Judge Karnow's Columns

Judge Curtis KarnowCurtis E. A. Karnow is a judge with the Superior Court of California, County of San Francisco. This series of articles was created through a partnership between the Administrative Offices of the California Courts and the California Council for the Social Studies to provide resources to teachers on an aspect of Civic Education often overlooked. Each article is written in simple language and includes a list of needed vocabulary words. To support classroom use of the articles, Debbie Genzer, a former educator and now at the Administrative Office of the California Courts, has reviewed and offered a set of links to online lesson plans for each article topic, including selections for elementary, middle school, and high school. A pdf version of the articles is also included that may be duplicated for classroom use.  Since the U.S. judicial system is unique in the world, these articles would be an especially valuable resource for new Americans and their families. 

  • 30 Oct 2012 12:29 PM | Dr. Margaret Hill (Administrator)

    The Juvenile Delinquency System…Simply Described

     Just Comment Guest Column By Judge Patrick Mahoney

    November 2012

    The juvenile delinquency system is set up to address the needs of youth who get in trouble with the law.  The system is based on providing services to youth to address their needs.  The goal is to ensure that they do not return and over 75% of those entering the system never return.

    Those who do enter the system generally are truant from school and/or are having behavior problems when in school; there is instability in their home life due to a lack of parenting skills, absent parents, substance abuse or mental health needs; and more often than not the family is poor.  These factors cause youth to make bad decisions and those decisions cause them to be in the juvenile justice system.

    The legal process tracks the adult system but employs different language.  A young person may receive a citation, for example for using marijuana, or may be arrested for committing a serious crime, such as a violent assault upon another.  In either event, the youth appears before a judge.

    If the youth is detained in juvenile hall before the hearing, the first hearing is referred to as a detention hearing.  The youth is entitled to a lawyer and to have his or her parents present.  The charges are explained as are the youth’s right to a trial.  The first issue is whether the person is to be detained, meaning he or she must remain in juvenile hall.  The analysis looks at public safety, the needs of the youth, and the stability of the home.  If the youth is detained, the person is entitled to an expedited hearing (within 15 court days) to determine if the charges can be proved beyond a reasonable doubt, the highest standard of proof.

    If the youth is not detained but receives a citation to appear, the first hearing is referred to a jurisdictional hearing (J-1) to explain the charges, the youth’s rights and to set the matter for a further hearing.

    At every hearing, the youth’s parents are notified and requested to be present.  A probation officer is assigned to the case and is responsible for gathering information about the youth, the family, schooling, and identified issues so that a recommendation can be made to the court as to the best strategy to address the needs of the youth that have influenced his/her commission of the crime.

    The next hearing is generally a pre trial conference to determine if the case needs to have a trial or whether it can be resolved by the youth engaging in a diversion program or admitting to the charge(s).  Diversion programs provide services to the youth and often the family and may include substance abuse counseling, therapy and participation in a youth oriented program.  In every case, the youth is obligated to attend school and to refrain from getting into any further trouble.  If the youth does what is required, the charges are dismissed and the file is sealed.

    If the case proceeds to trial, the prosecutor must prove that one or more of the crimes charged was committed beyond a reasonable doubt.  The trial is similar to an adult trial except there is no jury.  Witnesses testify and are cross-examined by the attorney for the youth; the youth may but is not required to testify; and witness may be called by the defense.  The rules of evidence determine what facts the judge considers.  At the end of the trial, the lawyers argue their side of the case to the judge.  After considering the evidence, the judge decides whether a crime has been committed.  If no, the case is dismissed.  If yes, the judge sets the case for a disposition hearing; this is the equivalent to a sentencing hearing in the adult system.

    The disposition hearing determines what the best plan is to address the youth’s long term needs.  If this is a first offense, it is customary for the youth to stay at home and be ordered to participate in services, such as substance abuse counseling, drug testing, therapy and community service.  A nightly curfew is put in place, the youth may not possess weapons of any kind and must always attend school.  The youth is assigned a probation officer to ensure that the services are available and the youth participates.  Periodically, the youth’s performance is reviewed and if all is well after one year, the case is dismissed.

    If the case involves a very serious crime and or the youth has committed multiple offenses, he or she may be removed from the home and sent to a group home, a more restrictive county ranch program or even a locked facility for the most serious crimes.  In these programs, there is more intensive oversight of the youth because his/her needs could not be addressed at home.

    Those who work in the juvenile justice system – the judges, the prosecutors, the defense lawyers, the probation officers, the educators and mental health professionals – are always for looking at ways to make the system better.  There are regular meetings to address needs; state-wide conferences to share information; and research to enhance the ability of the providers to meet the needs of youth.

    Over the years, collaborative courts have become increasingly common to address specific needs.  For example, there may be a Family Violence Court that addresses violence in the home and in dating relationships; a Behavioral Health Court to address the needs of youth with significant mental health needs; a School Court that oversees a high school program designed for at risk youth; and a Re-entry court to ensure that youth who have been placed out of home are able to effectively return home.  In these courts, the goal of the participants is to come to a common plan on what is in the youth’s best interest given the particular facts of the case.  Every effort is made to avoid contested hearings and to implement a service plan that works.  Youth who are in these courts tend to have specialized needs and the focus is on addressing the needs so that their behavior is changed.

