Paralegal Basic Legal Knowledge 2017-2018
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 courses in the Queens College Paralegal Program. 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 Federal, State and Local Governments...... 1
2 The Three Branches of Government...... 3
3 The Court Systems...... 5
4 The Federal (United States) Court System ...... 7
5 The New York State Court System...... 13
6 Appellate Paths...... 21
7 Types of Law...... 39
8 Reading Law for the First Time...... 43
9 The Profession and Ethics...... 53
PRINTING NOTE: If you are printing this document, please print two-sided (that is the reason that there are blank pages).
The Federal, State and Local 1 Governments
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 • Declare war • Establishing Corporations • Local services (police, fire, sanitation) (subject • Regulation of currency • Conducting Elections to the oversight powers • Regulation of Interstate • Issuing Licenses (e.g., professions, of NYS) Commerce marriage, driver’s) • Post Office Shared Power • Courts
• Creation and enforcing laws (subject to the US Constitution’s supremacy clause) • Public Health • Public Education
Page 1 of 60 Pages Page 2 of 60 Pages 2 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.1 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 courts). The Senate in the New York State (NYS) legislative branch confirms the 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.
1 In the history of the federal government this has been done only 4% of the time.
Page 3 of 60 Pages The Basics Chapter 2: The Three Branches of Government 2017-2018
The Legislative Branch of Federal, New York State and New York City
Federal Legislature (Congress) New York State Legislature New York City Council
United States Senate New York State Senate New York City Council
United States House of Representatives New York State Assembly
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.
The Executive Branch of Federal, New York State and New York City
Federal New York State New York City President Governor Mayor Vice-President Lieutenant Governor Public Advocate State Comptroller NYC Comptroller State Attorney General 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” (1835) observed in chapter 16: There is almost no political question arises 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 4 of 60 Pages 3 The Court Systems
In the United States there are two court systems: (1) the federal court system and (2) the state court system. Each state has their own court system. While the concepts of these courts are the same, the names of these courts 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 ([1] trial, [2] intermediate appeals and [3] final appeals).2 But the names of the courts differ. The highest court in the federal system is the United States Supreme Court.
Paradigm of a Typical Court System
Highest Court (Court of Last Resort) (Usually the Supreme Court)
Intermediate Appellate Court (Where the first appeal would go)
Trial Court (Court of Original Jurisdiction: Cases Start here)
In New York the highest court is not called the Supreme Court, it is the New York Court of Appeals.3 The New York Supreme Court is a trial court.
2 Maine, Montana, Nevada, North and South Dakota, Rhode Island for example, have a two-tier systems. 3 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 5 of 60 Pages The Basics Chapter 3: The Court Systems 2017-2018
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 start about 450,000 cases, of which 80 percent are civil and 20 percent are criminal.4
4 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 6 of 60 Pages The Federal (United States) 4 Court System
The Federal Court System
The United States The highest court in the land. Supreme Court There is only one. It is in Washington, D.C.
The intermediate appellate court. The United States There are 13 US Courts of Appeals. Courts of Appeals The are divided into geographic areas called circuits (except for the Federal Circuit).
This is where almost all federal cases start. The United States District Courts The are divided into geographic areas called districts.
Page 7 of 60 Pages The Basics Chapter 4: The Federal Court System 2017-2018
The Federal Court System as it Relates to Queens County Federal Cases
The United States Supreme Court
The United States Court of Appeals 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).5 Since the United States Supreme Court decided Marbury v Madison in 1803,6 the United States Supreme Court has been the final interpreter of the Constitution. These rulings, meant to protect and enforce rights and liberties guaranteed by — though not created by — the Constitution, govern all rulings by the lower federal courts (US Court of Appeals and US District Court) and all state courts. 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.7
5 The Judiciary Act of 1891. 6 The entire case can be found at www.findlaw.com: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=5&invol=137 7 E.g., the president does not have the power to declare war, only Congress has that power.
Page 8 of 60 Pages The Basics Chapter 4: The Federal Court System 2017-2018
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.8 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. 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. The Supreme Court each year hears a very limited number of the cases. 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 (roughly 1%). 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.
8 Justice William Brennan (member of the Supreme Court from 1956 to 1990) would refer to this as the “rule of five”: Since the Supreme Court has nine justices, once five justices agree, they can do anything.
Page 9 of 60 Pages The Basics Chapter 4: The Federal Court System 2017-2018
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 Trade and the United States Court of Federal Claims, as well as appeals from the district courts in patent and trademark cases and certain other specialized matters.
Court of Appeals Jurisdiction and Procedure The geographic courts of appeals9 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 decision 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. There is no testimony in the appellate courts. 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).10 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.11 In a court of appeals, an appeal is heard by a “panel” of three of the court’s judges. 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 Court of Appeals. 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, as well as the District of Columbia, and Puerto Rico. There are also Districts Courts in Guam, the Virgin Islands and Northern Mariana Islands.
9 NOTE: The Court of Appeals for the Federal Circuit is NOT a geographic court. 10 The intermediate appellate court in New York State (i.e., the Appellate Division) can hear of errors in fact. 11 http://www.access.gpo.gov/uscode/title28a/28a_3_.html
Page 10 of 60 Pages The Basics Chapter 4: The Federal Court System 2017-2018
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 interpret the law through the resolution of actual legal disputes, that is, “Cases or Controversies.”12 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 person starting the action (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 person the plaintiff brings the action against (the defendant). Third, the case must be the type of dispute that the law in question was designed to address, and it must be the type of case that the court has the power (jurisdiction) 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.
12 US Constitution, Article III.
Page 11 of 60 Pages The Basics Chapter 4: The Federal Court System 2017-2018
Page 12 of 60 Pages 5 The New York State Court System
The New York State Court System
The highest court in New York. Court of Appeals, State of New York There is only one. It is in Albany
Supreme Court of the State of New The intermediate appellate court There are four courts: One per York, Appellate Division Department
Supreme Court of the State of New The trial courts in New York York and other trial Courts
Page 13 of 60 Pages The Basics Chapter 5: New York Court System 2017-2018
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 New York 1st 12th Bronx 2d Kings 11th Queens 2d 13th Richmond 10th Nassau and Suffolk 9th Rockland, Westchester, Putnam, Dutchess and Orange 3d Albany, Columbia, Greene, Rensselaer, Schoharie, Sullivan, Ulster 4th Clinton, Essex, Franklin, Fulton, Hamilton, Montgomery, St. Lawrence, Saratoga, 3d Schenectady, Warren, Washington 6th Broome, Chemung, Chenango, Cortland, Delaware, Madison, Otsego, Schuyler, Tioga, Tompkins 5th Herkimer, Jefferson, Lewis, Oneida, Onondaga, Oswego 4th 7th Cayuga, Livingston, Monroe, Ontario, Seneca, Steuben, Wayne, Yates 8th Allegany, Cattaraugus, Chautauqua, Erie, Genesee, Niagara, Orleans, Wyoming
Page 14 of 60 Pages The Basics Chapter 5: New York Court System 2017-2018
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.
