Federal v. State Law:
The United States legislative system operates under the doctrine of Federalism. Federalism dictates that the law making duties of the nation will be shared and divided amongst the federal and state legislatures. This creates a central uniformity but an interstate diversity of laws and statutes. While the state governments have the power to make law to govern the citizens, visitors and residents of their state, they may not impose regulations that conflict with the United States Constitution or the Federal laws thereby created to maintain it's power.
Paralegals work in fields of Federal law when their client's bring them work involving constitutional issues, federal statutes or federal regulations. When a client's request involves these issues, it is said to involve or raise a federal question. These actions normally concern the reach or scope of the federal governments involvement in a client's affairs, as paralegals will normally not be involved in larger proactive revisions to federal law or the constitution.
While the Federal Government is bound to only make laws that execute the enumerated powers in Article I, Section 8 of the United States Constitution, the statutes made by the State governments have a much broader realm of application. So long as state laws and statutes do not violate the guidelines of the Federal Constitutions, they generally are free to govern the well-being of the citizens at the state's discretion. Policies regulated at the state level include divorce, adoption, gambling, marriage, age of consent and many other crucial issues.
Criminal v. Civil
Any paralegal going to work for an active litigator in the United States will likely perform their job under one of two branches of the law: criminal or civil. Both branches of the law represent two entirely different forms of legal practice, and though they have many similarities, they serve entirely different purposes in the American legal system. Criminal law particularly refers to the field of law that covers crimes that have violated the laws of the state, and therefore must be prosecuted by the state.
Criminal prosecutions generally seek legal sanctions against accused offenders that are then carried out by the state. Civil law particularly refers to disputes between two parties, where one party is accused of injury the other in a tangible or intangible way (such as through physical harm or financial exploitation), and the injured party seeks some form of financial restitution as a result.
There are many similarities and differences between civil and criminal law that anyone involved with the law, such as a paralegal, should be very well aware of. Both civil and criminal law are based around the decisions rendered by a decisive legal entity, such as a judge or jury of the defendant's peers. Both categories also require optimal ethical behavior towards the court and in the execution of a client's interests.
This includes due respect of the obligations of full disclosure and of the attorney client privilege. The differences perhaps outweigh the similarities though, as civil and criminal law each seek substantially different form of punishment, and require substantially different "standards of proof". Civil law generally seeks financial restitution on the behalf of an injured party, while criminal law seeks criminal sanctions on behalf of the state.
Type of Harm
Criminal law and civil law are both invoked by injured parties when a particular harm has been done to another by another party in question. In general, these branches of law deal with the type of harm done and the recourse's available to the injured. For harm done to individuals, the individuals themselves raise civil actions under civil law. These civil actions generally aim to seek financial restitution in the form of legal remedy, for injuries inflicted upon them (financial, physical, or otherwise).
For harm done to society, charges are pressed by the authorities under criminal law. Punishments for violations of criminal law are implemented by society in the form of incarceration or other penalties of the state. What determines whether or not a particular injurious action is a harm to society is governed by both federal and state criminal law. It is commonplace for injurious action to result in both criminal and civil charges.
Names of Parties/Prosecutor of the Claim
The parties in a legal action take a variety of designation within the legal system that stipulate their role in the proceedings. In civil proceedings, the party initiates the original action seeking a legal remedy is called the plaintiff, sometimes referred to interchangeably as the as the claimant or complainant. The party required under law to to respond to the plaintiff's claim before the court is called the defendant.
The defendant, or someone acting on the defendant's behalf, is required to present a defense to the plaintiff's charges before the court. An individual brought before court charged with a crime in a criminal proceedings, sometimes called an arrestee, would also be referred to as a defendant. Individuals who levy criminal charges on the behalf of the state in penal proceedings is called the prosecutor, who is typically appointed by the court or, in the case of District Attorneys, elected by popular vote.
