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The complexities and nuances of the law are made accessible in this engaging, illustrated guide. From the structure of the court system to the mysteries of human motivation, 101 THINGS I LEARNED® IN LAW SCHOOL reveals the intricacies of the legal world through questions big and small: What is a legal precedent? What is foreseeability? How can a hostile witness help one's case? How is legal argument different from other forms of argument? What is the difference between honesty ...
The complexities and nuances of the law are made accessible in this engaging, illustrated guide. From the structure of the court system to the mysteries of human motivation, 101 THINGS I LEARNED® IN LAW SCHOOL reveals the intricacies of the legal world through questions big and small: What is a legal precedent? What is foreseeability? How can a hostile witness help one's case? How is legal argument different from other forms of argument? What is the difference between honesty and truthfulness?
Written by an experienced attorney and law instructor, and disarmingly presented in the unique format of the 101 THINGS I LEARNED® series, 101 THINGS I LEARNED® IN LAW SCHOOL is an invaluable resource for law students, graduates, lawyers, and general readers.
Law school doesn't teach laws.
One attends law school to learn how to think like a lawyer, not to memorize laws. Laws change; how they are properly analyzed does not.CHAPTER 2
Lawyers must be honest, but they don't have to be truthful.
Honesty and truthfulness are not the same thing. Being honest means not telling lies. Being truthful means actively making known the full truth of a matter. Lawyers must be honest, but they do not have to be truthful. A criminal defense lawyer, for example, in zealously defending a client, has no obligation to actively present the truth. Counsel may not deliberately mislead the court, but has no obligation to tell the defendant's whole story.CHAPTER 3
Lawyers are contextualists.
con·tex·tu·al·ist / kahn–TEKS–choo–a–list / n. (pl.–ists) a person who believes that the full meaning of a thing is not inherent in that thing, but depends on its relationship to other things.CHAPTER 4
You're not a lawyer until you pass the bar.
The "bar" can refer to the entire legal profession, a formal portion of it, or the bar exam itself. Each state court system, federal court, and the U.S. Supreme Court is a separate bar with its own standards of admission and practice.CHAPTER 5
You can't pass the bar until you're a lawyer.
A courtroom is divided into two parts by a railing or similar barrier called the bar. Only lawyers, their clients, and witnesses who are called to testify may traverse it. The use of "bar" to refer to the legal profession as a whole derives from the tradition of barring non-participants from the trial area of the courtroom.CHAPTER 6
All U.S. states except Louisiana have a primary heritage in English law.
In civil law nations, the main source of law is legislation, and courts are bound by statutes. Courts in common law nations are also generally bound by statutes, but more significantly they create new law—called common law or case law—through their decisions in specific cases. They also have the power to find a statute unconstitutional.
Common law system
Civil law system
Origin in 12th century England
Origin in Holy Roman Empire
Common in English-speaking countries and former British colonies Common in Continental Europe and its former colonies
Judge as arbiter: reads and interprets existing law, including
Judge as expert: investigates case, reads and
that established by prior cases, but also creates new law applies existing statutes as thought fit
Law applied specific to general: an individual court case can
Law applied general to specific: an individual
become a more general precedent for subsequent cases court case is subject to statutes and is not precedential
Relies on "common sense"
Presumes the state to be sensible
Flexible and generally predictable
Favors predictability over flexibility
"Civil law" means two things.
In the global context, civil law and common law are two primary legal systems. Within common law systems, civil law addresses non-criminal matters—individuals' wrongs against each other. Criminal law addresses individuals' wrongs against society.CHAPTER 8
"Adversarial" isn't necessarily bad.
The U.S. legal system, as in most common law nations, is adversarial: two sides, typically represented by expert advocates, argue their positions to the court. A trial judge does not have power to investigate a case directly and usually questions witnesses only when there is a need to clarify confusing testimony.
In an inquisitorial system, a judge or group of judges directly investigates a case and questions litigants. Civil law nations typically employ inquisitorial procedures.CHAPTER 9
A legal ruling is the beginning, not the end, of the life of the law.
A court decision may conclude a given case, but the precedent system on which U.S. courts are based means a court decision is itself considered law, and it is likely to affect a line of cases far into the future. Stare decisis—the requirement that each court stand by previous decisions made by it and by higher courts in its jurisdiction—ensures that the law is predictable, that similar acts are adjudicated similarly, and that the consequences of a given action are known.CHAPTER 10
Find one good case.
Legal argument must be supported by primary sources of law. If unsure where to begin research, start with secondary sources—legal dictionaries and encyclopedias, hornbooks (treatises on an area of the law), practice guides, and law review articles. These will provide an overview of your research topic and usually reference primary sources, including legal precedents. Once a useful precedent has been identified, almost every case that subsequently cited it can be identified by entering the case into an online citator service such as Westlaw's Keycite or Lexis's Shepherds.
With regards to Bob BerringCHAPTER 11
Lawyers are incrementalists.
Even the most inventive, aggressive, and original legal argument is constructed upon that which came before—prior court cases, constitutions, and existing statutes and regulations. This may seem limiting, but ultimately it is freeing, for the legal arena presents an opportunity found in few professional settings: to walk others down your argument path one step at a time, without interruption, from an established starting point.CHAPTER 12
In arguing before a California court, one may cite an unpublished case from Texas, but not an unpublished case from California.
Some, but not all, court decisions are published by the court in official court reporters. The United States Supreme Court publishes all of its decisions, but some federal courts of appeal publish less than 10% of their decisions. Unpublished decisions generally cannot be used as a basis for argument in the same jurisdiction, although one sometimes may cite an unpublished decision from another jurisdiction as a persuasive authority.
Excerpted from 101 Things I Learned in Law School by Matthew Frederick, John Kuprenas. Copyright © 2013 Matthew Frederick John Kuprenas. Excerpted by permission of Grand Central Publishing.
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