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Common Law LegalSystems Review
Slide 130 June 2011
Common Law Legal System
Review
Common Law LegalSystems Review
Slide 230 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 LegalSystems Review
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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.
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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
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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.
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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 LegalSystems Review
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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)
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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.
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British Court Structure
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U.S. Court System
Note – most state systems have a similar tiered system
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U.S. Appeals Court
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Common Law LegalSystems Review
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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.
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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)
Choosing thefactfinder
Judge or Jury OpeningStatements
Plaintiff's Case
Defendant's Case
Plaintiff's Rebuttal
Closing Arguments Instructions to the Jury& Jury Deliberation Verdict & Judgment
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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
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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 LegalSystems Review
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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
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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
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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.
Common Law LegalSystems Review
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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).”
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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.
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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 LegalSystems Review
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Common Interpretation Rules
●Literal/Plain Meaning Rule
●Historical Rule/Original Intent
●Golden Rule
●Mischief Rule (U.K. only)
●Purposive/Functional Rule
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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