1. “Verdict” and “Judgment.”
These two terms are quite often confused. The “verdict” is the finding of fact rendered in a case in which the facts are in dispute. If there is a jury then the jury is the fact finder, and will render a verdict at the close of the presentation of the evidence by the lawyers. The “judgment” (often misspelled, by the way, since in the United States it only has one “e”) is the judge’s pronouncement at the close of the case as to which party wins, and this judgment has as its function the application of the facts found by the fact finder and the rules of law as determined by the judge to the resolution of the issue at the heart of the case. Appeals can follow, but what is appealed is not the “verdict” but the “judgment.” What happened as a matter of fact—the issue the verdict resolves—can be challenged on appeal but only as part of the appeal of the judgment, and it’s very rare for the appellate court to overturn the verdict’s findings absent something like jury tampering or other misbehavior. After all, the appellate court didn’t hear the evidence on which the finding of fact was based, and will overturn the judgment because of a bad verdict only if the latter is clearly erroneous.
In the famous movie “To Kill a Mockingbird,” Atticus Finch (the defense attorney played by Gregory Peck) loses a criminal case in which his client is found guilty. Before the appeal can happen the client commits suicide, and Atticus mutters, “We had a good case for an appeal.” Well . . . no, he didn’t. Everything depended on who the jury believed when there was conflicting testimony from the witnesses. That’s a matter of fact, and the appellate court isn’t likely to second-guess the jury. Unless Atticus had some procedural matter that was the basis for his appeal (a question of law), his client was going to be executed.
In any event, the point is that you never appeal the “verdict”; you appeal the “judgment.” Reporters get this wrong all the time.
2. Pro Se.
This one is a Latin term (pronounced “pro say”) meaning “for himself,” and is used whenever the person filing the complaint does not have a lawyer and is proceeding on his/her own. It may surprise you to realize that the law does not require that a lawyer be involved in a lawsuit, and that you can file the suit “pro se” and prosecute the case yourself. Is this a smart thing to do? No, unless it’s a minor matter in a Small Claims Court. Otherwise not even lawyers should do it. Abraham Lincoln once said, “A person who represents himself has a fool for a client." But if you can’t find a lawyer to represent you, then a pro se action may be your only hope. In that case get as much free advice as you can from lawyer friends on what you’re doing, go down to the court where you will file the case, throw yourself on the mercy of the clerk of courts and ask for help, make sure that the court will have jurisdiction over your matter, ask for a blank copy of a standard complaint (or look at some in other court cases and dummy up your own version), and get from the clerk a copy of the court’s rules of procedure (and study them). When you sign the complaint, write the words “Pro Se” under your name so the court will know you’re doing this incredible thing.
3. Habeus Corpus.
Say you are sitting in your home one night, the door is broken down, government agents arrest you without explaining why, and cart your off into the darkness. You’re never heard from again. When your loved ones protest, the government denies they have you. What can be done? Your loved ones should hire a lawyer on your behalf and he/she will file a writ of habeus corpus with the local criminal court.
“Habeus corpus” is another Latin term and this one means “produce the body.” It is a “writ” (a request in the form of a motion) filed with the court that has jurisdiction over a criminal matter asking the court to require the government to bring the defendant into court and begin formal charges against him/her. This is an important right: the right not to be snatched by the government and simply hidden away in some prison with no trial in sight. Article 1 Section 9, clause 2 of the United States Constitution demands that "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."
During the Civil War Abraham Lincoln suspended the right of habeus corpus, and sometimes had editors of newspapers who wrote things he didn’t like thrown in jail until they repented of their views. No trial was allowed. Uproar occurred over this, as you can imagine, but during a war drastic steps are sometimes required. There has been speculation that Lincoln went too far and—had he lived—might have faced impeachment over this very issue.
Before you can bring a lawsuit and prosecute it successfully you must convince the court that you have “standing” to do so. What does that mean? It’s basically a reflection of common sense: only parties that are harmed by the legal problem can come to court and ask for relief. If someone runs you down in the car, and I’m no more than your best friend, I will not have standing to sue the reckless driver for negligence in harming you. Only you (or your heirs if you were killed) will obviously have standing to sue.
