OVERALL STRUCTURE OF THE NEW JERSEY SUPERIOR COURT S.docx

OVERALL STRUCTURE OF THE NEW JERSEY SUPERIOR
COURT
Summary by A. CRATER, August 2011
S. H. Curcio September 2015
The New Jersey Superior Court is separated into two divisions,
the Trial Division and the Appellate Division. The Appellate
Division receives a case after a Superior Court judge issues a
decision and a party to the case files an appeal. Appeals are
necessarily legal in nature, and do not involve witness
testimony or presentation of evidence. Appellate Court
decisions are made by a panel of judges who review the record
of the lower court and arguments of Counsel which arguments
are written in briefs and may be argued orally.
The Superior Court-Trial Division handles all matters that are
before a court for a verdict, remedy, disposition or other court
order that involves the parties, directly. The Trial Division of
Superior Court is, itself, divided into two separate divisions, the
Civil Division and the Criminal Division.
The Criminal Division handles indictable criminal charges,
which are known in some states as felony charges. In New
Jersey these criminal charges are simply called “crimes”.
(Lesser offenses are not heard in the Superior Court but are in
the Municipal Court and they are called “disorderly persons
offenses”). All cases before the Superior Court’s Criminal
Division are rooted in the New Jersey Criminal Code, which
defines the parameters of every crime. The Criminal Code also
gives the degree of every crime and specifies the range of
sentence for each crime. The Criminal Division is its own Part
(the Criminal Part) and is not divided into other sections or

courts.
In contrast, the Civil Division has several sections of our
Judiciary within it, including Family Part, Family Part-Juvenile
and General Civil Part. “Civil Division” does not mean the
same thing as “General Civil Part.” Civil Part is only a section
of the Civil Division. The Civil Part handles various matters,
which are generally disputes that are economic in nature. The
types of cases heard in Civil Part include personal injury suits,
medical malpractice suits, breach of contract cases and
wrongful termination suits. Thus the Civil Part issues orders
and accepts verdicts that have a monetary impact on the parties.
Family Part is also a section of the Civil Division, but the Civil
Part and Family Part are entirely separate entities. Some of our
course materials concerning child protection in a national
context will often say that cases concerning children are heard
in civil court or they may even say that “dependency” or “child
welfare” cases involving children are heard in the “juvenile”
court. In New Jersey, however, the court structure is more
particular. Although our Family Part is within the Civil
Division, there are three separate units. One unit handles all
divorce, custody and visitation cases. Another unit handles
child protection, guardianship and termination of parental rights
where children are alleged to have been the subject of child
maltreatment of some type. The third unit handles Juvenile
Delinquency cases where children under the age of 18 are
accused of having committed an act that would have been a
disorderly persons offense or a crime if committed by an adult.
The modules in this course will be focused on the work of the
child protection unit of the family court, the juvenile
delinquency unit of the family court and of the criminal court to
the extent that children may be called upon to play the role of
victims or witnesses in the criminal cases.

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Assessment Information
Subject Code: ACCM4200
Subject Name: Financial Accounting and Reporting 1
Assessment Title: Individual Assignment
(Technical 15%) and (Communication skills10%)
Weight 25%
Due date Monday of Week 10 by 7:55 pm
Assessment Description
Learning Outcome 4: Develop information gathering (research)
and communication
strategies to enable the provision of professional advice to a
client.
Objective: The objective of this assignment is to learn to
effectively research a
technical aspect of accounting and communicate professional
advice to a client, via
a business letter.
Background to the case study:
Assume that you are a graduate accountant working for
McKenzie and Associates a
public accounting firm situated at 668 George Street,
Melbourne, VIC 3000. The
manager of your firm, Ms. Maria McKenzie has asked you to
draft a letter in
response to an email received from a client â€“ Mr. Con Pewter,
the Managing Director
of Pewter Ltd, raising a number of issues regarding his company
â€“ see the copy of
the email on the next page.
The maximum length of the letter is 1,250 words (excluding any
calculations).
â€¢ Part A: Technical component 15% - This mark covers the
technical content of

your advice and the explanation on each of the issues, the
calculations and
the sources used.
â€¢ Part B: Communication Skills â€“ Letter Writing 10% -
This mark covers the
generic skills of business letter writing; layout, clear meaning,
structure and
organisation, appropriate tone and grammar, spelling and
punctuation etc.
The assignment is designed to test the following skills:
1. Your knowledge and your ability to research the issues and
then apply the
information appropriately using judgement to correctly identify
the relevant
standards and legislation that relate to the issues raised by the
client.
2. Your written communication skills â€“ business letter writing
ACCM4200 FAR1 Assignment Information Page 2 of 3
Please note: Any work which has been copied or shared between
students will result
in a Fail grade for both students concerned. Therefore, please
make sure that the
answer to this individual assignment is your own work and not
copied or bought from
any source. In completing this assignment make sure you follow
the guidelines for
assignments especially those relating to the presentation of
written work, late
assignment policy and academic integrity.
Please check the marking rubric for each part to ensure that you
have followed all
the guidelines for presenting your work.
Re: Accounting Issues: Year Ending 30 June 2017
From: Con Pewter ([email protected])
Sent: 5 July 2017
To: Maria McKenzie ([email protected])

