Vivian Poon

Chapter 15 – Law in America (pg 1)

Section 2 – Civil Law

Types of Civil Law – civil law - concerns disputes among two or more ind. or ind. and gov; 90% of cases heard in state courts concern civil laws

Contracts – set of voluntary promises, enforced by law; expressed contract (terms specifically stated by parties, usually written) and implied (terms are not expressly stated but can be inferred from the actions of the people involved and the circumstances);

        Valid contract’s characteristics

1.      all parties must be mentally competent and of legal age

2.      can not involve anything illegal

3.      contract’s elements must include an offer (promise that something will or won’t happen), acceptance (party accepts deal), and consideration (party give, exchange, perform, or promise each other something of value)

Property Law

-         real property (land and whatever is attacked to or growing on it)

-         personal property (movable things like clothes, jewelry, stocks, copyrights)

-         buying house usually biggest financial investment for people; means obtaining mortgage (loan to pay for house), deed, title, and insurance

-         Fair Housing Act aims to protect people from discrimination when they try to buy a home or obtain a loan

Family Law – marriage, divorce, child custody; 17^th century England family laws heavily influenced by religious law; each state developed own laws

        America forms of marriage: civil ceremony and common-law marriage

Torts or Civil Wrongs – tort is any wrongful act besides breach of contract where injured party has right to sue; wronged party can seek punitive damages, additional money, to further punish opposing party

-         Tort laws were insignificant until Industrial Revolution; 1800’s majority of cases dealt with railroad injuries; use to favor company because court thought it would hurt the economy, but now favors workers

-         Two categories for torts: intentional and negligence (where person does or doesn’t do something any other person would reasonably do)

Steps in Civil Case – civil cases are called lawsuits; plaintiff is person who is pressing charges, called the complaint; defendant is the defender; if court favors plaintiff, defendant must pay damages and court costs; if court favors defendant, plaintiff pays court costs

-         Lawsuits involving equity, plaintiff can request injunction (court order that forbids defendant to take or continue certain action

Hiring a Lawyer – usually work for 1/5 to 1/2 of total money won in lawsuit or else an hourly fee; if attorney and plaintiff agree to contingency fee, no fee paid if case is lost, but plaintiff pays for cots of the suit

Filing the Complaint – usually goes to state court if it doesn’t deal with Constitution or federal statute or regulation

-         Plaintiff sets forth charges against defendant in a complaint (legal document filed with the court); tells what that issue is

-         Defendant receives a summons (official notice of lawsuit that includes date, time, and place of initial court appearance); defendant’s lawyer can motion to dismiss (ask court to end suit)

-         If request denied, defendant must file an answer (formal response to charges in complaint) within 10-60 days; no answer is victory to plaintiff by default

-         Defendant can also file in counterclaim, or lawsuit saying plaintiff also did something wrong

Pretrial Discovery – both sides collect evidence; may interview witnesses, examine records, file motions against other side; may take months or even years in complicated cases; very expensive and time-consuming

Resolution Without Trial – 90% of civil lawsuits are settled before trial through several techniques:

-         Either party can propose settlement at any time, even during trial; happens when costs are amounting up and are more willing to compromise during discovery phase

-         Judges may encourage people to settle by calling pretrial conference where parties talk it over; also encourages to talk it over on their own outside the court

-         During meditation each side given opportunity to explain its side; trained mediator conducts sessions by acting as neutral party and helps parties decide on issue

-         Parties can submit dispute to arbitration (professional arbitrator who acts somewhat like a judge comes in)

Trial – if all else fails, goes to trial; courts usually crowded so may take years; heard by judge only or by a jury of 6-12 people

The Award – courts have many options in resolving cases because of merging of common law and equity; judges have more power to adjust decisions made by juries

-         Plaintiff wins: court awards damages, injunctive relief, or both; judge can change jury’s award

-         After award, case can continue if defendant doesn’t pay; can take it out of defendant’s paycheck or by taking their assets

Vivian Poon

Chapter 15 – Law in America (pg 2)

Small Claims Court – deals with small debts, property damage, etc; heard by judge and involves claims with max of $1k-5k depending on the state; parties fill out simple forums and no need for lawyers because these were meant for low costs; $10-50 filing fee; plaintiff brings evidence and explains without legal terms; can bring witnesses or their affidavits (written statements to verify statements of fact that have been signed under oath); judge hears case and gives legal binding decision; if defendant doesn’t pay, case goes to police and can last for 5 years; can be renewed

