Monthly Archives: June 2014

Why Defendant Former Employers Do Not Get Mirror-Image of Plaintiff’s Personal Computer.

30 Monday Jun 2014

Posted by in Computer Forensics, Discovery, E-Discovery, Emails, Employment Law, Evidence, Forensic Evidence, Law Office Management, Legal Technology, Requests for Production, Technology

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Proportionality Prevents Mirror Imaging of Family Computers, by Joshua Gilliland, Bow Tie Law’s Blog

http://tinyurl.com/osvw3ws

The Defendants in employment litigation sought the mirror imaging of the Plaintiff’s personal computers three years after she had been terminated. The crux of the eDiscovery centered on the former employee forwarding emails from her supervisors email to her personal account, which the Defendants claimed were lost by the Plaintiff. The Court denied the motion to compel. Downs v. Va. Health Sys., 2014 U.S. Dist. LEXIS 74415, 6-11 (W.D. Va. June 2, 2014).

Judge James G. Welsh did a very nice job of summarizing ESI relevant to a case,proportionality, and the rules for conducting forensic analysis on an opposing party’s hard drive. The Court held the following:

(1) Nothing in the record suggests any willful failure, fault or bad faith by the plaintiff on her discovery obligations that would justify the requested computer forensics examination;

(2) The “mirror-imaging” of the plaintiff’s family computers three years after her termination raises significant issues of confidentiality and privacy;

(3) There was no duty on the part of the plaintiff to preserve her family computers as evidence;

(4) Principles of proportionality direct that the requested discovery is not sufficiently important to warrant the potential burden or expense in this case; and

(5) On the current record that the defendants have failed to justify a broad, and frankly drastic, forensic computer examination of the plaintiff’s two family computers.

Downs, at *9-10, referencing McCurdy Group v. Am. Biomedical Group, Inc., 9 Fed. Appx. 822, 831 (10th Cir. 2001); see also Basile Baumann Prost Cole & Assocs., Inc. v. BBP & Assocs. LLC, 2013 U.S. Dist. LEXIS 51264, *8 (D. Md. Apr. 9, 2013). . . .

 

Texas Bar Now Has Fastcase and Casemaker.

29 Sunday Jun 2014

Posted by in Casemaker, FastCase

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Texas State Bar Adds Fastcase Alongside Casemaker, by Greg Lambert, Three Geeks and a Law Blog

http://www.geeklawblog.com/2014/06/texas-state-bar-adds-fastcase-alongside.html

As the saying goes, ’Everything’s bigger in Texas.’ That phrase also applies to the State Bar membership benefits. The State Bar of Texas has agreed to add Fastcase as a member benefit on top of its already existing Casemaker access. This makes it the first Bar in the country to offer both services. In addition to adding Fastcase, the State Bar of Texas increased the level of subscription to Casemaker to include the premium services of Casecheck+, CiteCheck, and CasemakerDigest to the member benefit. That is a major coup for the Bar.

Fastcase’s access will depend upon the size of your firm. For those under 11 attorneys, you will have access to the premium Fastcase database (all states & fed), for those 11+ attorney firms, you will have access to the Texas plan. Everyone will have access to the mobile apps and to the HeinOnline integration for the covered material.

It is a great day for the State Bar of Texas and its members. Read the Fastcase and SBOT press releases below for more information.

To log in to this free benefit, members will visit the State Bar website at http://www.texasbar.com and log in with their bar number and password. The service is also available via the TexasBarCLE website at http://www.texasbarcle.com/.

29 Sunday Jun 2014

Posted by in Abortion, Appellate Law, First Amendment, United States Supreme Court

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FAN 20.4 (First Amendment News) — 9 Comments on McCullen, the Abortion Buffer Zone Case, by Ronald K.L.Collins, Concurring Opinions Blog

http://tinyurl.com/lj44njo

Mr. Collins shares excerpts from nine commentaries on the U.S. Supreme Court’s recent ruling in McCullen v. Coakley, which removed the “buffer zone” around abortion clinics in favor of First Amendment rights of those who protest abortion. -CCE

String Citations – Good or Bad Legal Writing Tool?