Standard of Proof
The Standard of Proof in the court system is generally the level of proof necessary to satisfy the burden of proof for the case. The Standard of Proof varies from case to case, and is the condition of duty to satisfy the court that the plaintiff or prosecutor's allegation is true.
If the standard of proof has not been met, it is generally the duty of the deciding party of the court, whether it is a judge or jury to decide against the plaintiff or prosecutor's charge. Though the Standard of Proof varies from charge to charge, there are main differences between all Civil and Criminal Standards of Proof. In criminal court, the standard of proof is guilt "beyond a reasonable doubt" while in civil and tort, the standard of proof is "preponderance of evidence".
The judgment is the end result of a legal action in either civil or criminal law. The nature of a judgment is entirely reliant on the nature of the case as well as the proceeding. In criminal proceeding, it is the the job of the deciding body, whether it is a judge or jury, to make a determination of guilt about an accused party, which must be made based upon a reasonable doubt. In civil litigation, the deciding body makes a determination based on preponderance of evidence, and based on that preponderance must determine which side of the case they favor. If they find in favor the plaintiff, than they will require the defendant to make remedy and restitution to the plaintiff. If they find in favor of the defendant, then the defendant is exempted from legal liability in the situation.
Sanctions and remedies represent the two major forms of penalties outlined by the judicial system. Sanctions predominantly are the domain of criminal law, representing the punishments that can levied by the state on a guilty party. Sanctions typically take the form of fines remitted to the state, restrictions of individual rights, probation, incarceration, and in cases of the most severe crimes, some jurisdictions can implement a sentence of death. Remedies are penalties that can usually be extracted from an injuring party in civil cases. Remedies usually take three forms: damages, equitable remedy, and declaratory relief.
Damages represent remittances made to an injured party in restitution for an injuries. They can be compensatory, meaning that they repay for expenditures caused by the injury, or they can be punitive, meaning that they are implemented to punish the offending party. Equitable remedies happen in the case of contract disputes, where services that are designated by contract of legal agreement are required to be completed per that agreement. Declaratory relief effects the legal status of an individual, and usually pertains to civil proceedings that involve divorce, child custody, adoption, or estate management.
Sources of Law:
Both criminal and civil law have their basis in the original genesis of law, and even of society, but they way in which they evolved into their present forms were entirely different. Each branch of the law developed from their different cultures and through different elements of society. Civil law has its basis back in Roman law, where legal action was codified as enacted between arguing parties. As the influence of Roman Law spread, the means of legislating laws that handled disputes between parties spread, and through codification through the ages became what we currently know as civil law.
Criminal law has a basis in the very earliest civilizations, even within the earliest civil codes. However, criminal code really did not become autonomous doctrine until in the aftermath of middle ages and before the formation of nation-states, when the Church still had influence on local law and government. The government would prosecute individuals on behalf of the Church for violations against God and society. As nations developed an the Church lost influence, the central concept of the system prosecuting criminals on behalf of society had taken hold, giving us our modern criminal justice system.
Criminal law represents one of the most important aspects not only of our legal system, but of all civilized society. Criminal law oversees the implementation of the laws that govern conduct in public society, and it is their ability to be enforced accurately and effectively that help lead to a peaceful society. In the legal system, especially for paralegals, it is naturally an area of law that requires strict attention to facts, evidence, and procedure, as lives are sometimes literally at stake during a criminal case, especially the future of the defendant, as well as the importance of justice that any fair society claims as its own. Of foremost importance is understanding the Types of Crimes
In general, crimes are acts that incur punishment according to criminal statutes that are set forth by a governing body. They may be divided into varying categories depending upon the penalty attached to each crime. Such subdivisions include that of felonies, misdemeanors, and infractions. Rating each category is such an order reveals a hierarchy from most severe to least severe. Within the venue of felonies, serious crimes such as murder, rape, and armed robbery reside, which are most often accompanied by sentences of incarceration, generally of more than a year.
