Exam 1 Notes

Week 2: Jurisdiction and Parties

2.1 Intro to the Study of Law

2.1 Basic Goals of the Class

1. To give you a broad understanding of the American legal system and the role of the paralegal/legal assistant, including important ethical principles.

2. To help you develop job-ready paralegal skills, including critical thinking, legal analysis, legal research and writing, interviewing, investigation, and case management.

3. To provide you with the foundational skills and knowledge needed to succeed in other Legal Assistant/Paralegal courses at EVC.

2.2 Facts and Legal Rules

1. Facts are very important in the legal field. Legal employers are looking for paralegals who can understand the facts of a given case or client situation (e.g., what happened, who was involved, what color was the car, etc.). Each case and each client are unique, and even a small detail in a case can determine its outcome. We always start with the facts.

2. Because the law is so complex and dependent on the unique facts of each case, an attorney may not know the law that applies in a given case. Therefore, paralegals and attorneys often need to conduct legal research to improve their legal knowledge and find the appropriate legal rules that govern a client’s situation.

3. Paralegals often conduct legal research. To succeed in the legal field, you will need to become very good at finding the law. This class will provide you with a basic introduction to Legal Research, but to succeed in the legal world, you will need a more in-depth knowledge of legal research sources and how to find and use them.
1. Please consider taking our Legal Research & Writing classes (LA 71 and 72) after finishing this course. 

2.3 Applying Legal Rules to the Facts of a Client’s Problem

1. After conducting legal research, you will hopefully have some legal rules (from statute law, court cases, etc.) which seem relevant to your client’s problem. But knowing the legal rules is not enough because each client’s situation is unique. The process of applying legal rules to the facts of a client’s problem is called legal analysis.

2. Our legal system is based on the principle of stare decisis, which literally means “the decision stands.”
1. Once a court has decided an issue in a particular way in the past, the same court and other courts in the same jurisdiction (legal region, such as a state) will decide the issue similarly, unless they can be convinced of the need for a change in the law (rarely).

3. Previous court decisions are known as precedent.
1. In order to find out how similar situations have been handled in the past, attorneys and paralegals look to past court decisions.
2. If a case with a similar set of facts and a similar issue was decided in a given way, we know that a court is likely to apply that case as precedent.

2.4 Videos

• About Paralegal Careers: Is a Paralegal Career Right for You?

• About Litigation Paralegals (Most Popular Option): Litigation Paralegal

• Conversations with a Paralegal: https://www.youtube.com/watch?NR=1&feature=endscreen&v=khsjN2kyWNQ&ab_channel=YouthForward

• Intro to Law Schools: Law School Videos - Introduction to Law School

• Conversation w/Corporate Lawyer: Corporate Law 101

• Freelance Paralegal: https://www.youtube.com/watch?v=uB13yteR0Ec&feature=related

• Legal Document Assistance Firm: ASAP Legal Inc

• Paralegal Services (FL): https://www.youtube.com/watch?v=hTPxvPSUcc&feature=related&ab_channel=DiegoGutierrez

Week 3: Types of Law

3.1 Sources of Law

Concrete Sources of Law

1. The Constitution: The U.S. Constitution provides the framework for our system of government and law. Important elements of our Constitutional system:
1. Federalism: Under our system, the federal government is the central authority, but many powers are reserved to the individual states. Federal law applies throughout the United States and there are federal district courts in every state, but each state also has its own government, court system and body of laws. States also have their own constitutions!
2. Separation of powers: The constitution provides for a separation of federal powers into three branches. What are these three branches?
1. The Legislative (makes laws) branch passes proposed laws, called statutes. These can be signed into law by the president/governor in
2. The Executive branch, where administrative agencies then implement/enforce the new laws through administrative rules and regulations.
3. The Judicial branch may exercise judicial review, which gives courts the power to review statutes and decide whether they conform to constitutional principles.
3. Protection of civil rights and liberties:
• The first ten amendments to the Constitution are called the Bill of Rights.
• Together with the 13th and 14th Amendments (which were added during the Civil War), they prevent the state and federal governments from interfering with our civil rights and liberties.
4. Supreme law of the land: The Constitution is an ultimate source of law. All other federal and state laws are only valid if they are consistent with the principles laid down in the Constitution.
5. Who is boss? In the case of Marbury v. Madison, 5 U.S. 137 (1803), the United States Supreme Court decided that it was the ultimate authority on what is, or is not, “constitutional.”
1. If the Court determines that a statute or regulation by another branch of government does not conform to the Constitution, it has the power to invalidate (cancel, strike down) that provision or action.

2. Statutes: Laws enacted by the U.S. Congress or a state legislature. Most “laws” come from statutes. Statutes are a major source of law at both the federal and state levels.

3. Administrative law: Rules, regulations, and other law created by administrative agencies. Some examples of federal or state agencies include the IRS, EPA, Department of Homeland Security, and Department of Labor.

4. Courts can interpret constitutions and the laws created by legislatures and agencies. In addition, courts can also apply and interpret the common law when there is no statute, administrative regulation, or constitutional provision governing a particular case.

Classifying the Law: What kind of law or legal problem is involved in Your Client's Case?

(1) Am I dealing with Federal, State, or Local Law?

(2) Civil v. Criminal Laws

1. Civil Law is invoked when one individual harms another. It generally involves monetary damages as compensation.

2. Criminal Law involves harm against society. When an individual violates the criminal law, society holds him/her accountable for breaking society's code. That usually means imprisonment or other punishment.

3. Key differences between Civil and Criminal Law.

ㅤ	Civil	Criminal
Type of Harm	To individual	To society
Names of parties	Plaintiff v. Defendant	Government v. Defendant
Standard of Proof	Plaintiff must meet preponderance of evidence standard. (”There was more than a 50% chance that Defendant’s actions caused Plaintiff harm.)	Prosecutor has burden of proof beyond a reasonable doubt
Judgment	Liable/Not Liable	Guilty/Not Guilty
Penalties/Remedies	$$$ or injunction (forcing Defendant to take some action or stop doing something)	Restriction (Probation, Jail, Death Penalty) or $$$ (fine)

Criminal Cases

1. Types of Crimes: Felonies or Misdemeanors
• Differentiating factors: Felonies are the more serious of the two and carry a possible penalty sentence of one year or more in jail whereas a misdemeanor is less than one year. Both can include one or a combination of the following: Fines, Probation, Jail
• Examples of felonies are murder, rape, armed robbery, and aggravated assault.

2. Elements of a Crime. Each crime includes specific elements which must be proven for the defendant to be convicted.
1. Crimes include the element of bad intent and elements to describe the bad behavior (action). EXAMPLE: In California, a defendant commits the crime of theft by larceny when he/she: 1) takes possession (2) of personal property (3) owned or possessed by another, (4) by means of trespass and (5) with the intent to steal the property, and (6) carries the property away.

3. The Prosecution’s Case. In order for the case to go to the jury, the prosecution must present enough evidence on each element of the crime for the case to go to the jury. This is called establishing a prima facie case. The prima facie case must be good enough that if the defense presented no case, there would be enough evidence to convict the defendant. If the prosecution does not present a prima facie case, the judge must issue a not guilty verdict even before the defense presents its case.

4. Defenses. Once the prosecution presents a prima facie case, the defense may present evidence that either (a) contradicts the prosecution’s evidence or (b) establishes a legally recognized justification or negation (e.g. self-defense or insanity). Such justifications are known as defenses and they either justify the crime or explain an element of it.
1. EXAMPLE 1: The prosecution has proven that Amanda killed her ex-boyfriend, and the defense side cannot disprove this based on the evidence. But if the defense can show that Amanda acted in self-defense, then she may be acquitted of the crime with a finding of not guilty. This is called an affirmative defense because Amanda is admitting guilt but saying she had no choice.
2. EXAMPLE 2: Brian is charged with the crime of theft by larceny (see elements above). He will argue that he drank a bottle of tequila before committing the act in question. Is this a good defense? Probably not, since most jurors may not buy it. But if this guy was so drunk that he doesn't remember anything, and could not possibly have taken a conscious action, doesn't that knock out the "intent" element? Theoretically, it could. If you doubt this, then try running a Google search for "twinkie defense". Your instructor once met the District Attorney who lost the Dan White case. Losing to the "twinkie defense" certainly ruined that guy's political career. Lesson? You can't take improbable defenses for granted; once in a while, they actually work!

3.2 Major Areas of Criminal and Civil Law

Major Areas of Criminal Law

1. Felonies: Criminal law is broadly separated into the most serious crimes (felonies) and the less serious crimes (misdemeanors). The crimes classified as felonies generally involve harm (or serious threat of harm) to persons. Homicide crimes include murder (willful, manslaughter, and negligent homicide. Other crimes against persons include assault, battery, kidnapping, rape, robbery, etc.

2. Misdemeanors: Less serious than felonies, but more serious than infractions (e.g. a speeding ticket is a common infraction). Misdemeanors often involve crimes to property or disturbances. Examples can include petty theft, prostitution/solicitation, disorderly conduct, simple assault, and simple drug possession.

