Common Law Legal System Review

Review

Common Law Anglo-American Legal System Judge made component of legal system Process or approach to legal analysis NOTE – you will not be tested on the history lecture, although you should understand the origins of common law and equity.

Anglo-American Legal System

Judge made component of legal system

Process or approach to legal analysis

NOTE – you will not be tested on the history lecture, although you should understand the origins of common law and equity.

Lawyers Bifurcated system in England (Barristers and Solicitors) Note differences between the two solicitor “stands in shoes of client”, barrister “represents” One system in U.S. (lawyer or attorney) lawyer “stands in shoes” and “represents” clients In both systems lawyers are “fact finders” and “law presenters” Remember, judges have no independent fact finding power.

Bifurcated system in England (Barristers and Solicitors)

Note differences between the two

solicitor “stands in shoes of client”, barrister “represents”

One system in U.S. (lawyer or attorney)

lawyer “stands in shoes” and “represents” clients

In both systems lawyers are “fact finders” and “law presenters”

Remember, judges have no independent fact finding power.

Judges (U.K.) In theory appointed by queen for unlimited term to 70. House of Lords – Law Lords Court of Appeals – Lord Justice of Appeal High Court – Judge of the High Court Crown Court – Crown Court Judge

In theory appointed by queen for unlimited term to 70.

House of Lords – Law Lords

Court of Appeals – Lord Justice of Appeal

High Court – Judge of the High Court

Crown Court – Crown Court Judge

Judges in the U.S. Federal Appointed for life by the President after confirmation by the Senate. Highest Court – Supreme Court Justice Court of Appeals and District Court – Judge States 21 states have elections, the rest of some system of appointments. Only 12 states have lifetime appointments Names of judges are same as above.

Federal

Appointed for life by the President after confirmation by the Senate.

Highest Court – Supreme Court Justice

Court of Appeals and District Court – Judge

States

21 states have elections, the rest of some system of appointments.

Only 12 states have lifetime appointments

Names of judges are same as above.

Role of the Judge Ensure Due Process and Fairness Rule on Procedural Matters Determine applicable law Instruct jury on such in jury trial Can be fact finder bench trial, summary proceedings Hand down sentences Except capital punishment in the U.S.

Ensure Due Process and Fairness

Rule on Procedural Matters

Determine applicable law

Instruct jury on such in jury trial

Can be fact finder

bench trial, summary proceedings

Hand down sentences

Except capital punishment in the U.S.

Juries Right to juries Limited in U.K., mostly used in criminal cases Constitution provides to rights juries in federal cases. The rights varies in state courts. 6 th Amendment (criminal), 7 th Amendment (civil) Selection U.K. - judge calls 12 people and asks if they can serve U.S. - lengthy process whereby judge and lawyers get to ask potential jurors a series of questions and remove them if necessary (challenge of cause, peremptory challenge)

Right to juries

Limited in U.K., mostly used in criminal cases

Constitution provides to rights juries in federal cases. The rights varies in state courts.

6 th Amendment (criminal), 7 th Amendment (civil)

Selection

U.K. - judge calls 12 people and asks if they can serve

U.S. - lengthy process whereby judge and lawyers get to ask potential jurors a series of questions and remove them if necessary (challenge of cause, peremptory challenge)

Juries Juries vary in size in the U.S. depending upon jurisdiction. Benefits of the system: citizens take part in legal system, builds trust, many say it is the cornerstone of democracy. Limits of the system: Delay and costs (U.S.), evidence presented slowly, competency issues, rigidity of system, etc. Jury Nullification - Jury's refusal to render a verdict according to the law, as instructed by the court, regardless of the weight of evidence presented.

Juries vary in size in the U.S. depending upon jurisdiction.

Benefits of the system:

citizens take part in legal system, builds trust, many say it is the cornerstone of democracy.

Limits of the system:

Delay and costs (U.S.), evidence presented slowly, competency issues, rigidity of system, etc.

Jury Nullification - Jury's refusal to render a verdict according to the law, as instructed by the court, regardless of the weight of evidence presented.

British Court Structure

U.S. Court System Note – most state systems have a similar tiered system

U.S. Appeals Court

Pleadings: First Stage All cases begin with the filing of pleadings Lawsuit initiated by filing of a Complaint, Petition, Claim (varies by jurisdiction) Defense then files: Answer, Response, Demurrer Summary Judgment is decision based solely upon the pleadings.

All cases begin with the filing of pleadings

Lawsuit initiated by filing of a Complaint, Petition, Claim (varies by jurisdiction)

Defense then files: Answer, Response, Demurrer

Summary Judgment is decision based solely upon the pleadings.

