Category Archives: Of Interest to Law Students

ALR Student’s Corner: North Carolina Criminal Trial Practice Forms

A form book can be helpful in many ways to a practicing attorney.  It provides checklists for litigation and fill-able practice forms within various areas of law that become a good starting point for lawyers, particularly were they to need to draw up a form in an area of law that is outside their practice area.  It is important to remember when using this resource that forms are unique in every case and should be modified to reflect the individual defendant.

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North Carolina Criminal Trial Practice Forms, 5th edition, by Ronald M. Price, is a single volume resource filled with a bounty of criminal trial forms.  It has a table of relevant cases, general index, and a master table of contents, not to mention individual ones at the beginning of each chapter.  According to the table of contents, this form book addresses the following legal issues: stop and frisk, search and seizure, confessions and self-incrimination, double jeopardy and collateral estoppel, bonds, probable cause hearings, venue, arraignment, discovery, and motion to dismiss.  Each of these issues is broken down further in the table of contents by subject matter.  Under “Chapter 18: Capacity,” for example, there are forms dealing with capacity that a practitioner would need to file on behalf of a client, such as notice of defense of insanity, motion for mental evaluation, application of transfer of prisoner to a hospital, and motion questioning defendant’s capacity.

The table of cases is one of the most important features of North Carolina Criminal Trial Practice Forms.  The reader uses the table of cases to quickly look up and consider or cite the law used in any given form.  The index, organized by a more extensive topical listing than the table of contents, includes a range of legal topics and subtopics such as age, Batson, blood, children and minors, burglary, capital cases, interpreter, voir dire, and weapons.  These topical headings make it easier to locate the form relevant to your client’s situation. Additionally, the pocket part, at the back of the resource, includes the most current itineration of each form were its language and corresponding annotation to case law updated since the most recent publication.  This is important because failing to submit to the court the proper form, one that is reflective of the most current and binding legal authority, is a violation of the Rules of Professional Conduct.

To locate North Carolina Criminal Trial Practice Forms, look up the electronic version of the resource in the universal search box on WestlawNext, or conduct a search for the print resource in the Charlotte School of Law Library catalog.  Getting here requires the following steps: 1) access the Charlotte School of Law homepage, 2) follow the link on the left-hand side, to “Our Law Library,” 3) click on the “Library Catalog” link on the right-hand side, and 4) search within the catalog for the call number using the following search string: “North Carolina Criminal Trial Practice Series.”  The print version of North Carolina Criminal Trial Practice Forms is located in the “Reference: Carolinas” section of the library, but unfortunately does not circulate outside of the library.  It’s always nice to have remote access to the electronic version of a specific resource so that you don’t have to commute to the library, but upon my graduation this summer, the luxury of remote access will be no more and, alas, I will have to come on campus for the print resource and its electronic counterpart on WestlawNext, just like the other attorney members of the CSL library.

To demonstrate how easy and helpful this book of forms is, let’s conduct a hypothetical search.  Let’s say that you are a new attorney and you wish to file a motion to suppress a coerced taped confession from your client.  First, you would start in the table of contents and locate “Chapter 5: Confessions and Self-Incrimination.”  It sounds like the perfect place to start, so you proceed to browse through the subtopics within the chapter.  Under “motion to suppress,” you locate two different forms for motion to suppress defendant’s statements and another helpful form for motion for exclusion of involuntary admissions and confessions, but nothing relevant to the element of coercion.  So, you go to the index and look up “confessions, generally.”  There, you find exactly what you are looking for, just in a different chapter, a form called “Suppression Motion for Taped Confession” which has the element of coercion.  After this, don’t forget to check for updates in the pocket part to complete your research effectively!  Also, remember, these forms are not a “one size fits all” kind of thing.  They should be modified and tailored to fit your client specifically; no two defendants are the same.

North Carolina Criminal Trial Practice Forms is an indispensable resource for any lawyer and even more so for newly admitted attorneys just learning which form to submit to which court on behalf of their respective clients.

~ Ashley Lawrence, L’14 ~

 Class Advisor – Cory M. Lenz, Esq.

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Net Neutrality or a Two-Tiered Internet?

What is net neutrality and what are the issues?

Law professor Tim Wu coined the phrase “net neutrality” in a 2003 law review article.   While net neutrality has a number of complex implications, the main idea here is that the Internet is an impartial conduit for information and that all traffic on the Internet would be equal.  That concept seems pretty straightforward. However, net neutrality is a complex, important concept to understand.

