Overview of the American Legal System and the Life of a Case
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Overview of the American Legal System and the Life of a Case

November 21, 2019

you can see, my job is in the next 15
minutes or so to give you an introduction to the entire
United States legal system. This will of necessity
be an introduction. And actually there’s
something useful to say about that before we jump in. I am having the weird
experience of realizing that my first day of law school,
I was sitting where you are all sitting in this room. And I was someone who did not
have lawyers in my family. I have a cousin who’s younger
than me who is a lawyer now, but when I was in your
position, I had no lawyers whatsoever in my family. And I knew some things,
and some of what I’m about to talk with
you about this morning 1L me would have known. But I can now say this with
the safety of many years in the past, 1L me
definitely would not have known some of this. So to the extent that I’m saying
some things that you already know, super for you,
great, good job. To the extent that I’m saying
some things you don’t know, that’s fine. In fact, my assumption
is that at least some of these things, at least
some, if not many of you will not know. And that’s the whole
reason for doing this, is to make sure that
everybody knows these things. And this is not your
one and only chance to hear these things. I think virtually everything
I’m going to tell you today you will hear again in a class. So it’s not like, oh my god,
if I forget something he said, I’m doomed. The goal is to sort of start
with the intro to make sure that everybody has the
same basic information and then build out on that
throughout the next week, month, semester,
year, and three years. OK, so we’re going to talk
about three basic topics today. We’re going to talk
about types of law. We’re going to talk
about types of courts. And we’re going to talk about
the life cycle of a case. So three things, types
of law, types of courts, and the life cycle of a case. So let’s start
with types of law. So on one hand, this
seems maybe obvious, but one of the things
that’s going– but this is something that may not emerge
cleanly in any of your classes. It might emerge cleanly
in more than one of them, is that there are
different types of law. And the sort of
fundamental principle here, sources, form– sorry,
sources, forms and hierarchy. So now we’re going to
talk about types of law, the sources of law, the forms of
law, and the hierarchy of law. So when we start with
sources, on one hand, it seems maybe obvious, but
this is the big picture. Like I have a lot
of stuff here today, but I have like six things, that
if you remember nothing else, you should remember those. And the one that I’m about
to say is one of these because you can get really
wrapped around the axle if you forget this one. Which is– this is really slow. Law requires a law giver, right. And so you’re going to
encounter a famous case called Erie Railroad versus
Tompkins in civil procedure. This isn’t necessarily how
we used to think about it. We used to perhaps think
that law was something that was sort of out there or
was inherent, or was natural or could be deduced
from first principles. But the modern United
States legal system is based emphatically
on the notion that the existence of
law requires a law giver. Requires someone or something
with the ability to create law. There’s a famous dissent by
Justice Oliver Wendell Holmes where he says that the
law is not a brooding omnipresence in the sky. If there is a law, there is
behind that law a law giver. And in the United States there
are fundamentally two and only two law givers. One is the federal government. And one is the
state governments. Fundamentally,
anything that we’re talking about in the
United States as law is going to derive either
from the federal government or the state government. Now some of you might
be thinking, but what about local government? Great question, I’ll answer the
question that one of you asked. What about local government? This is sort of a high
level conceptual point, because of course cities
and municipalities enact ordinances and
laws, but at least the way our federal system
currently works, their authority to
do so ultimately comes from the states. To the extent that the city of
Charlottesville enacts a law, it is because the state or
the Commonwealth of Virginia has given the city
of Charlottesville the ability to enact a law. So the ultimate
source of that law is the state government
or the federal government. So that’s a really
important conception if we’re talking about law, as
opposed to ethics, as opposed to morality, as opposed
to rules for how we should live our lives in general. If we’re talking about
something called law, it’s coming from some law giver. And in the United
States legal system, there are two and only
two ultimate law givers. OK, so now we’re going
to talk about forms. Law takes different forms. And one of the
things that you’re going to be doing throughout
the first year curriculum is identifying or dealing with
the different forms of law. Now different classes
will focus maybe more on one of these forms
and less on other. Some of these classes won’t
talk about some of these forms at all. But it’s useful to sort of
get on the board at least the list of the
forms of this thing that we call law can take. So obviously the first one
is constitutions, right. Both the federal
government and every state has a constitution, right. This is a written
instrument that is the highest form of
law within that particular jurisdiction, and the
federal government and every state of the
union has a constitution. So that’s one form of law. You’ll obviously be talking
about this primarily in constitutional law when
you take it in the spring, but it will pop up here and
there throughout the classes that you take in
the fall as well. My class, my fall 1L class
has been civil procedure. You’ll be talking
about the due process clause in civil procedure. It may– it’s going
to show up perhaps occasionally in criminal law. Although mostly for the
