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68 Cards in this Set

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Requirements to become an attorney
LSAT (to get into law school)
Law School - 3 yrs usually
Pass the BAR exam and Charater & Fitness Comitte
CLE- Continuing legal education (12hrs/year)
esquire, Attorney
Methords to finding a lawyer
1. Advertising
2. Word of Mouth
3. MCBA (monroe county bar association)
4. Public Defenders Office (for people w/ no $$)
5. Martindale Hubble
6. Legal Aid (VLSP) like a clinic
Monroe County Bar association. Has a lawyers referral service, list lawyers who specialize in each area of the law
Monroe County Public Defenders Office
Represents clients who are indigent (Have no $$)
Martindale Hubble
Made a phone book type book where attorneys and their areas of expertise is listed. This can be found online.
Legal Aid
VLSP, volenteer legal service project (like a clinic, it offers legal assistance for less money)
Problems w/ lawyers who advertise
*good advertisers may be too busy
*Costs money to advertise, which eventually costs clients
*Information is coming from the attorney and may not be true.
*Big firms often give your case to a paralegal.
Problems w/ Word of mouth
*They may not have personal knowledge and may exaggerate
*They might not specialize in the area of law as what you need
3 ways attorneys may charge
2. Flat fee
3. contingency fee.
Hourly rate
you must be able to trust your attorney. court rate may be different from research rate.
Flat Fee
Most common for services that can accuratly predict the amount of time your case will take. (simple wills, real estate, sometimes bankruptcys).
Contingency Fee
No fees will be paid unelss you get a settlement or judgement. **you still have to pay filing fees etc. Generally 25-33% of the total won.
Questions to ask your attorney
How do you charge?
Experience/success rate?
how may go to trial?
Are you going to be handeling my case?
do you have paralegals?
how often will you update me on the status of my case?
If disatisfyed with your attorney
1. talk to them, let them know
2. Fire them
3. File a complaint A if its a fee to the BAR assc. B. greivance committe, Cannons of ethics
4. sue for malpractice (co-mingiling funds)
3 ways to punish an attorney
1. Censure
2. Suspension
3. disbar
repremand. the tell you that you messed up (least instense punishment)
lose your license to practice law or a period of time (usually 6mths-2yrs)
lose your license to practice law.
Name of Case
Civil: Lang V. Clifford, its against another person
Criminal: against society. People of the state of NY vs. Clifford.
Criminal: beyond a reasonable doubt
Civil: by a preponderance (> 50%) of the evidence.
use of a jury
Civil: Used a lot less, If you use a jury usually 6, verdict DOES NOT have to unanamous.
Criminal: you have a RIGHT to a trial by jury. misdemenor=6 felony=12 Verdict MUST be unanamous
If a verdict isnt unanamous in a criminal trial?
if its a hung jury, they declare a mistrial. They usually try again w/ a new jury (can continue to do this as many times as they want until a verdict is reached).
Name of Counsel?
Civil: Plaintiff's attorney and defendants attorney
Criminal: District attorney (prosecutor) and defense attorney.
Remedy to a trail
Criminal: jail/prison, fines
Civil: usually moneyspecific preformance, injunction
Inferior Courts
trial courts. City, Town. Have criminal trial jurisdiction over misdemenors and preliminary jurisdiction over felonys. Petty larceny?
Superior courts
Monroe County and NYS supreme. concurrent jurisdiction over felonys. (family, nys court of claims, surogates etc)
geographic jurisdiction
geographic area in which the lehgal matter arises.
exclusive jurisdiction
the court has sole power over this action
the power of a court to hear/ determine an issue.
concurrent jurisdiction
2 courts have the authority to hear the same case. (Project exile)
is NYS supreme court an appleate court?
No, its a superior court, therefor it is a trial court
family court
deals exclusivel jurisdiction over juvenile delinquents. PINS (Person in need of supervision)
Surrogates court
exclusive jurisdiction over "dead person stuff." Wills, estates etc.
court of claims
claims against the state (trial court, attica)
appelate division
everyone has the right to appeal once. you do not need permission, just a transcript. Usually 5 judges
NY court of appeals
request permission to appeal to this court. there are 7 judges.