In terms of misdemeanors, however, we find the gray area in which such offenses are not as serious as felonies, yet also not as minor as infractions. Typically they involve sentences of less than a year. Infractions are minor offenses that usually only lead to fines or public service as penalties for their commission. An additional kind of crime that actually falls within the category of felonies is that of white collar crime.
Such a crime, though seemingly less grisly when compared to murder, does support quite a basis for its inclusion within such the highest category. White collar crime operates in such a way that it strips individuals of well earned livelihoods, which is akin to that of high scale robbery. Acknowledgment of such differences in criminal acts as well as legal processes attached to them is an important step in the adequate practice of law as a paralegal.
Establishing a Prima Facie Case
When establishing a prima facie case, which translates literally as "at first view," evidence must be provided in order to prove the adequate existence of facts related to a criminal case. It serves the purpose of providing an adequate basis for which a case may be established, along with setting the groundwork for all subsequent legal proceedings. The strength of such a case composed of witness accounts as well as other significant information will add to a judge and/or grand jury's shared belief in the need for such a case to come to trial, which would then demand the time and attention of the judicial system. In criminal law, the prosecution possesses the "burden" of setting forth "prima facie evidence."
Civil law represents legal actions that occur between two parties, and they can be contested for many reasons, with a multitude of desired results. Before any civil action can be undertaken, the plaintiff involved must be able to Establishing a Prima Face Case
Within civil litigation, the "burden of proof" is entirely the responsibility of the plaintiff. In the pursuit, then, of establishing a prima facie case, the plaintiff must establish to the court a basis for which to legitimatize desired civil proceedings. In doing so, they will hopefully eliminate any possibility of the case being dismissed.
All forms of legal evidence, such as factual evidence, witness testimony, as well as proof of injury, must be presented to the court to ensure that adequate civil process will be put into action. Following the establishment of a prima facie case, then the legal proceedings may proceed onward to an appropriate conclusion, where damages are hopefully acquired in the form of fiduciary compensation.
Providing and acquiring an adequate or better defense is significant to the discontinuance of appropriate legal proceedings. This is especially true of a defendant who believes that he or she should not be held liable for claims set forth by the plaintiff. Examples of such particular defenses include that of affirmative defenses. These can be defined as defenses that are based on the presentation of new facts that had nothing to do with the case at the onset.
These facts will not invalidate the actual claims against the defendant, however. They operate with the express purpose of providing the possibility of lessening the severity of such claims by the addition of information that may shed a renewed light upon the circumstances that the case has now created.
Damages represents the form of remedy that most plaintiffs usually seek as a consequence of civil proceedings. In most cases, the plaintiff may have been injured or caused some type of harm (which may be physical, financial, etc.), for which they then believe they must be compensated for as a means of remedy. The plaintiff then initiates civil proceedings against the defendant in hopes of seeking such remedies for their injured state, which are referred to as damages.
Such damages can be divided into distinct categories that include: compensatory damages, future damages, incidental damages, and that of the punitive kind. Though each is representative of their individual circumstances, compensatory damages may be broken down further to categories of general and special.
Damages may not be the conclusion of the exchange or distribution of monetary considerations, however. One other specific cost is that of the plaintiff's attorney's fees, which the defendant may also be obligated to compensate for in certain instances (more commonly outside of the United States).
Disputes concerning contracts represent an area of civil law that often leads to legal proceedings. This is due to the fact that the drawing up of a contract is a legal process in and of itself, and thus violations of contracts entail a de facto violation of the law. The usual consequence that leads to eventual civil litigation occurs when one party breaks such an aforementioned contract. In cases where judges do rule in favor of the plaintiff, the remedies that may be called for may not necessarily take the form of damages or punitive actions toward the defendant.
The main agenda of a court in such a case, is to ensure that such a contract is fulfilled in any way possible, which is called an equitable remedy. If, for any reason, the defendant is unable to abide by the terms of the contract, then the court may then seek remedies from the defendant in lieu of being unable to render an adequate completion of the contract.