Paralegal Basic Legal Knowledge

Paralegal Basic Legal Knowledge 2014-15 (February 2015) Brian H. Lowy Instructor Paralegal Studies Program Professional and Continuing Studies Queens College

What is this? This material is meant to give you the basic knowledge to be able to take the first four introduction course in the Queens College Paralegal Program. It is basically the first class in the course Introduction to Law. The reason for these materials are for students who either have not taken the introduction course or who took it awhile ago. This material is also good for a review during the program. If you need more, you can look over the entire Introduction to Law material: http://brianlowyclasses.squarespace.com/introduction-materials/ Table of Contents CHAPTER PAGE 1 The Queens College Paralegal Studies Program 1 2 The Federal, State and Local Governments 5 3 The Three Branches of Government 7 4 The Court Systems 9 5 The Federal (United States) Court System 11 6 The New York State Court System 17 7 Types of Law: 25

1 The Queens College Paralegal Studies Program The Program Welcome to the Queens College Paralegal Studies Program. In this program you will learn how to be a paralegal. In order to do this, you will be taught about the government, law and the legal profession, as well as trained in the skills necessary to be a successful paralegal. We provide comprehensive and practical training in those areas of the law that prepare paralegals to assist attorneys. The training here includes legal research, factual analysis, case preparation for civil litigation and criminal proceedings, preparation of legal documents and other forms, case schedule maintenance, and law office administration. Every course will emphasize the ethical considerations involved in the paralegal field. The website can be found at: http://www.qc.cuny.edu/pcs/programs/paralegal/pages/default.aspx. Professional Program This is a professional program, as opposed to an academic program. This means every course in this program is taught so that you can develop the knowledge and skills necessary to become a paralegal. While some of our graduates will go on to law school or use the legal and paralegal knowledge and skills in a non-paralegal job, everything here is about becoming a paralegal. For example, this course is Introduction to Law. You can take an introductory course in college and depending on the academic department it will be taught differently because the expectations as to what you need to learn will be different. This program is structured so that you will develop the required knowledge and skills to be a paralegal. We start with five required courses (1) Introduction to Law, (2) Legal Writing, (3) Legal Research, (4) Civil Litigation I, and (5) Civil Litigation II that teach you the basic legal knowledge and skills you will need to successfully complete the upper-level courses and then when you successfully complete the first four courses Civil Litigation II can be taken with upper level courses you get to choose at least seven upper level elective courses. All courses will teach you law (knowledge) and skills, but most courses will emphasize one or the other. Page 1 of 29 Pages

The Basics Chapter 1: The Paralegal Program 2015 Course Emphasis Examples: Knowledge Versus Skills Course Example Example of Something You Will Learn Introduction to Law Legal Research Civil Litigation I Criminal Law Knowledge Skill Skill Skill Knowledge Knowledge Skill Knowledge Skill What are the different types of law and how are they applied and interpreted? How do you analyze the statute and apply facts to it (legal analysis). How to find a case using a library How to do research on Westlaw What is the Statute of Limitations? How can a civil action be commenced? How to draft a summons and complaint What the law pertaining to search and seizure? How do you draft a motion to suppress physical evidence? Wills, Trusts and Estate Knowledge What are the legal requirements for a will? Probate Preparation for Estates Skill What forms are required in order to probate a will? Page 2 of 29 Pages

The Basics Chapter 1: The Paralegal Program 2015 Emphasis on Developing Course Knowledge Skills Required Courses Introduction to Law and Ethics Legal Writing for Paralegals Legal Research Civil Litigation I Civil Litigation II Electives Advanced Law Office Technology Advanced Legal Analysis Bankruptcy Law Contracts and the U.C.C. Corporation Law Criminal Law Elder Law Family Law Immigration Law Law Office Management Medical Malpractice for Paralegals Personal Injury, Torts, and Insurance Law Probate Preparation for Estates Real Property Law Securities Law Wills, Trusts, and Estates Paralegal Internship Page 3 of 29 Pages

The Basics Chapter 1: The Paralegal Program 2015 In addition to the requirements of taking these courses, you are required to do the following in order to get a certificate from this program: # Attend 80% of all class sessions (most classes are 24 hours in class, which means that you must be in class for at least 19 of those 24 hours); # Earn a grade of C or higher in each of the five required courses (if you don t, you will be placed on academic probation and required to repeat each class you received less than a C); and # Earn an overall grade point average of 3.0 ( B ) or higher (if your average is A- or higher you will graduate with distinction). If you have any questions, complaints, compliments, concerns, etc., please see the administrator of this program. Sharon Shulman, Esq. Director She is located in Queens Hall, Room 105 and can be reached at 718-997-5709 Page 4 of 29 Pages