Section 3 – Criminal Law

Types of Crime –criminal law cases, gov prosecutes someone for crime; mostly state laws broken and taken to state courts, but starting to grow to fed courts w/ counterfeit, tax fraud, kidnapping, etc; criminal justice system = system of state and fed courts, judges, lawyers, police, and prisons to enforce criminal law; separate juvenile justice system for people below 18

Petty Offences – wrong parking, disturbing peace, littering, minor trespassing, results in fine, ticket, or citation rather than arresting; can advance to courts if person continues or ignores punishment

Misdemeanors – vandalism, simple assault, stealing, bad checks, being drunk, may be fined or jailed for 1 year or less

Felonies – burglary, kidnapping, rape, fraud, forgery, manslaughter may be sent to jail for 1 yr or more; manslaughter can result in death punishment; loses certain rights like voting, jury duty, job opportunities (military, teacher, etc); repeated misdemeanors can turn into felony

Steps in Criminal Cases – defendants are entitled to protections of due process in Bill of Rights; prosecutor, gov lawyer, must prove beyond a reasonable doubt to judge or jury that defendant violated law

Investigation and Arrest – police gather evidence to convince judge to give them warrant to arrest; valid arrest warrant must list suspect’s name and crime; can arrest without warrant if police sees them in the middle of the crime; criminal taken to police station where charges are recorded (booked); can take pictures, blood tests, fingerprints; suspect can call lawyer before answering questions

Initial Appearance – brought to judge within 24 hours; plead guilty, then judge decides on penalty; plead not guilty, then time for trial is set

-         If felony: defendant not asked to enter plea; judge sets date for preliminary hearing and process aimed at determining merits of charges begins; judge decides if suspect will be released or “held to answer”

Preliminary Hearing or Grand Jury – in fed courts and many state courts, case goes to grand jury (group of citizens who review prosecution’s allegations to see if there is enough evidence to “hang up” an indictment (formal criminal charge); held in secret and suspect cannot have attorney though they can watch; in preliminary hearing, prosecution presents case to judge and defendant’s lawyer may show evidence; if judge drops case, prosecuting attorney can request grand jury indictment; grand jury is expensive and time consuming; Today, people would rather use information (sworn statement by prosecution asserting that there is sufficient evidence to go to trial); grand jury usually goes toward prosecution side so most people say it’s unnecessary expense

Plea Bargaining – 90% of criminal cases end with guilty plea because of plea bargaining (in pretrial process the prosecutor, defense lawyer, and police work out agreement where defendant pleads guilty to a lesser crime in return the gov not prosecute more serious crime that was originally charged); gov likes this because it’s less work and less money; people argue fugitives are getting the light end and give up rights to fair trial

Arraignment and Pleas – judge reads formal charge against defendant in open courtroom; defense attorney is there and defendant is asked questions to make sure they understand; asks them if they plead guilty or not; four steps afterward:

1.      not guilty (sent to trial)

2.      not guilty by reason of insanity

3.      guilty

4.      in some states, no contest (nolo contendere) “I will not contest it” (doesn’t go on records as guilty but judge issues punishment)

The Trial – 6^th amendment says right for speedy trial but courts so crowded there is no helping it; defendant chooses between jury trial (both sides pick total of 6 jurors from residents in court’s jurisdiction) or only judge (bench trial, usually more harsh in defendant); cross-examination, witnesses, closing arguments, etc; 5^th amendment says defendant doesn’t have to testify and cannot be taken as admission of guilt;

The Decision – after closing arguments, judge gives jury set if legal procedures; jurors pick spokesperson and discusses case in secret w/ no time limit; usually votes on verdict (decision) of guilty; hung jury = can not agree on verdict, called a mistrial and new trial scheduled w/ different jury

Sentencing – if not guilty, defendant released immediately and can not be tried again for same crime; if guilty, judge determines sentence (jail time, fine, or community service); few states let jurors help decide for death penalty; if severe enough like death penalty, judge can hold hearings to check person’s background to decide sentence; misdemeanors and felonies can be taken to higher court; 3-strike laws say 3 repeat offences and 25-life in prison; very effective