    In the final analysis, the juvenile justice system is not based on punishment; it is based on hope and helping those who come into the system.

    Key Vocabulary

    Word

    Meaning

     

    Collaborative Courts

    Courts that are distinguished by the following elements: a problem-solving focus, a team approach to decision making, integration of social and treatment services, judicial supervision of the treatment process, community outreach, direct interaction between defendants and judge, and a proactive role for the judge inside and outside the courtroom.

     

    Disposition Hearing

    A court hearing where the judge determines the type of sentencing or legal consequences appropriate to the juvenile offender’s crime. 

     Juvenile Delinquency

     An unlawful offense or misdeed, usually of a minor nature, especially one committed by a young person.

    Print version for classroom distribution
    Mahoney-JuvenileJustice_9-12 copy.pdf

    Lessons

    Elementary School

    Bullying:  Grades 1-2 and Grades 2-3
    Helps students identify bullying behavior and strategies for handling bullying from the National Crime Prevention Center.

    http://www.ncpc.org/topics/bullying/teaching-kids-about-bullying/bullying-grades-1-2-
    http://www.ncpc.org/topics/bullying/teaching-kids-about-bullying/bullying-grades-2-3

    Building A Classroom Community and Bully-Free Zone for Grades 3-7  
    These lessons from PBS include teaching children skills to deal with bullies, as well as promoting positive social skills such as cooperation, communication, and conflict resolution.
    http://www.pbs.org/parents/itsmylife/resources/bullies.html?anchor=lesson_plans

    Middle School

    Juvenile Justice:  The Case of Gerry Galt
    This lesson from the American Bar Association, engages students in examining a US Supreme Court case that gave juveniles accused of a crime the same due process rights as adults.  http://www.americanbar.org/groups/public_education/resources/resources_for_judges_lawyers/79_juvjustice.html

    High School

    Juvenile Delinquency:  Cause and Effect.  This unit from the Yale/New Haven Teacher’s Institute,  includes three lessons focused on both juvenile justice related US Supreme Court decisions, as well as skill building to assist student participants avoid delinquency.
    http://www.yale.edu/ynhti/curriculum/units/2000/2/00.02.05.x.html#f

    Additional Resources

    Juvenile Delinquency Self Help a practical resource for juveniles who are involved with the juvenile justice system and their parents, including information on rights while being arrested, links to finding a lawyer, and assistance with understanding a Notice to Appear and more.  http://www.courts.ca.gov/selfhelp-delinquency.htm

    Office of Juvenile Justice and Delinquency Prevention - Sponsors research, program, and training initiatives; develops priorities and goals and sets policies to guide federal juvenile justice issues; disseminates information about juvenile justice issues; and awards funds to states to support local programming.  http://www.ojjdp.gov/about/about.html

    These curricula do not necessarily reflect the views of the Judicial Council, the Administrative Office of the Courts (AOC), or the Court Programs and Services Division/CPAS.  Furthermore, the authors, the Judicial Council, the AOC, and the Court Programs and Services Division/CPAS do not provide any warranties regarding the currency or accuracy of the information in these works. Users are reminded to check the subsequent history of any case and changes to statutes and Rules of Court cited in the works before relying on them.  These works are provided for the personal noncommercial use of teachers.

  • 01 Jun 2012 3:04 PM | Dr. Margaret Hill (Administrator)

    How Do People Settle Disputes?

    How a Civil Trial
    Works in California

     Just Comment by Judge Curtis Karnow Appeared in CCSS Sunburst
    June 2012

    People get into arguments, and sometimes they disagree. If they cannot resolve their disagreements,  they may ask someone else to step in and resolve the dispute. They may ask a trusted friend, or kids might ask a parent or a favorite aunt to solve the problem. In school, a teacher or administrator may help resolve disagreements. In an office, a supervisor, or perhaps the president of the company, might decide who is right and who is wrong.

    Disagreements about who should be elected to Congress or the state legislature, or who becomes President of the United States, are all resolved by voting.  Disagreements about which is the best baseball team are resolved by playing in the World Series (admittedly, there are other ways to determine great baseball teams!).  Some disagreements can only be worked out through negotiations, a sometime slow process of meeting, discussing, arguing, and compromising to get things done.  For example, a lot of work in the legislatures is done this way, as well as many of the disputes brought to the United Nations.

    There are other ways to resolve disputes, too. War, or other violence, sometimes resolves disputes over land, natural resources, religion, political power, and so on.  Where there are no governing rules, or no higher authority to appeal to, sometimes people do anything they want to get their way, including attacking others who disagree with them.  When physical force is used, the person with the best weapon, wins, no matter who is really right, or who has the better argument.

    We form governments, and impose rules on ourselves, to (among other things) avoid violence.  We form treaties with other nations, and join organizations such as the United Nations, to avoid war.  For certain types of disputes, when the parties cannot work out a solution on their own, we provide the court system to provide a final resolution.  A trial is the way these disputes get resolved. 

    Courts provide solutions peacefully, with dignity and respect, and in a way that makes sure everyone is heard, and everyone is treated fairly.

    Cases In Court

     Not every dispute can be brought into the court system.  And even disputes that are ordinarily eligible to be dealt with in court might actually get resolved outside of court.  I’ll discuss those situations later in this note.