US supreme court
need permission to appeal here. writ of certirari
federal judges
appointed by president and approved by the senate.
NYS trial judges
nys appelate division judges
are appointed by the governer. (from the trial judges of superior court)
NYS court of appeals
appointed by governer (from appelate division?)
Appealing a case
Trial court -- appelate division of nys supreme court-- ny court of appeals
cases tried in inferior court go to superior court then court of appeals.
us district court-- us circuit court of appeals -- us supreme court
what appelate division are we in
4 division.
what ciruct of the us ciruct court of appeals are we in?
2nd circuit.
county court
adjudicates civil matters of up to $25,000 in damages. . criminal trial court where serious felonys are tried
small claims court
where private persons not represented by an attorney go with claims of up to $3000
sources of law
1. constitutions NY and Fed.
2. statutes]
3. case law
4. administrative law
2 houses
2 federal houses
House of Representatives: Louise Slaughter
Senate: Hilary Clinton, chuck schumer
NYS 2 houses
NY state senate, NYS assembly
legistlative process
1. introduced on floor of house
2. referred to committee, if it passes by majority
3. goes back to floor for dissucssion if passes by majority
4. goes to other house
5. repeat steps 1-4 in other house if passes by a majority
6. goes to cheif executive: George Pataki (he can sign, not sign, or veto)
if it remains unsigned for a certain period of time it becomes a law by default. if betoed it can go back into houses and will become a law w/ a 2/3 vote.
constitutional amendments
2/3 of H.O.R. and senate approve the amendement
needs to be ratifyed (approved) by 3/4 of state legistlatures.
start in state senate 2/3 must vote for a amendment.
convenction is held, if they agree Needs to be ratifyed by 3/4 of state legistlatures.
Writ of Certiorari
petitition to the us supreme court, granting or denying leave to appeal. need 4 judges to agree--"the rule of 4"
courts should decide the same way they did today as they will tomorow
Texas V. Johnson
protest during the republican national convention, protesting the policies of the regan administration. Minimual proprety damage resulted. :America the red, white and blue we spit on you." Johnson doused flag in kerosene and set it on fire.
charged with the desecration of a venerated object in violation of the texas penal law. Convicted in trial court but it was overturned.
Governments point of view: the flag has a special status, people have died for it, it is a symbol of our nation and texas should have the right to enact legislation preventing its desecration. Protestors Point of view: 1st amendment, freedom of speech, including symbolic speech. Protestor won b/c the 1st amendment trumps state law. Johnson won
wisconsin v. Yoder
state of Wisconsin had a law that required mandatory education for all kids under 16. Yoder was old order Amish, and his relgious beliefs education beyond the age of 13 was considered detrimental to the amish way of life. They refused to send their 14yr old son to school.
States Point of view: state is looking out for best interest of child, limiting formal education may stop the child from being a doctor or lawyer (some professional) state wants to ensure that the young become productive members of society. YODERS point of view: Amish is an established and respected religion. Amish is based upon farming an communal living, so the kid allready has a career track. Should be able to keep their children home under the "Free exersize" clause of the 1st amendment. Yoder won
exclusionary rule
any illegally obtained evidence will be supressed from trial
Mapp V. Ohio
Ohio police had reason to believe that a bombing suspect was residing at the boarding home of Dolree Mapp. wanted to search house, mapp refused until they had a warrent. they left and came back later w/ a paper they say was a warrent, she took the paper and shoved it down her shirt. after searching the house they didnt find the bombing suspect but they found pornographic materials in a trunk in the basement and charged mapp w/ violating ohio's obscenity statues. Governments point of view: 4th amendment should apply only to activitys of federal officers, not state. police entered in good faith looking for a bombing suspect and should be able to charge mapp w/ the crime.
Mapps point of view: Forth amendemnt should apply to all search and seizures, it doesnt matter who breaks down your door, the police didnt have a warrent. b/c their actions were unlawful the evidence should be excluded at trial.
DECISION: mapp won. search violated the 4th and 14th amendments. Applied weeks rule to the states actions.
weeks rule
exclusionary rule protects a person from federal officers actions only
Exceptions to the search warrent requirement.