29 Sunday Jun 2014

Posted by in Bad Legal Writing, Brief Writing, Citations, Legal Analysis, Legal Argument, Legal Writing, String Citations

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String Theory, by Kirby Griffis, BriefRight Blog

http://briefright.com/string-theory

String citations – a good writing tool or a bad idea? Lengthy string citations, like long single-spaced block quotations, are never a good idea. Readers tend to skim or skip a big block of text.

A good rule of thumb is to never cite more than four cases in a string. Start the string with a signal. Use a parenthetical — an abbreviated summary of the case in parentheses at the end of the citation. Keep your parenthetical no longer than two lines. Anything longer defeats the purpose of using string citations. -CCE

Your summary judgment brief contains eleven distinct legal propositions, including the standard to be applied in ruling on summary judgment. You have researched each, and have found multiple cases. You have read them and highlighted them and they are sitting on your desk in eleven stacks. You have even sorted each stack, moving the most persuasive authorities (because they are from your state and circuit, or are more recent, or are from higher courts) to the front.

Now what?

Many lawyers will just list every one of the cases in a string cite. This, they think, shows the judge the weight of the authority behind your legal claims. The judge will see nine cases listed and think ‘Wow, I guess they win that point.’

It is not so. String cites are a bad idea, for multiple reasons. . . .

PowerPoint Basics and Beyond for 2010, 2007, and 2003.

29 Sunday Jun 2014

Posted by in Legal Technology, PowerPoint, Presentations

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PowerPoint for Beginners – How to Use PowerPoint, by Wendy Russell, About.com

Beginner’s Guide to PowerPoint 2010

http://presentationsoft.about.com/od/powerpoint101/a/begin_guide.htm

The basics, beyond the basics, and tips and tools. Additional links, quick tips, presentation tips, and related articles. If you don’t have 2010, information for 2003 and 2007 PowerPoint is also included. -CCE

And Now For Something Completely Different — Murphy’s Laws.

29 Sunday Jun 2014

Posted by in Recent Links and Articles

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Murphy’s Laws Site, by Raanan Avidor

All the laws of Murphy In one place

http://www.murphys-laws.com/

Murphy’s Laws for love, technology, computers, employees, commerce, teaching, war, real estate, office, mothers, police, fire brigade, toddlers, sewing, and many others. The author invites you to feel free to add your own. -CCE

Lots and Lots of Jury Instructions.

29 Sunday Jun 2014

Posted by in Jury Instructions, Jury Instructions, Jury Persuasion, Legal Writing, Trial Tips and Techniques

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The Language Of Jury Instructions, by Peter Meijes Tiersma, LanguageandLaw.org

http://tinyurl.com/qy9z2rv

Lots of information and examples on jury instructions, including a Manual on Communicating with Juries, links to criminal and civil jury instructions, to plain language jury instructions, to jury instructions for specific states, and more. If you need help writing jury instructions, this would be a good place to start. -CCE

Checked Your Readability Score Lately?

28 Saturday Jun 2014

Posted by in Bad Legal Writing, Brief Writing, Editing, Legal Writing, Legalese, Microsoft Office, Plain Language, Proofreading, Word

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Expose Your Weakness — Now! by Mark Herrmann, Above the Law Blog

http://abovethelaw.com/2014/06/expose-your-weakness-now/

Think you can write? Do these four things.

First, pull out the last brief that you wrote.

Not that one — that’s the final version, edited by guys who could write. We’re looking for your work, untouched by others. Find the unedited draft that you first circulated. (If you don’t have a draft brief handy, that’s okay. Find the last long email that you sent to someone who matters — to the partner, the client, the general counsel, or the CEO.)

