June 6, 1944. Allied troops storm the beaches at Normandy, and the assault on Fortress Europe has begun. It was one of the biggest amphibious operations in history.
Today, US Forces still train to hit the beach.
Tag: International Security Studies
Remedial Law 101: How To Read a Legal Opinion
One of the basic skills an American lawyer needs is to be able to read a legal opinion. And, what exactly is that? Let’s consult Wikipedia:
In law, a legal opinion is usually a written explanation by a judge or group of judges that accompanies an order or ruling in a case, laying out the rationale and legal principles for the ruling.
Almost every introductory class I looked at had the same article on their syllabus, so I googled it and found to my delight that it was free and available. Written by Orin S. Kerr, it’s called How To Read a Legal Opinion: A Guide for New Law Students. Kerr wrote this for first year law students, but there’s a lot we can learn from it as non-lawyers that will help us when reading cases. Let’s have a look at it.
The first section describes and explains what a legal opinion has in it. The opinion follows a generally standard formula and is a document written by the judge which explains his or her decision by describing what the case is about, citing the relevant legal principles, and then applying those principles to rule in favor of one side or the other. That’s a lot right there so Kerr breaks it down a piece at a time.
At the beginning of a case opinion you’ll see something like this, which is from the case that is cited in the movie Paper Chase:
Hawkins v. McGee
Supreme Court of New Hampshire, 1929.
84 N.H. 114, 146 A. 641
First we have “Hawkins v. McGee”. This is the caption. The caption generally has the last names of the parties – the two sides – involved in the case. These are the person who brought the case to the courts and the person who is being sued. The parties are also sometimes referred to litigants, since they are “litigating” the case. If this is a criminal case rather than a civil one – and this will be explained below – then lawyers will bring the case on behalf of the state, or national government. Instead of their names, though, the opinion will use United States if the federal government, and the name of the state. people, or commonwealth if a state government. In England, they use Rex or Regina depending on whether a King or Queen is reigning at the time.
Next is the case citation, “Supreme Court of New Hampshire, 1929. 84 N.H. 114, 146 A. 641. “. That’s mysterious looking, but basically this tells you the name of the court that decided the case (New Hampshire here), along with the law book it was published in (84 N.H. 114, 146 A. 641) and the year it was decided (1929 for Hawkins vs. McGee).
Next in the Hawkins v. McGee case, you’ll see: “Branch, J. 1. The operation in question consisted in the removal of a considerable quantity of scar tissue from the palm of the plaintiff’s right hand and the grafting of skin taken from the plaintiff’s chest in place thereof.”
Branch here is the name of the judge that wrote the opinion; were there multiple judges on the case, this would be the name of the particular judge that wrote the opinion. The J here just means judge or justice and is not the first initial of the judge. More modern cases than this one may list a first initial, though, in addition to the J. Sometimes instead of the judge’s name you’ll see “per curiam” there which means “by the court” and shows that all of the judges agreed and this isn’t just the opinion of the one particular judge.
The sentence “1. The operation in question consisted in the removal of a considerable quantity of scar tissue from the palm of the plaintiff’s right hand and the grafting of skin taken from the plaintiff’s chest in place thereof.” begins the facts of the case where the judge describes what happened. There are no set ways to write this and no rules on what to include and so these descriptions vary wildly from vague and poor to specific and well-written. Usually this description also tells the “procedural history” of the case; in other words, what courts below this one it’s been through and what the rulings, motions, and trials were in those courts.
Next, the judge talks about the law that pertains to the case, usually in two parts. In the first part is the background – precedents, or cases from the past that were similar, a history of the field of law that applies to this case, and general principles from the body of law that would be germane to a ruling for the case. The second part explains how these precedents and principles apply to this case and why the court is ruling the way that it is.
Sometimes there may be more than one judge ruling in the case, such as for the circuit court of appeals and the Supreme Court (A discussion of the American court system is clearly in order for a future post!).In this case, if all the judges agree, the opinion would be a majority opinion. If not the judges vote, and the ruling with the most votes wins. This is what you’ve seen so far in the Legal Opinion. However, sometimes there will be a judge or judges that don’t agree and they will write a concurrent opinion – in which they come to the same ruling by a different legal principle, or a dissenting opinion, wherein they explain why they would rule opposite of the majority. More on this later.
And that’s it for the format of a legal opinion.
Next, Kerr explains the terms in a legal opinion. He notes that way back in 1066, a Frenchman conquered England and the official language of the rulers and the courts was French, and this was the origin of many of our legal terms today because even after the English got their independence back and started using English again, they kept many of the French legal terms. Kerr suggests keeping a legal dictionary handy when reading legal documents.
There are two kinds of legal cases:
Civil: A plaintiff brings a lawsuit (sues) against a defendant, and asks the court to order the defendant to either:
pay damages – a monetary award to the plaintiff
receive an injunction, which is an order to do or stop doing some action.
Criminal: In a criminal case there is no plaintiff. Rather than filing a lawsuit, a government prosecutor, brings charges against the defendant and asks the court to jail or fine the defendant. The government’s attorney is referred to as the state, the government, or the prosecution.