3. Criminal procedure

4. Researching crimes and punishments in California: The following list shows the most common sections of the California Penal Code (by section #). An up-to-date version of the California Penal Code is available at: http://www.leginfo.ca.gov (Links to an external site.) (Click the “California Law” button, check the “Penal Code” checkbox and click “Search”).
 

→ Penal Codes (PCs):

148 - Resisting/obstructing a police officer
187 - Murder
192 - Manslaughter
207 - Kidnapping
211 - Robbery
215 - Carjacking
236-237 - False imprisonment
240 - Assault
245 - Assault with a deadly weapon
242 - Battery
261 - Rape
280 - Child abduction
285 - Incest
288 - Child molestation
314 - Indecent exposure
415 - Disturbing the peace/mutual combat
417 - Brandishing a firearm
422 - Criminal threats
451 - Arson
459 - Burglary
470 - Forgery
484 - Theft or larceny
487 - Grand theft
488 - Petty theft
496 - Receiving stolen property
5150 - Involuntary psychiatric hold
503-515 - Embezzlement
518-527 - Extortion
528-539 - False impersonation and cheats
594 - Malicious mischief/vandalism
597 - Animal cruelty
602 - Trespassing
647(b) - Prostitution
647(f) - Public drunkenness or public intoxication
664 - Attempt (usually charged together with one of the above)

Major Areas of Civil Law

→ Tort Law

1. Tort law deals with common law harm to a person or a person’s property. A tort is defined as a private wrong (other than a breach of contract) in which a person is harmed because of another’s failure to carry out a legal duty. The wrongdoer is also known as a tortfeasor.

2. Types of Torts: intentional torts, negligence, and strict liability.
1. Intentional Torts occur when someone intentionally harms a person or that person’s property. EXAMPLE: Battery is the (i) intentional, (ii) harmful or offensive (iii) physical contact (iv) by one person with another person. Other examples of intentional torts can include assault, false imprisonment, intentional infliction of emotional distress, and misrepresentation (fraud).
2. Negligence is much more common. Negligence is the failure to act as a reasonable person would act under the circumstances. The basic elements of negligence are: (i) the defendant owed the plaintiff a duty of care, (ii) the defendant breached that duty, and (iii) the breach caused (iv) the plaintiff harm. EXAMPLE: Customer A breaks a glass bottle on the floor of a grocery store. He reports it to Owner, who does not clean it up. An hour later, Customer B trips and falls on the glass, breaking her leg.  If Customer B sues Owner under a theory of negligence, Owner will likely be liable.
3. Strict Liability is a narrower category of torts, and it applies only to persons or corporations who are engaged in inherently dangerous activities. Under SL, a tortfeasor can be liable for harm from these activities even if their actions were reasonable and they did not intend to harm anyone. EXAMPLES: Truck carrying explosives, man who keeps a “pet” bear in his yard, defective products.

→ Contracts

• A contract is an agreement between persons which obliges each party to do or not do a certain thing.

• Consideration is not always required for a valid contract today, but under traditional common law, it consists of some right, interest, or profit to one side, or a loss, detriment, or responsibility undertaken by the other.

• Without consideration, some would-be contracts can be construed as a gift.

• Contract disputes can arise when one party breaches its promise.
• EXAMPLE: I agree to sell you my computer for $500, and we agree to make the exchange next Friday. We have an enforceable contract.

→ Property

1. Property law deals with ownership and control of real property (land, buildings, and objects attached to it) and personal property (all other property, such as cars, jewelry, and furniture). A big area of property law concerns the transfer of real property, generally known as real estate. Some major issues in property law involve property ownership, rental, financing, and transfer (as a sale, gift, inheritance, or through other legal methods of acquisition). A separate specialty area of civil law involves intellectual property, which is concerned with the protection of patents, trademarks, copyrights, and trade secrets.

2. Specialty Areas of Civil Law (a few examples—in real life, there are many more!)
1. Personal Injury and Products Liability Law: This is a huge area of law, closely connected with Torts. Personal Injury Law can include everything from slip-and-fall cases to huge, class-action toxic exposure or construction defect cases. Products liability law involves using tort law and consumer laws to hold manufacturers and sellers accountable for dangerously defective products. This is the field where large punitive damages awards (multi-million-dollar jury verdicts and settlements) are most likely.
2. Business Organizations/Corporate Law: Law firms often provide assistance to people who are starting new businesses. Lawyers can help people decide the proper type of organizations to incorporate and form: sole proprietorship, partnership, limited liability corporation (LLC) or partnership (LLP), corporation, etc. Corporate law is also concerned with the governance of a corporation, including stock offerings, board of directors and shareholder issues, mergers and acquisitions, and SEC compliance.
3. Employment Law: Most employees are considered to be “at will” in that they can end their employment (quit or be fired) at any time, for almost any reason. Employees have a great deal of legal protections, however, including worker’s compensation, antidiscrimination statutes, and workplace health and safety laws. Employment procedures, benefits administration, compliance with many regulations, and frequent complaints make this a big area of legal work.
4. Family Law: Domestic relations law includes laws governing marriage, annulment, separation, divorce, paternity, adoption, guardianship, custody, support, childcare, abuse, and neglect. In California, we have community property laws and a relatively high divorce rate, so all of the property division and custody cases involve plenty of ongoing work. The issues involved in this field can be especially emotional and contentious.
5. Real Estate Law: See Property Law above for a description. EVC offers one class (LA 36) which combines Property Law + Real Estate Law. A good understanding of property law is an absolute key for success in many fields of law, including Family Law, Real Estate Law, Intellectual Property Law, and Immigration Law.
6. Wills, Trusts, and Estates (Probate and Estate Planning): Death and taxes never go away, ensuring plenty of ongoing work in this field. An estate is a property of some kind which a person owns at his/her death. Probate is the court-supervised process of distributing the estate to heirs or beneficiaries (either by will or by intestate succession). Estate planning involves some planning during one’s life (taking advantage of trusts and other non-probate instruments) to ensure that the person’s property is distributed according to his/her wishes, and that taxes/expenses are minimized.

3.3 Federal of State Law

• Once we know what type of law is involved in a client's case, we need to determine whether it falls within federal or state law. These are different bodies of rules. There also are two separate court systems in play.

• It is not always clear which types of law are federal and which are state. Even experienced attorneys and paralegals have issues and cases that may overlap or contain both. We can start with a few clear guidelines. But from there, all I can say is that you get better over time at knowing and remembering which areas are purely federal, purely state, or involve a combination of both federal and state law.

• We need to look at the U.S. Constitution to understand the basic guidelines here. First, there is a Supremacy Clause, which states that if there is any conflict of law, federal law generally prevails. Second, there is the 10th Amendment, which states that any power NOT granted to the federal government is left to the states "and to the people." I have never really seen that last part used, so the 10th Amendment basically stands for the idea that it's a process of elimination.

• Look at the Constitution. What does it say about federal power? Then look at which areas, historically, the federal government tends to regulate. Those will probably be dealt with under federal law and enforced in federal courts. By process of elimination, other areas are left to the states.

• Article I, Section 8 of the Constitution is very explicit about which powers are granted to Congress (and we understand these as being federal powers). Please take a look at Article I, Section 8 here: https://constitution.congress.gov/browse/article-1/section-8/ (Links to an external site.). What do you see? The power to lay and collect taxes, pay the debts and provide for the common defense and general welfare. That's the taxing and spending powers and the power to support the military. Further on down, we see it mention naturalization, bankruptcy, coining money, punishing counterfeiting, enforcing rights for inventors and authors, and more. So that's the immigration and naturalization power, it's the Treasury Department and power over banking and money, and it's the establishment of intellectual property rights and enforcement there.

• Article I, Section 8 gives us a lot from these express powers, but it's not all that the federal government does. There are other things not mentioned there, some of which (like Labor Law or Environmental Law) are simply responsibilities for regulation that the federal government took on over a period of time. But those express powers are the only real official list that we have.

• So, then we think about which areas of policy and law, historically, states have handled. Under the 10th Amendment, states have claimed broad police powers, so they handle most criminal law also. There is very little federal criminal law, usually around baking or drugs or weapons. States handle the rest. States also handle property law, family law, contracts, and issues relating to local governments (which are technically subdivisions of the state), so that includes most land use, schools, sales and property tax, etc. That's why most of those things can be different from one state to another.

• And then there are areas like two I mentioned above there (Labor and Environmental Law), which have both federal and state components, both of which have grown over the years. Yes, that can get confusing. Basically, if the feds are passing laws and regulating, the the states are supposed to stay out of it, but the states CAN enact some different regulations and protections that SUPPLEMENT the federal law (e.g. add something it doesn't have or make it stronger), as long as they DO NOT conflict with it (e.g. weaken its protections). In the event of a conflict, federal law usually prevails.

3.4 LA Patent Basics, Day in the Life Videos & Fields of Study Link

Week 4: Structure of the Court System

4.1 Overview

Learning Objectives

• Describe the basic units in the federal and state court systems

• Explain the roles of trial courts, courts of appeal, and supreme courts in federal and state systems

Overview

4.2 The Court System: Federal Courts

 

 

4.4 The Court System: Court Structure

The Structure of the Court System

→ Trial Courts v. Appellate Courts

1. Trial Courts are the courts where most cases begin. Parties who lose in the trial court usually have the right to appeal the case to an appellate court.