2 The Federal, State and Local Government There are three layers of government: (1) federal (i.e. United States) government; (2) state government (e.g. New York); and (3) local government (e.g. New York City). Each have exclusive and shared powers. This system of government is referred to as federalism. Each form of government has its own constitution, set of laws, and political branches. Federal New York New York City Constitution US Constitution NYS Constitution NYC Charter Statutes United States Code Consolidated Laws of New York NYC Administrative Code Administrative Law Code of Federal Regulations NY Codes, Rules and Regulations NYC Rules Executive President Governor Mayor Legislature Congress NYS Legislature NYC Council Exclusive Powers Shared Power Declare war Regulation of currency Regulation of Interstate Commerce Post Office Courts Establishing Corporations Issuing Licenses (e.g., professions, marriage, driver s) Conducting Elections Creation and enforcing laws (subject to the US Constitution s supremacy clause) Public Health Public Education Local services (police, fire, sanitation) (subject to the oversight powers of NYS) Page 5 of 29 Pages

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3 The Three Branches of Government The three branches are legislative, executive and judicial branches. They are called co-equal branches of government (i.e. in the long run no branch is more powerful than the other). Together they create a system of checks and balances whereby it is virtually impossible for one branch to do something without another branch or branches be a part of it in some way. When you hear the names of the branches it tells you what they basically do: Legislative branch legislates Executive branch executes Judicial branch adjudicates Legislative Branch The Legislative branch s main purpose is to create legislation. Often you will hear that the legislative branch is the only branch that creates law this is not correct. First, the legislative branch creates legislation (i.e. a bill) which may or may not become law. In order for that legislation to become law requires the executive to either approve that legislation (i.e., the executive signs the legislation and it becomes statutory law) or the executive vetoes the legislation and the legislative branch votes to override the veto by a two-thirds majority (in the history of the federal government this has been done only 4% of the time). Second, statutory law is only one of four types of law created by the government (the other types are constitutional law, administrative law and case law). The Senate in the federal legislative branch has the duty to confirm presidential nominees for the cabinet (and certain other positions in the executive branch such as commissioners) and the entire federal judiciary. The Senate in the NYS legislative branch has the duty to confirm governor s nominees for certain positions in the executive branch such as commissioners, and judges in the NYS Court of Appeals and Court of Claims. Federal Legislature (Congress) New York State Legislature New York City Council Senate Senate Council House of Representatives Assembly Page 7 of 29 Pages

The Basics Chapter 1: The Paralegal Program 2015 Executive Branch The Executive branch s main function is to execute the law. It will execute constitutional law, statutory law, administrative law and case law. Besides the executive, this branch also consists of other executives. Federal New York State New York City President Governor Mayor Vice-President Lieutenant Governor Public Advocate State Comptroller State Attorney General NYC Comptroller Cabinet (heads of departments) Commissioners for State Agencies Commissioners for City Agencies Judicial Branch The judicial branch consists of the courts. The purpose of the courts is to adjudicate cases and controversies. Alexis de Tocqueville in Democracy in America observed: There is almost no political question in the United States that is not resolved sooner or later into a judicial question. There are different levels in the court system. This allows for the case to start in the trial level and then, if necessary, be appealed to a higher court level. Only the federal and New York State have a judicial branch: New York City does not have a judicial branch. Page 8 of 29 Pages

4 The Court Systems In the United States there are two court systems: the federal court system and the state court system. Each state has their own court system. Unfortunately, while the concepts are the same, the names are not the same. For example, with the exception of a few states, both the federal and the state court system have a three tier system (trial, intermediate appeals and final appeals). 1 But the names of the courts differ. For example, the highest court in the federal system is the United States Supreme Court. In New York, the court is called the Court of Appeals. All American courts bear some resemblance to the federal courts established by Article III of the United States Constitution. Paradigm of a Typical Court System Highest Court (Court of Last Resort) (Usually the Supreme Court) Intermediate Appellate Court Trial Court (Court of Original Jurisdiction: Cases Start here) Does New York have a typical court structure? Of course not. Our highest court is not called the Supreme Court, it is the New York Court of Appeals. 2 The New York Supreme Court is a trial court. 1 Maine, Montana, Nevada, North and South Dakota, Rhode Island for example, have a two-tier systems. 2 Most states either have a Supreme Court of [State Name] or [State Name] Supreme Court. Maine and Massachusetts have a Supreme Judicial Court. West Virginia has a Supreme Court of Appeals. Oklahoma and Texas has separate high courts for criminal and non-criminal appeals: Supreme Court and Court of Criminal Appeals. And Maryland and New York s highest courts is the Court of Appeals. Page 9 of 29 Pages