Dear Maria
Thank you for your phone call this morning, as agreed I am
emailing you regarding
the accounting issues we briefly discussed. By the way to assist
the accounting team
in our decision-making process could you please make sure you
reference any
relevant sources relating to your advice, for example, AASBs,
Corporations Act, and
relevant websites.
1. At our recent board meeting, several directors raised
concerns about spending
too many man hours (and dollars I must say) on accounting for
future tax
consequences. Their biggest argument was that as long as the
tax man is happy
and we are not cheating on our tax returns, then we are simply
wasting money in
accounting for temporary differences and deferred tax assets
(DTAs) and
deferred tax liabilities (DTLs) (which I must admit is a mystery
to me). Do you
have any problems if we do not account for the DTAs and DTLs
and just account
for the current tax liability?
2. Our company has recently entered into a long-term and a
radical agreement with
several of our retailers in Australia. Under the new agreement,
at the start of
every quarter, we will ship a variety of our products (suitable
for that state and
that time of the year) to our retailers. All retailers have agreed
to set aside a
section in their stores to exclusively display our products
including the display
windows at the front of the store. In return we have agreed to

pay a fee to each
store on a monthly basis for allowing us the access to this
window space and
space on the shop floor to advertise and sell our products. The
average fee is
around $600 per square metre, per store per month. At the end
of the quarter, the
store will return all the unsold products to us and we will send
out a new shipment
to prepare for the next quarter. The stores will also transfer the
revenue from total
sales to us after deducting the display fee noted above. The
board unanimously
agreed to recognise the sales revenue at the start of the quarter
(when the goods
ACCM4200 FAR1 Assignment Information Page 3 of 3
are shipped). At the end of the quarter when the excess
inventory is returned to
us by the stores, we can always make the necessary adjustments
i.e. reverse
both the sales revenue and cost of sales as well the amount
owed by the stores
and the incoming inventory. After all, the net effect would be
the actual sales of
the period. The board also agreed that the fee we pay to the
stores should not be
recorded separately because that is the cost of doing business.
So we will only
record the net amount received as sales revenue. This should
simplify matters,
shouldnâ€™t it?
Please respond by letter (not email) as I would like to present
this to the Board. I look
forward to hearing from you in the near future.
Regards
Con Pewter

Managing Director, Pewter Ltd
Level 6, 510 King William Street,
Adelaide SA 5000
Hint: Remember that your firm plans to charge the client for
your advice; as a
check ask yourself if you would pay for the advice you have
drafted!
Chapter 1
American Legal System
(Myers, John E.B., 2016 Unpublished Draft Manuscript. With
Permission)
What is law? The U.S. Supreme Court defined law as “the rules
of action or
conduct duly prescribed by controlling authority, and having
binding legal force.” (U.S.
Fidelity and Guaranty Co. v. Guenther, 1930), p. 37.
Sources of Law
In the United States, the laws that govern your life and impact
your profession
come from several sources. You recall from high school that the
United States has a

federal government and fifty state governments. Within each
state you will find county,
city, school district, and other governing bodies that may have
something to say about
how you do your work.
Federal Government
The highest law of the land is the U.S. Constitution. The
Preamble to the
Constitution provides: “We the people of the United States, in
order to form a more
perfect union, establish justice, insure domestic tranquility,
provide for the common
2
defense, promote the general welfare, and secure the blessings
of liberty to ourselves and
our posterity, do ordain and establish this Constitution for the
United States of America.”
The Constitution is the bedrock of our law and our society.
Under the Constitution, the federal government is a government
of limited, or

delegated, powers. The federal government possesses only those
powers delegated to it
by the Constitution. Governmental powers not delegated to the
federal government by the
Constitution are reserved to the states and to the people (U.S.
Const., Amendment 10).
The U.S. Supreme Court and lower courts continue the never-
ending task of defining the
extent and limits of federal power.
Article 1, Section 8 of the Constitution gives Congress the
power “to make all
laws which shall be necessary and proper for carrying into
execution the” powers
delegated by the Constitution to the federal government. The
“necessary and proper”
clause gives Congress broad authority to enact legislation
needed to implement the
delegated powers. In United States v. Comstock,(2010), for
example, the issue before the
U.S. Supreme Court was whether the necessary and proper
clause gave Congress
authority to enact a civil commitment law to detain sexually
violent mentally ill federal

