Draft:United States Court System Outline

Deposition- the Lawyer sits down with a party, but no Judge is present. Famous deposition is the Bill Clinton case. Paralegal arranges for this to happen.

Paralegals can: Paralegals can be litigation assistants. Make sure no surprises will appear. Domestic Cases-The parties can talk to the Paralegal, and she listens to the party. Domestic Lawyers don’t make much, so they carry a heavy caseload. Title Searchers- Paralegals search the histories of property very independent. Works out of the office, very high pressure, wants to be done real quickly.

Negligence and car accidents- prepares a settlement brochure Bankruptcy- Paralegals does most of the work but the last steps this is federal law. Legal research and writing- requires the most analytical skills. Paralegals don’t often work in criminal law because most of the legal system does all the Paralegal work.

Over the years, there has been discussion about licensing Paralegals. States usually license people who are directly responsible to the public as a way of protecting the public against unqualified people. There are two court systems 1.   Federal - Trial Federal Court includes the US District Court, US Circuit Court of Appeals, and US Supreme Court 2. State court includes two types of court:    State Trial (Appellate or review) & a Trial Court.

The court where the lawsuit began has the job to decide factual questions and then apply the law to it. (To determine questions of law). They are located in County Courthouses. This is where you would have a jury. The way the trial usually ends is with a Judgment for one side or another. Ex. Criminal case the Defendant is charged with assault with intent to kill. Questions would be:   Did he really have a weapon? Did he intend to kill?

North Carolina divides the state into judicial districts. They're approximately 40 districts. There are 100 Counties in North Carolina. Cumberland County has its separate judicial district. We are the 12th judicial districts. The counties have trials in the district and superior court. Location of the trial is called a venue. Every County Courthouse has an administrator. This person is called The Clerk of Court.

For a case to be heard by the Supreme Court 1.   The case has been to the North Carolina court of appeals and there was a descent (you lose) among the three Judges. 2.   If you are convicted of murder and you get the death penalty 3.   In all other cases the Supreme Court hears the cases by certification. This means that the Supreme Court can choose to hear it or not. This happens by the Defendant filing a petition for certification, asking the Judges to review the case, to determine whether or not it’s important for the state to hear it. In most cases they refuse to hear it or deny cert.

Most lawsuits end at the judgment because it is so expensive to file an appeal. If the person who lost at trial believes that a mistake was made in applying the law, then he can ask for an appeal to an appellate court. If you have the right to appeal (a notice to appeal), and then become the Appellant. Appellee is the person whom against the case is filed. If a person has a right to appeal that means that he believes that at trial a prejudicial error was made. (An error that was big enough to affect the outcome of a case.) Prejudicial as to a question of law then he has the right to have his case reviewed by the court of appeals. You have the right to Appellate Review and in state court it is called a Petition of certification. In federal court it is called a Potation of crito rare. The difference between filing a Notice of Appeal the appellate court has to hear your case and filing a Petition for Certification is you are asking the Supreme Court to hear your case to determine whether it is important enough for the state to hear it. If they refuse to hear it they “deny Cert”. If they say they will hear it they grant Certification. US Court of Appeals sits in panels of three.

Appellate Courts - Appellate brief states what errors and mistakes were made at the trial. It must include the result of legal research to back it up. Once the appellant files the Appellee (the person who won the Judgment) must defend what happened at trial. He also has to file an appellate brief addressing the mistakes that the appellant said. At the appellate level you don’t have witnesses or evidence. In fact the appellate court must accept the findings of the trial court. The reason appellate Judges were not there to hear the witnesses etc. All the appellate court does is look at possible mistakes regarding questions of law, that the parties brought and not other questions. The appeals court then has oral arguments. An appellate court always has a panel of Judges that is an odd number of Judges. In oral arguments, the Lawyers appear before the panel of Judges to answer questions about what they said in their briefs. This questioning is usually 20 to 30 minutes per side and is done by the Judges. After the oral arguments, the Judges on the panel get together and discuss the case, and they take a vote.

These are the appellant courts choices; 1.   Affirm the decision- agrees with the finding 2.   Reverse the trial court's decision 3.   Remand the case back to trial level- with instructions with how to correct a mistake and happens the most. * To explain their decision the Appellate Judges with a judicial opinion. This is put into a set of books called reports or reporters. It then becomes case law for the courts within its jurisdiction. Case law is Judge made law. Our court system is based on the doctrine of precedent or what is called stare decisis. Stare decisis - means let the decision stand. If an appellate court in your jurisdiction in a prior case has considered the same legal question as your case and the facts of both cases are similar, then the answer in that prior case must be followed in your case. The more a case is followed the stronger it becomes.

