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From Vibeke
To my two dear daughters
May you always continue to ask the questions.
Author’s Note
While this book was being written, a prominent public official was charged with sexually assaulting a chambermaid in his hotel room. The official claimed the maid had initiated the encounter. Famous defense lawyer Alan Dershowitz, in presenting a mock closing argument to a trial advocacy class at Harvard Law School, attacked the defense’s position. He suggested showing the jury a photograph of a naked, slightly overweight, and hunched sixty-two year-old man. The defense, Dershowitz argued to his audience, would like the court to believe that the attractive thirty-two year-old maid set her eyes upon the defendant and “simply couldn’t control herself.”
Dershowitz, to laughter from his audience, was using an old truth we lawyers know but do not pay enough attention to: a picture is worth a thousand words. Lawyers are word people. Take words from us and you take away our most important tool. We need words to argue, parse, and issue nuanced interpretations of complex legal concepts. But images should not be ignored, for they often provide access to concepts that words alone cannot impart with the same impact and economy.
For this reason and others, I jumped at the opportunity to create an illustrated, introductory book on the law. When I was a beginning law student, I often felt frozen by the knowledge that I knew nothing. The other students seemed to know much more than me. They bandied about terms I didn’t understand and projected a confidence I lacked. Often, I found myself wanting to chuck it all and do something else. (I recall telling a fellow student that I wished I had instead followed my earlier dream to become a veterinarian, even though it would have meant putting lots of puppies to sleep.) I was sure I was the reason I had trouble understanding what my professors and fellow students were talking about.
When I started working at a large law firm, I experienced these feelings again. But with experience in practice as well as in teaching, I came to realize that there is a certain amount of posturing in the field. Law is a sink or swim environment, and posturing is a way of intimidating those who are not inclined to hide what they don’t know. But the likelihood, I have learned, is that the super-confident partner, professor, or law student may be as confused and intimidated by the complexities of law as I was. This book is for them, and for anyone else looking for a starting point to explore the complex questions of the law—and who would prefer to not wade through 101,000 words.
Vibeke Norgaard Martin
Acknowledgments
From Vibeke
Thanks to Dale Barnes, Michael Bowen, Susanne Caballero, Mike Clough, Ellen Gilmore, Ben Goldstone, Ian Martin, Joe Mastro, Daniel Meyers, Amy Roach, Bob Sims, and Peter Jaszi.
From Matt
Thanks to Karen Andrews, Erik Bodenhofer, Nicole Bond, Ken Collier, Sorche Fairbank, Meredith Haggerty, Laura Hankin, Dylan Hoke, Jamie Raab, Rekha Ramani, Kallie Shimek, Nick Small, Flag Tonuzi, Tom Whatley, Rick Wolff, and Bruce Yandle.
A popular characterization of the goals of law school
1
Law school doesn’t teach laws.
One attends law school to learn how to think like a lawyer, not to memorize laws. Laws change; how they are properly analyzed does not.
Percentage of citizens rating honesty and ethical standards of professionals as “very high” to “high”
2
Lawyers must be honest, but they don’t have to be truthful.
Honesty and truthfulness are not the same thing. Being honest means not telling lies. Being truthful means actively making known the full truth of a matter. Lawyers must be honest, but they do not have to be truthful. A criminal defense lawyer, for example, in zealously defending a client, has no obligation to actively present the truth. Counsel may not deliberately mislead the court, but has no obligation to tell the defendant’s whole story.
3
Lawyers are contextualists.
con·tex·tu·al·ist / kəhn–TEKS–choo–ə–list / n. (pl.–ists) a person who believes that the full meaning of a thing is not inherent in that thing, but depends on its relationship to other things.
4
You’re not a lawyer until you pass the bar.
The “bar” can refer to the entire legal profession, a formal portion of it, or the bar exam itself. Each state court system, federal court, and the U.S. Supreme Court is a separate bar with its own standards of admission and practice.
5
You can’t pass the bar until you’re a lawyer.
A courtroom is divided into two parts by a railing or similar barrier called the bar. Only lawyers, their clients, and witnesses who are called to testify may traverse it. The use of “bar” to refer to the legal profession as a whole derives from the tradition of barring non-participants from the trial area of the courtroom.
Systems of law in the Americas
6
All U.S. states except Louisiana have a primary heritage in English law.
In civil law nations, the main source of law is legislation, and courts are bound by statutes. Courts in common law nations are also generally bound by statutes, but more significantly they create new law—called common law or case law—through their decisions in specific cases. They also have the power to find a statute unconstitutional.