Second, click through this link, which will tell you how to enable Microsoft Word’s ‘readability’ feature on your computer. Enable that feature.

Third, let the readability feature score your work.

Finally, take a handkerchief and wipe the spit out of your eye. (I bet you didn’t realize that a computer could spit in your eye.)

You didn’t notice the spit? Here it comes: Compare your readability score to the average readability score for the works of bestselling authors.

I didn’t even know about Microsoft’s readability feature until I published a column on legal writing last month. I argued in favor of using short sentences and the active voice. A reader — Steve Dykstra, who’s a legal recruiter and budding novelist in Toronto — promptly sent me an enlightening email. Steve also subjected my work — my column on legal writing — to Microsoft Word’s readability test. Steve then told me how my column compared to the work of bestselling authors. . . .

The U.S. Supreme Court’s Recent Cell Phone Ruling.

28 Saturday Jun 2014

Posted by in Android Phones, Appellate Law, Blackberry Phones, Cell Phones, Fourth Amendment - Search & Seizure, iPhones, Legal Technology, Search Warrants, United States Supreme Court

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The Scary Part Of The Supreme Court’s Cellphone Ruling, by Fred Barash, The Washington Post

http://tinyurl.com/oa2t6te

That Supreme Court ruling on cellphones was supposed to be reassuring. The government needs a warrant to search your phone, the court ruled.

But read Riley vs. California more closely and it’s just a little scary — particularly for those who pay little attention to what’s on their smartphones. If you don’t think your phone exposes your life-all of it-take it from the nation’s highest court.

Your phone, says the court, is your life. Cracking it open is even more revealing than rummaging through your home, which the Fourth Amendment’s protection against unreasonable searches was designed to protect. . . .

Brief Writing: The Table of Contents and Table of Authorities.

28 Saturday Jun 2014

Posted by in Brief Writing, Legal Writing, Table of Authorities

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Finishing Your Brief By Crafting The Table Of Contents And Table Of Authorities, by Celia C. Elwell, RP (Originally appeared in print in Legal Assistant Today as “Finishing Your Brief,” November/December 2003), Paralegal Today

http://tinyurl.com/72vcuuq

Sometimes, especially in law, it’s the little things that make all the difference. The cover page, Table of Contents and Table of Authorities are used for major briefs, such as briefs in support of dispositive or trial motions. Sometimes they are mandatory; other times they can be used to enhance a brief and make it easier for the court to read and understand. Regardless, all three of these tools are excellent methods for enhancing any lengthy or complex brief filed with the court, and paralegals should make sure they are familiar with all these tools. . . .

Juries and Social Labeling.

28 Saturday Jun 2014

Posted by in Closing Argument, Jury Instructions, Jury Persuasion, Jury Selection, Opening Argument, Trial Tips and Techniques

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“Everyday is a Great Day!” Self-Fulfilling Prophecy and Social Labeling, by Jill D. Schmid Ph.D., Tsongas® Blog

http://tinyurl.com/ljah59y

‘Everyday is a great day!’ That’s what he said, and appeared to believe with every fiber of his body. He was a 20-something, male clerk in an airport hotel’s gift shop. My response to, ‘How are you today?’ paled in comparison. ‘Oh, alright,’ I said as I contemplated what was about to be a very long research day. I didn’t expect to have a philosophical discussion that morning, but after what he said, I couldn’t help but ask his secret.  He looked so content, so convincing, so . . . what’s the word?  Oh yeah, happy.

So I asked, and his answer stuck with me.  He said about five years earlier he found himself in a tough spot; he was making poor choices; he was unhappy and making others around him unhappy. He decided to change his life, and he would do it by simply declaring that every day was special, that ‘everyday is a great day!’ He said from that point on, his attitude changed and he noticed that others’ attitudes also changed.  He found that when he’d tell people that, they smiled and seemed a bit lighter, less stressed. I felt the same – his answer had reminded me that I should be focusing on the positive; that I should be thankful to have a job that allows me to have interesting and challenging conversations nearly every day; that I should be looking forward to interacting with a whole new group of people – people who had important things to say and from whom I would learn a lot. In short, it really was about to be a great day, and I needed to change my attitude.

