PART 3: The Operation of American Law

 

Introduction: Correcting Several Common Misunderstandings

 

When talking about the operation of American law, this book will focus mostly on the cases and procedures of  the Federal courts and California state courts system. Not only does American law have a division between federal and state laws, the Federal Court of Appeals is divided into eleven circuits. Sometimes each circuit’s interpretations of the same issue are not the same. Although the fifty states have the same legal principles, each state has different laws and judicial procedures. We shall try to discuss the most common principles throughout the United States, but the reader must be reminded that not every section of the book is applicable across the entire United States.

 

American law has always been complex with the principles being related to its founding spirit and historical developments. Therefore, not only America’s new immigrants, even those who grow up and are educated in the Untied States can also have a vague understanding or even misled understanding of American legal system because they are affected by the overly dramatized, commercialized and sensationalized reporting in the media.   

 

The first part of this book focuses on introducing the relationship between American law and history. The second part focuses on the spirit and principles of American law. The third part focuses on the practical operation of American law. As a start, I would like to correct a few common misconceptions about American law.

 

First, when most people deal with problems, they often exaggerate the importance of lawyers and they over rely on lawyers. They underestimate their own role and responsibilities when in fact they as the clients are the most important persons in litigation. The performance of clients definitely affects the outcome of the lawsuit.

 

Second, when talking about American law it is impossible not to talk about American lawyers.  There are about eight hundred thousand lawyers in the United States. There are numerous and various types, and we cannot generalize about them in this book. However we can emphasize one point. Lawyers generally do not usually resemble how they are portrayed on movies and television: always sharply dressed, great looking, stunning verbal skills, breathtaking dazzling...

 

Why is it so? First, in the United States, there is a general division between trial lawyers and non-trial lawyers. The ones we see on television are usually the trial lawyers appearing in court. Second, the public often mistakenly believe that good lawyers are extremely powerful and eloquent debaters. However,  in practice lawyers need to remain particularly quiet in trial, because talking too much inevitably leads to errors. Third, in the legal profession, there are good lawyers, bad lawyers,  popular lawyers, and despicable lawyers. The reader must have a balanced understanding. Moreover, the legal profession is not only a profession but also a business. There are quite a few contradicting and stress inducing factors. The stress and hardship experienced by lawyers are difficult for outsiders to see. Thus, lawyers are not how they appear on television where they easily win with sharp debates and brilliant insights; it is not that simple and radiant.   

 

Third, the media, especially movies and television shows, generally give the public a false impression when they exaggerate the importance of litigation and make it appear that legal issues are inseparable from litigation. In reality, a vast majority of the legal profession are services that do not involve litigation (such as legislation, immigration, incorporation, preparing a will, investment in property, and so on). These services that positively help society and individuals are rarely shown on television. From a certain perspective, the best lawyer is one who keeps his client out of lawsuits. 

 

Fourth, the media often report about compensation cases. For example, an old woman sued a McDonald restaurant  because its coffee was excessively hot and burnt her when it got knocked over. She won the lawsuit and received two million dollars judgment. Another example was when a San Francisco secretary sued her former boss for sexual harassment. The boss’ former employer was the world’s largest law firm, Baker and McKenzie, which lost the case. They compensated the woman 3.9 million dollars. These sensational compensation cases often give rise to public misconceptions that any accidental injury is like a gold mine which offers inexhaustible compensation.  The fact is that compensation lawsuits are not so simple.  The flood of litigations in America is closely related to the insurance industry and the recent rise of the "culture of victims".  We shall comment on it at the conclusion of our book.

 

 

LESSON 5

 Criminal Law

 

Litigation procedures in the United States are divided into criminal and civil cases.

 

Section 1. Differences between Criminal and Civil Law

 

Subsection 1.  The different nature of criminal and civil cases

 

The major differences between civil and criminal cases are: the result of losing a civil case is  that the losing party pays the monetary compensation, while the result of being convicted in a criminal case as a defendant can be imprisonment or even the death penalty. Below we shall use the “Simpson case” as an example. In June of 1994 in Los Angeles, State of California, a criminal complaint was filed against O.J Simpson accusing him of murdering his ex-wife and one of her male friends. In the court archives, this case is entitled  “The People of California v. Simpson”.

 

In criminal cases, the plaintiff’s name is “People”, because in democratic societies, the People are the government. Here the California state government sought to maintain and give justice to the  victims. Based on the evidence obtained, criminal charges were brought against Simpson. If this case were taking place in Federal court, the caption of the file would be "United States v. Simpson”.

 

The tradition of American criminal law comes from British Common Law. According to Common Law tradition, the criminal defendant is presumed innocent until proven guilty beyond reasonable doubt by the government. ("Beyond reasonable doubt" will be discussed in later section). So in theory, without presenting any rebuttal evidence, Simpson’s lawyer could simply argue that the government had not produced sufficient evidence to prove guilt beyond reasonable doubt and demanded that the judge dismiss the prosecution charges and acquit Simpson. 