    Courts provide solutions peacefully, with dignity and respect, and in a way that makes sure everyone is heard, and everyone is treated fairly.

     

     

     Only certain cases can be the subject of a trial in court.  The legislature defines the sorts of cases that can be filed in court. There are two basic types: civil and criminal. Criminal cases are filed when someone violates a criminal law - for example, a law that says you can’t drive while you’re drunk, or can’t steal, or can’t hit someone else.   Civil cases are usually disputes about money or other property, for example, a dispute whether someone owes another some money (e.g., the boss owes you a salary and never paid it), or failed to abide by an agreement to sell a house or other item.  You can also sue if someone hurts you in, for example, a car accident: you sue to recover what you paid for medical treatment, to fix the car, and to compensate you for your pain.

    People with these disputes do not, however, have to go to court. They might agree to submit the case to a neutral person to get it decided.  These neutrals are called arbitrators.  If everyone agrees, arbitrators can take over and decide the case.  Judges respect the right of people to come up with their own peaceful ways to resolve disagreements.  But if they can’t agree on a method, the case goes to court.

    What Happens at Trial

    I’ll describe a typical civil jury trial.  As I noted above, civil cases are lawsuits involving people or companies (or sometimes the government), usually when one side wants money or other property from the other side.  Let’s assume Bob sells Ann a car. Ann pays money, let’s say $20,000, for the car.  A week after the sale, the car breaks down: It turns out the engine is bad: perhaps it’s rusted, or too old.  Ann doesn’t want the car now: she wants her $20,000 back; but Bob won’t give it back. He says she should have inspected the car, and he never said it actually would work anyway. Ann says Bob told her the car was in great shape.  They can’t agree on how to resolve the dispute, and Ann sues Bob in Superior Court. She claims fraud, breach of contract, and so on. 

    Ann and Bob show up on a fine Monday to try the case.  They (and their lawyers) are assigned to a specific judge in the courthouse for trial. They discuss a few pretrial issues with the judge; perhaps they have an argument about whether a particular pieces of paperundefinedsay, Bob’s notes about his sale to Annundefinedwill be seen by the jury. This poses a legal issue the judge will decide.

    Then a group of about 50 people are called up from the jury assembly roomundefinedwhere earlier perhaps 200 people showed up for the various trials to start that dayundefinedto the Judge’s courtroom.  These 50 people are the “panel.”  The Judge tells the panel a little about the case, and then asks a series of questions designed to find out if they can be fair to both sides.  Perhaps one of the panel is in fact right in the middle of her own dispute with a car dealerundefinedshe might not be fair to Bob.  Perhaps one of the panel is a car dealer, or is married to or lives with a car dealer: he might not be fair to Ann.  Someone might not understand enough English, and someone else might have to be at a funeral on a day the trial is supposed to be in session.  The judge may have to let these people go. 

    The lawyers get to ask questions too.  This process of asking questions to see how people feel, and to get a sense of whether they can be fair to both sides, is called “voir dire.” The judge lets go the people he thinks might not be equally fair to both sides. The lawyers then also get a chance to let some of the people go - they exercise “preemptory challenges” which means they can, for almost any reason, let people go whom they think might be a problem. (They cannot excuse people based on race, religion, sexual orientation, and so on).

    After the judge and the lawyers have excused those people, the first 12 people left over, picked in random order, are the jury. The judge might also take a couple of people as alternates, to fill in if one of the 12 gets sick during the trial.

    Then the lawyers make opening statements, telling the jury what the case is about, why they are there, and what they think the evidence will prove. The plaintiffundefinedthe person who brought the suit (here, Ann), puts on her evidence first. (Actually it will be Ann’s lawyer, if she has one.  From here on, I will just say Ann or Bob, although I usually mean they lawyers.)  Evidence is usually the testimony of witnesses, under oath; or documents.  When Ann asks questions of her witnesses it’s called direct testimony.”  The other side (Bob) gets to cross examine Ann’s witnesses.  Ann might then ask some follow up questions of her witnesses (that’s redirect).

     

    … lawyers make opening statements, telling the jury what the case is about, why they are there, and what they think the evidence will prove.

     When Ann has finished obtaining testimony from all her witnesses, she “rests,” and Bob gets his chance to put on his case.  He calls witnesses on direct, asking them questions. Ann gets to cross examine them. Bob gets to ask follow up questions of his witnesses. When Bob is finished, he rests, and Ann gets one last chance (in a part of the trial that is called “rebuttal”) to put on evidence that contradicts what Bob’s witnesses said.

     When Ann is done, the judge instructs the jury on what the law is. He will consult with Ann and Bob in trying to find out what the law is, and Ann and Bob might have a disagreement on the law. It’s the judge’s job to figure out the law.  He does this by reading approved jury instructions, from cases written by other judges, and from reading the statutes passed by the legislature.  Then the judge instructs the jury.  For example, the Judge might tell the jury that to prove fraud, Ann must prove that (1) Bob said something about the car (2) which was false, (3) Bob knew it was false (4) Bob intended that Ann rely on what he said, and (5) what Bob said would be important to anyone buying a car. (I don’t mean this is actually the lawundefinedI just made this up as an example).

