The rule makers: The legislative branch

At the federal or national level, the legislative branch is called the Congress. It’s made up of two chambers — the Senate and the House of Representatives. Sometimes, members of the House of Representatives are called congresspersons, while members of the Senate are called, not surprisingly, senators. Because it has two chambers, the legislature is called bicameral (bi means “two” and camera means “chamber”). The U.S. Congress and every state but Nebraska have bicameral legislatures. The legislatures at both the federal and state levels create statutory law, the rules and regulations we all have to follow to avoid liability or arrest.

A statute isn’t some giant structure standing with a torch on Liberty Island in New York Harbor. It’s a law that is written by the legislative branch of government. So be careful in your legal writing because lawyers and paralegals commonly refer to statutes as statues when writing briefs that refer to statutory law. Another common spelling mistake is mixing up the words trial and trail. Although a trial is a journey, you can’t refer to it as a trail. Your spell checker won’t catch these mistakes, either. (You can find more tips about legal writing in Chapter 16.)

To enact a statute, the bicameral legislature must pass a proposed bill through both the House and the Senate and then send it to be signed by the executive branch, which is the president on the federal level or the governor on the state level. Getting a bill through both houses of the legislature and getting it signed by the president or governor is a lot of work! The bill gets introduced in each house and is referred to a committee that considers its particular subject matter. If it’s a bill that has to do with the courts, then it likely gets sent to the judiciary committee in each chamber. The committee might hold hearings, and if the committee chair or the committee doesn’t like the bill, it can die there. If the bill gets changed in either house, then a conference committee in both houses gets together and tries to iron out any differences.

After the bill passes out of both chambers in substantially the same form, the chief executive signs it into law. This means that the president signs those bills that come out of the Congress, and the governor signs those bills enacted by the state legislature. After it’s signed, the bill becomes statutory law. If the chief executive vetoes the bill, the bill dies unless the legislature can muster enough votes to get a supermajority to override the executive branch’s veto. Usually, that means that two-thirds of each house has to vote in favor to override the veto. (This kind of situation is one example of how the legislative and executive branches act as checks and balances on each other.)

The Founding Fathers designed the three branches to keep government power in check. The legislature votes to pass a bill, which is then either signed or vetoed by the executive. The legislature may then override the executive’s veto. In this way, the legislative and executive branches keep each other in line.

A statute is sometimes called an act, such as the Freedom of Information Act or the Federal Communications Act. Given all the hassle that’s required to enact legislation, the expression that “It’s going to take an act of Congress to get that done” makes a lot of sense. Enacting even simple legislation is, in many cases, an uphill battle.

The state legislatures follow pretty much the same procedure the federal government does when enacting legislation. You can find a super-simple illustration of how a typical bill becomes law at www.usa.gov/how-laws-are-made.

The enforcers: The executive branch

In addition to signing bills into law, the executive branch also enforces the laws enacted by the legislature. The president or the state governor obviously can’t accomplish the task of enforcement alone. Consequently, the legislature has created a multitude of administrative agencies that are empowered to assist the chief executive in the role of enforcing and administering the laws created by the legislature.

You may have heard the term alphabet soup to refer to the names of administrative agencies (for example, HUD, EPA, DEA, CIA). Administrative agencies exist on the federal, state, and local levels of government. They’re often referred to collectively as the bureaucracy. Examples of state agencies are the Transportation Department that builds state highways and the Department of Licensing that provides licenses for your car as well as your doctor (the names of these agencies vary from state to state). Some common examples of local administrative agencies are your community’s fire department, the city police department, and the county sheriff’s office.

Administrative agencies also have some legislative power, and they can create the law in certain instances. Often, the statute that creates these agencies and empowers them to enforce laws also enables the agencies to regulate the public. Agencies exert their control through the process of administrative rulemaking, and the laws these agencies write are called administrative regulations. For example, the IRS was created to implement the tax code. If Larry has a problem with his federal income taxes, he contacts the IRS. Larry can appeal his case in the court system only after the IRS renders an administrative determination about Larry’s problem. He would have to exhaust administrative remedies before he could take his case to federal court.

Administrative agencies may even act like courts when they engage in quasijudicial proceedings known as adjudicatory hearings. In adjudicatory hearings, the agencies make decisions that affect the rights of individuals, much like a court of law. (You can find more information about administrative agencies and administrative law in Chapter 5.)

The interpreters: The judicial branch

The court system stems from the third branch of government, the judicial branch. The duty of the judicial branch is to interpret the laws that the other two branches of government create and enforce. When courts interpret the statutes enacted by the legislature, it’s sometimes said that the courts actually make law. This judge-made law appears in the form of judicial opinions.