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Tim Wu (Open Rights Group)

Since the world moved from dial-up to broadband, the Federal Communications Commission (FCC) has worked to keep the Internet open and neutral. However, on January 4th, the DC Circuit Court of Appeals struck down the FCC’s “Open Internet” rules in Verizon v. FCC. Basically, the court stated that the FCC does not have the authority to impose its net neutrality rules on Internet service providers (ISPs).

“Even though the Commission has general authority to regulate in this arena, it may not impose requirements that contravene express statutory mandates. Given that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the Commission from nonetheless regulating them as such.”

As a result of this decision, there is a grey area that allows Comcast or Verizon to charge extra to have content from certain providers like Netflix streamed more quickly or give preference to their business partners.

Founding Principle. The Internet was founded on the principle of net neutrality. As Sir Tim Berners-Lee, who created the World Wide Web, has said, “Being able to connect freely and equally to the Internet is the fundamental social basis of the Internet, and, now the society is based on it” (Scola, 2014). We take for granted that we as a members of our society, we can access the information we want just like everyone else.

Consumerism. The Consumers Union has been vocal in the debate on net neutrality. They believe that the new FCC rules while prohibiting Internet service providers from blocking traffic, would allow ISPs to charge online providers like Amazon, Google, or Netflix a fee for preferred access to customers. Delara Derakhshani, Policy Counsel for Consumers Union, stated that this Internet fast lane “could create a tiered Internet where consumers either pay more for content and speed, or get left behind with fewer choices” (“Internet,” 2014). Conceivably, content providers could give preferential treatment to online sites that pay them the most.

Innovation. American Libraries Association (ALA) President Barbara Stripling argues that having to pay for faster, efficient access would dissuade entrepreneurs from experimenting. Websites of small businesses and nonprofits would be out of the mainstream and all those start-ups would never make it out of their garages. Stripling has stated, “Many of the innovative services we use today were create by entrepreneurs who had a fair chance to compete for web traffic. By enabling the Internet service providers to limit access, we are essentially saying that only the privileged can continue to innovate” (Miller, 2014). While limiting access would not be the end of the Internet, we could lose the creativity that has resulted in current advances.

Intellectual Freedom. The ALA’s policy statement on the issue of net neutrality is based on the value of intellectual freedom. Intellectual freedom is one of the ethical principles of the profession and is included in the Code of Ethics of the American Library Association. Intellectual freedom is the “right of all peoples to seek and receive information from all points of view without restriction.”  The Internet allows everyone to inform themselves and others. Without net neutrality, information could be more restricted.

Digital Divide. In April, the Institute of Museum and Library Services (IMLS) held a hearing to focus on the role of libraries in providing Internet Services. The IMLS is charged with advising the president and Congress in such matters. The hearings highlighted the fact that the digital divide continues to grow in this country. A Pew Research Center’s Internet & American Life Project report in 2013 states that while 70% of Americans have broadband access; 88% of households with incomes over $75,000 have broadband. Only 54% of households with an annual income of less than $30,000 have broadband. Furthermore, the Pew study found 63 million Americans do not have either a broadband connection or a smartphone.

Access.  Public libraries, not only worried about having to negotiate with ISPs over potentially high rates for patrons to have access to the library’s resources, are also concerned about the broader issue of protecting the equitable use of the Internet for the “common good.” 77 million people use the public library for Internet access each year (“ALA Responds,” 2014). According IMLS President Susan Hildreth, 60% of American libraries offer the only free computer Internet access in their communities and only 9% of those have high capacity connections (Herther, 2014). Furthermore, Internet service providers will not have any business incentive to run fiber optic cable to small towns; and without fiber optic cable, there is no broadband access. Without a policy of net neutrality, these numbers will only go down.

Some organizations such as the American Civil Liberties Union (ACLU) have gone so far as to warn that ISPs could conceivably slow down the websites of political parties and other organizations with which the ISPs’ executives disagree.

A Solution. Kathleen Ann Ruane in a report for the Congressional Research Service suggests a solution for the FCC that would enable the Commission to continue its advocacy of net neutrality. According to the Verizon ruling, the FCC does have the authority to issue rules; however, because Internet service providers are classified as information services rather than telecommunication services, the net neutrality rules concerning anti-blocking and anti-discrimination were thrown out. A reclassification of broadband Internet service providers would seem to be a logical solution for the FCC and others advocating for net neutrality.

