Posts categorized as "Federal and State Legal Systems"

I heard cases in the US are public. What if there is confidential information?

This is a good point and a good question.  Yes, as a general rule, both civil and criminal cases in the United States are public.  Now that most court documents are filed electronically you can access these documents online.  Federal court documents are available through PACER ( and many state courts make documents available online, too.

But obviously some documents shouldn't be shared.  For example, parties in a business dispute might not want to disclose trade secrets.  Perhaps in a criminal case there is information that if shared publicly could put someone in danger.  If a judge agrees, certain information will be redacted and not shared with the public.

When a litigation involves confidential information one or both parties will ask the Court for a "protective order."  In a motion for a protective order a party asks the judge to issue an order that will shield confidential information from being shared with other parties and/or the public.  

For example, let's say a document contains a business secret.  The company could ask the judge for a protective order so the document does not have to be disclosed.  Alternatively, the company could ask for a protective order so that the document will be "lawyer's eyes only" - - meaning lawyers may review the documents but it cannot be disclosed to other parties and the public.  Judges will not automatically grant a motion for a protective order.  The party must provide sufficient grounds to show why it needs the protective order.



What is double jeopardy?

Double jeopardy is the principle that a defendant should not be tried twice for the same crime once he is either acquitted or convicted (or pleads guilty).  

The principle applies slightly differently in the United States because of the principle of dual sovereignty.  Each state and the federal  government is a separate sovereign, therefore, it does not violate double jeopardy for different states  to try someone twice for the same underlying crime.   Similarly, a state and the federal government may put someone on trial for the same crime.  But the same state cannot try a person twice for the same crime and the federal government cannot try someone twice for the same crime after a conviction or acquittal.  

Below is a short video on how double jeopardy applies in the United States.




What does it mean to be indicted for a crime? Is the defendant guilty?

An indictment just means that a person was charged with a crime.  The defendant is not guilty, but he was accused of committing the crime.

One special characteristic of the United States is that in federal courts and often in state courts a "grand jury" indicts the defendant.  A grand jury is a large jury, 16-23 persons, which reviews the evidence presented by the prosecutor and determines whether there is at least enough evidence to accuse the defendant of committing the crime.  Grand juries are intended to, among other things, act as a shield against meritless prosecutions.  Not all states use the grand jury system and some states only use grand juries for certain crimes.  

If the grand jury agrees that there is enough evidence the foreperson of the grand jury will sign the document with the accusations against the defendant.  We would say that the grand jury has indicted the defendant. 

Below is a short video on grand juries.



Wolf v. Walker: Due Process, Equal Protection, and Federalism

A month or so ago someone asked me about gay marriage and the US Constitution.  Following up on this issue, I suggest reading a recent case, Wolf v. Walker  in which a Wisconsin federal court held that a ban on same-sex marriage was unconstitutional.  Below is a video I have on YouTube discussing some issues in the case.

If you are studying US law you will find the case interesting for a number of reasons.  First, the court decided to apply the intermediate scrutiny test to the Wisconsin law and state constitutional amendment which forbade marriage between anyone other than a man and a woman.  The Court scrutinized the ban under both the Due Process and the Equal Protection Clauses.  

The bulk of the court's analysis was as to whether banning same-sex marriage was so necessary to achieving an important government purpose that a person's fundamental right to marriage should be denied.  The Court held that defendants failed to meet their burden.

For non-US students I think you may find interesting the Court's rejection of Wisconsin's arguments based on federalism and democracy. Among other things, defendants argued that if the people of Wisconsin supported a ban on gay marriage then a court should not interfere.  The Court explained that principles of democracy or federalism do not trump the United States Constitution.  Just as the people of a state may not constitutionally ban interracial marriage, banning same-sex marriage violates the US Constitution.  

This was a district court decision and any appeal will go to the Seventh Circuit Court of Appeals.



What is Summary Judgment?

Summary Judgment allows a judge to decide that a party should win or lose on one or more claims in a civil litigation before trial.

Both federal and state courts allow parties to move for summary judgment.  In the federal court system the relevant rule is Rule 56.

 Although a party can move for summary judgment at any time before trial, usually parties ask for summary judgment after discovery because after discovery all of the evidence has been shared.

To win on summary judgment a party must show that there is no dispute over any relevant material (material = important) fact and that the party must win according to the law.  A simple way to think about summary judgment is that a party is arguing that we don't need a jury because that party has to win.  For example, if A alleges that B drove a car negligently and the evidence indisputably shows that B was not driving the car, B is entitled to summary judgment.  We don't need a trial and the judge should end the case.

Another way to think about summary judgment is that it acts as a balance against easy pleading requirements.  Keep in mind that pleading requirements in the United States are usually lax - - it is easy to start a case.  Summary judgment allows a defendant to eliminate a meritless case before trial.

Both plaintiffs and defendants can move a court for summary judgment.  If the court grants summary judgment the party wins on one or all claims.  If the court denies summary judgment, the case should proceed to trial on that claim.  For example, let's say party A sues party B for breach of contract and battery.  Party B moves for summary judgment on both claims.  The court denies the motion on the contract claim but grants the motion on the tort claim.  The contract claim should go to trial.  

Here is a short video on summary judgment:



Can a contract case ever go to federal court?

Someone asked:

"is it possible that contract law is in the decision of judge in Federal? Is there any case in Federal court?"