proposition that when it comes to the content
of the criminal law, the US constitution
imposes very few limits, but there are some outer limits. And so you’ll encounter it
in criminal law a little bit as well, probably less so
in torts and in contracts. So then there are
treaties, right. So treaties are international
agreements between sovereigns, between usually the United
States and one or more other countries. Under our system
though, treaties are a form of federal law. So the reason that
treaties are legally operative within the
United States legal system is because treaties
sort of operationalize as federal law within the
confines of the United States. Treaties are a federal
only thing, right. One of the very many
things you’ll talk about in constitutional
law, one of the things that the federal constitution
was designed to do was to prevent the
states from conducting their own foreign policies. And so one of the
things there is that only the
federal government, of the two sovereigns, the
federal and state, only the federal government
can enter into treaties. State governments cannot
enter into treaties. The next category you’ll see
is legislation or statute. So here is confession
number one. When I started law
school, I almost certainly did not know what a statute was. A statute is just another
word for legislation. It is a form of law enacted by
the legislative body of the law giver. So the things enacted by
the United States Congress are statutes, the things enacted
by the legislature of Virginia are statutes. Statutory law is just
a form of law enacted by the legislative body
of the relevant sovereign, we also call that legislation. Which is easier because it
has the word legis in it, which reminds you what it is. And in our system, both the
federal and state governments enact legislation. You’ll be encountering
legislation in the first year
curriculum probably mostly in criminal law. You may encounter
it some in contracts depending on whether your
contracts class talks about the Uniform Commercial
Code, which most of them probably do. But that’s statutory law. Now there’s a subset of this. Some of you have encountered
regulations, right. Enacted by
administrative agencies, or rules promulgated by court. So for example, every
court or almost every court that I’m aware of
has rules of court. That are the sort of rule. There are things like
filing deadlines, and procedural things. This is compressing a lot,
but ultimately the authority for legislate– excuse me,
for regulations and for rules, almost always derives
ultimately from legislation, that there is legislation. So when the Environmental
Protection Agency issues a regulation, formally
speaking, usually what happened is there is legislation
that creates the EPA that gives the EPA certain
powers and that includes the ability of EPA
to promulgate the regulations. But the ultimate source of
authority for that regulation is the statute that gives
the EPA the authority to create that regulation,
same thing with courts. That there are frequently either
the Constitution or legislation confers upon courts
to create rules governing their own procedure. But the ultimate source of
authority for those rules is either the Constitution
or legislation. OK, now there’s
this last one, which was probably the
most mysterious to me when I started law school. Again, fair confession,
when I started law school, if someone said
to me common law, I would have had very
little idea what that was. I would have probably
thought it had something to do with England. And it does, I mean it’s
not completely wrong that it has nothing to do with England. But common law is
just another way of expressing the
process of law making by courts in the course
of adjudicating cases. That when courts decide cases,
they announce principles, both to decide that case and
that will govern future cases. So for example, if a court
says, if one person sues another person for
a car accident, and one person sort of
rear ended the other. And the court said,
you know, basically you shouldn’t be trailing people
so close that if they brake, you end up rear
ending their car. And if you do, it’s just
categorically your fault legally, right. If one person’s car rear
ends another person’s car, the person who was
in the trailing car is just automatically
responsible. And the court says that, well
that’s a form of common law. And so not only will that rule
decide that case, that rule will apply in future cases. And so when we say common
law, really, all we mean is law that is created by judges
as opposed to by legislators, and doing so in the
course of deciding cases. That’s just what we
mean by common law. You will encounter
a lot of common law in torts because you’ll
learn that some types of law are almost entirely common law. Historically, the law of
torts has been almost entirely judge-made common law. The law of contracts has been
largely judge-made common law. In contrast, there is sort of
no common law civil procedure, and as you’ll learn
in criminal law, there is basically
no criminal– there’s no common law of crimes. In fact, one of the US
Supreme Court’s sort of initial decisions
was to say that there is no federal common
law of crimes. If you are going
to be prosecuted by the federal government
for committing a crime, it has to be based in a statute. You can’t– there is no,
as the court will say, there is no federal
common law of crime. OK, so those are the forms. Constitutions, treaties,
legislation, common law. So now we’re going to
talk about the hierarchy. And there’s obviously a lot
that goes into the hierarchy. I’m going to give you some
big picture principles about hierarchy here. These are not, you know,
by any means exhaustive. You’ll spend a lot of time in
classes talking about them. But there’s a few big picture
things that will help you, some rules of the
road that’ll help you. So the first rule,
federal beats state. We have a federal system,
that our federal system is very clear that in
our federal system, federal law is supreme
over state law. So as long as the
federal law is valid, that’s an important caveat. But as long as the federal