Net neutrality is complex and important issue.  After reading about the issues, there are still other underlying questions such as: how do you allocate scarce resources (bandwidth) in a free market economy? Traditionally that would be regulated by price. So then the question becomes who pays and how much? This blog only touches the surface.

Still confused?

John Oliver describes net neutrality as the most boring important issue. His humorous You Tube video (13:17) is worth watching. He gives a not-so-boring explanation.

What Can We Do?

Activists protest against proposed new net neutrality rules outside Federal Communications Commission in May. (Alex Wong/Getty Images)

Activists protest against proposed new net neutrality rules outside Federal Communications Commission in May. (Alex Wong/Getty Images)

Or we could….

Email comments to the FCC at openinternet@fcc.gov. The FCC has established a new inbox to accept comments through the summer. Chairman Wheeler plans to have new rules in place before the end of the year.

An Addendum

On Thursday, July 10, 2014, 11 higher education and library groups issued a set of 11 principles regarding net neutrality meant for the FCC to consider in its rule making. The principles can be found at http://net.educause.edu/ir/library/pdf/EPO1305_1.pdf

Want to read more?

  • American Library Association. (2014, March/April). ALA responds to net neutrality decision. American Libraries Magazine, 45(3/4), 10.
  • Chant, I. (2014, February 15). Court strikes down net neutrality. Library Journal, 139(3), 12-14.
  • Delta, G.B. & Matsuura, J. H. (2014).  Regulation of Access, Interoperability, and Services.
  • In Law of the internet.  St. Paul, MN:  Thomson/West.
  • Heller, M. (2014, June 23). What should academic librarians know about net neutrality? [Web log comment]. Retrieved from http://acrl.ala.org/techconnect/?p=4396
  • Herther, N. K. (2014, June).  FCC and IMLS update focus. Information Today, 31(5), 1-35.
  • Internet rules could put you in the slow lane. (2014, July). Consumer Reports, 79(7), 10.
  • Miller, R.T. (2014). A commons at risk. Library Journal, 139(3), 8.
  • Scola, N. (2014, June 12). Five myths about net neutrality. The Washington Post. Retrieved from http://www.washingtonpost.com/opinions/five-myths-about-net-neutrality/2014/06/12/ff58ad7c-ec06-11e3-93d2-edd4be1f5d9e_story.html

~Betty Thomas~

 

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ALR Student’s Corner: Criminal Procedure in North Carolina

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For 20 seasons, on the television show Law & Order, we watched the police investigate the crime and arrest the criminal, and then, with bated breath, hung on Jack McCoy’s every question and objection as he prosecuted the crime for the win. We’ve seen this scenario play out countless times and believed it to be the criminal process, but is it really? In North Carolina, there is a clear beginning, middle, and end to the criminal justice system, and it revolves around the rules of criminal procedure. But, as new criminal lawyers starting out on our own, how do we know what to do?  After all, the beginning, middle, and end of the criminal justice system can seem a little overwhelming, especially so if we do not have a mentor to guide us through the process.

Luckily, there is hope! Criminal Procedure in North Carolina by Irving Joyner is the very practice guide that can help the new lawyer, and even some seasoned lawyers, navigate the rough waters of our state’s criminal justice system. To find this practice guide, locate the call number (KFN7975 .J69 2005) in the Charlotte School of Law library catalog, or look up the title using the “browse sources” feature in Lexis Advance.

After a defendant has hired you as her defense attorney, how do you know what to do? The great thing about Criminal Procedure in North Carolina is that, similar to the dramatic arc of Law & Order, the practice guide logically and sequentially moves the practitioner from arrest, to pre-trial, to trial, and then to sentencing.  At each stage in the prosecution of a crime, the practice guide explains the relevant processes and procedures, providing annotations to primary authority for greater context, and supplements with a plethora of other useful information for new attorneys, like sample forms.  The pre-trial section, for example, uses precedential case law to explain the importance of discovery and pre-trial motions practice to a client and the pre-trial issues that arise.

