LEGAL ENGLISH

PROGRAM
Study Materials

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PROGRAM

Material reproducido de acuerdo al Decreto legislativo 822 para fines estrictamente académicos.
Versión 2016-1I compilada y actualizada por la profesora María Elena Padilla.
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 TABLE OF CONTENTS

Part I: U.S Court System ................................................................................................. 4

Part II: Constitutional Law ........................................................................................... 18

Part III: Legal Procedure ............................................................................................... 90

Part IV: Contract Law .................................................................................................. 122

Part V: Consumer Law .............................................................................................. 142

Appendixes: Sample Agreements ............................................................................. 168

Glossary of Common Legal Terms ........................................................................... 180

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Part 1: U.S. Court System

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 UNDERSTANDING FEDERAL AND STATE COURTS
Introduction

The judicial system in the United States is unique insofar as it is actually made up of two different court
systems: the federal court system and the state court systems. While each court system is responsible
for hearing certain types of cases, neither is completely independent of the other, and the systems
often interact. Furthermore, solving legal disputes and vindicating legal rights are key goals of both
court systems. This lesson is designed to examine the differences, similarities, and interactions between
the federal and state court systems to make the public aware of how each system goes about achieving
these goals.

Overview of Key Concepts

Why Are There Two Court Systems in the United States?

The U.S. Constitution created a governmental structure for the United States known as federalism.
Federalism refers to a sharing of powers between the national government and the state governments.
The Constitution gives certain powers to the federal government and reserves the restfor the states.
Therefore, while the Constitution states that the federal government is supreme with regard to those
powers expressly or implicitly delegated to it, the states remain supreme in matters reserved to them.
This supremacy of each government in its own sphere is known as separate sovereignty, meaning each
government is sovereign in its own right.

Both the federal and state governments need their own court systems to apply and interpret their
laws. Furthermore, both the federal and state constitutions attempt to do this by specifically spelling
out the jurisdiction of their respective court systems.

For example, since the Constitution gives Congress sole authority to make uniform laws concerning
bankruptcies, a state court would lack jurisdiction in this matter. Likewise, since the Constitution does
not give the federal government authority in most matters concerning the regulation of the family, a
federal court would lack jurisdiction in a divorce case. This is why there are two separate court systems
in America. The federal court system deals with issues of law relating to those powers expressly or
implicitly granted to it by the U.S. Constitution, while the state court systems deal with issues of law
relating to those matters that the U.S. Constitution did not give to the federal government or explicitly
deny to the states.

Differences in the Structure of the Federal and State Court Systems

Federal Court System

The term federal court can actually refer to one of two types of courts. The first type of court is what
is known as an Article III court. These courts get their name from the fact that they derive theirpower
from Article III of the Constitution. These courts include (1) the U.S. District Courts, (2) the
U.S. Circuit Courts of Appeal, and (3) the U.S. Supreme Court. They also include two special courts:
(a) the U.S. Court of Claims and (b) the U.S. Court of International Trade. These courts are special
because, unlike the other courts, they are not courts of general jurisdiction. Courts of general
jurisdiction can hear almost any case. All judges of Article III courts are appointed by the President of
the United States with the advice and consent of the Senate and hold office during good behavior.

The second type of court also is established by Congress. These courts are (1) magistrate courts, (2)
bankruptcy courts, (3) the U.S. Court of Military Appeals, (4) the U.S. Tax Court, and (5) the U.S.
Court of Veterans' Appeals. The judges of these courts are appointed by the President with the advice
and consent of the Senate. They hold office for a set number of years, usually about 15. Magistrate and
bankruptcy courts are attached to each U.S. District Court. The U.S. Court of

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Military Appeals, U.S. Tax Court, and U.S. Court of Veterans' Appeals are called Article I or legislative
courts.

U.S. District Courts

There are 94 U.S. District Courts in the United States. Every state has at least one district court, and
some large states, such as California, have as many as four. Each district court has between 2 and 28
judges. The U.S. District Courts are trial courts, or courts of original jurisdiction. This means that
most federal cases begin here. U.S. District Courts hear both civil and criminal cases. In many cases,
the judge determines issues of law, while the jury (or judge sitting without a jury) determines findings
of fact.

U.S. Circuit Courts of Appeal

There are 13 U.S. Circuit Courts of Appeal in the United States. These courts are divided into 12
regional circuits and sit in various cities throughout the country. The U.S. Court of Appeals for the
Federal Circuit (the 13th Court) sits in Washington. With the exception of criminal cases in which a
defendant is found not guilty, any party who is dissatisfied with the judgment of a U.S. District Court
(or the findings of certain administrative agencies) may appeal to the U.S. Circuit Court of Appeal in
his/her geographical district. These courts will examine the trial record for only mistakes of law; the
facts have already been determined by the U.S. District Court. Therefore, the court usually will neither
review the facts of the case nor take any additional evidence. When hearing cases, these courts usually
sit in panels of three judges.

U.S. Supreme Court

The Supreme Court of the United States sits at the apex of the federal court system. It is made up of
nine judges, known as justices, and is presided over by the Chief Justice. It sits in Washington, D.C.
Parties who are not satisfied with the decision of a U.S. Circuit Court of Appeal (or, in rare cases, of
a U.S. District Court) or a state supreme court can petition the U.S. Supreme Court to hear their case.
This is done mainly by a legal procedure known as a Petition for a Writ of Certiorari (cert.). The
Court decides whether to accept such cases. Each year, the Court accepts between 100 and 150of the
some 7,000 cases it is asked to hear for argument. The cases typically fit within general criteriafor oral
arguments. Four justices must agree to hear the case (grant cert). While primarily an appellate court,
the Court does have original jurisdiction over cases involving ambassadors and two or more states.

Special Article III Courts

1. U.S. Court of Claims: This court sits in Washington, D.C., and handles cases involving
suits against the government.
2. U.S. Court of International Trade: This court sits in New York and handles cases
involving tariffs and international trade disputes.

Special Courts Created by Congress

1. Magistrate judges: These judges handle certain criminal and civil matters, often with the
consent of the parties.
2. Bankruptcy courts: These courts handle cases arising under the Bankruptcy Code.
3. U.S. Court of Military Appeals: This court is the final appellate court for cases arising
under the Uniform Code of Military Justice.
4. U.S. Tax Court: This court handles cases arising over alleged tax deficiencies.
5. U.S. Court of Veterans' Appeals: This court handles certain cases arising from the
denial of veterans' benefits.

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State Court Systems

No two state court systems are exactly alike. Nevertheless, there are sufficient similarities to
provide an example of what a typical state court system looks like. Most state court systems are made
up of (1) two sets of trial courts: (a) trial courts of limited jurisdiction (probate, family, traffic, etc.) and
(b) trial courts of general jurisdiction (main trial-level courts); (2) intermediate appellate courts (in
many, but not all, states); and (3) the highest state courts (called by various names). Unlike federal
judges, most state court judges are not appointed for life but are either elected or appointed (or a
combination of both) for a certain number of years.

Trial Courts of Limited Jurisdiction

Trial courts of limited jurisdiction are courts that deal with only specific types of cases. They are often
located in/near the county courthouse and are usually presided over by a single judge. A judge sitting
without a jury hears most of the cases heard by these courts. Some examples of trial courts oflimited
jurisdiction include:
1. Probate court: This court handles matters concerning administering the estate of a person
who has died (decedent). It sees that the provisions of a will are carried out or sees that a
decedent's property is distributed according to state law if he/she died intestate (without
a will).
2. Family court: This court handles matters concerning adoption, annulments, divorce,
alimony, custody, child support, etc.
3. Traffic court: This court usually handles minor violations of traffic laws.
4. Juvenile court: This court usually handles cases involving delinquent children under a
certain age, for example, 18 or 21.
5. Small claims court: This court usually handles suits between private persons of a
relatively low dollar amount, for example, less than $5,000.
6. Municipal court: This court usually handles cases involving offenses against city
ordinances.

Trial Courts of General Jurisdiction

Trial courts of general jurisdiction are the main trial courts in the state system. They hear cases outside
the jurisdiction of the trial courts of limited jurisdiction. These involve both civil and criminal cases.
One judge (often sitting with a jury) usually hears them. In such cases, the judge decides issues of law,
while the jury decides issues of fact. A record of the proceeding is made and may be used on appeal.
These courts are called by a variety of names, including (1) circuit courts, (2) superior courts,
(3) courts of common pleas, (4) and even, in New York, supreme courts. In certain cases, these courts
can hear appeals from trial courts of limited jurisdiction.

Intermediate Appellate Courts

Many, but not all, states have intermediate appellate courts between the trial courts of general
jurisdiction and the highest court in the state. Any party, except in a case where a defendant in a
criminal trial has been found not guilty, who is not satisfied with the judgment of a state trial court may
appeal the matter to an appropriate intermediate appellate court. Such appeals are usually a matter of
right (meaning the court must hear them). However, these courts address only alleged procedural
mistakes and errors of law made by the trial court. They will usually neither review the facts of the
case, which have been established during the trial, nor accept additional evidence. These courts usually
sit in panels of two or three judges.

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Highest State Courts

All states have some sort of highest court. While they are usually referred to as supreme courts, some,
such as the highest court in Maryland, are known as courts of appeal. In states with intermediate
appellate courts, the highest state courts usually have discretionary review as towhether to accept a
case. In states without intermediate appellate courts, appeals may usually be taken to the highest state
court as a matter of right. Like the intermediate appellate courts, appeals taken usually allege a mistake
of law and not fact. In addition, many state supreme courts have original jurisdiction in certain matters.
For example, the highest courts in several states have original jurisdiction over controversies regarding
elections and the reapportionment of legislative districts. These courts often sit in panels of three, five,
seven, or nine judges/justices.

What Types of Cases do Federal Courts hear? By State Courts?

Note: The definitions for the terms in this section come from Black's Law Dictionary, Seventh Edition.

Jurisdiction of the Federal Courts

The jurisdiction of the federal courts is spelled out in Article III, Section 2, of the United States
Constitution. Federal courts are courts of limited jurisdiction because they can hear only two main
types of cases:

1. Diversity of Citizenship

Federal courts can have jurisdiction over a case of a civil nature in which parties are residents of
different states and the amount in question exceeds the amount set by federal law (currently
$75,000). The federal courts are often required to apply state law when dealing with these cases
since the issues concern matters of state law. The fact that the parties are from different states and
that the amount in question is high enough is what manages to get such cases into federal court.

2. Federal Question

Federal courts have jurisdiction over cases that arise under the U.S. Constitution, the laws of the
United States, and the treaties made under the authority of the United States. These issues are the
sole prerogative of the federal courts and include the following types of cases:
a. Suits between states—Cases in which two or more states are a party.
b. Cases involving ambassadors and other high-ranking public figures—Cases arising
between foreign ambassadors and other high-ranking public officials.
c. Federal crimes—Crimes defined by or mentioned in the U.S. Constitution or those defined
and/or punished by federal statute. Such crimes include treason against the United States,
piracy, counterfeiting, crimes against the law of nations, and crimes relating to the federal
government's authority to regulate interstate commerce. However, most crimes are state
matters.
d. Bankruptcy—The statutory procedure, usually triggered by insolvency, by which a person is
relieved of most debts and undergoes a judicially supervised reorganization or liquidation for
the benefit of the person's creditors.
e. Patent, copyright, and trademark cases
(1) Patent—The exclusive right to make, use, or sell an invention for a specified period
(usually 17 years), granted by the federal government to the inventor if the device or
process is novel, useful, and non-obvious.
(2) Copyright—The body of law relating to a property right in an original work of
authorship (such as a literary, musical, artistic, photographic, or film work) fixed in any
tangible medium of expression, giving the holder the exclusive right to reproduce, adapt,
distribute, perform, and display the work.

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(3) Trademark—A word, phrase, logo, or other graphic symbol used by a manufacturer or
seller to distinguish its product or products from those of others.
f. Admiralty—The system of jurisprudence that has grown out of the practice of admiralty
courts: courts that exercise jurisdiction over all maritime contracts, torts, injuries, and
offenses.
g. Antitrust—The body of law designed to protect trade and commerce from restraining
monopolies, price fixing, and price discrimination.
h. Securities and banking regulation—The body of law protecting the public by regulating the
registration, offering, and trading of securities and the regulation of banking practices.
i. Other cases specified by federal statute—Any other cases specified by an applicable federal
statute.

In addition, the federal courts have jurisdiction over several other types of cases arising from
acts of Congress. For example, the courts have jurisdiction in a wide variety of (1) civil rights,
(2) labor relations, and (3) environmental cases. While these laws provide a "floor" for the
states, they do not provide a "ceiling." If states regulate more extensively in these areas than
the federal government, then state courts also will have jurisdiction in these areas.

Jurisdiction of the State Courts

The jurisdiction of the state courts extends to basically any type of case that does not fall within the
exclusive jurisdiction of the federal courts. State courts are common-law courts. This means that they
not only have the authority to apply or interpret the law, but they often have the authority to create
law if it does not yet exist by act of the legislature to create an equitable remedy to a specific legal
problem. Examples of cases within the jurisdiction of the state courts usually include the following:
1. Cases involving the state constitution—Cases involving the interpretation of a state
constitution.
2. State criminal offenses—Crimes defined and/or punished by the state constitution or
applicable state statute. Most crimes are state criminal offenses. They include offenses such
as murder, theft, breaking and entering, and destruction of property.
3. Tort and personal injury law—Civil wrongs for which a remedy may be obtained, usually
in the form of damages; a breach of duty that the law imposes on everyone in the same
relation to one another as those involved in a given transaction.
4. Contract law—Agreements between two or more parties creating obligations that are
either enforceable or otherwise recognized as law.
5. Probate—The judicial process by which a testamentary document is established to be a
valid will, the proving of a will to the satisfaction of a court, the distribution of a decedent's
assets according to the provisions of the will, or the process whereby a decedent's assets
are distributed according to state law should the decedent have died intestate.
6. Family—The body of law dealing with marriage, divorce, adoption, child custody and
support, and domestic-relations issues.
7. Sale of goods—The law concerning the sale of goods (moveable objects) involved in
commerce (especially with regards to the Uniform Commercial Code).
8. Corporations and business organization—The law concerning, among other things,
the establishment, dissolution, and asset distribution of corporations, partnerships, limited
partnerships, limited liability companies, etc.
9. Election issues—The law concerning voter registration, voting in general, legislative
reapportionment, etc.
10. Municipal/zoning ordinances—The law involving municipal ordinances, including zoning
ordinances that set aside certain areas for residential, commercial, industrial, or other
development.

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11. Traffic regulation—A prescribed rule of conduct for traffic; a rule intended to promote
the orderly and safe flow of traffic.
12. Real property—Land and anything growing on, attached to, or erected on it, excluding
anything that may be severed without injury to the land.

Areas of Concurrent Jurisdiction for Federal and State Courts

In addition to areas in which the states have regulated on a matter more extensively than the federal
government, state courts have concurrent jurisdiction with federal courts concerning the following
points of law:

1. Diversity of Citizenship
In civil cases involving citizens of two or more states in which the dollar amount in question
exceeds $75,000, a state court may hear the case if the defendant in the case does not
petition to have the case removed to federal court. Furthermore, if a civil case involves
two or more citizens of different states but the amount in question does not exceed
$75,000, the case must be heard by a state court.

2. Federal Question: Any state court may interpret the U.S. Constitution, federal statute,
treaty, etc., if the applicable Constitutional provision, statute, or treaty has direct bearing
on a case brought in state court under a state law. However, by interpreting the U.S.
Constitution, federal statute, or treaty, the state is subjecting itself to federal review. This
means that after a state supreme court has acted on a case, the U.S. Supreme Court may
review it. In such instances, the U.S. Supreme Court is concerned only with reviewing the
state court's interpretation of the applicable federal Constitutional provision, statute, or
treaty. It does not review any matters of law that are under the exclusive jurisdiction of
the state courts.

Retrieved from:
http://www.uscourts.gov/about-federal-courts/educational-resources

Activity 1. After reading the text, in groups complete the charts that follow by
sharing and exchanging information.

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Federal Courts

District Courts Circuit Courts Supreme Court Special Courts

State Courts

Inferior Trial Courts Trial Courts Appellate Courts Supreme Court

Concurrent Jurisdiction

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Source: http://www.intldisputelaw.com/why-choose-us/u-s-court-system

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COMPARING FEDERAL AND STATE COURTS

The U.S. Constitution is the supreme law of the land in the United States. It creates a federal system
of government in which power is shared between the federal government and the state governments.
Due to federalism, both the federal government and each of the state governments have their own
court systems.

The Federal Court System The State Court System

STRUCTURE
 Article III of the Constitution invests the  The Constitution and laws of each state
judicial power of the United States in the establish the state courts. A court of last
federal court system. Article III, Section 1 resort, often known as a Supreme Court,
specifically creates the U.S. SupremeCourt is usually the highest court. Some states
and gives Congress the authority to also have an intermediate Court of
create the lower federal courts. Appeals. Below these appeals courts are
the state trial courts. Some are referred to
as Circuit or District Courts.

 Congress has used this power to establish  States also usually have courts that handle
the 13 U.S. Courts of Appeals, the 94 U.S. specific legal matters, e.g., probate court
District Courts, the U.S. Court of Claims, (wills and estates); juvenile court; family
and the U.S. Court of International Trade. court; etc.
U.S. Bankruptcy Courts handle
bankruptcy cases. Magistrate Judgeshandle
some District Court matters.
 Parties dissatisfied with a decision of a  Parties dissatisfied with the decision ofthe
U.S. District Court, the U.S. Court of trial court may take their case to the
Claims, and/or the U.S. Court of intermediate Court of Appeals.
International Trade may appeal to a U.S.
Court of Appeals.
 A party may ask the U.S. Supreme Court  Parties have the option to ask the highest
to review a decision of the U.S. Court of state court to hear the case.
Appeals, but the Supreme Court usually is
under no obligation to do so. The U.S.
Supreme Court is the final arbiter of
federal constitutional questions.
 Only certain cases are eligible for
review by the U.S. Supreme Court.
SELECTION OF JUDGES
The Constitution states that federal judges State court judges are selected in a variety
are to be nominated by the President and of ways, including
confirmed by the Senate. 1. election,
They hold office during good behavior, typically, for 2. appointment for a given number of years,
life. Through Congressional impeachment 3. appointment for life, and
proceedings, federal judges may be removed from 4. combinations of these methods, e.g.,
office for misbehavior. appointment followed by election.

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TYPES OF CASES HEARD

 Cases that deal with the constitutionality  Most criminal cases, probate (involving
of a law; wills and estates),
 Cases involving the laws and treaties of  Most contract cases, tort cases (personal
the U.S.; injuries), family law (marriages, divorces,
 Ambassadors and public ministers; adoptions), etc.
 Disputes between two or more states; State courts are the final arbiters of state laws and
 Admiralty law, and constitutions. Their interpretation of federal law
 Bankruptcy. or the U.S. Constitution may be appealed to the
U.S. Supreme Court. The Supreme Court may
choose to hear or not to hear such cases.
ARTICLE I COURTS
Congress has created several Article I or
legislative courts that do not have full
judicial power. Judicial power is the authority to
be the final decider in all questions of
Constitutional law, all questions of federal law and
to hear claims at the core of habeas corpus issues.
 Article I courts are U.S. Court of Veterans'
Appeals, the U.S. Court of Military
Appeals, and the U.S. Tax Court.

http://www.uscourts.gov/about-federal-courts/court-role-and-structure/comparing-federal-state-
courts

Massachusetts Court Structure

State High Court Court of last resort

Supreme Judicial Court
Intermediate Court Intermediate Appellate Courts
Appeals courts
Courts of General Jurisdiction
Trial Court Superior Court
Courts of Limited Jurisdiction
 District Court
 Boston Municipal Court
 Juvenile Court
 Housing Court
 Land Court
 Probate and Family Court

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JURISDICTION OF STATE AND FEDERAL COURTS

State Courts Federal Courts State or Federal Courts

Crimes under state legislation. Crimes under statuses enacted by
State constitutional issues and congress. Crimes punishable under
cases involving state laws or Most cases involving federal laws or both federal and state law.
regulations. regulations (for example: tax, Social
Family law issues. Security, broadcasting, civil rights) Federal constitutional
Real property issues. Matters involving interstate and
Most private contract disputes international commerce, including issues.
(except those resolved under airline and railroad regulation.
bankruptcy law). Cases involving securities and Certain civil rights claims.
Most issues involving the commodities regulation, including
regulation of trades and takeover of publicly held "Class action" cases.
professions. corporations.
Most professional malpractice Admiralty cases. Environmental regulations.
issues. International trade law matters.
Most issues involving the internal Patent, copyright, and other Certain disputes involving
governance of business intellectual property issues.
federal law.
associations such as partnerships Cases involving rights under treaties,
and corporations. foreign states, and foreign nationals.
Most personal injury lawsuits. State law disputes when "diversity of
Most workers' injury claims. citizenship" exists.
Probate and inheritance matters. Bankruptcy matters.
Most traffic violations and Disputes between states.
registration of motor vehicles. Habeas corpus actions.
Traffic violations and other
misdemeanors occurring on certain
federal property.

http://www.uscourts.gov/about-federal-courts/types-cases

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CASES ON THE U.S. COURTS

Activity 2: In pairs, study the following cases and decide whether they fall under
federal or state (or both) jurisdiction and which specific court should hear each case.
Support your answers.

1. Darlene is accused of killing her husband in Bernalillo County.

2. Marie died and left a will describing how she wanted her property divided.

3. Fred robbed the First National Bank.

4. Martin got a ticket for going 50 miles per hour in a school zone.

5. Ernest was convicted of armed robbery in Chicago. He appeals this conviction.

6. Phil and James are stopped at the Texas-Mexico border. The Border Patrol finds marijuana in their
car.

7. Yolanda's landlord refused to return her damage deposit for $200 when she moved out of her
apartment. She had done no damage. The landlord could give no specific reason for not returning
the money.

8. Margo was in an auto accident in which she injured her neck. She claims that Steve, the driver of
the other car, was at fault and claims damages of $10,000. Steve's insurance company refuses to
pay the claim.

9. John was convicted of smuggling diamonds into California from Mexico. He appeals his conviction.

10. James Albright was convicted for first degree murder in Santa Fe County. He was sentenced to life
imprisonment. He appealed his sentence.

11. The city council passed a bill, which says voters must pay to park their cars at voting polls. In the
past, the Supreme Court has said that there cannot be any required fee for voting.

12. Bill took his car to a repair shop. They said they fixed a mysterious rattle and charged him $100.
After he had driven two blocks, the rattle came back. The repair shop refused to give him back his
money or to do more work on the car.

13. Jesse is from New Mexico but has an automobile accident in Texas. He sues the driver for
$25,000 in damages, and he loses his case. He appeals his case.

14. Mary applied for a job with a large corporation doing business in New Mexico. Although she was
qualified, another person was hired. She files suit against the corporation, claiming discriminatory
hiring policies. She wins her case. The corporation appeals and wins the appeal. She appeals her
case.

15. The Ohio State Supreme Court decides that police officers in Ohio can stop and search every
person with long hair for drugs and weapons without violating the Fourth Amendment (concerning
searches and seizures).

Taken from: New Mexico Law Related Education.

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Activity 3: Now work with a partner and complete the list with terms having to do
with the courts. Then write an example in your own words.
Terms Examples
Trial courts Cases begin in trial courts.
Appellate courts
Federal Questions
Jurisdiction

Activity 4: Read the paragraph below and fill in the blanks using proper
terminology.

It can be said that the court system of the U.S. has two parallel systems
both comprising _ _ courts,
courts and those of last . It
is in the lower courts that cases are and in the intermediate ones
that cases are but only in terms of . The
U.S. Supreme Court is the only court that may request a case thru a
of certiorari. Once the intermediate courts see a case, they may
, , or the
lower court’s decision. In broad terms, Federal Courts have jurisdiction over
matters while State courts have jurisdiction over matters such
as , , and
.

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Part 1I: Constitutional Law

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JUDICIAL REVIEW

THE ORIGINS OF JUDICIAL REVIEW IN THE UNITED STATES

The power of judicial review was not mentioned in the Constitution, but the concept was not new at the time
the nation was founded. Indeed, prior to 1789 state courts had already overturned state legislative acts that
conflicted with state constitutions. Additionally, many of the founders expected the United States Supreme Court
to assume a similar role with respect to the federal Constitution. Alexander Hamilton and James Madison both
emphasized the importance of judicial review in their essays urging the adoption of the new Constitution. When
was the doctrine of judicial review established? See this chapter’s Landmark in the Law feature for the answer.

LANDMARK IN THE LAW

Marbury v. Madison (1803)

In the edifice of American law, the Marbury v. Madison a decision in 1803 can be viewed as the keystone of the
constitutional arch. The facts of the case were as follows. John Adams, who had lost his bid for reelection to
the presidency to Thomas Jefferson in 1800, feared the Jeffersonians’ antipathy toward business and toward a
strong central government. Adams thus worked feverishly to “pack” the judiciary with loyal Federalists (those
who believed in a strong national government) by appointing what came to be called “midnight judges” just before
Jefferson took office. All of the fifty-nine judicial appointment letters had to be certified and delivered, but Adams’s
secretary of state (John Marshall) had succeeded in delivering only forty-two of them by the time Jefferson took
over as president. Jefferson, of course, refused to order his secretary of state, James Madison, to deliver the
remaining commissions.

MARSHALL’S DILEMMA William Marbury and three others to whom the commissions had not been
delivered sought a writ of mandamus (an order directing a government official to fulfill a duty) from the United
States Supreme Court, as authorized by Section 13 of the Judiciary Act of 1789. As fate would have it, John
Marshall had stepped down as Adams’s secretary of state only to become chief justice of the Supreme Court.
Marshall faced a dilemma: If he ordered the commissions delivered, the new secretary of state (Madison) could
simply refuse to deliver them – and the Court had no way to compel action, because it had no police force. At
the same time, if Marshall simply allowed the new administration to do as it wished, the Court’s power would be
severely eroded.

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MARSHALL’S DECISION Marshall masterfully fashioned his decision. On the one hand, he enlarged
the power of the Supreme Court by affirming the Court’s power of judicial review. He stated, “It is
emphatically the province and duty of the Judicial Department to say what law is….If two laws conflict with
each other, the courts must decide on the operation of each…. So if the law be in opposition to the
Constitution… [t]he Court must determine which of these conflicting rules governs the case. This is the
very essence of judicial duty.”

On the other hand, his decision did not require anyone or to do anything. He stated that the highest court
did not have the power to issue a writ of mandamus in this particular case. Marshall pointed out that although
the Judiciary Act of 1789 specified that the Supreme Court could issue writs of mandamus as part of its
original jurisdiction, did not mention writs of mandamus. Because Congress did not have the right to
expand theSupreme Court’s jurisdiction, this section of the Judiciary Act of 1789 was unconstitutional – and
thus void. The decision still stands today as a judicial and political masterpiece.

APPLICATION TO TODAY’S WORLD

Since the Marbury v. Madison decision, the power of judicial review has remained unchallenged. Today, this power
is exercised by both federal and state courts. For example, as you read in Chapter 2, several of the laws that Congress
has passed in an attempt to protect minors from Internet pornography have been held unconstitutional by the courts.
If the courts did not have the power of judicial review, the constitutionality of these acts of Congress could not be
challenged in court – a congressional statute would remain law until changed by Congress. Because of the importance
of Marbury v. Madison in our legal system, the courts of other countries that have adopted a constitutional democracy
often cite this decision as a justification for judicial review.

RELEVANT WEB SITES

To locate information on the Web concerning the Marbury v. Madison decision, go to this text’s Web site at
http://blt.westbuslaw.com , select “Chapter 3, “ and click on “URLs for Landmarks.”

a. 5 U.S. (1 Cranch) 137, 2 L. Ed. 60(1803).

Source: Miller & Jentz (2007) Business Law Today: The Essentials, USA: Thomson Advantage Books.

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INTRODUCTION TO THE U.S. CONSTITUTION

Activity I: SKIM quickly through the U.S. Constitution and find the answers to the
following questions:

1. How is the Constitution divided?

a. _
b. _
c. _

2. How many articles are there?

3. How many amendments are there?
4. When was the first amendment made?
5. When was the last amendment made?

Activity 2: Scan carefully through the text and answer the following questions:

1. Which article defines the executive powers? Give some examples.

2. Which article describes the legislative powers? Name some of them.

3. Which article spells out the judicial powers? Give some examples.

Activity 3: Read the articles of the constitution again. What language form is
repeated throughout the articles? Give some examples.

Activity 4: Below are some expressions. Try to explain them.

To be vested with certain inalienable rights

To have the right to
To be granted fundamental rights
To be entitled to
To abridge
To amend
To petition for a redress of grievances

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To bear arms
To infringe
To construe rights
To disparage rights
To be compelled
To be in jeopardy

Activty 5: In which amendments are the following rights guaranteed?

bear arms
privacy
jury trial
vote
legal counsel
be informed
citizenship
protection from cruel punishment
equal protection of the laws
peaceable assembly
due process of law
confront witnesses
freedom of religion
protection from self-incrimination

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The Constitution of the United States of America

http://johngaltfla.com/wordpress/wp-content/uploads/2011/05/CONSTITUTION_ICON1.jpg

Preamble

We the People of the United States, in order to form a more perfect union, establish justice, insure domestic
tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to
ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

Article. I.

Section 1. Legislative Power

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate
and House of Representatives.

Section 2. House of Representatives, Impeachment

1. The House of Representatives shall be composed of members chosen every second year by the people of the
several states, and the electors in each state shall have the qualifications requisite for electors of the most
numerous branch of the state legislature.

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2. No person shall be a Representative who shall not have attained to the age of twenty five years, and been seven
years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he
shall be chosen.

3. Representatives and direct taxes shall be apportioned among the several states which may be included within
this union, according to their respective Numbers, which shall be determined by adding to the whole Number
of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three
fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the
Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by
Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall
have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall
be entitled to choose three, Massachusetts eight, Rhode-Island and Providence Plantationsone, Connecticut
five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina
five, South Carolina five, and Georgia three.

4. When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue
Writs of Election to fill such Vacancies.

5. The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of
Impeachment.

Section 3. The Senate

1. The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature
thereof, for six Years; and each Senator shall have one Vote.

2. Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as
may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the
second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of
the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or
otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary
Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

3. No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a
Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall
be chosen.

4. The Vice President of the United States shall be President of the Senate but shall have no Vote, unless they be
equally divided.

5. The Senate shall choose their other Officers, and also a President pro tempore, in the Absence of the Vice
President, or when he shall exercise the Office of President of the United States.

6. The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on
Oath or Affirmation. When the President of the United States is tried the Chief Justice shall preside: And no
Person shall be convicted without the Concurrence of two thirds of the Members present.

7. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to
hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall
nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Section 4. Election of Senators and Representatives

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1. The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each
State by the Legislature thereof; but the Congress may at any time by Law make or alter suchRegulations, except
as to the Places of choosing Senators.

2. The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in
December, unless they shall by Law appoint a different Day.

Section 5. Powers

1. Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority
of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and
may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as
each House may provide.

2. Each House may determine the Rules of its Proceedings, punish its Members for disorderly behavior, and, with
the Concurrence of two thirds, expel a Member.

3. Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such parts
as may in their Judgment require secrecy; and the Yeas and Nays of the Members of either House on anyquestion
shall, at the Desire of one fifth of those Present, be entered on the Journal.

4. Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than
three days, nor to any other Place than that in which the two Houses shall be sitting.

Section 6. Compensation

1. The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and
paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the
Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going
to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in
any other Place.

2. No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office
under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have
been increased during such time; and no Person holding any Office under the United States, shall be a Member
of either House during his Continuance in Office.

Section 7. Procedures

1. All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or
concur with amendments as on other Bills.

2. Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be
presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with
his Objections to that House in which it shall have originated, who shall enter the Objections at large on their
Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agreeto pass
the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be
reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes
of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the
Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President
within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like
Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it
shall not be a Law

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3. Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may
be necessary (except on a question of Adjournment) shall be presented to the President of the United States;
and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed
by two- thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed
in the Case of a Bill.

Section 8. Powers of Congress

The Congress shall have power:

1. To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common defense
and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the
United States;

2. To borrow Money on the credit of the United States;

3. To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

4. To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the
United States;

5. To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

6. To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

7. To establish Post Offices and post Roads;

8. To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries;

9. To constitute Tribunals inferior to the Supreme Court;

10. To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

11. To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

12. To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two
Years;

13. To provide and maintain a Navy;

14. To make Rules for the Government and Regulation of the land and naval Forces;

15. To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repeal
Invasions;

16. To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be
employed in the Service of the United States, reserving to the States respectively, the Appointment of the
Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

17. To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square)
as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government
of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature

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of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other
needful Buildings;--And

18. To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all
other Powers vested by this Constitution in the Government of the United States, or in any Department or
Officer thereof.