prisoners. The Supreme Court answered in the affirmative. The
Court noted that the civil
commitment statute “constitutes a modest addition to a set of
federal prison-related
mental-health statutes that have existed for many decades.” (p.
137).
3
The Constitution divides the federal government into three
branches: legislative,
executive, and judicial. The power to enact legislation is vested
in the legislative branch,
or Congress (Article I). Laws passed by Congress, and signed
by the President, are
statutes, and are compiled in the United States Code. The
annotated U.S. Code contains
more than 350 volumes of law.
The President is head of the Executive Branch (Article II). The
Executive Branch
is home to hundreds of federal agencies, including, to name a
few, Health and Human

Services (HHS), the Children’s Bureau (CB), the Centers for
Disease Control and
Prevention (CDC), the Department of Justice (DOJ), The
Defense Department (DOD),
and the Food and Drug Administration (FDA).
Agencies of the Executive Branch have authority to promulgate
regulations that
are needed to implement statutes passed by Congress. Federal
regulations are collected in
the Code of Federal Regulations (CFR). Federal regulations,
like statutes, are law.
The third branch of the federal government is the Judicial
Branch (Article III),
which consists of the U.S. Supreme Court, and lower federal
courts created by Congress.
The federal judiciary has three levels: The Supreme Court sits
atop. Below the Supreme
Court, the nation is divided into thirteen judicial circuits, each
presided over by a Federal
Circuit Court of Appeal. For example, the Ninth Circuit Court
of Appeal embraces
Hawai’i, Alaska, Washington, Oregon, California, Nevada,

Montana, Idaho, and Arizona.
The Fifth Circuit Court of Appeal covers Texas, Louisiana, and
Mississippi.
4
In the federal system, trial courts—courts where trials are
held—are Federal
District Courts. Federal trial judges are District Court Judges.
Nearly all federal court
cases begin in the District Court. Federal courts have authority
over matters involving
federal civil and criminal law. As well, federal courts have what
is commonly called
“diversity jurisdiction,” which allows a citizen of one state to
sue a citizen of another
state in federal court.
Of interest to readers of this book, there are federal criminal
laws to punish
interstate stalking (18 U.S.C. § 2261A) and domestic violence
that crosses state lines (18
U.S.C. § 2261). The federal Violence Against Women Act can
be enforced in federal

court. Federal courts, as well as state courts, enforce civil rights
laws.
The party who loses a case in the district court may appeal to
the appropriate
Federal Circuit Court of Appeal. The loser in the Court of
Appeal may appeal to the U.S.
Supreme Court, but the High Court has discretion regarding
which appeals to accept, and
the Supreme Court accepts only a small fraction of cases.
Law suits for divorce, spousal and child support, and child
custody are not
litigated in federal court. In Ankenbrandt v. Richards (2001),
the U.S. Supreme Court
ruled that the so-called “domestic relations exception” to the
authority of federal courts
divests federal courts of authority over matters of divorce,
alimony, and child custody.
Thus, family law matters are handled in state court.
5

There is one aspect of family law that can be litigated in federal
court. The United
States is a party to the Hague Convention on the Civil Aspects
of International Child
Abduction, an international treaty that facilitates the return of
children wrongfully
removed by parents from their home country. Cases under the
Hague Convention can be
litigated in federal or state court. The Hague Convention is
discussed in Chapter 5.
Federal judges are nominated by the President and confirmed by
the U.S. Senate.
Federal judges serve for life. Judges of the District Court,
Judges of the Court of Appeal,
and Justices of the Supreme Court are sometimes called Article
III judges because their
positions are articulated in Article III of the U.S. Constitution.
At the trial court level, in addition to District Court Judges, the
federal judiciary
consists of Bankruptcy Judges and Magistrate Judges. Federal
magistrate judges are
appointed by the district courts judges within a federal judicial
district, and handle a

broad range of legal matters.
Supremacy Clause of the U.S. Constitution
What happens when a state law is inconsistent with the U.S.
Constitution, a
federal statute, or a federal regulation? The answer is supplied
by Article VI of the U.S.
Constitution—the so-called Supremacy Clause—which states
that federal laws “shall be
6
the supreme law of the land.” A state law that conflicts with
federal law is
unconstitutional. A famous example is Cooper v. Aaron (1958),
decided by a unanimous
U.S. Supreme Court in 1958.
To understand Cooper v. Aaron, it is necessary to go back four
years, to 1954, the
year that the U.S. Supreme Court handed down the momentous
decision in Brown v.
Board of Education (1954), outlawing racial segregation in