Common law system Civil law system
Origin in 12th century England Origin in Holy Roman Empire
Common in English-speaking countries and former British colonies Common in Continental Europe and its former colonies
Adversarial Inquisitorial
Judge as arbiter: reads and interprets existing law, including that established by prior cases, but also creates new law Judge as expert: investigates case, reads and applies existing statutes as thought fit
Law applied specific to general: an individual court case can become a more general precedent for subsequent cases Law applied general to specific: an individual court case is subject to statutes and is not precedential
Relies on “common sense” Presumes the state to be sensible
Flexible and generally predictable Favors predictability over flexibility
7
“Civil law” means two things.
In the global context, civil law and common law are two primary legal systems. Within common law systems, civil law addresses non-criminal matters—individuals’ wrongs against each other. Criminal law addresses individuals’ wrongs against society.
In the U.S., minor court matters are often adjudicated inquisitorially.
8
“Adversarial” isn’t necessarily bad.
The U.S. legal system, as in most common law nations, is adversarial: two sides, typically represented by expert advocates, argue their positions to the court. A trial judge does not have power to investigate a case directly and usually questions witnesses only when there is a need to clarify confusing testimony.
In an inquisitorial system, a judge or group of judges directly investigates a case and questions litigants. Civil law nations typically employ inquisitorial procedures.
9
; A legal ruling is the beginning, not the end, of the life of the law.
A court decision may conclude a given case, but the precedent system on which U.S. courts are based means a court decision is itself considered law, and it is likely to affect a line of cases far into the future. Stare decisis—the requirement that each court stand by previous decisions made by it and by higher courts in its jurisdiction—ensures that the law is predictable, that similar acts are adjudicated similarly, and that the consequences of a given action are known.
primary sources of law
10
Find one good case.
Legal argument must be supported by primary sources of law. If unsure where to begin research, start with secondary sources—legal dictionaries and encyclopedias, hornbooks (treatises on an area of the law), practice guides, and law review articles. These will provide an overview of your research topic and usually reference primary sources, including legal precedents. Once a useful precedent has been identified, almost every case that subsequently cited it can be identified by entering the case into an online citator service such as Westlaw’s Keycite or Lexis’s Shepherds.
With regards to Bob Berring
11
Lawyers are incrementalists.
Even the most inventive, aggressive, and original legal argument is constructed upon that which came before—prior court cases, constitutions, and existing statutes and regulations. This may seem limiting, but ultimately it is freeing, for the legal arena presents an opportunity found in few professional settings: to walk others down your argument path one step at a time, without interruption, from an established starting point.
12
In arguing before a California court, one may cite an unpublished case from Texas, but not an unpublished case from California.
Some, but not all, court decisions are published by the court in official court reporters. The United States Supreme Court publishes all of its decisions, but some federal courts of appeal publish less than 10% of their decisions. Unpublished decisions generally cannot be used as a basis for argument in the same jurisdiction, although one sometimes may cite an unpublished decision from another jurisdiction as a persuasive authority.
The three-tiered court system
13
An appeal to an intermediate court is a right. An appeal to a court of last resort is a request.
Trial courts are the primary venues for criminal and civil cases. A litigant dissatisfied with a decision almost always has the right to appeal to an intermediate court.
Intermediate, or appellate, courts typically review a lower court’s reasoning and judgment upon appeal by a litigant from a trial court case, and decide whether the trial judge properly applied the law. In some instances, the intermediate court may review the lower court’s reasoning and fact-finding.
High courts consist of a panel of judges who usually decide which cases they will hear. In some states they are obligated to hear appeals in specific types of cases, such as those involving the death penalty.
14
An Alabama Supreme Court case is not mandatory authority in a Minnesota court.
A state’s highest court is typically bound by (1) its own previous decisions; and (2) previous decisions of the U.S. Supreme Court in matters involving federal law and the U.S. Constitution.
A state intermediate (appeals) court is typically bound by (1) its own previous decisions; (2) previous decisions of that state’s high court; (3) previous decisions of the U.S. Supreme Court in matters involving federal law and the U.S. Constitution.
A state trial court is typically bound by (1) its own previous decisions; (2) previous decisions of the intermediate state court for the region the trial court is in; (3) previous decisions of the state’s high court; (4) previous decisions of the U.S. Supreme Court in matters involving federal law and the U.S. Constitution.