     When the Judge is done with instructions, the lawyers get one last chance to talk directly to the jury in their closing arguments.  Here, the lawyers can argue anything that is supported by the evidence.  They ask the jury to use common sense. They ask the jury to believe, or disbelieve, various witnesses.  They try to convince the jury to see the case in a certain way.

    The jury then leaves the courtroom to go to the jury deliberation room, guarded by a bailiff, so that no one can influence or have any effect on the jury. The jury discusses and debates the case in private. It’s up to the jury to decide who told the truth, what actually happened, who said what to whom and when, and what Ann and Bob intended.  In a California civil case, 9 of the 12 people must agree on a verdict.  The jury will decide whether, for example, Ann proved the elements of fraud (i.e. 1-5 above). If yes, they decide how much money is fair compensation for Ann. If no, then they say so, and Ann loses the case. The jury indicates its decision on a written form called the verdict form. They come back into court when they are ready, and the written form is read out loud.  And so the trial ends.

    Trials are publicundefinedeveryone has the right to watch.  Everyone can see the process. Lawyers are never allowed to talk to the judge (or the jury) out of the hearing of the other side, so the people involved in a case know exactly what the other side has said, and what arguments they made to the judge and jury.  Everyone has a opportunity to be heard, to object, to argue against the other side’s evidence, to make his position known.  Everyone has a right to fair and impartial jury, and the judge has a strict obligation to protect that right.  If the losing party thinks the judge made a legal mistake, the party can appeal, and then an appellate court will review the law.

    Thus, when in the end one side wins and the other side loses, people at least know what the evidence against them was, and they know they had a fair shot, a fair process. They are therefore willing to accept the final result, and move on with their lives. The dispute is over.

    Key Vocabulary

    Word

    Meaning

     

    legal dispute

    A legal dispute is a disagreement over the existence of a duty or right defined in the law, or over the amount and kind of compensation and injured person has the right to claim because of that duty.

    evidence

    Evidence is the documentary or oral statements and the material objects admissible as testimony in a court of law.

    trial

    Trials are formal examination of evidence by a judge, typically before a jury, in order to decide guilt in a case of criminal or civil dispute.

    civil case

    Civil cases are those that involve disputes between people about such things as money or other property

    criminal case

    Criminal cases are those that involve someone who violates a criminal law (assault, murder, theft, etc.)

    arbitrator

    A neutral person chosen to settle the issue between parties engaged in a dispute

    preemptory challenge

    Dismiss someone from jury service without reason or cause

    Online Lessons to Support How Civil Trials Work


    Print Version for Classroom Use
    Karnow-CivilTrials5-12.pdf


    Elementary

    Graffiti on Trial
    http://www.courts.ca.gov/Graffiti_on_Trial.pdf

    Mock Trials
    http://www.courts.ca.gov/5174.htm
    Scroll to the bottom of page for the list of mock trials ranging from those based on fairy tales to those based in historical time periods suitable for grade 2-6.

    Middle School

    Jury Trial
    http://www.courts.ca.gov/Jury_Trial.pdf

     Salem Witch Mock Trial

    http://www.courts.ca.gov/SalemWitchMockTrial_2scripts.pdf

     

    Murder Self Defense Mock Trial

    http://www.courts.ca.gov/documents/Mock_Trial_Peo_v_Casey_San_Francisco.pdf

     

    Case of the Stolen Car

    http://www.courts.ca.gov/documents/mocktrialscript-contra.pdf

    Verdict Form

    http://www.courts.ca.gov/documents/mocktrial-contra.pdf

    High School

    The Trial Process
    http://www.courts.wa.gov/education/lessons/?fa=education_lessons.display&displayid=Trialpro

    Mock Trial Cases from Oregon Classroom Law Project
    http://www.classroomlaw.org/programs/mock-trial/#cases

    Tort Liability: Mock Trial
    http://www.courts.wa.gov/education/lessons/?fa=education_lessons.display&displayid=Tortmt

    These curricula do not necessarily reflect the views of the Judicial Council, the Administrative Office of the Courts (AOC), or the Court Programs and Services Division/CPAS.  Furthermore, the authors, the Judicial Council, the AOC, and the Court Programs and Services Division/CPAS do not provide any warranties regarding the currency or accuracy of the information in these works. Users are reminded to check the subsequent history of any case and changes to statutes and Rules of Court cited in the works before relying on them.  These works are provided for the personal noncommercial use of teachers.

     

     

  • 21 Apr 2012 4:21 PM | Dr. Margaret Hill (Administrator)

    Making an Appeal

    Appellate Courts and How They Work

    Just Comment Column by Judge Curtis Karnow

    April 2012

    You got a traffic ticket.  And you want to appeal.  You’re furious that the trial judge went along with the story told by the police officer -- your version was so much more credible, and anyway, you had a witness who confirmed you were telling the truth!  Yet the judge still tagged you with a fine.  Appellate courts are supposed to fix such injustices, aren’t they?

    They are not.

    Appellate courts and trial courts have very different roles (with one exception I’ll get to, concerning Small Claims).  And indeed, the Supreme Court has a different role from that of other appellate courts.

    First, a brief reminder of the structure of our courts. Recall that the federal government has its court system for federal cases, and each state has a court system for cases arising under state law.  In each of these systems, we begin with the trial courts: in California these are known as the Superior Court.  Appeals go to the Court of Appeal.  From there, a losing party can ask the California Supreme Court to take the case. 