Section 9. Limitations upon powers of Congress

1. The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall
not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty
may be imposed on such Importation, not exceeding ten dollars for each Person.

2. The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases or Rebellion or Invasion
the public Safety may require it.

3. No Bill of Attainder or ex post facto Law shall be passed.

4. No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census of Enumeration herein
before directed to be taken.

5. No Tax or Duty shall be laid on Articles exported from any State.

6. No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those
of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear or pay Duties in another.

7. No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular
Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to
time.

8. No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust
under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of
any kind whatever, from any King, Prince or foreign State.

Section 10. Restrictions upon Powers of States

1. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin
Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill
of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of
Nobility.

2. No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except
what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and
Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and
all such Laws shall be subject to the Revision and Control of the Congress.

3. No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in
time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage
in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Article. II.

Section 1. Executive Powers

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1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office
during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected,
as follows:

2. Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to
the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no
Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be
appointed an Elector.

3. The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall
not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for,
and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of
the Government of the United States, directed to the President of the Senate. The President of the Senate shall,
in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then
be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority
of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have
an equal Number of Votes, then the House of Representatives shall immediately choose by Ballot one of them
for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like
Manner choose the President. But in choosing the President, the Votes shall be taken by States, the
Representatives from each State having one Vote; a quorum for this Purpose shall consist of a Member or
Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every
Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be
the Vice President. But if there should remain two or more who have equal Votes, the Senate shall choose from
them by Ballot the Vice President.

4. The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their
Votes; which Day shall be the same throughout the United States.

5. No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this
Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who
shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United
States.

6. In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the
Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by
Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President,
declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be
removed, or a President shall be elected.

7. The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased
nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period
any other Emolument from the United States, or any of them.

8. Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--''I do solemnly
swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best
of my Ability, preserve, protect and defend the Constitution of the United States.''

Section 2. Powers and Duties of the President

1. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of
the several States, when called into the actual Service of the United States; he may require the Opinion, in writing,
of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their
respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offences against the United
States, except in Cases of Impeachment.

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2. He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds
of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate,
shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other
Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be
established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think
proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

3. The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by
granting Commissions which shall expire at the End of their next Session.

Section 3. Powers and Duties of the President

He shall from time to time give to the Congress Information on the State of the Union, and recommend to their
Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions,
convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of
Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other
public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the
United States.

Section 4. Forfeiture of Offices for Crimes

The President, Vice President and all Civil Officers of the United States, shall be removed from Office on
Impeachment for and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Article. III.

Section 1. Judicial Powers

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the
Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall
hold their Offices during good behavior, and shall, at stated Times, receive for their Services, a Compensation, which
shall not be diminished during their Continuance in Office.

Section 2. Cases to which Judicial Power extends

1. 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;--to all Cases affecting
Ambassadors, other public ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to
Controversies to which the United States shall be a Party;--to Controversies between two or more States;--
between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the
same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and
foreign States, Citizens or Subjects.

2. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be
Party, the Supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme
Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations
as the Congress shall make.

3. The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State
where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be
at such Place or Places as the Congress may by Law have directed.

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Section 3. Treason, proof and punishment

1. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies,
giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two
Witnesses to the same overt Act, or on Confession in open Court.

2. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work
Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Article. IV.

Section 1. Faith and credit among states

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other
State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings
shall be proved, and the Effect thereof.

Section 2. Surrender of Fugitives

1. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

2. A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found
in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up,
to be removed to the State having Jurisdiction of the Crime.

3. No Person held to Service or Labor in one State, under the Laws thereof, escaping into another, shall, in
Consequence of any Law or Regulation therein, be discharged from such Service or Labor, but shall be delivered
up on Claim of the Party to whom such Service or Labor may be due.

Section 3. Admission of New States

1. New States may be admitted by the Congress into this Union; but no new State shall be formed or erected
within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or
Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

2. The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory
or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to
Prejudice any Claims of the United States, or of any particular State.

Section 4. Guarantee of Republican Government

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect
each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot
be convened) against domestic Violence.

Article. V.
Amendment of the Constitution

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this
Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for
proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution,
when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof,
as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no

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Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect
the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be
deprived of its equal Suffrage in the Senate.

Article. VI.
Miscallaneous Provisions

1. All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid
against the United States under this Constitution, as under the Confederation.

2. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties
made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;
and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the
Contrary notwithstanding.

3. The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all
executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or
Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any
Office or public Trust under the United States.

Article. VII.
Ratification and Establishment

The Ratification of the Conventions of nine states, shall be sufficient for the Establishment of this Constitution
between the States so ratifying the same.

Amendments to the Constitution of the United States of America

Articles in addition to, and amendment of, the Constitution of the United States of America, proposed by
Congress, and ratified by the several states, pursuant to the Fifth Article of the original Constitution.

Amendment I (1791)

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.

Amendment II (1791)

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms,
shall not be infringed.

Amendment III (1791)

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war,
but in a manner to be prescribed by law.

Amendment IV (1791)

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The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V (1791)

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment
of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actualservice in
time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life
or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or
property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI (1791)

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the
State and district wherein the crime shall have been committed, which district shall have been previously ascertained
by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against
him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistanceof Counsel for his
defense.

Amendment VII (1791)

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall
be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than
according to the rules of the common law.

Amendment VIII (1791)

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX (1791)

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained
by the people.

Amendment X (1791)

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved
to the States respectively, or to the people.

Amendment XI (1798)

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced
or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign
State.

Amendment XII (1804)

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom,
at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted
for as President, and in distinct ballots the person voted for as Vice- President, and they shall make distinct lists of all
persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes

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for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States,
directed to the President of the Senate;--The President of the Senate shall, in the presence of the Senate and House
of Representatives, open all the certificates and the votes shall then be counted;--The person having the greatest
Number of votes for President, shall be the President, if such number be a majority of the whole numberof Electors
appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding
three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot,
the President. But in choosing the President, the votes shall be taken by states, the representation from each state
having one vote; a quorum for this purpose shall consist of a member or members from two-thirds ofthe states,
and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a
President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then
the Vice- President shall act as President, as in the case of the death or other constitutional disability of the President-
-The person having the greatest number of votes as Vice-President, shall be the Vice- President, if such number be a
majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest
numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds
of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person
constitutionally ineligible to the office of President shall be eligible to thatof Vice-President of the United States.

Amendment XIII. (1865)

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have
been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

Amendment XIV. (1868)

Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens
of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section. 2. Representatives shall be apportioned among the several States according to their respective numbers,
counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any
election for the choice of electors for President and Vice President of the United States, Representatives in Congress,
the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male
inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged,
except for participation in rebellion, or other crime, the basis of representation therein shall be reducedin the
proportion which the number of such male citizens shall bear to the whole number of male citizens twenty- one
years of age in such State.

Section. 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President,
or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath,
as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an
executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in
insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a
vote of two-thirds of each House, remove such disability.

Section. 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment
of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither
the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or

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rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts,
obligations and claims shall be held illegal and void.

Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Amendment XV. (1870)

Section. 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or
by any State on account of race, color, or previous condition of servitude.

Section. 2. The Congress shall have power to enforce this article by appropriate legislation.

Amendment XVI. (1913)

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without
apportionment among the several States, and without regard to any census or enumeration.

Amendment XVII (1913)

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof,
for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite
for electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall
issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive
thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes
valid as part of the Constitution.

Amendment XVIII (1919)

Section. 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating
liquors within, the importation thereof into, or the exportation thereof from the United States and all territory
subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Sec. 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate
legislation.

Sec. 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the
legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission
hereof to the States by the Congress.

Amendment XIX (1920)

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State
on account of sex. Congress shall have power to enforce this article by appropriate legislation.

Amendment XX (1933)

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Section. 1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms
of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended
if this article had not been ratified; and the terms of their successors shall then begin.

Sec. 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day
of January, unless they shall by law appoint a different day.

Sec. 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice
President elect shall become President. If a President shall not have been chosen before the time fixed for the
beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as
President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a
President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner
in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President
shall have qualified.

Sec. 4. The Congress may by law provide for the case of the death of any of the persons from whom the House of
Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the
case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of
choice shall have devolved upon them.

Sec. 5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.

Sec. 6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the
legislatures of three-fourths of the several States within seven years from the date of its submission.

Amendment XXI (1933)

Section. 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

Sec. 2. The transportation or importation into any State, Territory, or possession of the United States for delivery
or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

Sec. 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by
conventions in the several States, as provided in the Constitution, within seven years from the date of the submission
hereof to the States by the Congress.

Amendment XXII (1951)

Section. 1. No person shall be elected to the office of the President more than twice, and no person who has held
the office of President, or acted as President, for more than two years of a term to which some other person was
elected President shall be elected to the office of the President more than once. But this Article shall not apply to
any person holding the office of President, when this Article was proposed by the Congress, and shall not prevent
any person who may be holding the office of President, or acting as President, during the term within which this
Article becomes operative from holding the office of President or acting as President during the remainder of such
term.

Sec. 2. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the
legislatures of three-fourths of the several States within seven years from the date of its submission to the States by
the Congress.

Amendment XXIII (1961)

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Section. 1. The District constituting the seat of Government of the United States shall appoint in such manner as
the Congress may direct: A number of electors of President and Vice President equal to the whole number of
Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event
more than the least populous State; they shall be in addition to those appointed by the States, but they shall be
considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and
they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

Sec. 2. The Congress shall have power to enforce this article by appropriate legislation.

Amendment XXIV (1964)

Section. 1. The right of citizens of the United States to vote in any primary or other election for President or Vice
President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be
denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

Section. 2. The Congress shall have power to enforce this article by appropriate legislation.

Amendment XXV (1967)

Section. 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall
become President.

Section. 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice
President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Section. 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the
House of Representatives has written declaration that he is unable to discharge the powers and duties of his office,
and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by
the Vice President as Acting President.

Section. 4. Whenever the Vice President and a majority of either the principal officers of the executive departments
or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the
Speaker of the House of Representatives their written declaration that the President is unable to discharge the
powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as
Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House
of Representatives has written declaration that no inability exists, he shall resume the powers and duties of his office
unless the Vice President and a majority of either the principal officers of the executive department or of such other
body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the
Speaker of the House of Representatives their written declaration that the President is unable to discharge the
powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty- eight hours for
that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration,
or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-
thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice
President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers
and duties of his office.

Amendment XXVI (1971)

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Section. 1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be
denied or abridged by the United States or by any State on account of age.

Section. 2. The Congress shall have power to enforce this article by appropriate legislation.

Amendment XXVII (1992)

No law varying the compensation for the services of the Senators and Representatives shall take effect, until an
election of Representatives shall have intervened.

http://caselaw.lp.findlaw.com/data/constitution/articles.html
http://caselaw.lp.findlaw.com/data/constitution/amendments.html

JUDICIAL REVIEW

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Source: Janda, Berry, Goldman (1989) The Challenge of Democracy-Government in America., Houghton
Mifflin Company, 2nd ed. pp. 470-475

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Source: Janda, Berry, Goldman (1989) The Challenge of Democracy , Houghton Mifflin Company pp. 620-
639.

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CONSTITUTIONAL ISSUES

Discuss these issues and provide supporting facts.

1. It is said that Amendment I spells out the fundamental rights of the American people. Agree or
disagree.

2. Due process and equal protection of the laws are laid out in Amendment XIV. What do these
rights refer to?

Writing an Opinion Composition

When you are writing a composition that asks you to discuss a topic or give your opinion on a question,
it is important to organize your thoughts and present your arguments clearly and to work out the structure
before you start to write.

1. Plan four or five paragraphs:

 an introduction (saying why it is important, what the situation is...)
 two or three paragraphs in support of the argument/ giving a contrasting or different view
(with reasons)
 a conclusion (a summary of your opinion or interpretation of the facts)

2. List your reasons “for” or “against” before you start writing

3. Back up your reasons with clear examples.

4. Use connectors to introduce the different ideas and arguments in your writing.

5. Use a formal style: do not use contractions or very colloquial expressions.

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Some scholars believe that the only way crime can be deterred is with capital punishment.
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Do you agree? Support your position.

Death penalty is a punishment that is accepted legally and sees persons convicted of serious crimes lose
their lives for committing serious crimes. This type of punishment was popular with most countries until
the twentieth century. It lost popularity when human rights crusaders rose up to the occasion and
condemned it but today I can say that I firmly believe this punishment must be abolished.

Capital punishment is loved and hated in equal measure and is issued to people considered having
committed serious criminal offences. According to the societies that embraced and those that still embrace
it, the category of serious crimes comprises of murder, war crimes, and rape. The conservatives believe
that it is the best tool for maintaining sanity within their societies. This is contrary to proponents of
democracy who are of the opinion that the penalty violates human rights.
E

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Countries that form the European Union have constitutions that observe the right to life strictly. They did
away with the death penalty as a corrective measure within their territories because the European Union
prohibits it. The United Nations also embraced the same ideology that capital punishment is notan
impartial method of dealing with criminals, and is on the front-line to criticize it. Although the UN
condemns the execution of criminals, most of its members still practice the penalty because statistics
shows that more than sixty percent of world countries still execute criminals.

There are countries that want to preserve the old set of laws, which include the death penalty. Most of
these states do not believe in the respect for fundamental human rights. In as much as criminals should
face severe punishments, they do not deserve the deprivation of life. Proponents of capital punishment
claim that it is the only way of ensuring absolute respect of laws in the countries, yet they use it to settle
political scores with their opponents. They sometimes charge their rivals with treason and execute them.
In conclusion, all criminals should face punishments. Despite their wrongdoings, they have the right to life
and treatment as other human beings. Capital punishment is not the only corrective mechanism. There are
numerous options for ensuring that there is strict adherence to the rule of law, and all governments,
through their judicial systems, should abolish the death penalty.

EXERCISE 1

a) Read the following composition and fill in the blanks with a word or expression from the box:

furthermore recently as a result in conclusion on the other hand

“Genetic engineering brings with it more dangers than benefits and should be banned worldwide”.
Discuss.

(1) , advances in science have demonstrated to us that things that once seemed
possible only in science fiction could become a reality. The cloning of a sheep brought the possibility of
using genetic engineering to create new organs, or even whole human beings, one step closer.

Some people consider this to be a dangerous development, and believe that all that research should be
banned. Interfering with nature in this way could bring with it dangers that none of us can imagine. We
have no idea how an artificially-created person might behave, or indeed how he or she might suffer.
_ (2), we may find ourselves in a position which we do not like, but which we are
unable to reverse.

(3), many people would say that it is not for human beings to decide what other
human beings should be like. It is not only people with deep religious beliefs who feel that it is wrong, for
example, for parents to choose whether their baby will be a boy or a girl, or have blue eyes or musical
talent.

(4), the latest research in genetics has also opened the possibility of newtreatment
for many diseases which up to now have been incurable. If it were possible to prevent a baby from

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disease by
modifying its genes, should we stop the scientists? If doctors could
replace a diseased organ with a new one grown from cells, should it
not be allowed?

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_ (5), I would say that genetic engineering has the potential to be both a huge
benefit and a terrible curse for humankind. To make sure that we benefit from it, it will be necessary to
control it very strictly. The real challenge will be to find ways of monitoring the research that is conducted
in laboratories all over the world and to make sure that it is only used for the good of everyone.
Text adapted from OXFORD STUDENT´S DICTIONARY

b) In the box below you will find some more linking words and expressions you can use
to substitute for the ones used in the composition above. Can you match the words with
the blanks?

moreover consequently therefore nevertheless

however to sum up in addition finally nowadays

EXERCISE 2

Read this composition carefully and complete with the words in the box.

although to sum up such as secondly like

personally besides think so firstly just

“Top sports people earn too much money nowadays”. Discuss.

In most countries today top sports people, _ (1) footballers, tennis players and
basketball players, get enormous salaries. In a week they often earn more than ordinary people in a year.
Is this really too much? _________________ (2) I don´t
(3).
(4), the active life of a professional sports person is relatively short –they often
retire when they are in their mid-thirties. (5), many of them don´t even play that
long, as they often get injured, which means they have to retire early.
(6), _ (7) their salaries are very high they are not much
higher than those of other successful people in the entertainment industry __________________ (8)
pop singers, actors or TV personalities, whose professional careers can last for fifty years. Sport today is
watched by millions of people, so it should be considered entertainment __________________ (9) like
the cinema or TV.

(10), I think that top sports people´s high salaries are not unfair if you
compare them with people doing similar jobs.

NOW YOU write a composition on one of the topics discussed above. Use the
space below to plan your writing and write your final draft on a separate piece of
paper to hand in.

Topic:

Main ideas:

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http://www.mmatm-dvd.com/blog/?p=289

Activity 1: Read the following statements and decide whether the First Amendment
provides absolute protection or no protection at all. Support your answers.

1. a political speech made in support of a candidate for mayor

2. a public criticism of the president

3. a message broadcast by a sound truck in a residential area

4. a telephone call to the school with a phony bomb threat

5. a protest against a city policy by a group which blocks the sidewalk

6. pickets at a grocery store protesting the store’s hiring policy

7. attendance at a meeting of the KU KLUX KLAN

8. a petition signed by 100 citizens opposing a planned zone change

9. a parade held without a permit

10. a newspaper article which contains lies about YOUR private life

11. a speech before a large audience embarrassing the governor by telling about a mistake he made

12. an advertisement which makes false claims about a product

13. membership in the Communist Party of America

14. distribution of leaflets to state legislators urging the passage of the Equal Rights Amendment

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15. a verbal threat to kill YOU

16. a movie advertised as the “dirtiest movie ever filmed”

17. burning a draft card protesting the war in Vietnam

18. wearing the American patch flag on the seat of your blue jeans

Source: RODRIGUEZ, KENNETH, G. USA: New Mexico Law-Related Education, p. 132

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FREEDOM OF EXPRESSION
CASES

Activity 2: Study the following cases. Define the Issue and state whether there has been some sort
of abridging of the freedom of expression. State the grounds for your opinion.

1. Judicial orders restrained criminal pretrial news publications, intending to preserve Sixth Amendment
rights to a fair trial.

2. A city ordinance made It a crime for “one or more persons to assemble… on any of the sidewalks ...
and there conduct themselves in a manner annoying to persons passing by…”

3. A resolution which bans all “First Amendment activities” within the central terminal of a local
airport.

4. A membership clause in a federal statute which made it a felony for any person to be a member of
an organization which advocated the forceful overthrow of the government knowing the purposes of
the organization.

5. A state attorney general requires the NAACP to disclose to the state a list of its members in the
state.

https://twitter.com/NAACP

6. A municipal ordinance making it unlawful intentionally to oppose, molest, abuse or Interrupt any
policeman In the execution of his duties”.

7. A regulation permitting police to disperse demonstrators within 500 feet of an embassy.

8. A federal statute permitting a homeowner to stop mailings to his home that he considers offensive.

9. Life magazine published a picture story on a play providing a misleading portrayal of the hostage ordeal
of the Hill family, who had been held captive in their home by escaped convicts. The Hills brought suit
under a privacy statute providing a cause of action even as to newsworthy events if the publication
was fictionalized.

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10. Inclusion of a nativity scene as part of a municipal Christmas display.

Adapted from: Barron & Dienes (1991) Constitutional Law, USA: West Publishing Co.

CASE STUDIES

http://www.huffingtonpost.com/the-zinn-education-project/this-day-in-history-in-19_b_4843024.html

CASE STUDY 1
TINKER v, DES MOINES
89 S. Ct. 733 (1969)

John Tinker, 15 years old, and Christopher Eckhardt, 16, attended high schools in Des
Moines, Iowa. Mary Beth Tinker, 13, was a student in a Des Moines junior high school.

In December 1965, a group of adults and students held a meeting at the Eckhard home. The
group decided to publicize their objections to the war in Vietnam by wearing black
armbands during the holiday season. They also" decided to fast on the days between
December 16 and New Year's Eve.

The principals of the Des Moines schools became aware of the plan. On December 14,
the principals adopted a policy that any student wearing an armband to school would be
asked to remove it. If he refused, the student would be suspended. The student could return
when he agreed not to wear the armband. The three students were aware of the regulation.

On December 16, Mary Beth and Christopher wore black armbands to their schools. John
wore his the next day. Except for minor complaints from one classroom, there was no
evidence that classes were disrupted by the wearing of the armbands. Outside the
classrooms, a few students made hostile remarks.

School authorities suspended the Tinkers and Christopher from school until after New
Year's Day.

The fathers of the students filed a complaint in United States District Court. They asked
the court to restrain school officials from disciplining the students. The attorneys for Tinker
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argued, was protected by the First and Fourteenth Amendments. The attorneys for the
school board responded that the policy was necessary to maintain discipline in the school.
The regulation, they argued, prevented any interference with learning.

The District Court dismissed the complaint. The U. S. Court of Appeals upheld the ruling
in the lower court. The case eventually went to the U.S. Supreme Court.

OPINION What do you think?

1. What are the facts in the case?

2. What are the issues presented by the case?

3. What arguments can you make for each side in the case?

4. How would you rule this case?

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Decision:
89 S. ct. 733 (1969)
The Supreme Court ruled, seven to two, that it was within the guarantee of the
First Amendment for the students to wear armbands. Justice Fortas wrote, "it can
hardly be argued that either students or teachers shed their constitutional right
to freedom of speech or expression at the schoolhouse gate."

The Court noted that it recognized the need and right of school officials to control
conduct within the school. The problem, said the Court, lies in the area where
students' rights are in direct conflict with the rules of the school authorities.

The Court said, "they [the students] neither interrupted school activities nor
sought to intrude in the school affairs or the lives of others. School officials do
not possess absolute authority over their students. Students in school as well as
out of school are persons, under our Constitution. They are possessed of
fundamental rights which the State must respect, just as they [students] themselves
must respect their obligations to the State…" However, conduct which for any
reason disrupts classwork, creates disorder, or invades the rights ofothers is not
protected by the guarantees of freedom of speech.

"In order for the state… to justify, prohibition of a particular expression of opinion,
it must be able to show that its action was caused by something more than a mere
desire to avoid the discomfort and unpleasantness that always accompany an
unpopular point of view. Our examination of the record fails to yield any evidence
that the school authorities had reason to anticipate that the wearing of the
armbands would substantially interfere with the work of the school, or impinge
upon the rights of other students."

Discussion Questions
1. What kind of speech does the First Amendment protect? What kind of speech does it not protect?

2. What guidelines do you think this case established to help resolve similar conflicts in the future?

3. What impact do you think this decision may have on schools or on students?

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Source:
RODRIGUEZ, KENNETH, G. (1989) New Mexico Law Related Education, p.
280

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http://robergepasquino.blogspot.com
CASE STUDY 2

Texas v. Johnson 109 S. Ct. 2533 (1989)

After publicly burning an American flag as a means of political protest,

Gregory Lee Johnson was convicted of desecrating a flag in violation of Texas
law.

While the Republican National Convention was meeting in Dallas in 1984,

Gregory Lee Johnson participated in a political demonstration. The purpose
of this event was to protest the policies of President Reagan and certain
companies doing business in Dallas. The demonstrators marched through
the streets chanting political slogans. They stopped at the officesof several
corporations to stage "die-ins" to display the effects of nuclear war. On
several occasions they spray-painted the walls of buildings. They also
overturned potted plants and tore up papers in one bank. Although there
were at least two undercover police officers in the group, no effort was
made to stop these actions.

Johnson himself took no part in such activities. He did, however, accept an

American flag handed to him by another protestor. The flag had been taken
from a flag pole nearby.

The demonstration ended in front of Dallas City Hall. Johnson unfolded the
flag, soaked it with lighter fluid, and set it on fire. While the flag burned, the
protestors chanted "America, the red, white, and blue, we spit on you."

Two police officers and an employee of the Army witnessed the burning and
testified that they were offended by the action. After the demonstrators
dispersed, a witness to the flag-burning collected the flag's remains and
buried them in his backyard. No one was physically injured or threatened
with injury. Approximately 45 minutes after the flag burning, police arrived
and arrested Johnson.

Of the approximately 100 demonstrators, Johnson alone was charged with

a crime--the desecration of a venerated object. He was convicted, sentenced
to one year in prison, and fined $2,000. Johnson appealed to theTexas Court
of Appeals which upheld the decision of the lower court. Johnson then
appealed to the Texas Court of Criminal Appeals on the grounds that his
action was symbolic speech protected by the First

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Amendment. The Court of Criminal Appeals overturned the decision of

the intermediate appellate court. The state of Texas then appealed to the
United States Supreme Court claiming the state's right to preserve the flag
as a symbol of national unity and to prevent breaches of the peace.

After reading the facts of the case, get into groups and go over the following questions:

1. What are the main facts of this case?

_

2. Identify the key issues in the case.

3. Decide how you would rule the case. Be sure to state the grounds for your ruling.

4. Now read Opinion # 1 and Opinion #2 2. Which decision do you think was the majority opinion?
Why?

5. How did your decisions compare with the decision of the Supreme Court? What arguments were
similar? What arguments were different?
_

6. Why was the issue of symbolic expression important to the case?

_

_
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7. Do
you agree with the majority decision of the Supreme Court? Why?

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Opinion #1: Texas v. Johnson

Hence, we have recognized the expressive nature of students' wearing

armbands; of a sit-in by blacks in a "whites only" area; and, attaching a peace
sign to the flag. We have held, all may find shelter under the First
Amendment.

Johnson burned an American flag as part of a political demonstration. The

expressive, political nature of this conduct was both intentional and
apparent. Johnson explained his reason for burning the flag as follows:

"The American Flag was burned as Ronald Reagan was being re-
nominated as President. And a more powerful statement of symbolic
speech, whether you agree with it or not, couldn't have been made
at that time. We had new patriotism and no patriotism.”

In these circumstances, Johnson's burning of the flag was conduct sufficiently

imbued with elements of communication.

Texas claims that its interest in preventing breaches of the peace justifies
Johnson's conviction for flag desecration. However, no disturbance of the
peace actually occurred or, threatened to occur. The state's position
amounts to a claim that an audience that takes offense at particular
expression is likely to disturb the peace and that the expression may be
prohibited on this basis. The state's interest in maintaining order is not
implicated on these facts. In Terminiello v. Chicago, 1949, the court
recognized the principal that

"the function of free speech under our system of government is to

invite dispute. It may indeed best serve its high purpose when it
induces a condition of unrest, creates dissatisfaction with conditions
as they are, or even stirs people to anger."

The state also claims an interest in preserving the flag as a symbol of

nationhood and national unity. If there is a bedrock principle underlying the
First Amendment, it is that the Government may not prohibit the expression
of an idea simply because society finds the idea itself offensive or
disagreeable. We have not recognized an exception to this principle even
where our flag has been involved. We never before have held that the
Government may ensure that a symbol be used to express only one view of
that symbol. To say that the Government has an interest in encouraging
proper treatment of the flag, is not to say that it may criminally punish a
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burning a PROGRAM
flag as a
means of political protest.

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Opinion #2: Texas v. Johnson

For more that 200 years, the American flag has occupied a unique position
as the symbol of our Nation, a uniqueness that justifies a governmental
prohibition against flag burning in the way Johnson did here. [The flag]…
does not represent the views of any particular political party, and it does not
represent any particular political philosophy. The flag is not simply another
“idea" or "point of viewl” competing for recognition in the marketplace of
ideas. Millions and millions of Americans regard it with an almost mystical
reverence regardless of what sort of social, political, or philosophical beliefs
they may have.

The Court in Schenck v. United States, 1919, wrote:

“…it is well understood that the right of free speech is not absolute
at all times and under all circumstances. There are certain well-
defined and narrowly limited classes of speech, the prevention and
punishment of which have never been thought to raise any
constitutional problem. These include the lewd and obscene, the
profane, the libelous, and the insulting or 'fighting' words--those
which by their very utterance inflict injury or tend to incite an
immediate breach of the peace."

It may equally be said that the public burning of the American flag by Johnson
was no essential part of any exposition of ideas. Johnson was free to make
any verbal denunciation of the flag that he wished; indeed, he was free to
burn the flag in private. He could publicly burn other symbols of the
Government or effigies of political leaders. He did lead a march through the
streets of Dallas, and conducted a rally in front of the Dallas City Hall. He
engaged in a “die-in” to protest nuclear weapons. For none of theseacts was
he arrested or prosecuted; it was only when he proceeded to burn publicly
an American flag stolen from its rightful owner that heviolated the Texas
statute.

Flag burning is the equivalent of an inarticulate grunt or roar that is most

likely to be indulged in not to express any particular idea, but to antagonize
others. The Texas statute deprived Johnson of only one symbolic form of
protest--a form of protest that was profoundly offensive to many--and left
him with a full panoply of other symbols and every conceivable form of verbal
expression to express his deep disapproval of national policy. It was
Johnson's use of this particular symbol, and not the idea that he sought to
convey, for which he was punished. Surely one of the purposes of a
democratic society is to legislate against conduct that is regarded as evil
and profoundly offensive to the majority of people--whether it be murder,
embezzlement, pollution, or flag burning.
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Source:
RODRIGUEZ, KENNETH, G. (1989) USA: New Mexico Law-Related
Education,.

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CASE STUDY 3
Marchers were Warned Case

In March 1961, a demonstration

took place in Columbia, South
Carolina. About 190
demonstrators gathered at a
downtown church that morning.
Near noon their meeting at the
church ended. They broke into
groups of about 15 persons and walked from the church to the State
Capitol grounds to reassemble. The capitol grounds were a park-like area
opened to the public.

At the capitol, the demonstrators began to march, carrying their signs

protesting certain state laws – The demonstrators marched around the
grounds “in’ an orderly manner and were undisturbed for more than an
hour.

The police were alerted to the demonstration as soon as it began. Thirty

officers were sent to the scene. As the demonstrators marched silently,
the number of onlookers grew. By that time the demonstration had been
going on for 30 minutes, and the number of onlookers watching it had
grown to more than 200 persons. The onlookers were also quiet.

Police officers and the City Manager met and discussed the situation. The
Manager believed he recognized some possible troublemakers in the
crowd. It was decided the demonstration should end.

After this decision was made, the police informed the demonstrators that
the march must end within 15 minutes. The police told them if they did
not end the demonstration within that time, they would be arrested for
disturbing the peace.

Upon hearing this, the demonstrators stopped marching and began to sing.
They listened to a speech by one of their leaders. They began to clap their
hands and stomp their feet in rhythm.

With the demonstration still going on at the end of the 15 minutes, the
demonstrators were arrested. Each was charged with disturbing the
peace, and each was found guilty. Each was given a fine of from five to
ten dollars and jail sentences of from five to thirty days.

The demonstrators appealed the convictions on the grounds they had

done no wrong. They had the right to assemble and protest and their
arrest violated these rights.

The City of Columbia argued that they had taken their action only after a
proper warning and only to prevent possible violence which could cause
injury to persons and damage to property.

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OPINION What do you think?

1. What constitutional rights apply to this case?

2. Do you believe these demonstrators had the right to protest and march as they did? Why or why
not?

3. Do you believe it was proper for police officers to be sent to the scene of the protest? Why or why
not?

4. Why do you think the police would arrest a group of demonstrators rather than the crowds that
gathered to watch the demonstration?

5. Do you think it was proper for the police to stop the protest because there were troublemakers in
the crowds of onlookers? Why or why not?

6. Do you think a time limit should be imposed on the length of a protest or a demonstration? Why or
why not?

7. Do you think that groups wanting to protest or demonstrate should get permission from the
appropriate government entity prior to the event? Why or why not?

8. Do you believe the Supreme Court should grant or deny the marchers’ appeal? Why or why not?

Source: RODRIGUEZ, KENNETH, G. (1989) USA: New Mexico Law-Related Education,.

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CASE STUDY 4

http://profdaly.files.wordpress.com/2011/06/pentagon-papers-t.jpg

THE PENTAGON PAPERS CASE

Liberty of the press, historically considered and taken up by the Federal Constitution, has meant
principally (although not exclusively) immunity from previous restraints or censorship.

Chief Justice Hughes, Near v. Minnesota (1931)

There is a strong tradition of opposition to pre-publication censorship (called prior restraint) in American
judicial history. The courts have held that it is better to allow material to be published and let the writer be
criminally prosecuted after publication, if necessary, than it is to prevent publication in advance.

Should the same principle apply to the publication of government information that is classified “TOP
SECRET” or to government documents which the writer or publisher has illegally obtained?

This question arose during the height of the Vietnam War in 1971. The Pentagon Papers were official
documents detailing the history of U.S. involvement in Vietnam during the administrations of Presidents
Truman, Eisenhower, Kennedy, and Johnson. The documents were leaked to the press. Here is the story.