In the United States Supreme Court decision this past June that considered the constitutionality of California’s Proposition 8 (which was passed by voters to amend the California constitution so as to deny gays the right to marry) standing was the very basis of the Court’s resolution of the case. At the federal trial court level the plaintiffs were gay couples wishing to marry and thus had standing to attack Proposition 8. Plaintiffs sued the State of California, but state officials agreed with the plaintiffs that this part of the state constitution was invalid under federal law, and so the state declined to defend the lawsuit. Up jumped potential defenders in the form of the original proponents of Proposition 8, and though their defense was so bad that the trial court judge begged them to do a better job, in the end he ruled against them and the State of California, holding that the Proposition 8 part of the California Constitution was unconstitutional under the 14th Amendment of the United States Constitution (which guarantees equal protection of the law to all). The proponents appealed to the Ninth Circuit Court of Appeals, which first ruled that they did have standing for the appeal and then went on to uphold the trial court opinion on the substantive grounds that the state could take away existing gay marital rights only if it had a rational basis for doing so, which it did not. The United States Supreme Court disagreed with the standing ruling. It held that private citizens had no standing to appeal the trial court decision, so neither the Ninth Circuit nor the Supreme Court had jurisdiction. Thus the trial court decision prevailed, meaning that the portion of the California constitution forbidding gay marriage was invalid. Gays promptly began marrying in California once again.
The idea here is simple: courts can only try cases that some law authorizes them to try. If a court hears a case without having the legal right to do so, the court is said to have no “jurisdiction,” and any judgment it renders is null and void. Say for example, you want to sue the President of Russia for some outrageous thing he’s done. It’s unlikely that the local county court has jurisdiction to render a judgment that would bind a Russian who has no connection with this venue and is not required by law to respond to a complaint filed in this venue. You’ll have to go to Russia and file your suit in a Russian court that truly does have jurisdiction over the President of Russia (and good luck with that).
Courts only have jurisdiction if some law, state or federal, grants them the ability to hear and resolve the legal matter at issue. That leads us to the final topic.
6. Courts of the United States.
Our judicial system divides the courts into federal courts and state ones. In both systems there are trial courts (called by various names depending on the state, and called “District Courts” in the federal system), intermediate appellate courts in which typically three judges hear the appeal and write an opinion explaining their decision, and a supreme court.
In the federal system the judges are appointed by the president for life and confirmed by the Senate. As just noted, the trial courts are called District Courts, and there are currently 94 of them in the country. The intermediate appellate courts are divided into thirteen different Circuit Courts of Appeal. When appeal is had from the District Court’s judgment in any given case it will go to the relevant Circuit Court of Appeals (see diagram), where usually it is heard by a panel of three judges. Their decision can be appealed to the entire Circuit Court (called an “en banc” hearing) or to the United States Supreme Court. It you look at the charts below you can see which Circuit you live in (assuming you are in the United States).
The United States Supreme Court has nine members. Currently there are three women and six men, and, interestingly, the Court (the word is usually capitalized for this particular court) currently houses three Jews and six Catholics, but no Protestants, Muslims, or Atheists. The Court is split philosophically between four liberals (Ginsbury, Breyer, Sotomayor, Kagan), four conservatives (Roberts, Scalia, Thomas, Alito), and the swing vote of Anthony Kennedy, the most powerful judge in the world. Not only does the Court hear appeals from the Circuit Courts, but also from state courts if the case raises a significant federal question. It takes four votes for the Court to agree to hear a case. Around 10,000 cases are appealed to the Court in any given term, but the Court refuses to hear most of them, actually deciding only 140 or so each term (which runs from October until the end of June).
“I Threaten To Sure Apple Over an iPad Cover,” April 8, 2011;
“The Payment-In-Full Check: A Powerful Legal Maneuver,” April 11, 2011; http://douglaswhaley.blogspot.com/2011/04/payment-in-full-check-powerful-legal.html
“What Non-Lawyers Should Know About Warranties,” October 11, 2011;
"How To Write an Effective Legal Threat Letter," October 19, 2011; http://douglaswhaley.blogspot.com/2011/10/how-to-write-effective-legal-threat.html
“How To Win Arguments and Change Someone’s Mind,” August 5, 2012;
“Mortgage Foreclosures, Missing Promissory Notes, and the Uniform Commercial Code: A New Article,” February 11, 2013; http://douglaswhaley.blogspot.com/2013/02/mortgage-foreclosures-missing.html
“How To Respond to a Legal Threat.” March 29, 2014; http://douglaswhaley.blogspot.com/2014/03/how-to-respond-to-legal-threat.html
“Clicking on 'I Agree': Sticking Your Head in the Lion's Mouth?” September 27, 2014;
“My Battle with Sony To Get a Refund on a DVD Player”;
“A Guide to the Best of My Blog,” April 29, 2013; http://douglaswhaley.blogspot.com/2013/04/a-guide-to-best-of-my-blog.html