The Basics Chapter 4: The Court Systems 2015 Most Cases Decided in State Court The fifty state-court systems together handle the overwhelming majority of all cases. There are roughly 100 million new cases filed in state trial courts each year: about a third are civil and criminal cases; about two percent are juvenile cases; and the remainder about two thirds are traffic cases. By contrast, annually the United States District Courts receive well under half-a-million cases, of which 80 percent are civil and 20 percent are criminal. 3 3 Report of the Administrative Office of the United States Courts. Among the types of civil suits entering the federal courts are civil rights actions, cases concerning personal injury and damage to property, and prisoner petitions. Of the federal criminal cases, 70 percent were felonies. They include: homicide (i.e., murder or manslaughter), tax fraud, robbery, forgery and counterfeiting, and drug offenses (the largest category of cases) Page 10 of 29 Pages

5 The Federal (United States) Court System The Federal Court System The United States Supreme Court The highest court in the land. There is only one. It is in Washington, D.C. The United States Courts of Appeal The intermediate appellate court. There are 13 US Courts of Appeals. The are divided into geographic areas called circuits (except for the Federal Circuit). The United States District Courts This is where almost all federal cases start. The are divided into geographic areas called districts. Page 11 of 29 Pages

The Basics Chapter 5: The Federal Court System 2015 The Federal Court System as it Relates to Queens County Federal Cases The United States Supreme Court The United States Court of Appeal for the Second Circuit United States District Court for the Eastern District of New York The Federal Court System Article III of the United States Constitution established the judicial branch as one of the three separate and distinct branches of the federal government. It established the Supreme Court. Congress created the other two levels of courts (the Court of Appeals and the District Courts). 4 Since the United States Supreme Court decided Marbury v Madison in 1803, 5 the federal courts have been the final interpreter of the Constitution because their rulings protect and enforce rights and liberties guaranteed by though not created by the Constitution. Through what is meant to be fair and impartial judgments, the federal courts interpret and apply the law to resolve disputes. The United States Supreme Court did two radical things in Marbury. First, it held that it had the authority to declare actions of the other two branches unconstitutional if they go beyond the powers granted by Articles I and II of the Constitution. That is, if the constitution does not state that Congress and/or the president has the power to do something, they cannot do that thing. 6 Second, the court held that it was the final interpreter of what the constitution means. That is, what the constitution means is what the Supreme Court says it means. 7 By doing these two things both of which are not directly in the constitution itself the court became, in function, a co-equal branch of government in power. 4 The Judiciary Act of 1891. 5 The entire case can be found at www.findlaw.com: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=5&invol=137 6 E.g., the president does not have the power to declare war, only Congress has that power. 7 Justice William Brennan would refer to this as the rule of five : the constitution is what five of the nine justices say it is. Page 12 of 29 Pages

The Basics Chapter 5: The Federal Court System 2015 United States Supreme Court The Supreme Court is the only court established in the United States Constitution (in Article III); all other federal courts are created by Congress: The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office. The United States Supreme Court consists of the Chief Justice of the United States and eight Associate Justices. At its discretion, the Supreme Court each year hears a very limited number of the cases it is asked to decide. Those cases begin in the federal or state courts, and usually involve questions about the interpretation and application of the United States Constitution or federal law. Of all the petitions to the court to hear the case, the court only accepts a few to hear and decide. Like other courts, the Supreme Court exercises the power of judicial review, or the power to declare federal or state laws as well as the actions of federal and state executives unconstitutional under the Federal Constitution. The decisions of the Supreme Court may not be appealed to any other body. Decisions of the Supreme Court are precedents that bind all lower courts, both federal and state. The Supreme Court generally respects its own precedents through the doctrine of stare decisis, but has in some cases overturned them. For example, Brown v Board of Education in 1954 overruled Plessy v Ferguson from 1896. United States Courts of Appeals The United States Courts of Appeals are the intermediate appellate courts of the United States federal court system. A court of appeals decides appeals from the district courts (the Federal trial court) within its federal judicial circuit, and in some instances from other designated federal courts and administrative agencies. There are currently thirteen United States courts of appeals. The eleven numbered circuits and the D.C. Circuit are geographically-based. For example, the Court of Appeals for the 2d Circuit is located in New York City. It handles appeals from federal trial courts called United States District Courts within the states of New York, Vermont and Connecticut. The thirteenth court of appeal is the United States Court of Appeals for the Federal Circuit. This court has nationwide jurisdiction over certain appeals based on subject matter. The Federal Circuit hears appeals from specialized trial courts, primarily the United States Court of International Page 13 of 29 Pages