New York Times v. United States

United States v. Washington Post Company

It had the elements of a mystery. The Pentagon contracted with the Rand Corporation, a “think tank”, to
do a thorough history of U.S. policy relating to Vietnam. Eventually, the research resulted in a 47-volume
study entitled History of U.S. Decision-Making Process on Vietnam. The government classified the
materials “TOP SECRET”. Daniel Ellsberg was one of the men assigned to this job. A hawk with reference
to the Vietnam War, he was so influenced by the documents that his views on the war changed radically,
and he became a dove. Determined to bring to the attention of Congress and to inform the American
people of what he believed to be half-truths, misrepresentations, and lies by presidents and government
officials, Ellsberg took 18 of these volumes out of the files of the Rand Corporation, had them photocopied,
and then returned them. All the documents were marked “TOP SECRET”, but Ellsberg argued that this
set belonged to three government officials, one of whom gavehim permission to read them.

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Later, when Ellsberg and Russo, the man who helped him, were tried for this act, the government
maintained that they had stolen the documents. The case ended in a mistrial and neither Russo nor Ellsberg
was ever tried again; the issue of their guilt under the law remains undetermined.

In order to publicize what they regarded as crimes against the American people by government officials,
Ellsberg and Russo turned their photocopies over to the New York Times. After studying the materials
for three months, the Times decided to publish them.

On June 13, 1971, the first of the articles appeared in the newspaper. The government tried to get an
injunction against the Times to stop any further publication on the ground that exposing the TOP SECRET
documents would injure the war effort and strain relations among the United States and its allies. The
New York Times replied that the First Amendment prohibits censorship of the press, especially prior to
publication.

The U.S. District Court ruled for the Times, but the U.S. Court of Appeals reversed the decision. At the
same time, the Washington Post began the publication of installments of the Pentagon Papers, and when
the government tried to get an injunction, both the U.S. District Court and the U.S. Court of Appeals
found in favor of the newspaper.

The case was then appealed to the Supreme Court. Since prior restraint was the issue, speed was of the
essence. The longer the courts delayed, the longer the publication would be delayed. With unprecedented
speed, the Supreme Court decided the case in four days. Arguments were heard on June 26, 1971; the
ruling was handed down on June 30, 1971.

This was a tough case for the nine justices. On the one hand, there was the claim by the newspapers that
freedom of the press is protected by the First Amendment. On the other hand, there was the position of
the government-the President is Commander –in-Chief of the Army and Navy and the chief architect of
American foreign policy. He and his assistants have the power to decide which documents should be
classified as TOP SECRET. When this is done, no one can see or read these documents without permission.
The newspapers had no right to see or publish these documents (declared by the government) especially
since Ellsberg did not have a right to their possession. By passing them on to the newspapers, he was
committing a crime, and the newspapers had to share that guilt because they were not entitled to
possession. Furthermore, publication of the documents would result in grave and irreparable injury to the
public interest.

PERSONAL OPINION - WHAT DO YOU THINK?

1. What are the key issues in this case?

2. If you were a justice on the United States Supreme Court, how would you decide the case? What
might be your reasons?

3. What might be the benefits of your decision?

4. What might be some of the problems that could arise as a result of your decision?

From: Law in U.S History, Publication of New Mexico Bar Foundation Law Related-Education (1991) pp.
279-283)

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AMENDMENT XIV

What Does Equality Mean in Our Society?

Thomas Jefferson wrote in the Declaration of Independence that “all men are created equal.” Scholars of
our system of governement, however, agree that this was never intended to imply that people are equal
in all respects. It is evident that we all are different in intelligence, strength, and skills. Rather, the phrase
means that in the eyes of the state, all people have a right to equal respect- all of us should stand equal
before the law.

Overview of the fourteeth Amendment

The concept of equality before the law was not spelled out in the original Constitution. It was presented
in the Fourteenth Amendment which was ratified in 1868 following the Civil War. The purpose of the
Fourteenth Amendment was: 1) to correct centuries of slavery condoned by the Constitution; 2) to
overturn the Dred Scott Decision of 1857 which stated that blacks were not citizens; and, 3) to protect
The Civil Rights Act of 1866 from being overturned by the Supreme Court. The Civil Rights Act of 1866
put an end to the “Black Codes” which were laws passed by the states that barred former slaves from
certain jobs and from renting or owning land.

The Fourteenth Amendment contains four very improtant concepts:

 First, is the idea of national citizenship. Section One of the amendment states, “All persons born
of naturalized in the United States . . . are citizens of the United States and of the State wherein
they reside.” Before the amendment was ratified, one was only a citizen of his state of residence
if that state’s laws so permitted.

 Second, is the protection of “privileges and immunities”. The amendment states that “No State
shall make or enforce any law which shall abridge the privileges or immunities of citizens of the
United States.” One of the amendment’s sponsors, Representative John A. Bingham of Ohio, said
that “privileges and immunities” meant the first eight amendments in the Bill of Rights. Bingham
was opposed to an 1833 Supreme Court ruling that the Bill of Rights protected citizens only
form actions of the federal government and not from the states. The meaning of the clause has
never been entirely clear, and the Supreme Court has not agreed with Bingham’s view of privileges
and immunities. The clause has rarely been used in the courts.

 Third, is the protection of due process rights against the states. The amendment states, “nor
shall any State deprive any person of life, liberty or property, without due process of law.” A similar
clause may be found in the Fifth Amendment, but it applies to the federal government. The due
process clause means two things: (1) the content of the laws written by the states must be fair and
reasonable; and, (2) the procedures for enforcing the law and for conducting hearings,such as trials,
must be fair and reasonable.

The earliest use of the due process clause was to protect property. During most of its history, the
courts have used the due process clause to strike down laws which in their view unfairly limit
the right to own and control property. This has been an important benefit to big business.It has
also been controversial because critics say that the benefits to business have been at the expense
of other interests in our society, like labor unions and the environment.

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The due process clause also protects the individual liberties in the Bill of Rights against state
governments. A citizen cannot be denied liberty, e.g., free speech, without due process of law. The
Supreme Court was at first reluctant to interpret the due process clause in this way. Since the
1920’s however, one by one, the Supreme Court has “incorporated” the protectionsoutlined in
the Bill of Rights into the Fourteenth Amendment.

 Fourth, is a guarantee of a right to equal protection. The Amendment states that “No State shall
. . . deny to any person within its jurisdiction the equal protection of the laws.”

Although the Fourteenth Amendment was intended to protect former slaves, it can generally be said that
it has benefited everyone in the United States. The amendment has played an increasingly important role
in our national life.

The Equal Protection Clause

Not all discrimination is illegal. As individuals we discriminate daily. Your younger brother or sister may
protest being sent to bed an hour or two earlier than you. He or she claims unfair treatment. However,
life is not always fair and this type of inequality is harmless. The Equal Protection Clause outlaws
discrimination by and action of a state.

The purpose of the Equal Protection Clause was clearly to keep states from discriminating against black
citizens. There is never any reason to discriminate against a racial minority. Race is a trait which an
individual cannot change. Purposeful racial discrimination places a heavy burden on the government to
justify its actions.

The courts did not use the Fourteenth Amendment’s Equal Protection Clause to alleviate racial
discrimination until the 1950´s, 86 years after its ratification. This was due to the Supreme Court’s 1896
Plessy v. Ferguson decision. In Plessy, the Court rules that a state law separating the races on trains did not
violate the Fourteenth Amendment. The Court said segregation laws did not stamp blacks with “a badge
on inferiority”. States were permitted to have separate facilities for blacks and whites as long as those
facilities were equal. This meant a long period of court-approved state segregation. People weresegregated
in schools, on buses and trains, in hotels and eating places, and in public areas. The Plessy decision was not
unanimous. Justice John Marshall Harlan neither agreed nor accepted the Court’s “separate but equal”
doctrine. Harlan wrote, “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.”

It was not until 1954 that the Supreme Court changed its basic stand. In Brown v. Board of Education,
Chief Justice Earl Warren spoke for everyone on the court. Said Warren, “Does segregation of children in
school solely on the basis of race, … deprive the children of the minority group of equal educational opportunity?
We believe that it does.” He went on to say, “We conclude that in the field of public education the doctrine of
separate but equal has no place. Separate educational facilities are inherently unequal.” In short, the Court ruled
that separate schools deprive students of an equal chance. After the Brown case the Court quickly struck
down other state segregation laws. It outlawed separation on buses traveling within the same state and
segregation in public housing and recreation. It also struck down a law that did not allow blacksand whites
to marry. In this way, the Court used the Fourteenth Amendment to end state racial discrimination.

It remained for Congress and state legislatures to do something positive for equality. Congress passed
Civil Rights Acts in 1957, 1960 and 1964. The 1964 Act outlawed discrimination in the use of federal funds.
It also set up an Equal Employment Opportunity Commission to stop discrimination in job hiring.

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In 1958, Congress passed a Voting Rights Act to register voters and to oversee elections. Congress has
also passed laws outlawing racial or sexual discrimination in housing. These laws cover the renting, selling
and financing of housing.

The struggle to eradicate illegal discrimination is not over. Much remains to be done to achieve full
equality and equality of opportunity for all our citizens.

Equal Protection Standards

Today, the courts use three primary standards to determine whether a case of discrimination is
constitutionally legal:

 Rational Basis Test. This test simply asks if there is a rational basis for treating people differently.
Is it related to a permissible government interest? For example, may the state deny a driver’s
license to persons who have extreme vision problems? In this case, who is being treated differently?
Why are they being treated differently? Does this treatment serve a legitimate state interest?

 Substantial Relationship Test. This test applies primarily to sexual discrimination cases. The
government must prove that the law in question serves important government objectives and
there is a close connection between the categories established and the purpose of the law. For
example, does a law passed by Congress creating male-only draft unfairly discriminate against
women? In this case, does the law serve an important governmental objective? Is there a close
connection between the male-only draft and the governmental objective?

 Strict Scrutiny Test. A law that discriminates on the basis of race, color, national origin, or
alienage will be examined very carefully by the courts. The government must show that it has a
compelling interest which demands such classification. It must show that there is no lessoffensive
means to achieve its goals. For example, does a state law barring inter-racial marriages violate the
equal protection clause? In this case, what racial group is receiving the special classification? Is the
law necessary to achieve a compelling state interest?

From: Law in U.S History, Publication of New Mexico Bar Foundation Law Related-Education (1991) pp.
279-282)

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http://mmsmirandam2.weebly.com/amendments.html

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New Mexico Law Related-Education.

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CASE STUDY 5

http://ralphdavidabernathy.blogspot.com/2011/03/unfairness-to-linda-brown.html

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From: RODRIGUEZ, KENNETH & WILLIAMS, MARY LOUISE, Law in U.S. History, New Mexico Bar
Foundation Law-Related Education, 1991

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Discuss these questions in groups.

1. What factors other than school buildings and teachers might make segregated schools unequal?
_

2. What does the Equal Protection Clause of the Fourteenth Amendment guarantee to citizens?

Pretend you are a justice of the United States Supreme Court. Write your

decision in this case. Support your decision with the reasons for your ruling.

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DUE
PROCESS CASES

A case will be assigned to each group. Read the case and present the case as a ROLE-PLAY where
each member will act out one of the persons involved in the case. There will be a narrator to
help create the proper environment.

1. MIRANDA v. ARIZONA
348 U.S. 436 (1966)

Ernesto Miranda was accused of kidnapping and raping an eighteen year-old girl near Phoenix, Arizona.
The girl claimed she was on her way home from work when a man grabbed her, threw her onto the back
seat of a car, and raped her.

Ten days later, Miranda was arrested at his home and taken in custody to a Phoenix police station. Miranda
was placed in a lineup and identified by the girl as her attacker. The police then took Miranda into
Interrogation Room No. 2. There he was questioned by police officers for two hours.

At the end of the two hours, the officers emerged with a written and signed confession. At the top of
the statement was typed a paragraph stating that the confession was made voluntarily, without threats or
promises of immunity and with full knowledge of my legal rights, understanding any statement I make may be
used against me.

At Miranda’s trial before a jury, the written confession was admitted into evidence over the objection of
defense counsel. The police officers admitted at trial that Miranda was not advised that he had the right to
have an attorney present.

Ernesto was found guilty of kidnapping and rape. He was sentenced to 20 to 30 years imprisonment on
each count, the sentences to run concurrently. On appeal, the Supreme Court of Arizona held that
Ernesto’s constitutional rights were not violated in obtaining the confession and the conviction was upheld.
In reaching its decision the court emphasized heavily the fact that Miranda did not specifically request
counsel.

Ernesto Miranda then appealed his case to the U.S. Supreme Court arguing that he had not been warned
of his right to remain silent and not incriminate himself (5th Amendment) and that he had been deprived of
his right to counsel (6th Amendment). Miranda did not suggest that his confession was false or brought
about by coercion, but rather that he would not have confessed if he had been advised of his right to
remain silent and/or of his right to an attorney.

Decision

From the testimony of the officers and by the admission of respondent, it is clear that Miranda was not
in any way appraised of his right to consult with an attorney and to have one present during the
interrogation, nor was his right not to be compelled to incriminate himself effectively protected in any
other manner. Without these warnings the statements were inadmissible. The mere fact that he signed a
statement which contained a typed-in heading clause stating that he had full knowledge of his legal rights
does not approach the knowing and intelligent waiver required to relinquish constitutional rights.

The prosecution may not use statements . . . stemming from custodial interrogation of the defendant unless
it demonstrates the use of procedural safeguards effective to secure the privilege against self-

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incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after
a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.

As for the procedural safeguards to be employed . . . the following measures are required. Prior to any
questioning, the person must be warned that he has a right to remain silent, that any statement he does
make may be used as evidence against him, and that he has a right to the presence of an attorney, either
retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made
voluntarily, knowingly and intelligently.

If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an
attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in
any manner that he does not wish to be interrogated, the police may not question him. The mere fact that
he may have answered some questions or volunteered some statements on his own does not deprive him
of the right to refrain from answering and further inquiries until he has consulted with an attorney and
thereafter consents to be questioned.

2. MAPP v. OHIO
367 U.S. 643 (1961)

Acting on a tip from a confidential source, the police went to a family dwelling to search for evidence
that an occupant in the two-story complex was involved in the numbers racket. The police informanthad
indicated that the male suspect was hiding in the second story apartment.

When the police arrived at the house, they rang the doorbell. Dollree Mapp, the tenant of the apartment
came to a second story window and asked the police what they wanted. When the police indicated that
they wanted to come in to talk to her, Dollree called her lawyer. On her lawyer’s advice, she refused to
let the police enter without a search warrant.

The officers staked out the house from across the street. A few hours later other police officers arrived
with a paper which they said was a search warrant. The police broke down the front door and entered
the building. They waved the paper at Dollree but would not let her read it. She snatched the paper
from the officer’s hand and stuck it down the front of her dress. A struggle followed. The police recovered
the paper which was never read by Dollree.

Dollree was then handcuffed and her entire apartment and the building basement were searched. Dollree
sat on the bed in her bedroom while the police searched. In her dresser and in a suitcase underneath the
bed, the police found obscene materials. Possession of obscene material was unlawful in the state.

Dollree was arrested and charged with possession of obscene materials. She was tried and convicted. At
the trial, no search warrant was produced by the prosecution. The items obtained during the search of
her apartment were used as evidence against her. The state Supreme Court upheld the conviction based
on an earlier U.S. Supreme Court decision, Wolf v. Colorado (1949), which said that states were not
obligated to exclude from trial illegally obtained evidence.

Dollree Mapp appealed her conviction to the United States Supreme Court.

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Decision

This Court, in Weeks v. United States, stated that the Fourth Amendment . . . put the courts of the United
States and Federal officials, in the exercise of their power and authority, under limitations and restraints [and] . . .
forever secure[d] the people, their persons, houses, papers and effects against all unreasonable searches and
seizures under the guise of law . . .

Today we once again examine Wolf’s constitutional documentation of the right to privacy free from
unreasonable state intrusion, and, after its dozen years on our books, are led by it to close the only
courtroom door remaining open to evidence secured by official lawlessness in flagrant abuse of that basic
right . . . We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that
same authority, inadmissible in a state court.

Since the Fourth Amendment’s right of privacy has been declared enforceable against the States through
the Due Process Clause of the Fourteenth, it is enforceable against them by the same sanction of exclusion
as is used against the Federal Government.

There are those who say, as did Justice Cardozo, that under our Constitutional exclusionary doctrine, the
criminal is to go free because the constable has blundered . . . In some cases this will undoubtedly be the result.
But, as was said in Elkins, there is another consideration- the imperative of judicial integrity. . . .
The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more
quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence. As Mr.
Justice Brandeis, dissenting, said in Olmstead v. United States, Our government is the potent, the omnipresent
teacher. For good or for ill, it teaches the whole people by its example . . . If the government becomes a lawbreaker,
it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.

3. GIDEON v. WAINWRIGHT
372 U.S. 335 (1963)

Making his rounds one night, a police officer discovered that the Bay Harbor Pool Hall in Panama City,
Florida, had been broken into. When the owner closed the poolroom at midnight, he had been careful in
locking up, since many thieves and drunks hung out in the neighborhood. But someone had been able to
break in anyway. The officer found that beer and wine and money from the juke box and cigarette machine
had been taken.

The next morning a bystander told the police that an elderly poor man, named Clarence Earl Gideon,
had broken into the poolroom. Gideon had been in prison four times for various non-violent crimes.
The police arrested Gideon and accused him of breaking and entering. Gideon claimed that he was
innocent.
At his trial, Gideon asked the judge to appoint a lawyer to help him because he had no money to hire one.
The judge answered that Florida laws allowed judges to appoint lawyers only when a person is charged
with a capital offense. Since Gideon was charged with a felony (breaking and entering) and not a capital
offense, the judge could not appoint a lawyer.

Gideon stood trial alone, acting as his own lawyer. He did the best he could, but he was unable to do a
very thorough job. He did not know what questions to ask or that he could call witnesses on his own
behalf. In his closing statement to the jury, Gideon merely repeated that he had not committed the crime.

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The jury found Gideon guilty of breaking and entering and the judge sentenced him to five years in the
state prison.

While in prison, Gideon studied all he could about the law. He finally wrote by hand a five-page letter to
the Supreme Court of the United States asking them to review his case. Gideon said that there was an
error in his trial and that he should not have been convicted. He stated that his constitutional rights under
the Fourteenth Amendment had been violated by not having a lawyer to represent him during his trial.
Gideon asked the Court to grant him a new trial.

Decision

The justices of the Supreme Court unanimously decided that an indigent defendant accused of a serious
crime must be afforded the assistance of an attorney.

The Court wrote:

Reason and reflection require us to recognize that in our adversary system of criminal justice, any person
hauled into court who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided
for him. This seems to us to be an obvious truth.

Governments, both state and federal, quite properly spend vast sums of money to establish machinery to
try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the
public’s interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed,
who fail to hire the best lawyers they can to prepare and present the defenses.

That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend
are the strongest indicators or the widespread belief that lawyers in criminal courts are necessities, not
luxuries.

The right of one charged with crime, to counsel, may not be deemed fundamental and essential to fair
trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and
laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before
impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized
if the poor man charged with crime has to face his accusers without a lawyer to assist him while the rich
man accused of the same crime hires an attorney to protect his right to be innocent until proven guilty beyond
a reasonable doubt.

Activity 1: After role-playing the cases analyze which amendments each one involved.
Explain why these cases set precedents.

Case Amendment Issue

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Adapted from: New Mexico Law Related Education

Activity 2: Match the terms in the box with the definitions below.

Constitution scope enforce censorshi abridge

petition grievances warran pwrit statue enacting
clause issue binding t stare-ecisis
construe disparage ves grant
amendment redress t Judicial Review

1. Satisfaction or payment for harm done

2. Some harm or cause of claim
3. To interpret or explain
4. To belittle
5. A law passed by legislature
6. To shorten
7. Main point in dispute in a case
8. To stand by what is said
9. Obligatory or conclusive
10. A change
11. Give or confer
12. Preamble to a statute
13. Denial of freedom of expression
14. A written request to a court
15. To compel obedience to
16.the range of law
17. Written permission given by a judge
18. Court’s power to declare laws or acts unconstitutional
19. Order from a competent authority in the name of the state
20. Give an immediate, fixed and full right
21. Body of principles or fundamental laws which establishes and regulates
the Basic order of a state

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Activity 3: Read the following text and fill in the gaps with the appropriate constitutional terms.

The Constitution of the United States is a document that outlines the basis of
the Federal (national) government of the USA. It was
in 1787 at the "Constitutional
Convention" held in Philadelphia, Pennsylvania. The 55 men at the convention
are called the "Founding " of the
USA, and are also known as the "framers of the Constitution." Some of the
more famous of the framers are George Washington (the
President of the USA), James Madison (the fourth _ _ of the
USA), _ Franklin and Alexander Hamilton.

The US Constitution was ratified (_ _) on June 21,

. It replaced the earlier set of rules, the Articles of Confederation
(which were written in 1781, but gave Congress very little _ ).

The Preamble of the Constitution is the short introduction to the Constitution; it explains that the
document proposes to establish a more perfect government complete with justice, tranquility, and liberty.
It states, "We the _ of the United States, in Order to
form a more perfect _ , establish Justice, insure domestic
Tranquility, provide for the common _ , promote the general
Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this
Constitution for the United States of America."

The Constitution sets up the US government as a republic with three

of government: the
branch (which makes the national laws and consists of
Congress), the _ _ branch (headed by the President), and the
branch (which interprets the Constitution and laws, and
consists of judges in courts). The Constitution sets up the power balance between
and the Federal government, details how to add new states
to the USA, tells how the Constitution can be amended, and enumerates requirements for ratifying
(approving) the Constitution by the states.

Many amendments (_ to the Constitution) have been made

throughout the years. The first 10 amendments, called the Bill of
, were added in 1791; the Bill of Rights preserves the rights
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of the people, including the freedom of _ and religion, among

others. So far, there have been _ amendments to the constitution.

The US Constitution has been the model for many countries' constitutions around the world. It is a great
document that has withstood the test of time in creating a government that has functioned well forover
200 years while preserving individual liberty and justice.

Retrieved from: http://www.enchantedlearning.com/history/us/documents/constitution/cloze/

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LEGAL ENGLISH
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Part III: Legal Procedure

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LEGAL PROCEDURE

“Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they
cannot alter the state of facts and evidence.”
– John Adams

The law of legal procedure differs from what is known as substantive law. Substantive law (such as criminal
law and the law of torts, contracts, probate law, family law, etc.) defines our rights and obligations.
Procedural law establishes procedures for enforcing those rights and obligations fairly and efficiently.

Rules of procedure are provided for criminal actions, which are prosecuted by a governmental entity (such
as the state of Ohio) or its representative (such as the county prosecutor). In criminal actions, the
prosecution usually will ask the court to order the defendant to pay a fine or be imprisoned. Different
rules of procedure are provided for civil actions, also called civil suits or civil cases. In such actions, the
plaintiff (the person or entity bringing the action or suit) typically asks the court to order the defendant
(the person against whom the action is brought) to pay damages to the plaintiff, or to obey an injunction
(an order to do something or refrain from doing something), or to perform a legal obligation to which the
defendant has agreed by contract. Because the procedural rules governing civil actions and criminal cases
are different, the two types of cases are discussed separately in the remainder of this chapter.

Procedure in Civil Actions

Procedure in a civil action is best understood by analyzing the following

11 stages, although the stages may overlap. It is important to note that
plaintiffs and defendants agree to settle more than 90 percent of all civil
actions before reaching trial (see Stage 8) and that only a very small
percentage of civil actions continue through all 11 stages.

Stage 1: The plaintiff selects a court

The first step in filing a civil action is to select a court in which to file the action. The plaintiff to-be (and
attorney representative) must select a court that satisfies three conditions: 1) subject matter jurisdiction;
2) personal jurisdiction; and 3) venue.

Subject-matter jurisdiction is simply the power to hear a particular type of case. As explained in Part II,
“The Courts,” both federal (national) and state courts sit in Ohio. The rules governing subject-matter
jurisdiction are found primarily in federal and state constitutions and statutes (legislative acts).
Sometimes, a plaintiff-to-be can choose to file in federal court or in state court. For example, a citizen of
Ohio who contemplates filing a major personal injury action against a citizen of another state can choose
to file in state or in federal court. Sometimes, a plaintiff-to-be will be required to file in one system or
the other. For example, civil actions for divorce or dissolution are properly filed only in state court, while
civil actions seeking damages for patent infringement are properly filed only in federal court.

Personal jurisdiction is the power to decide the rights of the parties to the civil action. The plaintiff who
chooses to file a civil action in a particular court has agreed or consented to the power of the court to
decide the plaintiff’s rights. A court must also have the power to decide the rights of the defendant or
defendants in a civil action. Earlier in our country’s history, a state court could exercise jurisdiction over
a defendant only if the defendant:
• was served with process (see Stage 2) in the state;

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• consented to have the court determine the defendant’s rights; or

• was considered a legal resident of the state in which the court was located.
Now, most states have adopted “long-arm” provisions that permit a state court to exercise jurisdiction
over an out-of-state defendant based merely on the defendant’s having certain contacts with the state.
Under Ohio’s long-arm provisions, for example, an out-of-state manufacturer that markets products to
Ohio residents is likely to be subject to an Ohio court’s jurisdiction if one of its products proves defective
and injures someone in Ohio. For statutory reasons, the personal jurisdictional reach of each federal court
has, for many types of civil actions, been limited to the reach of the state courts in that state. For some
civil actions, however, Congress has provided for nationwide (even worldwide) serviceof process (official
notice to a defendant that an action has been started).

The rules of venue attempt to ensure that a court that has subject-matter and personal jurisdiction is
relatively convenient for the defendant. They do so by limiting a plaintiff’s choices to specified locations,
such as the county or judicial district in which the defendant lives or does business, or in which events key
to the civil action occurred.

Stage 2: Service of process

State and federal constitutions require that a defendant be given fair notice of the filing of a civil action.
Controlling procedural rules typically require that two documents (“process”) be transmitted to (“served
on”) the defendant. One document is a complaint that the plaintiff files, which provides details about the
plaintiff, the relief sought by the plaintiff and the court in which the action has been filed. The second is a
summons, which informs the defendant that, unless the defendant files a response (a document called an
answer [see Stage 3]) by a certain date, the court will enter default judgment in favorof the plaintiff for the
relief sought in the complaint. The threat of a default judgment against a defendant helps to ensure that
the defendant will not ignore the action (just as a sports team will make every effortto show up at a game
if it risks a loss by forfeit for failing to appear).

Service of process is commonly made by certified or express mail addressed to the defendant as specified
by the relevant rules. Service is sometimes accomplished by handing the documents to the defendant or
by leaving them at the defendant’s home or place of business.

Stage 3: Further pleadings and motions

As noted above, a defendant in a civil action must answer the summons and complaint by filing an official
document with the court. In this document (the answer), the defendant either admits or denies the
allegations of the complaint. The defendant also may provide certain defenses or reasons why the court
should not decide in favor of the plaintiff. For example, the defendant may point out that the plaintiff’s
claim has expired in accordance with the statute of limitations (for example, a claim for an auto collision
that occurred more than two years before the plaintiff filed the case). If the defendant also has a claim
against the plaintiff, then the defendant may be permitted (even required) to enter a counterclaim against
the plaintiff, either in the defendant’s answer or in a separate pleading. For example, let’s say Ms. Black and
Mr. Simms are involved in an auto accident, causing personal injury as well as damage to both vehicles. Ms.
Black (the plaintiff) files a civil action against Mr. Simms (the defendant) for these injuries and/or property
damage. If Mr. Simms believes he also has a claim against Ms. Black for injuries and/or property damage
resulting from the same accident, then he must file a counterclaim. The plaintiff (in this case, Ms. Black)
then will be required to file a reply to respond to the allegations of the counterclaim andraise any applicable
defenses.

If a plaintiff files a civil action against more than one defendant, one of the named defendants may be
permitted to assert a cross-claim against another defendant. For example, let’s say Mr. Rivera was injured
while using a chain saw that he bought at a retail hardware store. He files a civil action for

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damages against both the manufacturer of the chain saw and the hardware store. If the store believes the
responsibility for injury is ultimately the manufacturer’s, the store may assert a cross-claim against the
manufacturer.

Under limited circumstances, a defendant may be permitted to file and serve a third-party complaint on a
person who is not a party to the original civil action. Let’s say Mr. Rivera (the man in the example above)
decides to file a civil action against only the retail hardware store. If the store believes the chain saw
manufacturer should bear this responsibility, then the store may file a third-party complaint against the
manufacturer. In the third-party complaint, the store will ask the manufacturer to reimburse the storefor
any damages it may have to pay to Mr. Rivera.

Before, during, or after the pleading stage of a civil action, parties may file various pre-trial motions asking
the court to take various actions. For example, a defendant may move to dismiss a civil action because the
court lacks subject-matter jurisdiction or because the court lacks personal jurisdiction over the defendant.
If a defendant believes that the plaintiff does not have a valid legal claim, even if every fact alleged by the
plaintiff is true, then that defendant may move to dismiss a civil action. By making such a motion, the
defendant logically argues to the court that the action need go no further because, even if the plaintiff can
prove the alleged facts, the plaintiff will not be entitled to any legal relief. (For example, a court would
likely dismiss a plaintiff’s claim that the defendant was rude and disrespectful).

Stage 4: Pre-trial discovery

The discovery process allows the parties to a civil action to get relevant factual information from each
other and from other persons before trial. Ordinarily, parties send each other discovery requests
without court participation, but the court will enforce proper discovery requests if the opposing party fails
to comply. One of the ways a party can gain this information is through a scheduled deposition of another
person. The person called on to provide information at a deposition may be another party to the legal
action, a witness, a medical expert, or any other person who has information that may be usefulin the case.
At the deposition, the person being “deposed” is placed under oath by the stenographer (called a court
reporter) who is also a notary public, and parties or their attorneys ask the person questions. The party
who requests the deposition must pay for the reporter’s time there, but any party can pay the reporter
for a transcript of the deposition testimony.

Another way a party can gain information is by requiring other parties to the legal action to respond under
oath to written questions known as interrogatories. Court rules limit the number of interrogatories, so
they usually ask for specific information without follow-up questions that oraldepositions permit.

A party also may require other parties to produce documents or permit inspection of property through
a request for production. A party may obtain similar information from other persons who are not parties
in the case through use of the subpoena, a court order to produce documents or to permit inspection of
property. A party also may require another party to respond to requests for admission, in which the other
party is asked to admit certain facts. The judge may decide that a party who fails to respond has admitted
those facts. Further, the judge may decide that a party who declines to admit facts that were not fairly
disputable must reimburse the requesting party’s expense to prove them. If the physical or mental
condition of a party is questionable, another party may request that he or she submit to a physical or
mental examination by a physician or other appropriate professional.

In the federal courts, each party to a civil action must disclose certain basic information to other parties
even if the other parties do not request it.

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Stage 5: Pre-trial conferences

In many civil actions, the court holds one or more pre-trial conferences after filing and before trial. While
the purposes vary from judge to judge and depending on when the conference is held, the parties or their
attorneys and the court may meet to accomplish such tasks as: 1) simplifying the issues in the action; 2)
attempting to resolve the matter by arbitration or other alternative to litigation; 3) preparing and
organizing the action for trial; 4) controlling discovery (see Stage 4 on the previous page); 5) scheduling
the trial and any pretrial proceedings; and 6) settling the action.

Stage 6: Motion(s) for summary judgment

After a reasonable time for discovery, a party (most commonly a defendant) sometimes makes a motion
for summary judgment. In an action scheduled for trial by jury (see Stage 7), the defendant’s motion must
make two arguments to the court: 1) based on affidavits or the evidence produced through the discovery
process, no reasonable person could find in favor of the plaintiff; and 2) the defendant is entitled to
judgment as a matter of law. If the court is persuaded by both arguments, the court will conclude that no
trial is needed and will enter final judgment for the defendant. For example, in a “product liability” civil
action brought by Mr. Rivera (the plaintiff) against the chain saw manufacturer (the defendant), the court
might enter summary judgment against Mr. Rivera if the court determines on motion that no reasonable
person could find that the manufacturer’s product was legally defective, so the manufacturer is entitled to
win the case without consideration of any other issues.

Stage 7: Jury selection

State and federal constitutions and statutes provide for a right to trial by jury in many types of civil actions,
particularly those seeking damages. Jury trial is not, however, automatic. Any party may demanda jury trial
if such a right exists, but if a jury trial is not requested, the case will be decided at a bench trial in which
the judge rather than a jury decides the facts.

The process of jury selection is known as voir dire. In many courts, the parties have access to brief
questionnaires completed by prospective jurors. The judge often asks preliminary questions designed to
determine whether any juror should be excused for cause (such as relationship to a party or admitted
inability to be fair in arriving at a verdict). Each party has an unlimited number of challenges for cause,
which are based on mandatory reasons not to seat a person as a juror for the particular civil action and
which must be approved by the judge. Also, each side is usually entitled to make three peremptory
challenges to excuse prospective jurors without having to provide a reason. After all challenges for cause
have been made and ruled upon and after peremptory challenges have been made or waived, a jury (usually
consisting of eight persons and one or more alternate or substitute jurors) is impaneled and sworn.

