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FUNCTIONS OF LAW

1. To structure the government (e.g. Constitution)

2. “To protect citizens” from the Government (e.g. Bill of Rights)

3. To protect minorities from majorities

4. Setting standards of conduct behavior

5. To create orderly change

-rather than revolution or anarchy

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6. To resolve disputes peacefully, civilized

7. To punish wrong doers-Criminal Law:

Free room & board$ (Fines)

-Civil Law:Punitive Damages

8. To compensate victims – Civil Law:- $ (Actual Damages)- Injunction (Court Order)- Order for Declaratory Relief

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9. Taxing Revenue for the Government

10. Reallocate Resources

11. To foster stability, reliability, predictability

Etc.

To foster, promote morality

To promote health & safety

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SOCIETAL INFLUENCES ON THE LAW

1. Systems of Government- Democratic vs. totalitarian system- U.S. is a republic (Federal, State, Local Government)

2. Religion/Cultural/Traditions-Western-Asian-Islamic

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3.Standards of Morality/Ethics

abortion, slavery, women/gay/minority rights, cloning, euthanasia, physician assisted suicide, and flag burning

4.Wealth

health, safety, environment protection, and cost $$$

5. Technology:

Internet, telecommunications

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HISTORICAL SOURCES OF AMERICAN LAW

1.British – 13 coloniesInfluences on State Marital Rights Law- Premise: before marriage 2; at time of marriage becomes 1- Husband has management/control of resources as head of the household-Presumption of alimony to the wife (upon

divorce)- Presumption of entitlement to the wife (upon

death of husband)

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2. Spanish – Western 9 states, Florida

Influences on State Law

-Community Property (equal ownership & management of income earned during marriage)

-Water Rights

- Real Property (Mineral Rights)

3.French – Louisiana

- Remnants of Napoleonic influence

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4. Alaska

- purchase from Russia

5. Native America Tribes

-Exist as a “Nation”

-Oral Tradition

-Treaty status with U.S.

-Reservation Law

-Relationship with State Law

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CONSTITUTION

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Article I – Congress – 2 Houses(House of Representatives – 2 yr terms)

Unique Duties, Rights of :-Initiate all spending bills

(appropriations)-Initiate (issue) Articles of impeachment

(Senate – 6 yr terms)Unique Duties, Rights of :

-Confirmation of cabinet, senior executive, branch officials and federal judges

-Ratify treaties- Conduct trial of impeached officials

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Article I Section 8 of the Constitution (so-called “enumerated powers”) – Gives Congress the power to:

1. Impose & Collect Taxes2. Impose Duties (e.g. tariffs)3. Import & Export Controls4. To borrow money5. To regulate commerce – basis of the most

federal statues 6. To establish rule of Naturalization7. To coin money

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8. To establish post office and post roads (federal, i.e. US Highways)

9. To declare war

10. To raise and support armies

11. To provide and maintain an army

12. To constitute tribunals (federal courts)

13. To define and punish piracies

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Article II - Duties, Rights of President-Commander in Chief of the Armed Forces-Enforces the Law-Negotiate Treaties, Foreign Policy

*Can be impeached

Article III – Federal Court SystemFederal Judges - Nominated by the President & Confirmed by the Senate – Life tenure (*can be impeached)Establishes jurisdiction of the U.S. Supreme Court

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Article IV – Full Faith & Credit between each States

Article V – Amend Constitution

1. Constitutional Amendment Process

2. Constitutional Convention Process

Article VI – Federal Law supersedes State Law (pre – emption) – Supremacy Clause

Article VII – Ratify Constitution by 9 of 13 states

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AMENDMENTSBill of Rights (1st 10 Amendments)

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Amendments to the Constitution:1st Amendment – 5 Freedoms: Religion, press,

assembly, speech, petition the government for a redress of grievance

2nd Amendment – To bear arms (state militia- National Guard)

3rd Amendment – No soldier in time of peace shall be quartered in any house unless prescribed by law

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Amendments dealing with Criminal Law:

4th Amendment – Unreasonable/unlawful search & seizure (evidence is excluded from trial when wrongfully seized by Government)

5th Amendment – Right against self incrimination, double jeopardy, due process (trial), eminent domain

(if Government takes your property there must be compensation of fair market value)

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6th Amendment – Right to a speedy & public trial (usually 60 days).Right to confront your accusers.Right to a defense counsel in a criminal case

8th Amendment – Excessive bail not be required (based on risk of accused fleeing the jurisdiction, severity of crime, wealth, safety of public).Protection from cruel & unusual punishment (burning @ the stake, whipping, keel hauling, torture)

