Posts categorized as "Federal and State Legal Systems"

What is mandamus?

Mandamus, or a "writ of mandamus", can mean different things in different contexts. In the US, mandamus usually means an order from a  higher court to prevent a lower court from doing something wrong.  Mandamus is very unusual.

Remember that as a general rule, an appellate court only hears a case after all the proceedings in the lower court are finished.  For example, a federal  appellate court (Circuit Court) will not review what a federal trial court (District Court) did until the District Court trial is complete or until the District Court issues a decision that permanently ends the case, such as by granting summary judgment for one side.

Mandamus is one exception to our general rule.  Let's say a party thinks that a federal trial court has made such a terribly wrong decision and the party requires urgent intervention from an appeals court.  In that case, the party can ask for mandamus from the appellate court.  Some typical requirement for mandamus are:

  1. the party has no other way of getting help (if the appellate court does not issue an order of mandamus the party has no other way to protect its rights);
  2. if the party waits until the case is ready for appeal it will be too late.

Parties seeking mandamus might also argue that the district court keeps repeating the same mistake or that the issue presented is new and important.

Again, mandamus is very unusual.  Where a court exceeds its jurisdiction an appellate court might issue a writ of mandamus.  For example, in one case the First Circuit Court of Appeals held that a federal trial court exceeded its jurisdiction with respect to a lawsuit against judges in Puerto Rico.

A party seeking mandamus should be careful  - - the appellate court will probably not agree that mandamus is appropriate and he'll only  succeed in making the trial court judge unhappy.

Federalism video updated



I updated my YouTube video on federalism a bit.  That video (and others) had some technical issues especially with sound and I hope this version is more pleasant to watch.



What is an expert witness?

There are two types of witnesses - - fact witnesses (sometimes called percipient witnesses or eyewitnesses) and expert witnesses.  

Most witnesses are so-called fact witnesses and can testify as to what they personally saw, heard, or experienced.   For example, a witness to a car accident can testify about what he personally saw.  But could he testify as to whether the car that was involved in the accident was properly designed?  Probably not.  Even if he has an opinion, a judge won't allow him to testify because his lay opinion will not help the jury.  

To testify about car design and many other topics that require specialized knowledge, one must be an expert.  Experts can provide opinion testimony about matters that ordinary people  cannot.  Think about television crime dramas where medical professionals testify about the time and cause of death even though they did not see the victim die.  

Before a witness can testify as an expert he has to satisfy several criteria.  If you look at Federal Rule of Evidence 702 you can see the standards in the federal courts for a witness to testify as an expert.  First, the judge will have to be satisfied that the witness is actually an expert based upon education, training, knowledge, or skill.  For example, a doctor or a medical researcher might have the appropriate education and training to testify about a new drug.

Second, the judge must be satisfied that the expert's testimony is based upon sufficient facts or data and that the expert applied the proper principles to the facts or data to reach his conclusion.  It's not enough for a doctor to say that he believes a certain type of medicine was inappropriate to treat a patient.  The  doctor must satisfy the judge that his analysis was sufficiently rigorous.

Finally, if the judge agrees that the witness is an expert, and that the expert applied the proper principles and methods to the facts and data to reach his conclusion, the witness will be allowed to testify if the judge believes that the expert's testimony will be helpful to  the jury.  

I uploaded a video to my Youtube page on expert witnesses:


What is remand? New Video.

Remand is where a court gives a case back to another court.  If you are studying US law you will typically see a court remand a case back to another court in two situations: (i) after an appeal; (ii) after a case is improperly removed to federal court.  I talked a bit about remand after improper removal in an earlier post.  You will also often see an appellate court remand a case back to a trial court.  For example, if an appellate court thinks that a trial court applies a law incorrectly, the appellate court can remand the case back to the trial court and instruct the court to apply the law correctly.

I uploaded a video on remand:

New Impleader Video

Back in May I posted a short entry on impleader.  Below is a video on impleader that I just uploaded.

 In the federal courts impleader is governed by Rule 14 of the Federal Rules of Civil Procedure.  States also allow impleader.  

Generally speaking, the Federal Rules (and state rules) favor resolving related disputes in a single case to promote efficiency.  Impleader allows a defendant to sue a third party based on the principle that if the defendant is liable to the plaintiff, then this third party is liable to the defendant.  The defendant is now also called a third party plaintiff.  The original plaintiff's lawsuit against the defendant/third party plaintiff and the defendant/third party plaintiff's lawsuit against the third party defendant are resolved in the same case.

Let's say A sues B.  B's insurance policy requires C to reimburse B if B owes money to A.  B can implead C into the case.  B sues C as a third party plaintiff arguing that if B owes any money to A, C must owe money to B.


What is a concurring opinion?