The Basics Chapter 5: The Federal Court System 2015 Trade and the United States Court of Federal Claims, as well as appeals from the district courts in patent cases and certain other specialized matters. Jurisdiction and Procedure The geographic courts of appeals 8 possess only appellate jurisdiction, therefore they do not conduct trials. Rather, they decide only the question of whether the trial court (the Unites States District Court) followed proper procedures in reaching its conclusion in a particular case. Accordingly, an appeals court considers only the record (that is, the papers the parties filed and the transcripts and any exhibits from any trial) from the trial court, and the legal arguments of the parties. These arguments are presented in written form. Regardless of whether they are short (e.g., 20 pages) or long (e.g., 300 pages), they are known as briefs. In addition to the submission of briefs, many appeals will also have oral argument before the appeals judges. At such hearings, only the parties attorneys speak to the court. At issue is whether the trial court (usually referred to as the court below ) ruled on the law correctly (these are called questions of law ). Federal appeals courts do not address questions of fact (e.g., whether the defendant is guilty or not guilty). 9 In other words, they rely on the US District Courts to gather the facts through hearings and/or trials. The rules that govern the procedure in the courts of appeals are the Federal Rules of Appellate Procedure. 10 In a court of appeals, an appeal is almost always heard by a panel of three of the court s judges, although there are instances where all of the judges will participate in an en banc hearing. As stated before, there is no right to appeal a decision of the Court of Appeals to the US Supreme Court, but a party may apply to that court to review a ruling of the circuit court called petitioning for a writ of certiorari and if the Supreme Court agrees, then the matter is treated as an appeal to the Supreme Court from the circuit court. United States District Courts The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are commenced in the district court. There is a United States bankruptcy court in each US district court. There is at least one courthouse in each federal judicial district, and some large districts have more than one. The formal name of a district court is, for example, United States District Court for the Southern District of New York. Usually it is referred to as US District Court (SD-NY). There is at least one judicial district for each state, the District of Columbia, and Puerto Rico. There are also Districts Courts in Guam, the Virgin Islands and Northern Mariana Islands. 8 NOTE: The Court of Appeals for the Federal Circuit is NOT a geographic court. 9 The intermediate appellate court in New York State (i.e., the Appellate Division) can hear of errors in fact. 10 http://www.access.gpo.gov/uscode/title28a/28a_3_.html Page 14 of 29 Pages

The Basics Chapter 5: The Federal Court System 2015 Jurisdiction of Federal Courts Before a federal court can hear a case, or exercise its jurisdiction, certain conditions must be met. First, under the Constitution, federal courts exercise only judicial powers. This means that federal judges may interpret the law only through the resolution of actual legal disputes, referred to in Article III of the Constitution as Cases or Controversies. A court cannot attempt to correct a problem on its own initiative, or to answer a hypothetical legal question. Second, assuming there is an actual case or controversy, the plaintiff in a federal lawsuit also must have legal standing to ask the court for a decision. That means the plaintiff must have been aggrieved, or legally harmed in some way, by the defendant. Third, the case must present a category of dispute that the law in question was designed to address, and it must be a complaint that the court has the power to remedy. In other words, the court must be authorized, under the Constitution or a federal law, to hear the case and grant appropriate relief to the plaintiff. Finally, the case cannot be moot, that is, it must present an ongoing problem for the court to resolve. The federal courts, thus, are courts of limited jurisdiction because they may only decide certain types of cases as provided by Congress or as identified in the Constitution. In general, federal courts may decide cases that involve the United States government, the United States Constitution or federal laws, or controversies between states or between the United States and foreign governments. A case that raises such a federal question may be filed in federal court. Examples of such cases might include a claim by an individual for entitlement to money under a federal government program such as Social Security, a claim by the government that someone has violated federal laws, or a challenge to actions taken by a federal agency. A case also may be filed in federal court based on the diversity of citizenship of the litigants, such as between citizens of different states, or between United States citizens and those of another country. To ensure fairness to the out-of-state litigant, the Constitution provides that such cases may be heard in a federal court. An important limit to diversity jurisdiction is that only cases involving more than $75,000 in potential damages may be filed in a federal court. Claims below that amount may only be pursued in state court. Moreover, any diversity jurisdiction case regardless of the amount of money involved may be brought in a state court rather than a federal court. Federal courts also have jurisdiction over all bankruptcy matters, which Congress has determined should be addressed in federal courts rather than the state courts. Through the bankruptcy process, individuals or businesses that can no longer pay their creditors may either seek a court-supervised liquidation of their assets, or they may reorganize their financial affairs and work out a plan to pay off their debts. Page 15 of 29 Pages