2. Appellate courts review the decisions of lower courts and decide whether errors of law have been made. The party who appeals a lower court decision to an appeals court is called the appellant (or the petitioner), while the party defending against this appeal is called the appellee (or the respondent).
1. Actions of appellate courts. An appellate court can:
1. affirm the lower court’s decision (agree with it and uphold it),
2. reverse it (overturn or negate it), and/or remand it (return it to the lower court for a new trial or further action).
2. A panel of appellate judges usually decides a case, and they do not always agree: when you read an appellate court opinion, you will often find that it contains both a majority opinion (which is the official opinion of the court) and a dissenting opinion (better known as a dissent). Some complex cases also include concurring opinions, which often agree with the majority’s result in the case but have different reasoning.

3. Jurisdiction: The power of a court to hear a particular case. Trial courts have original jurisdiction (they can hear new cases) while appellate courts have appellate jurisdiction (they can only hear appeals). Trial courts deal with questions of fact (the story of the case, who is involved, how the situation happened, etc.) as well as questions of law (interpretation of the law or application of the law). An appellate court will NOT reconsider the facts; it will only hear a case when a legal issue has been raised on appeal.

→ Federal and State Court Systems

1. U.S. District Courts (trial courts). There are more than 90 district courts based throughout the country + the specialized Court of International Trade and Court of Federal Claims. In San Jose and the Bay Area, our federal trial court is the U.S. District Court for the Northern District of California.
1. California also has a Central District, Southern District, and Eastern District. Within each district are separate bankruptcy judges who handle bankruptcy cases.

2. U.S. Court of Appeals (intermediate-level appellate courts). The country is divided geographically into 12 regional circuits + a Court of Appeals for the Federal Circuit (which has appellate jurisdiction over specific cases involving the federal agencies). California is part of the Ninth Circuit, which is the largest circuit in the country and covers much of the western United States from Arizona to Montana to Alaska to Guam. The U.S. Court of Appeals for the Ninth Circuit is based in San Francisco.

3. U.S. Supreme Court (highest court in the land). Nine justices hear all appeals as a group. Cases rarely make it up to the high court, because the court has discretion to choose cases that involve only the most important issues. Out of about 4,000 cases appealed to the U.S. Supreme Court each year, the justices usually choose less than 200 to review. For a case to be considered, four out of the nine justices must agree to hear it, and it then receives a writ of certiorari (which means the court will hear the appeal).

The Jurisdiction

→ Federal Courts

1. Federal Law: For any claim that involves a question of federal law, such as a statute, regulation, or provision of the U.S. Constitution -OR-

2. Diversity of citizenship: Cases with opposing litigants from different states, where the amount in controversy exceeds $75,000.

→ The State Courts

• Each state has its own system, and most of them are similar to the federal court system (trial court, intermediate appellate court, supreme court). However, some states split up the trial courts into courts with limited jurisdiction (e.g. traffic court, juvenile court, small claims court). And other states have two levels of intermediate appellate courts.

• California has three levels of courts:
1. Superior Courts (trial courts with general jurisdiction). California’s trial courts are based in each county, and these courts have jurisdiction for criminal and civil cases. Within each Superior Court, there may be divisions that handle specific types of cases (e.g., criminal, juvenile, traffic, small claims).
2. Courts of Appeal (intermediate appellate courts). California’s courts of appeal are divided into six geographic districts, and the 6th Appellate District is based in San Jose. Justices on the courts of appeal hear cases brought on appeal from trial courts in their regions.
3. Supreme Court of California (highest authority on CA law). The CA Supreme Court is the highest court in California, and it consists of seven justices. Its decisions are binding on all other state courts in California. The state Supreme Court has authority to review decisions of the Courts of Appeal and can exercise its discretion to review only the most important cases and issues.

• Appealing state cases to the U.S. Supreme Court. The U.S. Supreme Court will not decide issues of state law, but it can hear cases that have begun in state court. When cases in state court include issues of federal law, then the losing party can appeal the state Supreme Court’s decision (on the issues of federal law only) to the U.S. Supreme Court.

• Funny names. While California’s court structure is similar to the Federal model, be aware that other states can have different systems and different names for their courts.
• New York’s highest court is actually called the “Court of Appeals” while its intermediate appellate court is called the “Supreme Court.”
• Texas has two separate high courts, the “Court of Criminal Appeals” (for criminal cases) and the “Supreme Court” (for all other cases).
• Delaware (a small state where many corporations are legally incorporated) has a separate equity court called the “Court of Chancery,” which is one of the most respected business law courts in the country.

4.5 Overview of State Court System

🔗
Overview of State Court

The California Court System

In California, the courts are divided into two systems: federal and state. This section tells you about the state courts in California. California has two types of state courts:
• Trial Courts
• Appellate Courts

→ Trial Courts

Trial Courts are also called "Superior Courts." There are 58 Trial Courts--one in each county. In the Trial Courts, a judge, and sometimes a jury, hears testimony and evidence and decides a case by applying the law to the facts of the case. Superior Courts handle:

• All criminal cases (felonies, misdemeanors, and traffic tickets)

• All civil cases (family law, probate, juvenile, and other civil cases)

• Appeals of small claims cases and other civil cases worth $25,000 or less

• Appeals of misdemeanor cases

→ Courts of Appeal

The Courts of Appeal are California's intermediate courts of review. District headquarters for the Courts of Appeal are located in:

• First District: San Francisco

• Second District: Los Angeles

• Third District: Sacramento

• Fourth District: San Diego (Division One)

• Fifth District: Fresno

• Sixth District: San Jose

→ Appellate Courts

There are two types of Appellate Courts:

• Courts of Appeal

• California Supreme Court

There are 6 Courts of Appeal and one California Supreme Court.
People who are not satisfied with a Trial Court decision can appeal their case in an Appellate Court. When they "appeal", they ask a higher-level court to change what the Trial Court decided.
The role of the Courts of Appeal is not to give new trials, but to review the Superior Court record (court files and transcripts) to decide if legal errors were made. To do this, the Court of Appeals may hear arguments from each side. Each side gets a chance to make a presentation and to answer the judges' questions. The oral arguments are open to the public, but there are no juries or witnesses. The Courts of Appeal cannot review death penalty cases.
In each Court of Appeal, a panel of three judges, called "justices," decides appeals from Superior Courts. The Courts of Appeal can agree with the decision of the Trial Court, agree in part and disagree in part, or disagree and reverse the Trial judge's decision. The Courts’ decisions are called opinions. The opinions are public and are posted on the Supreme Court's website.
For more information about the Courts of Appeal and the cases they handle go to: www.courts.ca.gov/courts.htm.

How Civil Court works

If you file a Limited or Unlimited Jurisdiction case in Superior Court (this means your case is worth more than $25,000), there are 6 steps:
1. Prefiling
2. Filing
3. Discovery
4. Pretrial
5. Trial
6. Post-Trial
Prefiling starts when you get hurt. There are a lot of things to do to get ready before you file a lawsuit.
Filing starts when you fill out your papers to start a court action. After you file your papers, you have to wait for the other person to default or answer.
Discovery starts 30 days after the other person answers. This is when you and the other person exchange information and learn about the strengths and weaknesses of your case.
Pretrial starts about 90 days before your trial, if you are unable to settle your case, this is when you get ready for the trial. You must make decisions, like if you need an expert witness, and have settlement conferences with the judge.
Trial Your trial can last 1 day or many months. It depends on how complicated the case is.
Post-Trial means after the trial. You can appeal or collect your judgment.
Remember: The Court won’t make you hire a lawyer. But if you don’t, you have to deal with every part of your case by yourself. You have to know the laws and court procedures. If you don’t, you could get in trouble. You could lose your rights. The judge or the other person’s lawyer can’t help you.
You can find the court’s rules, laws, and procedures in:
• The California Code of Civil Procedure
• The California Rules of Court
• The Local Civil Rules of Court in Santa Clara County or in the county where you file your case (you should be able to access them at the local county law library).

Week 5: The Litigation Process and its Alternatives

5.1 Overview

Learning Objectives

• Outline the process of litigation through its basic stages

• Describe how Alternative Dispute Resolution (ADR) alternatives can prevent court litigation

Overview

• In most years, there are probably more paralegal jobs in Civil Litigation than in any other field. The modern rules of civil and criminal procedure ensure that cases are fully fleshed out before trial. A paralegal often serves as the point person on a case, keeping track of all of the documents and details from the time when the case if filed all the way through a potential settlement or trial and even a subsequent appeal. Since most people have been exposed to movies and TV shows about trials, my main focus here will be on the pre-trial stages of a case. Most of the work for litigation attorneys and paralegals these days is in these early parts of a case.

• You'll need to find and watch the movie A Civil Action (1998). This is a movie from a bestselling book, which was based upon a real case; the author was part of the plaintiff's legal team and observed every stage of the case. You only need to watch the first half of the movie for our class, since I want you to focus on the pre-trial stages of the case (but of course you are welcome to watch all of it on your own time). Amazon, Netflix, and YouTube have the movie to rent for around $3-$4. (You also might find a free version somewhere, but I cannot encourage any copyright infringement.)