Stage 8: The trial

If the civil action has not been settled, a trial is held. The trial begins with opening statements by the
attorneys representing the parties, or, in some cases, by the parties themselves (in cases where they are
not represented by counsel). Each party’s attorney summarizes the legal position of his or her client and
how the evidence to be presented will support that position.

The parties then proceed with the presentation of witnesses and of documentary and other physical
evidence. The plaintiff traditionally goes first and bears the burden of proving every element of any claim
asserted by a preponderance of the evidence. A preponderance of the evidence is the greater weight of
the evidence and must be enough to convince a juror that, in light of all the evidence, the plaintiff’s position
is, more likely than not, correct. Thus, in a product liability action, the plaintiff may be required to convince
the jury (or judge in a non-jury trial) that, more likely than not, the defendant’s product was defective and
that the defect caused physical injury to the plaintiff’s person or property.

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In a jury trial, after the opponent’s evidence has been presented, or after all evidence has been presented
by both sides, a party is permitted to make a motion for directed verdict (now called motion for judgment
as a matter of law in federal court). In such a motion, the moving party asks the court to issue an immediate
decision in its favor, without allowing the jury to deliberate, on the basis that a reasonable jury would have
to agree with that party’s position. For example, in the case above involving Mr. Rivera and the chain saw,
the chain saw manufacturer’s representative may move for a directed verdict on the ground that, based
on the evidence presented, no reasonable jury could find the chain saw to be defective. Or, similarly, Mr.
Rivera’s representative may move for a directed verdict on the ground that, based on the evidence
presented, a reasonable jury must find that the manufacturer marketed a defective chain saw that, in turn,
caused Mr. Rivera’s injuries.

If the motion or motions for directed verdict are denied, the attorneys then present their closing
arguments. Before then, the lawyers may ask the judge to instruct the jury about specific matters. By that
time, the judge has let them know which of their requests will be part of later jury instructions to be given,
so that each attorney can use the relevant law and evidence to demonstrate that his or her client deserves
a favorable verdict. If an improper argument is made and is objected to, the judge may instruct the jury to
disregard the argument or may even declare a mistrial.

The court then instructs or charges the jury, mainly about what laws apply to the case. The court reminds
the jurors of their obligations and describes what each party must prove. Some judges give parts of those
instructions at earlier times in the trial.

The jury then retires to deliberate and to reach a verdict. Once inside the jury room, the jury members
select a foreperson who makes sure that discussion is orderly and who reports to the judge in the
courtroom. In most civil actions, the jury returns a general verdict (for example, “For the defendant” or
“For the plaintiff x in the amount of $y”). Occasionally, at a party’s request, the judge will ask the jury to
answer certain specific questions that are relevant to the verdict (for example, “Do you find that the
product manufactured by the defendant y was defective?”).

Stage 9: Post-trial motions

A party who is dissatisfied with the jury’s verdict can make two post-trial motions. The first motion,
traditionally known as a motion for judgment notwithstanding the verdict (now called motion for judgment
as a matter of law in federal court), is similar to the motion for directed verdict that may be made during
trial. The party making the motion (the “moving” party) asks the judge to determine that a reasonable jury
could not have reached the verdict that this particular jury has reached; therefore, the judge should rule
in favor of the moving party “notwithstanding” or contrary to the jury verdict.

A dissatisfied party also may make a motion for new trial. In such a motion, the moving party alleges that,
even if a judgment notwithstanding the verdict is not appropriate in this case, one or more legal errors
were made during trial that entitle the moving party to a new trial.

Stage 10: Final judgment

The trial judge ultimately enters a final judgment, typically either granting (in whole or in part) or denying
the relief sought by the plaintiff and by any other involved parties.

Stage 11: Appealing the court’s decision

A losing or dissatisfied party is entitled to take one appeal without getting permission from either the
trial judge or the appellate court. Such a party ordinarily has only 30 days from entry of the finaljudgment
of the trial court to initiate an appeal. The appealing party must pay the court reporter for a transcript of
the trial, unless some other record satisfactorily reports any claimed errors.

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In deciding civil appeals, appellate courts have the power primarily to act based on errors of law and not
to retry questions of fact already decided by the jury. Appellate courts make their determinations based
on the written record of the trial, the briefs (written legal arguments) of the parties, and oral argument by
the attorneys for the parties. A decision on a first appeal can be taken to a higher court (such as the
Supreme Court of Ohio or the U.S. Supreme Court), but the higher court usually decides which appeals
it will consider and which appeals it will decline even to hear.

CIVIL PROCEDURE

Activity 1 After reading the stages in a civil suit, complete the following table.
STAGE WHAT TAKES PLACE

1. Court Selection Plaintiff selects the court in which to bring suit according to subject-matter
jurisdiction, personal jurisdiction, and venue.

2. Service of process

3.

4.

5.

6.

7.

8.

9.

10.

11.

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CIVIL PROCEDURE
Vocabulary Development

TASK 1: Match the words in box A with their definitions in Box B.

A B

1. plaintiff A. Qualified person to testify in court

2. defendant B. Person who records court proceedings
3. justice and can later make copies of them.
4. witness C. Person who is sued
D. The judge
5. expert witness
E. Official who keeps peace in court and
6. bailiff takes oaths
7. clerk F. Person who testifies in court
8. reporter G. Attorney, lawyer
9. counsel H. Court official who keeps records and
official files.
I. Person who starts a suit

Complete the following sentences with all the possible words that fit.

1. The plaintiff _suit in the U.S. District Ct.

2. It is essential to _ the defendant with a summons.

3. The judge _ _ the objection the counsel made.

4. The witness testimony as to what he had seen.

5. During discovery, the parties are required to evidence.

6. The defendant may pre-trial motions.

7. It is better for both parties to _ an action rather than go to trial.

8. The parties are entitled to make peremptory to excuse

prospective jurors.

9. The jury to reach a verdict.

10. If a party is not satisfied with the judgment, it is entitled to .

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Procedure in Criminal Actions

Like civil actions, criminal cases follow clearly established procedural rules. However,
constitutional and statutory provisions have more control over criminal cases than
civil cases, even though both use court-made rules. Here again, several separate
stages define the progress of criminal cases.

Stage 1: The government begins the case

Unlike civil actions, a private person cannot begin or control a criminal case. A private person can and
should report a crime to the proper federal, state or local government. However, the government decides
whether to pursue the case, regardless of how any private person may feel about the matter. The victim
of a crime is an important witness with important rights, but the government can prosecuteor decline to
prosecute, despite the victim’s contrary wishes. A civil action usually seeks to enforce the plaintiff’s rights
to money or property. A criminal case seeks to punish an alleged offender for violating the government’s
criminal laws.

A criminal case usually begins with an arrest. If a police officer satisfies a judge or other qualified court
official that an alleged offender probably violated that government’s criminal law, the court can issue a
warrant directing the officer to arrest that person.

A police officer has authority to arrest a person without a warrant if the officer has probable cause to
believe that person committed a felony (a serious crime potentially punishable by at least six months in
prison).

Police officers also can arrest a person without a warrant for any misdemeanor (generally, a less serious
offense usually punishable only by a fine or local jail time for six months or less) if the misdemeanor was
committed in their presence, or if they have reasonable cause to believe the suspect committed a certain
misdemeanor, such as theft, assault, menacing, domestic violence or public indecency.

A person who is not a police officer can lawfully detain an alleged offender with a citizen’s arrest only if
the person has reasonable cause to believe that the alleged offender committed a felony offense. However,
the person who makes a citizen’s arrest should promptly deliver the alleged offender to a law enforcement
officer. For example, an ordinary citizen who sees a cashier being robbed has the authority to arrest the
robber. However, a citizen who attempts to make an arrest is putting himself or herself in great jeopardy.
Ordinarily, the non-officer citizen should not intervene at the scene, but should inform the police as soon
as possible. Only a police officer can make an arrest or a misdemeanor.

When the officer believes that the alleged offender will appear for court proceedings without an arrest,
the officer can issue a summons or citation that directs the person to appear in court. In minor
misdemeanor cases (offenses punishable by a fine of no more than $150), including minor traffic violations,
an officer must issue a citation instead of arresting the accused, except where the person fails to show
evidence of his or her identity or has failed to appear in court in a previous case, or requires medical care
and cannot provide for his or her own safety, or if the person refuses to sign the citation. Acitation (a
traffic ticket is an example) is a form of combined complaint and summons, and it informs the defendant
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and when
and where he or she must appear in court.

When a person is arrested, or served a summons or citation in lieu of arrest, the arresting officer must
file a complaint with a court without delay. In citation cases, the citation itself is filed because it includes

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the complaint. Filing the complaint after the arrest (or service of the summons) is necessary because it
formally begins the criminal case in court. Usually a grand jury hears a criminal case after the police have
arrested the alleged offender and a court has conducted a preliminary hearing to decide whether there is
enough evidence to hold that person until the grand jury considers the case (see Stage 3: Bindover and
indictment in felony cases). However, a grand jury can begin a criminal case by indicting an alleged offender
without any previous arrest or other proceedings.

A grand jury is made up of citizens who review the information given to them and determine whether a
certain individual should be formally charged with committing a certain offense or offenses. An indictment
is a formal accusation charging a named person with a specific crime. The grand jury examinesevidence
about the crime and the evidence allegedly involving the suspect in the crime, and determines whether the
evidence warrants formally indicting the person for the offense. The indictment is the formal charge. The
grand jury itself does not decide whether the alleged offender has committed any crime. Rather, it
investigates information and decides whether a person should be formally accused of an offense.

When a grand jury indicts someone without a previous arrest, the indictment begins the criminal case.
As in cases begun by an arrest and the filing of a complaint, the indictment must be served to the defendant
through a warrant or arrest, or summons and delivery of the summons.

In a few relatively rare cases, the prosecutor can begin a criminal case by filing in court a bill of information,
a formal accusation made by the county prosecutor that may be used instead of an indictment by a grand
jury. Because a person has a constitutional right to indictment by grand jury in serious cases, the suspect
can be tried on a bill of information only with his or her consent. Consequently, bills of information usually
are filed as part of a plea bargain agreement between the prosecutor and the defendant.

Stage 2: Arraignment and bail Arraignment

Whether a criminal case begins with an arrest, a summons, or an indictment, the court begins the case
with an arraignment. An arraignment is a (usually) brief proceeding at which the court confirms that the
accused person understands the charge and his or her rights as a defendant. Usually a court arraigns the
defendant very shortly after his or her arrest. An arraignment follows an indictment, even if another court
has previously arraigned the defendant after his or her arrest and before a grand jury has considered the
case. For an arraignment after an indictment, the judge should read the indictment (or state the substance
of the charge) to the defendant. Copies of the indictment are provided to the accused.

At the time of the arraignment, the judge is required to ensure that the defendant understands the
following:
• the nature of the charges;
• the right to retain counsel and to a reasonable continuance of the arraignment proceedings to secure
counsel, regardless of how the defendant intends to plead;
• the right to have the court appoint counsel if the defendant cannot afford counsel;
• the right to bail if the offense allows it;
• the right to refuse to make a statement at any point in the proceeding; and
• that any statement made can and may be used against the defendant by the prosecution.

For any arraignment, the judge will ask the accused to enter a plea. There are several pleas an accused can
make during arraignment or at any later stage of the case:
• Not guilty – The accused denies the charges.

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• Not guilty by reason of insanity – While the accused may have committed the criminal act, the defendant
is not subject to criminal liability because, at the time the offense was committed, the person did not know
the wrongfulness of his or her act due to a severe mental disease or defect. It is also true that a defendant
may not be brought to trial if he or she is incapable of understanding the nature of the criminal case
proceedings or assisting in his or her own defense. In such cases, the court may order treatment, and the
probate court may issue civil commitment orders. The plea must be made in writing.
• No contest – The accused does not admit guilt, but admits the truth of the facts in the accusation (the
no contest plea is sometimes used where the accused realizes that a guilty plea could be used against the
accused in a civil suit).
• Guilty – The accused admits he or she committed the crime.
The court will not accept pleas of guilty or no contest unless it is satisfied that the plea is voluntary, that
the accused is aware of his or her rights and fully understands the possible consequences of the plea. A
defendant has the right to waive the reading of the indictment and enter a plea without a formal reading.

In some cases, the accused may offer to plead guilty to a lesser offense through a process called plea
bargaining. A defendant may accept a plea bargain agreement when he or she has some doubts about his
or her chances of winning at trial. The defendant hopes, by pleading guilty to a less serious offense, to
secure a lesser sentence that might involve some form of community control rather than prison, in return
for saving the state the time, expense and uncertainty of a trial. The prosecution may accept a plea bargain
if it has some doubts that it can obtain a conviction on the offense charged in the indictment,or if it believes
that it is more economically feasible and in the interest of justice to accept a lesser plea. Ifa guilty plea is
the result of a plea bargain, information supporting that agreement must be filed with the court or read
into the transcript of the proceeding.

At the arraignment, the judge will also set bail to ensure the defendant’s appearance at any later
proceedings, including a later trial.

Bail
When a person 18 or older is arrested (or when a juvenile court transfers a person under 18 for trial in
adult court), he or she is usually entitled to be free on bail pending trial, provided he or she satisfies any
conditions imposed by the court. In general, bail is a deposit of money or property with the court, or a
promise to pay or forfeit money or property to the court, designed to guarantee that the accused will
appear at court for all proceedings. Often, bail is provided through a kind of insurance policy called a bail
bond. An arrested person who qualifies for bail must be given the opportunity to be free on bail as soon
as possible, although different bail terms or guarantees of appearance in court may be required. Bail is
set by the court in one of these forms:
• Personal recognizance – A defendant’s written promise to appear.
• Unsecured bail bond – A defendant’s promise to appear, coupled with a personal, unsecured promise
to pay a certain amount of money if he or she does not appear.
• A 10-percent bond – A deposit of 10 percent of the face amount of the required bond plus a written
promise to forfeit the deposit and pay the remainder of the bond if the defendant fails to appear. For
example, if the bond were $2,000, the defendant would deposit $200 and promise to forfeit and pay the
entire $2,000 if he or she fails to appear. If the defendant appeared throughout the case, 90 percent of the
$200 deposit, or $180, would be returned to him or her.
• A surety bond – A bond secured by real estate, securities, or cash, sometimes provided by a bail
bondsman.

The amount of a bond or bail for misdemeanors is usually set by the court and published in a bail schedule.
In such cases, bail can be paid at the police station without a hearing before a judge. In felony cases, the
accused is usually held until the initial appearance in court, at which time the judge sets bail

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and the conditions of release pending trial. These conditions may include house arrest, restrictions on
travel, orders not to contact a victim plus any other conditions the judge believes are required to ensure
the public safety and the defendant’s appearance in court. It is important to remember that bail is not a
substitute for trial. If a person does not appear as required by the court, he or she forfeits any deposit, is
liable on any promise to pay bail and is subject to re-arrest and detention until trial. Additionally, failure to
appear on a personal recognizance not only subjects the accused to re-arrest and detention, but is also a
separate offense in itself.

Stage 3: Bindover and indictment in felony cases

A person arrested for a felony is entitled to a preliminary hearing within a short time period. This hearing
is held before a municipal court or county court judge or magistrate, unless the person waives the right to
a hearing in writing.

The preliminary hearing is not a trial. Its purpose is to allow the court to examine the evidence against the
accused and determine if it is sufficient to warrant further proceedings. (Editor’s note: Generally, under
Ohio law, a magistrate has the authority to act as a judge under limited circumstances. The term “judge”
will be used hereafter to denote both judge and magistrate.) If there is no probable cause to believe any
offense was committed, or no probable cause to believe the accused committed the offense (even though
an offense was committed by someone), then the case against the accused will bedismissed. A finding of
probable cause must be based on credible evidence. If the judge finds probable cause to believe both that
a felony was committed and that the accused committed it, the judge must bind over the accused (transfer
the case) to the grand jury for further action. If the judge finds the evidence supports only a misdemeanor
charge, the case will stay in that court. The accused can waivethe preliminary hearing, in which case he
or she is automatically bound over to the grand jury. The judge will set bail to ensure the defendant’s
appearance in the event that the grand jury hands down an indictment. When a person accused of a felony
is bound over to the grand jury, the evidence against the accused is presented by the county prosecutor
and examined by the grand jury. If the grand jury finds insufficient evidence to believe a crime was
committed or, if one was committed, that the accused did not commit it, then it will return a no bill,
meaning the case is dismissed.

A grand jury is composed of nine jurors and up to five alternates who have the power to inquire into any
criminal offense committed in their county. The regularity with which grand juries are convened varies
from county to county. In some larger counties, one or more grand juries may be in continuous session.

If at least seven members of the grand jury find enough evidence to believe that a crime was committed
and that the accused committed it, then the grand jury will return a true bill, meaning it will return an
indictment against the accused. The grand jury may indict for any offense the evidence warrants, regardless
of the charge for which the case was bound over. Even though the accused was bound over for a felony,
the grand jury may indict for a misdemeanor if the evidence supports only a misdemeanor offense, and
vice versa. For example, if the evidence only shows that the defendant stole property worth only $25, he
or she can be indicted for the misdemeanor offense of petty theft.

If, on the other hand, the defendant stole property worth more than $500, he or she can be indicted for
the felony offense of theft. In essence, the preliminary hearing and the grand jury are screening devices.
The purpose of each is to ensure trials are held on well-grounded accusations. Indictment by a grand jury
in serious offenses is a right guaranteed by both the U.S. and Ohio constitutions. A preliminary hearing is
a right given by state statute.

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Stage 4: Pleadings, motions, discovery, and pre-trial in criminal cases

Unlike civil cases, the defendant in a criminal case does not file a written pleading (an answer) in response
to the charge; the defendant’s oral plea in court serves the same function. However, when the defendant
intends to rely on the defense of alibi, the defendant must file written notice with the court of the place
the defendant claims he or she was when the offense occurred. In essence, the defense of alibi states, “I
was somewhere else, so I couldn’t have committed the crime.”

There are several requests, challenges and objections the accused can make by filing a written motion
asking for relief. For example, a defendant can ask for a bill of particulars, which is a more detailed
statement of the facts of the alleged offense; or the defendant may object that the accusation does not
properly charge an offense or is otherwise defective; or he or she may ask that certain evidence be
suppressed on the grounds that it was obtained in violation of the defendant’s constitutional rights. For
example, the defendant may challenge the basis upon which a police officer searched his or her home,
vehicle or person. Many other defenses, objections or requests can be made by motion.

Criminal discovery is more limited than the discovery in civil cases. In a criminal case, the defendant can
(but is not required to) initiate discovery by asking the prosecutor to provide:
• statements made by the defendant or a codefendant to the police;
• the defendant’s prior criminal record, if any;
• documents and other tangible evidence, which may be used during the trial;
• reports of photographs, examinations and tests;
• the names and addresses of witnesses, unless the court bars such disclosures because the information
may subject the witness to harm; and
• evidence that is favorable to the defendant.

When the defense makes such a request, the prosecution is then permitted to ask for corresponding
disclosure from the defense. The prosecution may not initiate discovery requests unless the defense has
first made similar discovery requests.

Under certain rare circumstances, the deposition of a witness may be taken.

It is important to point out that a defendant’s deposition cannot be taken because defendants cannot be
forced to give testimony. Defendants and witnesses have the constitutional right (under the Fifth
Amendment to the federal Constitution and Article 1, Section 10 of the Ohio Constitution) to refuse to
say anything that might tend to incriminate them.

Pre-trial conferences are used in criminal cases for discussion of potential evidence problems, for possible
plea negotiations, and to confirm the trial date. In a criminal case, the pre-trial conference generally involves
a review of the evidence, time necessary for trial, whether the indictment charges the correct offense,
defenses raised, a schedule for the trial and any proceedings before the trial, and the possibility of a plea.

Stage 5: The trial

Like civil trials, the main steps in criminal trials include:
• selection of a jury;
• opening statements by the attorneys;
• presentation of witnesses and evidence (in a criminal trial, the state always goes first, and the defense
follows; the state then may offer rebuttal evidence if the prosecutor wishes to do so);
• closing arguments by the attorneys;
• instructions on the law by the judge to the jury; and

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• deliberation and decision (verdict) by the jury.

The goal of any trial is to find the truth. The theory is that, when each party in a dispute presents evidence
and argument about his or her side of an issue before a judge and jury, the truth will be discovered. To
this end, parties act as “adversaries” or opponents during the trial. The role of an attorney in a trial is to
represent his or her own client’s interests as fully as possible. When “opposing” attorneys on both sides
do this, it is assumed that the truth of the matter will become clear to the judge and jury. The role of the
judge is to control the trial as a neutral referee and to rule on questions of law. The role of the jury is to
decide who to believe and what happened. Each party present has the right to present evidence and
argument.

Burden and standard of proof

In a criminal case, the state must prove the defendant’s guilt beyond a reasonable doubt. This is a much
more stringent burden of proof than in a civil case. Reasonable doubt is present when the jurors, after
they have carefully considered and compared all the evidence, cannot say they are firmly convinced of
the truth of the charge.
It is a doubt based on reason and common sense. Reasonable doubt is not mere possible doubt, because
everything relating to human affairs or depending on moral evidence is open to some possible or imaginary
doubt. “Proof beyond a reasonable doubt” is proof of such character that an ordinary person would be
willing to rely and act upon it in the most important of his or her own affairs. If the jurors believe that the
defendant is probably guilty, but they have a reasonable doubt, they must find the defendant not guilty.
Every defendant is presumed to be innocent until the state proves, beyond a reasonable doubt, that the
defendant committed the offense.

Jury and non-jury cases

While the right to trial by jury applies in many situations, it does not
apply in all cases.

Persons accused of minor misdemeanor offenses are not entitled to a

jury trial.

In criminal cases involving “serious offenses” where a jail sentence may be imposed, a trial by jury is
automatically provided unless the accused waives the right to a jury in writing. Serious offenses include
all felonies and those misdemeanors punishable by more than six months’ imprisonment. If the offense is
a petty offense that could be punished by no more than six months’ confinement, the defendant must
demand a jury trial within certain time limits.

When a civil or criminal case is tried without a jury, it is tried to the judge alone. This is commonly called
a bench trial. In capital cases (criminal cases in which death is a potential penalty) a three-judge panel tries
the case if a jury is waived.

Juries in criminal cases consist of 12 jurors in felony cases and eight jurors in misdemeanor cases.

At the beginning of the trial, a bailiff, a court official who acts as an aid to the judge, opens court. The bailiff
will ask everyone to stand when the judge enters the court and to be seated when the judge sits.

The judge then calls the case by name (State v. Blue, for example) and asks the attorneys for each side if
they are ready to proceed. In jury trials, the first step is the selection of the jurors.

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Jury selection
The process of choosing jurors is called voir dire. During voir dire, attorneys for both the plaintiff and
the defendant interview potential jurors. In many courts the judge begins a preliminary interviewing process
before permitting the attorneys to question prospective jurors. The purpose of voir dire is to select
individuals for the jury who can be fair and impartial. Each side in a case can reject potential jurors through
a challenge for cause or a peremptory challenge.

Prospective jurors may be challenged for cause for any of a number of specific reasons. For example, a
prospective juror may be challenged for cause if he or she:
• has been convicted of a crime, usually a felony, which is an automatic disqualification;
• has served as a member of a petit jury in the same case (usually a situation where a new trial has been
granted);
• has been subpoenaed as a witness in the case;
• has a relationship by blood or marriage to either party, or to the attorney for either party;
• has a legal proceeding pending with one of the parties to the case;
• does not speak or understand English well enough to follow the proceedings;
• discloses information showing that he or she is unable to be a fair and impartial juror.
There is no limit to the number of prospective jurors who may be challenged for cause. Each time a
prospective juror is excused, another will be interviewed.

When each side has no more challenges for cause, each side may exercise a limited number ofperemptory
challenges. No reason is needed for peremptorily excusing a juror, but neither a prosecutor nor a defense
attorney may ask to excuse a juror for an improper reason, such as race.
In criminal cases the number of peremptory challenges allowed each party is six in capital cases, four in
all other felony cases and three in misdemeanor cases.

If the prosecutor or defendant does not use a particular peremptory challenge, he or she loses or waives
that peremptory challenge, thus reducing the number of peremptory challenges at his or her disposal.

When all challenges are used or waived, the jury is complete and takes an oath to perform its duty to
render a true and just verdict.

Opening statements
After the jury is selected and sworn in, the attorneys for each party make their opening statements,
beginning with the prosecutor and followed by the defendant’s attorney. The opening statement is an
outline of the facts of the case, what the party expects to prove, and the evidence by which the party
expects to prove it.

Witnesses and evidence

The prosecution then presents its evidence, after which the defendant may present any additional evidence.
If the defendant presents any evidence, the prosecutor may present rebuttal evidence. A defendant in a
criminal case has no duty to present any evidence. Rather, the state is obligated to prove that the defendant
is guilty, whether or not the defendant presents any evidence.

Evidence is almost always presented through witnesses. In fact, witnesses are so important that they can
be compelled to attend the trial by means of a subpoena. A subpoena is a court order commanding a
witness to appear in court and provide testimony. Anyone who disobeys a subpoena is in contempt of
court, and may be fined or jailed, or both.

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Witnesses testify about events they saw or heard, report on the tests or investigations they conducted,
or testify about other relevant matters. Expert witnesses sometimes are used to give professional opinions
about elements of a case. For example, a coroner may testify that a gunshot at close range caused the
victim’s death in a murder case. Even tangible evidence, such as a murder weapon or a document, must be
introduced through the testimony of a witness.

Evidence may be direct or circumstantial.

Direct evidence is evidence that was seen, touched or heard by a witness directly. For example, if a witness
sees rain coming down, he or she has direct evidence that it is raining. Circumstantial evidence comes
from a reasonable conclusion of fact that a witness infers from direct evidence. An example of
circumstantial evidence is the testimony of a witness who noted that, upon exiting a building, everything
was wet and water was running down the street into the gutters. The testimony offers circumstantial
evidence that it recently rained, even though the witness did not see or feel the actual rain. The other side
in the case could introduce evidence to rebut this circumstantial evidence. They could call a city street
maintenance supervisor to testify that the operator of a city water tanker sprayed the entire area while
preparing the street for a street-cleaning machine. The jury will draw its own conclusions based on
testimony of the witnesses and can choose to ignore all or part of the testimony of any witness. Contrary
to popular opinion, circumstantial evidence is often reliable evidence and can be morepersuasive than
direct evidence. Even criminal convictions can be based on circumstantial evidence.

The parties are not free to present any evidence in any way they please, but must abide by the Ohio Rules
of Evidence as published by the Supreme Court of Ohio. The main purpose of the Rules of Evidence is to
ensure that evidence is competent, relevant and material to the case being tried to prevent a jury from
considering unreliable or unfairly misleading evidence.

An example of evidence that usually cannot be presented would be a defendant’s prior criminal record.
Such evidence offers no proof that the defendant committed the particular crime for which he or she is
standing trial and may only serve to prejudice the jury against the defendant. Similarly, a witness generally
cannot testify to what another person said he or she saw. This kind of testimony is called hearsay. Hearsay
is not reliable since there is no opportunity for the opposing party to examine the person who allegedly
made the statement.

The court will not permit the jury to consider evidence that has nothing to do with the case at hand. For
example, in a rape case where the defendant denies any sexual contact with the victim, the court will not
permit evidence that the victim was sexually promiscuous with others. The issue is whether the defendant
forcibly engaged in sexual relations with the victim, regardless of whether the victim willingly engaged in
sexual activity with others. Similarly, in a trial for murder committed in the course of a robbery, the judge
would not permit the jury to hear evidence that the victim had terminal cancer and probably would have
died in a month even if the victim had not been shot and killed during the robbery.

One of the judge’s most important functions in a trial is to rule on whether certain evidence is admissible.
Generally, a judge will not keep evidence from being heard unless one of the party’s attorneys objects
and asks that the evidence be excluded. The judge carefully considers matters such as this, since the
improper admission or exclusion of evidence may be so prejudicial as to affect the outcome of the trial,
and cause an appeal to the court of appeals. In criminal cases, the failure by defense counsel to object to
improper evidence may result in the reversal of a conviction, based on counsel’s incompetence.

For each witness, the side that calls that witness conducts direct examination. When that side concludes
its questions, the other side has a right to cross-examine that witness. The side that called the witness

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may ask redirect examination questions after any cross-examination, and the other side may then ask re-
cross examination questions. The judge may then permit either side to ask further questions. The right
of cross-examination is considered so important that it is guaranteed in both the U.S. and Ohio
constitutions.

The chief purposes of a cross-examination are to place a witness’s testimony in perspective, to test its
accuracy, and to bring out information not offered during direct examination.

For example, if woman who is a credible witness in a murder case testifies that she saw the defendant
shoot the victim, her testimony would, on its own, be very damaging to the defense. However, her
testimony takes on a different light when, upon cross-examination, this witness testifies that she was a city
block away from the shooting, it was 11 p.m., and that she regularly wears glasses for night and distance
vision, but was not wearing them that night.

Closing arguments
Once all the evidence has been presented, the attorneys deliver their closing arguments to the jury. The
prosecutor goes first, because the prosecution has the burden of proving the case. When the prosecutor
is finished, it is the defense attorney’s turn. The prosecutor may reserve part of his or her time for rebuttal
after the defense attorney is finished.

In general, each attorney uses the closing argument to summarize the evidence, commenting on it in a way
that shows his or her client in the most favorable light. Each attorney may talk about the facts and allthe
inferences that can properly be drawn from them. An attorney may not talk about evidence that was not
presented, or argue about points that do not apply to the case. If an attorney uses improper material in a
final argument, the opposing attorney may object and the judge may instruct the jury to disregard what
was said. If the offending material is seriously prejudicial, the judge may declare a mistrial.

Jury instructions
When the attorneys have completed their closing arguments, the judge instructs or charges the jury.
This means the judge explains to the jury their duties as members of a jury and the law applicable to the
case.

Before the closing arguments, the attorneys may ask the judge to give specific instructions on the law as
it applies to the evidence. If these instructions are proper and would not have been covered by the judge
in his or her charge to the jury, the judge will include them. The charge may take minutes or, in complicated
cases, it may take hours.

Verdict
After the judge charges the jury, the jurors are escorted to the jury room to make their
decision or verdict. Once inside the jury room, the jury selects a foreperson to make
sure that the discussions are orderly and that each juror gets ample time to speak, and
to report to the judge in the courtroom. Once a foreperson is selected, the jury begins
deliberations about the facts of the case.

The bailiff is outside the jury room and allows no one to enter or leave the room without the express
permission of the judge. Sometimes the jury’s deliberations go on for several days. In such cases, the jurors
may be allowed to go home for the night with an order to return the following day to resume deliberations.
Or, in certain high profile cases, the jury may be sequestered, that is, housed at a local hotel under the
supervision of the court bailiff, with security provided by deputy sheriffs. In a capital murder case, the
jurors will be sequestered if they are unable to reach a verdict by the end of the day. In

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all cases, the jurors are told not to discuss the case with anyone until after the verdict is announced in
court. Even then, the jurors have no obligation to discuss the case with anyone else.

Usually, the court will give jurors written forms for each of the possible verdicts in the case. In a criminal
case, the verdict must be unanimous. In many cases, the court may give the jury detailed information about
specific questions (known as interrogatories) pertaining to the case.

On rare occasions, the jury becomes hopelessly deadlocked when the jurors cannot agree on a decision.
This is called a hung jury, and if the judge is convinced that the jurors will not be able to reach a verdict,
the judge declares a mistrial. The case may have to be retried with a new jury, unless the prosecutor
decides to dismiss it. If the jurors agree on a decision, they will sign the appropriate verdict form and
return to the courtroom where the verdict is announced either by the judge, by the jury foreperson, by
the clerk of the court or by the court bailiff.

Attorneys for the prosecution or the defendant may ask that the jurors be polled individually to determine
if the announced verdict really is each one’s verdict. If each juror agrees with the verdict, the verdict is
accepted, the jury is dismissed and
the trial is over.

Stage 6: Sentencing and motions after the trial

Sentencing in criminal cases
In criminal cases, the sentence is part of the judgment. In minor criminal cases, sentencing usually takes
place immediately following a jury verdict of guilty or the judge’s finding that the offender is guilty. In
serious criminal cases, sentencing is often deferred pending a pre-sentence investigation to gather
information on the case and on the offender’s background. The judge can then determine the proper
sentence according to sentencing guidelines established by the Ohio legislature. A person convicted of or
pleading guilty to a felony will not be considered for probation (now called community control sanctions)
without a pre-sentence investigation completed by the adult probation department of the court. (See Part
IV, “Criminal Law,” for a schedule of Ohio’s felony and misdemeanor sentencing guidelines.)