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6 The New York State Court System The New York State Court System Court of Appeals, State of New York The highest court in New York. There is only one. It is in Albany Supreme Court of the State of New York, Appellate Division The intermediate court There are four: One per Department Supreme Court of the State of New York and other trial Courts The trial courts in New York Page 17 of 29 Pages

The Basics Chapter 6: New York Court System 2015 Court System as it Relates to Queens County Supreme Court Cases Court of Appeals, State of New York Supreme Court of the State of New York, Appellate Division, Second Judicial Department Supreme Court of the State of New York, Queens County Geographic Division of New York in Judicial Departments & Districts Judicial Department Judicial District Counties 1st 1st New York 12th Bronx 2d 2d Kings 11th 13th 10th 9th Queens Richmond Nassau and Suffolk Rockland, Westchester, Putnam, Dutchess and Orange 3d 3d Albany, Columbia, Greene, Rensselaer, Schoharie, Sullivan, Ulster 4th 6th Clinton, Essex, Franklin, Fulton, Hamilton, Montgomery, St. Lawrence, Saratoga, Schenectady, Warren, Washington Broome, Chemung, Chenango, Cortland, Delaware, Madison, Otsego, Schuyler, Tioga, Tompkins 4th 5th Herkimer, Jefferson, Lewis, Oneida, Onondaga, Oswego 7th 8th Cayuga, Livingston, Monroe, Ontario, Seneca, Steuben, Wayne, Yates Allegany, Cattaraugus, Chautauqua, Erie, Genesee, Niagara, Orleans, Wyoming Page 18 of 29 Pages

The Basics Chapter 6: New York Court System 2015 Court of Appeals The Court of Appeals is the highest court in the state and the court of last resort for most cases. It is generally the ultimate authority on questions of law in New York State. Although a few cases, involving questions of federal law or the United States Constitution, eventually may be taken to the United States Supreme Court, these are rare. The Court of Appeals hears both criminal and civil appeals. This court, located in Albany, consists of one Chief Judge and six associate judges. The Chief Judge is the head of the Court of Appeals, the Chief Judge of New York and chief judicial officer of the unified court system (all the courts of New York). All judges of this court are appointed by the Governor, with the advice and consent of the senate, from a list prepared by a nonpartisan nominating commission. Civil Appeals Criminal Appeals Appeals in civil cases must first be heard in one of the appellate divisions of the state s Supreme Court before being taken to the Court of Appeals. However, cases involving only questions of a statute s constitutionality may go directly to the Court of Appeals from the trial court. In cases that come through the Appellate Division, the appellant generally must obtain permission to appeal to the Court of Appeals. The only instances in which a case will automatically be sent to the Court of Appeals are when two justices of the Appellate Division dissent or a state or federal constitutional question is presented. Criminal cases must be appealed to the Appellate Division or Appellate Term first, and special permission must be obtained before the case may be taken to the Court of Appeals. Exception: Where there is a capital case (death penalty imposed), the Appellate Division is skipped and the case goes directly to the Court of Appeals. (NOTE: The death penalty was declared unconstitutional by the Court of Appeals). Page 19 of 29 Pages