1. consent (voluntary, no intimidated)
2. Stop and frisk (Terry v. Ohio, police officer protection, looking for weapons only.)
3. search incident to a lawfull arrest (lunge rule, grabable area, must have reasonal cause to arrest)
4. emergency situations (PROTECT and serve, protect mode)
5. customs inspection
6. plain view (not seeking evidence, ovious contraband)
plain view exception
viewer must be in position to see contraband legally. binoculars and flashlights are legal to use, exceptable enhancements. objects need to be in plain view. item must be clearly contraband. to seize the contraband on sight the viewer cannot be seeking this evidence of criminality.
Florida v. Riley
police recieved an anonymus tip that riley was growing marijuana in a green house outside his mobile home. w/ out a warrent they flew over his home at 400ft, the pilot identifyed the marijuana using his naked eye through a gap in the green house roof. riley was arrested for violation of floridas drug statutes.
Government point of view: police were flying over his home lawfully and saw the marijuana in PLAIN VIEW
Riley's point of view: he lived out in the country on 5 acres of land w/ wire fencing around his property and green house. there were signs that said "do not enter." he wanted to protect his privacy. a flyover at 400ft should have required a warrent
decision: police win. flyover was not unlawful, the police were there lawfully, so they could use information they obtained in plain view.
coolidge v. New Hampshire
a 14year old girl was found murdered when she didnt come home from a babysitting job in a rural area. investigation focused in on ed coolidge who live a couple of farms over. police asked ed if they could see his guns, he produced 3, none matched the caliber of the murder weapon. police asked ed to take a lie dector test, they held ed in custordy and went back to his home to talk to his wife, they asked to see the guns again and she gave them 4. she let the police take the 4th gun, and gave them the clothes ed wore the night of the murder. fun matched and fibers on the body matched ed's shirt. Governments point of view: wife has equal dominion and control over the marital home. she can consent to a search, the search was legal, no warrent required, evidence should be admissable
Ed's point of view: only the owner should be allowed to consent to the taking of his guns and clothes. he was in custody at the time, and should of had his consent before taking the items
DECISION: funs and clothes were lawfully sized under the 4th amendment and can be admitted into evidence. the wife has just as much right to consent to a search of the home as her husband.
Chimel v. california
chimel was a suspect in a coin store robbery. went to his home to arrest him, he wasnt home, wife invited officers in until husband arrived. had arrest warrent not search warrent. when husband arrived police asked to search, he refused, arrested chimel then searched his entire house and found coins and m edallions in a dresser drawer in his room, they were used against him at trial. Governments point of view: police were lawfully in chimel home. probable cause to arrest chimel, so they should be allowed to search his home according to the Incident to a lawful arrest exception. Chimels point of view: police cannot use incident to a lawful arrest to search the entire home. if they wanted to search everywhere they should have a search warrent. Decision: chimel rules, coins were unlawfully seized and must be suppressed. officer could properly search the area immediatley around an arrestee incident to a lawful arrest "lunge rule" to protect him, not the whole house.
huntley hearing
pre-trial hearing where the trial judge determines whether an alleged confession can be used at trial or if it shoudl be suppressed.
coker v. georgia
coker was serving a life sentance in georgia prison for murder, rape, and robbery charges. he secpaed from prison and made his way to the carver famrhouse. he tied up mr. carver and raped his wife. coker then took mrs. carver in the familys car and and released her a short while later. coker was arrested later that day stilldriving their car. convicted of rape and given the death penalty. Governments point of view: a convicted rapist and murderer, broke out of prison (another felony) and raped an innocent housewife. the defendatns pas record, plus the heinous nature of the present crime, justifies the imposiion of the death penalty. Cokers point of view: the death penalty for the crime of rape consititutes cruel and unusual punishment under the 8th amendment. allthough it may be jusified in a murder case, its not in a rape case.
decision: coker wins, a rapist who rapes and nothing more cannot recieve death, it is cruel and unusual.
oregon v. hass
states can carve out strickter standards for law enforcement officers.