As intended by our founders, the judicial branch acts as a check and balance on the other two branches of government. One example of the judiciary’s power over the legislature occurs when a court declares a statute unconstitutional. The statute then has to be thrown out and becomes unenforceable. But don’t feel too sorry for the legislature — it can place a check on the courts by enacting a statute that says that courts don’t have the authority to hear specific types of cases. Courts may not be completely stripped of their judicial authority, but their jurisdiction (their power and authority to hear a particular type of case) can be narrowed to a significant degree. Historically, Congress has tried to find ways to narrow the jurisdiction of the federal courts in this manner. One recent example involves proposals to strip federal courts of their ability to decide cases dealing with abortion. The president can also act as a check and balance on the courts by refusing to enforce the court’s orders.

Because most paralegals deal with the judicial branch more than the other two branches, you should become very familiar with the structure of the U.S. court system.

The federal judicial system

The types of cases that may be heard in the federal court are limited. They must meet one of these qualifications:

• Controversies that involve the U.S. government, the U.S. Constitution, or federal laws: This is called the federal question jurisdiction.
• Disputes between two different states or between the United States and a foreign government.
• Cases that involve diversity of citizenship of the litigants: Diversity of citizenship means that the disputes are either between parties from different states or between a party from the United States and someone from a foreign country, and the amount of damages must exceed the amount set forth in federal statutes.
• Matters that involve bankruptcy.

If you work with the federal court system, you’ll deal with three levels of adjudication: the courts of original jurisdiction, the courts of appellate jurisdiction, and the courts of last resort. Federal cases originate in the U.S. District Courts.

State judicial system

State courts handle specific types of cases. Here are just some of the matters that state courts hear from their citizenry:

• Almost all divorce and child custody cases
• Probate and inheritance matters
• Contract disputes
• Traffic violations
• Real estate issues
• Juvenile matters
• Personal injury suits
• Criminal cases
• Matters involving diversity of citizenship with potential damages less than the jurisdictional threshold, which changes frequently

In many states, the court structure looks pretty much like that of the federal system. Apparently, it was much easier for our founders to copy the federal system than it was to come up with something different after the new nation was created. States have courts with original jurisdiction, intermediate appellate courts, and courts of last resort. However, in about half the states, there’s only one level of appeals. In those states, the trial court decision is appealed directly to the highest court in the state, in most (but not all) cases known as the state supreme court.

Be sure to check the particular names of courts in your own state. Trial courts in state systems have many different names throughout the United States. A district court in the federal system can mean something entirely different in one state and something else in another state. One confusing example is that the Supreme Court in the state of New York is a general trial court; the highest court in that state is called the New York Court of Appeals.

Hear it again: Intermediate courts of appeals and courts of last resort

About half of our 50 states have intermediate courts of appeals. These intermediate appellate courts compare to the U.S. Courts of Appeals for the various circuits in the federal system. Like the federal appellate courts, the intermediate courts of appeals in states generally hear matters appealed from the trial courts within their geographical region. So, they might hear only those cases appealed from the trial courts of certain counties located within their region, while another division of the same intermediate court of appeals located elsewhere in the state would hear appeals from counties in its own particular region.

Parties who don’t like the outcome of their trials can file their appeals with one of these intermediate appellate courts as a matter of right. This means that a person has an absolute right to have a higher court review his appeal from the lower court. After an intermediate court hears a case on appeal, the appealing party generally can’t appeal any farther up the chain unless the next higher court grants a request for review. This type of appeal is called discretionary review, where the higher court has discretion as to whether it will even hear the case. In states that don’t have intermediate appellate courts, the losing party can appeal from the trial court of general jurisdiction directly to the state supreme court as a matter of right.

There are two types of appeals from a lower court to a higher court. One type is called an appeal as a matter of right, where the party is always entitled to at least one level of review by a higher court. The second type of review is known as a discretionary review, where the appellant must seek permission from the higher court to actually hear the appeal.

One aspect of appeals that losing parties don’t like to hear about is that an appellant, or losing party, generally doesn’t get to have the case heard all over again. The appellate court’s duty is to decide issues of errors of law that the appellant argues were made by the lower court. The appellate court can overturn the lower court usually only if the inferior court made an error of law, such as a mistake on the admissibility of evidence. This differs from a trial de novo, where in some cases, the trial can be heard all over again at the appellate level. If the trial judge (or jury) chooses to believe one party’s witnesses over the other party’s witnesses, then usually the losing party is out of luck and doesn’t get to have the appellate court second-guess the lower court’s decision based on the credibility of witnesses. The appellate courts don’t get to re-decide the facts of the case.

With some exceptions, an appeal from the highest court in a state may be heard by the U.S. Supreme Court. To help you keep it all straight, Figure 4-2 diagrams the general federal and state judicial systems, where you can study the court’s hierarchy.

Local judicial systems

Local court systems are similar in many ways to the lower-tiered state courts. Depending on the state, these courts are sometimes called city courts, municipal courts, town courts, village courts, or some other name to indicate their status as the local court system. Local courts generally have jurisdiction or authority to hear only those violations of the laws of cities, towns, or counties. Laws passed by local legislative bodies are called ordinances. Ordinances are analogous to the statutes enacted at the state and federal level, but ordinances only affect the conduct of citizens located within the boundaries of the local government.

