Law School in Minutes

This is dedicated to my son, Sami

INTRODUCTION

Law school isn’t as difficult as many people think. I worked hard and graduated near the top of my class. My explanation is that I “got it” faster than many of my classmates. By third year we had all gotten it; each better at certain skills than we were at others. As the late Professor John Gaubautz said “the first year we scare you, the second year we bore you to death, and the third year we bore you to death.” I call it “the soapbox year” as many professors taught classes that were of great interest to them, but many of these courses are of little use in real practice.

I am not claiming that you’ll be prepared to sit for a bar exam in just an hour, because it takes thousands of hours to get to that point. I wish had something like this piece before I went to law school. But even if you don’t intend to go to law school, I hope you will find this bird’s eye of a view of the skeleton of America’s legal system.

BODIES OF LAW. Where do laws come from? How are they organized? Simply put, there are six major bodies of law, each with their own set of rules and laws.

LAW. Although it seems like an odd name, it is the most important body. Law consists of statutes written by Congress, State Legislatures, and local governments. They promulgate laws on a wide variety of subjects.

COMMON LAW. This body of law originated in England and made its way across the Atlantic. It is judge-made law. If there comes a case that across their bench and they feel a new law should be made regarding the subject matter of the case, they do so. The judge perceives a gap in the and creates one. These laws have precedent across their jurisdiction. Some complain about common law, but it is a key part of our Anglo-American system. Almost all states have common law, with notable exception of Louisiana, whose system is based on the French civil LAW tradition.

EQUITY. Like common law, equity originated in England. Basically, it is a body law, when judge presides over a case that doesn’t fall under a statute. But the judge looks the facts the case and thinks “that really isn’t fair, and the plaintiff deserve to win.” These cases are “one-offs” and have no precedential value.

ADMIRALTY. This body of law has a very international flair. It is the law of “navigable waters,” which means any body of water where a boat reaches the ocean. Admiralty applies to the Mississippi River, but not to a landlocked pond. Shipowners and seamen (don’t laugh – it’s a legal term) like the legal protection unique to their trade, because their needs are different than those on land. So, if a ship navigates to another country’s waters and the boat gets damaged, or a visiting seaman gets injured, there’s a reasonably good chance of having a claim. The guts of admiralty are having relatively stable rule around the globe, 15 miles out to sea by international agreement. Open ocean is not covered.

ADMINISTRATIVE. This the land of the minutiae. Legislatures like Congress and state legislatures paint laws in broad brush strokes, and ask the agencies to fill in the blanks. For example, Congress said “we want comprehensive national retirement system, make it so. Thus, the Social Security Administration was born, with Congress giving the basic goal, and giving thousands of administrators to promulgate legally enforceable rules and regulations. The Food and Drug Administration, as well as the many fish and wildlife agencies across the nation. By and large, the legislators leave them alone to fill in the multitude of blanks.

INTERNATIONAL. Created at the United Nations, most countries are member state. The General Assembly votes on just about any issue around the world. It is a controversial body, and many question whether it is law at all. Two common complaints are: 1) why I care about what leaders from other countries say, and 2) the Assembly has little if any enforcement mechanisms, so is there any such thing as international law? One example of international law is global whaling regulations. However, sushi-happy Japan’s whaling fleet regularly harvests vastly more whales than allowed under the treaty’s regulations, claiming the “scientific study” exemption.

JUDICIAL SYSTEM. This where legal disputes are resolved. The typical for both federal and state courts is vertical, with entry point being the base, appeals courts being in the final arbiter. Thus, it looks like this (I organized the bottom-up to symbolize both a tree and the way trial courts are the foundation, the middle is the trunk, and the highest, the lofty leaves):

District Courts, also known as trial courts, are the base of the judicial tree, and are the entry point to the judicial system. This is where you file your lawsuit, and criminal matters are taken.

Appeals Courts, which is where you take your case if you think the trial court messed up, and would like the decision reversed. If you lose and are unhappy, you can ask the supreme court to consider your case.

Supreme Courts, which are the courts of last resort. If the decision doesn’t go your way, you’re out of luck because there are no higher branches to climb. The exception is New York which calls their trial court the Supreme Court.

JURISDICTION comes in three flavors and all three must be met or

the case will be dismissed.

Subject matter jurisdiction is, as aptly named, named, deals with the subject matter of the case. In other words, does the court have authority to hear the case?

Personal Jurisdiction asks the question: is this the right place to hear this matter?” This looks out for the defendant. So, if a Nebraska citizen buys a product online from a Rhode Island is dissatisfied with the product, can the Rhode Island company be sued in Nebraska?

Venue asks whether this particular court is the right place to hear the case. So, if the dispute occurred on the north end of Des Moines, where there is a court, and the case is filed in a court in south Des Moines, is the south court the proper place for the case?

TYPES OF TRIALS. How is the dispute to be decided? Jury trials have a

jury of your peers, which is anywhere from 6-12 people. Bench trials have the judge who is presiding over the case decide the matter.

PROCEDURE. Procedure specifies the rules of how a matter is to proceed in court, such as filing deadlines, acceptable fonts (yes, they really do this!) for electronic filings, permissible ways to file a lawsuit, what is acceptable service of process, the rules for discovery (what all you can ask the other party for), and many other such things. There are Rules of Civil Procedure and Rules of Criminal Procedure.

BURDEN OF PROOF. How convinced do those who decide the case have it to be to resolve the matter? In criminal cases it is “beyond a reasonable doubt.” My evidence professor described this as being 99.9% certain the defendant is guilty, and thus, convicted. The entire jury must agree on guilt and if they can’t achieve unanimity, there is a “hung jury,” and a retrial will be ordered. In civil cases (private party or the state, versus another party) it is more likely true than not. She described it as being 50.1% certain who the prevailing party should be, which party made the better case – a much lower bar to hurdle. So, in the famous O.J. Simpson matter, the court found him innocent. However, in the civil case, with the lower bar, his deceased wife’s family was awarded $330,000,00.00 dollars.

Movies and television put captions on the bottom but in law the caption is at the top. You can glean a lot about the nature of the case by reading the caption at the top. For example, if the caption reads “STATE v JOHNSON,” you may have either a criminal matter, as private parties cannot cannot prosecute civil cases; only the state can. So, if the caption reads “WATSON v. BOB’S TACO STAND,” it is a civil case.

DAMAGES. How much can the victor get if they prevail in trial? Here some examples, but there are others. This applies to civil cases.

Monetary, meaning $$$$, which is by far the most common type of award.

Punitive, which is punishment damage. Although not frequently awarded, it is handed out to a party who behaved heinously during the events that led to the case. This means extra money because of trauma, difficult defendants, and other reasons.

Fees. This is typically attorneys’ fees and costs.

Emotional. This is for emotional harm done to the plaintiff. This award is rarely given. One example would be if the husband drained his wife’s assets and gave most of it his girlfriend, and when his wife found out, she was so devastated she ended up in therapy.

Quantum Meruit. This is for partially finished work. For example, a builder gets fired when the house was halfway done. The homeowner refuses to pay anything. The award is for his time and materials,

Nominal. This for when there has been a breach, but now harm was done. A judge may award as small amount, such as $5 to the plaintiff.

Special. Damages that are not part of the breach, but naturally flow from the breach.

If you are planning to go to law school, I hope and this helps in some small way, and best of luck! If that is not your plan, I hope you found this piece interesting and educational.

Ted Lacksonen graduated Summa Cum Laude from the University School of Law