    There are fifty-eight Superior Courts in this state, one for each county.  Those courts have from two to many hundreds of judges.  There are six Courts of Appeal responsible for different areas of the state; and one Supreme Court.

    (Actually, it’s a little more complicated than that, because in California we have two different tracks to appeal cases.  I have just described the track that criminal felony cases take (a felony is a crime punishable by more than a year in state prison), as well as civil lawsuits where the amount of money at stake is more than $25,000.  But if the case is not a felony (i.e. it’s a misdemeanor, punishable by up to a year in jail, or an infraction, only punishable by a fine, like a traffic ticket), or if the case is a civil suit worth less than $25,000, the appeal from the Superior Court judge is to a court known as the Appellate Division.  But the sequence is almost the same, and the same sort of rules apply whether the appeal is to the Court of Appeal or to the Appellate Division.)

    A word, first, about the difference between a legal issue and a factual issue.  This will help explain what different kinds of judges do. 

     Often, people in a lawsuit disagree about what happened in the past.  In a traffic accident case, Ann says the light was red, Bob says it was green.  In a contract case, Bob says Ann promised to sell her cat; Ann swears she never made such a promise. These are disputes about facts: about what happened.  Some disputes are about the law; these are legal disputes.  Ann might argue that it doesn’t matter what color the light was, because under the law Bob had to stop anyway when he saw Ann’s car; or in the contract case Ann might argue that under the law it doesn’t matter if she agreed to sell a cat, because it’s illegal to sell cats (of course, I am not saying that is the law).

    This difference between fact issue and legal issues is important to understanding the difference between the jobs of trial judges and appellate judges.

    As I suggested, trial judges and appellate judges do not do the same thing. A trial judge deciding a traffic ticket is entitled to believe whomever she wants.  She can believe one witness instead of three other people who say something else.  She’s looking at body language, looking at the witnesses as they testify.  She decides who is telling the truth.  She decides what happened.  An appellate judge can’t do that.  Appellate judges have no idea who is telling the truth.  If a trial judge decides to believe a drug addicted convicted murder, and reject the word of a respected member of the community such as the Mayor -- well, the judge is entitled to do so.  Appellate judges usually never tamper with the factual findings of the trial judge.

    There are two other sorts of decisions trial judges make. Appellate courts might reverse some of those. 

    First, trial judges decide legal issues: they decide what the law is.  I provided some examples of legal issues before.  A few more examples: the trial judge might decide that the law requires a certain type of lawsuit (say, breach of an agreement) to be brought to court within 4 years of the breach -- and so, if more than 4 years went by, the judge would dismiss the case.  Or she might decide that certain evidence cannot be admitted at trial (say, a photograph, or a written document).  Or a judge might decide that there’s no such thing as a certain kind of legal claim (for example, she might decide that you just can’t sue your neighbor for laughing at your car’s weird paint scheme.)  Those sorts of legal determinations can be reviewed by the appellate courts; and if the decision of the trial judge was wrong, then the appellate court might reverse the decision and send the case back for another trial, or some other proceeding.

    (But it is important to recall that, to reverse, the trial judge’s wrong decision has to have a made a difference to the outcome.  So, for example, if the judge was wrong to exclude a photograph from a trial, but admitting it would have made no difference to the result, then the appellate court will not reverse.  This is a rule called “harmless error.”  No harm, no foul.)

    The third kind of decision trial judges make is, in a way, between the two types I’ve discussed -- these are discretionary decisions, where the trial judge has room to decide an issue either way.  A lot of these decisions are relatively trivial, and you won’t be surprised to learn that appellate courts usually do not reverse trial judges on their discretionary decisions.  Discretionary decisions range from everything from where lawyers stand, how much time they can have to ask questions, and which days will be set aside for trial, to more important issues such as letting in evidence when, although admissible, it might possibly prejudice the other party.  For example, judges use their discretion in deciding whether the jury will see gruesome photos of a murder scene -- the photos are probably relevant and admissible, but they might have an emotional impact on the jury that might not be fair to the person accused of the crime.  Another example: when lawyers fail to follow the rules (such as filing papers late, or not at all), judges use their discretion in deciding whether to punish a lawyer with fines, or to refuse to read the late paper.  Judges also use their discretion in sentencing after a criminal trial.

    Appellate courts don’t like to reverse judges for these sorts of discretionary rulings -- although, if the ruling is really bizarre and arbitrary, or simply had no basis at all (i.e. the papers weren’t late at all!), the appellate courts will then reverse.  And if a judge sentences a criminal defendant to ten years in prison, and the law only allows one year, that’s not a discretionary ruling -- that’s legal error. And the Court of Appeals will reverse.

     

    Again, the theory here is that the trial judge is the person who really knows what’s happening, what is needed to keep cases moving fairly and rapidly, and how the jury is likely to react.  Appellate judges don’t see the trial, or the witnesses, or the jury. All they have is the stone cold recordundefinedthe transcript of the trial, and the papers filed by the lawyer -- and they see this perhaps a year or more after the trial.

