Memo on Legal System Identification - Essay Example

MEMORANDUM Mr. Al Jones Law Firm Legal System Identification, Comparison and AnalysisAttached is a summary of the legal systems of the federal court to help you understand the situation you are in. We are in the process of reviewing and planning, to fully explain to you how the regulations of the federal system will affect you, and we will answer all or your doubts and questions at this time. We are also currently developing several sets of procedures for implementation and we will share them with you as soon as they are completed. We are encouraging you to review the summary and to make your plans regarding your projects. We would also like to emphasize, that when you make decisions, study them very carefully for it might affect our ongoing studies regarding your current situation. Federal courts are generally said to have "federal question" jurisdiction, which means that federal courts will hear cases that involve issues touching on the Constitution or other federal laws. The source of "federal question" jurisdiction can be found in the Constitution. Article III states that the "judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and Treaties made, or which shall be made, under their Authority." The federal court has jurisdiction over the case of Mr. Jones and the owner of the adjacent lot, because the Federal law also authorizes federal courts to hear cases where the opposing parties are citizens of different states. This is known as "diversity jurisdiction", because the plaintiff and the defendant have different, or diverse, state citizenships. "Diversity jurisdiction" enables a federal court to hear cases where there is not a federal question. In diversity cases, the federal court provides a fair forum where citizens of different states can have their cases heard. A "supplemental jurisdiction", a federal court can hear a claim that would normally come under the jurisdiction of a state court if it is related to a claim already before that court. Supplementary jurisdiction -- sometimes called "ancillary jurisdiction" or "pendent jurisdiction" -- is a common-law, device that allows a court to resolve all claims between opposing parties in one forum. Unlike other forms of jurisdiction, supplementary jurisdiction is discretionary -- a court can choose whether or not to exercise it in a given case. Disagreements are common in our daily lives. Usually these disagreements can be settled outside the legal system. Sometimes they are so serious, however, that one of the parties sees no alternative but to file a lawsuit. Potential civil cases are resolved without a trial because the would be ligitants settle the problems in another way, or because the prospective plaintiff decides not to file suit. You could try to settle the differences, or simply forget the problem, or resort to a simple cost-benefit analysis. That is: weighing the costs associated with the trial against the benefits that are likely to gain. Thus, the civil court is the one that has jurisdiction regarding these types of legal matters. In practice few persons make use of the entire judicial process. Instead, most cases are settled without resort to a full-fledged trial. In civil cases, “a trial may be both slow and expensive. In many areas the backlogs are so enormous that it takes three to five years for a case to come to trial. In addition, civil trials may be exceedingly complex”(1). Often, the expense of a trial is enough to discourage potential plaintiffs. The possibility of losing always exists. The possibility of a long wait also always exists, even if a plaintiff wins, before the judgment is satisfied -- that is, if it is ever completely satisfied. In other words, a trial may simply create a new set of problems for the parties concerned. For all these reasons, alternative dispute resolution is a method that could be recommended. When people think of the legal system, they probably think of a courtroom where lawyers argue their cases to the jury under the auspices of a judge. There are stages you must consider before going to the courtroom. The typical proceeding in a civil-law court is divided into three phases: the investigative phase, the examining phase, and the trial. In the investigative phase, a government official (generally the public prosecutor) collects evidence and decides whether it is sufficient to warrant formal charges. During the examining phase, which is primarily conducted in writing, an examining judge completes and reviews the written record and decides whether the case should proceed to trial. At this stage, the defendant may be questioned, but has the right to remain silent and to be represented by counsel. The examining judge plays an active role in the collection of evidence and interrogation of witnesses. As in civil proceedings, however, there is no counterpart to common-law cross-examination. As a result of the thoroughness of the examining phase, the trial itself differs significantly from a common-law criminal trial. Perhaps the most striking difference is that the record already has been made and is equally available to the defense and the prosecution well in advance of trial. The main function of a criminal trial is to present the case to the trial judge and, in certain cases, the jury, and to allow the lawyers to present oral argument in public. As noted above, civil-law countries do not have a tradition of jury trials in civil cases. When you think of the legal system, you probably think of a courtroom where lawyers argue their cases to the jury under the auspices of a judge. There are stages you must consider before going to the courtroom. In comparison, there are at least few comparisons and differences. The process used in criminal trials is also used in civil trials, with just a few important differences. First, a litigant must have standing. This concept means simply that the person initiating the suit must have a personal stake in the outcome of the controversy. Otherwise, there is no real