law is a valid federal law, it automatically takes
precedence over any other state law. And the place that we know that
is the federal constitution has a provision
called the supremacy clause that says that. That says this
Constitution, treaties– I’m never going to be able to
quote the supremacy clause, I don’t know why I
just started to try. You ever do that? You start talking,
and then you realize I can’t finish the sentence. So it basically says
valid federal law always supersedes state law. And it’s important
to realize it’s not just of the similar
types, any valid federal law supersedes any state law. So for example,
federal legislation supersedes state constitutions. It’s at every single level,
if there is a federal law that applies to this situation
and it is valid, it supersedes state law. Which means the
action will be, when it comes to a conflict
between federal and state law, the argument will be
either, well the federal law doesn’t actually apply here, so
state law still governs right. If you’re trying to argue
that state law still governs notwithstanding the
existence of federal law, you can’t say state
law beats federal law. So your two options are
going to be to say one, I know it looks like the
federal law applies here, but it doesn’t. The federal law
doesn’t apply here, and because the federal
law doesn’t apply here, we still apply state law. The other option is to argue
that the federal law is invalid somehow. That it violates
the Constitution, that it exceeds the
authority of Congress or the president under
the federal constitution. And because the
federal law is invalid, the state law still
functions as well. But federal over state. The other one, again
you’ll encounter this in constitutional law. This is in some ways what
Marbury versus Madison is about, which may be the
first case you encounter in constitutional law. But the idea here is that
the Constitution always beats statutes. That a statute that
violates the Constitution, the Constitution wins. And that is uniformly true at
the state level too, right. Because states have both
constitutions and statutes, and the principle is
constitutions beat statutes. And then the third one is that
constitutions and statutes both beat the common law, right. The idea here is that judge-made
law is perhaps the backstop. It’s the law that judges
apply in the absence of a constitutional rule
or a statutory rule. But it also means that it
can be superseded by statute. So if judges announce
a rule and it says, you know the rule
that I just gave you about, if two cars get in an
accident, the trailing car is always responsible. There’s nothing that says
the legislature can’t enact a statute,
legislation that says that’s not the rule anymore. We don’t want that
to be the rule. Maybe the rule is– I mean, it would
be hard to imagine that you would do the rule
that says the car in front is always at fault
because that would seem to be a really stupid rule. But you could say,
you know, we think the courts were sort of
onto something in the sense that perhaps most often it’s
the fault of the trailing car, but we think they went too
far in saying it is always the fault of the trailing
car and no other factors could ever be relevant. So we say going forward
it is a factor that it was the trailing car, but
that does not in and of itself dictate the outcome that
the court said that it did. So the common law is always
sort of tentative and always preliminary, not just because
the courts could change their mind, but because
the legislature could come in and change their mind
and say, well, we don’t want that to be the rule anymore. So the hierarchy,
federal over state, constitutions over statutes,
and constitutions and statutes over the common law. OK, so that’s just types of law. Big picture stuff,
very, very big picture. We’re going to be similarly big
picture about types of courts. Now I want to preface
this by saying this is a place in which
the US legal system is deeply atypical, and one could
even argue deeply strange. There is stuff in this
part that I definitely would not have known when I
was sitting where you are. So, if you, again, same
caveats, if you know everything I’m about to say, good for you. Gold star or something. And if you don’t know
some of it, that’s fine. That’s the whole
reason we’re here. OK, so one of the
distinctions you’re going to encounter
right out of the bat is the distinction between trial
courts or appellate courts, or as we call it in some
other legal systems, courts of first instance versus
courts of second instance. So every– not every,
not actually quite true. Virtually every dispute that
makes its way into court starts out in a trial court. Not all, but the vast majority. The vast majority of disputes
that make their way to courts start out in a trial court. A trial court is
the court that you see on television and movies
the vast majority of the time. Because it turns out
appellate proceedings are really boring
to dramatize, which is why you rarely see them. This is where you
have juries, right. This is where you have
opening statements, this is where you have
closing arguments, this is where you
have witnesses, this is where we introduce
exhibits and evidence. The trial courts are the courts
where all of that happens. And they make the first decision
in the vast majority of cases. And here’s the thing to know,
the vast majority of cases, trial courts not only
make the first decision, they make the last decision. Because the vast
majority of cases never get past a trial court. The reason I say
that is that this is one of the ways
in which the way that American legal education
works is deeply misleading. Because what you’re
going to spend the next three years doing is
reading and encountering mostly decisions of appellate
courts, which could create the impression that
appellate courts are the norm or the important courts. But in the vast majority of
disputes, that’s not true. The vast, vast, vast
majority of courts never get past the trial
courts, and thus never get to the appellate courts. The appellate courts,
we don’t call witnesses. There is no jury. This is lawyers