Discovery: Stage Two Basically, a fact finding mission Kinds: Depositions - Self-executing procedure for examination under oath of an expected party or witness for discovery or as evidence. Interrogatories - Self-executing procedure for submission of written questions to party to be answered under oath. Demands to Inspect or Produce Documents (parties only) Requests for Admissions (parties only) Physical & Mental Exams (parties only)

Basically, a fact finding mission

Kinds:

Depositions - Self-executing procedure for examination under oath of an expected party or witness for discovery or as evidence.

Interrogatories - Self-executing procedure for submission of written questions to party to be answered under oath.

Demands to Inspect or Produce Documents (parties only)

Requests for Admissions (parties only)

Physical & Mental Exams (parties only)

Choosing the factfinder Judge or Jury Opening Statements Plaintiff's Case Defendant's Case Plaintiff's Rebuttal Closing Arguments Instructions to the Jury & Jury Deliberation Verdict & Judgment

Judicial Control of Jury Action Directed Verdict made at the close of either party's arguments BEFORE jury has a chance to decide. the evidence is so compelling that only one result could follow Judgment Not Withstanding the Verdict (JNOV) made by either party AFTER jury verdict. New Trial

Directed Verdict

made at the close of either party's arguments BEFORE jury has a chance to decide.

the evidence is so compelling that only one result could follow

Judgment Not Withstanding the Verdict (JNOV)

made by either party AFTER jury verdict.

New Trial

Precedent The legal principle or rule created by a court which guides judges in subsequent cases with similar issues or facts. Sometimes called Authority To serve as precedent for a pending case, a prior decision must have a similar question of law and factual situation.

The legal principle or rule created by a court which guides judges in subsequent cases with similar issues or facts.

Sometimes called Authority

To serve as precedent for a pending case, a prior decision must have a similar question of law and factual situation.

Stare Decisis Latin for “to stand by things decided” (roughly) the notion that prior court decisions must be recognized as precedents Civil Law Systems believe stare decisis interferes: with judge's ability to interpret the law legislature's ability to make the law Advantages: Efficiency in administration of justice, allows for accurate predictions of outcomes , allows for equal treatment of people in like situations = fundamental justice

Latin for “to stand by things decided” (roughly)

the notion that prior court decisions must be recognized as precedents

Civil Law Systems believe stare decisis interferes:

with judge's ability to interpret the law

legislature's ability to make the law

Advantages:

Efficiency in administration of justice, allows for accurate predictions of outcomes , allows for equal treatment of people in like situations = fundamental justice

Holding Ratio decidendi is a Latin phrase meaning "the reason for the decision". the legal principles used by a court to compose the rationale of a particular judgment. Also known as rule(s) or holding(s). potentially binding precedent, through the principle of stare decisis. Thus, it is both: reason used by court to come particular decision rule that is binding on other courts

Ratio decidendi is a Latin phrase meaning "the reason for the decision".

the legal principles used by a court to compose the rationale of a particular judgment.

Also known as rule(s) or holding(s).

potentially binding precedent, through the principle of stare decisis.

Thus, it is both:

reason used by court to come particular decision

rule that is binding on other courts

How to Find the Ratio Look for the rule(s) of law used by the court to come to it's decision(s). The rule must be necessary for the decision. the result would have been different but for the rule. In the end, there is no real “rule” for finding the rule. It takes practice and knowledge.

Look for the rule(s) of law used by the court to come to it's decision(s).

The rule must be necessary for the decision.

the result would have been different but for the rule.

In the end, there is no real “rule” for finding the rule. It takes practice and knowledge.

Dictum Latin for "remark," a comment by a judge in a decision or ruling which is not required to reach the decision, but may state a related legal principle. Has no value as precedent. Often hear “it is only dictum (dicta).”

Latin for "remark,"

a comment by a judge in a decision or ruling which is not required to reach the decision, but may state a related legal principle.

Has no value as precedent.

Often hear “it is only dictum (dicta).”

Analogical Reasoning Also called reasoning by analogy Analogical reasoning is a method of using past experience to improve problem solving performance in similar new situations.

Also called reasoning by analogy

Analogical reasoning is a method of using past experience to improve problem solving performance in similar new situations.

Avoiding Precedent Ways to avoid precedent: Overrule (few courts have this option) Distinguish to argue that the rule in one court decision does not apply to a particular case although there is an apparent similarity. common technique to avoid precedent. Disapproving Precedent court can ignore precedent with hope that higher court will overrule (change) the precedent.

Ways to avoid precedent:

Overrule (few courts have this option)

Distinguish

to argue that the rule in one court decision does not apply to a particular case although there is an apparent similarity.

common technique to avoid precedent.

Disapproving Precedent

court can ignore precedent with hope that higher court will overrule (change) the precedent.