Proceedings after the trial

Following a conviction, the defendant may file a motion for a new trial or for judgment notwithstanding
the verdict, that is, a judgment that sets aside the jury’s guilty verdict in favor of a judgment for the
defendant. The judge should deny the motion for judgment notwithstanding the jury’s verdict unless no
reasonable person could find that the prosecution proved the charge beyond a reasonable doubt, when
viewing the evidence in the light most favorable to the prosecution. The judge should deny the motion for
a new trial unless a serious error denied the defendant a fair trial, the verdict is clearly contrary to the
evidence, or the defendant provides newly discovered evidence that was unavailable at the trial and that
would probably change the result.

Appeal
In criminal cases, a person who is convicted may appeal, but the state’s (prosecution’s) right of appeal is
very limited because of the constitutional protection against double jeopardy. In general, double jeopardy
means a person cannot be tried or punished more than once for the same offense. (See “Double Jeopardy”
in Part IV, “Criminal Law.”)

Appeals are generally made on questions of law rather than questions of fact. (The trial process, not the
appeal process, is best equipped to determine facts.) Appellate courts usually accept the factual
determinations of trial courts unless they are clearly not supported by credible evidence, concentrating
instead on whether the trial court incorrectly interpreted or applied the law.

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For a trial court decision to be appealed, the decision must be known as a final order. This prevents what
might be the continual interruption of the trial process if any and all court decisions before and during the
trial could be appealed. In a criminal case, an appeal could be made only after the filing of the judgment
journal entry that imposes sentence upon the defendant. However, in certain circumstances, a pre-trial
ruling by a court that excludes evidence offered by the state may be appealed, and the trial suspended
pending an appellate court decision.

Generally, a party has 30 days from final judgment or order to file an appeal. Appeals filed after that time
are allowed only in criminal cases with the appellate court’s permission (called leave of court). Permission
to file a late appeal is granted only when the appellant (the party filing the appeal) can show a good reason
for failing to meet the regular deadline. The right to appeal is lost if the appeal is not filed within the time
allowed or leave to file a late appeal is not granted.

Other post-trial proceedings

In criminal cases, there are a number of other proceedings that may be held months or years after the
trial.

If an offender is placed on community control sanctions, but then violates one of the conditions of the
sanctions, the court may hold a hearing to determine if the sanctions should be revoked and the offender
sent to jail or prison. Similarly, when a person is released on parole from prison and violates the parole
conditions, a hearing may be held to determine if the parole violator should be returned to prison. Also,
the trial court may hold a post-conviction relief proceeding to determine the validity of later claims that
the offender’s constitutional rights were violated.

Retrieved from:
https://www.ohiobar.org/General%20Resources/LawandYou/TLAY_Chapter03.pdf

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Criminal Procedure

ACTIVITY 1: After reading the stages in criminal actions, complete the flow chart in pairs.

Now, explain what happens in each stage.

1.

2.

3.

4.

5.

6.

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Activity 2: Find the following terms in the text and explain their meanings

prosecutor deadlocked foreperson probation

defendant hung jury dismiss bail

hearsay mistrial conviction parole

WRITING: Now, create a story about Gary Mullins (person accused of murder and robbery)
using all of the words from the box and the stages in criminal actions.

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CRIMES: VOCABULARY

1. arson – using fire to destroy something

2. assassination – killing a leader or important person (usually for political reasons)

3. assault – attacking or intentionally hurting another person

4. bribery – paying money to influence a government official

5. burglary – breaking into a house or building, usually to steal something (one kind of
“theft”)

6. embezzlement – stealing from an employer (one kind of “theft”)

7. forgery – writing another person’s signature (on a contract or check, for example)

8. fraud – lying or making a false statement that causes harm to another person

9. hijacking – taking control of an airplane or other vehicle by force

10. kidnapping – taking a person (often a child) and demanding money

11. manslaughter – killing another person without premeditation (without planning)

12. murder – killing another person with premeditation (with planning)

13. perjury – lying when testifying in court

14. pick-pocketing – stealing money by taking it from other people’s pockets (one kind of “theft”)

15. robbery – using force or threats to directly steal money from another person (one kind of “theft”)

16. shoplifting – stealing items from a store

17. smuggling – sneaking illegal items from one country to another country

18. terrorism – using threats or violence against innocent people for

political/religious reasons

19. theft – stealing from others (includes burglary, embezzlement, pick-pocketing, robbery, etc.)
20. trespassing – going onto another person’s property without
permission
21. vandalism – destroying another person’s property

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arson embezzlement bribery

forgery fraud burglary
manslaughter hijacking assault
assassination kidnapping

ACTIVITY 3: Fill in the blanks below with words from the list above.

1. The person who broke into a house and stole a TV was convicted of .

2. The woman who lied on her income tax forms was charged with _.

3. The men who used knives to take over an airplane were guilty of _ _.

4. The man who attacked me and hit me over and over was convicted of .

5. The woman who stole money from her employer was charged with .

6. The businessman who offered money to the politician is being accused of .

7. The person who got in a fight with his friend and killed him committed .

8. The man who burned down his house for the insurance money is charged with insurance fraud and
_.

9. The person who took my children and demanded that I pay $1,000,000 was convicted
of .

10. I signed my mom’s name on one of her checks, so I was charged with .

11. The man who shot the president was convicted of

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murder theft smuggling vandalism

perjury robbery terrorism

pick-pocketing shoplifting trespassing

ACTIVITY 4. Fill in the blanks below with words from the list above.

1. The person who lied in court was charged with .

2. The man who stole people’s money in the train station was accused of .

3. The man who used a gun to steal people’s money in the park was convicted of
.

4. Robbery, burglary, and pick-pocketing are all kinds of .

5. The juvenile who painted his name on my neighbor’s house was charged with _ .

6. The woman who stole cigarettes from the convenience store was convicted of
.

7. The men who hijacked the plane and flew it into the church were guilty of
.

8. The person who killed his boss after planning for several weeks is being charged with
.

9. The man who tried to take drugs into Brazil was convicted of
.

10. The kids who were playing on my lawn were acquitted of

because there was not enough evidence to convict
them.

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COURTROOM PROTOCOL

The Opening Statement

1. The Opening Statement is first given by the plaintiff or

prosecution, then the defense. Opening Statements should:
o Outline the case-provide a framework to analyze the
case
o State the fact of the case that you expect to prove
o Explain facts which may seem to be against you
o (defense in criminal cases) stress the state’s burden of proof, i.e. show guilt beyond a
reasonable doubt
o Not be argumentative
o Not make any conclusions
o Not refer to evidence if its admissibility is doubtful because it may violate one of the rules of
evidence

2. Begin with a formal address to the judge: “May it please the court, Your Honor, Counsel, my
name is , counsel for _ _ in this action.”

3. The Opening Statement, which outlines the case, may be presented in chronological order or
other orderly sequence of events.

4. Proper phrasing includes:

o The evidence will indicate . . .

o The facts will show . . .
o Witnesses will present evidence to show . . .
o Witness A will testify on the state’s/plaintiff’s behalf that . . .
o Witness B will tell you . . .

Direct Examination

1. Direct Exam is conducted by the attorneys of their own witnesses. It should be designed to get
facts from the witnesses which are understandable and, hopefully, to convince the Court to accept
your position. Questions on direct exam should:

o Make the witness seem lie he or she ought to be believed

o Keep the witness “in control” (prevent the witness from rambling since this might
weaken the effect on his or her evidence)
o Not be leading (where the attorney is telling the story for the witness)

2. The attorney calls the witness for direct examination:

o “Your honor, we call _”

After the witness is sworn in by the bailiff or clerk, some introductory questions should be asked.
o Name, address and occupation
o Length of residence or present employment, if this information is relevant in establishing
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o Further questions about professional qualifications if you wish
to qualify the witness as anexpert.

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3. Examples of proper questions on direct examination:

o Directing your attention to (date) could you please tell the court what occurred?
o What happened then? Or what did you see?
o How long did you see . . .?
o Did John (the defendant) say anything about . . .?
o How long have you worked with Ms. Smith?

4. Conclude your direct examination

“Thank you, . That will be all Your Honor.” (The witness remains on the stand for
cross exam by the opposing attorney.)

Cross Examination

1. Cross exam follows the opposing attorney’s direct exam of his or her own witness.

The purposes of cross exam are:

o To test the witness’ trustworthiness and believability in order to cast doubt on the validity of
the witness’ story
o To establish some of the facts of the cross-examiner’s cases wherever possible

2. Cross exam should:

o Use leading questions which are aimed at getting “yes” or “no” responses
o Never include questions to which the attorney does not know the answer

3. Proper phrasing of questions include:

o Isn’t it a fact …?
o Wouldn’t it be fair to say that . . .?
o On (date), when you made a statement in your attorney’s office you said that ... didn’t
you?

4. Cross exam should conclude with, “Thank you, . That will be all, Your Honor.”

Closing Arguments

Closing arguments should:

o Begin with a proper address to the court

o Persuasively and forcefully summarize the strong points from witness testimony
o Note flaws in the testimony which support the claims for your side
o Be well-organized (it may be wise to present the strongest point at an outset and again at the
end of the closing argument)
o Prosecution in criminal cases –emphasize that guilt beyond doubt was shown by the state, or,
o Defense in criminal cases-raise questions about the weight of the evidence
o Be presented so that notes are barely necessary and eye contact can be established
o Be emotional and strongly appealing (unlike the “neutral” opening statements)

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RULES OF EVIDENCE

In trial, the party who initiates the lawsuit has the “burden of
proof” of his or her case; that is, he or she must convince the
judge or jury that facts exist justifying the imposition of legal
liability. If the party bringing the case is unable to carry that
burden of proof, the defendant wins. In a criminal case, that
burden is much heavier; the prosecution must convince the
judge or jury “beyond a reasonable doubt” that the defendant
violated the law. In a civil case, on the other hand, the plaintiff must only convince that fact finder by
a “preponderance of the evidence” that it is more likely than not that the defendant acted in ways that
subjected him or her to legal liability.

Elaborate rules are used to regulate the admission of proof (i.e., oral or physical evidence). These rules
are designed to ensure that both parties receive a fair hearing and to exclude any evidence deemed
irrelevant, incompetent, untrustworthy, or unduly prejudicial. If it appears that a rule of evidence being
violated, an attorney may raise an objection to the judge. The judge then decides whether the rules
have been violated and whether the evidence must be excluded from the recordof the trial.

Formal rules of evidence are quite complicated and differ depending on the court where the trial
occurs. For purposes of mock trial programs, the rules of evidence have been modified and simplified.

A. WITNESS EXAMINATION

1. Direct Examination (Attorneys call and question their own witnesses)

a. Form of questions: Generally, witnesses may not be asked leading questions by the
attorney who calls them. A leading question is one that suggests to the witness the answer
desired by the examiner, and often suggests a “yes” or “no” answer. Direct questions are
usually phrased to evoke a more substantive answer. However, the witnesses should not
be allowed to give long, uncontrolled responses to direct questions.

Examples of direct questions:

o Mr. Bryant, when did you first meet Angela?
o Mr. Bryant, how long have you been employed by the factory?
o Directing your attention to Saturday, October 25, could you please tell the court
what you observed?

Examples of leading questions:

o Mr. Hayes, isn’t it true that you dislike Daryl Bryant?
o You were not in the building that day, were you?
o Mr. Hayes, didn’t you see Jack put the money into the briefcase?

b. Evidence about the character of a party to the case: Evidence about the character
of a party may not be introduced unless that person’s character is an issue in the case.

Example: In a civil divorce trial, whether one spouse has been unfaithful to another may be a relevant
issue, but it is not an issue in a criminal trial for theft. Similarly, a person’s violenttemperament may be
relevant in a criminal trial for battery, but it is not an issue in a civil trial for breach of contract.
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c. Refreshing a witness’ recollection: If, during direct

examination, a witness cannot recall a statement that he or she made in an earlier affidavit
or even pre-trial notes, the attorney may help the witness to remember. The attorney
must first mark and identify the statement as an “exhibit” and show the other side a copy.
However, the statement need not actually admitted into evidence in this situation.

Example: A witness sees a purse-snatching, offers to testify and gives a statement of events to the
attorney. At trial, the witness has trouble remembering the events he or she saw. The attorney may
help the witness remember by showing him or her statement.

2. Cross Examination (questioning og other side’s witness)

a. Form of questions: Attorneys should ask leading questions when cross-examining

the opponent’s witness (i.e., questions should be phrased to evoke a “yes or “no”
answer, rather than a narrative one).

Examples of leading questions:

o Ms. Bryant, you considered marrying Georges Hayes, didn’t you?
o Isn’t it true that you are hard of hearing, Ms. Short?
o Mr. Jones, don’t you generally prefer to avoid loud, crowded taverns?

b. What questions may be asked: Cross examination is not limited and may cover
the subject matter of the direct examination, matters affecting the credibility of the
witness and additional matters, otherwise admissible, that were not covered on direct
examination.

c. Impeachment: On cross examination, the attorney may want to show that the
witness should not be believed. This is called impeaching the witness. It can be done
by asking the witness questions about:

o Prior bad conduct that makes his or her credibility (trustworthiness) seem
doubtful and shows that the witness should not be believed;
o Prior criminal convictions of the witness, if within the past ten years for a
felony or a crime involving moral turpitude, and the court determines that
the value of this evidence outweighs its prejudicial effect;
o Prior statements made by the witness which contradict his or her testimony
at trial and point out the inconsistencies in his or her story;
o The bias of prejudice of the witness, that is, showing that the witness has
reason to favor or disfavor one side of the case; or,
o The accuracy of his or her sensory perceptions, which is the witness’ ability to
see, hear, or smell, or the accuracy of the witness’ memory.

Examples:
o Prior bad conduct: “Isn’t it true that you have had your credit cards revoked
for failure to pay your bills?” or “Isn’t it true that you often exaggerate events?”
o Past conviction: “Isn’t it true that you were recently convicted of armed
robbery?”
o Prior inconsistent statement: Bill Jones testifies at trial that Joe’s car was
travelling 90mph. The opposing attorney asks, “Isn’t it a fact that before this
trial you gave a statement to the police saying that Joe’s car was only travelling
50mph?”

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o Bias or prejudice: Ms. Young is the mother of the defendant.

The prosecutingattorney points this out and asks, “Ms. Young, you don’t
want to see yourson go to jail, do you?”
o Inaccurate sensory perception: Ms. Block testifies that she saw Sam, who was
a block away, take a bag of marijuana from his briefcase and hand it to Joe. On
cross examination, the attorney asks Ms. Block, “Isn´t it a fact that you didn’t
have your glasses on when you claim to have seen Sam and Joe?”

3. Redirect Examination

If the witness’ credibility or reputation for truthfulness has been attacked on cross-examination, the
attorney whose witness has been damaged may wish to ask a few more questions. These questions
should be limited to the damage the attorney thinks was done by the opposing attorney on cross
examination, and should be phrased so as to try to save or “rehabilitate” the witness’ credibility.

B. HEARSAY EVIDENCE

NOTE: Any out of court statement that is offered to prove the truth of the contents of statement is
hearsay. These statements are generally inadmissible in a trial.

Examples:
o Joe is being tried for murdering Henry. The witness may not testify, “Ellen was there, and she
told me that Joe killed Henry.” The underlined statement is hearsay and not admissible.
o In a civil trial arising from an automobile accident, a witness may not testify, “I heard a
bystander say that Joe ran the red light.”

Exceptions to the Hearsay Rule: Although hearsay is not usually allowed at a trial, a judge may
permit it if:

1. The statement (called an admission against interest) was made by a party in the case and it
contains evidence which goes against his or her side (e.g., in a murder case, the defendanttold
someone that her or she committed the murder);

2. The statement describes the then-existing state of mind of a person in the case , and that
person’s state of mind is an important part of the case;

3. The statement is a regularly-kept record of a business or other association, recorded by

someone with personal knowledge near the time the matters recorded occurred; or,

4. The statement is a present sense impression, describing an event or condition while the witness
was perceiving it, or immediately afterwards.

Examples:
o Joe is being tried for murdering Henry. The witness may testify, “Joe told me that he killed
Henry.”
o In the same case, the witness may testify, “I once heard Joe say, “I’m going to get even with
Henry if it’s the last thing I do.”
o In the same case, an accounts receivable ledger kept by Henry, Joe’s wholesaler, is admissible
to show the size of Joe’s debts to Henry.
o In the same case, an eyewitness to the murder may testify, “I heard Joe say, “Oh! I’ve killed
him.”

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C. OPINION TESTIMONY

As a general rule, witnesses may not give opinions, but “experts” who have special knowledge or
qualifications may.

An expert must first be “qualified” by the attorney who calls him or her. This means that before an
expert may be asked and may give an opinion, the questioning attorney must bring out the expert´s
qualifications and experience.

All witnesses may give opinions about what they saw or heard at a particular time, if such opinions are
relevant to the facts at issue and are helpful in explaining their stories. A witness may not, however,
testify to any matter of which he or she has no personal knowledge.

Examples:
o The witness may say, “Roy had slurred speech; he staggered and smelled of alcohol.” The
witness may not add, “Roy was incapable of driving a car.”

o A psychiatrist could testify that, “Roy has severe eating problems,” but only after the attorney
had qualified the psychiatrist as an expert through a series of questions about his
or her background and experience in a particular field.

o The witness works with the defendant but has never been to the
defendant’s home or seen the defendant with his or her children. The witness may
not testify that the defendant has a bad relationship with his or her children or
that he or she is a bad parent, because the witness has no personal knowledge of
this.

D. RELEVANCE OF EVIDENCE

Generally, only relevant evidence may be presented. Relevant evidence is any evidence which helps to
prove or disprove the facts in issue in the case. However, if the evidence is relevant but also unfairly
prejudicial, potentially confusing to the jury, or a waste of time, it may be excluded by the court.

Examples:
o On cross-examination the defense asks Ms. Stone, “How old are you?” This question would
be permitted only if Ms. Stone’s age is relevant to the case.
o The defendant is charged with running a red light. Evidence that the defendant owns a dog is
not relevant and may not be presented.

E. INTRODUCTION OF PHYSICAL EVIDENCE

There is a special procedure for introducing physical evidence during a trial. Below are the basic
steps to use when introducing a physical object ot document into evidence in a court.

1. “Your Honor, I ask that this letter be marked for identification as Plaintiff’s Exhibit 1.” Hand
the letter to the attorney panel judge for marking, and aske the presiding judge for permission
to approach the witness.
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2. Show PROGRAM the
letter to the
opposing attorney.

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3. Show the letter to the witness whom you are questioning. “Mr.
King, do you recognize this document, which is marked Plaintiff’s Exhibit 1 for Identification?”
The witness then explains what it is (e.g., “Yes, this is the letter I received from the defendant,
Marilyn Munro.”)

4. “Your Honor, I offer this letter, marked as Plaintiff’s Exhibit 1 for identification, into evidence.”
Offer the letter to the judge for his inspection.

5. After the opposing counsel has an opportunity to object, the judge ruels on whether or not
the letter may be admitted into evidence.

Example:

Suppose this is a personal injury case in which the tenant claims she was injured when she tripped on
a loose step in the apartment building, A neighbor who lives in the same building is testifying:

Q: Ms. Spak, are you familiar with the condition the stairs were in the day before the accident?

A: Yes.

Q: I ask that this photograph be marked as Defendant’s Exhibit 1 for identification.

Judge: This will be Defendant’s Exhibit 1 for identification.

Counsel now shows the exhibit to opposing counsel.

Q: Now, Ms. Spak, I show you what has been marked as Defendant’s Exhibit 1 for identification.
Please examine it and tell us what it is.

A: It’s a picture of my apartment building.

Q: Ms. Spak, turning your attention once again to those stairs as they were the day before the accident,
can you tell us whether this picture is an accurate and complete picture of the stairs as they looked at
the time?

A: Yes, I would say it is.

Q: Thank you. Your Honor (handing exhibit to judge), we offer what has been marked as Defendant’s
Exhibit 1 into evidence.

F. OBJECTIONS

Objections can be made whenever an attorney or witness has violated rules of evidence. The attorney
wishing to object should stand up and do so at the time of the violation; that is, the objection should
be made as soon as the improper question is asked by the other attorney and before the witness
answers, whenever possible.

When an objection is made, the judge will ask the objecting attorney the
reason. Then the judge will turn to the attorney who asked the question
and give him or her a chance to explain why the objection should not be
accepted (sustained) by the judge. The judge will then rule on the objection,
deciding whether an attorney’s question or witness’ answer must be
disregarded (“objection sustained”), or whether to allow the question or
answer to remain on the trial record (“objection overruled”).
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The following are standard mock trial objections:

OBJECTION PROPER WORDING

RELEVANCY “Objection, Your Honor. This testimony is not relevant to the facts
of this case.”

LEADING QUESTION “Objection, Your Honor. Counsel is leading the witness.”

ON DIRECT
EXAMINATION

IMPROPER CHARACTER “Objection, Your Honor. Character is not at issue here.”

TESTIMONY
HEARSAY “Objection, Your Honor. Counsel’s question (or the witness’
answer) is based on hearsay.” If the witness has already given a
hearsay answer, the attorney should also say, “and I ask that the
statement be stricken from the record.”

OPINION TESTIMONY “Objection, Your Honor. Counsel is asking the witness to give an
opinion.”

NO PERSONAL “Objection, Your Honor. The witness has no personal knowledge

KNOWLEDGE to answer the question.”

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Part IV: Contract Law

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CONTRACTS

Contracts permeate our lives. If we rent an apartment or agree to buy a home, we enter into a
contract. When we have electricity, gas and water furnished to that apartment or home, we have a
contractual relationship with each utility provider for the service. When writing a check, we are under
a contractual obligation with our bank to honor the check. We even enter into a contract when we
marry. Generally, common law, which was developed by our courts (and England’s) over the last
several hundred years, governs contract law.

However, some significant contracts, particularly those dealing with the sale of goods and business
transactions, are governed by statute. It is important to understand the details and obligations of
various types of contracts because they affect so many areas of our lives.

What Is a Contract?

Common law defines a contract as “a promise the law will enforce.”

However, this simple definition is deceptive because the law of contracts
imposes numerous limitations on the types of promises that can be
enforced and under which circumstances they will be enforced.

BASIC REQUIREMENTS FOR A CONTRACT

The basic requirements for a contract are mutual agreement, usually made through a process of offer
and acceptance, and consideration, or one of its substitutes. (Consideration is generally defined as the
reason or compelling influence that causes a party to enter a contract.) In addition, the parties must
be 18 years of age and mentally competent, the terms of the agreement must be defined in enough
detail that a court (and the parties) can determine their obligations and the subject matter of the
agreement must not be illegal.

To illustrate how a contract is formed, imagine that your neighbor, Ms. Lodge, approaches you about
raking the leaves around her house. You discuss the project, and Ms. Lodge agrees to pay you $50 to
rake and bag the leaves. This meets the mutual agreement requirement for a valid contract: your
neighbor offered to pay you $50 to rake and bag her leaves and you accepted the terms of her proposal.
Consideration is present because you promised to rake her leaves in exchange for her promise to pay
you $50. You will receive a $50 benefit as a result of the deal and your neighbor will receive the benefit
of a raked yard. Assuming you are both adults and not suffering from any mental incapacity, a valid
contract exists because the terms are definite enough that it will be easy to determine if each of you
performed your respective promises and there is nothing illegal about an agreement to pay a neighbor
to rake your leaves. This is a promise the law would enforce; however,if your neighbor failed to pay
you for your work, it likely would not be worth bringing a lawsuit against your neighbor to collect the
$50.

The Offer
An offer is the outward expression of a willingness to enter into an agreement. The agreement between
you and your neighbor arises from an oral offer. Offers also can be written or even implied from
conduct. Let us say you go to the doctor to be treated for the flu. The fact that you sought treatment
from the doctor implies that you offered to pay the doctor for his or her medical services and that he
or she agreed to treat you in exchange for your implied promise to pay. In rare cases, an advertisement
also can be an offer, although the usual advertisement is nothing more than an invitation to patronize
the advertiser’s business.

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An offer might impose time limits on the acceptance. If so, the

offer expires if it is not acceptedwithin that time period. If there is no specific time limit, the offer
must be accepted within a “reasonable” period of time. If you are the one making the offer, usually you
may revoke or withdraw the offer before it is accepted, even if you have promised to keep it open
for a specific amount of time. If the contract involves a sale of goods, however, and you promise to
leave the offer open for some period of time (not to exceed three months), the offer cannot be
withdrawn within that period.

Also, if the other person has paid you to keep the offer open, thereby creating an option contract,
then you do not have the right to revoke or withdraw the offer before it is accepted. For example, a
company may find a parcel of land that looks promising for a new factory, but needs six months to
decide whether it is feasible to build there. That company would then pay the property owner a sum
of money to keep the property off the market for a six-month period. The option agreement typically
would provide that, at any time within the six months, the company could exercise its option and buy
the land for a specified price and on terms set forth in the option agreement.

The Acceptance
Like an offer, an acceptance consists of some outward expression of agreement.
The acceptance can be express or implied, written or oral. It might consist of a
signature on a written offer, a simple “okay” or even a nod of the head. If you call a
repairperson, Mr. Simmons, to fix your washing machine and he responds, your
call is an implied offer to pay for the repair services. By coming to your house, Mr.
Simmons has implied his acceptance of your offer to pay a reasonable price for the
repairs.

When an offer specifies terms of a particular method of acceptance, it may not be satisfactory to accept
it any other way. For example, if an offer by Joe to sell a car to Hilda stipulates that it can onlybe
accepted by a $250 deposit on the purchase price, an acceptance by Hilda without the deposit willnot
be effective. Generally, accepting an offer requires an affirmative act by an individual. Silence does not
usually imply acceptance. Let us say a telemarketer calls during dinner and offers to sell you steak
knives. You let the caller make his pitch, but then hang up without responding. Six weeks later, a set
of steak knives arrives in the mail along with a bill. Must you pay the bill? No, because you have not
entered into a contract to buy the knives by your silence. You can keep the knives without paying.
Both Ohio and federal law clearly state there is no obligation to pay for unsolicited merchandise.

An individual does not have to accept an offer as proposed. The individual can reject it outright or
make a counteroffer, which may include its own terms and conditions. If a counteroffer is made, all
previous offers are void. If an offer is “accepted” with conditions, it is not actually an acceptance at
all, but, rather, a counteroffer. The process of purchasing a house, for example, usually involves an
initial offer and several counteroffers until the parties agree on the terms of the sale and create a
written contract. Contracts to purchase a home must be in writing.

Consideration and Reliance

For a contract to be valid, each party must make a promise or give or receive some benefit in return
for the promise. A contract’s consideration may be either an act or a promise. Without this element
of exchange, a promise lacks consideration and usually cannot be enforced as a contract. As a result,
a promise to make a gift to someone generally is not regarded as a contract, because usually only one
party benefits and the necessary element of consideration is lacking.

Consideration can take many forms. It might be money, property, rights, services, a promise to do
something in return, or even a promise not to do something that you would otherwise have the right
to do. Consideration can be present even though no money changes hands. Consideration exists when
parties have done nothing more than exchange promises with one another. If, for example, youpromise
to sell your car to someone for $2,500 next Saturday and the other person promises to pay

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that amount for your car at the same time, consideration exists even
though neither of you has yet performed the contract, and no down-payment was made.

Even when there has been nothing given in exchange for a promise, the promise still might be
enforceable if someone relied on the promise in some tangible way. Thus, even though a promise to
make a gift is not usually enforceable, if the beneficiary of the gift takes some concrete action in reliance
on the promise, the promise may be enforced. This is called promissory estoppel, because the person
who made the promise is “stopped” from claiming that there was no consideration forthe promise.
A good example of this is when a person promises to make a charitable donation and the charity takes
some action in anticipation of receiving the promised gift. Thus, if a person promisesto make a donation
to a college and the college, relying on the promised donation, constructs a building, the promise likely
will be enforceable even though the college gave nothing in exchange for the pledge.

A promise to make a gift to a family member also might be enforceable if the family member takes
some definite action in reliance on the promise. For example, if a rich uncle promises to give his
niece $5,000 so she can take a trip to Europe and the niece relies on the promise of the gift and actually
goes on the trip, the niece will probably be able to enforce the contract and collect the
$5,000.

In reality, charities and family members usually are reluctant to sue people who have made such
promises. They hope that the promised gift will eventually be made and that the donor will make
even larger gifts in the future.

Additional Requirements: Certainty, Legality and Competence of the Parties

A contract cannot be enforced if its terms are so vague that no one can determine what to enforce.
For example, you tell a friend you will do something for him in the future and he agrees. Because there
is no certainty about what to do, when to do it or the consideration for doing it, the contract (if there
is one) would be unenforceable based on any one of these uncertainties.

In addition, the agreement must be for something on which it is legal for the parties to agree. An
agreement to do something illegal is not a contract.

Also, the parties to a contract must be competent to enter into it. In most cases, children under 18
years of age are not considered legally competent to enter into legally binding agreements.
Furthermore, a person suffering from a mental disease or disability may be found by a judge to be
incompetent to enter into a legally binding agreement. However, a minor or incompetent person who
receives something necessary for life, such as food, shelter, clothing or medical care, may be responsible
to pay for the reasonable value of whatever was provided.

While a minor or a person suffering from legal disability cannot be bound to a contract, if such a person
performs his or her part of an agreement, the other party will be bound by the contract.

Express and Implied Contracts

The terms “express contract” and “implied contract” refer to nothing more than the formality or
informality of the method used to create the contract. Many express contracts are created by signing
a detailed written agreement, containing all or most of the terms the parties have agreed on, such as
a contract for the purchase of a home or a new car. “Implied contracts” are created with little or no
formality, such as the implied contract that is made when someone asks a mechanic to perform a
necessary car repair. By asking the mechanic to do the work, the car owner implies that he or she
agrees to pay the mechanic’s usual hourly service fee together with the cost of any parts necessary
to complete the repairs. By taking the car, the mechanic agrees to perform the work within a
reasonable time and to do so in a professional manner for the usual hourly fee. If the charge is too

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high or the work takes too long, a court might have to determine
the precise meaning of these agreed terms. However, there would be little doubt that the parties
entered into some type of agreement for the repair of the car even if they signed nothing and even if
neither of them made a legal “offer” or “acceptance.”

Written and Oral Contracts

With some exceptions, an oral contract is as valid as a written contract, as
long as the basic elements of a contract exist. However, in a dispute, the
terms of an oral contract may be more difficult to prove than the terms of
a written contract.

Some types of contracts must be in writing and will not be enforced unless
the essential terms of the agreement are contained in a signed, written
document. Contracts that must be written are:
• contracts for the sale of land or any interest in real property, including a
home;
• contracts in which one person promises to pay another’s debt (for example, when a parent
guarantees a child’s debt);
• prenuptial agreements or contracts between couples settling various questions of property and
other rights in consideration of marriage;
• contracts that cannot be fully performed within a year of the time the contract is made, such as a
contract to work for someone for 18 months;
• contracts for the sale of goods for a price of $500 or more.

Written contracts do not have to be formal. They may be printed or typewritten and the language can
be plain or very complicated. The writing may be nothing more than a sales slip, which is no more
than a memorandum of the contract of sale, or it might be a handwritten note on a stray scrap piece
of paper.

Of course, it is almost always better to write out the terms of a contract, even when there is no legal
requirement for the contract to be written. The more that is available in writing to all the parties to
a contract, the less likelihood there is that there will be a misunderstanding between the parties about
their obligations. However, if parties go to the trouble of writing out the terms of theiragreement,
they should make sure to include all of the agreed-upon terms. Otherwise, they may not be able to
prove that a particular part of their agreement was ever made, and oftentimes partiesagree that
the written contract surpasses any and all previous oral contracts.

PERFORMANCE OF CONTRACTS AND THE CONSEQUENCES OF BREACH

Generally, parties to a contract must do everything required by their agreement. Differences of opinion
and legal action may arise when one party to a contract either fails to perform completely orchooses
not to complete his or her end of the bargain.

A person who substantially performs his or her side of a bargain can enforce the contract against the
other person if the other person fails to perform.

The situation becomes more complicated when a person “partially performs” a promise, but does
not “substantially perform.” A person who only partially performs a contract may not be able to get
paid for the value of that partial performance, and likely will be responsible for any harm caused to the
other party. Let us say, for example, that a bricklayer only performs 20 percent of the patio he
promised to install. If the homeowner must pay another bricklayer a higher price to get the job finished,
then the cost of paying the new bricklayer might be higher than the value of the work done by the
original bricklayer who started the job. In such a case, there may be a “cause of action” for the
homeowner to collect from the first bricklayer for the additional expense, but if, for example, the

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original contract did not establish a timeframe for completion of the

work, the homeowner may not prevail in such a legal action.

Generally, a party to a contract must fulfill the promises made as part of the contract. If one party does
not perform, the other party usually is entitled to recover money damages for the losses suffered as a
result of the breach. In addition, depending on the extent of the breach, the injuredparty may be
justified in delaying or terminating performance of his or her own obligations under the contract.

Substantial Performance and Material Breach

At one time, the law required strict compliance with the terms of a
contract. Even a minor deviation from the terms of one person’s promise
would excuse the other person from performing his own duties. Today, if
one party has broken a promise in some minor way, but has still
substantially performed the promise, then the other party still must
perform his or her own part of the deal. The second party is excused from
performing his or her own part of the deal only if the first party’s failure to
perform is serious enough to be a material breach.