The reason of precedent is that 1.   People in similar situations get the same treatment. 2.   The second reason is to make the law predictable The problem with precedent is that it can be too rigid. It is inflexible and doesn’t change with the times

To keep the law of precedent from being too rigid the appellate courts have two choices: 1.   Overrule the prior opinion. Courts don’t like to do this often. 2.   Distinguish cases and say that the facts of the present case are different from the facts of the prior case and therefore the courts in this case doesn’t have to follow the prior decision. The more a case is distinguished the weaker it becomes.

Analogous cases - cases that have similar facts and questions of law. You as the legal researcher have to predict if the court will follow or distinguish your case. Misdemeanors don’t have a jury. If the Defendant is convicted he can get a new trial in superior court with a jury. State Court System

Level of Courts (from bottom to top) a.   North Carolina District Court- misdemeanors criminal, up to $10,000 in domestic cases. b.   North Carolina Superior Court- Felony, trial denovo of misdemeanors, (because no jury in district trial court, its too expensive) c.   North Carolina court of appeals- highest court in the state North Carolina Court of Appeals If an appellate court Judge dies or retires while in office the governor appoints a replacement in till the next general election. (They are usually older Judges). The general elections are held every two years. Most appellate Judges originally got their office from the appointment. Appellate Judges are nominated by the voters in their district, and they work for the highest court in the state. Judges are elected by the entire state for eight years. Developed in 1967, the appeals court usually sits in Raleigh. You go here if you want a trial denovo. The court has panels of three Judges. For most cases, this is where the trial ends, but the state's highest court is the North Carolina Supreme Court.

In North Carolina Supreme Court, Judges are called justices, and they are elected by the entire state for eight yrs. There are seven justices in North Carolina, and they sit as a group. In North Carolina, there are two levels of trial court. One is the North Carolina District Court. Every district has a chief District Court Judge. The chief justice of the North Carolina Supreme Court appoints the Chief District Court Judge. The Chief District Court Judge hears cases but he or she also assigns other Judges to various courts. Misdemeanor criminal cases (max penalty of two years)

The voters in their judicial district elect judges for 4-year terms. But if one retires or dies in the middle of a term the governor gets to appoint a replacement. This person serves to the end of the term and usually wins the election the next time around because of name recognition. (Incumbent). All domestic cases All civil cases up to $10,000

In the North Carolina Superior Court, the Judges are divided into 8 divisions are elected by the state for 8 year terms. The Judges are required to rotate to the different districts within their divisions every 6 months. They are required to rotate for a concern to not form an attachment to particular group of Lawyers. This will make things fair. The hear all felony cases and misdemeanors appealed from District Courts (denovo). If you ask for a new trial you may get a longer sentence (trial denovo). North Carolina superior court hears all non-domestic cases over $10,000

In the Federal Court System, the highest court is the Supreme Court. Federal Judges are appointed by the president with the consent of the senate (confirmed). They are appointed for life. The reason for this is that federal Judges can be above politics. They can vote what they feel. Bush has appointed two. Federal courts are so picky about the types of cases they can hear, that when the Plaintiff files a complaint in the federal courts system in the 1st numbered paragraph he must state the facts to show the federal Judge…this is the type of case a federal court can hear. For the purpose of Appeals, the USA is divided into 12 Circuits. North Carolina is in the 4th circuit and its meets in Richmond, Va. (the US Circuit Court of Appeals) The main appellate court or the Federal system is the US Circuit Court of Appeals.

Social policy the Supreme Court has heard: 1.   Roe vs. Wade 2.   Brown vs. Board of Education 3.   Miranda vs. Arizona The US Supreme Court consists of 9 justices who sit together (Judges are justices). If you want the court to hear your case, you must file a Petition for a writ of certiorari. In the majority of cases the court will deny crit - the discussion of the lower courts stands.

United States District Court -trial courts The main trial court is called the US District Court. The Constitution created the Supreme Court and gave Congress the power to create the other courts. District Courts are usually found in the post office. A division is US District Court is Bankruptcy Court - In North Carolina the Clerk of Bankruptcy Court is found in Wilson. United States divided into 90 Federal Districts. The number of districts in a particular state depends on population. Ex. North Carolina has three 1.   Eastern District of North Carolina (Fayetteville) 2.   Middle district of North Carolina 3.   Western district of North Carolina

The United States Supreme Court Unlike at state level where the courts in North Carolina have to hear: 1.   Capital Punishment Cases 2.   Descent on the court of appeals

The US Supreme Court level there is no case that they must hear. Which means they deny cert for most cases, and the decision of the Appellate court stands.

