FUNCTIONS OF LAW

1. To structure the government (e.g. Constitution)

2. “To protect citizens” from the Government
(e.g. Bill of Rights)
3. To protect minorities from majorities
4. Setting standards of conduct behavior
5. To create orderly change
-rather than revolution or anarchy

1
6. To resolve disputes peacefully, civilized
7. To punish wrong doers
-Criminal Law:
Free room & board
$ (Fines)
-Civil Law:
Punitive Damages
8. To compensate victims – Civil Law:
- $ (Actual Damages)
- Injunction (Court Order)
- Order for Declaratory Relief

2
9. Taxing Revenue for the Government
10. Reallocate Resources
11. To foster stability, reliability, predictability

Etc.
To foster, promote morality
To promote health & safety

3
SOCIETAL INFLUENCES ON THE
LAW

1. Systems of Government
- Democratic vs. totalitarian system
- U.S. is a republic
(Federal, State, Local Government)
2. Religion/Cultural/Traditions
-Western
-Asian
-Islamic
4
3.Standards of Morality/Ethics
abortion, slavery, women/gay/minority
rights, cloning, euthanasia, physician
assisted suicide, and flag burning
4.Wealth
health, safety, environment protection,
and cost $$$
5. Technology:
Internet, telecommunications

5
 HISTORICAL SOURCES OF
AMERICAN LAW
1.British – 13 colonies
Influences on State Marital Rights Law
- Premise: before marriage 2; at time of
marriage becomes 1
- Husband has management/control of
resources as head of the household
-Presumption of alimony to the wife (upon
divorce)
- Presumption of entitlement to the wife (upon
death of husband)
6
2. Spanish – Western 9 states, Florida
Influences on State Law
-Community Property (equal ownership &
management of income earned during
marriage)
-Water Rights
- Real Property (Mineral Rights)

3.French – Louisiana
- Remnants of Napoleonic influence

7
4. Alaska
- purchase from Russia

5. Native America Tribes

-Exist as a “Nation”
-Oral Tradition
-Treaty status with U.S.
-Reservation Law
-Relationship with State Law

8
CONSTITUTION

9
Article I – Congress – 2 Houses
(House of Representatives – 2 yr terms)
Unique Duties, Rights of :
-Initiate all spending bills (appropriations)
-Initiate (issue) Articles of impeachment
(Senate – 6 yr terms)
Unique Duties, Rights of :
-Confirmation of cabinet, senior executive,
branch officials and federal judges
-Ratify treaties
- Conduct trial of impeached officials

10
Article I Section 8 of the Constitution (so-called
“enumerated powers”) – Gives Congress the
power to:

1. Impose & Collect Taxes

2. Impose Duties (e.g. tariffs)
3. Import & Export Controls
4. To borrow money
5. To regulate commerce – basis of the most
federal statues
6. To establish rule of Naturalization
7. To coin money
11
8. To establish post office and post roads
(federal, i.e. US Highways)
9. To declare war
10. To raise and support armies
11. To provide and maintain an army
12. To constitute tribunals (federal courts)
13. To define and punish piracies

12
Article II - Duties, Rights of President
-Commander in Chief of the Armed Forces
-Enforces the Law
-Negotiate Treaties, Foreign Policy
*Can be impeached

Article III – Federal Court System

Federal Judges - Nominated by the President
& Confirmed by the Senate – Life tenure (*can
be impeached)
Establishes jurisdiction of the U.S. Supreme
Court
13
Article IV – Full Faith & Credit between each States

Article V – Amend Constitution

1. Constitutional Amendment Process
2. Constitutional Convention Process

Article VI – Federal Law supersedes State Law (pre –

emption) – Supremacy Clause

Article VII – Ratify Constitution by 9 of 13 states

14
 AMENDMENTS
Bill of Rights (1st 10 Amendments)

15
Amendments to the Constitution:
1st Amendment – 5 Freedoms: Religion, press,
assembly, speech, petition the government
for a redress of grievance