An example will illustrate how this works. Mr. Smith has several dead trees on his property and enters
into a contract with ABC Tree Company (ABC) to cut down and remove the trees for a priceof $700.
ABC cuts the trees down, but leaves them lying on the lawn without removing them as promised. This
is not only a breach; it is probably a material breach because it does not fulfill the essential purpose of
the contract, which was to get rid of the trees. If, as a result of ABC’s breach, Mr. Smith has to hire
another company, which charges him $800 to cut up the trees and haul them off, Smith will not have
to pay ABC anything. In fact, ABC would owe Mr. Smith the $100 difference between the $700 it
agreed to charge for the job and the $800 Smith ended up having to pay to havethe job finished.

On the other hand, if ABC cut down the trees, cut them up and hauled off everything except for two
small pieces that had fallen into some bushes, ABC will have substantially performed its contract with
Mr. Smith. Although ABC did not do absolutely everything it contracted to do, it substantially
performed the contract, and would be entitled to full payment, minus only whatever small expense Mr.
Smith may incur to remove the two pieces that ABC failed to remove.

The result would be the same in a contract for the sale of goods. If, after a car is delivered, the buyer
discovers that the brakes don’t work, the buyer is justified in returning the car and refusing to pay for
it. Before returning the car without paying the agreed-upon price, however, the buyer may be required
to give the seller a chance to “cure” the breach by repairing the defective brakes. (Likewise,in the
agreement between ABC and Mr. Smith, Mr. Smith likely will be required to give ABC an opportunity
to finish the job before refusing to pay ABC and hiring someone else.) If the only problem the car
buyer discovers is that the spare tire needs to be replaced, the buyer still must pay the price of the
car, with a modest reduction based on the cost of a new spare tire.

Offer to Perform as a Precondition to the Right to Sue

As previously explained, Ohio law does not require one party to honor an agreement if the other party
fails to perform his or her end of the contract. But, to enforce a contract, a party may be required to
demonstrate that he or she is still “ready, willing and able” to fulfill his or her part of the agreed
exchange. For example, unless the buyer can demonstrate he or she can pay the agreed price for the
promised product, the buyer will not be able to sue the seller if the seller refuses to deliver the goods
to the buyer. Likewise, unless a seller can show he or she was ready, willing and able to deliver the
product that was to have been sold, the seller will not be able to recover damages from the buyer. It
works the same way with services that are to be performed.

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In the case of ABC Tree Company, if ABC failed to cut up and

remove the trees because Mr. Smith said he wouldn’t pay for the work under any circumstances, then
Mr. Smith has breached the requirement of good-faith tender of performance and would not be able
to sue ABC for failing to finish the work.

EXCUSES FOR NONPERFORMANCE OR BREACH OF CONTRACT

Sometimes, a party to a contract may be excused from performing his or her part of an agreement. As
explained, a person is excused from performing due to the other party’s failure to substantially perform
his or her own obligations. Similarly, a party may be excused if it is clear that the other partyis unlikely
to perform, even if the other party has not yet breached the contract.

Consider, for example, a contract between a shopkeeper and one of the shop’s suppliers for
merchandise to be delivered immediately, but paid for some time later, such as at the end of the month.
If the shopkeeper goes out of business, the supplier is likely to be excused from deliveringthe
merchandise as promised, even though payment is not due until a month after the goods will be
delivered. The likelihood that the shopkeeper will be unable to pay will justify the supplier in making
a written demand for adequate assurances of performance and in refusing to deliver the goods until
the shopkeeper provides adequate assurance that the goods will be paid for if they are delivered.

When the contract specifies that its duties or obligations absolutely must be performed by a specific
time (when “time is of the essence”), a delay by one party can excuse performance by the other and
provide the other party with grounds for legal action. For example, contracts for constructing large
buildings often require precise scheduling, and the general contractor or project manager will specify
that various subcontracts must be completed by certain dates. Delay in performing a subcontract may
justify the prime contractor in refusing to continue with the contract, and give the prime contractor
the right to recover any losses caused by the delay.

A party to a contract also may voluntarily give up some rights through a voluntary “waiver.” A waiver
can be an excuse for nonperformance by the other party. For example, let us assume that you order
a new car in “Treasure Island Green.” Two weeks later, the dealer calls to tell you that the factory
no longer makes that color. If you agree to allow the dealer to substitute “Sky Blue,” you have waived
the “color” portion of the original contract. Waivers are contract amendments and may be formal or
informal, in writing or implied through the action or inaction of a party. If an original contract must be
in writing, amendments must be written as well. Generally, a written amendment is the safest and most
effective way to change a contract.

Prevention of Performance
Nonperformance of a contract is excused if one party prevents the other from complying with the
contract. For example, the owner of a building cannot contract to have the building renovated, and
then deny the renovator access to the building to perform the work.

Impossibility of Performance
Impossibility of performance of a contract also might excuse nonperformance. Let’s assume that a
carpenter, Ms. Harris, contracts with an owner to renovate the owner’s building, but before the
carpenter can start to work, a tornado destroys the building. Under these circumstances, it is
impossible for Ms. Harris to perform the contract, and she is excused. If the owner has paid Ms. Harris
a down payment, the owner probably will be able to recover the down payment. Otherwise, Ms. Harris
would be unjustly enriched as a result of the tornado.

On the other hand, if the carpenter agrees to restore the building and then sells all of her tools and
fires all of her workers before beginning work, she has only herself to blame. The fact that it is now
impossible for her to complete the promised renovations is not an excuse and she will be liable to
the owner for all the damages that the owner suffers as a result.

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REMEDIES FOR BREACH OF CONTRACT

The usual remedy for breach of contract is legal action to recover enough money to pay for the
harm caused by the breach. In some cases, the injured party can force the breaching party to
perform the contract, under threat of imprisonment for contempt of court, or have the contract
modified or cancelled, or obtain some other type of court order to prevent further loss.

The injured party should notify the other party right away if there is a defect in the other party’s
performance. In some situations, the injured party who fails to provide prompt notice will be prevented
from obtaining any remedy. This is particularly true in contracts for the sale of goods. If the goods are
defective, the buyer must advise the seller as soon as possible. If the goods are so defective that the
buyer wants to “rescind” the contract and get his or her money back, the buyer must advise the seller
promptly. Waiting, even for a little while, might prevent the buyer from gettingthe solution he or she
wants or from obtaining any remedy.

Money Damages for Breach of Contract

The usual remedy for losses caused by a breach of contract is monetary damages
(money paid to make up for the loss). The person who breached a contract is
not necessarily liable for the entire contract price, but rather for thevalue of the
actual loss suffered by the injured party. For example, if a buyer breaches a
promise to buy a house for $100,000, and the seller is able to resell the property
to someone else for only $90,000, the first buyer will be responsible for the
$10,000 difference. The seller also may recover additional damages, such as
insurance and maintenance expenses incurred while finding
another buyer, and any other losses resulting from the delay or inconvenience.

Specific Performance
If the object of a contract cannot be obtained by any other means, or if the subject matter of the
contract is unique, a court may force a party to comply with the contract rather than pay damages.
For example, land is considered unique, and a rare museum piece or antique may be unique. A court
may require the person who contracted to sell the land, museum piece or antique to transfer the land
or item to the buyer as promised. Note that there is nothing unique about the money the seller would
receive as the purchase price, so that if the buyer defaults, the seller’s only remedy is monetary
damages. Even if the subject of the contract is not unique, the court may award specific performance
damages if obtaining a substitute will be difficult.

Cancellation
The technical term for cancellation of a contract is rescission. In the earlier example involving the
insolvent storeowner, the supplier probably would call the storeowner to say the contract is cancelled,
and probably should formalize and record the cancellation of delivery by writing a letter to the
storeowner. In some cases, however, a party might remain bound to a contract despite a breach by
the other party. In such instances, the first party may have to go to court to have the contract
rescinded.
For example, suppose that a husband and wife contract to purchase a house subject to their ability to
secure a loan, but the husband passes away before the sale is completed. If the wife is unable to secure
financing alone, the contract may be cancelled or rescinded.

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Injunction
Injunctions are court orders that require people to act (or not to act) in
certain ways. An injunction may order a party not to violate a contract when
there is a real threat that a breach of contract will continue. In these
situations, monetary damages are inadequate remedies because the injured
party would have to go to court repeatedly. If the injured party succeeds
in getting an injunction against the other party, the other party risks being
found in contempt of court for breaching the contract.

Let us say Mr. Smith contracts to sell a unique, antique dresser to Mr. Jones for $5,000, to be delivered
six months in the future, but then threatens to sell it to someone else in the meantime. To prevent
Mr. Smith from carrying out this threat, Mr. Jones might get an injunction, in which the court orders
Mr. Smith not to sell the dresser to someone else. If Mr. Smith violates the injunction, he might not
only be liable to Mr.Jones for the damages arising out of his breach of contract, but he also might be
punished by the court for contempt—that is, for willingly violating the specific terms of the court’s
order.

Quasi-Contract
Sometimes the law infers a contract-likerelationship among parties to prevent someone from benefiting
unjustly (legally called an unjust enrichment). Such a quasi-contract is used to protect one party from
taking advantage of another, especially when the event in question arose innocently or accidentally.

The following scenario illustrates the concept of quasi-contract. Sue asked Fred to paint her house.
She wanted it to be finished before her husband returned from a business trip. Fred gave Sue an oral
quote that she accepted. When the work was completed, Fred gave Sue an invoice for his work, which
she said would be paid when her husband returned. When Sue’s husband came home, he refused to
pay because he alone owned the house and had not contracted for the work. While Sue did not have
the authority to enter into a binding contract with Fred to paint her husband’s house, Fred may be
able to recover payment for his work. Under the concept of quasicontract, the law will not let Sue and
her husband benefit from the misunderstanding. Sue’s husband would have to pay thereasonable value
of the work to prevent an unjust enrichment.

Retrieved from:
https://www.ohiobar.org/General%20Resources/LawandYou/TLAY_Chapter06.pdf

CONTRACTS: VOCABULARY

Activity 1: Match the terms in column A with their definitions in column B. Then complete the
sentences below.

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A B

1. breach a. person or business part of a contract

2. consideration b. court order to do or not do something
3. damages c. non-compliance of a contract
4. performance d. legal actions to recover for breach
5. injunction e. expression of an agreement
6. quasi-contract f. fulfillment of a contract
7. remedies g. reason to enter into a contract
8. acceptance h. contract inferred by law
9. party i. monetary compensation

1. The to the agreement did not agree on the terms so they had to go to court.
2. My neighbors were building a 10 meter wall that was blocking my street view so we filed for an
_.
3. It is said that the purpose of _ _ is to avoid unjust enrichments.
4. Under Common Law, if there is no there is no contract.
5. Certain contracts require _ to be in a specific form in order for it to be valid.
6. The law provides in order to protect an injured party from a of
contract.
7. When there is a valid contract, what is commonly expected is its full _ _.
8. In case there is a failure to comply with the obligations in the agreement, the law provides
_ as a way to compensate for the loss.

Activity 2: After reading the text carefully, discuss these questions with a partner.

1. What are the essential elements of a Contract? Are they similar to those in the Peruvian Civil
Code?
2. How would you define or explain CONSIDERATION? Can you give some examples of what
might be consideration?
3. What´s the difference between an express and an implied contract? Can you give an example of
each one?
4. What’s the difference between substantial performance and material breach? What remedies are
available for each case?
5. What excuses does a party have in case of nonperformance of the terms of a contract?

Activity 3: Cases. Discuss the following cases in groups. Then share your opinions.

1. Square D. Company made a contract with CJ Kern Contractors, Inc. The Corporate seal of
Kern appeared on the documents. Was there a valid contract? If yes, what kind of contract
was formed? If not, what would be missing?

2. The owner of a lost briefcase puts an ad in the paper offering a reward for the return of the
lost property. JF Peterson finds the briefcase and returns it to the owner. Is there a contract?
Why or why not? What kind?

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3. Johnson paints Steven´s house who has said he will pay $
450.00 for it. Johnson expects Steven to pay him. Is he right? Was
there a contract? What kind? Why or why not?

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4. Tom, a 17 year old enters into an agreement with Mr. Duffy,

who wants to sell hismotorcycle. Tom pays Mr. Duffy the amount he requested and Tom takes
his motorcycle. After some days, Mr. Duffy´s counsel tells him he is in trouble because he did
business with a minor. Is he right? Was there a valid contract? Why or why not? What would
you do if you were Tom´s counsel?

5. Rafa Pedal was a tennis professional. He suggested to Roger Federal and his partner a plan
for constructing a facility that would be managed by Pedal. Pedal gave Roger all the information
that he had acquired as to the proper location of the facility, the feasibility study that he had
obtained, the arrangements that he had made for the leasing of the building, and the identity of
a bank willing to finance the operation. Federal used this information in constructing the tennis
facility but never paid Pedal anything for the information or the work involved in developing
the information. Pedal had expected to be paid and there had been several discussions with
Federal as to the amount to be paid. No agreement was ever reached by the parties. Pedal
sued Federal for compensation for the reasonable value of his services. Federal defended on
the ground that there was no contract calling for suchpayment. What do you think? State the
grounds for your opinion.

Adapted from: Anderson, Fox & Towney (2000) BUSINESS LAW, Southwestern Publishing Co. USA.

CONTRACT STRUCTURE

Most contracts have a similar structure; they all have:

 Beginning
 Preamble
 Recitals/ Introduction
 Main Section (Body): addresses the reason why the contract is being entered into and terms
of the agreement.
 “Boilerplate” section: contains common provisions that deal with administrative matters.
 End: contracts conclude with an ending and the signatures of the parties to the contract.
 Schedules/Appendices

The Preamble
 (i) identifies the agreement through a title,
 (ii) identifies the parties to the agreement, and
 (iii) identifies the date on which the agreement was entered into.

Recitals
 (i) provide an introduction to the agreement and why it is being entered into, and
 (ii) identify important terms and possibly third parties.
 Instead of the traditional recitals, some contracts have an introduction that serves a similar
purpose.
 The recitals/introduction are not considered to be part of the agreement and are therefore
typically not enforceable.

Body
 The body contains the heart of the agreement – the reason why the contract was entered
into.
 Topics such as the key terms of the agreement, the type and amount of “consideration”, and
the parties’ ongoing rights, duties and responsibilities are discussed in the body of the contract.

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Boilerplate Clauses
 “Boilerplate” is ready-made, all-purpose language that is inserted in many kinds of contracts.
 Some of these include force majeure, governing law, Attorneys’ fees and court
costs, Amendments to the agreement, Merger clause, Severability, and Force
majeure.

Ending and Signature

 The contract concludes with a statement of the parties’ intention to create a legally binding
agreement and signature blocks for the parties to the agreement.

Addenda: Schedules
 An additional document not included in the main part of the contract which may contain
additional terms, specifications, provisions, standard forms or other information. It may also
be called an appendix, an annex.
 Schedules and exhibits are sub-categories of addenda, with schedules being related to
numerical and time information, such as pricing and time-schedules, and exhibits used for
examples of standard forms and different types of evidence or models.

COMMON CONTRACT CLAUSES

 Merger and Integration Clause

 Choice of Law and Forum Clause
 Statute of Limitations Clause
 Indemnification Clause
 Time of Performance Clause
 Arbitration Clause
 Savings (Severability) Clause
 Attorney Fees Clause
 Non-Waiver Clause
 Liquidated Damages Clause

When reviewing a contract, certain language or clauses within the contract are likely to seem peculiar
to a non-lawyer. The purpose of this article is to help explain the purpose and effect language and
provisions frequently included in contracts.

Merger and Integration Clause

The purpose of a merger and integration clause is to prevent the parties to a contract from later
claiming that the contract does not reflect their entire understanding, was changed by a subsequent
oral agreement, or is not consistent with their prior agreements:

This Agreement and the exhibits attached hereto contain the entire agreement of the parties with respect to
the subject matter of this Agreement, and supersede all prior negotiations, agreements and understandings

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with respect thereto. This Agreement may only be amended by a written

document duly executed by all parties.

A party entering into a contract that includes this type of language should make sure that all promises
and agreements are actually included in the written contract, as otherwise it will likely be impossible
to enforce those unwritten promises. Where amendment of the contract must be in writing, a party
seeking an amendment should make sure that the required amendment or change order is created,
and that it is signed and dated by the parties.

Choice of Law and Forum Clause

Contracts will often contain language expressing that they are to be interpreted under the laws of a
particular state or jurisdiction, and that any litigation will occur within a specified court system:

This agreement shall be interpreted under the laws of the State of California. Any litigation under this agreement
shall be resolved in the trial courts of Los Angeles County, State of California.

Contract provisions for the choice of law and forum language are not always be enforceable,
particularly in relation to consumer contracts, but are likely to be upheld for contracts between
sophisticated parties and businesses. When entering into a contract you should assume that the
provision will be enforced and consider how the provision might affect the cost and burden of litigation
in the event of a later dispute.

Statute of Limitations Clause

A statute of limitations clause changes the statute of limitations that applies to litigation relating to
the subject matter of the contract. For example, the governing law may define a six year statute of
limitations for a lawsuit alleging a breach of contract, but the contract includes a provision that shortens
that period, eliminates the "discovery rule" (a rule that may extend the statute of limitationsduring the
period a party is unaware of the breach), or both:

The parties agree that any action in relation to an alleged breach of this Agreement shall be commenced within
one year of the date of the breach, without regard to the date the breach is discovered. Any action not brought
within that one year time period shall be barred, without regard to any other limitations period set forth by law
or statute.

For public policy reasons, particularly in relation to consumer transactions, states will not always
enforce a reduction in the statute of limitations. You should assume when entering into a contract that
a clause reducing the statute of limitations is valid and, whenever possible, should commence any
litigation within the contractual period. As there is a possibility that a court might find the clause to
be invalid or contrary to public policy, you should consult with an attorney in your jurisdiction before
assuming that you don't have a valid cause of action on the basis of this type of contract language.

Indemnification Clause

An indemnification or indemnity clause requires that one party indemnify the other in the event that
specified expenses are incurred. For example:

The subcontractor agrees to indemnify and hold harmless the contractor against loss or threatened loss or
expense by reason of the liability or potential liability of the contractor for or arising out of any claims for
damages.

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Be careful when entering into a contract that includes this type of

clause, as the provision can significantly increase your financial exposure in the extent of an unexpected
event or breach of the contract.

Time of Performance Clause

Some contracts will provide that "time is of the essence", which may support an action for breach of
contract where the contract is not completed within a reasonable (or specified) time. This type of
clause is often seen in construction contracts, as it is important that construction work be resolved
in a reasonably timely manner such that a homeowner or business can return to normal life or
operations:

Time is of the essence for the completion of the work described in this contract. It is anticipated by
the parties that all work described herein will be completed within two (2) weeks of the date of
execution, and that any delay in the completion of the work described herein shall constitute a material
breach of this contract.

If you agree that time is of the essence, you should be certain that you can complete your duties under
the contract with in the agreed time frame or schedule.

Other contracts may specifically provide that time is not of the essence:

The parties agree that time is not of the essence in the completion of the work described in this contract. All
parties shall act to complete the work described within a reasonable time.

Where a contract includes language of the latter variety, you may wish to ask yourself why the other
party wants the language. That is, do they anticipate delays which will leave you dissatisfied with the
timeliness of their performance?

Arbitration Clause

Some contracts include language specifying that all disputes under the contract will be resolved by
arbitration:

All disputes, controversies, or claims arising out of or relating to this contract shall be submitted binding
arbitration in accordance with the applicable rules of the American Arbitration Association then in effect.

A typical arbitration clause will be considerably more detailed than this example language. For many
contracts, state law may require specific language, forms of disclosure, or regulate the appearance of
an arbitration clause, with the failure to meet the state standard rendering the clause unenforceable.

In many contracts, the parties may see mutual benefit to negotiating an arbitration clause, so as to
avoid the possibility that a dispute will end up in court or to provide for a faster resolution of disputes
than would be available through litigation. In other contexts, the party that seeks to impose an
arbitration clause will normally anticipate a significant benefit from the inclusion of the clause inthe
event of a dispute, such as its making any action in the event of breach unaffordable for the otherparty
who will typically have to pay half the cost of a private arbitration. Arbitration can be significantly more
expensive than litigation, and may not be reasonably affordable for smaller claims.

Savings (Severability) Clause

Most contracts include a savings clause, included to ensure that the contract remains enforceable even
if part of the contract is later held invalid:

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If any provision of this Contract is held unenforceable, then such provision

will be modified to reflect the parties' intention. All remaining provisions of this Contract shall remain in full force
and effect.

If a single clause of a contract is found to be invalid, in the absence of a savings clause it is possible that
the entire contract will be rendered invalid.

Attorney Fees Clause

In the event of litigation, an attorney fees clause requires that the losing party reimburse the prevailing
party's attorney fees:

In the event of litigation relating to the subject matter of this Contract, the non-prevailing party shall reimburse
the prevailing party for all reasonable attorney fees and costs resulting therefrom.

If one party to a contract is significantly better positioned than the other to pay legal fees and the
cost of litigation, the other party should be careful to consider whether an attorney fee clause will be
helpful in the event of a dispute, or if its primary effect will be to discourage the other party from
attempting to seek redress through the courts in the event of a dispute or breach.

Non-Waiver Clause

The purpose of non-waiver language is to protect a party who excuses the other party's non-
compliance with contract terms, and to prevent the parties' course of conduct under the contract
from resulting in the loss of enforceability of the actual terms of the contract:

The failure by one party to require performance of any provision shall not affect that party's right to require
performance at any time thereafter, nor shall a waiver of any breach or default of this Contract constitute a
waiver of any subsequent breach or default or a waiver of the provision itself.

For example, if a contract requires monthly payments but the party owing payments only pays every
other month but the contract does not include a non-waiver clause, after a year of acceptance of the
late payments a court would be likely to hold that the bimonthly payments do not constitute a breach
of the contract. With a non-waiver clause, despite the prior course of conduct that was inconsistent
with the contract language, the party to whom the payments are due would normally be able to enforce
the monthly payment provision.

Liquidated Damages Clause

If it may be difficult for the parties to calculate actual damages, it may be appropriate to include
within a contract a liquidated damages clause, a provision stating that in the event of a breach a specific
sum of money becomes due as compensation for the breach. The most common form of liquidated
damages is the late fee charged following the late receipt of payment on a lease, loan or credit card.
An example for the rental of an apartment:

For any rent paid after the fifth day of the month, the tenant shall pay a late fee in the amount of $50 (not
to exceed 5% of the monthly rent).

The damages are said to be liquidated based upon the contract's stating a specific sum that will be
paid as damages, whatever the actual amount of damages may be. Parties who agree to include a
liquidated damages clause within a contract should consider whether the amount of money defined in
the clause is fair and reasonable, or if the amount is excessive.

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Liquidated damages are meant to compensate the wronged party,

not to provide a windfall or to punish the party in breach. The amount of liquidated damages must be
a reasonable approximation ofthe amount of damages that the injured party will suffer as a result of a
breach of the contract. A court will not uphold liquidated damages clauses if it finds that the defined
payment is disproportionate to the injury, or if the amount of liquidated damages appears to be
intended as punitive as opposed to fair compensation for the actual injury.

Retrieved form: http://www.expertlaw.com/library/business/contract_clauses.html in July 2016.

Activity 1: Which clauses are stipulated below? Work in pairs to name the clauses correctly.

1. _
Time is of the essence for the completion of the work described in this contract. It is anticipated by
the parties that all work described herein will be completed within two (2) weeks of the date of
execution, and that any delay in the completion of the work described herein shall constitute a material
breach of this contract.
2.
The subcontractor agrees to indemnify and hold harmless the contractor against loss or threatened
loss or expense by reason of the liability or potential liability of the contractor for or arising out of any
claims for damages.
3. _
The parties agree that any action in relation to an alleged breach of this Agreement shall be commenced
within one year of the date of the breach, without regard to the date the breach is discovered. Any
action not brought within that one year time period shall be barred, without regard to any other
limitations period set forth by law or statute.
4. _
This agreement shall be interpreted under the laws of the State of California. Any litigation under this
agreement shall be resolved in the trial courts of Los Angeles County, State of California.
5. _
This Agreement and the exhibits attached hereto contain the entire agreement of the parties with
respect to the subject matter of this Agreement, and supersede all prior negotiations, agreements
and understandings with respect thereto. This Agreement may only be amended by a written document
duly executed by all parties.
6. _
All disputes, controversies, or claims arising out of or relating to this contract shall be submitted binding
arbitration in accordance with the applicable rules of the American Arbitration Association then in
effect.
7. _
Students canceling their housing contract after occupying their room shall pay liquidated damages in
the amount of $5.00 per day for the remainder or unexpired portion of the term of the academic
agreement, not to exceed $400.
8.
In the event of litigation relating to the subject matter of this Agreement, the non-prevailing party shall
reimburse the prevailing party for all reasonable attorney fees and costs resulting therefrom.
9. _
The failure by one party to require performance of any provision shall not affect that party's right to
require performance at any time thereafter, nor shall a waiver of any breach or default of this Contract
constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
10.
If any provision of this Contract is held unenforceable, then such provision will be modified to reflect
the parties' intention. All remaining provisions of this Contract shall remain in full force and effect.

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Activity 2: After analyzing the typical contract clauses, read the cases below and in
groups discuss the questions.

1. Maria has negotiated the purchase of new computer motherboards for her laptop manufacturing
business. The company, Matrix Motherboards, Inc. (MMI) is a local company. As all of their other
customers pick up the completed orders at its plant, the officers at MMI naturally assumed that Maria
would also arrange to pick up her order at the plant. Maria has assumed just the opposite.
She has assumed that MMI would deliver the goods to her at her facility just outside of town. When
MMI refuses to deliver the motherboards, Maria brings suit, claiming that delivery was implied under
the contract.
• How does the court rule?

2. Sandy and Ramon Cortez eventually bought their first house and lived in it for five years. However,
they are now considering selling it and moving into a bigger house. Their family has grown to include
two children, a dog, and a cat, and the house is too small to accommodate everyone.
They place their home up for sale and get an offer within days. They accept the offer and then they
begin looking for a new house.
When looking at houses with a real estate agent, they find a house that they both like very much. They
draft and Offer of Purchase contract and submit it to the current owner. Their offer is accepted
immediately. The Cortezes have learned a lot about real estate transactions since they purchased their
first home and they realize that, before they can purchase their second house, they will need the funds
from the sale of their first house. How can they ensure that the closing on their house will take place
before the closing on their new home? They insert the language in their acceptance of the offer to
purchase their current home: “Closing to occur on September 1st of this year; time is of the essence.”
• What significance does this clause have?

3. Walter “Cherry” Smith has developed a recipe for fried chicken that uses a special blend of herbs
and spices. The public can´t get enough of his chicken. At first, he sold his chicken from a roadside
stand where he made all the chicken himself. However, with his success, he has opened a restaurant
and expanded his operation. When he hires employees, he makes them sign an employment contract
that has the following provision: “I hereby agree that I will not reveal the recipe for Cherry´s Chunky
Chicken for the rest of my life, I further agree that I will not work for any competing restaurant within
a 500-mile radius for a ten-year period following my separation from Cherry´s Chunky Chicken, Inc.”
One of Walter´s employees quit two months ago and has gone to work for a competing restaurant
that is 120 miles away from Cherry´s Chunky Chicken Restaurant. Yesterday, the restaurant began
offering fried chicken under the name “Hunky Chicken.” Walter wishes to enforce the clause in the
employee´s contract.
• Will he be successful?

Activity 3: Below is a contract clause with blank spaces. Try to complete the blanks
using the terms provided in the box.

terminating notifying provided entitled default

extension to extend to terminate term (2)

Operating . The of this Agreement shall be

the period commencing on the date hereof and _ at midnight on June 11,
2018.

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Extension. For as long as the Owner remains _ _ to operate the

Concessions, the Operator shall have the right the Operating
term for two successive periods of five years each, upon the Owner
of its election to extend on or before the last day of the fourth full calendar month before the end of
the Operating Term, or of any _ thereof then in force, and
that the Owner at such time is not entitled (and does not elect)
this Agreement by reason of any
_, as specified in Section 21, by the Operator.

Activity 4: A client, Mrs. Hillary Bolton, has requested your services in order to draft a
Confidentiality Agreement for her TASTIE TEA CO. She wants to make sure her employees will not
reveal her secret tea formulas along with her practices, designs, etc.

1. What major clauses will you include in this agreement?

2. Will you include Boilerplate clauses? If so, which ones?
3. Draft the following clauses.
a) Indemnity clause
b) Non-disclosure clause
c) Penalty clause
d) Other

Use the space below to write the clauses as they would appear in the contract.
_
_
_
_
_
_
_
_
_
_
__

Contracts: Language Practice

A. Complete the sentences below with an appropriate word or expression.

1. Minors and the mentally incompetent lack the legal capacity to _

contracts.
2. Courts generally rule that if the parties have a meeting of the minds and act as though there was
a formal, written and contract, then a contract exists.
3. The lawsuit claimed that the defendant _ _ a confidentiality contract by
attempting to sell trade secrets as his own inventions.
4. “Evergreen Clauses” are those clauses which cause automatic renewal unless the contract
_.
5. While fixed-term contracts involve an agreement that the job ill last for a specified period of
time, provisions are often included to enable the contract _ if so desired.
6. The committee shall have no authority to change or otherwise contract
language.

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B. Fill in the blanks with the correct preposition.

1. The parties a contract

2. Pursuant the contract
3. To have rights and obligations _ _ a contract
4. To benefit _ a contract
5. To assign rights or delegate duties _ a third party
6. To enforce a contract someone
7. A third party beneficiary _ a contract
8. In reliance _ the contract

C. Complete the contract clause below using the prepositions in the box.

between by( 2) for hereby herein in

This agreement constitutes the entire agreement 1) the parties. No waiver,

consent, modification or change of terms of this agreement shall bind either party unless in writing and
signed 2) _ both parties. Such waiver, consent, modification or change, if made,
shall be effective only 3) _ the specific instance and 4) _ the specific
purpose given. There are no understandings, agreements or representations, oral or written, not
specified 5) _ regarding this agreement. Contractor, by the signature below of its
authorized representative,6) acknowledges that the Contractor has read this agreement,
understands it and agrees to be bound 7) its terms and conditions.

D. The words in the list commonly collocate with either damages or a clause. Put the
words under the correct box.
award claim collect contain exclude
interpret mitigate perform seek strike
sue for violate draft

damages a clause

E. Complete the table wherever possible using the correct word forms.
Verb Noun Person
Assign Assignment Assignor/assignee
delegate
Oblige
Imply
Intend
Consult
Enact
Construe
Determine
Draft
Transfer
Remedy
Breach
Violation
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Enforce
reversal
perform
terminate
Negotiation
transaction
Propose
Franchise
License
Lease
Adapted from: Amy Krois-Linder and TransLegal (2011) International Legal English, 2nd Ed. CUP, UK.

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Part V: Consumer Law

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Antiturst Laws: A Brief History

Once upon a time, way back in the 1800s, there were several
giant businesses known as “trusts.” They controlled whole
sections of the economy, like railroads, oil, steel, and sugar.
Two of the most famous trusts were U.S. Steel and Standard
Oil; they were monopolies that controlled the supply of their product—as well as the price. With one
company controlling an entire industry, there was no competition, and smaller businesses and people
had no choices about from whom to buy. Prices went through the roof, and quality didn’thave to
be a priority. This caused hardship and threatened the new American prosperity.

While the rich, trust-owning businessmen got richer and richer, the public got angry and demanded
the government take action. President Theodore Roosevelt “busted” (or broke up) many trusts by
enforcing what came to be known as “antitrust” laws. The goal of these laws was to protect consumers
by promoting competition in the marketplace.

The U.S. Congress passed several laws to help promote competition by outlawing unfair methods of
competition:

• The Sherman Act is the nation’s oldest antitrust law. Passed in 1890, it makes it illegal for competitors
to make agreements with each other that would limit competition. So, for example, theycan’t agree to
set a price for a product—that’d be price fixing. The Act also makes it illegal for a business to be a
monopoly if that company is cheating or not competing fairly. Corporate executives who conduct their
business that way could wind up paying huge fines—and even go to jail!

• The Clayton Act was passed in 1914. With the Sherman Act in place, and trusts being broken up,
business practices in America were changing. But some companies discovered merging as a way to
control prices and production (instead of forming trusts, competitors united into a single company.
The Clayton Act helps protect American consumers by stopping mergers or acquisitions that are likely
to stifle competition.

• With the Federal Trade Commission (FTC) Act (1914), Congress created a new federal agency to
watch out for unfair business practices—and gave the Federal Trade Commission the authority to
investigate and stop unfair methods of competition and deceptive practices.