I was reminded of this encounter during a recent jury selection.  While I typically believe it’s somewhat of a waste of time to elicit ‘promises’ from your potential jurors (i.e., ‘Do you promise that you’ll give my client a fair shake?’ ‘Do you promise that you’ll follow all of the judge’s instructions?’ ‘Do you promise to not let your sympathies influence your decision?”), this attorney took a similar, but improved tack. His questions, and subsequent labeling of the jurors, utilized a well-researched phenomenon called ‘social labeling.’ . . .

How To Brief A Case.

28 Saturday Jun 2014

Posted by in Briefing Cases, Legal Analysis, Legal Writing

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How To Brief A Case, created by Christopher Pyle, 1982 and revised by Prof. Katherine Killoran, Feb. 1999, Lloyd Sealy Library, John Jay College of Criminal Justice

http://www.lib.jjay.cuny.edu/research/brief.html

A nice breakdown on how to brief a case (not to be confused with writing a legal brief for the court) for paralegal and law students. I would add “judgment” at the end of the steps – the decision made by the court (e.g., affirmed, reversed and remanded, etc.).  If you are interested in legal writing and have never learned how to brief a case, I recommend it. It will help you learn how to identify the key facts of the case and how the court applied those facts to the law to reach its ruling. -CCE

Judge Posner Critique on Structuring Statutory-Interpretation Books.

28 Saturday Jun 2014

Posted by in Brief Writing, Case Briefs, Legal Analysis, Legal Argument, Legal Writing, Legislative History, Statutory Interpretation

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Judge Posner on Statutory Interpretation: This Is How We Do It, by David Lat, Above The Law Blog

http://tinyurl.com/nba842o

[J]udge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit delivered the Madison Lecture on Judicial Engagement at Columbia Law School. The lecture series, sponsored by the CLS chapter of the Federalist Society, brings distinguished jurists to Columbia to discuss topics relevant to the federal judiciary and the administration of justice.

(Perhaps we should put ‘at’ Columbia Law in quotation marks; Judge Posner actually appeared via video conference. That shouldn’t surprise, coming from a judge who lists The Matrix as one of his favorite films.)

In his talk, entitled ’How I Interpret Statutes and the Constitution,’ Judge Posner was his usual candid self. He offered commentary on two recent books about statutory and constitutional interpretation — books that he’s not a fan of.

Yes, readers. There will be benchslaps….

Reminder – Minnesota Court Rules Are A-Changing.

23 Monday Jun 2014

Posted by in Adoption Law, Appellate Judges, Appellate Law, E-Filing, Family Law, Juvenile Law, Legal Technology, Minnesota, Recent Links and Articles

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In an earlier post, (https://researchingparalegal.com/2014/06/14/recent-court-rule-changes-for-minnesota-courts/) I mentioned that changes to appellate, juvenile, and adoption court rules in Minnesota’s would go soon go into effect on July 1, 2014. They are:

(Effective July 1, 2014) Supreme Court Promulgates Amendments to the Rules of Juvenile Protection Procedure and the Rules of Adoption Procedure.

(Effective July 1, 2014)  Court of Appeals Issues Standing Order Regarding Paper Copies of Briefs

(Effective July 1, 2014) Supreme Court Issues Standing Order Regarding Paper Copies of Briefs

(Effective July 1, 2014) Supreme Court Promulgates Amendments to the Rules of Civil Appellate Procedure

The orders for the appellate courts look especially important.  You can find hyperlinks to these orders here: http://tinyurl.com/nxawksy.   -CCE

 

 

Cool Developments at Congress.gov, including THOMAS. Check It Out.

