INTRODUCTION TO AMERICAN/COMMON LAW. Winter Term 2007 University of Bonn Dr. Wilder

Transcription

1 INTRODUCTION TO AMERICAN/COMMON LAW Winter Term 2007 University of Bonn Dr. Wilder Hello, I just wanted to notify you all of the following: 1. The winning lottery numbers for Wednesday where: 22, 26, 34, 42, 43, 46, 9 If you hit all those numbers, congratulations! Enjoy the Schützenfest in Neuss! If those were not your numbers, well, keep reading 2. There was some (understandable) confusion regarding the difference between the Intro. class and the Contracts class held at 18:00. After careful consideration, I think it would be better to teach the Intro. class (16:00) not based around contracts, but rather teach the traditional survey class that I normally conduct during the Summer Term. While contracts would be included (perhaps I would even expand the single contract lecture to two lectures, to give you a bit more information about the topics I mentioned), we would also discuss such topics as the US Constitution (civil rights, free speech, separation of church and state, the death penalty), criminal law, tort law, family law, Native American law, etc. and look at a broader range of legal vocabulary. I will, however, put it to a vote next Wednesday during the 4 o clock lecture, allowing the class to decide whether you just want to focus on contract law, or would rather have a more general survey course focusing more on general legal terminology and theory. So campaign for whichever class format you want between now and next Wednesday and be prepared to get your index finger dipped in ink (no double voting or vote tampering will be tolerated in my class!). 3. What follows is not a partial outline, but rather a series of exercises to build some basic legal vocabulary and knowledge of the Common Law legal/court system. Whether you vote for Contracts Lite or the general survey course, you should know your way around a Common Law courtroom, the basic procedures for filing a lawsuit in the USA and the language used in a Common Law court during trial. Therefore, please print out the following and bring it with you to the next lecture:

2 Two countries separated by a common language - British vs. US Legal Language - Part I : The Courtroom I say orgno, and the Brits say OrrrrrreEEEGAAANnnnnOOOOO (oregano), I threw the flat tire in the trunk, they have thrown the punctured tyre in the boot so it is hardly surprising that our legal language is also often different! A. The following are terms of address (titles you use when speaking to others Doctor Smith, for example) or job titles in the Common Law legal system. 1. Determine what they do/ who they are. 2. Decide whether the title is used in the US / UK / Both ROLE US or UK? 1. Attorney (Smith) represent people in legal matters Attorney at Law Both 2. Counselor Your Honor Barrister Advocate Solicitor Bailiff Clerk Prosecutor Paralegal Me Lord Judge Justice Magistrate Brother/Sister at the Bar Jury Foreman Party Queen s Counsel the Accused The State The Crown The Defendant The Plaintiff Court Reporter - -

3 Tell it to the Judge! Courtroom Lingo As you might imagine, there is a special vocabulary associated with how the Court discusses legal matters and organizes the courtroom procedure. Match the following words with their definitions: 1. Motion 2. Ruling 3. Appeal 4. Mistrial 5. Sentence 6. Objection 7. Sustained 8. Overruled 9. Cross-Examination 10. Indictment 11. Conviction 12. Re-Direct 13. Direct-Examination 14. Acquittal 15. Adjourned 16. Recessed 17. Arraignment 18. Contempt A. A legal finding that a person who has been charged with a crime is not guilty (innocent). B. A request for a higher court to review a decision made by a lower court. C. The questioning of a witness by the lawyer for the opposing (other) side. D. The opposing side finds fault (a problem) with the question being asked the witness. E. The decision handed down by the court. F. The court ends for the day, or the end of the entire trial/hearing. G. The first questioning in a trial of a witness by the lawyer who called that witness. H. An accusation of a crime, made against a person by a grand jury upon the request of a prosecutor. I. A trial that becomes invalid is essentially canceled, because of a mistake in procedure. J. How a lawyer asks the judge to make a decision. K. When a person is brought before the court to hear the charges the state has brought in a criminal case L. The result of a criminal trial in which a person is found guilty. M. The judge, following an objection, decides the questions may continue. N. The lawyer who called the witness, asks questions after apposing counsel has asked questions, these questions are limited to the scope of the opposing attorney s questions O. The court takes a temporary break P. The punishment given to a person who has been convicted of a crime. Q. The judge, following an objection, agrees that the line of questioning may not continue. R. An act that embarrasses, hinders, or obstructs the court s administration of justice S. The decision of the jury on an issue of fact; decision, judgement.

4 Order in the Court! US Court Procedure From the initiation of a legal action to the final judgment ( judgement UK spelling!), the legal procedure is more or less the same. It is important to know both the structure and the vocabulary associated with the court system. Exercise: You are bringing a civil (as apposed to criminal) law suit in the United States. Put the following legal steps in the correct order from the start of your lawsuit until the end of the trial. To make it slightly less confusing, I have broken it down into two phases 1) Initiation (beginning) of the Lawsuit until first day of trial and 2) Beginning to end of the trial process: 1) Initiation of Lawsuit until first day of trial: a. pretrial hearings b. voir dire c. file complaint d. jury impaneled e. pretrial (with judge) f. pretrial motions filed g. service of process (papers) h. answer by defendant 1. You decide to take the case, and receive initial retainer from client

5 2) Beginning to end of the trial process (Jury not Bench Trial) i. defendant calls first witness j. plaintiff rests k. defendant rests l. jury released m. swearing in of jury n. plaintiff s cross examination o. jury charged p. defendant s cross of plaintiff s witness q. plaintiff s opening argument r. defendant s closing argument s. plaintiff s redirect t. defendant s redirect u. jury deliberation v. defendant s opening argument w. plaintiff s closing arguments x. plaintiff s first witness y. verdict z. plaintiff s closing answer You receive final check from the client

6 Phrase and Fable Part 1 As in any profession, or indeed any language, special phrases/sayings/jargon add colour and interest to your vocabulary. Over the course of the term, we will work on building some colour into your legal English! Exercise One: There are many legal terms that have made it into common, everyday English. Take a look at the following phrases, do you know what they mean? a. red tape 1. unfair treatment or procedure b. to plead the Fifth 2. someone with a good legal mind c. the jury is still out 3. important/powerful person d. Big Wig 4. illegal acts done by professionals e. Kangaroo Court 5. no agreement could be reached f. white collar crime 6. bureaucracy g. an Ambulance chaser 7. a nickname for a lawyer h. a Legal Eagle 8. still not sure of an outcome j. hung jury 9. to refuse to answer questions about a crime