Common Law Review Slides

Common Law LegalSystems Review

Slide 130 June 2011

Common Law Legal System

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.


Slide 330 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.


Slide 430 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


Slide 530 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.


Slide 630 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.


Slide 730 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)


Slide 830 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 - Jury's refusal to render a verdict according to the law, as instructed by the court, regardless of the weight of evidence presented.


Slide 930 June 2011

British Court Structure


Slide 1030 June 2011

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.



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



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



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.



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



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



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.



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).”



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.



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 Interpretation Rules

●Literal/Plain Meaning Rule

●Historical Rule/Original Intent

●Golden Rule

●Mischief Rule (U.K. only)

●Purposive/Functional Rule



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 Review Slides

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