Legal Systems Unit 2

“beyond a reasonable doubt”

the prosecutor’s burden of proof in a criminal trial

“preponderance of evidence”

the plaintiff’s burden of proof in a civil trial

bench trial

a type of trial in which lawyers dive the dispute but judges rule individually, without the input of a jury

jury trial

a type of trial in which a jury also participates in the process of deciding a case, they focus on facts and do not need legal expertise.

• the result of distrust in judges, prosecutors, and legislatures

• a check on power

Article III- “all crimes tried by jury”, pertains to criminal trials

6th Amendment- also pertains to criminal trials

7th Amendment- pertains to civil trial if they pass a historical test ($20 or more)

*Also mentioned in the Declaration of Independence*

the right to a jury in a constitution is listed in 3 places:

• juries are time consuming

• juries are unpredictable (75% of the time juries and judges agree)

• juries are costly

• juries are not representative (larger juries of 12 are more representative though)

Critiques of Juries

key-man system

previous selection method in England where parties involved in a trial specifically chose their jurors

mistrial

a trail that is not successfully completed but, instead, is terminated before a verdict is returned

hung/deadlocked trial

occurs when a sufficient number of jurors cannot agree on a verdict

jury pool/venire

those who receive summons (based on drivers licenses, voter registration, welfare lists, etc)

jury panel

those who show up to serve on the jury after receiving summons

viore dire

the process of questioning prospective jurors to determine their suitability (lawyers care about how they think a juror will decide and affect their case, not impartiality).

challenges for cause

a judge dismissed a juror for a reason

peremptory challenge

lawyers dismiss a juror for no given reason (limited)

• ex. Batson v Kentucky (rule)- jurors cannot be challenged on the basis of race

scientific jury selection

the application of behavioral and social sciences to the selection of jurors most sympathetic to a particular side in a case

• telephone surveys

• mock juries

• shadow juries

• post-trial interviews

jury instructions

judge states the issue of the case and defines unfamiliar law concepts

jury nullification

when a jury returns a verdict that purposefully disregards the law

4 possible reasons for this:

• because jury disagrees with the law itself (ex. not prosecuting those who evaded the draft during the Vietnam War)

• because the jury disagrees with how the law is being applied

• jury believes there’s been some form of misconduct

• jury is biased for some other reason

1. jury selection

   1. summons

   2. viore dire

   3. challenges (peremptory or for cause)

2. opening statements

3. witness testimonies (direct vs cross examinations)

4. closign arguments

5. jury instructions

6. jury deliberation

   1. evidence driven deliberations (best)

   2. verdict driven deliberations

7. Verdict (based on either a preponderance of evidence supports liability or guilt beyond a reasonable doubt)

sequence of a trial

grand jury

considers multiple requests for indictments (criminal trials only) for longer periods of time

petit jury

considers both civil and criminal cases but serves for a shorter period of time

concerns that the cost of law school does not equal the value received

• cost is increasing faster than inflation

• law school is not teaching practical skills for layers

• income and satisfaction is inconsistent with cost

crisis in legal education

pedagogy

the study of teaching and learning

casebook method

a method of teaching in which law students read previous appellate decisions and question policy consequences. this helps students think like an appellate lawyer, but does not teach skills necessary in most other areas of law

• myth: the perfect argument can change the law

• reality: most lawyers just need to know the law to help clients, each case isn’t always a forum for changing the law

socratic method

a method of teaching in which professors continuously question students to build a case, this only targets one to two students at a time though and doesn’t help students prepare for their exams

• confidentiality

• balancing conflicts of interest (ex. billable hours model encourages working slower for more money, contingency billing encourages a little work as possible)

• stress management

• “zealously representing clients” (gov. lawyer’s responsibility?)

ethical obligations of a lawyer

• public interest lawyers

• public defendants

• legal aid clinincs

• pro bono services

Filling the access to legal services gap

legal prestige

law work with a good reputation- often based on the type of clients received

partners

owners of a law firm

associates

employed attorneys

rainmakers

“big name lawyers”

boutique firms

small, single-specialty firms

attorney general

chief legal officer responsible for representing the government

• Robert Bork ex.

• the need for a special council

litigation lawyers

lawyers that work mainly with lawsuits with the goal of taking cases to court and winning

• adversarial

transactional lawyers

lawyers that do not work in the courtroom, most of their work is researching, drafting, negotiating, and advising

• less adversarial because parties often share a common goal

• 50% in private practice (either in big law or smaller firms)

• 10% are private solo practitioners

• 10% for the government (ex. city attorney, police, state agency, etc.)

• 10% in house/business lawyers

• 10% public interest/non-profit groups

• 10% other (professors, authors, entrepreneurs)

where lawyers work:

retainer pricing

clients are charged based on how much the legal work is expected to cost, a set fee

contingency fees

clients are charged only if a case is won (lawyers often receive about 30%)

• encourage law suits and provide more access to legal services

billable hour charging

clients are charged based on the time legal work takes

tort tale

a narrative designed to make people think the tort system isnt working or should be reformed

• ex from hot coffee documentary- tort reform campaign in response to PR stories misconstruing cases

tort suits

cases in which one party sues another for alleged harm

american rule

each side pays their own costs of a lawsuit

• encourages lawsuits

english rule

loser pays the winner damages and for all legal fees

1. naming

2. blaming

3. claiming

4. filing

5. resolution

disputing pyramid

arbitration

submission of a dispute to a third party whose decision is final (one method of ADR)

1. complain filed by plaintiff

2. serving of process to defendant

3. defendant answer (liable, not liable, counterclaim)

4. discovery (depositions, interragatories, document request)

5. pretrial conference and motions (status conference, summary judgement)

6. trial

7. verdict of liability and remedy

8. post trial motions

9. compliance and enforcement of verdict

stages of a civil lawsuit

time and money costs, aversion to lawyers, emotional costs/fear of backlash, rules and procedures, perceptions of unfairness

obstacles to accessing courts

affirmative defense

defendant introduces evidence that, if proven, can negate or lessen their liability, even if they admit to committing the acts in question (similar to comparative negligence)

depositions

a party’s answers to trial questions are prerecorded before trial to ensure honesty in trial

interragatories

a written Q&A before trial

affidavit

a written statement signed under oath

status conference

a pretrial conference in which the judge oversees the progress of the case

summary judgement

a pretrial motion in which the judge rules based on undisputed evidence found in discovery

extortive litigation

the result of frivolous lawsuits, because of the expansive right to file law suits, the defendant will still have to pay legal fees for cases even if they aren’t meritorious (ex. the cost of motion to dismiss)

motion to dismiss

a pretrial motion by the defendant ot dismiss a non-meritorious lawsuit

• injury occurred (usually physical)

• breach of a duty occurred

• documented monetary damages involved

• proof of causation

determining a valid legal claim (torts)