Local governments may adopt laws called ordinances which have legal effect only on people who violate these local codes within the boundaries of the city, town, or county where they’re adopted.

Generally, all local-level criminal cases are petty or misdemeanor offenses. States retain exclusive authority to prosecute state felony violations, and local governments share the prosecution of misdemeanor offenses like drunk driving and shoplifting that occur within the local government’s boundaries. Local governments usually prosecute violations of zoning ordinances or building codes because these matters are nearly always matters of local concern. Local courts may also enforce local traffic regulations that occur within the city, town, or county limits.

The loser in a case that starts in the local judicial system usually has an appeal as a matter of right to the next court level. This usually means that the appellant can take his case to the court of general jurisdiction in the state court system. To appeal the case any higher in the system, the party generally has to seek discretionary review from the higher court. The loser at the lower court may be stuck with the lower court’s original decision. This often happens with a plaintiff who loses in a small claims court, which handles matters involving small money damages (which could be anywhere from $1,000 to $100,000 depending on the municipality).

Order in the court: The bench trial

Although most trial court cases in the United States — especially criminal matters — are decided by a jury with a judge presiding over the case, some of the cases are more effectively argued to a judge without a jury. In cases where the right to a jury is waived, the judge decides both the issues of law and the issues of fact. A trial by a judge alone is also known as a bench trial.

When you refer to judges collectively, you usually refer to them as the bench (just as you refer to attorneys collectively as the bar). All members of the bench are also members of the bar (but that doesn’t mean they drink heavily!).

Usually, an attorney requests a bench trial in cases, like complex contract disputes, where the facts are pretty straightforward but the law is complicated. For these cases, the parties need a judge to interpret complex law and determine whether someone breached the law.

Other reasons for requesting a bench trial concern time and money. As you might imagine, a jury trial takes much longer to conduct than a bench trial, sometimes as much as 40 percent longer! The trial backlog in the U.S. justice system is generally much greater for jury trials than bench trials, and jury trials cost more to conduct. The loser in a lawsuit usually ends up paying the opponent’s court costs by law in most cases. But often, neither of the parties recoup what they spend on legal fees, and the longer the trial, the greater the fees! (There are two notable exceptions to this general rule: When a law provides for payment of legal fees to the winning party, such as lawsuits involving civil rights violations, or in contract cases where the contract itself has language that specifies that the losing party must pay reasonable attorney fees and costs to the prevailing party.)

Petition to your peers: The jury trial

Worldwide, approximately 95 percent of all jury trials take place in the United States. Many paralegals who have served as jurors express the same feelings of pride and satisfaction articulated by others who have been involved in the jury system. Participating in the jury process is an unequaled lesson in democracy, and if you haven’t served on a jury, you should plan to sit through a jury trial or two to get some firsthand knowledge about judicial procedure.

A party’s attorney and paralegal should sit through a hearing or trial in the judge’s courtroom before appearing before that judge. This way they’ll be prepared for the judge’s courtroom etiquette and rulings on evidentiary issues.

In most states and counties, jurors are chosen at random from several different computerized lists, like voter registrations, motor vehicle registrations, driver’s license records, and property tax rolls.

The jury’s responsibility is to sort through the facts presented by both sides at trial and decide what’s true and what’s not. A jury determines things like whether a witness is credible or not. It then renders a verdict based on its decision.

In most state criminal trials, juries have to unanimously agree on whether the accused is guilty. The prosecutor, or district attorney or attorney general, must present enough evidence to the members of the jury to convince them that the accused committed the crime charged beyond a reasonable doubt. So, every juror (all 6 or 12, depending on the trial) must agree beyond a reasonable doubt with the verdict of guilty. If they don’t, the accused is deemed to be innocent. In death penalty cases, the jury’s sentencing recommendation also has to be unanimous. In a civil case, the burden of proof is usually by a preponderance of the evidence, meaning that plaintiffs must convince the jury (or judge in a bench trial) that it’s “more likely than not” that their version of the facts is true.

Either the plaintiff or the defendant may request a jury. If the plaintiff doesn’t file a jury demand and include the required jury fee, the defendant may do it. In any case, a jury request is rarely granted if it’s not made before, or shortly after, the close of pleadings. In other words, a jury demand usually must be filed no later than ten days after service of the last pleading.

As always, you should consult your state and local rules of court to figure out the last day allowed for filing of a jury demand. You wouldn’t want to miss this critical deadline! Usually, plaintiffs’ attorneys request a jury at the same time they file the complaint, and, if the plaintiff has not previously requested a jury, defense attorneys demand a jury when they file their answer.

Attorneys often consult with paralegals about whether to try a civil case to a jury or just a judge. The tactical decision of whether to argue a civil action to a jury is among the more important decisions to be made in the litigation process.