2nd Amendment – To bear arms (state militia-

National Guard)

3rd Amendment – No soldier in time of peace

shall be quartered in any house unless
prescribed by law

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Amendments dealing with Criminal Law:

4th Amendment – Unreasonable/unlawful search

& seizure (evidence is excluded from trial
when wrongfully seized by Government)

5th Amendment – Right against self

incrimination, double jeopardy, due process
(trial), eminent domain
(if Government takes your property there must
be compensation of fair market value)
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6th Amendment –
Right to a speedy & public trial (usually 60 days).
Right to confront your accusers.
Right to a defense counsel in a criminal case

8th Amendment –
Excessive bail not be required (based on risk of
accused fleeing the jurisdiction, severity of crime,
wealth, safety of public).
Protection from cruel & unusual punishment
(burning @ the stake, whipping, keel hauling,
torture)
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Continuation of Amendments:

7th Amendment – Suits of Federal Common Law

where controversy exceeds $20.00 dollars

9th Amendment – “Catch all” Inherent rights of

people

10th Amendment – States are the sovereign:

limited authority of Federal Government

13th Amendment – Slavery

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14th Amendment – Section 1 – equal protection
and due process provision (makes citizen
protections contained in the Bill of Rights
also applicable against States)

15th Amendment – Right to vote, not based on

color, race, religion, national origin

16th Amendment – Income Tax

18th Amendment – Prohibition of alcohol

19th Amendment – Women’s Suffrage 20

20th Amendment – Terms of President & Vice
President to end at noon on January 20th
21st Amendment – Repealed the 18th Amendment
22nd Amendment – President shall serve no more
than 2 terms in office
23rd Amendment – District of Columbia to have
representation in Congress
24th Amendment – Citizens to vote without
having to pay voting taxes

21
25th Amendment – Process by which the Vice
President becomes the President in the event of
incapacity/death of President

26th Amendment – Lowered voting age to 18

27th Amendment – Compensation for services of

Senators and Representatives can become
effective only during a subsequent Congress

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BASIC LEGAL CONCEPTS

23
The Law Hierarchy:
C = Constitutional Law
S = Statutory Law (Congress – Article I of
Constitution)
E.O = Executive Order (President – Article
II of Constitution)

Regulation (Administrative) Law –

1) Power to issue the regulation – based on
Statute or E.O. (Grant of Authority)
2) Procedural requirements
a) Fact finding (hearing, investigations)
b) Propose regulation for comment
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Example of US Administrative (regulatory) Agencies:

OSHA - Occupational Safety Health Administration

*Regulates work place safety
FDA - Federal Drug Administration
*Regulates food and drugs for safety and efficacy
FTC – Federal Trade Commission
*Regulates unfair or deceptive business practices
SEC – Securities Exchange Commission
*Regulates security markets, exchange and deals
FAA - Federal Aviation Agency
*Regulates private and commercial aircraft, crews, airplanes, and
airports
EPA – Environmental Protection Agency
*Regulates toxic emissions, etc. in land, water and air
IRS – Internal Revenue Service
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*Regulates & Collects Taxes
 Examples of California Administrative (regulatory)
Agencies

DMV – Department of Motor Vehicles

*To regulate operating and licensing of drivers and vehicles
FTB – Franchise Tax Board
*IRS for California
EDD – Employment Development Department
*To administer unemployment compensations and job training
systems
Cal Trans
*Administrates and maintains California highways, bridges
Cal OSHA
*Regulates work place safety in California
26
Common Law – Case law that is not based on
constitutional law, statutory law, executive
order or regulation (administrative) law – i.e.,
judge made law

