Legal research has 2 distinct phases:

Investigation : The lawyer uncovers as many basic facts as she can concerning the specific case. During the investigation the attorney will legally categorize the case based upon the available evidence. This evidence can include police reports , depositions of witnesses, physical examination of the crime scene, and determination of standard practices.

The lawyer focuses on two major aspects during investigation:

A. What happened ?

B. What is the legal remedy ?
 
 

Case Research : The lawyer hits the law library in an attempt to find previous cases which resemble the present case. Ideally, the common law cases to be cited structurally resemble the present case (‘on all fours’) as much as possible. Previous cases with favorable outcomes are of prime importance.

A precedent is a piece of common law which can be used to support a current case in a court of law. Precedents can also be used to help the attorneys set a monetary value on civil cases and point toward an appropriate sentencing recommendation for criminal cases.
 

Legal Foundations
 

Although social science can assist the law in making empirical determinations of fact, judicial decisions are the result of legal traditions.

Natural Law: The original guiding legal principle developed during the Roman empire. Natural law states that everybody has a sense of right and wrong, irrespective of their knowledge of specific laws and practices. ‘Ignorance of the law is no excuse’ is a statement based upon the existence of natural law.

Over the law fifty years, however, legal scholars have argued that since laws concern human relations, intelligent statutes can only be derived from experience and observation.

This has led to the present concept of Legal realism.

Legal realism means that the legality of a current case is largely determined by previous legal decisions. This gives the legal system an appearance of stability and continuity.

The idea that Judges are guided by previous court cases in a current case is called stare decisis.

Stare Decisis requires that judges pay strict attention to previous legal precedents when adjudicating a current case. Judges who ignore precedents risk having their decision overturned by a higher court.
 
 

Three Sources of Law
 

Common Law: Is the body of American and British case law, decided by judges. Although the cases all have individual factors, judges attempt to tie the legal decisions to broader, more general principles of law.

New Legal Statutes : Laws passed by local, state and federal governments can overrule precedent and create a new law of the land.
 

State and Federal Constitutions : Constitutions represent a binding contract between a government and its citizens. The U.S. constitution is the supreme law of the land. When judges ignore precedents they often fall back on the constitution as their legal authority for doing so.

The U.S. constitution has long been referred to as a living document. One, the constitution can be changed through amendment. Two, prevailing social wisdom can change the interpretation of what the constitution states.
 
 

Adversarial vs. Inquisitive styles of Justice
 

Attorneys and Judges play different roles in the American and British justice systems.
 
 

Adversarial justice: In the American system, attorneys are expected to be totally loyal to their client, and only present favorable evidence. The lawyer exists to protect their client. Judge and Jury play a much more passive role of observer.
 

Inquisitorial Justice : In the British system, the judge takes a very active role in examining witnesses and arranging evidence.
 

Thibaut & Walker (1975): conducted research with mock juries, utilizing both systems. They made three major conclusions :

1. Lawyers in the adversarial system uncovered a greater amount of facts than did judges in the inquisitorial system. Judges in the inquisitorial system stopped searching for facts after they felt they had all of the pertinent evidence.

2. That lawyers in the adversarial system worked very hard on their clients case when the case was weak.

3. Participants in the study system felt that they had a better chance to present their case within the adversarial system.
 

Thibaut & Walker stated that both process control and decision control are important for creating the perception of judicial fairness, and that overall, the adversarial system is seen as being more fair and less biased than the inquisitorial process.
 
 

Other research has indicated that the inquisitorial system of justice may lead to more accurate decisions, but  in general, the legal system is more willing to be inaccurate than to appear unfair or biased.
 
 
 

Social Science used in law
 
 

When an established replicable social finding is used in a court of law, it is referred to as a Social Authority .

Social Authority has the same standing as legal authority, and ‘social facts’ can be used within the trial to help support the case.
 

How Social Facts can affect a specific Case :

1979 Squirt vs. Seven-Up :

Squirt was suing 7-up for trademark infringement over 7-up’s new soft drink, Quirst.

Social Scientists conducted an experiment to uncover a social fact.

        Did Seven-Up’s new soft drink cause confusion among consumers ?

Social Scientists handed out soft drink coupons to consumers and surveyed people who bought soda when they left the store. They determined that 4.3 % of consumers who bought Quirst thought that they were buying Squirt. Since there is a billion dollar +   world soda market, this represented a significant financial amount.

The district court used this ‘social fact’ to help rule this case in favor of Squirt, ruling trademark infringement had occurred.

Additionally, this case became part of common law. From 1979 on, consumer surveys are expected to be presented as a regular part of trademark infringement cases.
 
 

        Legal Procedures
 
 

All laws can be divided into two sections:

Substantive Law : the rules concerning the substance or merits of a legal claim.

Procedural Law : the laws governing the steps to be taken in a civil or criminal law.
 
 

Two major categories of Law:

Criminal and Civil Law

Criminal Law : Concerns the relationship between the government and a citizen accused of breaking the law. Even though you are the person who is assaulted or robbed, the government is the only agent which can punish the person within a criminal proceedings. As law is the glue that holds civilization together, the government has as overriding interest in upholding the law. As such, the government takes an active role in the initiation and pursuit of criminal infractions.
 

Civil Law: Governs the relations between individuals and corporations. Unlike a criminal case, the Government plays only the role of referee. The individual (or corporation) is responsible for filing the complaint, and investigating the case and presenting evidence.
 