22 Sunday Jun 2014

Posted by in Government, Legislation, Legislative History, References, Research, Statistics, THOMAS

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Nominations, Accounts, Saved Searches – Congress.gov Continues to Grow, by Andrew Weber, In Custodia Lexis: Law Librarians of Congress

http://tinyurl.com/o3zc7lt

There’s a lot of information here. Take your time, and give it a good look. I think you’ll find it worth it. -CCE

I have been looking forward to this Congress.gov release for several months.  There is now nomination information, accounts, the ability to save searches, an expanded About section, an FAQ section, easy access to Member remarks in the Congressional Record, and more.

With the new updates, you can locate nominations dating back to 1981.  The nominations section allows you to retrieve information via faceted navigation, just as you do throughout the rest of the site.

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On THOMAS, individual accounts were a feature that the system could not support.  Now you will have the option to save your search so you can quickly run it again later.  This is especially useful for those highly complex customized queries.  Adding accounts will enable us to do new things with the system in the future.

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The About section has been expanded with the aim of making Congress.gov more user friendly.  Also with this release, you can now access a Frequently Asked Questions section, which covers:

•Congress.gov Overview

•Learn Congress.gov and the Legislative Process

•Features, Updates and Technology (which includes a link to a page on how to embed the Congress.gov search box on your website)

•Congressional Record

•Committees

•Legislation

•THOMAS Retirement

I highlighted some of these Congress.gov enhancements during my presentation at the 2014 Legislative Data Transparency Conference.  Grant Vergottini, in his write up of the conference, stated that although it was ‘still in beta, this site has now essentially replaced the older Thomas site.’  I would have to agree.

These improvements build upon those added in February: Advanced Search, Browse, and the Appropriations Table. . . .

Bad Thinking = Bad Writing. Makes A Lot Of Sense.

22 Sunday Jun 2014

Posted by in Bad Legal Writing, Legal Writing

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Bad Thinking Leads To Bad Writing, by Legal Writng Prof, Legal Writing Prof Blog

http://tinyurl.com/mr5g4x8

In a recent Chronicle of Higher Education article titled ‘Bad Writing and Bad Thinking,’ author Rachel Toor argues that some problems with students’ writing arise from their belief that they must write like others in their fields—even when that writing is clumsy. Instead, Toor says, students should follow George Orwell’s and Strunk and White’s advice about thinking and writing clearly. She adds, ‘Call me simple-minded, call me anti-intellectual, but I believe that most poor scholarly writing is a result of bad habits, of learning tricks of the academic trade as a way to try to fit in. And it’s a result of lazy thinking.’  Law students’ exposure turgid judicial opinions may explain some of the problems they face in learning legal writing.

Student Guide to Footnotes and Citations in Scholarly Writing.

22 Sunday Jun 2014

Posted by in Citations, Footnotes, Legal Writing, Research, The Bluebook

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When a Rose Isn’t ‘Arose’ Isn’t Arroz: A Student Guide to Footnoting for Informational Clarity and Scholarly Discourse, by Mark E. Wojcik, Legal Writing Prof Blog

http://tinyurl.com/nm4p2x6

Professor William Mock has authored an article meant to help students cite more sensibly. The article begins with welcome advice: ‘Not every proposition in a law review articles requires citation, nor does every footnote require cited authority.’ (And in case you’re worried already, that sentence has two footnotes in the orginal!).

It is the kind of article that should be given to incoming law journal editorial boards to help student editors (and research assistants) understand the distinctions among different types of footnotes.

You can share this link for students to download a copy of the paper from SSRN.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1019891

(With students, we recommend giving the link rather than the document itself so that students will also learn how to do research on SSRN–a source that gives them information not found on Westlaw or Lexis or Bloomberg).

If law journals adopt more sensible rules for citations rather than strict mathematical formulas (such as 1.8 pages of footnotes for each page of text), law reviews have a chance to increase their readability and usefulness to readers.