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Continuation of Amendments:

7th Amendment – Suits of Federal Common Law where controversy exceeds $20.00 dollars

9th Amendment – “Catch all” Inherent rights of people

10th Amendment – States are the sovereign: limited authority of Federal Government

13th Amendment – Slavery

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14th Amendment – Section 1 – equal protection and due process provision (makes citizen protections contained in the Bill of

Rights also applicable against States)

15th Amendment – Right to vote, not based on color, race, religion, national origin

16th Amendment – Income Tax

18th Amendment – Prohibition of alcohol

19th Amendment – Women’s Suffrage

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20th Amendment – Terms of President & Vice President to end at noon on January 20th

21st Amendment – Repealed the 18th Amendment

22nd Amendment – President shall serve no more than 2 terms in office

23rd Amendment – District of Columbia to have representation in Congress

24th Amendment – Citizens to vote without having to pay voting taxes

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25th Amendment – Process by which the Vice President becomes the President in the event of incapacity/death of President

26th Amendment – Lowered voting age to 18

27th Amendment – Compensation for services of Senators and Representatives can become effective only during a subsequent Congress

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BASIC LEGAL CONCEPTS

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The Law Hierarchy:C = Constitutional LawS = Statutory Law (Congress – Article I of

Constitution)E.O = Executive Order (President – Article

II of Constitution)

Regulation (Administrative) Law – 1) Power to issue the regulation – based on

Statute or E.O. (Grant of Authority)2) Procedural requirements

a) Fact finding (hearing, investigations)

b) Propose regulation for comment

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Example of US Administrative (regulatory) Agencies:

OSHA - Occupational Safety Health Administration*Regulates work place safety

FDA - Federal Drug Administration*Regulates food and drugs for safety and efficacy

FTC – Federal Trade Commission*Regulates unfair or deceptive business practices

SEC – Securities Exchange Commission*Regulates security markets, exchange and deals

FAA - Federal Aviation Agency*Regulates private and commercial aircraft, crews, airplanes, and airports

EPA – Environmental Protection Agency*Regulates toxic emissions, etc. in land, water and air

IRS – Internal Revenue Service*Regulates & Collects Taxes

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Examples of California Administrative (regulatory) Agencies

DMV – Department of Motor Vehicles

*To regulate operating and licensing of drivers and vehicles

FTB – Franchise Tax Board

*IRS for California

EDD – Employment Development Department

*To administer unemployment compensations and job training systems

Cal Trans

*Administrates and maintains California highways, bridges

Cal OSHA

*Regulates work place safety in California

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Common Law – Case law that is not based on constitutional law, statutory law, executive order or regulation (administrative) law – i.e., judge made law

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Important Judicial Concepts1. Precedent – same legal issue that was decided before

-Mandatory – lower court must follow ruling of its higher court

-Persuasive - if a court of equal rank or in another jurisdiction gives a ruling, the

court is not bound to follow it, but should unless there is a compelling reason not to follow it2. Stare Decisis –

“The decision stands” – Judicial principle that a court which has decided a legal issue in a prior case will apply to the same legal ruling in a subsequent case.

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3. Res Judicata –

“Things been decided” – within the context of a case, once the court has decided a legal issue, it will not revisit the issue

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The California Initiatives/ Propositions Process

• Can amend Cal Constitution

• Supersede Statutory, Judicial & Administrative Law

• Advantages & disadvantages of Initiative Process

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LEGAL SYSTEM

Three Components:

1. Make Law –

Legislative body (e.g. Congress – Article I Constitution)

2. Enforce Law –

Chief Executive (e.g. President – Article II of Constitution)

3. Interpret Law –

Judicial (Federal Court Article III of Constitution)

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Multiple Legal Systems

• At least 51 systems – 1 Federal & 50 States (and territories & Washington D.C.)

• Complexity for business planning/operations

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State Legal Systems

- Generally similar to federal

- State Legislature of CA-2 Houses (State Senate & State Assembly)

- Governor – Chief Executive of State

- State Court System

- State Administrative Agencies

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Role of Political Subdivisions – created by a state

Counties – Board of Supervisors – Legislative Body (ordinance)

Cities – City Council – Legislative Body (Ordinance)

- Mayor – Executive

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TYPES OF LAW

Substantive Law – Rights & Responsibilities

1. Contract Law

2. Tort Law

3. Property Law

4. Etc. – lots of others

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TYPES OF LAW

Procedural Law- Process through court

1. Civil litigation

2. Criminal litigation

3. Law of evidence

4. Rules of Court

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TYPES OF EVIDENCE

1. Sworn Testimony

2. Physical Evidence – bloody glove, knife, bullet, gun, fiber, hair, DNA sample, etc.

3. Documents – letter, e-mail, electronic tapes, etc.

4. Representatives – photograph, sketch, etc.

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Criminal vs. Civil Law Differences

Criminal Civil

Parties: Parties:

Government vs. “Person” “Person” vs. “Person”

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What is a “Person” Under the Law?