• We'll look at trial alternatives in this module also. The whole court system would like to avoid trial, since it is time-consuming and expensive. So, the rules ensure that each party in the case gets the chance to develop its case fully AND has ample opportunity to learn about the other opposing party's case. Court alternatives, such as mediation and litigation, also exist and can be useful in the right situation.

5.2 Instructor Video & Litigation

The Pros & Cons of Litigation

Civil Procedure

1. The Rules of Civil Procedure: Civil Procedure in federal courts is governed by the
1. Federal Rules of Civil Procedure (FRCP). State court rules are very similar to the FRCP, though there are some differences in procedure at the state level.

2. Jurisdiction: Where to Sue?
The plaintiff’s attorney must decide which court should hear the case. Cases are brought in trial court, and the court that is chosen must have proper jurisdiction to hear the case. There are two kinds of jurisdiction that must be satisfied for a court to hear a case:
1. Subject Matter Jurisdiction: Does the subject matter in the case concern state and/or federal law? State trial courts have general jurisdiction (so they can hear many types of cases), but federal courts have very limited jurisdiction. They are limited to suits that involve: (1) a question of federal law, OR (2) disputes between opposing parties from different states where the amount in controversy is greater than $75,000.
2. Personal Jurisdiction: The court’s power to force (through subpoena, if necessary) a particular defendant to appear before it. Generally, state courts only have personal jurisdiction over defendants who are (1) residents of that state, or who have some (2) minimum contacts with the state (such as owning property, conducting business, or being involved in an accident there).

3. The Pretrial Stage
1. The Pleadings
1. The Pleadings are documents that each side files with the court to begin the litigation.
2. The plaintiff files the first pleadings document, known as the complaint. The complaint states the allegations that form the basis of the plaintiff’s case. (In criminal cases, the prosecution files an information, which sets forth the charges against the defendant.)
3. The defendant learns about the case when he/she is served with a copy of the complaint and the summons (notice of the suit, seeking a response). The defendant has a certain period of time in which to respond to the complaint and does so by filing an answer. The defendant may also file a counterclaim (claim against the plaintiff).
4. In more complex cases, where there are multiple plaintiffs or defendants, there may be other pleadings such as a cross-claim (a claim by one defendant against another def., or by one plaintiff against another pl.) or third-party claim (when a defendant files a claim against a third party who is/was not named by the plaintiff).
2. Pretrial Motions
There are a variety of possible motions that parties can file at various stages in the litigation. Two of the most important pre-trial motions are:
1. Motion to Dismiss
A motion by the defendant requesting that the court dismiss the complaint because the plaintiff has failed to state a valid claim upon which relief can be granted. The court will rule on this motion after examining the facts set forth in the plaintiff’s complaint.
2. Summary Judgment Motion (Rule 56)
A motion by one party requesting that the court grant judgment in favor of the moving party because there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The court can consider matter outside the complaint (e.g., evidence that is being developed in the pre-trial phase) in making its ruling on the motion.
3. Discovery
Once the defendant files an answer, each party can begin to find out more about the strength of the other side’s case through methods of discovery. Under the modern rules of civil procedure, discovery (and not the trial itself) is the most crucial phase of most lawsuits. Some methods of discovery that parties may use are:
1. Interrogatories: Written questions sent by one party to another party, seeking written answers in return. Parties are limited to a certain number of interrogatory questions (generally 25 or 30 under federal or state rules), and they may use these questions to help them locate potential witnesses, establish dates, determine a person’s medical or financial condition, and inquire about the existence of certain evidence.
2. Depositions are pre-trial questioning sessions of potential witnesses. Witnesses provide sworn testimony outside of the court, which is recorded by a court reporter. For example, if a physician has treated the plaintiff for injuries, the defendant may want to depose the physician to learn more about the extent of the plaintiff’s injuries.
3. Requests for Admissions are written documents that list statements about facts that need to be proven in the case. One party prepares them and requests that the other party admit or deny each of the statements (e.g., “Please admit that you owned a 2006 Toyota truck which was involved in a crash on July 14, 2010”). These are designed to clarify the facts in the case and allow parties to agree on certain facts that will not need to be established at trial.
4. Requests for Documents and Physical Examinations can be made through a number of different motions. They are usually designed to obtain copies of documents in the other party’s possession or to schedule a physical exam when a party’s health or injuries are at issue in the case.
5. Enforcing Discovery Rights: Parties have an obligation to respond to discovery requests. If one party is not cooperating, the other party can go to the judge and obtain a court order to force its opponent to comply. The court can also use certain sanctions against a party who fails to cooperate, such as prohibiting the use of certain evidence and dismissing some or all of a defendant’s lawsuit.
4. Pretrial Conference (or Settlement Conference)
Most cases settle before trial, and the discovery process encourages this by helping each side understand the strength of its case. Before trial, the judge will meet with attorneys representing both parties. They will discuss the case, and the judge will encourage the parties to settle the case before going to trial. If there is no settlement, they will discuss the issues to be focused on at trial, agree on certain evidentiary matters, and set a general timeline for the trial.

4. The Trial
1. The Right to a Jury Trial: Criminal defendants have the right to a jury trial (under the Sixth Amendment), and there is a right (under the Seventh Amendment) to a jury trial for common law civil cases where the amount in controversy exceeds $20. In state court, most types of civil cases include the right to a jury trial if a certain amount of money is involved (in California, cases involving $7,500 or less go to Small Claims Court instead). Juries are the factfinders, but a judge makes determinations on questions of law. In a bench trial, when there is no jury (if the defendant has waived this right), the judge determines both legal and factual questions.
2. Jury Selection: Before a jury trial begins, a jury must be chosen. When potential jurors are chosen, they can be questioned by the judge and parties’ attorneys in a process called voir dire. Each side can eliminate potential jurors using challenges for cause (if a juror is unable to serve in an unbiased capacity) or preemptory challenges (dismissing a potential juror with no reason needed; each side has a limited amount of peremptories). The acceptable jurors are seated in the jury box and sworn in.
3. Opening Statements: Attorneys then make opening statements to outline their cases and the evidence they plan to present.
4. Presentation of Evidence: The plaintiff’s attorney then presents his/her case using witnesses and exhibits as evidence. Federal or state Rules of Evidence govern what can and cannot be admitted or asked of a witness. Direct examination is the questioning of one’s own witness. After direct examination, the other party’s attorney has the right to question the witness also, and this is known as cross-examination.
5. Closing Arguments give attorneys for each party the chance to review their case for jurors and make their strongest arguments one last time.
6. Jury Instructions: The judge will then instruct the jury members before sending them to deliberate. The judge’s instructions will clearly explain the jury’s duty and the requirements of the law.
7. Jury Deliberations, Verdict, and Judgment: The jury then deliberates, renders its verdict, is thanked by the judge and dismissed from service. The court issues a judgment in the case, which is the court’s official statement regarding the party’s rights and obligations.
8. Post-trial Motions: Judges will usually respect a jury’s decision (verdict), but the court can also issue a Judgment Notwithstanding the Verdict (JNOV) if the jury’s decision had no factual basis or was contrary to law. A JNOV is also a final judgment. Following judgment, a party can also request a re-hearing of a lawsuit due to irregularities (errors of the court, jury misconduct, etc.) by filing a motion for a new trial.

5. The Appeal
1. Appealing a Final Judgment: Once a final judgment is issued, the losing party may appeal. Appeals can be time-consuming and costly, so not everyone chooses to appeal.
2. Appellate Court Review: Appellate courts do not conduct new trials; they simply review the official record of an appealed case. They limit their review to the issues raised in the appeal, and these can only be issues of law, not of fact. Appeals courts will sometimes schedule oral arguments to better understand the issues in the case and ask questions of the attorneys before reaching a decision.
3. Appellate Court Action: Appellate courts will generally affirm (support) the lower court’s decision, reverse (overturn) it, or remand the case back to the lower court for more action. After the first appeal, the losing party may appeal again to a higher court, but does not have a right to have the appeal considered (higher appellate courts have discretion to review or not to review cases).

Alternatives to Civil Procedure

1. Administrative Procedure
Some administrative agencies hold their own hearings and reviews relating to laws that they Administer (e.g., CA State Personnel Board, Worker’s Compensation Appeals Board). Their hearing procedures are parallel to the Rules of Civil Procedure, but usually simpler, more streamlined, and more cost-effective.

2. Alternative Dispute Resolution (ADR)
1. Role of ADR in the Legal Process: ADR offers potential litigants a private alternative to the court system. Resolving disputes outside of court can often be faster, cheaper, and less contentious.
2. Arbitration: A system in which parties agree to delegate a neutral third party to settle their dispute. Many arbitrators are retired judges or people with expertise in a particular area of dispute (e.g., family law). Arbitration is usually binding, which means that that the matter cannot be taken to court after the arbitrator renders a decision (unless the process was unfair, which is rare).
3. Mediation: Parties find a neutral, third party who can facilitate dialogue and help them reach an agreeable compromise. Many states have imposed mandatory mediation in certain types of disputes before parties are allowed to use the court system.
4. Role of Paralegals in ADR:
• Paralegals who become experts in a particular field can sometimes become arbitrators and mediators.
• Many companies that provide ADR services will also hire paralegals to:
• Communicate with clients
• Coordinate the gathering of factual documents and scheduling of witnesses
• Assist arbitrators and mediators in putting together the information for a decision.