public schools. The Brown
Court ruled that segregation violates the equal protection of the
law guaranteed by the
Fourteenth Amendment to the U.S. Constitution. The Supreme
Court ordered states to
dismantle segregation “with all deliberate speed.” Following
Brown, the school board in
Little Rock, Arkansas proceeded with planning to integrate the
city’s schools, starting
with Central High School. However, the Arkansas Legislature
passed laws attempting to
nullify the Supreme Court’s decision in Brown, and Governor
Orval Faubus deployed the
National Guard to block African American students from
entering Central High. Due in
part to the extreme hostility to integration, fueled by the
Legislature and the Governor,
the school board asked a federal district court judge to postpone
integration for two-and-
a-half-years. The judge granted the school board’s request,
finding that Central High was
afflicted with “chaos, bedlam and turmoil,” and that threats had
been made against school
administrators and the nine African American students—the

Little Rock Nine—brave
enough to enroll at Central High.
When the case reached the U.S. Supreme Court, the Court ruled
that the district
court judge was wrong to postpone integration. The Supreme
Court wrote, “The
7
constitutional rights of [African American children] are not to
be sacrificed or yielded to
the violence and disorder which have followed upon the actions
of the Governor and
Legislature. . . . The constitutional rights of children not to be
discriminated against in
school admission on grounds of race or color declared by this
Court in the Brown case
can neither be nullified openly and directly by state legislators
or state executive or
judicial officers, nor nullified indirectly by them through
evasive schemes for segregation
whether attempted ingeniously or ingenuously.” (p. 17).

Efforts by Arkansas legislators and the Governor to nullify the
Supreme Court’s
desegregation ruling in Brown ran afoul of the Supremacy
Clause, and could not stand.
The U.S. Constitution, including the right to equal protection of
the law, is the “supreme
law of the land.” The racist efforts of state officials failed.
State and Local Government
Each state has its own constitution which, like the U.S.
Constitution, divides
government into three branches: legislative, executive, and
judicial. The legislature
passes statutes, which are collected in a state code. The
executive branch of each state is
led by the state’s governor. Agencies of the executive branch
promulgate regulations.
Like their federal counterparts in the Code of Federal
Regulations, state regulations have
the force of law. The state judiciary is made up of trial and
appellate courts. The state
supreme court is the highest appellate court, except in New
York, where the Supreme

Court is the trial court, and the highest court is the Court of
Appeals. In Maryland, the
8
highest court is the Court of Appeals. In all but a few sparsely
populated states, an
intermediate appellate court sits between the trial courts and the
state supreme court.
Each state contains entities of local government: counties
(parishes in Louisiana),
cities, towns, and various types of authorities (e.g., fire
districts). Local government
entities (e.g., counties) pass laws called ordinances. For
example, most counties have a
curfew ordinance requiring teenagers to be home at night.
Unique Role of the U.S. Supreme Court
The U.S. Supreme Court is one of the most important, revered,
and, at times,
reviled institutions in America. Decisions of the Supreme Court
impact the lives of
everyone. The Court’s monumental decision in Brown v. Board

of Education, outlawing
school segregation, is mentioned above.
Another groundbreaking decision is Loving v. Virginia (1967),
where the
Supreme Court struck down laws against interracial marriage—
anti-miscegenation laws.
At mid-twentieth century, twenty-nine states prohibited
interracial marriage.
Richard Loving and Mildred Jeter grew up in the tiny rural
community of Central
Point, Virginia. Richard was white. Mildred was part African
American and part Native
American. When Richard was twenty-four and Mildred eighteen,
they decided to marry,
but marriage between races was a crime in Virginia. They drove
to Washington, D.C., got
9
married, and drove home to Virginia, where, a few weeks later,
they were arrested in the
middle of the night by the sheriff, who told them their marriage
license was “No good

here.” The couple was charged with violating Virginia’s Racial
Integrity Act. A local
judge convicted them and sentenced them to one year in jail, but
said he would suspend
the sentence if Richard and Mildred left Virginia for at least
twenty-five years. The
couple moved to Washington, D.C., but Mildred didn’t like city
life, and the Lovings and
their children often snuck home to visit.
In 1963, Mildred wrote a letter to Robert Kennedy, Attorney
General of the
United States, asking if the Justice Department might help.
Kennedy referred Mildred’s
letter to the American Civil Liberties Union. Two young ACLU
lawyers, Bernard Cohen
and Philip Hirschkop, both barely out of law school, took the
case all the way to the U.S.
Supreme Court. In the landmark Loving decision, the Supreme
Court struck down
Virginia’s anti-miscegenation law as a violation of the Due
Process Clause and the Equal
Protection Clause of the Fourteenth Amendment. Writing for the
Supreme Court, Chief