    So, trial and appellate judges have very different roles; except in one sort of case, which is termed Small Claims. Small Claims court is available for people who want to sue someone for up to $7500.  There are no lawyers at trial, and the trial is very fast and efficient.  It’s a good way for people to ask the courts to resolve many disputes.  If the person who started the suit -- the plaintiff -- loses in Small Claims, the case is over.  There’s no appeal.  But if the person defending the case (the defendant) loses, he does have a right to appeal: he gets a new trial in front a different judge, and this time, lawyers can be present.  This is an exception to the usual course -- because here the second trial really is a new start -- no one cares what the first judge did.  This kind of ‘appeal’ is called a trial de novo: a new proceeding.

    Once an appellate court has decided an appeal, that’s usually the end of it: the trial decision gets affirmed; or reversed, or gets reversed and remanded, which means the case goes back to the trial court for more proceedings (perhaps another trial).  Whatever the appellate courts does, that’s usually the end of the matter.  It’s very difficult to get the decision of the appellate courts itself reversed -- the only court that can do that is the Supreme Court.  And while we usually have a “right of appeal” to the appellate court, there is no right to go the Supreme Court (the only exceptions are death penalty cases, which are automatically appealed to the Supreme Court).

    The Supreme Court chooses which cases it will hear. It usually never takes a case just because it thinks the lower appellate court was wrong; and it sometimes takes cases even when it appears the appellate court was right.  The Supreme Court takes only about 100 case a year (compared to the eight million cases filed every year in the trial courts), and does so only when there are very important, state-wide issues, or when different courts of appeal have decided a legal issue in opposite ways.  The intermediate courts of appeal are there to correct legal errors for the particular parties in that case.  But the Supreme Court does not have that role: it settles important statewide issues, issues that affect a lot of people.

    The different types of judges on our courts systems have very different jobs, and look at different issues: it’s a division of labor.  Arguments that may be effective with a trial judge may make no difference to an appellate judge.  Together, all the courts work to make sure that people and companies get fair hearings, that significant mistakes are corrected, and that there is consistency of law across the entire state.

    Key Vocabulary

    Word

    Meaning

    Appeal

    Appeal means to make a request of a higher court to change the ruling of a lower court.

    Appellate Court

    An appellate court has the jurisdiction to review decisions of a trial-level or other lower court.

    Defendant

    The defendant is the party sued in a civil lawsuit or the party charged with a crime in a criminal prosecution.

    Discretionary Decision

    Discretionary decisions are those where the judge may decide in multiple ways.

    Plaintiff

    A plaintiff is the person or party that initiates a lawsuit by filing a complaint with the clerk of the court against the defendant(s) demanding damages, performance and/or court determination of rights.

    Remand

    To remand is to send back. An appeals court may remand a case to the trial court for further action if it reverses the judgment of the lower court. After a preliminary hearing, a judge may remand into custody a person accused of a crime if the judge finds that a there is reason to hold the accused for trial.

    Transcript

    Transcripts are the written record of all proceedings, including testimony, in a trial, hearing, or deposition (out of court testimony under oath).

     Print Version for Classroom Use
    Karnow - Appeals Courts.pdf

    Lessons to Support Appellate Courts and How They Work

    Elementary School

    Supreme Court:  The Great Debate – students learn about Supreme Court cases, write persuasive essays, and create podcasts.  http://www.courts.ca.gov/5174.htm

    Levels of the Judicial Branch:  Planet Fourth Grade is Researching the Constitution - students create their own constitution by researching our government, which includes information about the structure of the judicial branch. http://www.courts.ca.gov/5174.htm

    Middle School

    Court of Appeals:  Let’s Take This Baby Up – a lesson from iCivics about taking a case to the Court of Appeals http://www.icivics.org/lesson-plans/appellate-courts-lets-take-baby

    Supreme Court:  Supreme Court Decision a lesson from iCivics about the Supreme Court that involves students in playing an on-line game

    Game:  http://www.icivics.org/games/supreme-decision

    Lesson: http://www.icivics.org/teachers/lesson-plans/supreme-supreme-decision

    Levels of the Judicial Branch:  Judicial Branch in a flash – iCivics provides this introduction to the three levels of the courts http://www.icivics.org/teachers/lesson-plans/judicial-branch-flash

    High School

    Court of Appeals: Appellate Court Experience – lessons related to a visit to a real Appellate Court in California  http://www.crf-usa.org/materials-catalog/free-lessons.html

    Supreme Court: Interactive Lessons on U.S. Supreme Court Landmark Cases from

    CRF:  http://crf-usa.org/online-lessons-index/free-lessons-index.html

    Korematsu Institute (Korematsu v. U.S.)                http://korematsuinstitute.org/fredkorematsuday/curriculum/

    NEH:  http://edsitement.neh.gov/lesson-plan/supreme-court-judicial-power-united-states

    PBS:  http://www.pbs.org/wnet/supremecourt/educators/index.html

    Street Law:  http://www.streetlaw.org/en/landmark.aspx

    Additional Resources:

    California Supreme Court – an introduction and information on high profile cases.  http://www.courts.ca.gov/supremecourt.htm

    Courts in the Classroom – animated, graphic novel style cartoons depicting U.S. Supreme Court landmark cases  www.courted.org

    iCivics   students try out their persuasive abilities by arguing a real Supreme Court case through the on-line educational game Argument Wars.  Many other games and resources. http://www.icivics.org/games/argument-wars

    Sunnylands Classroom – video interviews with Supreme Court justices and more http://www.sunnylandsclassroom.org/

    These curricula do not necessarily reflect the views of the Judicial Council, the Administrative Office of the Courts (AOC), or the Court Programs and Services Division/CPAS.  Furthermore, the authors, the Judicial Council, the AOC, and the Court Programs and Services Division/CPAS do not provide any warranties regarding the currency or accuracy of the information in these works. Users are reminded to check the subsequent history of any case and changes to statutes and Rules of Court cited in the works before relying on them.  These works are provided for the personal noncommercial use of teachers.