The Basics Chapter 6: New York Court System 2015 Intermediate Appellate Courts: Appellate Division and Term Appellate Division of Supreme Court The Appellate Division is New York State s intermediate level appellate court. It hears appeals from trial courts (such as the New York Supreme Court and Court of Claims) and has jurisdiction to hear certain original proceedings commenced in or transferred to it as provided by law. In determining appeals it has power to review issues of law, fact, and discretion arising in civil and criminal cases. Appeals from the Appellate Division are taken to the Court of Appeals, the State s highest court. The greater part of all appellate review in New York State is provided by the Appellate Division. The State of New York is divided into four Judicial Departments. Each Department of the Appellate Division exercises its jurisdiction in a separate geographic region. The Jurisdiction of the Appellate Division Civil Appeals. In civil cases originating in the Supreme Court, Surrogate s Court, and Court of Claims, most orders, judgments, and decrees are appealable to the Appellate Division as of right, as are dispositional orders of the Family Court. Appeals from intermediate orders in CPLR article 78 proceedings and in most proceedings commenced in the Family Court are appealable only by permission. Criminal Appeals. In criminal actions, appeals to the Appellate Division are generally authorized as of right by the defendant from a judgment or a sentence. Pre-judgment orders are not appealable by a criminal defendant, but certain post-judgment orders are appealable by the defendant only by permission. The People usually the District Attorney of a particular county can appeal as of right from certain pre- and post-judgment orders and sentences. Appeals as of right are taken by filing a notice of appeal in the office of the clerk of the court in which the order or judgment appealed from was made and appeals by permission are taken by making a motion for leave to appeal and obtaining an order granting such permission. Original Jurisdiction. In addition to its appellate jurisdiction, the Appellate Division is also required to entertain certain original proceedings. These include, among others, special proceedings against certain judicial officers, transferred CPLR article 78 proceedings to review determinations of administrative bodies or officers made after a hearing at which evidence was taken, proceedings to review certain determinations of the New York State Division of Human Rights, habeas corpus proceedings, and proceedings regarding the professional discipline of attorneys. Appellate Term of Supreme Court The Appellate Term of the Supreme Court is unique to the First and Second Judicial Page 20 of 29 Pages

The Basics Chapter 6: New York Court System 2015 Departments (New York City; Nassau, Suffolk, Rockland, Westchester, Putnam, Dutchess and Orange Counties). The Appellate Term, which is composed of justices of the Supreme Court chosen by the Chief Administrator of the Courts with approval of the presiding justice of the Appellate Division, hears appeals from local and county courts. At least two and no more than three justices will preside in any case. The Appellate Term in New York City hears appeals from the Criminal Court of the City of New York and the Civil Court of the City of New York. Outside of NYC, the Appellate Term for the Second Department also hears appeals from District, City, Town and Village Courts. In the Third and Fourth Departments, the County Courts (which is normally a trial court) has the jurisdiction to hear appeals from District, City, Town and Village Courts. Trial Courts in New York State Supreme Court of the State of New York The Supreme Court is a statewide trial court with the broadest jurisdiction, both criminal and civil. It can hear virtually any type of case brought before it, with the exception of claims against the state, which must be brought in the Court of Claims. The Supreme Court s practically unlimited jurisdiction makes its caseload correspondingly heavier than that of other courts. Consequently, attempts are generally made throughout the state to divide the work load among the Supreme Court and the lower courts of limited jurisdiction (they have concurrent jurisdiction with the Supreme Court). One area in which the Supreme Court must be involved is a case where the court has exclusive jurisdiction (e.g., proceedings to terminate a marriage, since it is the only court that can grant a divorce, annulment or separation). As noted above, the Supreme Court is divided into 12 judicial districts statewide, and justices are elected in each district for terms of 14 years. There are also Acting Justices of the Supreme Court. In New York City, these justices are appointed from the New York City Civil Court, the New York City Criminal Court, and the Court of Claims. 11 New York Court of Claims The Court of Claims has jurisdiction over the State of New York as well as certain authorities that are sued under their own name. The court does not have jurisdiction over any individuals, including State employees, although claims may be maintained against the State based on allegedly 11 While the justices coming from the civil and criminal courts have sat in the criminal and civil courts, the Court of Claims judges that are appointed to the Supreme Court have never sat in the Court of Claims. Page 21 of 29 Pages

The Basics Chapter 6: New York Court System 2015 wrongful conduct of employees for which the State is responsible under the legal principle of respondeat superior. Generally, State agencies do not have a legal existence separate from that of the State, and thus where a claim is based on alleged improper conduct of, for example, the Department of Transportation or the Department of Correctional Services, the named defendant should be The State of New York. Judges of the Court of Claims are appointed by the Governor, with the advice and consent of the state senate, for terms of nine years. New York Family Court The Family Court of the State of New York is a specialized court. It handles cases involving families and children. The court hears cases juvenile delinquent; person in need of supervision (pins); child custody and visitation; support; paternity; child protective proceeding; termination of parental rights; adoption; family offense proceeding (domestic violence); guardianship. Family Court judges serve for ten-year terms. Outside New York City, they are elected; within the city of New York, such judges are appointed by the Mayor. New York Surrogate s Court The Surrogate s Court is responsible for all matters relating to the property of deceased persons and to guardianships. Whether a person leaves a valid will, all claims on the estate brought by heirs, legatees or creditors are handled by the Surrogate s Court. Judges of this court are elected in each county for terms of 10 years (14 years in New York City). Local Trial Courts New York City Courts: (1) Civil Court and (2) Criminal Court In New York City, these two courts have responsibilities different from courts elsewhere in the state. (1) Civil Court The Civil Court of the City of New York can hear civil matters involving amounts that do not exceed $25,000, as well as cases up to that amount involving real property within New York City. The judges of this court have citywide jurisdiction and are elected for ten year terms. The Housing Part of this court hears landlord-tenant cases and promotes enforcement of housing codes. This part is staffed by judges appointed for five-year terms by the administrative judge of the Civil Court. A Small Claims Part hears cases brought by private individuals for amounts up to $5,000. The rules of this part of court encourage informal and simplified procedures. A Small Claims Part is Page 22 of 29 Pages