controversy between the parties and thus no actual case for the court to decide. A second major difference is that the standard of proof used in civil cases is a preponderance of the evidence, not the more stringent beyond-a-reasonable-doubt standard used in criminal cases. A preponderance of the evidence is generally taken to mean that there is sufficient evidence to overcome doubt or speculation. It clearly means that less proof is required in civil cases than in criminal cases. A third major difference is that many of the extensive due process guarantees that a deffendant has in a criminal trial do not apply in a civil proceeding. For example, neither party is constitutionally entitled to counsel. The Seventh Amendment does guarantee the right to a jury trial in lawsuits where the value in controversy shall exceed Although this amendment has not been made applicable to the states, most states have similar constitutional guarantees. Nonetheless, there are indications that the common-law and civil-law procedures are not as different as they appear. Pretrial discovery, for example, significantly reduces the amount of “surprise” evidence that will come forth at trial. A number of disputes are resolved through some method of alternative dispute resolution, in a specialized court, or by an administrative body. However, a large number of cases each year still manage to find their way into a civil court. Alternative Dispute Resolution refers to any means of settling disputes outside of the courtroom. ADR typically includes arbitration, mediation, early neutral evaluation, and conciliation. As burgeoning court queues, rising costs of litigation, and time delays continue to plague litigants, more states have begun experimenting with ADR programs. Some of these programs are voluntary; others are mandatory. Its a simple concept. Bring both sides of a dispute together. With the assistance of a neutral mediator, enable them to speak their mind fully, and to hear and understand each other. Help them find the common ground that may have existed all along, but was hidden by anger, or fear, or misunderstanding. The judge’s role is a simple and narrow one, limited by strict notions of legislative supremacy. Civil-law judges, in theory, are the “operators” of the system designed by legal scientists and built by legislators. Since there is only one correct solution to a legal problem, according to legal science and the developed doctrine, judicial discretion or interpretation becomes largely unnecessary. Some use the term dispute resolution to refer only to alternative dispute resolution (ADR), that is, extrajudicial processes such as arbitration, collaborative law, and mediation used to resolve conflict and potential conflict between and among individuals, business entities, governmental agencies, and (in the context) states. ADR generally depends on agreement by the parties to use ADR processes, either before or after a dispute has arisen. ADR has experienced steadily increasing acceptance and utilization because of a perception of greater flexibility, costs below those of traditional litigation, and speedy resolution of disputes, among other perceived advantages. However, some have criticized these methods as taking away the right to seek redress of grievances in the courts, suggesting that extrajudicial dispute resolution may not offer the fairest way for parties not in an equal bargaining relationship In addition, in some circumstances, arbitration and other ADR processes may become as expensive as litigation or more so The probable success of the court proceedings regarding this given case would have to be based on the gathered materials and evidences. But as said, Mr. Al Jones, with due respect to the achievements that he had accomplished, there would be great chance that he could be proven that he was really innocent about the easement that was discovered by the city. Having all the arguments and resolutions, a settlement out of court would be best for the city, Mr. Jones, and the owner of the adjacent lot in the subdivision. More over, the alternative dispute resolution would even come more handy to the involved. There would be an argument between Mr. Jones and the owner of the adjacent lot because the citizenship of the owner of the adjacent lot would come into question. As the law states, a foreign person has less chances of having or owning a piece of land unless married to a citizen of that country or state. With regards to the discovery of the easement for a city utility line on the subdivision being developed by Mr. Jones, the city must not sue Mr. Jones immediately. The city must look into the possible cause of the easement. The city must establish strong evidences about the easement being discovered. Strong evidences must also be presented by Mr. Jones regarding the city utility easement that was discovered during the development of the infrastructure of its newest and largest subdivision. The law, as it uses the word dispute resolution, to refer only to alternative dispute resolution as the extra judicial process such as collaborative law, arbitration, and mediation used to solve conflicts, between and among individuals, business entities and government agencies. Alternative dispute resolutions normally depends on the agreement by the parties involved to use the alternative dispute resolution either before or after a dispute. Among other perceived advantages, alternative dispute resolution has experienced acceptance and utilization because of the perception of greater flexibility, low costs than those of traditional litigation, and speedy resolution of disputes. However, still some are criticizing these methods as taking away the right to seek their grievances in court, saying that extra judicial dispute resolution do not offer a fair way to parties not in the equal bargaining relationship. References Joseph Daison, (1966 – 1967), The Civil Law and the Common Law; Some Points of Comparison, New York, Frederick M. Imperial Publishing House. Read More