Videos:

🔗
Video: All About Civil Litigation for Personal Injury Cases Opting for a civil lawsuit can be a tough decision. There are many factors to consider, including venue and jurisdictional limits. This video tutorial looks at why civil court may or may not be worthwhile in your personal injury situation.
 

Week 6: How to Brief Court Cases

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6.1 Overview

Learning Objectives

Upon completion of this module, you will be able to:
• Explain why lawyers and paralegals brief their cases
• Describe the main sections of a case brief
• Read and summarize a written court opinion, using the technical case briefing format you have learned

Overview

Case briefing is an important skill to learn. When we read written court opinions, we brief them using this technical format. It helps us have a short, concise record of a case, what is important about it, and what law it gives us that may be useful to our client. Later, when we are explaining things to an attorney or helping to create documents like motions and argumentative briefs, we can take what we need directly from the case brief we have written.
Case briefing is a skill. It takes time to learn. In this module, I will explain the process. Then I will help you create your first case brief. After that, you will be submitting additional briefs as I provide feedback and review. As you start this process, your first briefs will not be perfect. I do not expect them to be. This is a skill that we will learn by practicing, refining, improving, and continuing to practice, practice, practice. The more of these you do, the better your case briefs will become...until they become easy for you.
Please watch the video and read the information carefully in this section. From there, you will have the chance to create some of your own case briefs.

6.2 Briefing Cases (Overview and First Case to Brief)

LA 10: Briefing Court Opinions (Cases)

A. What is a case brief? A case brief is a concise outline that summarizes a court decision. Briefing is like taking notes on a case in a structured format. (Please note that case briefs are different from trial briefs and appellate briefs, which are used in court.)
B. Why do people brief cases? A case brief is for your own use. When you are researching the law, it can be very helpful to brief each case you read. This will help you to better understand the issues involved and the court’s reasoning. In addition, it will help organize you for your legal writing (such as a trial memo or court brief, which often incorporates summaries of the cases you have read). Also, briefing saves you time!
C. Parts of a case brief: Different people have different ways of briefing cases. The key is to include the important information, but to keep your brief

→ BRIEF. A good case brief may have the following parts:

5. Case name and citation. Ex: Jones v. Apple, Inc., 10 Cal. 3d 616, 111 Cal. Rptr. 704 (1994).
1. The case name contains the names of the parties. For individual parties, we use only the surnames, while corporations and other organizations retain their full names.
6. Court and Judicial History.
1. Which court is giving the decision? This can affect how we use the case. Also, we can understand the case better if we know how it got to this court. You will generally be reading appellate court cases, so there is usually some history in the lower court(s). Ex: “California Supreme Court. Plaintiff-landlord brought action to evict defendant-tenant for nonpayment of rent and to recover rent due. Trial court ruled for plaintiff, and court of appeals affirmed. Defendant appealed to state supreme court.”
7. Facts. A good summary of the facts is extremely important. The outcome of a case often depends on the specific facts. Pay attention to how the court summarizes the facts, and which facts it considers important to its decision, because those are the facts you should include as well.
1. EXAMPLE: “The tenant rented a two-bedroom apartment from the landlord on a one year lease. Six months into the lease, the tenant asked the landlord to repair a broken toilet, but the landlord did not fix it. The tenant claimed the place was uninhabitable and refused to pay rent until the landlord made the repairs.”
8. Issue(s): The issue is the question of law the court is considering, and the point of contention for the parties in the case. It is strictly determined by the facts of the case. If the facts were different, the issue would change. Some case have more than one issue. Ex: “Can a tenant withhold rent payment until a landlord fixes a broken toilet that has rendered the apartment difficult to live in?”
9. Holding(s): How did the court answer the question posed by the issue? There is a separate holding for each separate issue. Holdings are sometimes presented in terms of the facts, but they have precedent as answers to the questions of law that they settle. EXAMPLE: “Yes. A tenant may withhold rent until the landlord repairs the toilet.”
10. Reasoning. A judge will give reasons for his/her holding, which can help us understand the holding and how it fits into the law. Courts arrive at holdings by logically considering the legal questions and facts in the case and deciding the issues in a manner that is consistent with past case precedent. They must explain their decisions. Many case briefs include an additional section called Rule or Rule of Law, and this describes what law the court applied to help it reach its holding (this can also be explained under Reasoning).
11. Decision. What is the outcome of the case? EXAMPLE: “Reversed and remanded.”

→ D. Example of Case Opinion with Briefing Sections

STEPHEN GRAY, RESPONDENT, v. THERESA D. MARTINO, APPELLANT
Supreme Court of New Jersey91 N.J.L. 462; 103 A. 24February 2, 1918, Decided
Parties: These are the primary parties. Generally, the case will be referred to only by the last names of the parties. E.g. Gray v. Martino.
MINTURN, J. The plaintiff occupied the position of a special police officer, in Atlantic City, and incidentally was identified with the work of the prosecutor of the pleas of the county. He possessed knowledge concerning the theft of certain diamonds and jewelry from the possession of the defendant, who had advertised a reward for the recovery of the property. In this situation he claims to have entered into a verbal contract with defendant, whereby she agreed to pay him $500 if he could procure for her the names and addresses of the thieves. As a result of his meditation with the police authorities the diamonds and jewelry were recovered, and plaintiff brought this suit to recover the promised reward.
Facts of the case: What happened that brought these parties to court?
The District Court, sitting without a jury, awarded plaintiff a judgment for the amount of the reward, and hence this appeal.
Various points are discussed in the briefs, but to us the dominant and conspicuous inquiry in the case is, was the plaintiff, during the period of this transaction, a public officer, charged with the enforcement of the law?
The testimony makes it manifest that he was a special police officer to some extent identified with the work of the prosecutor's office, and that position, upon well-settled grounds of public policy, required him to assist, at least, in the prosecution of offenders against the law.
The services he rendered, in this instance, must be presumed to have been rendered in pursuance of that public duty, and for its performance he was not entitled to receive a special quid pro quo.
The cases on the subject are collected in a footnote to Somerset Bank v. Edmund, 10 Am. & Eng. Ann. Cas. 726; 76 Ohio St. Rep. 396, the head-note to which reads: "Public policy and sound morals alike forbid that a public officer should demand or receive for services performed by him in the discharge of official duty any other or further remuneration or reward than that prescribed or allowed by law."
This rule of public policy has been relaxed only in those instances where the legislature for sufficient public reason has seen fit by statute to extend the stimulus of a reward to the public without distinction, as in the case of United States v. Matthews, 173 U.S. 381, where the attorney-general, under an act for "the detection and prosecution of crimes against the United States," made a public offer of reward sufficiently liberal and generic to comprehend the services of a federal deputy marshal. Exceptions of that character upon familiar principles serve to emphasize the correctness of the rule, as one based upon sound public policy.
The judgment below for that reason must be reversed.
Conclusion: What is the conclusion of the court?
Procedural History: Who won in the court below?
Legal Issue: What fact or circumstance is at issue that will be the deciding factor in how the court rules on this case?
Holding: The court’s answer to the issue question.
Reasoning/Analysis: The court applies the facts to see whether they satisfy the elements of the rule.
Rule of Law: Under what rule of law does this issue fall?
 

E. Sample Case Brief

Gray (cop) v. Martino (crime victim)
Facts
Plaintiff made a verbal contract with defendant. In return for $500, plaintiff agreed to find defendant's stolen jewels. Plaintiff had knowledge of whereabouts of jewels at contract formation. Plaintiff was a special police officer and had dealings with prosecutor's office. Defendant published advertisement for reward. Plaintiff found stolen goods and arranges return.
Issue
At the time the contract was formed, was the plaintiff acting as a police officer charged with a legal duty to catch criminals without further reward?
Holding/Rule of Law
Yes, plaintiff was a public officer. A public officer cannot demand or receive remuneration or a reward for carrying out the duty of his job as a matter of public policy and morality.
Reasoning
• Court found sufficient evidence to characterize the plaintiff as a public official.
• His interaction with the prosecutor's office weighed in as a factor in suggesting he had a legal duty.
• Since he was characterized within the rule as a public official, he could not, as a matter of law, receive a reward for the performance of his duties.
Decision: Lower court’s decision reversed.
 