Today, the Federal Trade Commission’s (FTC’s) Bureau of Competition and the Department of
Justice’s Antitrust Division enforce these three core federal antitrust laws. The agencies talk to each
other before opening any investigation to decide who will investigate the facts and work on any case
that might be brought. But each agency has developed expertise in certain industries. Every state has
antitrust laws, too; they are enforced by each state’s attorney general. There’s an office in your state
capitol that helps consumers or businesses who might be hurt when businesses don’t compete fairly.

Antitrust laws were not put in place to protect competing businesses from aggressive competition.
Competition is tough, and sometimes businesses fail. That’s the way it is in competitive markets, and
consumers benefit from the rough and tumble competition among sellers.
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Retrieved
from:
https://www.consumer.ftc.gov/sites/default/files/games/off-
site/youarehere/pages/pdf/FTC-Competition_Antitrust-Laws.pdf

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How Competition Works

It’s the Federal Trade Commission’s (FTC’s) job to make sure that businesses are competing fairly—
and within the law. The FTC is a law enforcement agency that promotes competition and challenges
business practices that could harm competition. It’s their job to make sure consumers have access to
quality products and services, and that businesses compete on the merits. The FTC challenges business
practices that could result in higher prices, lower quality, fewer products or services for consumers,
or those that create unfair advantages in the marketplace. The FTC has lawyers and economists who
monitor business practices, review potential mergers, and challenge conduct that might prevent
consumers from getting choice and quality at a fair price. They make sure the marketplace works
according to consumer preferences, not illegal or anti-competitive practices.

When the competitive system is operating well, there’s no need for government intervention. The law
knows that some arrangements between firms—like competitors cooperating to perform joint
research and development projects—may be good for consumers. In these cases, the agreement may
even lead to greater competition.

The law doesn’t try to stop all agreements between companies. It disapproves of agreements that hurt
competition—for example, that could raise prices for consumers or keep them from gettingnew
and better products. When the FTC sees practices or merger proposals that could harm the consumer
or competition itself, the staff acts quickly to protect the interests of American consumers.

Retrieved from: http://www.consumer.ftc.gov/sites/default/files/games/off-

site/youarehere/pages/pdf/FTC-Competition_How-Comp-Works.pdf

Business Practices that break Antitrust Laws

price fixing monopoly supply restrictions customer-allocation agreements

Activity 1: Find the definitions for the expressions in the box.

A is when one company has control over an entire market—like the trusts did over steel
and oil. It’s not illegal to have a monopoly; it is illegal to use unreasonable methods to get a monopoly.
For example, if your competitor goes out of business because you sell better stuff at better prices with
better service—that’s fair enough. But you can’t sabotage your competitor’s store to put them out of
business. That would count as an unreasonable method, and you’d be breaking the law.

occurs when competing sellers agree on what to charge. Take the example of three
companies that made shoes: they got together to agree on a price for the shoes they’d supply to shoe
stores—and prices went up! But these shoe-makers got caught and ended up paying some hefty fines.
Companies can get in serious trouble for price fixing…fines, probation, even jail. It’s no joke.

happen when competitors agree with each other to sell fewer products. That
creates a shortage and drives up prices.
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are when competitors agree to divide up customers, maybe by

geographic area. For example, they might say, “You take all the customers east of the Mississippi River;
I’ll take all of those west of the Mississippi.” This reduces—and may even eliminate—competition…and
that’s illegal. Business owners who make these kinds of agreements can face heavy fines or possible jail
time.

Adpated from: http://www.ftc.gov/bcp/edu/microsites/youarehere/pages/pdf/FTC-

Competition_Playing-By-Rules.pdf

Advertising

The Federal Trade Commission enforces truth-in-advertising laws in the United States. Here’s what
the FTC looks for:

 Deception: If an ad says or shows something that’s false or that misleads you about a product,
it’s deceptive. That’s crucial if the false or misleading information is an important part of your
decision to buy the product.• Proof: Some products require more proof for their claims that other
products. It depends on the effect that a lie about a product could have on you. For example, false
information in an ad for a pen might not mean much to your health or safety. But false information
in an ad about a “cure” for a disease could be harmful. That’s why those claims need more proof.

 Unfairness: If consumers are hurt in some way by something a business did—say its practice
caused you to be hurt physically or to lose money—the FTC takes a closer look to see if the
business did something unfair. The FTC asks three key questions:
– Was the harm serious?
– Could the consumer have avoided the harm?
– Is the harm to some consumers outweighed by some benefits to other
consumers, or to competition?

If the business’ practice fails this test, the FTC would believe its behavior was unfair and could follow
up with legal action.• All claims count: An advertiser is responsible for all the claims in an ad—not only
for what the ad actually says, but also for what it shows or implies. The words, the pictures, and even
the product’s name add up to the “net impression” of an ad. The net impression is what the FTC looks
at to decide whether an ad is deceptive.

A key part of the FTC’s analysis is what’s known as the “reasonable consumer.” The FTC looks at what
an ad says or shows from the viewpoint of the audience the advertiser is trying to reach—not from
the perspective of an FTC lawyer. If an ad is aimed at teenagers, the FTC tries to look at the adas a
teenager would, not as a parent would.

Truth or Consequences

The FTC doesn’t have to prove that a business or ad agency means to fool people—only that people
are likely to have been fooled by the ad. So if an advertiser breaks the law and has an unfair or deceptive
ad, what happens next?
The FTC can make the company:

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the ad: If an
ad breaks the law, the company usually has to stop running the ad.
This happens through a “cease and desist order.” This may sound
like a simple solution, but it

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can be an expensive one. The company responsible for the ad winds up losing all the money they
paid to produce and place the ad.

 Fix the ad: In some cases, the company responsible may be required to run ads that correct the
false impression they made. This is called “corrective advertising.”

 Add warnings: Sometimes the company has to put warnings on labels or in advertisements so
consumers get more accurate information about a product. You might see this kind of warning
on health products, like a cold remedy, that warn you of possible side effects.

 Stop being in the same business: Some people or companies are banned from doing the
same things in the future—for example, they may not be allowed to make infomercials to sell
similar products.

 Pay customers back: The person or company that broke the law may have to return any money
they got because of the bad ad. Every year, the FTC recovers millions of dollars from companies
that broke the truth-in-advertising laws and returns some to the consumers who bought the
product in question.

ACTIVITY 2.
1. Look at ads in a magazine or online. Figure out who the target audiences are for the ads-who
is the “reasonable consumer” for the ad. What would the reasonable consumer think about the ads?

2. What do you think about this ad?

Adpated from: https://www.consumer.ftc.gov/sites/default/files/games/off-

site/youarehere/pages/pdf/FTC-Ad-Marketing_The-Law.pdf

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Activity 1: After you finish reading Consumer Law, answer the following questions.

1. Deceptive advertising occurs:

a. only if an advertiser intended an ad to be deceptive.
b. if a reasonable consumer is misled by an advertising claim.
c. if advertising claims are puffery.
d. if advertising claims are obvious exaggerations.

2. Joellen's General Store advertises cans of X-brand whole tomatoes for $.33 per can, although she
does not have any in stock. When customers arrive to buy the tomatoes, Joellen tells them that her
stock of X-brand canned tomatoes has been sold and that she cannot obtain more at the lower
price. She then informs the customers that she has Y-brand canned tomatoes in stock, for $.55 per
can, and that the Y-brand canned tomatoes are far superior to the X-brand canned tomatoes. What
do you call Joellen's behavior?

a. counteradvertising
b. a cease-and-desist order
c. bait-and-switch advertising
d. a violation of Regulation Z

3. What is a cease-and-desist order?

a. An order to correct earlier false claims.
b. An order requiring that unfair or deceptive advertising be stopped.
c. An order to provide testimony before a court.
d. An order to perform a specific task the person contracted to do.

4. Which of the following is the greatest source of complaints to the nation's Better Business
Bureaus?
a. impure food
b. safety labeling
c. internet advertising
d. telephone or mail-order sales

5. Regulation Z involves:
a. the prohibition of pyramid schemes in sales.
b. rules designed to implement the provisions of the Truth-in-Lending Act.
c. rules implementing the Federal Food, Drug and Cosmetic Act.
d. comprehensive rules regulating consumer safety.

6. "Cooling-off" laws are laws that:

a. permit buyers of goods sold door to door to cancel their contracts within a specified time
period, usually two or three days.
b. prohibit companies from selling their goods door to door.
c. allow consumers to rescind real estate contracts within three days.
d. permit lenders to wait three days before extending credit to a woman who asserts her rights
under the Truth-in-Lending Act.

7. In order for the Food and Drug Administration (FDA) to approve a drug for sale, what must a
pharmaceutical company show?
a. That the drug is both effective and safe.
b. That the drug is safe.
c. That the drug will cure all people who take it.
d. That the drug is not a medical device.
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8. If a creditor fails to follow exactly the provisions of the TILA, what may happen?
a. A court may impose punitive damages.
b. A court may rescind the credit contract.
c. A court may order a novation.
d. A court may reform the credit contract.

9. The Equal Credit Opportunity Act prohibits the denial of credit based solely on several
characteristics. Which of the following IS NOT one of these characteristics?
a. age
b. marital status
c. disability
d. race

10. Which of the following statements is true with respect to state consumer protection laws?
a. State consumer protection laws do not exist; only the federal government has the authority
to enact laws governing consumer protection.
b. Typically, state consumer protection laws are directed at buyers' deceptive practices.
c. State consumer laws offer far less protection for consumers than do federal laws.
d. State consumer protection laws often provide more extensive protections for consumers
than federal laws do.

Retrieved from: http://www.cengage.com/cgi-

wadsworth/course_products_wp.pl?fid=M20b&product_isbn_issn=0324303904&discipline_number=
404

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CONSUMER LAW
VOCABULARY

Activity 2: Match the words in the box with their definitions below.

A. Bait-and-switch advertising E. Multiple product order

B. Regulation Z F. Validation notice
C. Cease-and-desist order G. Counteradvertising
D. Consumer law

1. Advertising a product at a very attractive price (the “bait”) and then informing the
consumer, once he or she is in the store, that the advertised product is either not
available or is of poor quality; the customer is then urged to purchase (“switched” to)
a more expensive item.
2. An administrative or judicial order prohibiting a person or business firm from
conducting activities that an agency or court has deemed illegal.
3. The body of statutes, agency rules, and judicial decisions protecting consumers of
goods and services from dangerous manufacturing techniques, mislabeling, unfaircredit
practices, deceptive advertising, and so on. Consumer laws provide remedies and
protections that are not ordinarily available to merchants or to businesses.
4. New advertising that is undertaken pursuant to a Federal Trade Commission order
for the purpose of correcting earlier false claims that were made about a
product.
5. An order issued by the Federal Trade Commission to a firm that has engaged in
deceptive advertising by which the firm is required to cease and desist from false
advertising not only in regard to the product that was the subject of the action but also
in regard to all the firm’s other products.
6. A set of rules promulgated by the Federal Reserve Board to implement the provisions
of the Truth-in-Lending Act.
7. An initial notice to a debtor from a collection agency informing the debtor that he or
she has thirty days to challenge the debt and request verification.

Retrieved from: http://www.cengage.com/cgi-

wadsworth/course_products_wp.pl?fid=M20b&product_isbn_issn=0324303904&discipline_number=404

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Consumer Law
CASES

Activity 3: Read the following facts of the cases. Identify the issues, the agencies
involved and give a supported opinion.

1. Concerned with rising rates of obesity and related health care issues, the New York City Board of
Health adopted a regulation mandating all chain restaurants with 15 or more establishments nationally
to make statements showing calorie content in a precise manner for all items on their menus in New
York City. Some restaurants already provided such information, but not on every menu. They
requested that alternative sources of calorie posting be considered to be compliance, but that was
rejected. A restaurant association then sued the city, contending that the regulation wasin conflict with
federal food labeling requirements and violated the First Amendment right to free speech. The district
court held for the city. The restaurant association appealed.

2. Williams owed a debt that OSI, a debt collection agency, attempted to collect. OSI sent a letter
saying $807.89 is the “total due” and then broke that down into principal, interest and fees. It then
stated that the total due may change because of daily interest charges. OSI should be called to get
the exact payout balance. Williams sued for violation of the Fair Debt Collection Practices Act
(FDCPA), contending that debt collection letters must state the amount of the debt they are seeking
to collect. Williams said that was not clear since the letter said you must call to get the exact amount
due. That is confusing and violated the FDCPA. The district court granted summary judgment in favor
of OSI. Williams appealed.

3. Nina Kay MacDermid, who had a history of mental problems, took out credit cards in the name of
herself and her husband without his knowledge. Due to a bankruptcy, she was supposed to live on a
strict budget, but she got the cards, ran up large balances and, when that fact emerged, killed herself.
Prior to that, the credit card companies had begun efforts to collect the debts, which she hid from her
husband by using a Post Office box for mail. She told her psychologist that Discover threatened to
prosecute the couple for credit card fraud. Her husband, Donald, who did not know of the cards until
shortly before her suicide, sued Discover, which had issued her three cards with him as primaryholder,
for violating the Fair Debt Collection Practices Act (FDCPA), the Truth in Lending Act (TILA), and
for infliction of emotional distress. The trial court dismissed the suit; Donald appealed.

4. Cerasani got a new Honda Civic through a long-term lease and had problems with the car. She
returned it to the dealership for repairs several times, but was not happy with the results. She sued
Honda under the Magnuson-Moss Warranty Act (MMWA) for breach of written warranty and
breach of implied warranty. The trial court dismissed her suit. The appeals court upheld dismissal of
the implied warranty but allowed the claim for breach of written warranty to proceed. Honda appealed.

5. Johnson & Johnson Vision Care, a contact lens maker, sued 1-800 Contacts, a contact lens seller,
claiming false advertising in violation of the Lanham Act. 1-800 claimed that consumers preferred Vision
Focus Dailies by a 5 to 1 ratio over J&J's ACUVUE. 1-800 also made claims about ease of availability of
lenses and other matters. The district court issued a preliminary injunction against 1- 800 for making
false claims under the Lanham Act. 1-800 appealed.

6. Zavie, who had suffered from ulcers and had been told not to take aspirin, took the pain reliever
Aleve, after seeing the claim "Aleve is gentler to the stomach lining than aspirin." After taking Aleve,
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hospitalized
with internal bleeding. He sued the maker, Procter & Gamble, for
false advertising in violation of California law, requesting over
$100 million in restitution for California

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consumers. The trial court held for P&G, finding the advertising was not misleading and was not likely
to mislead a reasonable consumer. Zavie appealed.

B. Below are the decisions the courts issued on these cases. Match each ruling with its
corresponding case. Then discuss to see if your opinions were similar or different.

Case No.
Affirmed. For purposes of California law, a reasonable consumer need not be exceptionally acute and
sophisticated. The courts need not use a "least sophisticated consumer" standard. An ordinary
consumer, acting reasonably under the circumstances, is the appropriate standard to be applied in false
advertising cases. California law is consistent with FTC interpretation of misleading advertising. The
statement here was not likely to deceive reasonable consumers.

Case No.
Affirmed. The federal Nutrition Labeling and Education Act does not regulate nutrition information
labeling on restaurant food, so states and localities are free to adopt their own rules, such as calorie
count. The federal Act does not preempt the New York City rule. The Act does regulate nutrition
content claims on restaurant foods, so state and local governments may only adopt rules that are
consistent with those provided by the Act. Commercial speech is protected by the First Amendment,
but the protection is less extensive than is provided for noncommercial speech. Disclosure
requirements about calories are factual and have a rational basis. The requirement is rationally related
to the goal of reducing obesity.

Case No.
Affirmed. Both the MMWA and Florida’s Motor Vehicle Warranty Enforcement Act, the Lemon Law,
are affected by this case as the terminology regarding who is covered is similar. Congress intended the
MMWA to enhance the enforceability of warranties on consumer products and to protect the ultimate
user of products. A person who leases a car is entitled to enforce the manufacturer’s warranty under
the Lemon law and the MMWA. Hence, Cerasani, although not the buyer of a car, is entitled to
warranty protection offered by the MMWA and the state Lemon Law regarding her car.

Case No.
Reversed in part; affirmed in part. Under TILA, the credit card company was not required to investigate
the legitimacy of the address provided by Nina. The company could not know that Nina provided
information about Donald without his knowledge and could not be expected to know about her
scheme to keep him ignorant about the accounts. Similarly, the FDCPA does not apply because the
credit card company is not a debt collector covered by the statute. It was attempting to collect the
debt owed to it in its own name. However, the suit for intentional infliction of emotional distress may
proceed. Discover told the MacDermids that it had notified local authorities and that the district
attorney will “take a little trip out to your house.” There were other implications of criminal
prosecution even though this is a civil matter. Nina had discussed this with her psychiatrist, who
testified that she was preoccupied with that threat of criminal prosecution. As such, it will be
determined at trial to determine if this was outrageous conduct that inflicted emotional distress that
played a role in the suicide.

Case No.
Affirmed. A consumer must show that the letter would confuse many recipients of a letter for it to
violate the FDCPA. The letter here, stating that the balance shown in the notice “may not reflect the
exact amount of interest which is accruing daily” and instructing consumers to contact the agency for
“exact payout balance” does comport with the FDCPA requirement for a clear statement of the debt
amount. The fact that the “exact payout balance” might differ from “total due” is a common sense
matter that most people would understand.

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Case No.
Reversed. To establish the likelihood of success on the merits of a false advertising claim under the
Lanham Act, to obtain a preliminary injunction, the plaintiff must establish: 1) the ads of the opposing
party were false or misleading; 2) the ads deceived, or had the capacity to deceive, customers; 3) the
deception had a material effect on purchasing decisions; 4) the misrepresented product or service
affects interstate commerce; and 5) the plaintiff has been, or is likely to be, injured as a result of the
false advertising. The injunction is not justified here because the statements made by 1-800 were not
shown to be literally false. J&J could not disprove statements in 1-800's advertising. The matter may be
litigated, but there is not sufficient evidence to justify an injunction.

Retrieved and adapted from: http://www.swlearning.com/blaw/cases/topic_consumer.html

WRITING LETTERS OF COMPLAINT

Do
 gather all your facts before you start writing the letter, e.g. where and when goods were
bought, any customer reference numbers or invoice numbers, or a record of any previous
communication with the company concerned.
 get straight to the point and set out exactly what the problem is.
 give all the relevant information in a clear and logical sequence.
 state what action you want the company to take and when you expect them to have done this.
 enclose copies of any relevant documents that support your case.

Don’t
 use abusive language, however frustrated or angry you might feel.
 allow yourself to get sidetracked from your specific problem into generalized criticism of the
company or its products or services.
 send your letter without checking it carefully for grammar or spelling mistakes.

Structuring your letter

1. The opening

 Start your letter with the greeting Dear Mr (or Mrs, Ms, Miss, etc.) Surname.
 If you don’t know the name of the person you are writing to, begin with Dear Sir or Dear
Madam; if you don’t know their name or sex, use Dear Sir or Madam.

2. The content

 Begin with a heading alerting the reader to the subject of the letter, and in your first sentence
draw their attention to the matter you’re going to raise or discuss. For example I am writing
to complain..., or I wish to express my dissatisfaction with ... or Thank you for your letter of
...
 Introduce your main point as early as possible, stating your reason for writing in a clear, concise
way. Once you have done this, you may want to give more details, perhaps adding further
background or relevant facts.

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 In conclusion, you should state what your expectations are, for example Please let me know
as soon as possible what action you propose to take or I look forward to hearing from you
within the next ten days.

3. The closing

The wording at the end of a formal letter follows a standard format:

 If you know the name of the person you’re writing to, you should end the letter with Yours
sincerely.
 If your letter begins with Dear Sir or Dear Madam, it should end with Yours faithfully.
 Your own name should be typed out underneath your signature.

Sample Letter of Complaint

Jenny Hawkins
8 Dean Close
NEWFORD
NW3 2NY

11 November 2014

Customer Services Manager

Evans Electrical Products
7 Swan Street
Brampton
BR2 1RW

Dear Sir or Madam,

RE: EasyIron Electric Iron (Model no: 2279)

I bought the above iron from The Electrical Store in Newford on 10 October 2014. On using it for the
first time, I found that the temperature control was faulty; it was not possible to set it for any
temperature apart from the highest (cotton).

When I returned the iron to the store, they said that they were unable to replace it or offer me a
refund, but that it could be sent away for repair. As I need an iron on a daily basis, and it was not clear
how long the repair would take, this option was unsatisfactory. As the iron clearly does not function
as it should and therefore does not comply with the legal standards of product quality, I am therefore
writing to you to ask for a full refund of the price (£35.99).

I look forward to hearing from you within the next fortnight.

Yours faithfully,

Jenny Hawkins (Ms)

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Now you write a formal letter of complaint to the FTC about a product you boughtwhich stated
you would lose weight without dieting.

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APPENDIXES

SAMPLE AGREEMENTS

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One-Time Sale of Goods Agreement

This CONTRACT FOR SALE OF GOODS is made this __ day of , 20 by and between
, a [STATE OF ORGANIZATION OR RESIDENCE]
[CORPORATION/PARTNERSHIP/SOLE PROPRIETORSHIP/RESIDENT], with its principal place of
business at [COMPLETE ADDRESS], (“Seller”) and _, a [STATE OF ORGANIZATION
OR RESIDENCE] [CORPORATION/PARTNERSHIP/SOLE PROPRIETORSHIP/RESIDENT], with its
principal place of business at [COMPLETE ADDRESS] (“Buyer”) for the purchase of the goods
described below:

1. TERMS. Seller shall deliver to the Buyer on or before Day of (MONTH), (YEAR) the
following goods:
Item #
Qty. _
Price Total $

2. NOTICE. Buyer shall give Seller _ _ days’ advance notice regarding any change to the
quantity/item requested for delivery. Seller shall refund any extra payment accordingly.

3. RISK OF LOSS. The risk of loss from any casualty to the Goods, regardless of the cause, shall be
incurred by Seller until the Goods have been a delivered by the Buyer.

4. ACCEPTANCE. Buyer shall have the right to inspect the goods upon receipt, and within business
days after delivery Buyer shall give notice to Seller of any claim for damages on account of condition,
quality, or grade of the goods. Buyer shall specify the basis of the claim in detail. Failure of Buyer to
comply with these conditions will constitute irrevocable acceptance of the goods by Buyer. All notices
between the parties must be in writing and delivered by courier or by certified mail, return receipt
requested.

5. CHARGES. Seller shall invoice Buyer upon and for each shipment. Buyer shall pay for the total sale
amount $ _ in $ equal payments over the course of the months

following acceptance of the goods delivered. The first payment shall be due day of ,
20 , with equal payments to follow the same day the next month for months. Any late
payment shall bear a late charge of _%. If Seller undertakes collection or enforcement efforts,
Buyer shall be liable for all costs thereof, including attorney fees.

6. WARRANTY. Seller warrants that the goods sold hereunder are free from substantial defects in
workmanship and materials. Seller’s liability under the foregoing warranty is limited to replacement of
goods or repair of defects or refund of the purchase price at Seller’s sole option. No other warranty,
express or implied, is made by Seller, and none shall be imputed or presumed.

7. WARRANTY OF TITLE. Seller warrants that at the time of signing this agreement, Seller neither
knows nor has reason to know of the existence of any outstanding title or claim of title hostile to
rights of the Seller in the goods.

8. TAXES. All sales taxes, tariffs, and other governmental charges shall be paid by Buyer and are Buyer’s
Responsibility Except As Limited By Law.

9. GOVERNING LAW. This Contract shall be governed by the laws of the State of . Any
disputes hereunder will be heard in the appropriate federal and state courts located in [NAME OF
COUNTY], [STATE].

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10. FORCE MAJEURE. Seller may, without liability, delay performance or cancel this Contract on
account of force majeure events or other circumstances beyond its control, including, but not limited
to, strikes, acts of God, political unrest, embargo, failure of source of supply, or casualty.

11. MISCELLANEOUS. This Contract contains the entire agreement between the parties and
supersedes and replaces all such prior agreements with respect to matters expressly set forth herein.
No modification shall be made to this Contract except in writing and signed by both parties. This
Contract shall be binding upon the parties and their respective heirs, executors, administrators,
successors, assigns and personal representatives.

12. ENTIRE AGREEMENT. The parties intend this writing to be the final expression of the terms of
their agreement and further intend that this writing be the complete and exclusive statement of all the
terms of their agreement.

13. ATTORNEY FEE PROVISION. In any litigation, arbitration, or other proceeding by which one
party either seeks to enforce its rights under this Sales Contract or seeks a declaration of any rights
or obligations under this Sales Contract, the prevailing party shall be awarded reasonable attorney fees,
together with any costs and expenses, to resolve the dispute and to enforce the final judgment.

ACKNOWLEDGMENT BY SELLER
(s) dated _
(Seller)
STATE OF MINNESOTA
COUNTY OF

ACKNOWLEDGMENT BY BUYER
(s) dated _
(Buyer)
STATE OF MINNESOTA
COUNTY OF

Retrieved from: http://jux.law/sample-one-time-sale-of-goods-agreement-template-for-mn-businesses/

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JOINT VENTURE AGREEMENT

THIS JOINT VENTURE AGREEMENT ("Agreement"), made and entered into as of this day of
_, 20 , by and between _ _ _of _ ("_") and _ of
("_").

ARTICLE I GENERAL PROVISIONS

1.01 Business Purpose. The business of the Joint Venture shall be as follows: [Describe Business
Purpose]
1.02 Term of the Agreement. This Joint Venture shall commence on the date first above written and
shall continue in existence until terminated, liquidated, or dissolved by law or as hereinafter provided.

ARTICLE II GENERAL DEFINITIONS

The following comprise the general definitions of terms utilized in this Agreement:
2.01 Affiliate. An Affiliate of an entity is a person that, directly or indirectly through one or more
intermediaries, controls, is controlled by or is under common control of such entity.
2.02 Capital Contribution(s). The capital contribution to the Joint Venture actually made by the parties,
including property, cash and any additional capital contributions made.
2.03 Profits and Losses. Any income or loss ofthe Partnership for federal income tax purposes
determined by the Partnership's fiscal year, including, without limitation, each item of Partnership
income, gain, loss or deduction.

ARTICLE III OBLIGATIONS OF THE JOINT VENTURERS

is responsible for all operations and decisions of the Joint Venture and will be
compensated for providing various services.

ARTICLE IV ALLOCATIONS
4.01 Profits and Losses. Commencing on the date hereof and ending on the termination of the business
of the Joint Venture, all profits, losses and other allocations to the Joint Venture shall be
allocated as follows at the conclusion of each fiscal year: _ _% __ _
_%

ARTICLE V RIGHTS AND DUTIES OF THE JOINT VENTURERS

5.01 Business of the Joint Venture. _ shall have full, exclusive and complete authority and
discretion in the management and control of the business of the Joint Venture for the purposes herein
stated and shall make all decisions affecting the business of the Joint Venture. At such, any action taken
shall constitute the act of, and serve to bind, the Joint Venture. _ shallmanage and control the
affairs of the Joint Venture to the best of its ability and shall use its best efforts to carry out the
business of the Joint Venture. _ shall not participate in or haveany control over the Joint
Venture business nor shall it have any authority or right to act for or bind the Joint Venture.

ARTICLE VI AGREEMENTS WITH THIRD PARTIES AND WITH AFFILIATES OF

THE JOINT VENTURERS
6.01 Validity of Transactions. Affiliates of the parties to this Agreement maybe engaged to perform
services for the Joint Venture. The validity of any transaction, agreement or payment involving the Joint
Venture and any Affiliates of the parties to this Agreement otherwise permitted by the terms ofthis
Agreement shall not be affected by reason of the relationship between them and such Affiliatesor
the approval of said transactions, agreement or payment.
6.02 Other Business of the Parties to this Agreement. The parties to this Agreement and their
respective Affiliates may have interests in businesses other than the Joint Venture business. The Joint
Venture shall not have the right to the income or proceeds derived from such other business

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interests and, even if they are competitive with the Partnership business, such business interests shall
not be deemed wrongful or improper.

ARTICLE VII PAYMENT OF EXPENSES

All expenses of the Joint Venture shall be paid by _ _ and shall be reimbursed by the Joint
Venture.

ARTICLE VIII INDEMNIFICATION OF THE JOINT VENTURERS

The parties to this Agreement shall have no liability to the other for any loss suffered which arises out
of any action or inaction if, in good faith, it is determined that such course of conduct was in the best
interests of the Joint Venture and such course of conduct did not constitute negligence or misconduct.
The parties to this Agreement shall each be indemnified by the other against losses, judgments,
liabilities, expenses and amounts paid in settlement of any claims sustained by it in connection with the
Joint Venture.

ARTICLE IX DISSOLUTION
9.01 Events of the Joint Venturers. The Joint Venture shall be dissolved upon the happening of any of
the following events: (a) The adjudication of bankruptcy, filing of a petition pursuant to a Chapter of
the Federal Bankruptcy Act, withdrawal, removal or insolvency of either of the parties. (b) The sale
or other disposition, not including an exchange of all, or substantially all, of the Joint Venture assets.
(C) Mutual agreement of the parties.

ARTICLE X MISCELLANEOUS PROVISIONS

10.01 Books and Records. The Joint Venture shall keep adequate books and records at its place of
business, setting forth a true and accurate account of all business transactions arising out of and in
connection with the conduct of the Joint Venture.
10.02 Validity. In the event that any provision of this Agreement shall be held to be invalid, the same
shall not affect in any respect whatsoever the validity of the remainder of this Agreement.
10.03 Integrated Agreement. This Agreement constitutes the entire understanding and agreement
among the parties hereto with respect to the subject matter hereof, and there are no agreements,
understandings, restrictions or warranties among the parties other than those set forth herein
provided for.
10.04 Headings. The headings, titles and subtitles used in this Agreement are for ease of reference only
and shall not control or affect the meaning or construction of any provision hereof.
10.05 Notices. Except as may be otherwise specifically provided in this Agreement, all notices required
or permitted hereunder shall be in writing and shall be deemed to be delivered when deposited in the
United States mail, postage prepaid, certified or registered mail, return receipt requested, addressed
to the parties at their respective addresses set forth in this Agreement or at such other addresses as
may be subsequently specified by written notice.
10.06 Applicable Law and Venue. This Agreement shall be construed and enforced under the laws of
the State of .
10.07 Other Instruments. The parties hereto covenant and agree that they will execute each such
other and further instruments and documents as are or may become reasonably necessary or
convenient to effectuate and carry out the purposes of this Agreement.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and
year first above written.

Signed, sealed and delivered in the presence of:

Adapted from: http://www.xmarks.com/s/site/www.lectlaw.com/forms/f101.htm

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AGREEMENT TO PURCHASE REAL ESTATE

The undersigned (herein “Purchaser”) hereby offers to purchase from the owner (herein “Seller”)
the real estate
located at in the city of ,
County
of , State of _, the legal description of which
is: _
_
_
upon the following terms and conditions:

1. Purchase Price and Conditions of Payment

The purchase price shall be Dollars
($ ) to be paid in accordance with subparagraph _,
below:
A: Cash. The purchase price shall be paid in its entirety in cash at the time of closing the sale.
B: Cash Subject to New Mortgage. The purchase price shall be paid in cash at the time of closing the
sale subject, however, to Purchaser’s ability to obtain a first mortgage loan within__________ days
after the acceptance of this offer by Seller in the amount of $ _____________ , payable in not less
than monthly installments, including interest at a rate not to exceed
_% financing. If such financing cannot be obtained within the time specified above then
either Purchaser or Seller may terminate this agreement and any earnest money deposited by
Purchaser will be promptly refunded.
C: Cash Subject to Existing Mortgage. The purchase price shall be paid in cash at the time of closing
the sale after deducting from the purchase price the then outstanding balance due and owing under
the existing mortgage in favor of , dated_ _, 20 , in the original
amount of $_ ; of such mortgage debt is approximately $ _________ as
of , 20 .
D: Cash With Assumption of Existing Mortgage. The purchase price shall be paid in cash at the time
of the closing of the sale after deducting from the purchase price the then outstanding balance due and
owing under the existing mortgage in favor of , dated ________________ ,
20 ,having a present balance of approximately $_ _ , as of
, 20 , which the purchaser hereby assumes and agrees to pay in accordance with
its terms and to perform all of its provisions; purchaser shall pay any and all payments coming due
after the closing of the sale. Any transfer fees required by the mortgage shall be paid by
.
E: Sale by Land Contract. The purchase price shall be paid in accordance with the certain land contract
attached hereto and incorporated into this contract by this reference. The down paymentto be
made at the time of closing this sale shall be $ _and the balance of
$ shall be paid at the rate of _ % per annum.

2. Earnest Money Deposit

As earnest money Purchaser deposits $_ with the broker which shall be
applied to the purchase price at the time of closing the sale. In the event that this offer is not accepted
by Seller this earnest money deposit shall be promptly refunded to Purchaser by the broker. In the
event that this offer is accepted by Seller and Purchaser shall fail to perform the terms of this agreement
the earnest money deposit shall be forfeited as and for liquidated damages suffered by Seller. Seller is
not, however, precluded from asserting any other legal or equitable remedy, whichmay be available to
enforce this agreement.