arguing to judges, and it’s mostly
written arguments. Lawyers are filing briefs
that are read by judges, sometimes there
are oral arguments but they are usually
15 to 20 minutes long. So that is the first
important distinction that we’re going to see here. And there’s a lot
about the relationship between trial and
appellate courts that we won’t go into here. But that’s just one distinction,
is this a trial court or is it an appellate court. The other thing,
this is the place that the US legal system
is deeply, deeply atypical. Is that in the
United States we have 51 separate judicial systems. And what do I mean by that? So every state has
its own courts. All 50 US states have
their own courts. The court, so let’s just
take Virginia, Virginia has a system of state courts. And those courts are called
circuit courts and district courts and the Court of
Appeals and the Supreme Court of Virginia, right. And those are spread
all throughout Virginia. And every other state
has the same thing. So that’s basically
what it looks like. What you always have, is you
have a series of trial courts all over the state
feeding usually to one or more state
intermediate appellate courts, feeding to a state high court,
which is usually, but not always called the
State Supreme Court. The highest– the highest
court of every state is not called the Supreme
Court, in Virginia it is, and it is in most states
but not in all states, OK. Those decisions of
the state high court are in turn reviewed by
the US Supreme Court, which is created by Article III of
the federal constitution, right. OK, so this is a
fairly normal system. You could imagine a
judicial system that just looks like this, right. That you have
political subdivisions, those political subdivisions
have their own courts, they all feed to the
single national court. This is extraordinarily
dangerous– I’m about to say something
about another legal system that I know dangerously little
about, but is broadly speaking, this is my understanding how
Canada’s courts basically work. If I’m wrong about that, any
Canadians in the room, sorry. But that’s broadly how I
understand how it works. So or for example,
it’s like this. You have every state has its
own courts whose high court decisions are in turn reviewable
by the US Supreme Court. This is how I basically think
the Canadian judicial system works. But we do something a little
bit different and a lot weirder. So it’s not only true that
every state in the United States has its own courts, every
state in the United States actually has two parallel
sets of courts existing in the same state. Every state in the United States
has both state and federal courts within the same state. So what you actually have
is something like this. This is– and this is true
in every single state, right. In every single state you have a
parallel network of state trial courts that feed to a state
Supreme Court, that in turn feed to the US Supreme Court. And in the very same state
you have federal trial courts, which are called
district courts. United States district courts
are the federal trial courts, which are themselves reviewable
by a federal court of appeals, which we call the United
States Courts of Appeals. Which in turn feed to
the US Supreme Court. But notice these
two systems don’t converge until you get to the US
Supreme Court, which means that neither– on both sides of
that, these courts are not in each other’s
chain of command, right. This creates a certain
amount of inherent tension, so the federal courts of appeals
and the state supreme courts are both subject to
the US Supreme Court, but they’re not reviewable by
each other, which can create a fair amount of tension. We’ve actually had
a surprising amount of that in Virginia
in the last few years. So the courts of appeals
are also the courts that people sometimes call
circuit courts, right. When you encounter, you
know, the circuit court of appeals for the
something-something, right. So their formal name
is the United States– so the court of appeals of this
jurisdiction, its official name is the United States Court of
Appeals for the Fourth Circuit. It doesn’t actually
have the words circuit anywhere in its
official name, but when people talk about a
federal circuit court, they’re talking about a United
States court of appeals. I’m going to show you
a map of the circuits and help you realize something
that I didn’t realize until I was years out of law school. So here we go. So they are numbered circuits. So this map makes
a lot more sense if I give you two
facts that help explain the bizarre numbering, right. Because on one hand it seems
like it sort of makes sense, but then why is 11
in the bottom right and why is 10 in the middle? OK, so I want you to go
back to a simpler time. In a simpler time, there
were only nine circuits. There were 1 through 9. And the way to
understand the reason they look the way
they do right now is that the former 5th
circuit encompassed the former– the current 11th. So the current 11th used
to be part of the 5th, and the 10th used to
be part of the 9th. And that map all of a sudden
makes a lot more sense if the 11th was part of the
5th, and if the 10th was part of the 9th, right. Because then you
basically sort of start in the upper right
hand corner and you’d work your way down
the eastern seaboard, and you go one, two,
three, four, five. And then you go six,
and then you go seven, then you go eight,
and then you go nine. So the geography would
basically make sense. The reason the numbering looks
like this is there were two splits. I don’t remember when the
10th circuit was carved out of the 9th, I think that
was a fairly long time ago, which is why it’s
the 10th, not the 11th. The 11th wasn’t carved
out of the 5th until 1981. So then the question
is, why is that the 11th and why is that the 5th? The reason for that I think
I’ve been able to determine is that the main home
courthouse of the 5th circuit is in Louisiana,
it’s in New Orleans. And so my suspicion is
that when they decided to split the 5th circuit
into two circuits, they didn’t want
to move the home courthouse of the former 5th