27
 Important Judicial Concepts
1. Precedent – same legal issue that was decided
before
-Mandatory – lower court must follow ruling of
its higher court
-Persuasive - if a court of equal rank or in
another jurisdiction gives a ruling, the court is
not bound to follow it, but should unless
there is a compelling reason not to follow it
2. Stare Decisis –
“The decision stands” – Judicial principle that a
court which has decided a legal issue in a prior
case will apply to the same legal ruling in a
subsequent case. 28
3. Res Judicata –
“Things been decided” – within the context
of a case, once the court has decided a
legal issue, it will not revisit the issue

29
The California Initiatives/ Propositions
Process

• Can amend Cal Constitution

• Supersede Statutory, Judicial &
Administrative Law
• Advantages & disadvantages of Initiative
Process

30
 LEGAL SYSTEM

Three Components:

1. Make Law –
Legislative body (e.g. Congress – Article I
Constitution)
2. Enforce Law –
Chief Executive (e.g. President – Article II of
Constitution)
3. Interpret Law –
Judicial (Federal Court Article III of Constitution)
31
 Multiple Legal Systems

• At least 51 systems – 1 Federal & 50 States

(and territories & Washington D.C.)
• Complexity for business planning/operations

32
 State Legal Systems

- Generally similar to federal

- State Legislature of CA-2 Houses (State Senate
& State Assembly)
- Governor – Chief Executive of State
- State Court System
- State Administrative Agencies

33
 Role of Political Subdivisions –
created by a state
Counties – Board of Supervisors – Legislative
Body (ordinance)
Cities – City Council – Legislative Body
(Ordinance)
- Mayor – Executive

34
 TYPES OF LAW

Substantive Law – Rights & Responsibilities

1. Contract Law
2. Tort Law
3. Property Law
4. Etc. – lots of others

35
 TYPES OF LAW

Procedural Law- Process through court

1. Civil litigation
2. Criminal litigation
3. Law of evidence
4. Rules of Court

36
 TYPES OF EVIDENCE

1. Sworn Testimony
2. Physical Evidence – bloody glove, knife,
bullet, gun, fiber, hair, DNA sample, etc.
3. Documents – letter, e-mail, electronic tapes,
etc.
4. Representatives – photograph, sketch, etc.

37
 Criminal vs. Civil Law Differences

Criminal Civil
Parties: Parties:
Government vs. “Person” “Person” vs. “Person”

38
 What is a “Person” Under the Law?

1. A “person” is a legal entity

2. Types of Legal entities
-natural alive person
-artificial person (e.g. – estates, trusts,
partnership, corporations, trade associations)

39
Federal Crime – U.S. of America vs. “Person”

→ Chief Prosecutor : Attorney General of U.S.

- Nominated by the President & Confirmed
by the Senate
-Heads “U.S. Dept. of Justice”

→ U.S. Attorneys
-local representatives of the U.S. Department
of Justice are assigned to specific federal
court
40
State Crime – People of the state of CA vs.
“Person”
→ Chief Prosecutor Attorney General of State
-Elected Position
-Heads “Cal Dept. of Justice”

→ District Attorney (for each county)

-Elected position
-Prosecutes state criminal law violations
occurring within the county

41
 Criminal vs. Civil Law Differences

Criminal Civil
Remedies: Remedies:
-Jail & or Fine -Damages,Injunction,
Declaratory Relief
Verdict Requirement: Verdict Requirement:
-Guilty or not guilty Liable for _________

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CRIMINAL CIVIL

4. Burden of Proof: 4. Burden of Proof:

-Beyond a reasonable doubt -Preponderance of the evidence

5.Jury Verdict Vote: 5.Jury Verdict Vote:

-Unanimous in Fed & Cal -Federal & CA three-fourths of jury
-Some states have less than
unanimous for state crimes

43
 Role of Grand Jury

Grand jury decides to prosecute a criminal law case

indictment

Cases taken to grand jury – government official,

government corruption cases, securities fraud,
antitrust cases, etc.