Case to Brief: O'Donnell v. Burlington Coat Factory Warehouse

O’Donnell v. Burlington Coat Factory Warehouse, 706 F. Supp. 263 (S.D. Ohio 1987)
SPIEGEL, District Judge.
In this sex discrimination action, plaintiffs, female salesclerks at defendants’ retail store, challenge defendants’ dress code as being violative of Title VII of the Civil Rights Act of 1964. The dress code in question requires female sales clerks to wear a “smock,” while male sales clerks only are required to wear business attire consisting of slacks, shirt, and a necktie. The smocks are supplied to the female sales clerks at no cost. After complaining that the smock requirement for women is discriminatory, plaintiffs refused to wear the smocks and instead wore regular business attire. Plaintiffs filed sex discrimination charges with the EEOC on August 18, 1983. Thereafter, plaintiffs reported for work wearing a blouse and tie and each day they were suspended.
On August 30, 1983, plaintiffs were discharged when they refused to wear smocks. Plaintiffs filed charges with the EEOC claiming their discharge was sex discrimination and retaliation. Subsequently, the EEOC determined that there was reasonable cause to believe the charge was true. After attempts at conciliation proved futile, plaintiffs commenced the present action in this Court.
Both parties agree that the issue before this Court on summary judgment is whether defendants’ dress code requiring female salesclerks to wear a smock while allowing male sales clerks to wear a shirt and tie is discriminatory under Title VII. The defendants content that distinctions between the sexes that do not adversely effect the terms and conditions of employment or employment opportunities do not violate Title VII. In Barker v. Taft Broadcasting Co., 549 F.2d 400 (6th Cir. 1977), the Court upheld an employer’s grooming code which mandated shorter hair lengths for men than for women. Importantly, this grooming code set standards for both sexes: it regulated the length of men’s hair and the styles for women’s hair.
According to defendants, the question we must decide is whether the differences in treatment created disadvantages for women in their compensation, terms, conditions, or privileges of employment or employment opportunities. Because plaintiffs stipulated that wearing the smocks had no effect on their salary, benefits, hours of employment, raises, employment evaluations or any other term of condition of employment, defendants argue that the distinction in question is not discriminatory. Analogizing the dress requirement here to the grooming code in Barker, defendants claim both sexes had equal burdens with respect to their dress requirements: female employees had to wear a smock and male employees had to wear a shirt and tie.
Plaintiffs acknowledge that Title VII does not prohibit all differences in treatment between the sexes, but claim that a rule requiring only women to wear smocks does violate Title VII. In support of their position, plaintiffs claim that the instant case should not be governed by the “hair length/grooming” line of [case] decisions cited by defendants. Rather, plaintiffs direct our attention to cases directly addressing “uniform” requirements that mandate different dress standards for male and female employees. In the lead case of Carroll v. Talman Fed. Savings & Loan, 604 F.2d 1028 (7th Cir. 1979), a bank required its female tellers, officers and managerial employees to wear a uniform while male employees working in the same positions were required to wear only customary business attire. Unlike the case at bar, the female employees in Talman incurred the initial cost of their uniforms as well as subsequent cleaning and maintenance expenses. The employer expressly maintained that the purpose of the uniform requirement was to reduce fashion competition among women. Since men do not engage in such competition, they do not need a uniform requirement.
The Seventh Circuit [in Talman] held that personal appearance regulations with differing requirements for men and women do not violate Title VII as long as there is “some justification in commonly accepted social norms and [the requirements] are reasonably related to the employer’s business needs.” However, an employer who imposes separate dress requirements for men and women performing the same jobs will violate Title VII when only one sex can wear regular business attire and the other must wear a uniform. Finding the uniform requirement demeaning to women, the Talman court stated, “while there is nothing offensive about uniforms per se, when some employees are uniformed and others are not there is a natural tendency to assume that the uniformed women have lesser professional status than their colleagues.”
Even though defendants have expressed no discriminatory motive for the “smock” rule, we find that the blatant effect of such a rule is to perpetuate sexual stereotypes. We believe the cornerstone of the Talman decision is that it is demeaning for one sex to wear a uniform when members of the other sex holding the same positions are allowed to wear professional business attire. In contrast to the “hair length” standards for male employees, the smock requirement finds no justification in accepted social norms. Moreover, as plaintiffs point out, defendants have several non-discriminatory alternatives for achieving the goal of sales clerk identification: both sexes could wear the smock, a distinguishing blazer or identifying badges on their professional attire. Thus, we find that the smock rule creates disadvantages to the conditions of employment of female sales clerks and hence, is a violation of Title VII.
Judgment for O’Donnell.

Case to Brief: Todd v. State

Todd v. State, 594 So.2d 802 (Fla. App. 1992)
 
GRIFFIN, Judge. On March 18, 1990, appellant entered the Lighthouse Church and stole $110 from the collection plate. The theft was witnessed by several members of the congregation, one of whom, Richard Voegltin, took off in his car in pursuit of appellant. During the pursuit, Mr. Voegltin, who had a preexisting heart condition, began to experience cardiac dysrhythmia. He lost control of his vehicle, collided with a tree at low speed and died of cardiac arrest.
 
The state charged appellant with manslaughter, alleging that he caused the death of Mr. Voegltin by committing the misdemeanor offense of petty theft which caused Voegltin to pursue him in order to recover the stolen property. Appellant filed a motion to dismiss, asserting that, because it cannot be said with any reasonable degree of medical certainty that Mr. Voegltin died as a result of chasing appellant, because Mr. Voegltin was at high risk of having a heart attack due to his preexisting medical condition, and because the appellant had no knowledge of this preexisting medical condition, the manslaughter charge should be dismissed.FN1
 
The trial court denied the motion to dismiss. We reverse. FN1.
 
Appellant pled guilty to the manslaughter offense under a plea agreement, reserving the right to appeal the denial of his motion to dismiss. The issue, as presented to us, is whether Florida recognizes the misdemeanor manslaughter rule. Reduced to basics, the misdemeanor manslaughter rule is that an unintended homicide which occurs during the commission of an unlawful act not amounting to a felony constitutes the crime of involuntary manslaughter. It is sometimes referred to more broadly as “unlawful act manslaughter.” The only express mention of the misdemeanor manslaughter rule that either party has cited in Florida case law is a passing reference in a footnote of an opinion of the Third District Court of Appeal, Rodriguez v. State, 443 So.2d 286, 290 n. 8 (Fla. 3d DCA 1983).
 
The misdemeanor manslaughter rule has been the subject of surprisingly little analysis, although in their Handbook on Criminal Law, LaFave and Scott have included a detailed discussion and critique of this theory of criminal responsibility. They suggest that “[t]he trend today, barely underway, is to abolish altogether this type of involuntary manslaughter••••” FN2 The authors posit that to punish as homicide the result of an unlawful act that is unintended and produced without any consciousness of the risk of producing it is “too harsh” and “illogical”. W. LaFave and H. Scott, supra at 602. FN3 FN2. W. LaFave and A. Scott, Handbook of Criminal Law 594 (1972). See also 2 Wharton's Criminal Law § 167 (14th ed. 1979). FN3. See also Annotation, Homicide by Fright or Shock, 47 A.L.R.2d 215 (1980).
 
One of the few secondary sources cited by LaFave and Scott on this topic is a 1939 law review article by I. Wilner entitled Unintentional Homicide In the Commission of an Unlawful Act. FN4 In this article the author argues that the principal historic purpose of this rule was not, in fact, punishment of the homicide but vigorous punishment of the underlying “unlawful act”, which in most cases was a violation of some property right. FN4. Wilner, Unintentional Homicide In The Commission of An Unlawful Act, 87 U.Pa.L.Rev. 811 (1939). Because of the facial simplicity of the misdemeanor manslaughter rule, its application by courts has led to some rather extraordinary findings of criminal liability for homicide.
 
For example, a Texas court found liability for manslaughter on the following facts: The victim discovered the defendant committing adultery with the victim's wife. Adultery was a misdemeanor in Texas. The victim made a murderous attack on the defendant. In defending himself against the murderous attack, the defendant killed the victim. The court decided that since the victim's murderous attack was a foreseeable reaction to the defendant's criminal misconduct, the defendant was guilty of manslaughter. *804 Reed v. State, 11 Tex.Ct.App. 509 (1882), discussed in Wilner, supra, at 834-835. In Commonwealth v. Mink, 123 Mass. 422, 425, 25 Am.R. 109 (1877), the defendant was attempting to commit suicide, but her fiancee intervened to try to stop her and was accidentally killed by the defendant.
 
Because suicide was an unlawful act malum in se, the court found defendant guilty of manslaughter. Over time, this theory of criminal responsibility has developed many complexities. Courts differ about whether the unlawful act must amount to a criminal offense and whether different standards should apply for malum in se or malum prohibitum offenses.
 
In this case, neither of these issues is of concern. The offense in this case is a malum in se misdemeanor offense under the criminal law of Florida. However, the other principal point of divergence in the development of the misdemeanor manslaughter rule-the issue of causation-is critical to this case. The views on the requirement of causation in unlawful act manslaughter differ widely among the various jurisdictions. In some instances, no causal relationship at all has been required.
 
At the other extreme is the requirement that there be not only a direct causal relationship between the unlawful act and the death, but that the death must be a natural and probable consequence of the offense. An example cited by Wilner is the case of Votre v. State, 192 Ind. 684, 138 N.E. 257 (1923) where, contrary to statute, the defendant gave whiskey to the victim, who was a minor. Consumption of the alcohol caused the victim to suffer a heart attack of which he died. The Indiana court held that the defendant was not guilty of manslaughter because the homicide must follow both as a part of the perpetration of the unlawful act and as a natural and probable consequence of it. Wilner, supra at 836.
 