1. A “person” is a legal entity

2. Types of Legal entities

-natural alive person

-artificial person (e.g. – estates, trusts, partnership, corporations, trade

associations)

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Federal Crime – U.S. of America vs. “Person”

→ Chief Prosecutor : Attorney General of U.S.

- Nominated by the President & Confirmed by the Senate

-Heads “U.S. Dept. of Justice”

→ U.S. Attorneys

-local representatives of the U.S. Department of Justice are assigned to specific federal court

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State Crime – People of the state of CA vs. “Person”

→ Chief Prosecutor Attorney General of State-Elected Position-Heads “Cal Dept. of Justice”

→ District Attorney (for each county)-Elected position-Prosecutes state criminal law violations

occurring within the county

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Criminal vs. Civil Law Differences

Criminal Civil

Remedies: Remedies:

-Jail & or Fine -Damages,Injunction, Declaratory

Relief

Verdict Requirement: Verdict Requirement:

-Guilty or not guilty Liable for _________

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CRIMINAL CIVIL

4. Burden of Proof: 4. Burden of Proof:

-Beyond a reasonable doubt -Preponderance of the evidence

5.Jury Verdict Vote: 5.Jury Verdict Vote:

-Unanimous in Fed & Cal -Federal & CA three-fourths of jury

-Some states have less than unanimous for state crimes

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Role of Grand Jury

Grand jury decides to prosecute a criminal law case indictment

Cases taken to grand jury – government official, government corruption cases, securities fraud, antitrust cases, etc.

Grand Jury Proceedings-no right to have a counsel present

Investigative Powers of Grand Jury

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Role of Grand Jury – cond’t

-Indictment based on Grand Jury’s Findings that probable cause exists when:

1. A crime was committed and

2. That indicted “person” committed the crime

-Judicial Role in grand juries:

*appointment of juries

*oversight role

-Most criminal prosecutions are brought without grand jury involvement

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Predicates to Litigation (civil)*Choosing an attorney – check insurer, bar association, ask

other attorneys in the same specialty*Methods of Payment

a. Salary – for employed (government and in-house counsel)b. Hourly Ratec. Contingency Fee (% of recovery civil litigation – plaintiff’s attorney)d. Per Project Fee Flat Fee (simple will, uncontested divorce, simple bankruptcy)e. Counsel on Retainer – Attorney takes calls and discuss issues. Corporations have law firms on retainer (especially with specialty) Prearranged

Attorney’s hourly rate based on – Experience, Reputation, Specialty, Size of Firm, Location of Firm, Costs

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7 Stages of Civil Litigation

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1. Civil Pleadingsa) Complaint

i. Identifies the attorney for the plaintiffii. Identifies Plaintiff

iii. Identifies Defendant vi. Legal theories – cause of actions v. Short story by plaintiff – what happened (factual act) vi. Remedies Soughtb) Responses to Complaints –

1. Do nothing (default)2. Or pay what is asked (set a release of all claims)3. Motion to dismiss – even if facts alleged are true;

there is no legal theory or argument upon which to bring suit. Granted, case can be thrown out in full or in

part.4. Answers – responsive pleading to the complaint,

admits or denies factual allegations in the Complaint; sets forth affirmative defenses. Counterclaim – defendant suing plaintiff for different legal theory

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2. Civil Discovery – can take to a year or more

a) Purpose – to discover facts of case and to uncover evidence for the use in a trial

b) Techniquesi. Deposition – sworn testimony, anyone with relevant information can be disposed (Court stenographer licensed by court, deliver an oath, records testimony)ii. Interrogatory - written questions & written responses

under oath-detailed answers & research information, good for data requestsiii. Document – request demand for document (relevant to

case)iv. Subpoena – documents or things from 3rd partiesv. Court order medical examination by other side’s physician

c) Results of Discoveryi. Strength & weakness of caseii. Promotes Settlement

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3. Summary Judgment – Motion by one or both sides to the Judge for a decision

a) Criteria – No material facts in disputeb) Results – Judge applies the law-grant in total,

part or none of it

All motions include at least:1. Motion2. Opposition by opposing side3. Reply by moving party to opposition