Justice Warren wrote, “Marriage is one of the basic civil rights
of man, fundamental to
our very existence and survival. To deny this fundamental
freedom on so unsupportable a
basis as the racial classifications embodied in these statutes,
classifications so directly
subversive of the principle of equality at the heart of the
Fourteenth Amendment, is
surely to deprive all the State’s citizens of liberty without due
process of law. The
Fourteenth Amendment requires that the freedom of choice to
marry not be restricted by
invidious racial discriminations. Under our Constitution, the
freedom to marry or not
10
marry, a person of another race resides with the individual and
cannot be infringed by the
State.” (p. 12)
You may have noticed that in Loving v. Virginia, the U.S.
Supreme Court, a
federal court, struck down a state law. What gave a federal

court the right to rule on a
state law? The answer, which was mentioned earlier, is that the
U.S. Constitution is the
supreme law of the land, superior to state law. The U.S.
Supreme Court is the final arbiter
of the U.S. Constitution. Thus, the Supreme Court has authority
to strike down state
statutes that violate the federal Constitution. Although Loving
v. Virginia was originally
brought in state court, the case ended up in the U.S. Supreme
Court because the Virginia
anti-miscegenation statute violated the U.S. Constitution.
Loving v. Virginia struck down barriers to interracial marriage.
In 2015, in
Obergefell v. Hodges (2015), the Supreme Court did the same to
barriers to same sex
marriage. The Court ruled that prohibitions against same sex
marriage violate
fundamental principles of fairness and equality. Justice
Kennedy wrote the majority
opinion in Obergefell, and stated:
The Constitution promises liberty to all within its reach, a

liberty
that includes certain specific rights that allow persons, within a
lawful
realm, to define and express their identity. The petitioners in
these cases
seek to find that liberty by marrying someone of the same sex
and having
their marriages deemed lawful . . . . (p. 2593).
11
The centrality of marriage to the human condition makes it
unsurprising that the institution has existed for millennia and
across
civilizations. Since the dawn of history, marriage has
transformed strangers
into relatives, binding families and societies together. . . . There
are untold
references to the beauty of marriage in religious and
philosophical texts
spanning time, cultures, and faiths, as well as in art and
literature in all their
forms. . . . (p. 2594).

That history is the beginning of these cases. The [opponents of
same sex marriage] say it should be the end as well. To them, it
would
demean a timeless institution if the concept and lawful status of
marriage
were extended to two person of the same sex. Marriage, in their
view, is by
its nature a gender-differentiated union of man and woman. This
view long
has been held—and continues to be held—in good faith by
reasonable and
sincere people here and throughout the world. (p. 2594).
The petitioners acknowledge this history, but contend that these
cases cannot end there. Were their intent to demean the revered
idea and
reality of marriage, the petitioners’ claims would be of a
different order.
But that is neither their purpose nor their submission. To the
contrary, it is
the enduring importance of marriage that underlies the
petitioners’

contentions. This, they say, is their whole point. Far from
seeking to
12
devalue marriage, the petitioners seek it for themselves because
of their
respect—and need—for its privileges and responsibilities. (p.
2594).
Inspiring prose from the Supreme Court, and one of it’s the
most important
justices.
When you hear about the U.S. Supreme Court, you may
encounter the Latin term
“writ of certiorari.” A writ is a court order. A writ of certiorari
is a writ issued by a
superior court, ordering a lower court to send the record of the
lower court to the superior
court for review. Every year, the U.S. Supreme Court receives
approximately 10,000
applications for writ of certiorari, asking the Supreme Court to
review lower court

decisions. The Supreme Court grants 75 to 80 writs a year. In
the Loving and Obergefell
cases, attorneys filed applications for the writ of certiorari in
the Supreme Court.
Fortunately, for the parties, and for the rest of us, the Court
issued writs and decided
these landmark cases.
The United States is a Common Law Country
Legislatures make law; they do so by passing statutes.
Appellate courts also make
law, but, of course, appellate courts do not pass statutes.
Appellate courts make law
through written opinions in individual cases. Judge-made law is
called common law.
13
For centuries in England, judges had authority to create
common law, and nations
that inherited the English legal system—former colonies—
adopted the principle of judge-

made common law. A California statute that is similar to
statutes in other states
acknowledges common law: “The common law of England, so
far as it is not repugnant
to or inconsistent with [federal and California law] is the rule of
decision in all the courts
of this state” (Cal. Civil Code § 22.2).
Adversary System of Justice
Disputes between individuals, and disputes between individuals
and the
government, are resolved many ways. The vast majority of
disagreements are disposed of
informally through negotiation and compromise. Abe Lincoln,
who practiced law in
Illinois for twenty-five years before becoming President, urged
his fellow lawyers to help
people settle disagreements without going to court. He wrote,
“Discourage litigation.
Persuade your neighbors to compromise whenever you can.
Point out to them how the
nominal winner is often the real loser—in fees, expenses, and
waste of time. As a