3. Real Estate Taxes, Assessments, and Adjustments

Real Estate Taxes accrued against the property shall be prorated through the date of closing the sale
and Seller shall pay all taxes allocated to the property through that date of acceptance of this offer to
purchase. Rents, if any, shall be prorated through the date of closing and all rent deposits shall be

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transferred to Purchaser. Existing casualty insurance shall be canceled/prorated through the date of
closing.

4. Title to the Property

Seller shall provide purchaser prior to the closing and promptly after the acceptance of this offer, at
Seller’s expense and at Seller’s option an abstract of title to the property brought down to date or an
owner’s policy of title insurance in an amount equal to the purchase price, said abstract of policy to
show marketable or insurable title to the real estate in the name of Seller subject only to easements,
zoning and restrictions of record and free and clear of all other liens and encumbrances except as
stated in this offer. If the abstract or title policy fails to show marketable or insurable title in Seller a
reasonable time shall be permitted to cure or correct defects. Seller shall convey title to Purchaser
at the time of closing by a good and sufficient general warranty deed free and clear of all liens and
encumbrances except as otherwise provided in this offer and subject to easements, zoning and
restrictions of record.

5. Possession of the Property

Purchaser shall be given possession of the property on , 20 . A failure onthe
part of Seller to transfer possession as specified will not make Seller a tenant of Purchaser, but in such
event Seller shall pay to Purchaser $ per day as damages for breach
of contract and not as rent. All other remedies, which Purchaser may have under law, are reserved
to Purchaser.

6. Risk of Loss
The risk of loss by destruction or damage to the property by fire or otherwise prior to the closing of
the sale is that of Seller. If all or a substantial portion of the improvements on the property are
destroyed or damaged prior to the closing and transfer of title this agreement shall be void able at
Purchaser’s option and in the event Purchaser elects to avoid this agreement the earnest money
deposited shall be promptly refunded.

7. Improvements and Fixtures Included

This offer to purchase includes all improvements, buildings and fixtures presently on the real estate
including but not limited to electrical, gas, heating, air conditioning, plumbing equipment, built-in
appliances, hot water heaters, screens, storm windows, doors, Venetian blinds, drapery hardware,
awnings, attached carpeting, radio, television antennas, trees, shrubs, flowers, fences and
_
_
_
_

n
It is expressly agreed that this agreement to purchase real estate includes the entire agreement of
Purchaser and Seller. This agreement shall be binding upon the heirs, personal representatives,
successors and assigns of both Purchaser and Seller. This agreement shall be interpreted andenforced
in accordance with the laws of the State of_ _ .

9. Special Conditions
_
_
_

10. Time for Acceptance and Closing

This offer is void if not accepted by Seller in writing on or before _ _
A.M./P.M. of the _day of ________________________ ,
20 .
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Closing of the sale shall take place _ days after Purchaser’s receipt of an abstract
showing marketable title in Seller or title insurance binder showing insurable title in Seller.

This offer is made at _ _, State of _ _ ,

this day of _ , 20 .

_
(PURCHASER)
_
(PURCHASER)

Acceptance by Seller
The foregoing offer to purchase real estate is hereby accepted in accordance with the terms and
conditions specified above. The undersigned hereby agrees to pay a brokerage fee of
$ _ to , broker, in accordance with the
existing listing contract.

Dated this _ day of _ _ ,

20 .
_
(SELLER)
_
(SELLER)

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GLOSSARY OF COMMON LEGAL TERMS

NOTE: The following definitions are not legal definitions. Rather, these definitions are intended to give
you a general idea of the meanings of common legal words. For comprehensive Definitions of legal
terms, you may wish to consult a legal dictionary “Black’s Law Dictionary” is one such legal dictionary
which is usually available at most law libraries.

This glossary of common legal terms is also available on‐line at:

http://www.nycourts.gov/lawlibraries/glossary.shtml

A
Acknowledgment: The act of going before a qualified officer (e.g., Clerk) and declaring the validity of
the document. The officer’s certification that the declaration was made is known as the
acknowledgment.

Acquit: The act of freeing a person from the charge of an offense by means of a decision, verdict or
other legal process; to discharge.

Action: A civil judicial proceeding whereby one party asserts a claim against another for a wrong
done or for protection or enforcement of a right, or prevention of a wrong; requires a pleading and
service of papers on the other party .

Actual Place of Business: Any location that the defendant, through regular solicitation or
advertisement, has held out as its place of business (CPLR Sec. 308.6).

Ad Damnum: Clause of a pleading alleging the dollar amount of a claimed loss or injury.

Adjournment: A temporary postponement of the court proceedings until a specified future time.

Adjudicate: To hear or conduct a trial, try and make a judicial decision.

Adversary: An opposing party. The defendant is the plaintiff's adversary.

Adversary System: The system of trial practice in the U.S. and some other countries in which each of
the opposing, or adversary, parties has full opportunity to present and establish its contentions before
the court.

Affiant: One who swears to an affidavit; deponent.

Affidavit: A sworn or affirmed statement made in writing and signed; if sworn, it must be notarized.

Affinity: Related by marriage; family relation with family of spouse’s.

Affidavit of Service: An affidavit intended to certify or prove that service of a writ, notice, or other
document has been made.

Affirm: An act of declaring something to be true under the penalty of perjury by a person who
conscientiously declines to take an oath for religious or other pertinent reasons; also attorneys are
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permitted to affirm rather than swear under oath.

Affirmation: A solemn and formal declaration under penalties of perjury that a statement is true,
without an oath.

Affirmed: Upheld, agreed with (e.g.,The Appellate Court affirmed the judgment of the City Court); also
means a challenge to a court decision or order was rejected.

Allegation: The assertion, declaration, or statement of a party to an action, made in a pleading,

setting out what the party expects to prove; what a party claims to be true.

Allege: To assert a fact in a pleading, affidavit or testimony.

Alternate Juror: A juror selected as substitute in case another juror must leave the jury panel.

Amend: To change or modify.

Amicus Curiae (“friend of the court”): A non-party to a proceeding whom the Court permits to
present his, her or its views.

Annul: To make void or cancel. For example, voiding an invalid marriage.

Answer: A paper submitted by a defendant in which he/she responds to and/or denies the allegations
of the plaintiff; the usual response to a complaint or petition.

Appeal: A proceeding to have a case examined by a higher court to see if a lower court's decision
was made correctly according to law.

Appearance: The participation in the proceedings by a party summoned in an action, either in person
or through an attorney.

Appellant: The party who takes an appeal to a higher court.

Appellee or Respondent: The party against whom an appeal is taken.

Arbitration: The submission voluntarily or involuntarily of a disputed matter to selected persons and
the substitution of their award or decision for the judgment of a court or its confirmation by the court
as a judgment of the court.

Argument: A reason given in proof or rebuttal to persuade a judge or jury.

At Issue: Whenever the parties to an action come to a point in the pleadings or argument which is
affirmed on one side and denied on the other, the points are said to be "at issue".

Attachment: The taking of property into legal custody by an enforcement officer (See specialty
section: Recovery of Chattel).

Attestation: The act of witnessing an instrument in writing at the request of the party making the
instrument and signing it as a witness.

Attorney of Record: Attorney whose name appears in the court’s records or files of a case.

Award: A decision of an Arbitrator, judge or jury.

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B
B
Bail: The security given (or posted) to ensure the future appearance of a defendant.

Bar: (a) Prohibit or prevent - to bar the prosecution of an action; (b) The members of the legal
profession, attorneys and judges.

Bench: The Judge's seat or the judge, himself/herself, (e.g., the attorney addressed the bench).
Bifurcated Trial: A case in which the trial of the liability issue in a personal injury or wrongful death
case is heard separate from and prior to trial of the damages in question.

Bill of Costs: A written statement of the [itemized taxable] costs and disbursements that a successful
party may recover from the losing party.

Bill of Particulars: Factual detail submitted by a claimant after a request by the adverse party which
specifies , clarifies or explains further the claims and/or facts alleged in a pleading.

Brief: A written or printed document prepared by the lawyers or litigants on each side of a dispute and
submitted to the court in support of their arguments - a brief includes the points of law whichthe
person wished to establish, the arguments he or she uses, and the legal authorities on which heor
she rests his/her conclusions.

C
Calendar: A schedule of matters to be heard in court.

Calendar Call: The calling of matters requiring parties, or their attorneys, to appear and be heard,
usually done at the beginning of each court day.

Caption: In a pleading, deposition or other court paper , it is the heading or introductory clause which
shows the names of the parties, name of the court, number of the case on the docket or calendar, etc.

Case File: The court file containing papers submitted in a case.

Cause of Action: A claim and/or the grounds on which a legal action may be brought (e.g. property
damage, personal injury, goods sold and delivered, work labor and services).

Certified Copy: Copy of a document signed and certified as a true copy of an original by the Clerk of
the Court or other authorized persons (for example, lawyer).

Certificate of Readiness: A document attesting that the parties in a court proceeding are ready to go
to trial.

Certify: To testify or affirm in writing.

Certiorari (“to be more fully informed”): A proceeding in the state Supreme Court under Art. 78 of
the CPLR to review the decisions or actions of a public official or body, as in a tax certiorari matter,
a review of the tax assessed challenge.

Change of Venue: The removal of a suit begun in one county or district to another county or district
for trial, though the term may also apply to the removal of a suit from one court to another court of
the same county or district.

Charge to Jury: In trial practice, statements made by the court to the jury at the close of the action
instructing the jury as to what principles of law are to be applied by the jury in reaching a decision.

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Chattel: Item of personal property.

Citation: (a) Summons to appear; (b) reference to a written authority in support of an argument
made to the court.

Clerk's Extract: A summary of a trial which is written by a clerk and kept in court records.

Clerk's Minutes: Notes, which are taken by a clerk, of events that occurred in court.

Commissioner of Jurors: A person in charge of calling citizens for jury duty.

Commitment: An order to commit a person to the custody of a sheriff (jail), commissioner of

corrections (prison), or mental health facility.

Common Law: The body of law which originated in England and upon which present day U.S. law is
based other than statutes and administrative rulings: judge made law.

Compensatory Damages: Reimbursement for actual loss or injury, as distinguished from exemplary
or punitive damages.

Complaint: The initial pleading in an action formally setting forth the facts and reasons on which the
claims and demand for relief are based.

Condemnation: See eminent domain.

Consanguinity: Related by blood.

Conservator: One who is appointed by a court to manage the affairs of a protected person.

Consolidated Action: Two or more actions involving a common question of law or fact may be joined
or consolidated by the court; the actions then are merged, becoming one action with onetitle, and
they result in one verdict and one judgment.

Contempt of Court: An act or omission tending to obstruct or interfere with the orderly
administration of justice or to impair the dignity of the court or respect for its authority; refusal to
follow a court order or direction.

Consolidate: Joining two or more actions for trial together.

Contested Action: An action which involves disputed issue(s) of fact or law, a claim that is opposed.

Contract: A legally enforceable agreement between two or more persons or parties (oral or written).

Corroborate: To strengthen; to add weight by additional evidence.

Costs: The statutory sum awarded to the successful party when a judgment is entered. (Section 1901
all Court Acts.)

Counsel: Lawyer or attorney.

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Counterclaim: (a) In civil actions, a claim brought by a defendant
against the plaintiff for damages or other relief. (b) In small
claims/commercial claims, a claim brought by a defendant against the plaintiff

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for an amount not to exceed the maximum monetary

jurisdiction allowed in the smallclaims/commercial claims court.

Court of Limited Jurisdiction: A City Court, District Court or other court that has jurisdiction only
over types of actions authorized by law.

Court Reporter: A person who records by shorthand or stenographically takes down testimony
during court proceedings and later transcribes into writing.

Cross Claim: Claim litigated by co-defendants or co-plaintiffs against each other and not against a
party on the opposite side of the litigation.

Cross-Examination: Questioning by a party or his attorney of an adverse party or a witness called by

an adverse party; opposite of direct examination.

D
Damages: Monetary compensation for wrong or injury caused by the violation of a legal right.
(a) Compensatory damages-Reimbursement for actual loss or injury.
(b) Exemplary damages- Monetary award by way of punishment for injury caused by aggravated
circumstances or malice, in addition to compensation for the injury.
(c) Punitive damages-Monetary compensation awarded in excess of ordinary damages, as
punishment for a gross wrong.

Date-Stamp: The stamping on a document of the date it is received.

Decision: The determination reached by a court in any judicial proceeding, which is the basis of the
judgment or order.

Declaratory Judgment: One stating the rights of parties, may or may not also order something to be
done.

Decree: A decision or order of the court - a final decree is one which fully and finally disposes of the
litigation; an interlocutory decree is a provisional or preliminary decree which is not final.

Default: A default in a legal action occurs when a defendant fails to plead, appear or otherwise defend
within the time allowed.

Defendant: The party being sued, the party against whom a claim has been made.

Deliberation: The process by which a judge or jury comes to a decision or a verdict.

De Novo: Start anew, a new trial.

Deponent: One who testifies out of court under oath to the truth of facts.

Deposition: Sworn testimony of a witness made other than in court.

Direct Examination: The first interrogation of a witness by the party on whose behalf the witness is
called.

Directed Verdict: An instruction by the judge to the jury to return a specific verdict.

Discovery/Disclosure: A proceeding whereby one party to an action may be informed as to facts

known by other parties or witnesses, example depositions.

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Dismissal: Termination of a proceeding for a procedure defect or failure to prove a claim.

Dismissal with Prejudice: Action dismissed on the merits which prevents making the same claim or
cause of action again.

Dismissal without Prejudice: Action dismissed, not on the merits, which allows the claim to be made
again.

Dispose: The act of terminating a judicial proceeding.

Disposition: The result of a judicial proceeding by withdrawal, settlement, order, judgment or sentence.

Dissolution of Marriage: The termination of a marriage and restoring the parties to the state of
unmarried persons.

Docket: A document which summarizes a case, also the court’s calendar.

Domicile: That place where a person has a true and permanent home - a person may have several
residences, but only one domicile, usually the state where a person has their home.

E
Easement: Right held by one person to use the land of another for a specified purpose.

Eminent Domain: The power of a municipality to take private property for public use by condemnation,
i.e., the legal process by which real estate of a private owner is taken for public use without the owner's
consent, but upon the award and payment of just compensation.

Enjoin: To require a person, by writ of injunction from a court of equity, to perform or to refrain from
or cease doing some act.

Entry: The formal filing of an order of judgment with the County Clerk.

Equitable Action (Equity Matter): An action which may be brought for the purpose of restraining the
threatened infliction of wrongs or injuries, and the prevention of threatened illegal action; case in which
payment of money damages will not be adequate compensation.

Equitable Distribution: The power to distribute fairly upon divorce all property acquired during
marriage by husband and wife or either of them, whether legal title lies in their joint or individual
names.

Estop: To stop, bar, or impede.

Estoppel: A rule of law which prevents a person from alleging or denying a fact, because of his/her
own previous act leading another person to believe the fact was otherwise.

Et Al.: An abbreviation of et alia meaning and other persons.

Et Ano: And another (person).

Evidence: A form of proof or probative matter legally presented at the trial or hearing of an issue by
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and through
witnesses, records, documents, concrete objects, etc., for the
purpose of inducing belief in the minds of the court or the jury; also
presented by affidavits.

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Eviction, Warrant of: Legal mandate authorizing an enforcement officer to remove persons and their
personal property from their premises (house or apartment).

Examination Before Trial (EBT): A formal interrogation of parties and witnesses under oath before
trial; also deposition.

Execution: (a) The performance of all acts necessary to render a written instrument complete, such
as signing, sealing, acknowledging, and delivering the instruments; (b) supplementary proceedings to
enforce a judgment, which, if monetary, involves a direction to the sheriff to take the necessary steps
to collect the judgment.

Exemplification: An official transcript of a document from public records, made in a form to be used as
evidence and authenticated or certified as a true copy, (e.g. exemplification of a judgment).

Exhibit: A paper, document or other object produced and exhibited to a court during a trial or hearing
and, on being accepted, is marked for identification or admitted in evidence.

Ex Parte: A proceeding, order, motion, application, request, submission etc., made by or granted for
the benefit of one party only; done for, in behalf of, or on application of one party only, without notice
being given to any other party.

Expunge: The authorized act of physically destroying information, in files, computers or other
depositories.

F
Fair: Preponderance: Level of proof in a civil action; more than half; more convincing.

Fee: A fixed charge for service rendered on behalf of court or for filing a document.

Fiduciary: A person or institution who manages money or property for another, and who must exercise
a standard of care in such management activity imposed by law or contract.

Finding: The court's or jury's decision on issues of fact.

Fine: A sum imposed as punishment for an offense.

First Paper: Paper instituting the action (e.g., Summons, Motion, Infants's Compromise).

Foreclosure: A legal proceeding that bars or extinguishes a right, such as a mortgagor lien.

Foreperson: A member of a jury, usually the first juror called and sworn, or a juror elected by fellow
jurors, who delivers the verdict to the court.

Forum: A judicial tribunal or a place of jurisdiction. A meeting for discussion.

Full Faith and Credit: A requirement of the U.S. Constitution that the records and judicial proceedings
of one state shall have the same effect in courts of other states with the samejurisdiction.

G
Garnish: To attach a portion of the wages or other property of a debtor to secure repayment of the
debt.

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Garnishee: A person who owes a debt to a judgment debtor, or a person other than the judgment
debtor who has property in his/her possession or custody in which a judgment debtor has an interest.

Guardian Ad Litem: Person appointed by a court to represent the interests of a minor or incompetent
person in a legal proceeding.
H
Habeas: Corpus ("that you have the body"): The name given a writ or petition whose object is to bring
a person before a court or judge - in most common usage, it is directed to the official orperson
detaining another, commanding him/her to produce the body of a person detained so the court may
determine if such person has been denied his/her liberty without due process of law.

Hearing: A preliminary examination where testimony is given and evidence presented for thepurpose
of determining an issue of fact and reaching a decision on the basis of that evidence.

Hearsay: Testimony of a witness who relates not what he/she knows personally, but what others
have told the witness, or what the witness has heard said by others; may be admissible or inadmissible
in court depending upon rules of evidence.

Hung Jury: A jury whose members cannot reconcile their differences of opinion and thus cannot
reach a verdict.

I
Impaneling: The process by which jurors are selected and sworn to their task.

Impleader: An addition of another party to an action by the defendant, a “third party” claim.

In Camera: In the judge's chamber out of the presence of the jury, the public and often the attorneys.

Incompetency: Lack of legal qualification or fitness (physical, intellectual or moral fitness) to discharge
a legally required duty or to handle one's own affairs or testify in court; also relates to matters not
admissible in evidence.

Indemnity: Security against loss or damages, exemption from penalty or liability owned by another
party; amount paid as compensation under an indemnity agreement.

Index Number: A number issued by the county clerk which is used to identify a case - in civil matters
there is usually a charge.

Individual Assignment System (IAS): A system, established for all civil actions and proceedings heard
in Supreme and County Court, which provides for the continuous supervision of each action and
proceeding by a single judge (NYS).

Indorsed Complaint: A statement of the nature and substance of the cause of action, for money only,
which indicates the amount of the claim. It may be set forth upon the summons or attached to it.

Infant: An individual who has not attained the age of eighteen (18); child.

Infant's Compromise: A civil proceeding or motion for obtaining court approval of the settlement of
an infant's claim for money damages for an injury.

Injunction: A court order for a party to stop doing or to start doing a specific act.

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Inquest: A proceeding which usually is a limited non-jury trial for the purpose of fixing the amount of
damages where the plaintiff or defendant alone introduces testimony.

In Re (“in the matter of”): Concerning.

In Rem (“against a thing”): Regarding the right or title to property.

Inter Alia: Among other things.

Interlocutory: Provisional; temporary; not final - refers to orders and decrees of a court.

Interpleader: Action by which one having possession of an article or fund claimed by two parties may
compel them to litigate the title between themselves, instead of with him/her.

Interpreter: A person sworn at a judicial proceeding to translate oral or written language.

Interrogatories: Written questions propounded by one party and served on an adversary, who must
provide written answers thereto under oath.

Intestate: A person who dies without a will.

J
Joint Trial: Two or more actions involving a common question of law or fact may be joined by court
order for trial - the actions are not merged but remain separate and distinct and may result in one or
more verdicts and judgments; different than consolidated actions.

Judgment: A determination of the rights of the parties in an action or special proceeding. A judgment
shall refer to and state the result of a verdict or decision, may or may not recite the circumstances
on which it is based.

Judgment Roll: A record of the judgment with the supporting papers, costs and fees.

Judicial Hearing Officer (JHO): A person who has served as a judge or justice of a court of record of
the Unified Court System, and who no longer is serving in such capacity [except a person who was
removed from a judicial position pursuant to Section 22 of Article VI of the Constitution] who hears
and decides a legal issue or proceeding.

Jurisdiction: The geographical, subject matter, and monetary limitations of a court’s authority.

Jurisdiction, Personal: Whether a specific person is within the court’s authority to impose a personal
liability on him (usually the defendant).

Jurisdiction, Subject Matter: Whether the court has authority over the thing or right one party against
another.

Jury: A prescribed number of persons selected according to law and sworn to make findings of fact.

Jury (Advisory): A body of jurors impaneled to hear a case in which the parties have no right to a
jury trial - the judge remains solely responsible for the findings and may accept or reject the jury's
verdict.

Jury Instructions: Directions given by the judge to the jury, at the beginning and end of trial.

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Laches: The failure to diligently assert a right, which results in a refusal to allow the right to be
asserted later.

L
Legal Age: Eighteen (18) years of age. See CPLR Section 1206.

Legal Aid: System by which legal services are rendered to those in financial need who cannot afford
private counsel.

Liability: An obligation to do, to eventually do, or to refrain from doing something; money owed; or
according to law one's responsibility for his/her conduct; or one's responsibility for causing an injury
or damage to property.

Liber: A book used by the County Clerk for keeping a record of specific documents or events having
legal effect. For example, deeds.

Lien: A claim upon the property of another as security for some debt.

Litigant: Party to a legal action.

Long Form Order: An order prepared by counsel for signature of the court (usually based on a
memorandum decision).

M
Maintenance: The furnishing by one person to another the means of living, or food, clothing, shelter,
etc., particularly where the legal relations of the parties is such that one is bound to support the other,
as between parent and child or between spouses.

Material Witness: Person whose testimony on some issue has been judicially determined as relevant
and substantial.

Memorandum Decision: A written opinion or decision of a court on a litigated question, giving the
court's conclusion on factual and legal issues (this may constitute the order of the court if so stated).

Memorandum Opinion: Memorandum in writing, which is a very brief statement of the reasons for a
decision, without detailed explanation.

Military Calendar: To hold in suspense an action that cannot reasonably be tried because a party or
witness is in the military service.

Minute Book: A Court Clerk's Journal of Courtroom proceedings.

Minutes: A record of court proceedings kept by noting significant events.

Mistrial: A trial which has been terminated and declared void prior to the reaching of verdict due to
extraordinary circumstance, serious prejudicial misconduct or hung jury - it does not result in a
judgment for any party, but merely indicates a failure to dispose of the matter.

Moot: An issue already resolved or not necessary to be decided.

Motion: An oral or written request to the court made by a party for a ruling or order.

Movant: The party who initiates the motion.

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N
Natural Person: Individual (does not include corporate entities).

Negligence: Conduct which falls below the standard established by law for the protection of others
against unreasonable risk of harm, the breach of a duty of care.

Non Sequitur (“it does not follow”): Logically it does not follow.

Note of Issue: A document filed with the court placing a cause on the trial calendar.

Notice of Entry: A notice with an affidavit of service stating that the attached copy of an entered order
or judgment has been served by a party on another party.

Notice of Petition: Written notice of a petitioner that a hearing will be held in a court to determine
the relief requested in an attached petition; cover sheet of a petition.

Nunc Pro Tunc (“now for then”): Presently considered as if occurring at an earlier date; effective
retroactively.

O
Oath: A swearing to the truth of a statement which, if made by one who knows it to be false, may
subject one to a prosecution for perjury or other legal proceedings.

Opening Statement: The first address of counsel to a judge or jury prior to offering of evidence.

Oral Proof: Evidence given by spoken words; the oral testimony of a witness.

Order: An oral or written direction of a court or judge.

P
Palimony: Term has meaning similar to 'alimony' except that award, settlement or agreement arises
out of non-marital relationship of parties (i.e., non-marital partners).

Parcel: A tract or a plot of land.

Part: A court room where specified business of a court is to be conducted by a judicial officer.

Party: Person having a direct interest in a legal matter, transaction or proceeding.

Peremptory Challenge: The challenge which may be used to reject a certain number of prospective
jurors without assigning any reason for the rejection.

Perjury: The act of lying or stating falsely under oath.

Petition: A formal written request to a court; also used to initiate a special proceeding.

Petitioner: In a special proceeding, one who commences a formal written application, requesting some
action or relief, addressed to a court for determination. Also known as a plaintiff in a civil action.

Petit Jury: The ordinary jury for the trial of a criminal case (12 persons)(so called to distinguish it
from the larger grand jury). In a civil action, it is 6 persons.

Plaintiff: The party bringing a civil action or making a claim.

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Pleadings: Complaint or petition, answer, and reply.

Polling the Jury: A practice whereby the jurors are asked individually whether they agree, and still
agree, to the reported verdict.

Power of Attorney: Instrument authorizing one to act legally for another either generally or as to
specified matters.

Precedent: Previous judgment or court decision on a same or similar point, serving as a rule or example
for guidance in the present action.

Proceeding: The succession of events constituting the process by which judicial action is invoked and
utilized pursuant to procedure and brought to completion.

Preclude: To prevent or stop, exclude from evidence.

Process: A legal means, such as a summons, used to subject a defendant in a lawsuit to the personal
jurisdiction of the court; broadly, refers to all writs issued in the course of a legal proceeding - what
is served to obtain jurisdiction.

Pro Se (aka Self-Represented): Appearing on one’s own behalf without an attorney.

Purge: To atone for or correct an offense, to submit to a court's mandate (i.e., to purge oneself of
contempt of court).

R
Recuse: To disqualify oneself as a judge.

Redact: To edit, revise or block out written text.

Referee: A person to whom a claim pending in a court is referred by the court to take testimony, hear
the parties, and report thereon to the court, or to make a judicial determination - the referee isan
officer exercising judicial powers and is an arm of the court for a specific purpose.

Relief: Legal remedy, such as damages, injunction or declaration of rights.

Remand: To send a case back from an appellate court to the lower court from which it came, for
further proceedings.

Remittitur: Legal process by which an appellate court transmits to the court below the proceedings
before it, together with its decision, for such further action and entry of judgment as is required by the
decision of the appellate court.

Replevin: An action brought for the owner of items of personal property to recover possession of
those items when those items were wrongfully taken or are being wrongfully kept.

Reply: A plaintiff's response to a defendant's answer when the answer contains a counterclaim.

Res (“thing”): Subject matter; the thing which the action affects.
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(“a thing PROGRAM
adjudicated”): A thing judicially acted upon or decided, precludes
a contrarydecision in the future.

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Respondent: One who formally answers the allegations stated in a petition which has been filed with
the court. Also known as a defendant in a civil action.

Restore/Reinstate to Calendar: To place back on the calendar as an active case.

S
Sanction: A penalty or punishment provided as a means of enforcing obedience to a law, rule or code;
also, an authorization or approval.

Satisfaction: Discharge of a legal obligation, as in a "Satisfaction of Judgment."

Seal: To close a case file from public scrutiny - in instances of youthful offenders and acquittal, sealing
orders are issued by the court to prevent the public from obtaining information on the cases.

Security for Costs: An undertaking required by a court to cover the payment of costs if the judgment
is later rendered against the party giving the security.

Separation: In matrimonial law, a cessation of cohabitation of husband and wife by mutual agreement,
or in the case of "judicial separation," under the decree of a court.

Sequester: To separate, set apart, hold aside for safekeeping or awaiting some determination; jurors
are sequestered when not permitted to return home until the case is closed; also applies to property.

Service: The exhibition or delivery of a writ, notice, etc., officially notifying a person of some action
or proceeding in which that person is concerned.

Short Form Order: An order prepared by the court.

Show Cause: An order, decree, execution, etc., to a person requiring him, her or it to appear as
directed, and present to the court such reasons and considerations as one has to offer why a claim
against him, her or it should not be granted; alternate means to make a motion.

Sine Die (“without day”): Without a date, as in an action being adjourned sine die.

Small Claims Assessment Review (SCAR): Filing by any person aggrieved by a tax assessment of a one,
two or three family, owner occupied residential structure used for residential purposes (including
condominiums) (NYS).

Special Master: A special master is an attorney appointed on an ad hoc basis to assist the court in
hearing motions (NYS).

Special Proceedings: General term for remedies or proceedings which are not ordinary civil actions.
For example, condemnation, expedited actions.

Special Referee (or Referee): The special referee has the authority to exercise judicial functions when
assigned duties by the court to determine the following: (a) to determine an issue (binding); (b) to
perform an act (disclosure); and (c) to hear and report - matrimonial actions may be included (NYS).

Special Term: A court part set aside to hear motions.

Special Verdict: A special finding of the facts of a case by a jury leaving to the court the application of
the law to the facts thus found.

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Statute of Limitations: The time limit for asserting a claim set by statute.
Stay: A stopping or suspension of procedure or execution by judicial or executive order.

Stipulation: An agreement by attorneys and/or parties on opposite sides of an action as to any matter
pertaining to the proceedings or trial - most stipulations are in writing.

Stipulation of Settlement: A formal agreement between litigants and/or their attorneys resolving their
dispute.

Sua Sponte (“of one's own accord”): Upon its own motion, initiation or will; without a prior request.
Subpoena: Legal process which commands a witness to appear and testify.

Subpoena Duces Tecum: A subpoena requiring a person to produce specified documents or records
in a trial.

Subpoena Duces Tecum, Judicial: An order issued by the court requiring a person to produce
specified documents or records in a trial.

Subpoena, Judicial: An order issued by the court to a person to attend court and give testimony.

Subsequent Proceedings: Any proceeding or action taken with respect to a specific case after it has
been filed with the court.

Suit: A legal action or proceeding.

Sum Certain: Liquidated damages pursuant to contract, promissory note, law, etc.

Summary Judgment: A determination in an action on the grounds that there is no genuine issue of
fact.

Summons: A form used to commence a civil action and acquire jurisdiction over a party.

Supplementary Proceedings: Further inquiry, under court jurisdiction, after entry of judgment, to
determine means for enforcing the judgment against judgment debtor.

Surety: One who is legally liable for the debt, default, or failure to carry out a duty of another.

T
Third Party Action: A claim asserted by a defendant, styled a third-party plaintiff, against a person,
styled a third-party defendant.

Trial Assignment Part (TAP): That part of the court which assigns cases for trial (NYS).

Testimony: An oral declaration made by a witness or party under oath.

Tort: An injury or wrong committed, either with or without force, and either intentionally or
negligently, to the person or property of another.

Transcript: The official record of proceedings in a trial or hearing.

Transfer: The removal of a cause from the jurisdiction of one court or judge to another by lawful
authority.

Trial: The formal examination of a legal controversy in court so as to determine the issue.
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Trial De Novo: A new trial (See 22NYCRR 28.12).

U
Undertaking: Deposit of a sum of money or filing of a bond in court, to secure some actual or potential
obligation.

V
Vacate: To set aside or undo a previous action or order.

Venire: Technically, a writ summoning persons to court to act as jurors; popularly used as meaning the
body of names thus summoned.

Venue: (a) Geographical place where some legal matter occurs or may be determined. (b) The
geographical area within which a court has jurisdiction. It relates only to a place or territory within
which either party may require a case to be tried. A defect in venue may be waived by the parties.

Verdict: The determination of a jury on the facts and, usually, the legal consequences of those facts.

Verification: Confirmation of the correctness, truth or authenticity of pleading, account or other paper
by an affidavit or oath; signature by a party or, in some cases, the attorney.

Voir Dire: A questioning of prospective jurors by the attorneys, and, on application of any party, by
the judge, to see if any of them should be disqualified or removed by challenge or examination; may
also be a preliminary examination of a witness.

W
Waiver: An intentional and voluntary relinquishment of some known right; giving up a claim.

Warrant: A written order directing the arrest of a person issued by an authority - warrants are "issued",
"executed" or "canceled".
With Prejudice: The term, as applied to judgment of dismissal, is as conclusive of rights of parties as if
action had been prosecuted to final adjudication adverse to the plaintiff.

Without Prejudice: A dismissal "without prejudice" allows a new suit to be brought on the same cause
of action.

Witness: One who testifies to what he/she has seen, heard, or otherwise observed under oath unless
too young to swear an oath.

Writ: An order issuing from a court of justice and requiring the performance of a specified act, or
giving authority and commission to have it done.

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