Court of Appeals Jurisdiction
Civil 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 Appeals 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).
Intermediate Appellate Courts: (1) Appellate Division and (2) Appellate Term
(1) 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. Since permission is required to appeal from the Appellate Division to the Court of Appeals most appeals end in 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.
Page 15 of 60 Pages The Basics Chapter 5: New York Court System 2017-2018
Appellate Division Jurisdiction
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. T he 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.
(2) Appellate Term of Supreme Court
The Appellate Term of the Supreme Court is unique to the First and Second Judicial Departments (New York City; Nassau, Suffolk, Rockland, Westchester, Putnam, Dutchess and Orange Counties). It serves as a lower appellate court. 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.
Appellate Term Jurisdiction
Civil and Criminal Appeals The Appellate Term hears appeals from the following courts: Courts Inside New York City Criminal Court of the City of New York Civil Court of the City of New York Courts Outside of New York City District, City, Town and Village Courts
Page 16 of 60 Pages The Basics Chapter 5: New York Court System 2017-2018
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
(1) 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.13
Supreme Court Jurisdiction
Civil Cases Civil cases of any amount (because of Civil Court, cases tend to be over $25,000). Where the civil cases are over $25,000, Supreme Court is the only court that can handle that case (exclusive jurisdiction) Divorce cases and other ways to terminate a marriage (exclusive jurisdiction) Criminal Cases Almost any type of criminal case can he heard in this court. Felony cases must be tried in Supreme Court (exclusive jurisdiction).
13 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 17 of 60 Pages The Basics Chapter 5: New York Court System 2017-2018
(2) 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 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.
Court of Claims Jurisdiction
Court of Claims Civil Damages against the state (exclusive jurisdiction).
(3) New York Family Court
The Family Court of the State of New York is a specialized court. It handles cases involving families and children.
Family Court Jurisdiction
Family Court Cases Family Court has jurisdiction over the following type of 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.
(4) 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.
Page 18 of 60 Pages The Basics Chapter 5: New York Court System 2017-2018
Surrogate’s Court Jurisdiction
Surrogate’s Court Cases Decedent’s estates (wills, trusts and estates)
Adoptions
Guardianships
Judges of this court are elected in each county for terms of 10 years (14 years in New York City).
(5) Local Trial Courts
New York City Courts: (a) Civil Court and (b) Criminal Court
In New York City, these two courts have responsibilities different from courts elsewhere in the state.
(a) 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.
Civil Court Jurisdiction
Civil Matters Civil Law suits up to $25,000 (includes real property cases) Housing Part Hears landlord-tenant cases and promotes enforcement of housing codes. Small Claims Part Hears cases brought by private individuals for amounts up to $5,000. A Small Claims Part is designed to make it easier for a person to sue for small amounts of money without having to be represented by an attorney.
The Commercial Claims Part Certain business entities may bring small claims actions
The judges of this court have citywide jurisdiction and are elected for ten year terms.
(b) Criminal Court The Criminal Court of New York City has jurisdiction only over criminal matters (i.e., it has limited jurisdiction).
Page 19 of 60 Pages The Basics Chapter 5: New York Court System 2017-2018
Criminal Court Jurisdiction
Commencement Almost every criminal case will start in Criminal Court. Trials Trials of misdemeanors and petty offenses.
Search and Arrest Warrants Criminal Court Judges act as magistrates under the Fourth Amendment in terms of issuing search and arrest warrants
The judges are appointed by the Mayor of New York City for ten year terms.
(6) District Courts (Outside of New York City)
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.
Page 20 of 60 Pages Appellate Paths for Federal 6 and State Courts in New York City
Page 21 of 60 Pages The Basics Chapter 6: Appellate Paths 2017-2018
Appellate Paths of Federal Courts in New York City
The Federal Courts
Paradigm
US District Court,
US Court of Appeal,
United States Supreme Court
Page 22 of 60 Pages The Basics Chapter 6: Appellate Paths 2017-2018
US District Court, Eastern District, New York
US Court of Appeal, Second Circuit
United States Supreme Court
US District Court, Southern District, New York
US Court of Appeal, Second Circuit
United States Supreme Court
Page 23 of 60 Pages The Basics Chapter 6: Appellate Paths 2017-2018
Appellate Paths of New York State Courts in New York City
The Supreme Courts
Paradigm
NY Supreme Court,
NY Appellate Division,
New York Court of Appeals
Supreme Court, New York County
Appellate Division, First Department
Court of Appeals
Page 24 of 60 Pages The Basics Chapter 6: Appellate Paths 2017-2018
Supreme Court, Bronx County
Appellate Division, First Department
Court of Appeals
Supreme Court, Richmond County
Appellate Division, Second Department
Court of Appeals
Supreme Court, Kings County
Appellate Division, Second Department
Court of Appeals
Page 25 of 60 Pages The Basics Chapter 6: Appellate Paths 2017-2018
Supreme Court, Queens County
Appellate Division, Second Department
Court of Appeals
Page 26 of 60 Pages The Basics Chapter 6: Appellate Paths 2017-2018
The Surrogate’s Courts
Paradigm
NY Surrogate’s Court,
NY Appellate Division,
New York Court of Appeals
Surrogate’s Court, New York County
Appellate Division, First Department
Court of Appeals
Page 27 of 60 Pages The Basics Chapter 6: Appellate Paths 2017-2018
Surrogate’s Court, Bronx County
Appellate Division, First Department
Court of Appeals
Surrogate’s Court, Richmond County
Appellate Division, Second Department
Court of Appeals
Surrogate’s Court, Kings County
Appellate Division, Second Department
Court of Appeals
Page 28 of 60 Pages The Basics Chapter 6: Appellate Paths 2017-2018
Surrogate’s Court, Queens County
Appellate Division, Second Department
Court of Appeals
Page 29 of 60 Pages The Basics Chapter 6: Appellate Paths 2017-2018
The Family Courts
Paradigm
NY Family Court,
NY Appellate Division,
New York Court of Appeals
Family Court, New York County
Appellate Division, First Department
Court of Appeals
Page 30 of 60 Pages The Basics Chapter 6: Appellate Paths 2017-2018
Family Court, Bronx County
Appellate Division, First Department
Court of Appeals
Family Court, Richmond County