peacemaker the lawyer has a superior opportunity of being a
good man. There will still be
business enough.” (Notes for a Law Lecture) When compromise
and mediation are not
possible, litigation in court “is society’s last line of defense in
the indispensable effort to
secure the peaceful settlement of social conflicts.” (Hart &
McNaughton, 1958, p. 52).
In the United States, litigation is based on the adversary system
developed long
ago in England. The adversary system is premised on the belief
that the most effective
14
way to arrive at just results in court is for each side of a
controversy to present the
evidence that is most favorable to its position, and let a neutral
judge or jury sift through
the conflicting evidence and decide where the truth lies. In
other words, the truth emerges
from the clash of opposing evidence.
Professionals not trained in law sometimes shake their heads at

the adversary
process, and find themselves thinking, “These lawyers are a
strange lot. How do they
expect to find the truth when they seem to spend half their time
hiding it from each other,
and the other half obfuscating the facts with squabbles over
inconsequential details?”
There is an old lawyer joke: The kindly judge said to the
witness, “You seem to be in
some distress; is anything the matter?” The witness replied,
“Well, your honor, I swore to
tell the truth, the whole truth, and nothing but the truth, but
every time I try, some lawyer
objects!” Despite shortcomings, the adversary system has stood
the test of time. Perhaps,
in the future, a better system will emerge, but not in your
professional lifetime. When you
head to court, the adversary system awaits you.
It is important to add that court is not always adversarial. Some
court proceedings
are designed to minimize confrontation. A good example is
juvenile court proceedings to
protect children. Juvenile court protective proceedings are

intended to safeguard children
and help parents. Hearings in juvenile court are typically
informal and non-adversarial,
although some juvenile court cases are highly contested.
Litigation in family court
regarding divorce, child custody, and support is often
adversarial, although efforts are
made to tamp down conflict. Many cities have specialized
courts such as drug court and
15
veterans’ court, where the emphasis is treatment and positive
reinforcement for
constructive behavior.
Regardless of the type of case, lawyers are officers of the court,
and are expected
to act civilly toward the judge, witnesses, and each other. In a
California case where
attorneys went over the top with aggression, the Court of
Appeal reminded lawyers of the
importance of civility, writing, “We close this discussion with a
reminder to counsel—all

counsel, regardless of practice, regardless of age—that zealous
advocacy does not equate
with ‘attack dog’ or ‘scorched earth;’ nor does it mean lack of
civility. Zeal and vigor in
the representation of clients are commendable. So are civility,
courtesy, and cooperation.
They are not mutually exclusive” (Marriage of Davenport
(2011) p. 1537).
In your dealings with lawyers in and out of court, you will find
that most are
honest and reasonable. Good heavens, some apparently
intelligent people have actually
been known to marry lawyers! Of course, there are some
lawyers who are pugnacious,
aggressive, and generally unpleasant. Such members of the bar
are relatively uncommon,
although they poison the well for the rest of the profession. One
of my favorite lawyer
jokes is: Ninety-eight percent of lawyers ruin things for the
other two percent.
Lawyers are required by their code of ethics to be zealous
advocates for their
clients. In court, a lawyer’s job is to win the case, and if

winning necessitates being
aggressive with witnesses, including expert witnesses, the
lawyer is aggressive. Non-
attorneys sometimes shake their heads when they observe
lawyers battling it out in court,
16
only to see the same lawyers engaged in friendly conversation
after court. In some
respects, a lawyer is like a professional fighter, trying to knock
out the opponent. When
the fight is over, it is common for fighters to embrace. Fighters
don’t hate each other;
they have a job to do. So do lawyers.
Right to Jury Trial
Federal and state constitution’s guarantee the right to trial by
jury in most
criminal cases and many civil matters. By long tradition, in
most states, juries are not
used in juvenile court and family court (divorce, child custody).
When there is no jury,

the judge fulfills the role performed by a jury: to determine the
facts and reach a verdict.
Trials without a jury are called bench trials or trials to the
court. Lawyers often refer to
the jury as the trier of fact. When there is no jury, the judge is
the trier of fact.
Ambivalence About Lawyers
Americans love to hate lawyers. Yet, Americans understand that
lawyers are
indispensable to law and justice. Some of our greatest role
models are lawyers. Think of
Atticus Finch, the small town lawyer in Harper Lee’s classic To
Kill a Mockingbird. Not
the Atticus you meet in Harper Lee’s 2015 Go Set a Watchman,
but the Atticus you read
in high school or college, when you first picked up To Kill a
Mockingbird. That Atticus
epitomizes the best of the legal profession—honesty, integrity,
self-sacrifice, patience,
courage, and fierce loyalty to justice. Think too of Thurgood
Marshall, the African