As LaFave and Scott and Wilner point out, application of this view of causation essentially converts the unlawful act type of manslaughter into culpable negligence manslaughter-a development which these commentators applaud. In 1989 an article published in the Solicitor's Journal entitled “Unlawfully Occasioning Another's Death Without Physical Contact” FN5 catalogued the modern English decisions dealing with this issue. From the article, it appears that the law of manslaughter by unlawful act has developed in England along lines similar to the American experience.
 
The author reports, however, that beginning in the mid-1960's English courts began to require that, in order to support a manslaughter conviction, the unlawful act must be such that “all sober and reasonable people would inevitably recognize it as an act which would subject the other person to at least the risk of some harm resulting therefrom, albeit not serious harm.” Bentil, supra at 1250 (quoting R. v. Church [1966] 1 Q.B. 59, CCA).FN6 Evidently, English courts have concluded that requiring an element of dangerousness in the unlawful act supplies the element of blameworthiness appropriate for conviction of a homicide crime.FN7 FN5. J. Kwodo Bentil, Unlawfully Occasioning Another's Death Without Physical Contact, 133 Sol.J. 1250 (1989). FN6. The author also cites R. v. Cole [1981] 61 CCC(2d) 119, 127, for the proposition that Canada has adopted by case law the same “dangerousness” requirement. FN7. Bentil, supra at 1251. Florida courts, by simply interpreting the statutory definition of manslaughter (“[t]he killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification •••”), appear always to have understood the importance of causation as an element of this type of homicide.
 
Our courts also have appreciated the foreseeability element of causation. In Tipton v. State, 97 So.2d 277 (Fla.1957), the defendants had gotten into an argument with a gas station attendant about whether he would cash a check for them. They either pushed or touched him in a threatening way. The attendant *805 fell to the floor and died of a heart attack. The supreme court, reversing convictions for manslaughter observed: Consideration of the act and its surroundings at the time of its commission, not of the results alone, should determine criminal responsibility for manslaughter under the Florida homicide statute.
 
It is necessary for the act to result in the death of a human being under the definition of homicide; but this does not relieve the courts of the duty to study the act itself to determine whether the punishment for manslaughter should be applied. This conclusion does not require the use of the shibboleths, malum prohibitum and malum per se. The statute itself provides far surer guideposts. Id. at 281. The Tipton court concluded that an instruction on excusable homicide should have been given and that the lack of proof of a causal connection between the alleged “pushing, shoving and ill treatment” and the death of the deceased precluded a conviction for manslaughter. In Phillips v. State, 289 So.2d 447 (Fla. 2d DCA), cert. denied, 294 So.2d 662 (Fla.1974), the defendant, who was under the influence of LSD, forced his way into a private home, began acting in a very bizarre manner and assaulted the elderly couple who resided there. The husband, who was 62 years old and had a chronic heart condition, was attempting to pull the defendant away from his wife when he collapsed into a chair and died of a heart attack. The Second District Court found that the issue of causation on these facts was a jury question because it was foreseeable that the assaults, coupled with the bizarre conduct, would have a traumatic effect on the victims and could result in physical harm.
 
In 1989 the First District Court of Appeal had occasion to consider a case, Penton v. State, 548 So.2d 273 (Fla. 1st DCA), rev. denied, 554 So.2d 1169 (Fla.1989), which was in many ways similar to the case that we have under review here. There the appellant and a codefendant burglarized the garage of a private residence, stealing two bicycles. The homeowner, alerted to the burglary by barking dogs and shouts from his son that someone was stealing his bike, ran out of the house. After chasing appellant approximately twenty-five to thirty feet, the homeowner fell dead in the middle of the street, his death apparently caused by a release of fat emboli into his blood stream. The defendant was charged under the felony murder rule but was convicted by the jury of manslaughter. The question presented to the First District Court was whether the evidence was sufficient to support a manslaughter conviction.
 
The Penton court focused on the issue of causation, concluding initially that, under Florida law, the “two affirmative elements of manslaughter [are]: (1) the killing, and (2) the causative link between the death and the act, procurement or culpable negligence of the defendant.” Id. at 274. The court held that there had to be a showing by the state that the defendant actually performed some affirmative act that caused the death to occur.FN9 The First District also observed: FN9. In Penton, the focus was on the medical testimony that a release of fat emboli can be brought on by stress but that it was impossible to establish that the victim's death was caused by the stress of pursuit. Because of the procedural posture of this case, our problem is different. Because the consequences of a determination of guilt in a criminal case are far more severe than the consequences suffered by a defendant in a tort action, we conclude that a closer relationship between the result effected and that intended or hazarded is required. …
 
In this case, even if it were assumed that the stress of pursuit brought on the heart attack, it cannot be said that the petty theft was the legal cause of Mr. Voegltin's death. The crime itself was a minor property offense. There is no suggestion of any touching or any threat to anyone's person. This is not even a case, like a purse snatching, where violence was necessary to produce the theft. Nor is it asserted that Mr. Voegltin died from fright or horror at witnessing the crime. The state's traverse specifically asserts that it was the pursuit that caused the fatal heart attack.
 
Although the petty theft did trigger a series of events that concluded in the death of Mr. Voegltin and was, in that sense, a “cause” of the death, the petty theft did not encompass the kind of direct, foreseeable risk of physical harm that would support a conviction of manslaughter. The relationship between the unlawful act committed (petty theft) and the result effected (death by heart attack during pursuit in an automobile) does not meet the test of causation historically or currently required in Florida for conviction of manslaughter. REVERSED.

Case to Brief: Wood v. Boynton

Wood v. Boynton, 64 Wis. 265, 25 N.W. 42 (Wis. 1885)
 
TAYLOR, J. This action was brought in the circuit court for Milwaukee county to recover the possession of an uncut diamond of the alleged value of $1,000. The case was tried in the circuit court, and after hearing all the evidence in the case, the learned circuit judge directed the jury to find a verdict for the defendants. The plaintiff excepted to such instruction, and, after a verdict was rendered for the defendants, moved for a new trial upon the *43 minutes of the judge. The motion was denied, and the plaintiff duly excepted, and after judgment was entered in favor of the defendants, appealed to this court.
 
The defendants are partners in the jewelry business. On the trial it appeared that on and before the twenty-eighth of December, 1883, the plaintiff was the owner of and in the possession of a small stone of the nature and value of which she was ignorant; that on that day she sold it to one of the defendants for the sum of one dollar. Afterwards it was ascertained that the stone was a rough diamond, and of the value of about $700. After hearing this fact the plaintiff tendered the defendants the one dollar, and ten cents as interest, and demanded a return of the stone to her. The defendants refused to deliver it, and therefore she commenced this action.
 
The plaintiff testified to the circumstances attending the sale of the stone to Mr. Samuel B. Boynton, as follows: “The first time Boynton saw that stone he was talking about buying the topaz, or whatever it is, in September or October. I went into the store to get a little pin mended, and I had it in a small box,--the pin,--a small ear-ring; * * * this stone, and a broken sleeve-button were in the box. Mr. Boynton turned to give me a check for my pin. I thought I would ask him what the stone was, and I took it out of the box and asked him to please tell me what that was. He took it in his hand and seemed some time looking at it. I told him I had been told it was a topaz, and he said it might be. He says, ‘I would buy this; would you sell it?’
 
I told him I did not know but what I would. What would it be worth? And he said he did not know; he would give me a dollar and keep it as a specimen, and I told him I would not sell it; and it was certainly pretty to look at. He asked me where I found it, and I told him in Eagle. He asked about how far out, and I said right in the village, and I went out. Afterwards, and about the twenty-eighth of December, I needed money pretty badly, and thought every dollar would help, and I took it back to Mr. Boynton and told him I had brought back the topaz, and he says, ‘Well, yes; what did I offer you for it?’ and I says, ‘One dollar;’ and he stepped to the change drawer and gave me the dollar, and I went out.” In another part of her testimony she says: “Before I sold the stone I had no knowledge whatever that it was a diamond. I told him that I had been advised that it was probably a topaz, and he said probably it was. The stone was about the size of a canary bird's egg, nearly the shape of an egg,--worn pointed at one end; it was nearly straw color,--a little darker.” She also testified that before this action was commenced she tendered the defendants $1.10, and demanded the return of the stone, which they refused.
 
This is substantially all the evidence of what took place at and before the sale to the defendants, as testified to by the plaintiff herself. She produced no other witness on that point. The evidence on the part of the defendant is not very different from the version given by the plaintiff, and certainly is not more favorable to the plaintiff. Mr. Samuel B. Boynton, the defendant to whom the stone was sold, testified that at the time he bought this stone, he had never seen an uncut diamond; had seen cut diamonds, but they are quite different from the uncut ones; “he had no idea this was a diamond, and it never entered his brain at the time.” Considerable evidence was given as to what took place after the sale and purchase, but that evidence has very little if any bearing, upon the main point in the case.
 
