LAI (Read Notes) Flashcards
SYSTEM OF WRITING: Primary Sources of Law
- Enacted law (statues, constitutions, and administrative regulations)
- Case law (judicial decisions) (these cases provide source of enforceable rules called THE COMMON LAW)
Consult these sources first.
Analyze how they are relevant to your problem.
COMMON LAW is judge-made law
- Comes from English system of law – SYSTEM OF PRECEDENT
- The decision resole the litigation that is before the court
- Decision is published; is available for useably judges in later litigation
TYPES OF COURTS AND JURISDICTION: Courts of Inferior Jurisdiction
- Lowest rung of courts of original jurisdiction
- Limited cases such as misdemeanor cases or cases in which amount of damages the plaintiff demands from the defendant does not exceed a specific sum; small claims
- Maybe specific subject matter such as juvenile or family law
- Decisions are NOT published; and have NO VALUE as precedent to future litigants
TYPES OF COURTS AND JURISDICTION: Trial Courts
Litigation often begins
- Civil Litigation
- Criminal Cases
- Presided over by one judge
- Province of the trial court to
- Determine the facts of the case
- Judge or jury FINDS, determines the facts from
- The evidence
- The witnesses
- Admissions of the parties
- Applicable law
- Some decisions are by procedures that preclude a trial (motions)
TYPES OF COURTS AND JURISDICTION: Appellate Courts
- Step up from the trail courts is the appellate court
- If party that lost at the trial level, may ask for review by a higher court, appellate court
- Known as a appeal
- Most states provide a two levels of applets courts
- Court of Appeals
- Highest court of appeals and know has Supreme Court (some states have other designations)
- Intermediate appellate court hears apple’s from trial courts
- Supreme Court hears appeals from the intermediate courts of appeals
- Some states Supreme Court must hear appeals for certain types of issues directly from trial courts
- For states no other court than Supreme Court
- Some states intermediate appellate level consists of more than one court
TYPES OF COURTS AND JURISDICTION: Appellate Courts Decisions
- Appeal is heard by more than one judge; odd numbers; at least 3
- Vote
- Majority writes the decisions
- Minority judge can write a dissenting opinion
- The majority judge that does not write the decision can also write a concurring opinion
- Name on the opinion
- Judge who writes an opinion appears at the beginning
- No name is designated “per curium” decision; “by the court” and may be used for a shorter opinion on the issue which there is general unanimity
TYPES OF COURTS AND JURISDICTION: Federal Courts
- Trial courts in federal system -→ District Courts
- One District Court in every State min.
- Jurisdiction is limited to the area of its district
Appellate courts
- Intermediate appellate court in federal system called United States Court of Appeals
- US divided into 13 Cricuits
- Eleven are identified by a number
Highest court is the Supreme Court of the United States
CIVIL CASES: General
- Attorney-Client - begins when the client comes to the attorney to discuss a problem
- Discuss -→ memorandum -→ research -→ Full memorandum
- Pleadings
- Complaint – file complaint and serve defendant with a summons and copy of the complaint
- Defendant – time limits required in that jurisdiction and responds to the answer tot he complaint or with a motion
TYPES OF COURTS AND JURISDICTION: Appellate Courts
- Appellate court has more than one judge
- Odd number of judges, at least 3
- Procedure differs from trial court
- No evidence; no witnesses; no jury
- Parties lawyers argue to the appellate judges to persuade them that the court DID or DID NOT commit errors
- This may be oral or written
- Review and publishes in CASE REPORTERS the decisions
CIVIL CASES: Motions to Dismiss
- Defendant may decide to enter a motion to dismiss for failure to state a claim upon which relief can be granted
- Often called DEMURRER
- Motion asks the court to dismiss the compliant because even if the plaintiffs alleged facts are true
- Facts do not establish any cause of action and do not provide any relief recognized by the law
- May also provide memorandum of law to the court that explains the reasons for the motion
- Memorandum of this type is an advocacy document written to court to persuade it to grant them otion
- Differs from the office memorandum which is analytical usually kept within a law firm
- If the defendant argues successfully the court may grant the motion
- The plaintiff could stil appeal to the decision of a higher court
- If defendant looses at this stage; the defendant must file an answer to the complaint and litigation continues.
CIVIL CASES: Discovery
Next step to gather information for the lawsuit
- Depositions
- Attorney’s oral examination
- Transcribe by the court reporter
- Interrogatories
- Written questions to the other party
- Affidavits
- From the parters and others and request relevant documents
- Affidavits are written declarations facts that the person (the affiant) swears to under oath
CIVIL CASES: Summary Judgment Motions
- A motion for a summary judgement asks the court to decide the case without a trial
- Applying the controlling law to the facts gathered through discovery
- Parties can submit a memoranda of law in support of or in option tot he summary judgement
- Court CANNON grant this motion if there is any CONFLICT over material facts or disputed facts
CIVIL CASES: Trial
- Parties can negotiate or settle the case between themselves
- Losing party may appeal
CIVIL CASES: The Appeal
- Attorneys produce formal written documents for the court
- Called Appellate Briefs
- Explain the facts and the law as the party analyzes them
- Party that appeals the lower court made errors that that require that the appellate court recovers that decision
- The other party (the appellee) explains that the decision in the lower court was correct and should lie affirmed (upheld)
- Appellate court may make a final decision in the case or send it back (remand) to the lower court for lower court for further proceedings in accord with its legal ruling and the reasons for that ruling.
COMMON LAW: Binding and Persuasive Authority
- What courts have jurisdiction and binding authority
- State course must follow from higher courts in the state
- Intermedia Appellate court also must follow the decisions of the state highest court
- But not of intermediate courts because these courts are not superior to it; instead they are persuasive
- A state court is bound by the statutes of that state as interpreted by its court
- Other state are persuasive only