A concurring opinion is where a judge agrees with another judge or judges' conclusion, but explains that he arrived at the same conclusion for different or additional reasons.

Remember, in the United States, appellate courts are comprised of a panel of at least three judges.  Let's say a panel of three judges must decide whether to affirm or reverse a trial court's decision.  All three of the judges might agree that the trial court's decision should be reversed.  However, the judges might have different reasons why the trial court should be reversed.  When a judge decides to write why he agrees with the conclusion that another judge reached but for different or additional reasons, he writes a  concurring opinion.

Attorneys in the United States must be careful to distinguish a majority opinion from a concurring opinion.  I'll talk about that more soon but for now, here is a video on concurring opinions.



What is exclusive federal subject matter jurisdiction?

When we say subject matter jurisdiction we mean the power of a court to decide a certain type of case.  Federal courts in the United States have the power to decide some types of cases but they do not have subject matter jurisdiction over every type of case in the United States.

U.S. federal courts' subject matter jurisdiction comes from the Constitution and the Congress of the United States.  If you look at Article III of the U.S. Constitution you will see a list of cases in which the federal courts have subject matter jurisdiction.  These cases include, among other things, admiralty cases, patent cases, and cases between two different states (e.g., New York sues New Jersey).  

Some cases can be heard in both state and federal courts.  We can say that the federal and state courts have concurrent jurisdiction over those types of cases.

For some types of cases federal courts have exclusive federal subject matter jurisdiction - - only federal courts can decide these types of cases.  In other words, the cases cannot be heard in state court.   Some examples where federal courts have exclusive subject matter jurisdiction include the types of cases I listed above as well as bankruptcy cases and federal antitrust cases.

 When passing a law, sometimes Congress will specify that federal courts have exclusive subject matter jurisdiction.   For example, if you look at 18 USC 2338 and subsequent sections you will see that Congress established certain laws addressing terrorism and that these cases can only be heard in federal courts.



What if someone refuses to share information during discovery?

You have probably learned that in the United States courts favor broad discovery.  For example, in federal court parties are required to disclose certain information at the beginning of the case without being asked.  Parties then must meet to create a plan and schedule for discovery.   During discovery parties are able to seek a wide range of information from each other.  

Of course there are controversies.  For example, one party might believe that a document is immune from discovery because the document came from the party's lawyer and contains legal advice.  How can this controversy be settled?

Courts usually encourage parties to settle the argument by discussing the problem and coming up with their own solutions.  If that doesn't work, the parties might meet with a judge or a magistrate  - - a special judge dealing with specific matters, such as discovery - - to resolve the issue.  

Sometimes the party seeking the information will have to make a motion to compel.  A motion is where a judge is asked to do something.  A motion to compel is where a judge is asked to order someone to do something.  For example, in a motion to compel production (disclosure) of a document, the party seeking the document will ask the judge to order the party holding the document to disclose it.  If the motion is granted, the party in possession of the document must provide it to the moving party.  

I uploaded a short video on motions to compel during discovery:


What is the Compact Clause?

The Compact Clause is one of the clauses in the United States Constitution.  According to the Compact Clause no state can enter into “any Agreement or Compact with another State, or with a foreign Power” without approval from Congress.

Courts and the US government do not treat the Compact Clause literally.  States can enter into agreements with each other without Congress's approval, provided the agreement does not interfere with the federal government's ability to perform its job.  For example, let's say State A and State B decide to work together to fight fires that can threaten both states.  Congress does not have to approve the agreement.  Even agreements with other countries often do not get attention from the federal government unless they interfere with the US government's ability to conduct foreign policy.  

On a side note the Compact Clause, as I recall, tends to get little attention in law school and on bar exams.  If anyone has a different experience, let me know.

Why are corporations incorporated under the laws of Delaware?

Two things to remember:  First, business entities are formed under state law in the US, not federal law.  So, when a company incorporates it must choose the law of one of the 50 states.  Second, not all businesses choose Delaware law, but yes, Delaware is very popular.  In fact, so many public companies are incorporated under Delaware law you might have gotten the impression that all business entities are formed under Delaware law.

Why do companies choose Delaware law?  Delaware has a reputation for making it easy to form a company and offering flexibility with respect to the rules of the company (e.g.,shareholders do not have to hold meetings).  

In addition, Delaware is well-known and generally respected for its business law.  Delaware has a special court called a Court of Chancery that deals with business litigation.  The Chancery  Court does not have juries.  Instead, judges issue written decisions.  Attorneys reading these decisions have greater confidence in their understanding of Delaware law and their ability to predict the outcome of a dispute.

But attorneys in the United States who specialize in forming companies will check applicable laws and will select the state of incorporation best-suited for their clients.