Grand Jury Proceedings

-no right to have a counsel present

Investigative Powers of Grand Jury

44
 Role of Grand Jury – cond’t
-Indictment based on Grand Jury’s Findings that
probable cause exists when:
1. A crime was committed and
2. That indicted “person” committed the crime
-Judicial Role in grand juries:
*appointment of juries
*oversight role
-Most criminal prosecutions are brought without
grand jury involvement

45
 Predicates to Litigation (civil)
*Choosing an attorney – check insurer, bar association, ask
other attorneys in the same specialty
*Methods of Payment
a. Salary – for employed (government and in-house
counsel)
b. Hourly Rate
c. Contingency Fee (% of recovery civil litigation –
plaintiff’s attorney)
d. Per Project Fee Flat Fee (simple will, uncontested
divorce, simple bankruptcy)
e. Counsel on Retainer – Attorney takes calls and discuss
issues. Corporations have law firms on retainer (especially
with specialty) Prearranged
Attorney’s hourly rate based on – Experience, Reputation,
Specialty, Size of Firm, Location of Firm, Costs
46
7 Stages of Civil Litigation

47
1. Civil Pleadings
a) Complaint
i. Identifies the attorney for the plaintiff
ii. Identifies Plaintiff
iii. Identifies Defendant
vi. Legal theories – cause of actions
v. Short story by plaintiff – what happened
(factual act)
vi. Remedies Sought
b) Responses to Complaints –
1. Do nothing (default)
2. Or pay what is asked (set a release of all claims)
3. Motion to dismiss – even if facts alleged are true; there is
no legal theory or argument upon which to bring suit.
Granted, case can be thrown out in full or in part.
4. Answers – responsive pleading to the complaint, admits
or denies factual allegations in the Complaint; sets forth
affirmative defenses. Counterclaim – defendant suing
plaintiff for different legal theory
48
2. Civil Discovery –
can take to a year or more
a) Purpose – to discover facts of case and to uncover evidence for the
use in a trial
b) Techniques
i. Deposition – sworn testimony, anyone with relevant
information can be disposed (Court stenographer licensed by
court, deliver an oath, records testimony)
ii. Interrogatory - written questions & written responses under
oath-detailed answers & research information, good for data
requests
iii. Document – request demand for document (relevant to case)
iv. Subpoena – documents or things from 3rd parties
v. Court order medical examination by other side’s physician
c) Results of Discovery
i. Strength & weakness of case
ii. Promotes Settlement

49
3. Summary Judgment –
Motion by one or both sides to the Judge for a decision
a) Criteria – No material facts in dispute
b) Results – Judge applies the law-grant in total, part
or none of it
All motions include at least:
1. Motion
2. Opposition by opposing side
3. Reply by moving party to opposition
Pleading (can take about 6 months)
Discovery (can take up to 2 years)
Summary Judgment (can take up to 3 months)

50
4. Settlement Conference –
Mandatory conference – requires attorneys for
each side to meet to see if they can settle the case

5. Pre-trial (can take between 3 to 6 months) –

Briefing – Script of the trial – For the Judge
Exchange of Witness List Evidence – No surprises
to occur at trial

51
6. Trial – To determine the facts
(basically the same for civil & criminal cases)
a) Jury Selection – “Voir Dire” - Un-cover juror bias
-Challenge for cause
-Preemptory challenge
12 jurors plus 2 alternates (alternates do
everything but deliberate)
After jurors selected they are sworn in
b) Opening Statements - Each side gives an overview
of the case, the attorneys tell you what they want
you to know, can vary in length

52
6. Trial – continued
c) Plaintiff’s case in chief
1. Direct Exam – Attorney call witnesses – they
give testimony & lay foundation for evidence to be
admitted
2. Cross Exam – Other attorney gets to question the
witness, cast doubt to the truthfulness & validity of
the witness
3. Redirect – Attorney that called the witness gets to
ask questions, to clarify answers that were elicited
during cross exam
4. Recross – other attorney gets to question the
witness again and cast doubt
Defendant’s motion for directed verdict if plaintiff has not
proven all elements (components) of his/her theories and
therefore can not win