The Basics Chapter 6: New York Court System 2015 designed to make it easier for a person to sue for small amounts of money without having to be represented by an attorney. (Similar small claims parts are authorized for the other city, district and justice courts in the state.) The Commercial Claims Part of the New York City Civil Court is where certain business entities may bring small claims actions. (Similar commercial small claims parts are authorized for the other city and district courts in the state.) (2) Criminal Court The Criminal Court of New York City has jurisdiction only over criminal matters (i.e., it has limited jurisdiction). Almost all criminal cases in New York start in the Criminal Court. It can try all criminal cases except felonies 12, and it may conduct preliminary hearings in felony cases. Criminal court will try misdemeanors and petty offenses. It has concurrent jurisdiction with the Supreme Court over the trials of misdemeanors. Criminal court judges also serve as magistrates and can issue search warrants and arrest warrants. They are appointed by the Mayor of New York City for ten year terms. District Courts District courts currently exist only in Nassau and Suffolk Counties, where they have limited jurisdiction over both civil and criminal cases. In criminal matters, the district court can try all offenses except felonies, and it can hear preliminary matters in felony cases. In civil matters, the court is limited to cases involving claims for $15,000 or less. It also may hear some matters concerning liens on property and landlord-tenant disputes. Judges of this court, who must be lawyers, are elected by district voters for terms of six years. 12 New York Supreme Court has exclusive jurisdiction over the trial of felonies. Page 23 of 29 Pages

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7 Types of Law Introduction There are four primary sources (both Federal and State) for determining what the law is on a particular issue: Constitutions, Statutes, Rules and Regulations, and Case Law Common Law and Interpretative Case Law. There are three branches of government: Legislature Executive Judiciary Each branch has the power to create law. Page 25 of 29 Pages

The Basics Chapter 7: Types of Law 2015 Creation of Law Branch Types of Law Creation Steps Legislative Branch Statute (Legislation becomes a statute when either signed by the Executive or vetoed by the Executive and then the veto is overridden by 2/3rds of the Legislature) STEP 1 STEP 2 STEP 3 Bill (proposed) Legislation (passed) Statute (law) Administrative Law (e.g., Rules pertaining to the registration of claims to copyrights in the Copyright Office. STEP 1 STEP 2 Proposed Rule Rule and Regulation Executive Branch Executive Orders (e.g, Don t Ask; Don t Tell ). President issues Executive Order Administrative Law (e.g., Federal Aviation Administration Regulations pertaining to the licensing of pilots) STEP 1 STEP 2 Proposed Rule in a particular Agency (in Federal Register) Rule and Regulation (in Code of Federal Regulations) Judicial Branch Case Law (e.g., Miranda v Arizona) A particular court issues an opinion, decision and/or order as a part of litigations Administrative Law (i.e., Rules and Regulation) STEP 1 STEP 2 Proposed Rule Rule and Regulation Constitution The constitution is the supreme law of the land. 13 Every statute, administrative law and case law must be constitutional in order to be enforced. This determination is made by the courts through case law. Every court must apply the constitution if a party challenges the law or government action based on the constitutionality of that law or action. For example, if a person is walking down the street and the police stop and frisk him and recover contraband from his pocket, that person can 13 The rest of the laws are equally important in ascertaining what the law is and how a judge or court will rule on a given issue in a legal case. The United States Constitution itself is covered in another chapter. Page 26 of 29 Pages