Jurisdiction - power over something.

Jurisdictional amount- the amount of money you have to sue for for a particular court system to hear that case.

Concurrent Subject Matter Jurisdiction - Either state of federal courts can hear the case so, when the Plaintiff is filing his lawsuit he can choose which court will hear his case. Because both court systems have the authority to hear the case. But is this fair to the Defendant? The Law of Removal- says that if there is Concurrent Subject Matter Jurisdiction between state and federal court and the Plaintiff filed the lawsuit in state court then the Defendant may remove the lawsuit to the closest (to where the case was filed in state court) federal courthouse. The way the Defendant does this is by filing a petition for removal with the federal court, and so it is the federal Judge who decides whether or not the federal courts can hear this case. In Diversity cases, there is Concurrent Subject Matter Jurisdiction between state and federal courts which happens in many federal question cases. This means that even though the Plaintiff’s claim for relief comes from federal law the states courts can still hear it, however in some federal questions cases the federal law specifically states that only federal courts can hear this type of case. If this is the case federal courts have Exclusive subject matter jurisdiction - Ex. Bankruptcy law is a federal law that states only federal courts can hear that kind of case.

Subject matter jurisdiction of federal courts - When federal courts were designed they weren’t intended to hear every type of case, like state courts are. Rather federal courts can only hear certain types of cases that federal law authorizes them to hear. They can hear; a.   Federal question cases- a case was the Plaintiffs claim for relief, (his legal theory for seeing) comes from federal law. b.   Diversity cases - has two requirements I. All the Plaintiffs must be from different states then all the Defendants. This is called Complete Diversity

As a General Rule a natural person can only be a citizen of one state. A corporation is a legal entity that can sue and be sued, we sometimes refer to them as an artificial person. A corporation can be a citizen of two states. Where the corporation was founded and where it has its corporate headquarters. In fact, one of the main reasons that a business incorporates is so that if the business is sued, the property of the owner is protected. If a business wants to incorporate, it must apply to become corporations with the Secretary of State as a part of this process. The business has to name someone in North Carolina as its registered agent and give their address so that if someone sues the corporation, the can have that agent served with the summons and complaint and thereby get jurisdiction over the corporation. This is only 1 way to serve a corporation- another way is to serve a corporate officer with the summons and complaint- 3rd way is to have a sheriff’s deputy take the summons and complaint to corporate headquarters and leave the summons and complaint with a person who appears to be in charge when the deputy gets there. II. The amount being sued for must be over $75,000. Federal courts will hear diversity cases so there will be no favoritism towards the person from the same state as the state court. In diversity cases the Plaintiffs claim for relief is based on state law. It is usually an ordinary case such as breach of contract or negligence. But, what makes it different is that the parties are from different states and the amount is over $75,000. This complaint also illustrates if there are more than one Plaintiff or Defendant, you must name them all. Suing a employee As a general rule an employer is liable for the negligence of his employee if the employee was acting within his scope of practice. You can sue the employer or employee or BOTH- goes for the deep pockets. Imputed- one person’s negligence is transferred to another. In negligence cases when you are suing for more than $10,000 you may not state the exact amount you are seeing for. Reason is, in most negligence cases, Plaintiff is going to receive more money for pain and suffering then for medical bills. In fact, a very general rule of thumb is a negligence case is worth 3 times more then the medical bills plus lost wages.

There is an agency in Raleigh called the Administrative Office of the Courts. It; 1. Prepares the official forms that are used statewide. 2.   It keeps statistics on each courthouse. Based on these statistics it tells the clerk how many assistants to hire.

Registrar of Deeds who is elected for four years operates the deed vault. The great big room in the courthouse that has copies of deeds, mortgages, deeds of trust to have any rights in real property it has to be in writing and recorded here. They can hire staff depending on how busy they are.

Estates Office- (in the clerks office) if a property doesn’t transfer but sale it must be in the Estates office.

