CIVIL AND CRIMINAL CASES

Legal cases are divided into civil and criminal. In a civil case one party (the plaintiff) brings suit against another party (the defendant), claiming that he or she has suffered some wrong at the hands of the defendant and deserves some remedy (for instance, due to a dispute over a property boundary or over fault in a multicar accident). The judge or jury decides for or against the plaintiff based on the evidence and the relevant law. All crimes are wrongs, but not all wrongs are crimes. For instance, an automobile accident that involves negligence on the part of one of the drivers and results in harm to another is surely a wrong, but the driver responsible for the accident, even if found guilty, does not face a prison sentence (that could happen only if the accident were in fact the result of driving with gross recklessness or driving while intoxicated or were no “accident” at all). Why? Because the harm inflicted was not criminal; that is, it was not intentional, deliberate, malicious, or premeditated.

Criminal cases involve someone (the defendant) charged either with a felony (a serious crime like assault or battery) or with a misdemeanor (a less serious crime). In criminal cases the state, through its prosecutor, seeks to convict the defendant as charged; the defendant, through his or her attorney, seeks an acquittal or, at worst, a conviction on a lesser charge (manslaughter instead of murder) and a milder punishment. The decision to convict or acquit on the basis of the facts submitted in evidence and the relevant law is the duty of the jury (or the judge, if there is no jury). The prosecutor and defense lawyer present what they believe are the relevant facts. Defining the relevant law is the responsibility of the trial judge. Public interest in criminal cases is often high, especially when the crime is particularly heinous. (Think of the 1995 trial of O. J. Simpson, charged with the murder of his wife and one of her friends, and the 1997 trial of Timothy McVeigh for the Oklahoma City federal building bombing.)

As you begin reading a legal case, therefore, you will want to be sure you can answer this question:

TRIAL AND APPEAL

Most cases (civil or criminal) never go to trial at all. Most civil cases are settled out of court, and most criminal cases are settled with a plea bargain in which the prosecutor and the defense attorney persuade the judge to accept the defendant’s guilty plea in exchange for a less severe sentence. Of the cases that are settled by trial, the losing party usually does not try to reopen, or appeal, the case. If, however, the losing party believes that he or she should have won, the case may be appealed for review by a higher appellate court (provided, of course, the loser can finance the appeal). The party bringing the appeal (the appellant) typically argues that because the relevant law was misstated or misapplied during the trial, the decision must be reversed and a new trial ordered. On rare occasion the issue in dispute is appealed all the way to the highest court in the nation—the U.S. Supreme Court—for a final decision. (The cases we reprint for discussion in this chapter are all cases decided by the Supreme Court.)

A pair of useful questions to answer as you work your way through a reported case are these:

DECISION AND OPINION

With rare exceptions, only cases decided by the appellate courts are reported—that is, published. A reported case consists of two very different elements: (1) the court’s decision, or holding, and (2) the court’s opinion in support of its decision. Typically, a court’s decision can be stated in a sentence; it amounts to the conclusion of the court’s argument. The opinion, however, is more complex and lengthy; as with most arguments, the premises of judicial reasoning and their linkages with each other involve several steps.

To illustrate, in Texas v. Johnson, the U.S. Supreme Court considered a Texas statute that made it a crime to burn the American flag in political protest. The Court decided that the statute was an unconstitutional interference with freedom of speech. (The decision, as you see, can be stated concisely.)

The Court’s opinion, however, runs to several pages. The gist is this: The purpose of the First Amendment prohibiting abridgment of speech by the government is to protect personal expression, especially where there is a political intention or significance to the speech. Previous decisions of the Court interpreting the amendment have established that the protection of “speech” applies also to nonverbal acts; flag burning in political protest is such an act. Under certain conditions the state may regulate “speech,” but in no case may the state prohibit “speech” because of its content or meaning. The Texas statute did not merely regulate the circumstances of “speech”; rather, it regulated the content or meaning of the “speech.” Therefore, the statute is unconstitutional.

Thus, in reading the report of a decided case, you will want to be able to answer these two questions:

MAJORITY, CONCURRING, AND DISSENTING OPINIONS

Not all appellate court decisions are unanimous ones. A court’s majority opinion contains the ruling and reasoning of a majority of its judges. In Texas v. Johnson, for example, Justice William Brennan wrote the majority opinion in which four of his colleagues joined. Occasionally one or more of the judges in the majority files a concurring opinion; in such cases the judge agrees with the majority’s decision but disagrees with its reasoning. Justice John Paul Stevens wrote a concurring opinion in Johnson.

In any appellate court decision, at least one judge is likely to dissent from the majority opinion and file a dissenting opinion explaining why. (Throughout this book we make the point that intelligent, honorable people may differ on issues of importance.) In the Johnson case, four judges dissented but joined in one dissenting opinion. Minority opinions have much to offer for reflection, and in many instances today’s dissenting opinion becomes tomorrow’s law. The most famous example is Justice John Marshall Harlan’s solitary dissent in Plessy v. Ferguson (1896), the case that upheld “separate but equal” racial segregation; Harlan’s dissent was eventually vindicated by a unanimous vote of the Supreme Court in Brown v. Board of Education (1954).

Thus, where there are majority, concurring, and minority opinions, you will want to think about these questions:

FACTS AND LAW

Every court’s decision is based on the relevant facts and the relevant law. What the relevant facts are is often in dispute at the trial but not on appeal; appellate court judges rarely reexamine the facts as decided by the trial court. The appellate court, however, usually restates the relevant facts in the opening paragraphs of its opinion. An old joke told among lawyers is appropriate here: “Argue the facts if the facts are on your side, argue the law if the law is on your side; if neither the law nor the facts are on your side, pound the table!”