Pleading (can take about 6 months)Discovery (can take up to 2 years)Summary Judgment (can take up to 3 months)

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4. Settlement Conference –

Mandatory conference – requires attorneys for each side to meet to see if they can settle the case

5. Pre-trial (can take between 3 to 6 months) –

Briefing – Script of the trial – For the Judge Exchange of Witness List Evidence – No surprises to occur at trial

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6. Trial – To determine the facts(basically the same for civil & criminal cases)

a) Jury Selection – “Voir Dire” - Un-cover juror bias

-Challenge for cause

-Preemptory challenge

12 jurors plus 2 alternates (alternates do everything but deliberate)

After jurors selected they are sworn in

b) Opening Statements - Each side gives an overview of the case, the attorneys tell you what they want you to know, can vary in length

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6. Trial – continued c) Plaintiff’s case in chief

1. Direct Exam – Attorney call witnesses – they give testimony & lay foundation for evidence to be admitted2. Cross Exam – Other attorney gets to question the witness, cast doubt to the truthfulness & validity of the witness3. Redirect – Attorney that called the witness gets

to ask questions, to clarify answers that were elicited during cross exam4. Recross – other attorney gets to question the witness again and cast doubt

Defendant’s motion for directed verdict if plaintiff has not proven all elements (components) of his/her theories and therefore can not win

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6. Trial – continued

d) Defendant’s case

e) Rebuttal

f) Sur Rebuttal

g) Closing Arguments – Each Attorney makes their story cohesive for the jurors

h) Jury Instructions – Attorney for each side

submit proposed instructions to the Judge:

Judge decides what to use based on the law

Judge reads the instructions and tells the jury what the law is (elements & defenses & burden of

proof) that pertains to the case

Jury instructions can vary in length

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6. Trial – continued

i) Jury Deliberations - Elect a foreperson (moderator) – that person can contact the court through the bailiff, go over testimony, take a vote & come to a verdict

In CA the court clerk reads the verdict

The losing side can ask to have the jurors polled

j) Motion for a judgment not withstanding the verdict – (ask the judge to overturn the jury’s decision; the jury’s verdict is not based on the trial evidence; very rare only about 5% of the time)

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7. Appeal –

Request in the form of a petition by losing party to have an appellate court review the case: asserts the Trial court Judge made a material (significant) mistake of the law, which could have changed the outcome of the case

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Most persuasive reason why Court of Appeals accepts a case for review:

• Criteria – 2 lower courts under the courts of appeals’ jurisdiction came to different conclusions on the same legal issue; or Important legal issues are likely to arise again

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Appellate Procedure

• Court of Appeals will receive trail court materials, transcripts in order to review the case

• Briefs by each of the attorneys are prepared and submitted to the court

• Briefing schedule

• No witnesses present and no testimony

• Oral Arguments (in front of 3 justices) ½ hour for each side– Purpose – Ask attorneys questions about the legal issue and its

application in other scenarios

– Convince other justices to vote their way

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Possible Results – 1. Affirm – no material mistake made by trial court

Judge at trial (most common)

2. Reverse – Material mistake of law by trial court Judge @ trial; case should have been decided for the other side; overturn decision (least common)

3. Reversed & Remand – Material mistake of law by trial court Judge @ trial; Appellate court can’t tell how the trial would have turned out if the law had been applied properly; appellate court sends the case back to be tried again (2nd most common)

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The Adversary System• England and former English colonies (including US) legal

systems based on the adversary system• Purpose To do justice; both sides of the case are argued as

well as possible, then get a ruling• Role of Judge

-w/ Jury – Instruct jury on the law; rule on evidence and procedure motions; passive role (i.e. does not ask questions)-w/o Jury – Rule on evidence & procedure; listen to testimony; determine the facts and apply the law

• Role of Trial Counsel - Role is to win by presenting the facts in a way that is favorable to the client

• Role of Jury – Evaluate evidence; determine facts based on evidence; apply law as given by the Judge (fact finder)

• Role of Appellate Court – Determines if the trial court made a material mistake of law that could have changed the outcome of the case

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Alternative Dispute Mechanisms(ADR)

1. Medication (Synonym is Facilitation)

-Attempt to facilitate an agreement between the parties; Any person, the parties, or counselor agree on, can be a mediator