     

     

     

     

  • 17 Mar 2012 2:49 PM | Dr. Margaret Hill (Administrator)

    What Do Lawyers Do?

    Just Comment Column by Judge Curtis Karnow

    March 2012

    In the United States, lawyers have usually graduated from college and then gone to a three-year law school before they can become lawyers.  They have usually also passed a test called the bar exam, which tests their understanding about the law.  Finally, people who want to be lawyers must be ‘morally fit’ to be a lawyer: people with past convictions for crimes may not be able to fulfill this requirement.

    If all these requirements are met, the prospective lawyer takes an oath and becomes, as we say, a member of the bar. That means the person is a licensed lawyer, and is authorized to practice law.  Only licensed lawyers can give legal advice, and act as lawyers in court. (The one exception is when a person does not have a lawyer, and represents himself.  This is allowed.)  It is a crime to practice law unless one is actually a member of the bar, unless one has actually been licensed.  It’s interesting to note that judges are not members of the barundefinedso judges cannot give anyone legal advice!

    After one has become a lawyer, there is a wide variety of types of work they may do.  From just watching television and movies, we might think that all lawyers go to court, and argue cases in front of judges and juries.  This isn’t true.  Many lawyers work in offices, meeting with clients, researching legal issues, and writing.  People hire lawyers because they want to follow the law, and because they want to avoid getting sued in court.  They hire lawyers when, for example, they are about to enter a contract and they want to make sure the contract is enforceable in court.  They hire lawyers to help them understand the legal requirements in dealing with a governmental agency, or how to comply with the many laws we have, such as those that tell companies how to treat their employees, or environmental laws that regulate the sort of smoke or liquids a company can put into the air or nearby rivers.

    Lawyers usually work in one of four kinds of offices. 

    Some lawyers are hired by a company, and just work for that one client.  They advise that one client on various issues, depending on what kind of business the client is involved in. 

    Other lawyers work for a government, such as a city, or a state, or the federal government.  In criminal cases, they might be prosecutors or defense attorneys.

    Many lawyers are in what we call ‘private practice,’ where they have many different clients.  In private practice, a lawyer might be the only lawyer in her offices, or she might have partners - a few, or hundreds of them, with offices in one location or perhaps in many offices around the world.  Other lawyers work for organizations that are devoted to a certain kind of service, such as clinics that offer free or low rate services to the poor, or to tenants about to be evicted from their apartments, and so on.

    Any of these lawyers may have a wide variety of specialties. Some of them might go to court, many will not.  Here’s an outline of the some of the areas in which lawyers develop expertise (many lawyers have more than one area of expertise).

    • Antitrust Law. There are laws that regulate fair competition, for example, laws that prohibit companies from making secret agreements to fix prices.  Companies hurt by anticompetitive behavior can sue those who engage in it. Lawyers tell clients how to avoid breaking these laws.
    • Business Law. Companies make agreements all the time, and they need lawyers to draft and negotiate these agreements, and lawyers to sue when the agreements are broken.
    • Criminal Law. People who are charged with crimes (“defendants”) need lawyers to defend them, and the government needs lawyers to handle the prosecutions against the defendants.
    • Dispute Resolution.  Some lawyers specialize in out of court dispute resolution. They act as mediators, trying to get people to agree on a solution, or they are arbitrators, who are essentially private judges who decide cases, holding their hearings in offices instead of the courthouse.
    • Environment and Energy Law. These lawyers handle contracts and disagreements in the coal, natural gas, and oil industries, and work with (and sometimes against) governmental regulators.
    • Family Law.  In this area lawyers help families that are going through divorces. These lawyers try to negotiate issues (or argue on the issues in court) about dividing the family property and money, and responsibilities for children.
    • Immigration Law.  Immigration lawyers help people who are not citizens of the United States in applying for entry into the country, the papers needed to stay in the country legally. They also help people become citizens.
    • Intellectual Property Law.  Intellectual property includes patents, trademarks, trade secrets, and copyrights.

    o   Patent lawyers draft descriptions of inventions (perhaps a new kind of water pump, or engine, or other useful product), and get the U.S. Patent Office in Washington DC to approve the patent as something which really is new. If so, then the patent holder owns the invention, and can get money from others who want to make the invention (or the patent holder can make the invention herself, and stop others from doing so.)

    o   Trademarks are symbols, like the big yellow “M” arches for McDonalds, or the “Just Do It” tag line for Nike shoes, or the scripted words “Coca-Cola” for that soda drink.  The owners of trademarks can resister their marks with the government. This prevents other people from using the marks in a confusing way -- for example, from using the marks on fake products.

    o   Trade secrets are secrets about how to do something, or secret ingredients, that give a company an advantage over other companies.  An owner of a trade secret may be able to stop others from making it public.

    o   Copyrights apply to things people write, create, or design, such as songs, poems, novels, video games, plays, movies, and other art. Others usually cannot copy these creations without permission.