Furthermore, the pre-trial section includes sample forms that show the attorney how to draft and file a particular motion. I found the forms particularly helpful because, while I had learned how to file a motion in limine, others like a special venire were foreign to me.  So, how do you file a motion for a special venire? Well, the practice guide explains who can file this type of motion, when it should be filed, and the type of claim the defendant might bring, such as a motion based on array or racial composition. After the full discussions of the motions that a defense attorney can use, the practice guide then provides the forms so that the attorney can properly file the appropriate motion within the court, changing only what they need to change based on the court where the motion is to be filed.

What better way, when lost in the sea of the criminal justice system, than to go to Criminal Procedure in North Carolina to make sure that you are taking proper advantage of any and all pre-trial and trial motions on behalf of your client.  It doesn’t matter if you are a new attorney or have been admitted to the bar for 20 years, this practice guide is a great resource to make sure that you are following the proper criminal procedure guidelines in the North Carolina courts. Criminal Procedure in North Carolina makes better attorneys because it helps them provide their clients the representation that they deserve.

 ~ Adrianne Ribar, L’14 ~

 Class Advisor – Cory M. Lenz, Esq.

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Want to Be a Family Lawyer?

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The practice of family law has drastically changed over the years.  According to Schepard (2004), family law used to be mostly an adversarial process whereas today family law is more collaborative.  Currently, there is a variety of dispute resolution processes including collaborative divorce, divorce education programs, mediation, custody evaluations, and parenting coordination (Hedeen & Salem, 2006). Due to these changes, the family lawyer has new roles outside of being an advocate and legal counselor.  Lawyers currently function as mediators, collaborative lawyers, parenting coordinators, cooperative lawyers, and arbitrators.  Therefore, today’s family lawyer needs a variety of skills when practicing family law.

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So, what are these skills?

The survey was given to over 600 participants who are lawyers, mediators, law professors, and law students with various levels of experience (Hedeen & Salem, 2006).  They were asked to rate a set of skills as it applies to effective family law practice.  The results found five of the most important skills to use when practicing family law.

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Top 5 Skills For Family Lawyers:

  1. Listening
  2. Setting Realistic Expectations for Clients
  3. Including Clients in the Decision-making Process
  4. Identifying Client’s Interest
  5. Problem Solving

 ~Brooke Rideout~

References

Hedeen, T., & Salem, P. (2006). What Should Family Lawyers Know? Results of a Survey Of Practitioners and Students. Family Court Review, 44(4), 601-611. doi:10.1111/j.1744-1617.2006.00113.x

Schepard, A. (2004). Children, courts and custody: Interdisciplinary models for divorcing families. Cambridge,UK: Cambridge University Press.

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ALR Student’s Corner: North Carolina Crimes – A Guidebook on the Elements of Crime

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Introduction

Attorneys use practice guides in different areas of law as a way to quickly identify the rule of law and its respective authorities from which to craft a legal argument. These guides also help practitioners with the procedural elements and motions requirements of a cause of action.

About North Carolina Crimes: A Guidebook on the Elements of Crime

North Carolina Crimes: A Guidebook to the Elements of Crime (7th ed. 2012), written by Jessica Smith of the North Carolina School of Government, is a single volume, soft cover treatise detailing the elements of the criminal laws in North Carolina.  This guidebook only covers the state’s substantive crimes, excluding obscure ones, minor infractions such as traffic offenses, and special offenses related to alcoholic beverage control law and fish and game law.  A student, patron or attorney member can locate the call number (KFN7966.8 .N67) of North Carolina Crimes by plugging the following search terms – north carolina crimes – into the Charlotte School of Law Library catalog.

Key Features of North Carolina Crimes

North Carolina Crimes analyzes each criminal offense within its own chapter and divides each into the following four categories: elements, punishment, notes (explanatory points regarding the offense, including case law) and related offenses. State of mind, defenses, and structured sentencing are additional topics discussed in the introductory chapter of each offense. Because the clear and concise layout of the guidebook makes locating and understanding the criminal elements easy, the supervising attorneys and judges, at my externships, consider it an excellent reference guide during trial or at a court hearing.  For this reason, North Carolina provides the latest version to all state prosecutors, and most state law enforcement officers and judges keep the guidebook handy at all times, as well.  Law enforcement officers refer to North Carolina Crimes when they need to make a quick charging decision about a perpetrator’s alleged criminal behavior; prosecutors use the guidebook when putting their cases together; and judges rely on it when deciding the rule of law or explaining it to a jury.  Essentially, North Carolina Crimes helps to keep all of the parties participating in the prosecution of a crime on the same page.