Appellate Division, Second Department
Court of Appeals
Family Court, Kings County
Appellate Division, Second Department
Court of Appeals
Page 31 of 60 Pages The Basics Chapter 6: Appellate Paths 2017-2018
Family Court, Queens County
Appellate Division, Second Department
Court of Appeals
Page 32 of 60 Pages The Basics Chapter 6: Appellate Paths 2017-2018
The Criminal Courts of the City of New York
Paradigm
NYC Criminal Court,
NY Appellate Term,
New York Court of Appeals
Criminal Court, New York County
Appellate Term, First Department
Court of Appeals
Page 33 of 60 Pages The Basics Chapter 6: Appellate Paths 2017-2018
Criminal Court, Bronx County
Appellate Term, First Department
Court of Appeals
Criminal Court, Richmond County
Appellate Term, Second Department
Court of Appeals
Criminal Court, Kings County
Appellate Term, Second Department
Court of Appeals
Page 34 of 60 Pages The Basics Chapter 6: Appellate Paths 2017-2018
Criminal Court, Queens County
Appellate Term, Second Department
Court of Appeals
Page 35 of 60 Pages The Basics Chapter 6: Appellate Paths 2017-2018
The Civil Courts of the City of New York
Paradigm
NYC Civil Court,
NY Appellate Term,
NY Appellate Division,
New York Court of Appeals
Page 36 of 60 Pages The Basics Chapter 6: Appellate Paths 2017-2018
Civil Court, New York County
Appellate Term, First Department
Appellate Division, First Department
Court of Appeals
Civil Court, Bronx County
Appellate Term, First Department
Appellate Division, First Department
Court of Appeals
Civil Court, Richmond County
Appellate Term, Second Department
Appellate Division, Second Department
Court of Appeals
Page 37 of 60 Pages The Basics Chapter 6: Appellate Paths 2017-2018
Civil Court, Kings County
Appellate Term, Second Department
Appellate Division, Second Department
Court of Appeals
Civil Court, Queens County
Appellate Term, Second Department
Appellate Division, Second Department
Court of Appeals
Page 38 of 60 Pages 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.
Creation of Law
Branch Types of Law Creation Steps
Legislative Branch Statute (Legislation becomes a statute when either STEP 1 Bill (proposed) signed by the Executive or vetoed by the Executive and then the veto is overridden by 2/3rds of the STEP 2 Legislation (passed) Legislature) STEP 3 Statute (law)
Administrative Law (e.g., Rules pertaining to the STEP 1 Proposed Rule registration of claims to copyrights in the Copyright Office. STEP 2 Rule and Regulation
Page 39 of 60 Pages The Basics Chapter 7: Types of Law 2017-2018
Branch Types of Law Creation Steps
Executive Branch Executive Orders (e.g, “Don’t Ask; Don’t Tell”). President issues Executive Order
Administrative Law (e.g., Federal Aviation STEP 1 Proposed Rule in a particular Administration Regulations pertaining to the licensing Agency (in Federal Register) of pilots) STEP 2 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 Proposed Rule
STEP 2 Rule and Regulation
Constitution
The constitution is the supreme law of the land.14 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 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.”
14 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 40 of 60 Pages The Basics Chapter 7: Types of Law 2017-2018
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?
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 “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
If the decision comes from a higher court, the court must follow that court’s opinion because 1 Controlling/ Mandatory it is controlling or mandatory If the decision comes for a court at the same level or below, the court may follow that 2 Persuasive court’s opinion because it is persuasive.
Page 41 of 60 Pages The Basics Chapter 7: Types of Law 2017-2018
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.15 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. 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. Some of these common law decisions was put into statutory form, or “codified,” so now, many common law principles are found in our statutes. In New York, many areas of law remain under common law. For example: (1) torts (e.g. assault, battery, negligence), (2) contract (e.g., offer, acceptance, mutual assent), (3) property, (4) evidence.
15 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 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. Today there are many cases published by the government on the internet that are never published in any book.
Page 42 of 60 Pages 8 Reading Law for the First Time
Examples of Law: Statutes and Cases
Tools: Citations
Since we are about to read law, it is important to understand citations a little bit. In Legal Research, you will learn all about proper citation form from the Tanbook: the New York Style Manual. For now, here is what is needed to read this chapter.
Citations
What You Will See What it Means § This sign means “section.” A section usually means a statute (or administrative law)
Penal Law § 120.00 or This is a statute. You would say “Penal Law section one-twenty point zero-zero” or “Penal Law (Penal Law § 120.00) section one-twenty oh-oh.” This means that this statute (120.00) is a part of a grouping of statutes in the chapter called the Penal Law.
Penal Law § 120.00 (1) or The (1) means that it is subdivision one of the above. Subdivision is a part of the section. (Penal Law § 120.00 [1]) Penal Law § 55.10 (2) (a) or (2) (a) means subdivision two, paragraph a. A paragraph in this context is a part of a subdivision (Penal Law § 55.10 [2] [a]) CPL 3211 or This is also a statute. There are some statutes that we are allowed to abbreviate. This one (the (CPL 3211) CPLR) is the Civil Practice Laws and Rules). Notice that there is no section sign (§). The People of the State of New This is a case citation. A case is a court decision (law that the courts make). There are three York, Respondent v Robert parts: (1) case title; (2) citation; (3) identifier. Boley, Appellant, 106 AD3d 753 Case Title: (2d Dept 2013) or People v People v Boley Boley, 106 AD3d 753 (2d Dept Citation: 106 AD3d 753 2013) Identifier: (2d Dept 2013)
Page 43 of 60 Pages The Basics Chapter 8: Reading Law for the First Time 2017-2018
What You Will See What it Means Case Title: People v Boley Party Party Title Who They Are People Respondent the party that won in the court below Boley Appellant the party that lost in the court below Citation: 106 AD3d 753 106 AD3d 753 Volume number Reporter Page number where the (in this case: Appellate Division case starts Reports, 3d series) Identifier: (2d Dept 2013) This identifies the court and the year of the decision. “2d Dept” means that this case was from the Appellate Division, Second Department. People v Zalevsky, 82 AD3d The only difference here is that there is another number after the first page number (1136, 1136, 1137 1137). This means that the rule that this court is relying on from Zalevsky, was found on the second page of the decision (1137).