circuit out of the 5th circuit, or Texas just didn’t want
to be in the 11th Circuit. One of those two things. But these are the federal
courts of appeals, they’re broadly– as you can
see, we are in the 4th circuit here, which is Maryland, West
Virginia, Virginia, North Carolina, and South Carolina. One of the nice
things about work– so the home city or
courthouse of the 4th circuit is in Virginia, it’s
actually like two blocks from my office in Richmond. Which is a really nice
perk, having the court– one of the courts that you argue
before at with some regularity be two blocks from your office. I highly recommend it
if you can arrange it. So those are the circuits. OK, moving on. If you remember nothing else,
I have like three big things here when we’re talking
about types of courts. If you remember nothing else,
and the reason these are if you remember nothing
else, as a person who’s taught classes involving
these things for years, people often find
these not intuitive. Many, many, many cases can be
heard by more than one court. You could imagine a
legal system where a given dispute can be heard
by one and only one court. So if you and I get
in a car accident, you could imagine a legal
system that says there is one and only one right
place that that car accident gets litigated. Or if you and I
have a breach in– a breach of contract action,
we could imagine a world where there is one
and only one court. Or if I want to sue
someone for violating my rights under the federal
employment discrimination clause, a federal employment
discrimination legislation, you could imagine a system that
says there’s one and only one place that suit can be brought. That is not the system we have. I would actually say
that most disputes can be heard in more than one court. So that’s a really
important thing to realize, you’re going to
spend a lot of time on this in a variety
of classes, is talking about what court
can hear what disputes. Because it’s also true of state
to state, state to federal, as in many disputes could
be heard in the courts– I’m not just talking
about different courts within the same state. I mean many disputes
could be heard in the courts of
more than one state. Let me give you a really
easy example, probably. If two people from two different
states enter into a contract and there’s an allegation
that one of them breaches, there’s a very good chance
that both of their home states could hear that lawsuit. It’s also the case that
many disputes can also be brought in state
court or federal court. That’s going to
give you something that I’m going to do at
the very end of this. But there are many
disputes, you could also imagine a world in which
state courts hear state law, and federal courts
hear federal law. That is not the
rule we have either. In fact, presumptively
state courts can and must hear federal law,
and federal courts can and do hear
issues of state law. But it’s also the case that
no court can hear everything. Every court has limits on
the cases that they can hear. So one of the
things you’re going to spend a lot of time
about in different classes is talking about what
courts can and what courts can’t hear a given dispute. So that’s an important
thing, every court– most disputes can be heard
in more than one court, but no court can
hear every dispute, so we spend an awful lot of
time trying to figure out what courts can hear what disputes. But this is the other one
that I think people often find very difficult. You could
imagine a world in which state courts apply state law
and federal courts apply federal law. That’s not true either. State courts apply
state and federal law, and federal courts apply
state law and federal law. So in other words,
just because– and last thing,
some state courts will apply the laws
of other states. In other words, you
could imagine a dispute that is brought in Virginia
State Court, that is governed by North Carolina law. You could imagine a dispute that
is brought in New York State Court that is governed by
the laws of North Dakota. Now we’re not going to get into
how and why that would happen, but it’s important to recognize
from the outset that it’s not. Because it’s really easy
to assume that courts necessarily apply the law
of their own jurisdiction, and that’s not necessarily true. Which is why there’s an entire
class in law school called choice of law about how
courts go about figuring out what law to apply. You’ll also encounter
this in civil procedure. So courts can hear– most disputes can be heard
in more than one court, no court can hear every
dispute, and courts don’t always apply their own law. That’s the big picture
takeaway on the type of courts. The big picture takeaway
is that the judicial system of the United States
is complicated. It is probably unnecessarily
complicated, but here we are. OK, so that’s that. So now what we’re
going to do is we’re going to talk big
picture, broadly speaking about the life of a
case, with apologies in advance to your criminal law class. This is probably going to
be more focused on the life cycle of a civil
case, but I will try to remember to occasionally
say things about criminal cases as well. So we’re going to talk, again,
very big picture about the life cycle of a case from
beginning to end. You’re going to spend a lot
of time in civ pro about this, but it will also come up
throughout your other classes as well. So commencement, we
have to begin the case. The process of
initiating the case. Pretrial, we’ll talk a lot
more about what that means. Trial, appeal, that’s how
cases get from trial courts to appellate courts. And preclusion, which is
just a term we’ll talk about. But preclusion basically
means OK, so our case is over, what does that
mean going forward? What are the consequences
of that case going forward out into the world, right. OK, so real quick,
commencement, this is sticky. OK, so broadly speaking,
we have to do two things to commence a case. And you’re going to spend a
lot of time in civ pro on this. Broadly speaking, you
got to do two things. One, you have to file
the case with the court. You have to do something
to initiate litigation in the court. Now in civil cases this