53
6. Trial – continued
d) Defendant’s case
e) Rebuttal
f) Sur Rebuttal
g) Closing Arguments – Each Attorney makes their story
cohesive for the jurors
h) Jury Instructions – Attorney for each side
submit proposed instructions to the Judge:
Judge decides what to use based on the law
Judge reads the instructions and tells the jury what the
law is (elements & defenses & burden of
proof) that pertains to the case
Jury instructions can vary in length

54
6. Trial – continued
i) Jury Deliberations - Elect a foreperson (moderator) –
that person can contact the court through the bailiff, go
over testimony, take a vote & come to a verdict
In CA the court clerk reads the verdict
The losing side can ask to have the jurors polled
j) Motion for a judgment not withstanding the
verdict – (ask the judge to overturn the jury’s decision;
the jury’s verdict is not based on the trial evidence; very
rare only about 5% of the time)

55
7. Appeal –
Request in the form of a petition by losing party to
have an appellate court review the case: asserts the
Trial court Judge made a material (significant)
mistake of the law, which could have changed the
outcome of the case

56
Most persuasive reason why Court of Appeals
accepts a case for review:

• Criteria – 2 lower courts under the courts of

appeals’ jurisdiction came to different conclusions
on the same legal issue; or Important legal issues
are likely to arise again

57
 Appellate Procedure
• Court of Appeals will receive trail court materials,
transcripts in order to review the case
• Briefs by each of the attorneys are prepared and submitted
to the court
• Briefing schedule
• No witnesses present and no testimony
• Oral Arguments (in front of 3 justices) ½ hour for each
side
– Purpose – Ask attorneys questions about the legal issue and its
application in other scenarios
– Convince other justices to vote their way

58
Possible Results –
1. Affirm – no material mistake made by trial court
Judge at trial (most common)
2. Reverse – Material mistake of law by trial court
Judge @ trial; case should have been decided for
the other side; overturn decision (least common)
3. Reversed & Remand – Material mistake of law
by trial court Judge @ trial; Appellate court
can’t tell how the trial would have turned out if
the law had been applied properly; appellate
court sends the case back to be tried again (2nd
most common)

59
 The Adversary System
• England and former English colonies (including US) legal
systems based on the adversary system
• Purpose To do justice; both sides of the case are argued as
well as possible, then get a ruling
• Role of Judge
-w/ Jury – Instruct jury on the law; rule on evidence and procedure
motions; passive role (i.e. does not ask questions)
-w/o Jury – Rule on evidence & procedure; listen to testimony;
determine the facts and apply the law
• Role of Trial Counsel - Role is to win by presenting the
facts in a way that is favorable to the client
• Role of Jury – Evaluate evidence; determine facts based on
evidence; apply law as given by the Judge (fact finder)
• Role of Appellate Court – Determines if the trial court
made a material mistake of law that could have changed
the outcome of the case 60
 Alternative Dispute Mechanisms
(ADR)
1. Medication (Synonym is Facilitation)
-Attempt to facilitate an agreement between the parties;
Any person, the parties, or counselor agree on, can be a
mediator
Advantages – listen to both sides separately; Spend time w/
both sides; less expensive. Usually involves compromise
by both sides
Disadvantage - Not binding unless & until the parties both
agree with the settlement (a contract to settle the
dispute)

61
 Alternative Dispute Mechanisms
(ADR)
2. Arbitration
-Selection of Arbitrator – Any person, the
parties or their representatives agrees upon
to act as an arbitrator