Understanding Sections, Subdivisions and Paragraphs
Here is a statute: robbery in the second degree
Robbery in the Second Degree (Penal Law § 160.10)
A person is guilty of robbery in the second degree when he forcibly steals property and when: 1. He is aided by another person actually present; or 2. In the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime: (a) Causes physical injury to any person who is not a participant in the crime; or (b) Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; or 3. The property consists of a motor vehicle, as defined in section one hundred twenty-five of the vehicle and traffic law.
Robbery in the second degree is a class C felony.
Section 160.10 of the Penal Law creates the crime of Robbery in the Second Degree. In the section there are numbers (i.e., 1., 2., and 3.) and letters ([a] and [b]). Since the numbers come first in the section, they are subdivisions. After that comes letters and they are paragraphs that are a part of the subdivisions.
Page 44 of 60 Pages The Basics Chapter 8: Reading Law for the First Time 2017-2018
Robbery in the second degree (Penal Law § 160.10) » Title and section
A person is guilty of robbery in the second degree when he forcibly steals property and when: 1. He is aided by another person actually present; or » subdivision 1 2. In the course of the commission of the crime or of immediate flight therefrom, he or another » subdivision 2 participant in the crime: (a) Causes physical injury to any person who is not a participant in the crime; or » subdivision 2, paragraph (a) (b) Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other » subdivision 2, paragraph (b) firearm; or 3. The property consists of a motor vehicle, as defined in section one hundred twenty-five of » subdivision 3 the vehicle and traffic law.
Robbery in the second degree is a class C felony. » Penalty
You will notice that after each section there is an “or.” This means that there are several options for robbery in the second degree.
Putting it all together
Robbery in the Second Degree (Penal Law § 160.10)
Robbery in the Second Degree under Subdivision One A person is guilty of robbery in the second degree when s/he forcibly steals property and when s/he is aided by another person actually present or Robbery in the Second Degree under Subdivision Two, Paragraph (a) A person is guilty of robbery in the second degree when s/he forcibly steals property and when in the course of the commission of the crime or of immediate flight therefrom, s/he or another participant in the crime causes physical injury to any person who is not a participant in the crime or Robbery in the Second Degree under Subdivision Two, Paragraph (b) A person is guilty of robbery in the second degree when s/he forcibly steals property and when in the course of the commission of the crime or of immediate flight therefrom, s/he or another participant in the crime displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm or
Page 45 of 60 Pages The Basics Chapter 8: Reading Law for the First Time 2017-2018
Robbery in the Second Degree under Subdivision Three A person is guilty of robbery in the second degree when s/he forcibly steals property and when the property consists of a motor vehicle, as defined in Vehicle and Traffic Law § 125.16
This all means that there are four different types of robbery in the second degree. Statutes
We start with Assault in the Third Degree, a New York statute. Statutes are written by the legislature. When they use terms, they can define them. For example, the term “sell” as used in every day conversation means to exchange money for some thing (like goods). However, when it comes to “sell” as it relates to the criminal sale of a controlled substance (drugs), the legislature has defined “sell” as “to sell, exchange, give or dispose of to another, or to offer or agree to do the same.”17 It is not the ordinary definition, but the legislature has that power to define terms the way they want to as long as it is constitutional. Therefore, a legal dictionary will probably not be used to define terms in the statute. Instead you will look at other statutes. If statutes do not give a definition, then you need to look at cases where a judge has defined the term. If there is no case defining the term, you will then look at the law dictionary.
Assault in the third degree (Penal Law § 120.00)
A person is guilty of assault in the third degree when: 1. With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or 2. He recklessly causes physical injury to another person; or 3. With criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument. Assault in the third degree is a class A misdemeanor.
16 The last type — under subdivision 3 — contains “as defined in section one hundred twenty-five of the vehicle and traffic law.” In plain language, this would be “as defined in Vehicle and Traffic Law § 125.” 17 Penal Law § 220.00 (1).
Page 46 of 60 Pages The Basics Chapter 8: Reading Law for the First Time 2017-2018
Assault in the Third Degree (Penal Law § 120.00)
Statute What You Are Looking at Assault in the third degree ³ Assault is a criminal offense. A degree is a level of an offense. There three degrees of assault. Assault in the First Degree is the highest degree. (Penal Law § 120.00) ³ This is the cite. It means that if you go to the Penal Law (a chapter of NY statutes) and go to section (§) 120.00, you will find this statute A person is guilty of assault in the third degree when: 1. With intent to cause physical injury to another ³ These are three different types of Assault in the Third Degree: (1) person, he causes such injury to such person or to a intentional assault; (2) reckless assault; and (3) criminal negligent third person; or assault. Each is a separate crime.
2. He recklessly causes physical injury to another Note: We will be looking at the first type (With intent to cause physical person; or injury to another person, he causes such injury to such person or to a 3. With criminal negligence, he causes physical injury third person) to another person by means of a deadly weapon or a dangerous instrument. Assault in the third degree is a class A misdemeanor. ³ This is the classification of this crime and tells you the possible penalty (class A misdemeanor)
Intentional Assault in the Third Degree (Penal Law § 120.00 [1])
Statute What Needs to Be Defined Assault in the third degree (Penal Law § 120.00 [1]). A person is guilty of assault in (1) Intent the third degree when: with intent to cause physical injury to another person, he causes such injury to such person or to a third person; or (2) Physical injury
Assault in the third degree is a class A misdemeanor. (3) Class A Misdemeanor.