is called a complaint. The complaint is the
document that you file with the court that
initiates litigation. In criminal law, this is usually
something called an indictment, or an information,
and you’ll get into what the difference an
indictment and information is. But what these all
have in common, this is the document
that initiates the case. And one of the
things that you’re going to spend time
on in various classes is the contents of the document
that initiates the case. What has to be in
it, what can’t be in it, what is the role
of the document that initiates the case, right. The other thing we have to
do is that, broadly speaking, every dispute has
a defendant, right. There’s the– the prosecution,
the plaintiff, the this, that. But one thing that virtually
every piece of litigation has in common is that has
at least one person who we call the defendant. And since the
defendant is the person who is at the risk of
having something bad happen to them,
right, going to jail, paying money, being ordered
to do or not do something. One of the things
that you’ll see, one of the sort of
ultimate bases– one of the ultimate
fundamentals of due process is that if the legal system is
contemplating doing something bad to someone,
restricting their liberty or rights in some
way, we probably should tell them, right. We should probably tell them
that we’re contemplating doing something bad to them. And so one of things you’ll
encounter in various classes is the rules governing,
notifying the defendant, and making the defendant
aware of the things that– so literally notifying them
in the sense of someone is suing you. But also going one step further
off it and saying someone is suing you, they’re suing you
for x, they’re asking for y, and if you don’t do anything the
consequences will be z, right. The process for notifying the
defendant, what type of notice, what form of notice, and
what timing of that notice. OK, that’s commencement. So then we’re going to move on. The case has been commenced,
we’ve started the case. And you might think,
OK, let’s go to trial. No, no, no, no, no, we never
ever go just right to trial. I mean maybe for like a
traffic ticket or something. But for any dispute of
any legal consequence, we do not go straight to trial. We do a lot of things
before we go to trial. And in fact, here’s one of those
things you’re going to learn. If you haven’t encountered this
already, here’s the secret. The vast, vast, vast majority
of cases never go to trial. The vast, vast, vast majority of
cases, both criminal and civil, end in this period
that we call pretrial. And they end for one of
two reasons, they end– well, one of three
reasons actually. They end because one of
the parties gives up, they end because
the parties settle, or they end because the court
issues a ruling that ends the litigation before trial. One of those three things– I guess the four available
options on the board, one party gives up,
the parties settle, the court does something that
ends the case before trial, or the case goes to trial. Of those four things, the last
one is by far the least common. The least common. And if you add the
first three up, they collectively happen
far, far, far more often than the fourth one. So why do cases
sort of disappear during the pretrial phase? Well there’s a couple of
things that are happening. So one thing that happens often
are initial motions by one of the parties. And you’re going to
spend a lot of time in civil procedure in particular
talking about those motions. So one of the things,
just to link together what we were saying before
with what we’re saying now, this is the stage of the
trial where one of the parties can say, turns out we’re
in the wrong court. We can’t be here, this court
can’t hear this dispute, we should have to go
somewhere else, right. So this is one of
the things that happens during the
pretrial litigation phase. One of the parties argues
we are in the wrong court, this court cannot
hear this dispute. Another possibility
is that you can say there’s just something
wrong with this case, right. That some number of
cases get thrown out because the court looks
at that initial document, the indictment or the complaint,
and the other party says, look, I’m looking at their allegations
and their allegations just aren’t enough to state
a claim against me and the lawsuit should
be thrown out right now. You’ll spend a lot of time
in civil procedure talking about that, but broadly
speaking, broadly speaking, there are two bases under which
lawsuits can get thrown out on this ground. One of them is the
thing you’re accusing me of doing is not illegal. The thing you’re
accusing me of doing does not entitle you
to any sort of relief. So one way that
would go, is let’s assume for the sake of
argument that everything you’ve just accused me
of doing is 100% true. That I did everything you
just accused me of doing. I am not guilty of a crime,
or I am not liable to you because the thing you
have accused me of doing is not unlawful. So we should stop
this case right now, because if this
case goes to trial, you’re just going to try
to prove the things you’ve accused me of. And for purposes
of my motion, I am willing to assume
that you can prove that I did everything
you’re accusing me of, and I should still win, right. So the lawsuits get
terminated on that ground. The other way they get
terminated sometimes is that your allegations
are insufficient. You haven’t adequately
explained the thing that you’re accusing
me of doing, and you should either have
to give more explanation or your lawsuit
should be thrown out. But that’s the
category and this is the place where that gets made. But the other thing
that happens is something called discovery,
which is essentially a process by which the
parties exchange information and often hurdle
insults and accusations. But essentially there is this
incredibly elaborate process of pretrial discovery. In civil cases, there is
a less elaborate but still sometimes substantial context. In criminal cases where the
parties exchange information, they say what evidence
do you have of this, and they take each