Controlling Crowded Sentences. Shorter Is Not Always Better?

22 Sunday Jun 2014

Posted by in Editing, Legal Writing, Proofreading, Readability

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Controlling Crowded Sentences, by Judith D. Fischer, Legal Writing Prof, Legal Writing Prof Blog

http://tinyurl.com/kacsecz

In his recent article Controlling Crowded Sentences, rhetorician George Gopen shows how to make Gopen the most of stress positions. He starts with a sample thirty-six word sentence and then revises it six different ways. Some revisions are a bit longer than the original, but Gopen emphasizes that ‘I do not hold with those who advise ‘to make it better, make it shorter.’ Each revision has a different purpose: one places a person in a subordinate role, and another builds empathy for her. The article appeared in the spring 2014 issue of Litigation.

Amazon And Other Firms Cited By OSHA For Worker’s Death.

22 Sunday Jun 2014

Posted by in Anti-Retaliation, Bullying, Employment Law, Government, Harassment, Hostile Work Environment, OSHA

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OSHA Cites Five Firms After Temporary Worker Dies at Amazon Fulfillment Center, by Josh Cable, ESH Today

http://tinyurl.com/pcdgyuh

Please note the related article at http://tinyurl.com/mwj773o, Amazon Makes Shopping Easy … But at What Cost to Workers? by Laura Walter, ESH Today. -CCE

 

An OSHA investigation into the death of a temporary worker at an Amazon fulfillment center in Avenel, N.J., has prompted the agency to cite five firms for safety violations.

On Dec. 4, 2013, temporary worker Ronald Smith died after he was caught in between a conveyor system and crushed while performing sorting operations at the Amazon facility.

Based on its investigation into the fatality, OSHA has cited five companies for serious violations, including the contractor responsible for operating the facility, and four temporary staffing agencies. . . .

Changes and Trends in Paralegal Education.

21 Saturday Jun 2014

Posted by in Education, Legal Technology, Legal Writing, Paralegals/Legal Assistants

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Take Your Seats, by Sally A. Kane, J.D., Paralegal Today

 http://paralegaltoday.com/issue_archive/features/feature1_jf09.htm

A changing economic climate, emerging technologies and a global legal market have transformed the legal industry. In response to evolving market demands, paralegal educators and law firm managers are adapting school programs, continuing legal education courses and training policies to better prepare today’s paralegals for success in the workforce and in their careers.

‘Paralegal roles are expanding,’ said Charles Volkert, Esq., executive director of Robert Half Legal, a national legal staffing service based in  Menlo Park, Calif. ‘Law firms look for multiple skill sets and a wide variety of experience as they expand globally.’

What skills sets are hot in today’s paralegal market? Paralegal educators, managers and recruiters across the country agree that a combination of strong technology, writing and communication skills, and hands-on experience will help paralegals excel in the workplace. Other hot trends in paralegal education and CLE include distance learning and a greater demand for certain paralegal specialties. . . .

Time To Take A Cue From Passenger-Friendly Court Rulings in UK?

21 Saturday Jun 2014

Posted by in Aviation Law, Consumer Law

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UK Court Allows Passengers 6 Years to File 261/2004 Claims, by Aviation LawProf

http://tinyurl.com/mwdo5rn

On the heels of its recent passenger-friendly ruling in Huzar, a UK court again came down on the side of passengers, this time ruling that passengers have up to six years to bring claims for compensation for delayed or cancelled flights. EU Regulation 261/2004, which, among other things, entitles passengers to compensation from airlines for flight cancellations or significant delays, does not set a statute of limitations on those claims leaving those limits to be set by the implementing Member States. In the UK, cases for unpaid debts are subject to a six-year statute of limitations which the UK courts had been applying to 261/2004 compensation and delay claims. . . .

Sixty-One Legal Apps for iPhone and iPad.