The Basics Chapter 7: Types of Law 2015 challenge the constitutionality of the police action. In order to do so, every court (both federal and state), interprets the constitution. The final interpreter of the United States Constitution is the United States Supreme Court. The final interpreter of a state s constitution is the highest court in that state (in New York, that is the New York Court of Appeals). The decisions from the court creates case law which is constitutional law. When constitutional law is referred to it is almost always United Supreme Court decisions that interpret the constitution, but it also includes all other courts decisions. Statutory Law Statutes are laws that begin as bills, which are drafted, voted on (passed) by legislative bodies, and then either signed into law by the executive, or in the case where the executive vetoes the bill is overridden by the legislature). Statutes are often organized by subject. For example, in New York, the majority of the statutes dealing with Family Law issues are grouped together in the New York Consolidated Laws title Domestic Relations Law. Examples of New York Statutes Consolidated Law What the Law Covers Example Domestic Relations Law Family Law grounds for divorce Penal Law Criminal Law murder in the second degree Civil Practice Laws and Rules Civil Procedure motion to dismiss Criminal Procedure Law Criminal Procedure motion to suppress Estate, Powers and Trusts Law Wills, Trusts and Estates requirements for a valid will How Do Courts Interpret Statutes? First, in interpreting a statute, a court will always begin by determining whether the statute as written is ambiguous. If the statute is clear (and therefore not ambiguous), the court will rely on the Page 27 of 29 Pages

The Basics Chapter 7: Types of Law 2015 plain language of the statute, and apply its terms according to their commonly understood meanings to the facts of the case. If a statute is ambiguous, however, the court will look to sources outside the language of the statute itself. First, the court examines the relevant statutory scheme, that is, the collection of similar statutes within the relevant jurisdiction that relate to or affect the statute at issue. Sometimes, the intended meaning of an unclear statute will be made clear by reading other, related statutes. Second, the court will look into the legislative history of a statute. The legislative history provides background information as to how and why a statute was created, which is usually documented in a collection of materials such as committee reports, floor debates, and revisions to the statute. However, some statutes or parts of statutes are a part of large bills and you might find no reports, debates, etc. on that part of the statute. If there is nothing to assist the court, the court will then define the words in the statute and come up with an interpretation. Quick Rule on How Courts Use Case Law 1 Controlling/ Mandatory If the decision comes from a higher court, the court must follow that court s opinion because it is controlling or mandatory 2 Persuasive If the decision comes for a court at the same level or below, the court may follow that court s opinion because it is persuasive. Administrative Law (Rules and Regulations) Federal and state agencies, such as the Federal Department of Homeland Security or the State Department of Health, are given authority by the legislature to issue rules and regulations (referred to as administrative law) in the area each agency controls (has jurisdiction) through this legislation. Since this legislation enables the agency to create law, the law that gives power to these agencies is referred to as enabling legislation or enabling statutes. Case Law Once a court determines what the law is on a given issue (e.g., when it determines what a given statute means), it applies the law to the facts of the case before it, and issues its decision. Case law is law made by courts in published decisions called opinions. 14 Today there are many cases published 14 Court opinions are published in bound volumes called reporters, some of which contain the decisions of a single jurisdiction, while others contain the decisions of several courts, grouped together by geographic region. The citation that corresponds to a published opinion consists of the reporter volume number, the abbreviated name of the reporter, and the page number on which the case report (the opinion) begins. The year the decision was rendered also typically follows the citation, and appears in parentheses. An example of such a citation is 501 (continued...) Page 28 of 29 Pages

The Basics Chapter 7: Types of Law 2015 by the government on the internet that are never published in any book. When a case is precedent, other courts within that jurisdiction might be bound to apply the rule and reasoning announced in the opinion, to ensure certainty and consistency in the administration of the law. As stated before, some decisions are controlling (or mandatory) precedent, while others are persuasive precedent. It all depends on where the precedent was created and where it will be used. For example, if the United States Supreme Court issues an opinion, it is controlling precedent on all other courts in the United States. In other words, all other courts are required to follow the law in the Supreme Court decision. However, if a trial court (the lowest level of court) renders a decision, it is persuasive on all others courts. That is, all other courts are not required to follow the decision, but they may if they are persuaded by the trial court s reasoning. In most cases, courts are called upon to interpret and apply statutes and administrative law. There cases are sometimes referred to as interpretative cases. Common Law There is also a body of judicial opinions not statutes that define and develop what is known as the common law. Common law is a body of law that was first developed in the English courts based on custom and general principles, and set forth in court opinions. In time, a lot of the common law was put into statutory form, or codified, so now, many common law principles are found in our statutes. However, in New York, some areas of law that remain under common law are torts (e.g. assault, battery, negligence), contract (e.g., offer, acceptance, mutual assent) and property. 14 (...continued) US 560 (1991), which indicates the case Barnes v Glen Theatre, Inc., decided in 1991, is published in volume 501 of the U.S. Supreme Court reporter, and begins on page 560. Page 29 of 29 Pages