Advantages – listen to both sides separately; Spend time w/ both sides; less expensive. Usually involves compromise by both sides

Disadvantage - Not binding unless & until the parties both agree with the settlement (a contract to settle the dispute)

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Alternative Dispute Mechanisms(ADR)

2. Arbitration

-Selection of Arbitrator – Any person, the parties or their representatives agrees upon to act as an arbitrator

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• Arbitration Process – a decision results-Selection of Arbitrator – Lawyers, Retired Judges, Experts in the industry or field-Procedural Rules - Whatever the parties agree on; or what the arbitrator decides if the parties can’t agree-Substantive Law – Whatever the parties agree on, or what the arbitrator decides if the parties can’t agree-Cost & Fees – It depends on what the parties agreed upon; (usually losing side pays) but there are fees for arbitrator, space, etc.-Appeal – NONE (parties took case out of the legal system)

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• Arbitration Process – continued -NO Jury-Enforcement of Decision – File a civil law suit

for the breach of contract-Public Press excluded unless parties agree-Punitive Damages – No-Quicker than civil litigation-Usually represented by counsel (present facts

favorable to their client)-Everyday examples of agreements to arbitrate

Medical care allegations of malpracticeAuto WarrantyBrokerage Account

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Court Structure1. Federal Court System (See text)

a) 3 levelsi. Supreme Courtii. Court of Appeals 1. 13 Courts of Appeals (12 based

geographically – Circuit Court of Appeal, 1 Federal Circuit – Patents & Copyrights (specialized)

a) Congress decides how many courts to have by number of cases

iii. Trial Courts

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Court Structure Continued

2. Typical State Court System3. California State Court System (see handouts)

a) 3 levelsi. Supreme Court (7 justices)ii. 6 Courts of Appeals (geographic)iii. Superior & Municipal Courts

1. LA County & most others – has merged the Superior & Municipal Courts

2. Specialized Divisions (Appeals, Probate, Domestic Relations, Juvenile Court, Adoptions, Psychiatric)

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California Small Claim’s Court

• Known in the past as The People’s Court• No attorneys allowed – Judge is the fact

finder and administer the law• $5000 dollar maximum• Business suing customers who haven’t paid

them are the most common plaintiffs• Small monetary matters (Tort or Contract

law)

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California Small Claims Court

• Advantages

1. Cheap

2. Quick

3. No Attorney (but should consult with one prior to appearing at court)

• Disadvantages (defendant)

1. No Jury2. No Counsel – but

defendant can appeal decision

• Disadvantages (plaintiff)

1. NO appeal of the decision by the judge in favor of the defendant

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Federal Court Jurisdiction

1. Original Jurisdiction of the U.S.S.C. – State v. State; Ambassadors

2. Area of Exclusive Federal Jurisdiction

a) Bankruptcy, b) Patent, c) Copyright, d) Maritime, e) Admiralty, f) Federal Antitrust, g) Federal Civil Rights

3. Federal Questions Case – Plaintiff’s theory based on Federal Law, Statute or Regulation

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Federal Court Jurisdiction continued4. Diversity of Citizenship

a) Definition of Diversity – No plaintiff is a citizen of a state as any defendant in a litigation case

i. Corporations can have dual citizenship – (1) State in which they are incorporated and (2) Principal place of business – where there is the most assets & employeesb) Historical Basis - Avoids Basis in favor of citizens of a particular state against others from another state

5. Removal from State to Federal Court – Removal Jurisdiction – Defendant can remove a case from State court to Federal Court if the case could be filed by plaintiff in Federal Court initially

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The Lawyer as “Counselor”

1. Legal risk evaluation & legal opinions

2. Advice for restructuring the transaction or plan, to reduce legal risk

*Higher hourly rate due to specialization and expertise of the lawyers

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The Importance of Confidences

• Attorney Client Privilege

-Attorney cannot disclose contents of communication they have with clients when client is seeking legal advice

• Attorney Work Privilege

-No discovery access to attorney’s notes or files (work material)

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ETHICS

The Country’s laws reflect its ethics

Ethics, like law, is a dynamic phenomena

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Lawful but some would say unethical –

Slavery (historical); abortion during first trimester; animal & plant cloning; stopping artificial life support for a brain dead individual

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Unlawful but some would say ethical examples –

Underground railroad (helped slaves to get to the North (historical); Blacks sitting in “white only” area in a restaurant before Civil Rights Act of 1964 (historical); Robin Hood – taking money from the rich and giving it to the poor; physician assisted suicide