21 Saturday Jun 2014

Posted by in Apple, Apps, Cell Phones, iPad, iPhones, Legal Technology, Mac

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Every Legal App for iPhone and iPad, by Lawyerist Blog

http://tinyurl.com/o2fsuxf

Sixty-one legal apps for iPhone and iPad! Maybe not every legal app out there, but definitely worth a look. Some are free; some are not. Please also check out the comments at the end of the Lawyerist post – more apps are mentioned there. -CCE

iOS apps for lawyers abound, whether for case management, billing, or trial preparation. This page has every legal app for iOS that we could find in the App Store.

There are just a few exceptions. This does not include apps that have not been updated since 2011 and have few or no reviews in the App Store. Apps that are simply mobile versions of a legal publication aren’t here, either, since the app doesn’t do anything over and above the website. Finally, the App Store is full of applications that simply repackage freely available content, such as the Federal Rules of Civil Procedure. Unless an app added some significant extras (such as the ability to annotate or cross reference) to that type of content, it’s not here.

The table below is searchable, and you can sort by each column. Use the comments to let us know if we missed an app, and look for an Android app catalog in the near future. . . .

 

What Makes Attorney Fee’s “Unconscionable”?

19 Thursday Jun 2014

Posted by in Advertising, Law Office Management, Management, Marketing

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Unconscionable, by Craig Ball, Ball In Your Court Blog

http://ballinyourcourt.wordpress.com/2014/06/19/unconscionable/

 Before I limited my law practice to work for courts and counsel, I was a trial lawyer working for contingent fees.  For 20+ years, I never charged for an hour of my time.  I funded the cases, did the work and was paid only if I recovered damages for my clients.  I charged 40% plus expenses; so, for the most part my clients and I shared roughly equally in the outcome.  At the time, I thought my fees proper, and they were certainly ‘industry standard.’  Everyone charged about the same, not from collusion but from plagiarism: lawyers didn’t draft fee agreements; we copied them.

But as I look back, I see that I could have charged less—even much less—and still have made a good living.  The only limits on what I could charge were the marketplace, where I saw no competition on price, and ethical precepts dictating a lawyer may not charge an illegal or unconscionable fee. . . .

What the Common Law Means and Why You Should Know.

19 Thursday Jun 2014

Posted by in Legal Writing

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The Common Law and Civil Law Traditions, from The Robbins Collection, School of Law (Boalt Hall), University of California at Berkley

https://www.law.berkeley.edu/library/robbins/CommonLawCivilLawTraditions.html

Speaking only for myself as a paralegal, I didn’t get a course on the common law and it’s origins in paralegal school. I was fortunate enough to audit the Legal History course at a nearby law school taught my then boss, the Hon. Marian P. Opala, while he was a Justice at the Oklahoma Supreme Court. I remember being grateful that I did not have to complete the tough major exercise for the course! If you have an interest in researching, writing, and reading the law, you will enjoy it more with an understanding of common law, where it came from, how it evolved, and what it means today. Happy reading! -CCE

Most nations today follow one of two major legal traditions: common law or civil law. The common law tradition emerged in England during the Middle Ages and was applied within British colonies across continents. The civil law tradition developed in continental Europe at the same time and was applied in the colonies of European imperial powers such as Spain and Portugal. Civil law was also adopted in the nineteenth and twentieth centuries by countries formerly possessing distinctive legal traditions, such as Russia and Japan, that sought to reform their legal systems in order to gain economic and political power comparable to that of Western European nation-states.

To an American familiar with the terminology and process of our legal system, which is based on English common law, civil law systems can be unfamiliar and confusing. Even though England had many profound cultural ties to the rest of Europe in the Middle Ages, its legal tradition developed differently from that of the continent for a number of historical reasons, and one of the most fundamental ways in which they diverged was in the establishment of judicial decisions as the basis of common law and legislative decisions as the basis of civil law. Before looking at the history, let’s examine briefly what this means. . . .