There are several useful ways to search for your topic in North Carolina Crimes.  To begin, there is a master table of contents at the front of the book, listing every topic and subtopic with its corresponding page numbers, and an individual table of contents at the beginning of each chapter. North Carolina Crimes also has the following useful indexes: 1) a case index that lists the cited cases alphabetically, 2) a table of statutes that organizes the enacted laws in ascending numerical order, and 3) a subject index that helps the reader navigate to a particular subject or crime.

Researching using North Carolina Crimes

North Carolina Crimes is an excellent place to begin legal research on a criminal issue. For example, suppose you need to understand the difference between voluntary and involuntary manslaughter in North Carolina.  Upon consulting the guidebook’s table of contents, you locate the subtopic “manslaughter” within the topic “homicide” and then navigate to the corresponding pages.  In North Carolina, manslaughter is a common law crime which means its rule of law stems from state court decisions and not the legislature.  The “manslaughter” section highlights the elements for voluntary and involuntary manslaughter and provides an extensive list of on-point cases interpreting the scope of each element.  To update the authority, you would then KeyCite with WestlawNext or Shepardize with Lexis Advance.

Conclusion

North Carolina Crimes: A Guidebook to the Elements of Crime uses a simple, easy-to-navigate style to detail and annotate the rule of law of the major North Carolina criminal offenses, making the guidebook an essential tool for law enforcement officers, prosecutors, and judges.

~ Maria Fisichello, L’14 ~

 Class Advisor – Cory M. Lenz, Esq.

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In Alice Corp. v. CLS Bank, the Court Limits Software Patents, but Does Not Eliminate Them

software

The US Supreme Court ruled against Alice Corporation, the owner of the patent in dispute.

A New York Times article published on June 19, 2014 said that the trial court had invalidated Alice’s patents, stating that the patent holder had only recited abstract concepts. The trial court’s decision was effectively affirmed by the United States Court of Appeals for the Federal Circuit when it issued seven separate opinions, none of which commanded a majority, thus not issuing clear guidance and direction for software patent protection.

Adam Liptak of the N.Y. Times stated that the Court of Appeals decision for the Federal Circuit in the Alice Corp. v. CLS Bank International summarized that the use of Alice’s computer software was not unique, but was simple business software – considered “a building block of the modern economy”, but not deserving patent protection.

According to the US Supreme Court, adding the use of a computer added nothing.

Stating an abstract idea while adding the words ‘apply it’ is not enough for patent eligibility,”  and because the petitioner’s system and media claims add noth­ing of substance to the underlying abstract idea, we hold that they,  too are patent ineligible under §101.

Charlotte Law students, staff and faculty can use their library barcode to view these two BNA articles for a more complete summary of this U.S. Supreme Court patent case decision:

~Jane Fraytet~

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Check Out Our New Federal Tax Research Guide

If you are new to the Charlotte School of Law community, you may be interested to know that CSL librarians develop and maintain a collection of electronic legal research guides.  These guides “contain a range of information tools that are designed to assist you with your research and study at Charlotte School of Law. They are a pathway to library resources most relevant to your area of study. LibGuides are created by CSL librarians and contain recommended library resources – books, databases, journals and websites, as well as helpful research tips.”

One of the most recent legal research guides added to the collection is a Federal Tax Research Guide.  This guide “covers both primary and secondary sources of tax law and was created to help facilitate the tax research process.”  It directs users to both print and electronic tax law resources, including the Internal Revenue Code, judicial sources, agency orders and opinions, memoranda and announcements, current awareness resources, the U.S. Master Tax Guide, the Internal Revenue Manual, and more.

To browse other legal research guides or to receive email alerts when guides of interest to you are published, click here.  And, as always, contact the reference desk if you have any questions or need any assistance!

~Shannon Reid~

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ALR Student’s Corner: North Carolina Corporation Law and Practice

northcarolinacorporationlawandpracticeIntroduction

North Carolina Corporation Law and Practice is a practitioner’s resource, which comprises part of the “North Carolina Practice Series” of treatises.  As with other examples of treatises, this title is available both in print and, with the advent of new technology, in e-book form. I chose to review North Carolina Corporation Law and Practice (Fourth Edition) because the formation and dissolution of corporations has always interested me. I have always been fascinated by the variety of forms one may choose from when incorporating a business.