Page 47 of 60 Pages The Basics Chapter 8: Reading Law for the First Time 2017-2018
Intentional Assault in the Third Degree Terms
Term to Be Defined Statutory Definition (1) Intent Culpability; definitions of culpable mental states (Penal Law § 15.05) 1. “Intentionally.” A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct. (2) Physical injury Physical injury (Penal Law § 10.00 [9]). “Physical injury” means impairment of physical condition or substantial pain. (3) Class A Designation of offenses (Penal Law § 55.10 [2] [a]). Misdemeanor Each misdemeanor defined in [the Penal Law] is either a class A misdemeanor or a class B misdemeanor, as expressly designated in the section or article defining it. Definitions of terms of general use [the Penal Law] (Penal Law § 10.00 [4]).
Misdemeanor” means an offense... for which a sentence to a term of imprisonment in excess of fifteen days may be imposed, but for which a sentence to a term of imprisonment in excess of one year cannot be imposed.
Case Law
When a person (defendant) is charged with Assault in the Third Degree (Penal Law § 120.00 [1]), and gets convicted, s/he has the right to appeal to a higher court. Cases interpret law: in this case statutory law. The courts will look at the statute and apply it to the facts from the case. In order to apply the law to the facts, it must first define the law. The first time the court defines something it is sometimes referred to as a case of first impression. The court may write about a particular issue for several sentences or even pages. When later courts apply that interpretation, it uses that case as precedential authority. Sometimes the second court will just state the conclusion of the precedent and the cite of the precedent. This will require the reader to look at the precedent to get an understanding of why the court did what it did. The following case is from the Appellate Division, the intermediate appellate court in New York.
Page 48 of 60 Pages The Basics Chapter 8: Reading Law for the First Time 2017-2018
The People of the State of New York, Respondent v Robert Boley, Appellant, 106 AD3d 753 (2d Dept 2013) Lynn W. L. Fahey, New York, N.Y. (Leila Hull of counsel), for appellant, and appellant pro se. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Joyce Slevin, and Bruce Alderman of counsel; Jason D. Krumenaker on the brief), for respondent. Appeal by the defendant from a judgment of the Supreme Court, Kings County (Mangano, Jr., J.), rendered January 21, 2011, convicting him of assault in the third degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is reversed, on the facts, the indictment is dismissed, and the matter is remitted to the Supreme Court, Kings County, for the purpose of entering an order in its discretion pursuant to CPL 160.50. After a jury trial, the defendant was convicted of assault in the third degree (see Penal Law § 120.00). In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348 [2007]; People v Romero, 7 NY3d 633 [2006]), we nevertheless accord great deference to the factfinder’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we find that the verdict of guilt was against the weight of the evidence, since the evidence presented at trial did not establish, beyond a reasonable doubt, that the complainant sustained a “physical injury” within the meaning of Penal Law § 10.00 (9). Physical injury is defined as “impairment of physical condition or substantial pain” (Penal Law § 10.00 [9]). The complainant testified that he sustained bruising and scraping to his right arm, neck, and back, but he did not seek any medical treatment or miss any work. The complainant also provided no details that would corroborate his subjective description of pain, nor did he take any pain medication. Accordingly, there was insufficient evidence that the complainant suffered a “physical injury” (see Matter of Philip A., 49 NY2d 198, 199-200 [1980]; People v Taylor, 83 AD3d 1105, 1106 [2d Dept 2011]; People v Zalevsky, 82 AD3d 1136, 1137 [2d Dept 2011]; People v Baksh, 43 AD3d 1072, 1073-1074 [2d Dept 2007]; People v Richmond, 36 AD3d 721, 722 [2d Dept 2007]; People v Baez, 13 AD3d 463, 464 [2d Dept 2004]; People v Briggs, 285 AD2d 651, 652 [2d Dept 2001]), and the judgment must be reversed and the indictment dismissed. In light of our determination, we need not address the defendant’s remaining contentions, including those raised in his pro se supplemental brief. Rivera, J.P., Leventhal, Austin and Miller, JJ., concur.
Page 49 of 60 Pages The Basics Chapter 8: Reading Law for the First Time 2017-2018
Breaking People v Boley Down
Case Language What Does it Mean? The People of the State of New York, Respondent This is the case caption. The first part is the title of the case: The People of the v Robert Boley, Appellant, 106 AD3d 753 (2d State of New York, Respondent v Robert Boley, Appellant. Dept 2013) Appellant The party that is appealing the lower court decision Respondent The party who won in the court below (the court where the case is being appealed from) 106 AD3d 753 is the case cite 106 AD3d 753 Volume Reporter (Appellate Division The page in volume 106 Reports, 3rd Series) where the case starts (2d Dept 2013) this case comes from the Appellate Division, Second Department and the case was announced in 2013 NOTE: When you see “People v ...” you can assume that it is a criminal case. Lynn W. L. Fahey, New York, N.Y. (Leila Hull of This is the attorney who is representing the defendant. counsel), for appellant, and appellant pro se. When the case starts in the trial court, this part is called the defendant. When the defendant appeals, s/he will be called the appellant. Pro se means that the party is representing him- or herself. Charles J. Hynes, District Attorney, Brooklyn, N.Y. This is the attorney who is representing the People of the State of New York (Leonard Joblove, Joyce Slevin, and Bruce (People). Alderman of counsel; Jason D. Krumenaker on the brief), for respondent. The District Attorney of the county where the crime was committed represents the People. Appeal by the defendant from a judgment of the This is the procedural history. Supreme Court, Kings County (Mangano, Jr., J.), rendered January 21, 2011, convicting him of Judgment means conviction and the sentence. assault in the third degree, upon a jury verdict, Supreme Court, Kings County is the court where the defendant was convicted and imposing sentence. of assault in the third degree (Mangano, Jr., J.) is Justice Mangano, Jr. The judge who presided over the jury trial and sentenced the defendant.