Unfortunately, a sharp distinction between facts and law cannot always be maintained. For example, if we describe the defendant’s conduct as “careless,” is that a matter of fact? Or is it in part a matter of law because “careless” conduct may also be judged “negligent” conduct, and the law defines what counts as negligence?

As you read through the reported case, keep in mind these two questions:

For instance, consider a case in which a cattle rancher finds one of her cows dead after it collided with a railroad train. She decides to sue for negligence and wins, and the defendant (the railroad company) appeals. Why did she sue the railroad in the first place, rather than the engineer of the train that killed her cow? Suppose the appellate court’s opinion fails to mention whether there was a fence at the edge of the field to keep her cattle off the tracks; wouldn’t that be relevant to deciding whether she was partly at fault for the accident? (Ought the railroad to have erected a fence on its property parallel to the track?) Information about such facts could well shed light on the strength and correctness of the court’s opinion and decision.

Appellate court judges are almost entirely preoccupied with what they believe is the relevant law to deciding the case at hand. The law can come in any of several different forms: common law principles (“No one may enlist the courts to assist him in profiting from his own wrong”), statutes enacted by a legislature (“As of January 1, 2004, income taxes shall be levied according to the following formula…”), ordinances enacted by a town council (“Dogs must be leashed in public places”), a precedent found in a prior case decided by some appellate court (“The decision in the case before us is governed by the Supreme Court’s earlier holding in…”), executive orders (“All persons of Japanese extraction currently resident in California shall be removed inland to a relocation center”), administrative regulations (“Milk shipped interstate must have a butterfat content not less than…”), as well as constitutional interpretations (“Statements critical of a public official but not malicious or uttered by one who knows they are false are not libelous and are permitted under the First Amendment”). Not all laws are of equal weight; a state statute inconsistent with the federal Bill of Rights will be nullified, not the other way around.

Appellate court judges devote much of their attention to interpretation, trying to decide exactly what the relevant statute, regulation, or prior decision really means and whether it applies to the case before the court. For example, does a local ordinance prohibiting “four-wheeled vehicles” in the park apply to a nanny pushing a baby carriage? The answer often turns on what was the purpose of the law or the intention of the lawmaker.

It is not easy to decide what the lawmakers’ intention was; lawmakers are rarely available to state for the courts what their intention was. Can we confidently infer what a legislature’s intention was from the legislative history left behind in the form of debates or hearings? From what the relevant committee chairperson says it was? What if (as is typically true) the legislature never declared its intentions when it enacted a law? When a legislature creates a statute, do all those who vote for it act with the same intention? If not, which of the many intentions involved should dominate? How do we find out what those intentions were? What counts as relevant evidence for ascribing this rather than that as someone’s intention?

Accordingly, as you read a reported legal case, your study of the court’s opinion should lead you to ask these questions:

BALANCING INTERESTS

In U.S. Supreme Court cases, the decision often turns on how competing interests are to be balanced or weighed. This pattern of reasoning is especially relevant when one of the conflicting interests is apparently protected by the Constitution. The majority opinion in New Jersey v. T.L.O. (1985) (p. 000) is a good example of such balancing; there, the privacy interests of high school students are weighed (metaphorically speaking, of course—no one can literally “weigh” or “balance” anyone’s interests) against the competing interest of school officials responsible for maintaining an orderly environment for teaching. The Court decided that the latter ought to prevail and concluded that “reasonable” searches are not forbidden under the Fourth Amendment’s prohibition of “unreasonable searches and seizures.”

This leads directly to several other questions you will want to try to answer in the legal cases you study:

A WORD OF CAUTION

Lawyers are both officers of the court and champions for their clients’ causes. In the first role they share with judges and other officials the duty to seek justice by honorable means. But in the second role lawyers often see their job as one in which they ought to bend every rule as far as they can in pursuit of their clients’ interests (after all, it is the client who pays the bills). This attitude is nicely conveyed in the title of a book, How to Argue and Win Every Time (1995), by Gerry Spence, one of the nation’s leading trial lawyers. And it is reinforced by a comment from defense attorney Alan Dershowitz: “All sides in a trial want to hide at least some of the truth.”

Yet it would be wrong to see lawyers as motivated only by a ruthless desire to win at any cost. Lawyers have a civic duty to present their clients’ cases in the most favorable light and to challenge whatever evidence and testimony is offered in court against them. (If you were hiring a lawyer to defend you, would you settle for anything less?) In a society such as ours—a society of law rather than of powerful individuals—it is right that accused persons be found guilty as charged only after the strongest defenses have been mounted.

To be sure, everyone concerned to argue on behalf of any claim, whether in or out of court, whether as a lawyer or in some other capacity, ought to take the challenge seriously. But it is too much to hope to “win every time”—and in fact winning is not the only, much less the highest, goal. Sometimes the other side does have the better argument, and in such cases we should be willing, indeed eager, to see the merits and to enlarge our minds.

In any case, in this book we think of argument not as a weapon for use in mortal combat but as a device for exploring the controversy or dispute under discussion, a tool for isolating the issues in contention and for helping in the evaluation of different possible outcomes. We expect you will use argument to persuade your audience to accept your views, just as a lawyer typically does; but we hope you will use argument sometimes—even often—to clarify your ideas for yourself; when you develop arguments for effective presentation to your colleagues and associates, you will probably improve the quality of your ideas.

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