About North Carolina Corporation Law and Practice

North Carolina Corporation Law and Practice is authored by James E. Snyder, Jr.  A native of North Carolina, Snyder was born and raised in Davidson County. He received his J.D. from Wake Forest University School of Law in 1970.  In addition to authoring seventeen books, Snyder practices law in North Carolina. Last updated in August 2012, the title may be located in the Reference Carolinas section of the CSL Library, using the following call number KFN7613.A65.  The e-book version of the treatise may be located on WestlawNext.  From the WestlawNext homepage select “Secondary Sources” as your content type then choose “North Carolina” as the jurisdiction.  Next, pick “North Carolina Text and Treatises” and click into the following link “North Carolina Corporation Law & Practice.

North Carolina Corporation Law and Practice is arranged into nineteen parts, each sub-divided into chapters, which discuss the various types of corporate structures. A researcher may follow a business entity through the entire process, from start (formation) to finish (dissolution). The treatise also includes discussions on such topics as shareholders, reorganization, bonds, notes, securities, and contracts.  One of the great features of this treatise is the detailed table of contents.  For example, a person researching market associations may easily go straight from the table of contents to part seventeen on marketing associations. The treatise also includes references to statutory and common law authority related to the following types of business corporations: non-profit corporations, professional corporations, cooperative associations, marketing associations, limited partnerships and limited liability companies.

Special Features in North Carolina Corporation Law and Practice

As referenced earlier, North Carolina Corporation Law and Practice is also available in e-book format on WestlawNext. A researcher may use either the table or contents or perform full-text searching in order to quickly and efficiently locate specific topics.  Another great benefit of the e-book, is the ability to link directly into the full-text of referenced cases or statutes. Lastly the e-book format allows seamless and efficient updating.

Another important feature of North Carolina Corporation Law and Practice is the way in which the treatise is organized. The treatise is arranged in a manner that enhances one’s understanding of the process required to select the appropriate business entity. Throughout the treatise, various checklists, forms, and lists of requirements for specific organizational structures are also provided.

Conclusion

Overall, North Carolina Corporation Law and Practice is a great resource for attorneys or persons interested in forming a corporation in the great state of North Carolina. It lays out all of the requirements needed to form a variety of business entities.

 ~ Jeremy N. Hughes, L’14 ~

 Class Advisor – Susan L. Catterall, Esq.

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Student Spotlight: Maritza Adonis

maritzaadonis

I recently had the opportunity to sit and chat with the American Bar Association’s Law Student Division 4th Circuit Governor, Maritza Adonis, who is a first-year law student here at Charlotte School of Law. Maritza, a Miami, Florida native, graduated from North Carolina State University in 2010 and worked in the Wake County Teen Court before beginning her law school career last fall. In only her first year of law school, Maritza has accomplished so much, both professionally and academically. In addition to her role as the American Bar Association Law Student Division 4th Circuit Governor, Maritza is active in the Black Allied Law Student Association, Counsel for Children’s Rights, Education Legal Society, and Women in Law.  Maritza is also the recipient of the North Carolina Association of Women Attorneys’ Sarah Parker 2014-2015 Scholarship.

Maritza won the spring vote for the American Bar Association Law Student Division 4th Circuit Governor position by receiving a majority of the votes from the 17 law schools in the American Bar Association Law Student Division 4th Circuit. As Governor, Maritza will be focusing on several different tasks, but some of her main initiatives focuses on the mental health of law students. Maritza believes mental health is a huge issue for law students, and she wants to figure out why students are not seeking help during law school and figure out a way to resolve this issue. One of the ways that Maritza can be a change agent and advocate for law students is by writing American Bar Association resolutions, which are voted on by the American Bar Association and potentially become American Bar Association Rules. Maritza is also hoping that being the American Bar Association Law Student Division 4th Circuit Governor will help to give Charlotte School of Law more national recognition and instill pride in the current students.

Keep a lookout for the major initiatives and moves Maritza has in store for Charlotte School of Law and the entire American Bar Association Law Student Division 4th Circuit.

~Minerva Mims~

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Refresher on Weight of Authorities in Legal Writing

weightBeginning a summer internship or clerkship?  Or maybe you just need a little research refresher?  This post includes a basic outline and two illustrations on the weight of authorities in legal writing.