17
American lawyer for the NAACP, who, during the civil rights
movement, repeatedly
risked his life traveling in the deep South to strike legal blows
against segregation.
Marshall became the first African American appointed to the
U.S. Supreme Court. As
mentioned above, Abe Lincoln was a lawyer, and a darn good
one. It seems fitting to let
Mark Twain have the last word about lawyers. He captures
American’s ambivalence
about the legal profession: “Lawyers are like other people—
fools on the average; but it is
easier for an ass to succeed in that trade than any other.”
A useful way to understand the chasm that sometimes separates
attorneys from
mental health, medical, and social work professionals is to
consider two hypothetical
college graduates, Jill and Sara. Both have bachelor’s degree in
psychology, and both
have similar interests, temperament, and background. Jill goes
to law school, and Sara
seeks a masters in social work. From the first day of graduate

school, the neophyte
lawyer and social worker are embarked on different journeys.
Sara’s first social work class is Introduction to Social Theory.
The first 20
minutes consist of introductions to allow students and teacher to
get to know each other.
The remainder of the hour is a lecture.
Across campus at the law school, the first class is Contract Law.
Class is held in a
theater-like room with 150 seats, all focused on the podium in
the well. Students sit
nervously, awaiting the professor. The professor enters, places
her book on the podium,
and consults the list of students. The first words out of the
professor’s mouth are, “Good
18
morning. This is Contracts. I am Professor Carter. Now, Ms. Jill
Newman, what are the
facts in the case of Hawkins v. McGee?” For the next 30
minutes, Professor Carter grills

the terrified Jill with questions she cannot understand and
points out the errors in her
answers. When the professor asks the class, “Are there any
questions?” Dead silence.
There is no lecture—just dialogue between the professor and
Jill. After class, Jill is
surrounded by sympathizers who say, “You did great.” To
themselves, they think,
“Thank heaven Jill was the target, not me.”
Sara’s experience in the school of social work was very
different from Jill’s in
law school. Jill and her classmates got their first taste of the
adversary system. They
learned that their professors will force them to think critically
under pressure, to analyze,
question, argue, challenge, debate, and respond to criticism—in
short, to think and act
like a lawyer. As a social worker, Sara has the same need for
critical thinking and
rigorous analysis, but she learns these skills from a different
perspective. The emphasis in
social work is cooperation rather than competition, building
bridges rather than

confrontation. From the first days of their professional lives,
the social worker and the
lawyer march to different drummers. Is it any wonder that at
graduation, Jill and Sara
seem to speak different languages?
Jill and Sara love children, and decide to devote themselves to
helping victims of
child abuse and neglect. Sara, the social worker, takes the
plunge into CPS, while Jill, the
attorney, joins the child abuse unit at the district attorney’s
office. Not only must these
young professionals struggle to learn the intricacies of their
new callings, they must learn
19
to communicate and cooperate with each other. Communication,
cooperation, and,
eventually, trust are essential because neither profession can
achieve the goal of child
protection alone.
Now that we have described the basics of the legal system, Parts

II and III dig
deeper. The chapters in Part II describe the criminal justice
system. Part III focuses on
civil law, including family court, juvenile court, child
protection, civil commitment, and
related civil law issues.
20
Children and justice:
Module 3 Discussion on Rights: 3 to 4 full paragraph
As a follow up to your review of the Constitution I have
attached two documents. One discusses Due Process, the other
discusses the Sixth Amendment.
Please read those documents and then respond to the discussion
prompts below:
1 What procedures should exist in child protection cases to
assure parents have due process?
2 Does the due process clause require that children have due
process?
3 If so what procedures should there be in child protection cases
in order for children's due process rights to be satisfied.
4 If a child is the victim of criminal child abuse such as a
sexual assault by a parent, guardian or live in relative, the

criminal defendant has a 6th amendment right to be confronted
by the witnesses against him. That defendant's right includes the
defendant being confronted by a child victim. Explain how you
think the defendant's right to confrontation should be balanced
against the interest of the child in such a case.
Please do whatever research you feel is necessary to present
your opinion in a well informed and grammatically sound
fashion. Keep in mind that you will be graded on timeliness,
quality of writing, proper citation, accuracy and insight.
http://www.annenbergclassroom.org/page/a-guide-to-the-united-
states-constitution
https://www.fjc.gov/content/us-legal-system-short-description-
english-original
THE SIXTH AMENDMENT
A Simple Summary
· The simplest explanation can be provided by a summary of the
amendment's purpose. The Sixth Amendment exists to make
sure that people who are accused of crimes have the chance to
prove that they are innocent. It prevents abuses of power and
keeps the country fair.
Speedy and Public Trial
· The first part states that: "In all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial." A
speedy trial does not mean the trial must end quickly, but that it
must begin quickly. This way, people can't be left in jail
waiting for trial even though they may be innocent. The public
part means that the public must be able to follow the trial to
make sure that it is being done fairly.