other’s depositions, they exchange documents. They have– there’s process
where they can pose questions to each other and the
other side has to answer and this is sort of
the discovery process. This in civil
litigation can go on for a very long time, a very,
very long time sometimes. And then what often culminates
is one of the things discovery does, is it often
culminates in a procedure called summary judgment. Where one of the
parties says OK, well we’ve exchanged
all the information, and based on the
information we’ve all exchanged it is apparent that– this is a motion you
make to the judge. And what you say
is we’ve exchanged all of our information and
based on all of the information that we have exchanged,
it is apparent that I am going
to win this case. That there can be only
one reasonable explanation and it is so clear that I am the
only one who can win this case, we don’t need to have a trial. We don’t need to
bother a jury, we don’t need to call witnesses,
because the others– this is usually the defendant,
and you’ll talk and civ pro about why it’s
usually the defendant, but procedurally
speaking, the party that moves for summary judgment
is almost always the defendant. And the short
explanation of that is because the defendant
doesn’t have the burden of proof at trial, it’s much
easier for the defendant to get summary judgment
than the plaintiff. And so what the defendant
will usually say, again, it isn’t always the
defendant but for purposes of explaining a little
more about this, let’s just posit
it’s the defendant. The defendant will basically say
I’ve seen all the plaintiff’s evidence, I’ve asked them– you know, so they allege
something against me in the complaint. I’ve asked them for all
the factual information they have that would support
the conclusion that they alleged in the complaint, and either
they have no evidence at all. They’ve admitted they
have no evidence that goes to one element
of their case, or the evidence that they
have is inadmissible, or the evidence
they have is so weak that it could not
possibly support a decision in their
favor by a fact finder. And so we shouldn’t
go any further, you should just end this
right now and I should win. And then of course
there’s actually one more thing that I didn’t
put up on here is again another possibility. Because when I
mentioned before, one of the things that can
happen at every single stage here is that one of the
parties can give up, or the parties can settle. That is true throughout
this entire pretrial phase. Throughout this pretrial
phase, one of the parties can give up, that’s usually
going to be the plaintiff, or the parties can settle. And what happens at almost every
single stage of this litigation is once you move
one step further, it’s another
opportunity to settle. So one of the reasons that
very, very few civil cases in particular go
to trial is that I think the parties frequently
recognize that one of– assuming they go all the
way through discovery, one of two things
is likely to happen. The trial judge is going
to grant summary judgment to the defendant, or the
case is going to settle. In a lot of cases the
plaintiffs– and everyone who’s involved in the system
knows this is true by the way, right. Everybody knows that
frequently if the plaintiff can get past summary judgment, the
defendant is going to settle. Where they’re going–
they’re certainly going to make an offer,
or almost certainly going to make an offer. And so in order to get
to trial, you know, one, the trial court has to not
grant some sort of motion dismissing the case. Two, the plaintiff
has to continue. And three, the parties
have to not settle. The only way a
case goes to trial is if you get through this
entire process, which again can be quite lengthy
and quite expensive, without the parties settling,
without the plaintiff giving up, or without the trial
judge entering a decision. So if we get past that, and
I want to be clear again, this is a distinct, distinct,
distinct minority of cases, then the cases go to trial. And of course we have very
different rules for criminal, and notice when I
say the parties can settle, in criminal law we
just call that a plea bargain, right. A plea bargain is just
the criminal equivalent of a settlement, right. Is where the parties agree,
and usually what happens is the prosecution dismisses one– usually the prosecutor
can charge the defendant with multiple offenses
and so the prosecutor agrees to dismiss
some of the charges, but not all of the charges,
or the prosecution agrees to recommend a lower sentence. A sentence that’s
lower than the maximum that the defendant could get. But right, a plea
bargain is just the criminal law equivalent of
a settlement in a civil case. And if the same
thing happens there, if there’s a plea
bargain, there’s not going to be a trial because
the whole point of a plea bargain is not to go to trial. OK, so then there’s the trial. Again, very few
cases go to trial. Very, very few cases. But this is what you
would learn if you take trial advocacy, to the
extent you take evidence, which many of you will. You’ll learn about
the rules of evidence that primarily govern a trial. OK, so after that, there’s
the process for appeal. And really two things happen,
now notice, if someone settles, you can’t appeal. Settlement– appeal only happens
if either the trial judge decides the case or
it goes to trial. You’re going to learn
two categories of things. One is about when you
can appeal, right. And the short answer,
there’s a lawyer joke if you haven’t heard yet. You’re going to hear
a lot of lawyer jokes being in law school. One of them is a case in which
a lawyer calls their client to say the court has reached
a decision in our case, and the client says
how did it come out? And the lawyer said
justice was served, and the client says
appeal immediately. Cynical lawyer
jokes, a lot of fun. But the short answer
is despite the fact that your client might
say appeal, appeal, appeal, one of the things you’re
going to learn in law school is there’s actually pretty
strict rules about when you can appeal. You can’t appeal every
time you lose whatever. So there are restrictions on