The person asking the question is correctly noting that contract cases in the United States are almost always decided under state law (there are some exceptions).  If that's true, can a contract case ever go to federal court?

Of course!  Remember, a state law claim can go to federal court if we have diversity subject matter jurisdiction.  If the parties are citizens of different states and the amount in controversy is greater than $75,000, then a state law contract claim, state law tort claim, etc. can go before a federal court.  The federal court applies state law to the case, although the parties are in federal court.  There are other possibilities where a state law claim can be decided in federal court but diversity jurisdiction is, I think, the most likely scenario.  

Below is a short video on diversity subject matter jurisdiction:


The Right to an Attorney in Civil Cases

Thanks to J for asking, "What if a defendant in a civil case cannot afford a lawyer?"  In most cases, the answer is he will not have an attorney unless he can find a volunteer attorney willing to assist him.

This is an important question in the United States.  You might hear the issue referred to as "Civil Gideon".  The United States Supreme Court in Gideon v. Wainwright, 372 US 355 (1963) held that poor defendants in criminal cases who face the possibility of prison have a right to counsel.  But there is no constitutional right to counsel in a civil case.

Most states (maybe all?  I'm not sure) provide a right to counsel at least in some types of civil cases, such as child custody cases, where elderly persons face eviction, but the types of cases vary from state to state.  

If the state will not appoint an attorney, a defendant will have to look for a charitable organization or an attorney willing to volunteer.

Plaintiffs in a civil case who cannot afford an attorney might be able to find an attorney willing to work on a contingency fee.  See below or here for a short video on contingency fees.




Alternative Dispute Resolution

A student asked - "In Korea we have alternative dispute settlement system so before bringing a civil action we can choice alternative dispute settlement system like Korea, does America has an alternative dispute settlement system?"

Absolutely.  ADR, especially mediation,  is a popular alternative to litigation in the United States.  Some parties provide in their contracts that prior to litigation the parties must attempt to mediate.

Because of their caseload, judges often encourage parties to mediate.  The Southern District of New York (a federal district court in New York City) has a robust ADR program.  The court will assist parties that wish to pursue ADR by, among other things, appointing mediators.  Certain types of cases must go to mediation.  You can read more about the SDNY mediation program here and here.

But don't confuse mediation with arbitration.  Arbitration is where the parties select private parties to adjudicate their dispute instead of litigating in court.


What does it mean when Congress 'imposes stricter pleading requirements'?

Generally speaking, it is easy to commence a litigation in the United States because pleading requirements are not strict.  That is, a plaintiff can usually file a lawsuit without including too much detail and without including evidence.  The additional details and evidence can come later.  These same lax rules also apply to counterclaims and defenses. 

Rule 8 of the Federal Rules of Civil Procedure imposes three requirements on a complaint: a short and plain statement of subject matter jurisdiction, a short and plain statement showing that the plaintiff is entitled to relief, and a demand.  Rule 9 requires some additional detail if a complaint or counterclaim alleges fraud (or a defense relates to a mistake).  

Some people criticize lax pleading requirements on grounds that it harms defendants who must pay money to defend or to settle meritless claims. Congress enacted the Private Securities Litigation Reform Act (the PSLRA) in 1995 to curb purportedly meritless securities fraud litigation. The PSLRA makes it more difficult for plaintiffs to commence the lawsuit by requiring additional details in the complaint Recently, interest groups in the United States and members of Congress have worked to enact stricter pleading requirements and other reforms related to patent troll litigation.  

You might want to look at some videos I uploaded regarding pleading requirements in the federal courts.

Schuette v. BAMN: One Case, Eight Judges, Five Opinions

A recent decision by the United States Supreme Court, Schuette v. BAMN is interesting for all sorts of reasons.  One point of interest if you are studying US law is to note the concurring opinions.  A concurring opinion is where a judge agrees with a result but may have different or additional reasons for reaching that result.

In the United States  appellate level federal courts  hears cases as a panel.  In the Circuit Courts of Appeal, the intermediate level federal courts, a panel of three judges usually decides the case.  Sometimes more judges hear the case if it is very important.   The Supreme Court, which is the highest federal court, has nine justices.  In the Schuette case, only eight justices heard the case because one judge was recused.

The issue in the case was whether an amendment to the Constitution of the State of Michigan, as voted on by the people of Michigan, violated the Constitution of the United States.   The Circuit Court held that the amendment was unconstitutional because it violated the Equal Protection Clause.  

Of the eight justices that ruled in the Schuette case, six justices disagreed with the Circuit Court of Appeal and voted to reverse.  But if you look at the case you can see that the case resulted in five different opinions.

First, three justices wrote the opinion of the plurality, determining that the Circuit Court misunderstood case law and incorrectly invalidated the amendment to the state constitution.  

Second, the Chief Justice wrote a short concurring opinion, in which he mainly responded to criticisms by justices who disagreed with the plurality's decision.

Third, two justices joined in a concurring opinion in which they agreed with the result reached by the plurality, but vigorously disagreed with the line of cases on which the plurality relied.

Fourth, one judge wrote a concurring opinion in which he agreed that the amendment was constitutional, but emphasized the democratic voting process by which the amendment was added to the state constitution.

Finally, two justices joined in a dissenting opinion, which was longer in length than the plurality and concurring opinions combined, vigorously disputing the plurality and concurring opinions.