The Nature of the Jury and Trial Location
· The Sixth Amendment says the person accused of a crime must
have an "impartial jury" to decide her guilt or innocence, which
means that the people on the jury cannot already have feelings
for or against the accused person. Making the trial "in the state
or district" where the crime was committed means that the trial
cannot be held in an area far away from the crime. It would be
unfair if the jury assumed the defendant was guilty simply
because he lived in another place and was different from them.
Keeping the Accused Aware
· The next section of the Sixth Amendment says the person
accused of a crime must be "informed of the nature and cause of
the accusation; to be confronted with the witnesses against
him." The defendant has to know what he is accused of and who
is saying what about him. A person who does not know what is
going on will not be able to properly defend himself.
Right to a Lawyer
· The last part explains that, just as the prosecution can select
witnesses to help its case, the defendant can do the same. This
keeps the trial even. The last part is among the most famous
parts of the amendment. The right to have "assistance of
counsel" gives the accused the right to a lawyer to help prove
that she is not guilty. A lawyer will understand the situation
better than most people and can considerably increase the
defendant's odds of explaining her viewpoint.
Read more : http://www.ehow.com/info_10044440_short-
explanation-sixth-amendment-kids.html
What is Due Process? ... Basic Rights and Fundamental Fairness
By: LawInfo
You may hear the phrase "due process" in the media whenever a
prominent criminal case is in the news, but where does it come
from and what does it really mean?
Where is Due Process Found

Due process is a constitutional principle that our government
must follow before it may take a person's freedom or property.
The 5th Amendment states, "nor shall any person be subject for
the same offense to be twice guarantees due process from the
federal government, stating no person shall "be deprived of life,
liberty, or property, without due process of law." The states are
required to provide due process because the 14th Amendment
states, "Nor shall any state deprive any person of life, liberty,
or property, without due process of law."
What is Due Process
A simple definition means due process requires notice and an
opportunity to be heard before adverse action is taken against
you. In criminal cases examples of due process include the need
for probable cause to arrest someone and that a criminal
defendant is presumed innocent until proven guilty by an
impartial judge or jury. Due process does not just exist in a
criminal trial, any time a person's property interest may be
taken due process protections also apply.
The courts have ruled that possessions such as a government
issued license and even civil service jobs are property, which
may only be revoked after a hearing. A quasi governmental
organization like a homeowner's association is also subject to
due process requirements. If a homeowner's association wants to
fine a resident for bylaw violations such as excessive noise or
because their house paint is the wrong color a hearing must first
be held where the resident is given the opportunity to be heard.
Fundamental Rights
In addition to the "procedural due process" rights described
above, which governs how the government must act, the
constitution also guarantees "substantive due process" rights.
While substantive due process is sometimes a difficult concept,
it basically means that there are certain rights we hold to be so
fundamental in our society that laws attempting to restrict them
may be deemed to be unconstitutional. These "substantive
rights" are considered to be so fundamental that they enjoy
protection even if they are not explicitly mentioned in the

Constitution. Even if procedural due process is followed in
enacting and enforcing the law a substantive right "vetoes" the
law.
Right to Privacy
The Constitution does not contain a right to privacy, but the
courts have ruled that it exists. Our substantive due process
right to privacy is the reason that the Supreme Court has
prohibited the federal and state governments from enacting laws
that completely restrict an adult's choice to have an abortion,
buy contraceptives or engage in consensual sex. The substantive
due process right to marry has formed the basis for striking
down laws prohibiting interracial marriage nationwide and gay
marriage in some states. However, the Supreme Court has not
yet ruled on whether gay marriage is a fundamental right
protected by the Constitution.
There are many variations and applications of due process. At
the core, however, is something to which we can all relate - due
process embodies the notion that there are certain basic rights
and fundamental freedoms we enjoy as individuals within our
society, whether they are explicitly stated or not.
For more information about due process, contact a lead counsel
rated attorney by using our attorney search today.
The information on this page is meant to provide a general
overview of the law. The laws in your state and/or city may
deviate significantly from those described here. If you have
specific questions related to your situation you should speak
with a local attorney.
http://resources.lawinfo.com/civil-rights/constitutional/ ret.
9/9/2015

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