62
• Arbitration Process – a decision results
-Selection of Arbitrator – Lawyers, Retired
Judges, Experts in the industry or field
-Procedural Rules - Whatever the parties agree
on; or what the arbitrator decides if the parties
can’t agree
-Substantive Law – Whatever the parties agree on,
or what the arbitrator decides if the parties can’t
agree
-Cost & Fees – It depends on what the parties
agreed upon; (usually losing side pays) but there
are fees for arbitrator, space, etc.
-Appeal – NONE (parties took case out of the
legal system)
63
• Arbitration Process – continued
-NO Jury
-Enforcement of Decision – File a civil law suit
for the breach of contract
-Public Press excluded unless parties agree
-Punitive Damages – No
-Quicker than civil litigation
-Usually represented by counsel (present facts
favorable to their client)
-Everyday examples of agreements to arbitrate
Medical care allegations of malpractice
Auto Warranty
Brokerage Account
64
 Court Structure
1. Federal Court System (See text)
a) 3 levels
i. Supreme Court
ii. Court of Appeals
1. 13 Courts of Appeals (12 based
geographically – Circuit Court of Appeal, 1
Federal Circuit – Patents & Copyrights
(specialized)
a) Congress decides how many courts to have
by number of cases
iii. Trial Courts
65
 Court Structure Continued
2. Typical State Court System
3. California State Court System (see handouts)
a) 3 levels
i. Supreme Court (7 justices)
ii. 6 Courts of Appeals (geographic)
iii. Superior & Municipal Courts
1. LA County & most others – has merged the
Superior & Municipal Courts
2. Specialized Divisions (Appeals, Probate,
Domestic Relations, Juvenile Court, Adoptions,
Psychiatric) 66
 California Small Claim’s Court
• Known in the past as The People’s Court
• No attorneys allowed – Judge is the fact
finder and administer the law
• $5000 dollar maximum
• Business suing customers who haven’t paid
them are the most common plaintiffs
• Small monetary matters (Tort or Contract
law)
67
 California Small Claims Court
• Advantages
1. Cheap
2. Quick
3. No Attorney (but should
consult with one prior to
appearing at court)
• Disadvantages
(defendant)
1. No Jury
2. No Counsel – but
defendant can appeal
decision
• Disadvantages
(plaintiff)
1. NO appeal of the
decision by the judge in
favor of the defendant
68
 Federal Court Jurisdiction

1. Original Jurisdiction of the U.S.S.C. – State v.

State; Ambassadors
2. Area of Exclusive Federal Jurisdiction
a) Bankruptcy, b) Patent, c) Copyright, d)
Maritime, e) Admiralty, f) Federal Antitrust, g)
Federal Civil Rights
3. Federal Questions Case – Plaintiff’s theory based
on Federal Law, Statute or Regulation

69
 Federal Court Jurisdiction continued
4. Diversity of Citizenship
a) Definition of Diversity – No plaintiff is a citizen of
a state as any defendant in a litigation case
i. Corporations can have dual citizenship – (1) State
in which they are incorporated and (2) Principal place
of business – where there is the most assets &
employees
b) Historical Basis - Avoids Basis in favor of citizens
of a particular state against others from another state
5. Removal from State to Federal Court – Removal
Jurisdiction – Defendant can remove a case from State
court to Federal Court if the case could be filed by
plaintiff in Federal Court initially

70
 The Lawyer as “Counselor”
1. Legal risk evaluation & legal opinions
2. Advice for restructuring the transaction or
plan, to reduce legal risk

*Higher hourly rate due to specialization and

expertise of the lawyers
71
The Importance of Confidences
• Attorney Client Privilege
-Attorney cannot disclose contents of
communication they have with clients
when client is seeking legal advice
• Attorney Work Privilege
-No discovery access to attorney’s notes or
files (work material)

72
 ETHICS
The Country’s laws reflect its ethics

Ethics, like law, is a dynamic

phenomena

73
 Lawful but some would say unethical –

Slavery (historical); abortion during first

trimester; animal & plant cloning; stopping
artificial life support for a brain dead
individual

74
Unlawful but some would say ethical
examples –

Underground railroad (helped slaves to get

to the North (historical); Blacks sitting in
“white only” area in a restaurant before
Civil Rights Act of 1964 (historical); Robin
Hood – taking money from the rich and
giving it to the poor; physician assisted
suicide

75