    Intellectual property lawyers help people protect their rights by filing the right kind of papers with the government, and suing others who violate the rights.  Sometime these lawyers also specialize in an industry, such as music, or video games, or other computer software or hardware.

    • Labor and Employment Law.  These lawyers handle relationships, agreements and disputes between employers and employees, and groups of employees known as “unions” which negotiate with corporations for pay, and other aspects of their employment such as workplace health and safety and retirement programs.
    • Real Estate Law.  These lawyer spend their time on the purchase and sale of land and buildings. They work for  the variety of people and companies involved, such as sellers and buyers, and the banks that loan money to allow people to buy property.
    • Trust and Estate Law. These lawyers help people make wills, and they also draft documents to create “trusts” which are legal entities that can own property.  These lawyers also litigate in court related to problems that arise under the wording of wills and trusts.
    • Tax Law. Tax lawyers help people with their taxes, and design legal ways to minimize taxes.  Sometimes they handle lawsuits in which the government wants more taxes paid and the taxpayer denies that he owes any more taxes.
    • Tort Law.   Sometimes people are injured on the job, in car accidents, during a medical procedure, or as the result of exposure to drugs, chemicals, asbestos, or other dangerous items.  If so, they may hire a tort lawyer to take their case, to sue the people responsible for the injury.  These lawyers spend a lot of time in court.

    This is just a small sampling of the types of work lawyers do.  Lawyers are advocates, and they are expected to vigorously protect their clients, and to do whatever they legally can to help their clients.  At the same time, all lawyers are “officers of the Court,” which means that, no matter what, they have to be honest and forthcoming with the judge, may never try to mislead the judge, and may never try to hide evidence when there is an obligation to reveal it.  Lawyers’ first and highest responsibility is to the preservation and integrity of the legal system.

    Key Vocabulary

    Word

    Meaning

     

    Bar exam

    The bar exam is a test, usually taking two or more days to complete, about legal principles and the laws of a state in the U.S. When it is taken and passed a person who wants to be an attorney in that sate may be granted a license to practice law.

     

    Client

    A client is a person who hires (retains) an attorney to represent him or her in any legal business; to assist, to counsel, and to defend the individual in legal proceedings; and to appear on his or her behalf in court.

    Defendant

    A defendant is the party (person or group) sued in a civil lawsuit or the party charged with a crime in a criminal case.

    Dispute

    A dispute is a conflict or controversy over claims or rights. There is a stated right, claim, or demand on one side, met by an opposing claim or statement of belief on the other.

    Intellectual property

    Intellectual property describes a wide variety of property created by musicians, authors, artists, and inventors.

    Member of the bar

    A member of the bar means a person is a licensed lawyer, and is authorized to practice law in that state or territory.

    Prosecution

    In criminal law, the prosecution is the government attorney charging and trying the case against a person accused of a crime.

    Tort

    A tort is an act of wrong or failure to perform a legal or civil duty.

                                           Print Copy for Classroom Use
                                                        Karnow-WhatLawyersDo_6-12.pdf

    Online Lessons to Support What Do Lawyers Do?

     

    Elementary School Grades 3 and up

    Graffiti on Trial – This unit focuses on the third grade social studies standards, which require students to understand the role of rules and laws in our daily lives and the basic structure of the U.S. government, and involves students in a simple mock trial with attorneys.
    http://www.courts.ca.gov/5174.htm 

    Going to Law School – This excerpt from the People v. A Wolf, is a short focus activity that provides students with some background on the role of attorneys, the Constitution, Bill of Rights and the jury.
    http://crf-usa.org/cateach/elementary

    Middle School

    Gideon v. Wainright – a lesson from Street Law about a landmark case involving the constitutional right to counsel; it includes an exploration of the role of an attorney.  Materials can be selected by students’ reading level. http://www.streetlaw.org/en/landmark/cases/gideon_v_wainwright

    High School

    Gideon v. Wainright – a lesson from Street Law focused on this landmark case about the constitutional right to counsel, which includes a lesson on the role of an attorney.  Materials can be selected by students’ reading level. http://www.streetlaw.org/en/landmark/cases/gideon_v_wainwright

    Key Constitutional Concepts:  The Right to Counsel This lesson and video set from the Annenberg Classroom begins with students considering the need for an attorney in a criminal trial, followed by an examination of the rights contained in the Sixth Amendment, and the Gideon v. Wainright landmark case.
    http://www.annenbergclassroom.org/page/key-constitutional-concepts

    Other Resources

    iCivics:  Argument Wars, Pocket Law Firm and other animated on-line games, engage students in fun and education games in which they are the attorney.
    http://www.icivics.org/

     

    These curricula do not necessarily reflect the views of the Judicial Council, the Administrative Office of the Courts (AOC), or the Court Programs and Services Division/CPAS.  Furthermore, the authors, the Judicial Council, the AOC, and the Court Programs and Services Division/CPAS do not provide any warranties regarding the currency or accuracy of the information in these works. Users are reminded to check the subsequent history of any case and changes to statutes and Rules of Court cited in the works before relying on them.  These works are provided for the personal noncommercial use of teachers.