Page 50 of 60 Pages The Basics Chapter 8: Reading Law for the First Time 2017-2018
Case Language What Does it Mean? Ordered that the judgment is reversed18, on the Holding: Statement of the court of that it is ruling facts, the indictment is dismissed, and the matter is remitted to the Supreme Court, Kings County, Reversed “on The lower court decision was wrong and therefore the for the purpose of entering an order in its the facts” conviction cannot stand. There are not enough facts to discretion pursuant to CPL 160.50. sustain a conviction. Indictment is Since there aren’t enough facts to sustain a conviction, the dismissed indictment — the accusatory instrument that starts the criminal action — must be dismissed. Matter is The case is sent back to the court where it came from. remitted “for the CPL is the Criminal Procedure Law (it is a statute) purpose of entering an Since there is no conviction and now no indictment, the order in its matter must be considered for sealing (CPL 160.50) by the discretion Judge. pursuant to CPL 160.50: After a jury trial, the defendant was convicted of Reasoning: The reasons why the court held what it held. assault in the third degree (see Penal Law § 120.00). In fulfilling our responsibility to conduct Law: an independent review of the weight of the Statutes it relies on evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348 [2007]; People v • Penal Law § 120.00 Romero, 7 NY3d 633 [2006]), we nevertheless • CPL 470.15 [5] accord great deference to the factfinder’s opportunity to view the witnesses, hear the Precedent (Cases that the court is relying on to make this decision) [see below testimony, and observe demeanor (see People v as to cite] Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). • People v Danielson, 9 NY3d 342, 348 [2007] • People v Romero, 7 NY3d 633 [2006]) • People v Mateo, 2 NY3d 383, 410 [2004] • People v Bleakley, 69 NY2d 490, 495 [1987]
18 Basically appeals will either affirm or reverse the lower court decision. If the court affirms it means that the lower court decision stands. If the court reverses, it means that the lower court decision will not stand.
Page 51 of 60 Pages The Basics Chapter 8: Reading Law for the First Time 2017-2018
Case Language What Does it Mean? Upon reviewing the record here, we find that the The court is holding that based on the facts that the jury relied on to convict verdict of guilt was against the weight of the there is not enough to support a finding of physical injury and element of evidence, since the evidence presented at trial did assault. not establish, beyond a reasonable doubt, that the complainant sustained a “physical injury” within Beyond a reasonable doubt is that standard by which the jury must consider the the meaning of Penal Law § 10.00 (9). Physical facts. If they have a reasonable doubt, they cannot convict. injury is defined as “impairment of physical Physical injury requires either: condition or substantial pain” (Penal Law § 10.00 [9]). • impairment of physical condition
• substantial pain
The complainant testified that he sustained Here are the facts and the conclusions: bruising and scraping to his right arm, neck, and back, but he did not seek any medical treatment No impairment: or miss any work. The complainant also provided no details that would corroborate his subjective description of pain, nor did he take any pain • bruising and scraping to his right arm, neck, and back, medication. Accordingly, there was insufficient evidence that the complainant suffered a “physical • not seeking any medical treatment injury” (see Matter of Philip A., 49 NY2d 198, 199-200 [1980]; People v Taylor, 83 AD3d 1105, • not missing any work 1106 [2d Dept 2011]; People v Zalevsky, 82 AD3d 1136, 1137 [2d Dept 2011]; People v Baksh, 43 AD3d 1072, 1073-1074 [2d Dept 2007]; People v No substantial pain: Richmond, 36 AD3d 721, 722 [2d Dept 2007]; People v Baez, 13 AD3d 463, 464 [2d Dept 2004]; • No details that would corroborate his subjective description of People v Briggs, 285 AD2d 651, 652 [2d Dept pain 2001]), and the judgment must be reversed and • Did not take any pain medication the indictment dismissed.
In light of our determination, we need not address Since the case is being reversed and dismissed, there is no need to address the defendant’s remaining contentions, including any other issues. those raised in his pro se supplemental brief. Rivera, J.P., Leventhal, Austin and Miller, JJ., These are the Appellate Division Justice who decided this decision. concur.
Page 52 of 60 Pages The Legal Profession: 9 Paralegals and Ethics
Definition of Paralegal from The American Bar Association [“ABA”]
A legal assistant or paralegal is a person qualified by education, training or work experience who is employed or retained by a lawyer, law office, corporation, governmental agency or other entity who performs specifically delegated substantive legal work for which a lawyer is responsible (www.americanbar.org/groups/paralegals/resources/ current_aba_definition_of_legal_assistant_ paralegal.html)
Basic Information About Paralegals and Legal Assistants
Difference Between the Terms Paralegals and Legal Assistants. There may have been a difference at one time, but modern usage of these terms makes them interchangeable. Calling yourself a Paralegal. California is the only state so far where in order to call yourself a “paralegal” you must be qualified education, training or work experience.19 New York has no such law.
19 California’s Business and Professions Code § 6450 states: (c) A paralegal shall possess at least one of the following: (1) A certificate of completion of a paralegal program approved by the American Bar Association. (2) A certificate of completion of a paralegal program at, or a degree from, a postsecondary institution that requires the successful completion of a minimum of 24 semester, or equivalent, units in law-related courses.... (3) A baccalaureate degree or an advanced degree in any subject, a minimum of one year of law-related experience under the supervision of an attorney who has been an active member of the State Bar of California for at least the preceding three years or who has practiced in the federal courts of this state for at least the preceding three years, and a written declaration from this attorney stating that the person is qualified to perform paralegal tasks. (4) A high school diploma or general equivalency diploma, a minimum of three years of law-related experience under the supervision of an attorney who has been an active member of the State Bar of California for at least the preceding three years or who has practiced in the federal courts of this state for at least the preceding three years, and a written declaration from this attorney stating that the person is qualified to perform paralegal tasks.... (d) Every two years... any person that is working as a paralegal shall be required to certify completion of four hours of mandatory continuing legal education in legal ethics and four hours of mandatory continuing legal education in either general law or in an area of specialized law....
Page 53 of 60 Pages The Basics Chapter 9: Paralegals and Ethics 2017-2018
Employment Outlook. Employment of paralegals and legal assistants is expected to grow by 17 percent from 2012 to 2022 which is “faster than average.” This occupation attracts many applicants, and competition for jobs is strong.20 What Paralegals Do. Paralegals perform a wide variety of legal work under attorneys’ supervision. There are a few things paralegals can’t do: for example, trying cases in court and providing legal advice to clients. Paralegals generally will perform tasks delegated to them by an attorney, provided the attorney supervises the work and maintains responsibility for the work product.