Some cases can be tried both criminally and civilly

(for example, the O.J. Simpson case)
 

Basic Vocabulary Terms
 

Plaintiff : person in a civil case who files the lawsuit.

Defendant: the person (or corporation) who is being sued.

Punitive Damages : additional monies for outrageous behavior in a civil suit.
 
 
 

Procedural Rules and Criminal Law
 
 

Most legal scholars believe that procedural protections are necessary to safeguard the rights of individuals.

For example, the fifth amendment states that you have a constitutional right against self incrimination.

If an individual is tortured to get a confession, or is injected with a truth serum, than the confession is inadmissable in court.

The procedures for obtaining a valid confession have been violated, and protecting the rights of the individual is seen as more important than uncovering the truth behind the criminal behavior.
 

The Bill of Rights is a catalog of procedural protections.

Some examples:

Fourth amendment : protects against unreasonable search and seizure.

Fifth amendment : protects against self incrimination and deprivation of liberty without due process of law. Due process embodies both a fairness in legal procedures and a protection against repressive governmental interference.

Sixth amendment: protects the right of cross examination and legal representation.
 

Assumptions underlying Procedural Law

1. Justice is best served when rules and rights are clearly stated and adhered to.

2. Participants within the legal system need to be regulated, and that without regulations government officials will ignore the rights of the citizens.

3. Public exposure of governmental actions will lead to political accountability and promote positive changes to the legal system.

4. Procedural rules are written and enacted by people who are considering the rights of all individuals from a position of neutrality.
 

Procedural rules help promote a regularity within the judicial process. This regularity helps to promote the image of fairness.
 
 

Social Psychologists description of  the decision process of turning to the law:
 

Naming: The victim must recognize a crime has happened, and must "name" the event. Rape, sexual assault, personal injury, intentional infliction of emotional distress are all names that could be attached to various acts..

Blaming : Where the victim places the blame plays an important part in whether charges are ever filed.

Claiming: This represents the swearing of a formal complaint against someone. The victim is claiming their right to use the legal system against someone whom they feel has done them an injustice. Psychological, economic, political and social factors can all influence whether or not someone will file criminal charges.
 

Civil vs. Criminal Approaches to addressing grievances
 

Consider a date rape case :
 

A victim could complain of criminal acts such as rape, sexual assault, simple assault, or physical battery.

Simple assault involves threatening another person with bodily harm.

Physical Battery involves forceful, harmful touching of another without consent.

Sexual assault includes unwanted sexual touching, including but not limited to intercourse.

Rape more specifically refers to sexual intercourse that results from the use or threat of bodily injury or death.
 

Of course, the government (District attorney) is the only party which can file the criminal charges, so the exact charges filed depend upon how strong a case the prosecution can support.
 

Alternatively, or additionally, the victim can file a civil suit.

Tort/Personal Injury case: Plaintiff can sue for monetary damages, including both medical expenses, counseling costs, and punitive damages to cover intentional emotional distress and physical pain and suffering.

Can also ask for Orders of Protection in a civil suit.

Civil Suits can satisfy two needs of the plaintiff:

1. The need for monetary compensation. Lost Wages, medical expenses create economic hardship for the plaintiff, which they may be able to recoup.

2. The need for vindication, for an official body to recognize that what the defendant did to the plaintiff was wrong.
 
 

Major Differences Between Criminal & Civil Cases

Case Type

Criminal
 

Purpose: To protect the public                                         dispute resolution

                                                                                        between private parties
 

Parties: Government prosecutes,                                      Plaintiff files case

on publics behalf in own name.

(State vs. Rhodes)                                                             (Kohl vs. Rhodes)
 
 

Burden of Proof:

        Criminal                                                            Civil

Beyond a reasonable doubt                             Preponderance of the Evidence
 
 

Elements to be proved:

(rape case example)

    Criminal                                                    Civil
 

Prosecutor must prove                         Plaintiff must prove

defendant forced                                 the defendant’snegligencee

complaining witness                             or intentional actions

to engage in sexual                                 were a primary cause

intercourse by use of bodily                 of physical and mental

harm or threat of Physical force.             injuries sustained.
 
 

Major Differences Between Criminal & Civil Cases

Case Type

Criminal                                         Civil
 
 

Decision Making:

Defendant has Sixth amendment                     Plaintiff may

right to "speedy and public trial                       request jury trial,

by an impartial jury". Defendant                      but not for orders

can also choose trial by judge.                         Of protection. Judge rules on all legal issues.
 
 

Possible Decision:

Not Guilty, Guilty                                                Not liable, or liable

guilty but mentally ill;

not guilty by reason of insanity
 
 

Outcome:

Judge sentences guilty defendant.                                 Judgement of

Often judge has to follow                                             damages ($$$),

sentencing guidelines.                                                    And possibly

Fines to Death Sentence                                                 Injunctions.
 

Major Differences Between Criminal & Civil Cases

Case Type

Criminal                                                                 Civil
 
 

Lawyers:

Government is represented                                                         Plaintiff hires

by a publicly appointed or                                                         private attorney.

Elected prosecutor.                                                                     Exception:

Defendant hires personal                                                           Small Claims

attorney or has one                                                                     Court

Appointed by the court.
 
 

Courts:

Most crimes prosecuted                                                         States have general

In state run court rooms.                                                     Jurisdiction in civil

Inter-State crimes                                                                suits, except when

and crimes which affect                                                     the Parties are from

Federal government are tried                                             different states or

at the Federal Level.                                                         The plaintiff is a

                                                                                        Government official.