Case law, statutes, and regulations are primary sources that can be mandatory or persuasive, depending on your court and jurisdiction.  As the terms suggest, mandatory authorities are binding on a court while persuasive authorities, including some primary and all secondary sources, are non-binding.  (For more information about the different types and use of legal authority, please see the FAQ section of CSL’s North Carolina Legal Research Guide.)

For purposes of writing a legal memorandum or brief, you must cite any relevant mandatory authority for your issue(s).  If none exists, persuasive authority may be appropriate.  Persuasive authority may also be appropriate to further support any mandatory authority cited.

Below is the hierarchy of authority for a United States District Court.  Thus, if your case is pending in a federal trial court, use this guide to determine which types of authorities to cite in your legal writing.

Illustration (1): Federal.  The first group of authorities is at the top of the legal hierarchy and is MANDATORY PRIMARY authority, binding on a United States District Court (e.g., Western District of North Carolina) or the “origin court” in this illustration.

United States Constitution

“The Supreme Law of the Land”

Supreme Court of the United States

Jurisdictional Appellate Court

(judicial precedent from the Circuit Court of Appeals for origin jurisdiction; e.g., Fourth Circuit Court of Appeals)

Federal Statutes/Regulations 

(if applicable)

 Below MANDATORY PRIMARY authority is the category of HORIZONTAL PRIMARY authority.  This phrase refers to prior case law of the origin court (e.g., the Western District of North Carolina in our illustration).  HORIZONTAL PRIMARY authority is the grey area between mandatory and persuasive judicial precedent.  Generally, a court gives great weight to such precedent and does not overturn its own prior relevant decision without a strong, compelling reason.

Below HORIZONTAL PRIMARY authority is the category of PERSUASIVE PRIMARY authority.  This category refers to precedent from an inferior or lateral court (e.g., Middle District of North Carolina) that is non-binding, but may be persuasive to the origin court.  Also included in this category (and following the same rules of hierarchy) is dictum, which is not the holding of a case, but the court’s support of the holding, such as language that is illustrative or advisory in nature.

Finally, at the bottom of the legal hierarchy is SECONDARY authority, which is never binding upon a court and includes sources such as treatises, dictionaries, legal encyclopedias, law review articles, digests, and other legal, but non-precedential material.

 

The second illustration is the hierarchy of authority for a state trial court in North Carolina.  Thus, if your case is pending in a North Carolina Superior, District, or Magistrate court, use this guide to determine which types of authorities to cite in your legal writing.

Illustration (2): State (North Carolina).  The first group of authorities is at the top of the legal hierarchy in North Carolina and is MANDATORY PRIMARY authority, binding on a North Carolina trial court (e.g., Mecklenburg County Superior Court) or the “origin court” in this illustration.

North Carolina Constitution

 North Carolina Supreme Court 

 

North Carolina Court of Appeals

North Carolina Statutes/Regulations

       (if applicable)

 Below MANDATORY PRIMARY authority is the category of HORIZONTAL PRIMARY authority.  This phrase refers to prior case law of the origin court (e.g., Mecklenburg County Superior Court) and is the grey area between mandatory and persuasive judicial precedent.  Generally, a court gives great weight to such precedent and does not overturn its own prior relevant decision without a strong, compelling reason.

Below HORIZONTAL PRIMARY authority is the category of PERSUASIVE PRIMARY authority.  This category refers to precedent from an inferior or lateral court (e.g., Iredell County Superior Court) that is non-binding, but may be persuasive to the origin court.  Also included in this category (and following the same rules of hierarchy) is dictum, which is not the holding of a case, but the court’s support of the holding, such as language that is illustrative or advisory in nature.

Finally, at the bottom of North Carolina’s legal hierarchy is SECONDARY authority, which is never binding upon a court and includes sources such as Strong’s North Carolina Index and other legal encyclopedias, treatises, dictionaries, law review articles, digests, and other legal, but non-precedential material.

And remember that, despite having the least authoritative weight, secondary sources are extremely valuable tools when beginning to research a legal issue.  This is because secondary sources articulate and analyze specific points of law either generally or within a particular jurisdiction.  They are annotated and serve as avenues that will lead you to the mandatory primary authorities that you must rely upon and cite in your legal writing.

Happy Researching!

~Shannon Reid~

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