when and how you can appeal. And there are also
issues of what are called standards of review,
which is appellate courts. I mean, it’s sort of weird
if we think about it, right. Because we empower
someone, the trial court, to make the decision. And then we empower appellate
courts to check their work. And so one question
is how closely should they check their work? Standards of review
are really just about how closely you
should check the work and what work you should check. And the thing you’re
going to learn there is that appellate courts
don’t simply do everything the trial judge did over. And so there are places
where appellate courts are deferential to trial
courts, and places where they’re less deferential. And those rules about
when the appellate court is more deferential
or less deferential just are called
standards of review. The standard of
review is basically how deferential, if at all,
should the appellate court be to the trial court. OK, now the case
is finally over. This is not really
about the life cycle of this
particular case exactly. But preclusion is
just a fancy way of expressing the basic idea. Think about why we bring
lawsuits in the first place. The reason we bring
lawsuits in the first place is because someone
thinks there’s something wrong with the world. And they want a court to do
something about it, right. That’s basically why we
bring a lawsuit, a criminal, or civil case. And the whole point of
bringing the lawsuit is to resolve this
disagreement, right. So I hit someone
with my car and they think I should have to pay
them, and not surprisingly, I don’t think I should
have to pay them. So we disagree about
whether I should have to pay them for me
hitting them with my car. And we could just sort of
come to blows or trade insults indefinitely, but
we go to a court in the hope of resolving our
disagreement about whether I should have to pay them for
hitting them with my car, and if so, how much. And so we go through all this
rigmarole of filing a lawsuit and litigating it, well
what happens if one party is unhappy with the outcome and
wants to start the dispute up again? Right, and you might
think, well doesn’t that violate the entire
point of going to court to resolve our disputes. The first principle of what
courts are supposed to do is to resolve the disputes,
and resolving the dispute means that the dispute
once resolved is over. And preclusion doctrines deal
with essentially the effect of the dispute in the past
on any further attempts to litigate the dispute,
or aspects of the dispute, or things that are
similar to the dispute. So preclusion
doctrine essentially is dealing with this intuition
that once a dispute is resolved, we don’t
reopen it, right. This is something you
encounter in your daily lives all the time. You’re like haven’t we settled
that, haven’t we resolved that, didn’t we decide that. And preclusion doctrines are how
you decide what it is that we have decided, and what it
is that you can bring up in the future and can’t. And I’m just going to mention
two subsets of preclusion. They’re called claim preclusion
and issue preclusion. You will encounter
these both in civ pro. I’m just going to give
you my like 30,000 foot overview of helping keep in
mind the distinction, because I found the distinction
between these two things incredibly hard. And I’m going to give you
examples from your own life, perhaps from your parents. So claim preclusion, claim
preclusion– actually I’m going to start with
issue, issue is easier. Issue preclusion is
the legal equivalent of why are you
bringing this up again, we already decided that, right. Like can I have– imagine you are six and
you really wanted a pony. Can I have a pony, and
your parent says no. Can I have a pony, they say
no, then we have a whole talk and they say you
can’t buy a pony, and then the next day,
you say I want a pony and they say we’ve literally
talked about whether or not you get a pony. And we have repeatedly decided
that you don’t get a pony, and we’re going to stop
talking about whether you get a pony now, right. That’s issue preclusion. Issue preclusion is we
already talked about this and we already made a
decision, and we’re not going to re-litigate the
decision that we’ve already made. That’s issue preclusion. This issue– now that
I think about it, this issue has
already been resolved and we’re not reopening it. Claim preclusion is its
cousin, but its distinct. Claim preclusion is the
why am I hearing about this for the first time now, right. Claim preclusion
is, you know, you had an argument
with your sibling and you sent it to the
judge, your parent. And your parent
said who was right, and then you come back
the next day and you say, you know, there was
something I didn’t mention when we were talking about
like whether I should get my own bedroom or not, right. I had another thought
that I want to mention, and the parent responds
why am I hearing about this for the first time
now, we literally had the discussion yesterday
about who got what bedroom. We heard– I heard you
out, you both could say everything you wanted to
say, and I issued a decision, and now you are trying to bring
up something that you haven’t brought up before. Why am I hearing about this
for the first time now? So notice, this is not
re-litigating something, this is saying you waited
too long to bring this up. You should have brought this up
earlier when we were discussing the general topic and I’m not
entertaining this discussion at this point. So that’s the basic
distinction there. So the big takeaways here,
again, this was a, I know, a quick, quick little intro
to a whole lot of stuff that you will spend, again,
the next week, month, semester, year, three years, or the rest
of your careers dealing with. But I hope at least
some of it was helpful. We talked about the types
of law, the types of courts, and the life cycle of a case. Enjoy this, this should be a
really fun, cool experience for you all. And I will confess to being
somewhat jealous that I don’t get to do it again myself. So thank you for having me. [APPLAUSE]

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