Some Duties of a Paralegal
Area Duties 1 Research Researching statutes, cases, administrative law and other legal authority 2 Investigation Investigating facts 3 Preparation Preparing legal documents and forms 4 Case Files Reviewing and organizing case files 5 Trial Notebook Assisting at and preparing a case for trial, including the “trial notebook” 6 EBTs21 & Depositions Assisting at examinations before trial and depositions 7 Digesting Summarizing and digesting depositions 8 Interrogatories Drafting interrogatory questions and/or answers 9 Interviewing Interviewing clients and witnesses 10 Administration Handling administrative matters 11 Communication Communicating information to clients and other people
Where Paralegals Work. Paralegals are employed wherever there is legal work to be done (i.e., everywhere). They work for: • large, medium and small law firms; solo practitioners (about 70% of all paralegals);22 • various federal, state and local governmental agencies (about 9%); • in-house legal departments of corporations (about 6%);
20 For more go to their website at http://www.bls.gov/ooh/Legal/Paralegals-and-legal-assistants.htm. 21 EBTs are Examinations Before Trials. 22 http://www.bls.gov/ooh/Legal/Paralegals-and-legal-assistants.htm
Page 54 of 60 Pages The Basics Chapter 9: Paralegals and Ethics 2017-2018
• service industries such as insurance carriers (about 4%).23 They also may work in their own homes or offices as “freelance” paralegals. Freelance paralegals work for attorneys on an as-needed basis (i.e., per diem). Their work is still performed under the direction and supervision of attorneys, as they cannot work directly for clients because that would be the unauthorized practice of law. Why Attorneys Use Paralegals. Attorneys use paralegals for a number of reasons, with the most popular answer being saving time and money. Attorneys who use paralegals can provide more efficient legal services by concentrating on the type of legal work that only they can perform while delegating other matters to the paralegals. Paralegal’s Relationship with the Client. Paralegals work under the supervision of attorneys, but paralegals frequently engage in direct client contact. Paralegals have face-to-face meetings as well as telephone conversations with clients in order to give or request information (i.e., factual research). Paralegals review and explain documents to clients, bring clients up to date on the status of cases, help clients get ready for court and answer clients’ questions. Paralegals do not — nor can they legally — give legal advice, but they may relay advice to clients from attorneys, provided the client is told that the attorney told the paralegal to forward the legal advice. Ethical Obligations of Paralegals. Although there is no certificate or license required to become a paralegal in New York (or any other state [There is a voluntary registration in Florida]), paralegals are bound by the same ethical standards as attorneys because they work for attorneys. All information a paralegal gets from a client or attorney is kept confidential, and they are not allowed to discuss the case with anyone outside their offices. The Rules of Professional Conduct require attorneys to supervise paralegals appropriately and adequately. The attorney is ultimately responsible for the paralegal’s work. As such, an attorney can face disciplinary consequences for failure to adequately supervise a paralegal’s work.
National Organizations for Paralegals
NALS...the association for legal professionals www.nals.org National Association of Legal Assistants (NALA) www.nala.org National Federation of Paralegal Associations (NFPA) www.paralegals.org National Paralegal Association (NPA) www.nationalparalegal.org/
Each has adopted its own code of ethics to assist paralegals in their work. Look at each of these websites and bookmark them in your browser.
23 http://www.bls.gov/ooh/Legal/Paralegals-and-legal-assistants.htm#tab-3
Page 55 of 60 Pages The Basics Chapter 9: Paralegals and Ethics 2017-2018
Paralegals license or certification.24 Currently, there are no states that license paralegals. There are private entities that certify paralegals.
Private Certification
Organization Available Certification National Association of Legal Assistants Certified Legal Assistant (CLA) (http://www.nala.org/Certification.aspx) Certified Paralegal (CP). National Federation of Paralegal Associations Paralegal Core Competency Exam (PCC) (http://www.paralegals.org/default.asp?page=62) Paralegal Advanced Competency Examination (PACE) The National Association for Legal Professionals (NALS) Accredited Legal Secretary (ALS) (http://www.nals.org/?page_id=69) Professional Legal Secretary (PLS) Professional Paralegal (PP)
Specific Restrictions
Answering Client’s Questions. Paralegals may give factual and procedural information. However, paralegals cannot give legal opinions or advise in response to client questions. Paralegals must inform clients that as paralegals they cannot give legal advice, only a lawyer can. A paralegal may relay advice specifically given to him or her by his or her supervising attorney. It is improper for a lawyer to place a paralegal in the position of being perceived as giving legal advice to a client. Direct Communication with Opposing Party Represented by Counsel. A paralegal may not communicate with an opposing party who is represented by counsel without the express written permission of opposing counsel. This rule applies to attorneys as well.
24 Licenses are issued by a government entity (e.g., for be a lawyer), while certification is issued by a private entity. In New York the following professions are licensed through the New York Education Department (http://www.op.nysed.gov/prof/): Acupuncture; Architecture; Athletic Training; Audiology; Certified Shorthand Reporting; Chiropractic; Clinical Laboratory Technology (Clinical Laboratory Technologists, Cytotechnologists, Clinical Laboratory Technicians, Certified Histological Technicians); Dentistry (Dentists, Dental, Anesthesia/ Sedation, Dental Hygienists, Certified Dental Assistants); Dietetics-Nutrition; Engineering; Interior Design; Land Surveying; Landscape Architecture; Massage Therapy; Medical Physics; Medicine (Physicians, Physician Assistants, Specialist Assistants); Mental Health Practitioners (Creative Arts Therapists, Marriage and Family Therapists, Mental Health Counselors, Psychoanalysts); Midwifery; Nursing (Registered Professional Nurses, Nurse Practitioners, Licensed Practical Nurses); Occupational Therapy (Occupational Therapists, Occupational Therapy Assistants); Ophthalmic Dispensing; Optometry; Pharmacy (Pharmacists, Pharmacy Establishments); Physical Therapy (Physical Therapists, Physical Therapist Assistants); Podiatry; Polysomnographic Technology; Psychology; Public Accountancy (Certified Public Accountants, Public Accountants); Respiratory Therapy (Respiratory Therapists, Respiratory Therapy Technicians); Social Work (Licensed Master Social Worker [LMSW], Licensed Clinical Social Worker [LCSW]); Speech-Language Pathology; Veterinary Medicine (Veterinarian, Veterinary Technician). And of course Lawyer is licensed through the New York Office of Court Administration (the judiciary).
