Common Law Review Lecture

Common Law Legal System ReviewCommon Law Legal Slide 1Systems Review 30 June 2011

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. Common Law Legal Slide 2 Systems Review 30 June 2011

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. Common Law Legal Slide 3 Systems Review 30 June 2011

Judges (U.K.)● Under the Constitutional Reform Act of 2005, judges are nominated by the Judicial Appointments Commission and selected by the Lord Chancellor for a “life term” until they reach the age of 70. ➢ Supreme Court - Justice ➢ Court of Appeals – Lord Justice of Appeal ➢ High Court – Judge of the High Court ➢ Crown Court – Crown Court Judge ➢ County Court – District Court Judge Common Law Legal Slide 4 Systems Review 30 June 2011

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. Common Law Legal Slide 5 Systems Review 30 June 2011

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. Common Law Legal Slide 6 Systems Review 30 June 2011

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.  6th Amendment (criminal), 7th 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) Common Law Legal Slide 7 Systems Review 30 June 2011

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 - Jurys refusal to render a verdict according to the law, as instructed by the court, regardless of the weight of evidence presented. Common Law Legal Slide 8 Systems Review 30 June 2011

British Court StructureCommon Law Legal Slide 9Systems Review 30 June 2011

U.S. Court System Note – most state systems have a similar tiered systemCommon Law Legal Slide 10Systems Review 30 June 2011

U.S. Appeals CourtCommon Law Legal Slide 11Systems Review 30 June 2011

Common Law Legal Slide 12Systems Review 30 June 2011

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. Common Law Legal Slide 13 Systems Review 30 June 2011

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) Common Law Legal Slide 14 Systems Review 30 June 2011

Choosing the factfinder Judge or Jury Opening Statements Plaintiffs Case Defendants Case Plaintiffs Rebuttal Instructions to the JuryClosing Arguments Verdict & Judgment & Jury Deliberation

Judicial Control of Jury Action● Directed Verdict ➢ made at the close of either partys 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 Common Law Legal Slide 16 Systems Review 30 June 2011

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. Common Law Legal Slide 17 Systems Review 30 June 2011

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 judges ability to interpret the law ➢ legislatures 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 Common Law Legal Slide 18 Systems Review 30 June 2011

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 Common Law Legal Slide 19 Systems Review 30 June 2011

How to Find the Ratio● Look for the rule(s) of law used by the court to come to its 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. Common Law Legal Slide 20 Systems Review 30 June 2011

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).” Common Law Legal Slide 21 Systems Review 30 June 2011

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. Common Law Legal Slide 22 Systems Review 30 June 2011

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. Common Law Legal Slide 23 Systems Review 30 June 2011

Common Interpretation RulesLiteral/Plain Meaning Rule●Historical Rule/Original Intent●Golden Rule●Mischief Rule (U.K. only)●Purposive/Functional Rule● Common Law Legal Slide 24 Systems Review 30 June 2011

Canons of Interpretation● ejusdem generis ➢ treating items "of the same kind" together● Noscitur a sociis ➢ known from associates● expressio unius est exclusio alterius ➢ "the expression of one thing is the exclusion of another"● Strict Construction Common Law Legal Slide 25 Systems Review 30 June 2011

Common Law Review Lecture

by Matthew LeMieux on Jul 09, 2007

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