 

The families’s of the deceased, Nicole Brown (Simpson's ex-wife) and Ron Goldman (the other deceased) filed a civil complaint against Simpson after the criminal trial had been completed, demanding compensation of the Brown and Goldman families for the loss of their beloved ones. The plaintiffs won the civil lawsuit and the jury reached a judgment against Simpson, requiring him to compensate the Brown and Goldman families for thirty-four million dollars. Criminal cases are lawsuits between the government and the defendant. If  the defendant loses he goes to jail, but the purpose of civil cases is only to determine liability and the amount of compensation.

 

Subsection 2.  Can beating your wife result in imprisonment?

 

We shall first look at a case that is often seen in court but it also happens frequently in families with Chinese descent in the United States.

 

A husband is accused of beating his wife. The wife asks the police for help. The police hands over the case to the court where the prosecutor sues the husband. The witness in the case is the defendant’s wife. The evidence includes the wife’s recorded phone call to the police on the night of the incident as well as the real time photos the police took when investigating the assault, showing the injury to the wife's face from the beating.

 

Criminal Trial

 

The plaintiff is the government (federal, state or local government). It definitely is not a private party.

 

The result for the defendant is the verdict of “guilty” or “not guilty”

 

The twelve jurors must reach a unanimous decision; otherwise the case will go through a retrial.

 

The defendant can exercise his or her Fifth Amendment right, which is the right to remain silent during the trial. He can refuse to answer any questions or testify in court.

 

If the defendant is unable to pay for a lawyer, the Constitution’s Sixth Amendment gives him the right to a free defense lawyer. 

 

The evidence provided by the government (represented by the prosecutor ) must be "beyond reasonable doubt”  before it can prove the defendant's crime.

 

When the judge is deciding whether some evidence is admissible, he will be more strict and cautious. Also the Fourth Amendment of the Constitution limit the government, that is the prosecution, from presenting evidence that has been unlawfully obtained.

 

Before being proven guilty, the accused is presumed innocent. 

 

If criminal defendants are found guilty, the consequences include jail or even the death penalty.

 

Civil Trial

 

The plaintiff can be the government or a private party (such as the parents of Nicole who is deceased)

 

The result determines whether the defendant or plaintiff  “wins the lawsuit” or “loses the lawsuit” and the party that is “liable” or “not liable”. It does not address the question of “guilty” or “not guilty”.

 

In California, as long as nine out of twelve jurors reach a consensus, they can make a decision.

 

The defendant cannot refuse to testify in court.

 

If the defendant employs a lawyer, he pays for his lawyer fees and court costs.

 

The standard of civil lawsuit judgment is to look at the evidence provided by the plaintiff and the defendant to see which side has a more powerful case or to see which side has more than fifty percent of the evidence, to determine the judgment. 

 

The judge will be more flexible when deciding whether or not to allow certain kinds of evidence to be admitted in court.

 

Civil cases do not determine “guilty” or “not guilty”, so it will not involve a presumption of innocence). 

 

In civil cases, the consequence the ”losing” side is being required to give monetary compensation (or "damages"). It absolutely does not involve time in jail.

 

From the table above, convicting a defendant in the United States for a criminal case is not an easy task. The reader may observe that the rights of criminal defendants are protected in all areas of American law. This is a characteristic of American law; it originates from the history of the founding of the United States. From the founding of the nation, Americans have had a unique idea: to limit governmental power. Why do criminal and civil trials have different standards? The reason and principle behind it are to balance the resources, including finances, materials and power between the the government (the prosecution) and the criminal defendant. 

 

The American legal tradition emphasizes a fair trial to find the truth. But in ordinary criminal cases, the prosecution is the government, and they have almost unlimited resources for the investigation and trial. Relatively speaking, the defendant often is just a common folk. His strength and resources are in no way adequate to match the government in court. Given the gap between the government and the people’s resources, American law not only handicaps the government by imposing on it a heavy responsibility for presenting evidence of the crime, the Sixth Amendment provides the criminal defendant free legal representation to defend him if he has insufficient financial resources.

 

The American penal system imposes many restrictions and liability on the government. It deliberately allows the defendant and prosecutor relatively equal strength in court. It believes that this is the only way to make it fair and to prevent a one-sided contest. I believe the Hong Kong Jockey Club has a similar system: To make it more fair for some lower quality horses, horses of similar qualities are grouped into one level, Within the same level, the most popular and successful horses are added sometimes a load on  their backs (So-called "plus-pound" or "negative pound”).  Another way to make it more competitive is to elevate good horses to a higher level. Horse racing fans feel these regulations are fair and reasonable; they are based on the same consideration (as American criminal trial).