The Magistrate in Superior Courts has now required mediation before the parties go to trial they both sit down with the Lawyer and a third part Lawyer to try to talk things out. Paralegals set everything up and sit in on the meeting. The Magistrate presides over initial appearances. When a person is arrested for a crime they have to be taken without necessary delay before a magistrate, who sets the conditions of pre-trial release any greater than is reasonably ness Cary to make sure the person appears. This is the bond. Ex bail is $1,000. The same Magistrate to preside over an initial appearance issues search and arrest warrants. According to the constitution there must be probable cause that the persons committed the crime Or probable cause that specific evidence of crime is in a particular place. The magistrate is nominated by The Clerk of Superior Court, and appointed by the senior resident Superior Court Judge (held the office the longest) for a term of 2 year times. He/she is not required to have a degree because once they are appointed the state sends you for training. (Common sense). A Magistrate is on duty 24/7 and works as an independent person between law enforcement and the individual. He/she will protect individuals from the power of the police. A Magistrate will preside over small claims court and act as a judge. (Here he has set hours). If you lose in small claims court you have the right to ask for a new trial in civil court. Then it’s like the 1st trial never happened. This new trial is also called trial denovo. The reason a new trial is granted is because there was no Judge.

The Juries- The name for jury selection is called voir dire examination. It means to speak the truth. In North Carolina there are 2 kinds of juries 1.   Petit Jury (trial Jury) 12 people-A jury list is drawn randomly from voter registration lists, driver’s license lists, etc. These people then get a jury summons that tells them to go to court at a particular time. They go to a certain room and become the jury pool. The jury coawordinatior shows them a film about what their job is. Then they sit and wait. Every so often the bailiff comes in and reads a list of names. Those people follow him to a courtroom. The 1st 12 sit in the jury box. The rest sit in the audience (called for a session of court, you might hear more than one case, or even hear no case.)

2. Grand Jury- (Criminal Cases)- they review the DA’s evidence to determine whether or not there is probable cause to try a person for a felony in superior court. A jury list is drawn randomly from voter registration lists, driver’s license lists, etc. These 18 people are called every so often to the courthouse to review the Bills of Indictment. The grand jury juries have to be available for one year. a.   The DA 1st summit’s a bill of indictment. It contains evidence. The grand jury reviews the bill of Indictment and they call it a true bill of Indictment if they support it, if not its called a not true bill of Indictment. To have a trial you only have to have 12 of the grand jury support it. b.   If it's not a true bill, the DA can collect more evidence and submit again.

When sitting in the jury box the Lawyers ask questions and look for a fair jury. A good trial Lawyer will come to court with a profile of a person he thinks will favor or disfavor his client. To remove a juror you, “Challenge The Juror”. Which doesn't allow you to go home you just go back to the jury pool. Challenge Por Cause - there is a good reason to remove this person Peremptory Challenge - the Lawyer doesn’t have to give a reason, but he is limited in the number of times he can do this. Once he uses them all up you can’t get any more and the next person maybe even worse than the last.

Probable cause- facts that would cause a reasonable person to believe that the Defendant committed the crime or specific evidence of a crime is in a particular place. Federal laws are enacted by Congress. They are contained in a set of books called the US Codes. (Many Volumes) The US Code is divided into titles. With different titles containing laws on a particular subject;

a. Title II- Bankruptcy- despite the fact that we have so many federal laws they are actually very specialized. b. Anti-trust laws - ban monopolies - keep businesses from forming monopolies. A monopoly is when one business drives all of it competitors out of business. So, that if you want a product or a service you only have one place to go. c. Consumer protection laws - designed to protect the public, I. The Fair Credit Reporting Act II. The Fair Debt Collection Act

1.   North Carolina Supreme Court Reports- judicial opinions of North Carolina Supreme Court. Official reporter. 2.   North Carolina court of appeals Reports- this has judicial opinions from North Carolina court of appeals. It is also an official reporter. 3.   Southeastern Reporter- this has not only our state but also the judicial opinion from other southeastern states and is an unofficial reporter. Lawyers tend to like unofficial reporters better because they have more research tools than official ones.

If all you had was the Southeastern reporter, and you are looking for a case on a particular topic it would be like looking for a needle in a haystack because reporters don’t group judicial opinion by topic. Therefore you will have a murder case next to a child custody case. The opinions are placed in the reporters in the order in which they are decided. You will have to have case finders; they help you locate a citation -(a road map as to where you can find a particular case or statute) of judicial opinion on your topic. Ex. Case Citation Smith V. Jones, 175N.C.607(1950) Smith V. Jones, 175N.C.607, 195SE2nd205(1950) One case finder is annotated statute North Carolina General Statutes are annotated. This means that after the statute itself are case notes. Case notes- a short paragraph that summarizes what a court has said about this statute. Below the paragraph is the citation of the case. So that you can take the citation and go to the reporters and look it up. Legal Encyclopedia- North Carolina is called Strong’s Index (these are case finders). Go to the index books, look up the topic your interested in and it will tell you where in the main volumes you can find your topic. Then go to the main volume and look up your topic. They are different from regular encyclopedias. Every sentence has a footnote. It will give you the citation in the case that the legal principle comes from. There are legal encyclopedias that are national; the cover laws all over the USA. The problem is that they are almost worthless because they cover so much: 1. American Juris Prudence- Lawyers call it am jur 2. Corpus Juris Secundum- Lawyers call it CJS FOUR SOURCES OF LAW Compromise Committee- a group that sits together to compromise on new statutes. 1. The constitution - Federal or state 2. Statutes are written by Legislature, who are a group of people elected to pass laws (enact statutes) elected by voters. Statute - a law enacted (written) by a legislative body

