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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.

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