Number of State Supreme Court justices
15
A Supreme Court might be the lowest court.
Nomenclature in state court systems is not quite universal. Trial courts may be known as circuit courts, superior courts, and courts of common pleas. In California and some other states, the intermediate court is the Court of Appeals. In Maryland it is the Court of Special Appeals and the highest court is the Court of Appeals. In New York, the highest court is the Court of Appeals while lowest court is the Supreme Court.
Texas and Oklahoma each have two courts of last resort—a Supreme Court for civil cases and a Court of Criminal Appeals for criminal cases.
16
Requirement of a controversy
U.S. courts don’t only follow existing law, but have the power to create new law and to declare existing laws unconstitutional. However, the judiciary’s power to overrule the other branches of government is checked by a requirement that it act only on specific controversies brought to it. Decisions of the court are law, but the court may not actively initiate new laws.
17
Sometimes the U.S. Supreme Court overrules the U.S. Supreme Court.
As society advances, discrepancies can become apparent between the law established by court precedents and more universal notions of justice. This can lead to a court reversing its previous decisions. However, when a court “reverses itself,” it doesn’t rewrite its earlier decision. Rather, it makes a decision in a new case that contradicts its earlier decision, thereby overruling the precedent and establishing a new precedent.
18
“There is no doubt that if there were a super-Supreme Court, a substantial proportion of our reversals of state courts would also be reversed. We are not final because we are infallible, but we are infallible only because we are final.”
—ROBERT H. JACKSON
United States Supreme Court Associate Justice, 1941–1954
Attorney Thurgood Marshall, who represented the plaintiffs, became the first African American U.S. Supreme Court Justice in 1967.
19
Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)
After the Emancipation Proclamation in 1863, policies throughout much of the U.S. supported racial segregation. In Plessy v. Ferguson, 163 U.S. 537 (1896), the U.S. Supreme Court ruled that separate facilities for black Americans were acceptable and afforded equal protection under the 14th Amendment.
In 1951, a group of parents of African American schoolchildren filed suit in federal court against the Topeka, Kansas Board of Education, asserting that segregation provided an inferior education. The court ruled against the plaintiffs, holding that black and white schools in Topeka were equal in all regards.
On appeal by the plaintiffs, the U.S. Supreme Court ruled 9-0 that state laws establishing separate schools for black and white students were unconstitutional, thereby reversing its earlier decision in Plessy. The court cited several secondary sources in its decision, including:
• Gunnar Myrdal’s An American Dilemma: The Negro Problem and Modern Democracy (1944).
• Doll test studies by psychologists Kenneth and Mamie Clark, who argued that segregation had a negative emotional impact on black schoolchildren.
State courts of limited jurisdiction
20
Federal courts have limited jurisdiction.
Federal Courts may hear only two types of cases:
Diversity cases, i.e., in which litigants have a diversity of citizenship (such as residents of different states) and potential damages exceed $75,000;
Federal question cases, such as those involving international treaties, the U.S. government, the U.S. Constitution, and federal statutes, and disputes between states.
States also have courts of limited jurisdiction, sometimes referred to as special courts. Most cases are heard by a judge rather than jury. Courts of general jurisdiction sometimes hear appeals from courts of limited jurisdiction.
Patentee victory rates in federal patent infringement claims, 1991–2006
21
Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938)
Harry Tompkins was walking in the dark on an Erie Railroad right-of-way in Pennsylvania. A protrusion from a passing train knocked him to the ground, where a train wheel crushed his arm. Pennsylvania law would have deemed Tompkins a trespasser and required that he show Erie had acted toward him with “wanton negligence” in order to hold it liable. But Tompkins sued in federal court in New York, where Erie was incorporated. Erie argued the federal court should apply Pennsylvania state law, but Tompkins successfully argued it should apply a more general federal standard that required he prove that Erie had acted with only “ordinary negligence.”
The decision was upheld on appeal by Erie. But on its subsequent appeal to the U.S. Supreme Court, the decision was reversed, with the court stating that courts must apply the law of the state in which an incident occurs.
The decision greatly limited forum shopping, in which a plaintiff files suit in the venue most favorable to its claims. However, many litigants still have access to several federal courts. Some, because of the influence of the internet, are now turning to foreign courts. Defamation suits by American citizens, for example, are increasingly being filed in the United Kingdom, where laws are more favorable to plaintiffs.
101 Things I Learned in Law School Page 1