Page 56 of 60 Pages The Basics Chapter 9: Paralegals and Ethics 2017-2018
Preparing and drafting legal documents. Paralegals draft legal documents while lawyers write legal documents. The lawyer is responsible for reviewing and approving the contents of any legal document he or she signs and submits to a client, party and/or court or other government entity. Legal Research. But the product of the research, which usually constitutes legal advice, goes directly to the lawyer, not the client. Paralegal at a deposition. A paralegal may attend a deposition and assist the lawyer during the deposition by taking notes and coordinating documents and exhibits. Paralegals in court. A paralegal can be in court, however, they can only sit in the counsel table if permitted by local court rules.25 Business Cards. A paralegal may have business cards on which he or she is clearly identified as a paralegal. Paralegal’s name on law office letterhead. The paralegal’s name may be used provided he or she is clearly identified as a paralegal. Signing correspondence from a law firm. It is allowed as long as the paralegal’s status is clearly identified.
Very truly yours, ABLE & ZERO, LLC By______Charlotte D. Everrett, Paralegal
Paralegal signing attorney’s name to documents. The attorney may direct the paralegal to sign the attorney’s name to correspondence/pleadings on a document-by-document basis after the attorney has reviewed, supervised production, and approved the content of the document. The paralegal should indicate that he or she signed the attorney’s name to the document. One method of indicating this fact is for the paralegal to initial the signature. Paralegal’s time billed to a client. The substantive legal work of a paralegal (work normally performed by an attorney in the absence of a paralegal) may be billed directly to the client in the same way an attorney’s work is billed. To be billable, the work paralegals perform must not be clerical or ministerial. In circumstances where “attorney’s fees” are reviewed or awarded by a court, the paralegal hours may be recovered as part of the attorney fee that is reviewed or awarded.
Dealing with Clients
Law is a service industry like medicine. When you go to a doctor, the doctor should be asking you questions that only a doctor would ask you. Sometimes you might think the doctor is asking very personal questions, but in
25 Paralegals can be of great assistance to lawyers at trial and can sit at counsel tables if court rules do not restrict their presence. Most of the time, they will sit directly behind the attorney in the audience.
Page 57 of 60 Pages The Basics Chapter 9: Paralegals and Ethics 2017-2018
order to serve and help you, they have to ask those questions. Lawyers and their staff need to do the same thing. Sometimes they will ask the kind of questions they would never want to be asked of them. You may also come across a client who either did something or is doing something that you find morally disgusting. You may think that the client doesn’t deserve your time. Get over it. The greatest person in the world as well as everyone else — no matter how bad you think they are or how bad the act they are accused of doing is — all deserve due process and equal protection under the law. It is all about serving the client, serving the public, serving the profession, serving the legal system, and serving the constitution. It is about fulfilling the oath or affirmation all attorneys take upon admission to a state to practice law: to support the United States Constitution. In the constitution is due process and equal protection (5th, 6th and 14th Amendments to the United States Constitution).
Ethics Alert!!!
Think about the kinds of cases you are not comfortable with (e.g., an ugly divorce, rape or murder defense). Think about the type of people with whom you would never want to deal with as clients (e.g., a nasty person, a celebrity with an unending ego, rich tax cheats, a rapist, murder, corporate executive who caused his employees to lose their jobs and retirement savings, or a cheating spouse). Now think about how you are going to deal with this and get over it in order to serve the public. As a paralegal you rarely have a choice. Assisting in the defense of a rapist is not condoning the behavior. You are condoning equal protection under the law and due process. T hat is what lawyers are suppose to do and that is your job as well.
The Rules of Professional Conduct, which lawyers are required to follow, does not regulate paralegals. However, this Code regulates the way attorneys utilize paralegals.
Codes
Paralegal Codes Codes of ethics from paralegal associations (e.g., the National Association of Legal Assistants) ABA Model Rules of Professional Conduct.26 Attorney Codes New York State Rules of Professional Conduct.27
26 Found at http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_ professional_conduct/model_ rules_of_ professional_conduct_table_of_contents.html 27 http://www.nysba.org/Content/NavigationMenu/ForAttorneys/ProfessionalStandardsforAttorneys/ RulesofProfessionalConductasamended070112.pdf
Page 58 of 60 Pages The Basics Chapter 9: Paralegals and Ethics 2017-2018
What All Paralegal Codes Contain28
Topic Explanation
Competence and Integrity Maintaining a high level of competence and personal and professional integrity
Conduct Maintaining a high standard of professional conduct; Serving the public interest by contributing to the delivery of quality legal services and the Serving the Public Interest improvement of the legal system Preserving all confidential information provided by the client or acquired from other sources Confidentiality before, during, and after the course of the professional relationship Disclosure Disclosing one’s status and title Not being a Lawyer Avoiding the unauthorized practice of law, and Avoiding conflicts of interest and disclosing conflicts to employers/clients and prospective Conflicts of Interest employers/clients.
Ethical responsibilities of a lawyer who employs a paralegal. The lawyer is ultimately responsible for the work product and ethical conduct of a paralegal. Because paralegals are not licensed, they are not subject to professional discipline. The lawyer must give ethical guidance and direction to the paralegal.
What an Attorney Must Do
Develop policies regarding the delegation and supervision of the work product and conduct of the 1 Develop paralegal 2 Communicate Communicate the policy to the paralegal 3 Enforce Enforce the policy; and 4 Review Have a system of review and feedback to ensure the policy is being followed.
The lawyer-employer is responsible for the paralegal’s direction and ethical guidance. The supervisory measures that the lawyer applies should take account of the fact that paralegals are not subject to professional discipline. The lawyer is ultimately responsible for the work product and ethical conduct of the paralegal. Paralegal being identified to others. At the beginning of all professional communications with others, the paralegal shall disclose that he or she is a paralegal. The lawyer shall instruct the paralegal to make this disclosure. If the lawyer is present, the lawyer should introduce the paralegal and identify him/her as a paralegal.
28 The paralegal codes are based on the Rules for lawyers.
Page 59 of 60 Pages The Basics Chapter 9: Paralegals and Ethics 2017-2018
Read the Following Ethical Codes on Line
NALA Code of Ethics and Professional Responsibility http://www.nala.org/code.aspx NFPA Model Code of Ethics and Professional Responsibility and http://www.paralegals.org/associations/2270/files/ Guidelines for Enforcement Model_Code_of_ Ethics_09_06.pdf
ABA Model Guidelines for the Utilization of Paralegal Services http://apps.americanbar.org/legalservices/paralegals/ downloads/modelguidelines.pdf
Page 60 of 60 Pages