Typically lawyers, the people representing the parties in the case are often called attorneys or counsels as well, while the judges are usually referred to as the court.
So, as I noted above, the court system allows appeals by the losing party if they feel that a court has ruled incorrectly. This leads to an appellate opinion, where a higher court rules whether a lower court has made the correct decision. The first court where the case is brought, the lowest court, is known as the trial court. The higher court is the appeals or appellate court.
During the appeal hearing, there is a solo judge, but the decision is made by more than one in a vote. Kerr explains that in the United States federal (the national level) court system, the trial court is overseen by a District Court judge. The next higher court is the Court of Appeals with three Circuit Court judges voting on the decision. Above that is the Supreme Court, with nine Justices (one Chief and eight associate justices, which is just a fancy term for the judges on the court) that vote on the case. Here are some terms from the appellate process:
Appeal – discussed above, another term is “petition”, where the losing party has filed a petition for relief.
Appellant – the party that lost in the lower court and that is filing the appeal. May also be called the “plaintiff in error” or “petitioner”.
Appellee – the party that won in the lower court and must defend the lower court’s ruling. May also be called the “defendant in error” or the “respondent”.
So, what is it that is important about reading through a case? What points should you focus on and what should you come away with?
First, Kerr says, concentrate on the facts. This is what really determines the outcome of the case and which particular legal principles apply to the ruling. Second, know the specific arguments made by the parties. The lawyers frame the arguments and present the specific legal question involved in the case for the judge to rule on. Kerr gives the example of an appeal, where the appellant lawyer will describe specific reasons why the lower court was wrong in ruling the way it did, and the appellate court will agree or disagree on those arguments.
Next up is the “Disposition” of the case, usually found at the end of the opinion. This is the action the court took. Kerr’s example, again of an appellate court, describes several possible actions:
affirm the lower court’s decision, meaning the lower court ruled correctly
reverse the lower court’s decision, ruling for the side that lost the original case
vacate the lower court’s decision, which is a fancy way of saying that the decision is “wiped from the books” and then remanded, or sent back, to the lower court for a retrial because the lower court ruled incorrectly.
Another thing to do when reading a case is to understand the reasoning of both the majority and concurring/dissenting opinions and the significance of each.
Kerr suggests you do this by first figuring out where the law the judge applied came from, such as the Constitution, statutes passed by Congress or other legislative bodies, or the “common law” which is the precedents set by prior cases over hundreds of years and made by judges, not by legislatures. Common refers to the fact that it applies to everyone and doesn’t mean that it is less than other types of law. That said, per Kerr, “Constitutional rules trump statutory (statute-based) rules, and statutory rules trump common-law based rules.”
Often, the above simplifies the opinion. The Constitution or the statutory law, if it can be applied, means that the judge will just follow these rules. If there is prior case law, the judge will follow the precedent set in the common law. Kerr notes that this is called the principle of ‘stare decisis’, which is a Latin abbreviation for “That which has already been decided should remain settled.” The court may also base its decision on public policy, picking what it feels to be the best rule and applying it, especially in a common law case. Or it may reason from “morality, fairness, or notions of justice” to reach its decision. You should examine the opinion to see which of these or what combination of these the court used to decide its ruling.
Kerr next looks at the significance of the majority opinion. A few terms:
Holding – resolves the case by applying a “clear rule of law that is new to that particular case.” It’s a good idea to try and figure out what other situations this rule would apply in, because this may show that there are problems with it, and because that’s what judges do, reasoning by analogy from one case to another that may be similar to reach a decision.
Dicta – from the Latin “obiter dictum” or “by the way”, this is a legal remark in the opinion that isn’t necessary to resolve the case.
Rulings are sometimes unclear or vague due to human failings, but a good lawyer or judge recognizes this and accepts it.
Judges are only human and sometimes their ruling may have flaws. Thus it’s important to read and understand the concurring and dissenting opinions as well. They can point out flaws and vague areas in the majority opinion concerning the key points of the case, and this will aid in your understanding of the case.
In the last part of the article, Kerr talks about why law schools use the case method to train lawyers. What it comes down to is that most law is not formally codified. A judge cannot create law unless they are presented with a specific case that they rule on. Thus, in order to see how a legal case should be decided, judges examine past case law to see how similar cases were decided and how the principles might apply to this specific case. Sometimes the law might be unclear or vague and so having the knowledge of similar cases may help clear up what should be done for a particular case, and how it applies to a client’s specific legal issue. Kerr’s example is that when a sign says “No vehicles in the park”, what exactly is a vehicle defined as? A car is pretty much guaranteed to be a vehicle, but what about a skateboard, bike, or even a motorized wheelchair? Any parent has experienced this with their child – “Stay off the couch!” Child: “But what if I lean against it? I’m not on it, right?” Lawyers, too, must get used to ambiguity and reasoning from the abstract to the concrete.
Source: How To Read a Legal Opinion: A Guide for New Law Students, by Orin S. Kerr
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