught it was that, on a scale of evidence, 0 being none and 100 being proving the case:

l-A--B----------C-------------l

With A being possible and C being a preponderance of the evidence. You need something more than A, and facts to support it. In Twombly and Iqbal, they pretty much had evidence that, taken as true without further discovery, only amounted to point A. For example, the facts of parallel telephone business (forgive me if I am not recalling the facts perfectly), taken as true is not "plausible" that there is illegal collusion going on; especially since there is another, equally likely explanation.

So a mere claim of parallel business for antitrust is not enough-- you would need something more that could plausibly suggest illegal collusion.


It depends what you mean by weighing the evidence. The judge will not question whether facts are true. BUT, they have to question whether the facts support the conclusion you are asking them to reach. In Iqbal, for example, the plaintiff alleged that A made it his policy to single out middle eastern people in a number of ways. The justices had to take that as true, but what they didn't need to do was assume that this implied that A was intentionally discriminating. Rather, they asked whether the inference of discriminatory intent (a conclusion) was supported by the fact that A picked out Middle Eastern people in his policies.

The heart of Twombly/Iqbal is that you take alleged facts as true, but you don't need to take and legal conclusions as true, unless they are plausible based on the evidence.

Edit: This is hard, because things like intent are often thought of as mixed questions of law and fact, but I think that Iqbal shows that you don't need to assume that mixed law and fact conclusions are true.

...the fuck?

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Re: 1L Exam Prep and Motivation Thread

Postby TheFutureLawyer » Sat Nov 19, 2011 11:03 pm

As far as Iqbal/Twombly;

On a practical level, Twombly and Iqbal establish a clear practice and procedure for evaluating a complaint. First, district judges must pore through the complaint for any allegations that appear “conclusory”—allegations that are “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” In other words, judges should keep an eye out for allegations containing little more than elements of the legal claim at issue. Then, judges should weigh the remaining facts against the prevailing legal standard and determine if the claim crosses over the still-somewhat-muddy threshold of “plausibility.”

--LinkRemoved--

I remember looking that up when we first read the cases. Shows that it's actually not that complicated (unless you are dealing with a real life case that is; on exams we just need to apply the doctrine in a non-laughable way):

Step 1; ignore the conclusory allegations.
Step 2; do the remaining allegations plausibly suggest a claim for which relief can be granted?



Just wanted to point out that I still think it's kinda bullshit.




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