At the Federal level, we have United States Congress, who writes laws called the us code

A. Senate (higher House) B. House or Representatives (lower house) These books that contain statutes are called codes. In fact, the set of books that contain laws passed by Congress is called The US Codes. There are 50 codes to the US Code. After a legislative body enacts a law, then it is codified (put into a set of books that group laws on the same topic together). US Code- divided into titles- each title covers a different topic (ex. Title 11 of the US Code covers bankruptcy)

At the State level, there is the North Carolina general assembly who writes code called the North Carolina general statutes.

A. Senate B. House of Representatives Lawyers in North Carolina use this set of books more than any other set of books because they contain laws. North Carolina general statutes are broken into chapters and sections Ex. §50-16 - alimony 50 is family law = divorce To find a law every code has an index, which is contained in several books listed in alphabetical order. First, go to the index and look up your topic-main topic- under that you read down to find the specific topic in which you are looking for. You then go to the main volumes of the code, on the spine of each book and it will list the chapter numbers that are covered. Ex. 50:1-75:1 Whenever you are researching any type of law epically statutes you must make sure that you find the latest statute, because legislatures are constantly changing statutes and they way they change the law is to amend the statute. The way most codes update their statutes is by adding supplements. (An extra book with the new changes.)

3. Administrative Rules and Regulations are Rules made by government agencies such as the IRS, the social security administration, etc. 4. Judicial Opinions - (Case law, Judge made law) which all started out as common law. Common law is a group of legal principle that was brought by the colonists to America from England. Common law is constantly being changed by new cases. Statutes passed by legislatures don’t cover every area of the law. In fact, there are many areas of the law that are based on case law and not statutes. Statutes, however, can be enacted that will override or change case law. In civil injuries, we have a special statute that deals with the situation where a person was not just injured by the Defendant but died and is called the wrongful death statute. It is very specific as to who can sue for wrongful death and who wins the money. Case Law (Judge made law)- the way we usually get Judge made law is that there is a trial, and the loser appeals to an appellate court because he says there was a mistake made as to a question of law that was so big it could have affected the outcome of his case and is called Prejudicial Error. After reviewing the appellate briefs and listening to the oral arguments, the appellate court makes a decision to affirm, reverse or remand the trial court's decision. To explain their decision the appellate court writes a judicial opinion and it is put into books called reporters. It then becomes case law, which establishes a precedent with that court's jurisdiction for cases that come behind it.

Statutes are often annotated so; they have case notes after the statute where the courts have interpreted the words in the statutes. Statutes interact with case law and override judicial opinions.

Conflict of law - If there is a clear conflict between the statute and a judicial opinion the statute will win. Conflict of administrative rules and case law the rule will win. Whichever is higher on the list will win One exception only- The Constitution overrides all statutes and the courts have the power of judicial review- this is the power of the court to determine whether a law violates the constitution. Legislature has more power than the courts. Ultimately as between the courts and the legislature it is the legislature that has the final say; EXCEPT the power of the courts to strike a law down because it violates the constitution. If it does the law is then unconstitutional and is thrown out. There is a clause in the constitution that prohibits expose facto laws; a law that makes an act a crime after the act was committed. You can’t increase the punishment after a crime was committed.

When a legislature first enacts a statute the legal community is often going crazy because nobody knows what the words in the statute means and in till a lawsuit comes thru the court system and a judicial opinion is states what the words mean no one knows for Ex. The homicide statute in North Carolina says: that 1st-degree murder is the unlawful killing of another with malice, premeditation, and deliberation. Never rely on what you think, read the judicial opinion in the case notes. Deliberation- is killing in a cool state of blood. It must be found that the person was not so overcome by passion that he didn’t know what he was doing there can not be malice.- Killing without an excuse

Amending- the legislature doesn’t like the courts interpretations of a statute. They amend it to make in more clear.