This evidence clearly shows that the plaintiff sold the stone in question to the defendants, and delivered it to them in December, 1883, for a consideration of one dollar. By such sale the title to the stone passed by the sale and delivery to the defendants. How has that title been divested and again vested in the plaintiff? The contention of the learned counsel for the appellant is that the title became vested in the plaintiff by the tender to the Boyntons of the purchase money with interest, and a demand of a return of the stone to her. Unless such tender and demand revested the title in the appellant, she *44 cannot maintain her action.
 
The only question in the case is whether there was anything in the sale which entitled the vendor (the appellant) to rescind the sale and so revest the title in her. The only reasons we know of for rescinding a sale and revesting the title in the vendor so that he may maintain an action at law for the recovery of the possession against his vendee are (1) that the vendee was guilty of some fraud in procuring a sale to be made to him; (2) that there was a mistake made by the vendor in delivering an article which was not the article sold,--a mistake in fact as to the identity of the thing sold with the thing delivered upon the sale. This last is not in reality a rescission of the sale made, as the thing delivered was not the thing sold, and no title ever passed to the vendee by such delivery. In this case, upon the plaintiff's own evidence, there can be no just ground for alleging that she was induced to make the sale she did by any fraud or unfair dealings on the part of Mr. Boynton.
 
Both were entirely ignorant at the time of the character of the stone and of its intrinsic value. Mr. Boynton was not an expert in uncut diamonds, and had made no examination of the stone, except to take it in his hand and look at it before he made the offer of one dollar, which was refused at the time, and afterwards accepted without any comment or further examination made by Mr. Boynton. The appellant had the stone in her possession for a long time, and it appears from her own statement that she had made some inquiry as to its nature and qualities.
 
If she chose to sell it without further investigation as to its intrinsic value to a person who was guilty of no fraud or unfairness which induced her to sell it for a small sum, she cannot repudiate the sale because it is afterwards ascertained that she made a bad bargain. Kennedy v. Panama, etc., Mail Co., L. R. 2 Q. B. 580. There is no pretense of any mistake as to the identity of the thing sold. It was produced by the plaintiff and exhibited to the vendee before the sale was made, and the thing sold was delivered to the vendee when the purchase price was paid. Kennedy v. Panama, etc., Mail Co., supra., 587; Street v. Blay, 2 Barn. & Adol. 456; Gompertz v. Bartlett, 2 El. & Bl. 849; Gurney v. Womersley, 4 El. & Bl. 133; Ship's Case, 2 De G. J. & S. 544.
 
Suppose the appellant had produced the stone, and said she had been told it was a diamond, and she believed it was, but had no knowledge herself as to its character or value, and Mr. Boynton had given her $500 for it, could he have rescinded the sale if it had turned out to be a topaz or any other stone of very small value? Could Mr. Boynton have rescinded the sale on the ground of mistake? Clearly not, nor could he rescind it on the ground that there had been a breach of warranty, because there was no warranty, nor could he rescind it on the ground of fraud, unless he could show that she falsely declared that she had been told it was a diamond, or, if she had been so told, still she knew it was not a diamond. See Street v. Blay, supra. It is urged, with a good deal of earnestness, on the part of the counsel for the appellant that, because it has turned out that the stone was immensely more valuable than the parties at the time of the sale supposed it was, such fact alone is a ground for the rescission of the sale, and that fact was evidence of fraud on the part of the vendee.
 
Whether inadequacy of price is to be received as evidence of fraud, even in a suit in equity to avoid a sale, depends upon the facts known to the parties at the time the sale is made. When this sale was made the value of the thing sold was open to the investigation of both parties, neither knowing its intrinsic value, and, so far as the evidence in this case shows, both supposed that the price paid was adequate. How can fraud be predicated upon such a sale, even though afterinvestigation showed that the intrinsic value of the thing sold was hundreds of times greater than the price paid?
 
It certainly shows no such fraud as would authorize the vendor to rescind the contract and bring an action at law to recover the possession of the thing sold. Whether that fact would have *45 any influence in an action in equity to avoid the sale we need not consider. See Stettheimer v. Killip, 75 N. Y. 287; Etting v. Bank of U. S., 11 Wheat. 59. We can find nothing in the evidence from which it could be justly inferred that Mr. Boynton, at the time he offered the plaintiff one dollar for the stone, had any knowledge of the real value of the stone, or that he entertained even a belief that the stone was a diamond. It cannot, therefore, be said that there was a suppression of knowledge on the part of the defendant as to the value of the stone which a court of equity might seize upon to avoid the sale. The following cases show that, in the absence of fraud or warranty, the value of the property sold, as compared with the price paid, is no ground for a rescission of a sale. Wheat v. Cross, 31 Md. 99; Lambert v. Heath, 15 Mees. & W. 487; Bryant v. Pember, 45 Vt. 487; Kuelkamp v. Hidding, 31 Wis. 503-511.
 
However unfortunate the plaintiff may have been in selling this valuable stone for a mere nominal sum, she has failed entirely to make out a case either of fraud or mistake in the sale such as will entitle her to a rescission of such sale so as to recover the property sold in an action at law. The judgment of the circuit court is affirmed.
 
Parts of a Brief:
12. The Case Citation
1. Name of the Case (the parties involved)
2. Published sources where case can be found
3. Court which issued the decision
4. Year decision was issued
13. Procedural Posture
1. The history of the case
2. Discussion of how t he caes ended up before the appelate court
1. Example: Defendant’s motion to dismiss was granted, Plaintiff Appeals
2. Judgment for Plaintiff, defendant appeals
14. Statement of the Facts
1. Brief outline/summary of the facts taht seems significant to the count
15. Issue
1. The legal question the court is addressing.
2. You should phrase each issue as a “whether question”

Videos:

Week 7: Introduction to Legal Research

7.1 Overview

Learning Objectives

• Name some primary sources that are used for California state law

• Find provisions in the California Code

• Find written court opinions in a case reporter

Overview

7.2 Introduction to Legal Research

A. The Importance of Legal Research: One of the most important skills for a paralegal.

B. The Basics of Legal Research: Sources of Law

1.  Primary Sources: These are sources which contain the law. For practical purposes, these are the law.
1. Constitutions. The U.S. Constitution, including the Bill of Rights and later amendments, is the highest source of law. Nothing else can contradict it or take away the rights it guarantees. Also, California has a constitution (the first part of the California Code) which provides additional rights and freedoms to everyone in this state. US Constitution: http://constitutionus.com/ 
2. Statutes (Law from the legislative branch): A statute is a law created by Congress (federally) or by a state legislature (such as the California legislature). Most of the written laws that govern us are statutes. Federal statutes are published in the United States Code (U.S.C.) and California statutes are located in the California Code.
1. Examples: Clean Water Act, Fair Labor Standards Act, Megan’s Law.
2. Example Citations:
1. Clean Water Act, 33 U.S.C. § 1251 (1997)
2. Cal. Bus. & Prof. Code § 6450 (2014).
3. Regulations (Law from the executive branch): Regulations are specific rules written by executive agencies to help implement/enforce statute laws. Regulations are particularly important in the legal areas of tax, immigration, and environmental law. (We won't get into regulations this semester.)
4. The California Business and Profession Code
Note: The only cases which are binding (must be followed) come from the same court or a higher court in the same jurisdiction (legal system, e.g. California). Other cases are considered persuasive authority; a court can choose to follow them, but they are not binding.
Example Citations: (1) Escobedo v. Illinois, 378 U.S. 478 (1964), and (2) Borer v. American Airlines, Inc., 138 Cal. Rptr. 302 (1977).
 

2. Secondary Sources: These are sources which do not contain the law itself. They summarize it, discuss it, or explain it. These sources include legal dictionaries, legal encyclopedias, digests, summaries, treatises, law review and journal articles, etc. Secondary sources can be very helpful for your research and understanding of the law, but you should rely on primary sources first when writing something for a court.

Statutory Research

A. Federal Statutes are contained in the United States Code (U.S.C.), an official publication.

1. Annotated Codes: There also two unofficial privately-published sets called the United States Code Annotated (U.S.C.A.) and the United States Code Service (U.S.C.S.), which are both annotated volumes. The U.S.C.A. or U.S.C.S. are actually easier to use for legal research, because they include both the text of the statutes (exactly the same as the U.S.C.) plus notations for each provision, including the text of the statute and any amendments, citations to cases that apply or interpret it, and citations to articles or other secondary sources which discuss the statute.

2. Organization of the U.S. Code: Citations to the U.S. Code give the title and section number, so the citation “29 U.S.C. § 206” refers to volume 29 (which deals with Labor) and section 206, which contains the Federal Minimum Wage law. The Code itself, as well as each volume, has an index.

B. California Statutes are codified in the California Code, which is actually a collection of 29 different codes.

1. Most California law libraries also have annotated codes available. "Annotated" means they are published by a private company that includes additional notes and references. The EVC library has West’s Annotated California Codes, which are excellent for statutory research.

2. Organization of the CA Code: Each part of the California Code has a topical name, such as the Labor Code, Vehicle Code, and Penal Code. For instance, the law governing paralegal education is Section 6450 of the Business and Professions Code, cited as “Cal. Bus. & Prof. Code § 6450.” Other states have their own ways of organizing codes, but most are either by topical volume (like CA) or by numbered volume (like the U.S. Code).

Case Research

Links: