Week 1 Legal Research (Chapter 1: Law and Sources of Law)

The History of Common Law

  • Common Law is the foundation of the English legal system

  • Brought to America by the colonists and because the early framework for laws in United States

  • When used today, it refers to decisions/opinion made by judges in their rulings

    • forms precedent

  • When there is no specific statute, regulation, or code on an issue, lawyers and judges look to common law for legal guidance

Stare Decisis (Use of Precedent)

  • “Let the decision stand”

  • A doctrine used in all court cases with all legal issues

    • Doctrine: a principle, or an institution, but not necessarily a rule that cannot ever be broken

    • doctrine that obligates courts to look at precedent when making their decision

  • Basis of a common law system

  • Higher the court, better precedence

    • Better to pull from appellate courts and not trial courts

Civil Law System

  • Originated with the Romans

  • Based on one document (“code”) rather than combination of laws

  • Louisiana is the only state in America that uses civil law

Jurisprudence Constante

  • Only used in civil law systems

  • Judges are not bound by prior decisions in making rulings

  • Reference code first to find the applicable rule

  • Relies on scholarly articles and books

The US Constitution

  • The Supreme Law of the Land

  • Constitutions: A document that sets out the basic principles and most general laws of the area

  • The Supremacy Clause: Article VI (6) of the US Constitution says that when a conflict arises between state and federal issues, federal trumps state

  • Preemption Doctrine: when a federal law prevents implementation of a state law on that subject

    • Congress declared intention to exclusively govern in that field of law (express preemption)

    • A direct conflict arises between current federal and state law (conflict preemption)

    • By substance or purpose, federal law disallows the application of state action (implied preemption)

Delegated Powers

Federal (Delegated)

Concurrent

State (Reserved)

  • Declare war (E)

  • Maintain armed forces (E)

  • Admit new states

  • Conduct foreign relations (In)

  • Regulate interstate and foreign trade (E)

  • Coin and print money (E)

  • Established post offices

  • Regulate immigration (In)

  • Make laws necessary for carrying out delegated powers (Im)

  • Maintain law and order

  • Collect taxes

  • Establish courts

  • Charter banks

  • Provide for public health and welfare

  • Borrow money

  • Build infrastructure

  • Make laws

  • Establish local governments

  • Regulate business and trade within the state

  • Establish and maintain public schools

  • Conduct elections

  • Determine voter qualifications

  • Make marriage laws

  • License professional workers

  • Deport illegal immigrations (In)

  • Recognize a country (In)

  • Build interstate highways (Im)

E: Expressed

In: Inherent

Im: Implied

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the states respectively, or to the people.

10th Amendment, United States Constitution

Local Government Concepts

  • Includes cities, counties, school boards and special districts

  • Highest governing document is the charter (an organization’s basic starting document)

  • Other laws are implemented through rules, codes, regulations or ordinances

  • Local governments in Florida don’t have court systems (it’s all a part of the state)

Orlando’s State Judicial Food Chain

Florida Supreme Court

↑

5th District Court of Appeals (in Daytona Beach)

↑

Ninth Judicial Circuit (in Orlando and Kissimmee)

↑

Orange County Florida (in Orlando)

Orlando’s Federal Judicial Food Chain

Supreme Court of the United States

↑

Eleventh Circuit Court of Appeals (in Atlanta and Birmingham)

↑

Middle District of Florida (in Orlando, Jacksonville, Tampa or Ft. Myers)

↑

Specialty Courts (like bankruptcy courts)

Sources of Law

  • Primary sources

    • sources of law that establish the law itself

    • given the most weight by courts

    • ex: constitutions, treaties, statutes, cases, rules, administrative agencies, case opinions

  • Secondary sources

    • anything that’s not a primary source

    • less important but easier to find

      • some are more important than others. legal research arguments from law journals would be more useful than a newspaper article

    • they should be from reputed and verified cites

    • ex: treatises (written work dealing formally with a subject), law review articles, legal periodicals, law dictionaries, legal thesauruses, restatements

Research Tools

  • Westlaw

  • Lexis Nexis - (Uni)

  • Fastcase

  • American Jurisprudence

  • Florida Jurisprudence (or from the applicable state)

  • West Florida Digest (or from the applicable state)

  • Various government sponsored websites (such as Municode for local government ordinances)

  • Various law school sponsored websites (such as the LLI sponsored by Cornell)

  • Government records, such as those kept by the Clerk of Courts, the County Comptroller, the County Property Appraiser, or the County Tax Collector.

Legal Citations (Cites)

  • Identifier which allows your reader to locate the source you’re referencing

  • Usually made in accordance with Bluebook (but there are some exceptions)

Federal and State Court System

  • Comprised of judges that are appointed for life (article 3 of us constitution)

  • Trial Courts: initial forum for filing of cause of action

    • trail level federal court is the US District Court

    • Florida is served by 3 federal district courts

      • United States District Court for the Northern District of Florida

      • United States District Court for the Middle District Court of Florida

      • United States District Court for the Southern District Court of Florida

    • trial level attorneys present evidence via testimony, documents or tangible evidence

    • determines facts and applicable laws for those facts

    • judge decides questions of law and jury applies the law (if no jury, judge does both)

  • Appellate Courts determine whether the lower court applied the law correctly to the facts of the case

    • defers to trial courts on questions of fact

    • court may affirm, reverse or remand (sends to further proceedings) a lower court decision

    • do not take testimony or consider evidence not introduced at trial

      • decides on appellate briefs and the records alone

      • can grant oral argument to parties

    • court is made up of 9 judges, one is appointed the Chief Justice

    • typically 3 judges hear appeal

      • can have every judge hear it (en banc / on the bench)

    • Intermediate Appellate courts: decides cases appealed from lower courts

Florida Constitution

  • Currently: Constitution of 1986

    • constitutional revision commission reviews constitution 10 years after enactment and 20 years thereafter

  • Article V vests judicial power in supreme court, district courts of appeal, circuit courts and county courts

Court Rules

  • Substantive Law: defines rights and duties

  • Procedural Law: governs the process by which courts deal with substantive law

  • Florida Rules of Civil Procedure: civil cases in Circuit and county court except small claims, probate and family court

  • Florida Probate Rules: probate and guardianship proceedings

  • Florida Small Claims Rules: civil cases in County Court where amount in controversy does not exceed $5,000

  • Florida Rules of Criminal Procedure: criminal cases and traffic court

  • Family Law Rules and Procedure applies to family law matters

  • Florida Rules of Juvenile Procedure

  • Florida Evidence Code: governs admissibility of evidence at trial

  • Florida Rules of Appellate Procedure: governs proceeding in appellate courts

  • Local Rules and administrative orders: apply to jurisdiction of a particular court

Juries

  • FL Const: “No person shall be tried for a capital crime without presentment or indictment by a grand jury (GJ); felonies require presentment or indictment by GJ or bill of information filed by prosecutor.”

    • Presentment: accusation of a crime made by GJ on its own motion

    • Indictment: Accusation of crime by GJ based on evidence presented to it by prosecutor

    • Information: accusation of crime made by state attorney

  • Grand jury is composed of 15-21 persons and investigates crimes, hears testimony and receives evidence

    • Need vote of 12 grand jurors to issue an indictment

    • “A grand jury would indict a ham sandwich if the prosecutor asked them.”

  • Petit Jury is a group of citizens who try a case

    • FL Const. guarantees right to trial by jury

    • Civil trails: normally 6 person jury, 12 for eminent domain, majority for verdict

    • Criminal trials: death cases require 12, others require 6, verdict must be unanimous

  • Juror requirements

    • must be 18

    • residents of FL w/ address in the county which they are called for duty

    • Disqualified: convicted felons, governor, Lt governor, cabinet officers, clerks and judges

    • Excused: expectant mothers, parents w/ custody of child under 6, hardship or public necessity, over 70, or person caring for incapacitated person

    • Discretionary: judge may excuse practicing attorney, physician or infirm person

  • Jury Procedure

    • clerk selects a list of potential jurors at random from registered drivers in county

    • Jury Venire: group of prospective jurors chosen from list at random and issued and issued jury summons

    • parties then select a jury panel by conducting voir dire (speak the truth) interview

      • rules out any potential juror with bias

    • Challenge for Cause: disqualification when juror is related to a party or attorney, has an interest in the case, formed an opinion about the case, or employed by a party

    • Peremptory Challenge: limited number of challenges for any reason

Judges

  • required to complete 30 hrs of CDE (Certified Document Examiner) training every 3 years w/ 2 hours of ethics

  • comply with the code of judicial conduct: 7 canons of conduct (prohibits public support of a candidate or being affiliated with a political party)

  • Judges subject to discipline by FL Supreme Court

Attorneys

  • FL Supreme Court regulates admission into FL Bar

  • deemed officers of the court for administration of justice

  • must follow rules of the Florida bar association

    • penalties: admonishment (warn gently but seriously), probation, public reprimand, suspension and disbarment

  • 30 hours of CLE (continuing legal education) every 3 years

Paralegals

  • Paralegals and legal assistants work under supervision of an attorney

    • legal technicians are unsupervised but usually just helps fill out approved forms

      • contract for purchase and sale

      • residential leases

      • dissolution of marriage

      • injunction for protection against violence

      • service and notice forms

      • stepparent adoption

      • landlord and tenant

  • Certified Legal Assistants: passed exam by NALA (federal law)

  • Certified Florida Legal Assistant: passed NALA exam and PAF exam (state law)

Florida Courts

  • FL Supreme Court

  • District Courts of Appeal

  • Circuit Courts (20 Circuits)

    • Civil Division (over $15,000 and appeals from County Courts)

    • Criminal Division (Felonies and appeals from County Courts)

    • Probate

    • Family Law (Domestic Relations)

  • County Courts (67 Counties)

    • Civil Division (under $15,000)

    • Criminal Division (misdemeanors)

    • Small Claims (under $5,000)

    • Traffic Court