English for the Legal Profession

Level 3: US Supreme Court

1) Nine members, nominated by the president and confirmed by the Senate, may serve for life.

2) Appellants must petition for writ of certiorari----ask the Court to hear the appeal

a. certiorari granted if four members vote to hear the case

b. cert. denied if less than four members vote to hear the case. 3) Opinion types

a. per curiam opinion [unanimous decision] 一致意见

b. majority opinion [opinion shared by the majority] 大多数意见 example:

6-3 decision----all six justices agree on one opinion.

c. Plurality opinion [final outcome agreed to by majority but for differing

reasons]大多数人同意最终结果，但所持理由不一样。Example: 6-3 decision----two justices write one concurring opinion, three justices write another concurring opinion, one justice writes her own opinion, and three justices dissent.

d. Concurring opinion 附和意见[agrees with the majority decision for

different reasons]

e. Dissenting opinion反对意见 [opinion given by a justice not agreeing

with the majority]

4) No appeal is possible

Supreme Court decisions are binding in all jurisdictions in the United States. However, the Supreme Court may overrule its own earlier decisions.

25

English for the Legal Profession

Chapter 9 Civil Litigation

The law of procedure can be divided into criminal and civil. Civil procedure is the body of rules by which the parties in civil litigation use the court to settle disputes.

Generally, the party bring the lawsuit to the court is called the plaintiff, and the party against whom the action is brought is called the defendant. On appeal, the appealing party is usually referred to as appellant/petitioner, and the winning party at trial is called the appellee/respondent.

In most states and in the federal courts, all persons may join in one lawsuit as plaintiffs if the causes of action arise out of the same transaction or series of transactions and involve common questions of law or fact(如果案由出自同一桩交易或者同类交易并且涉及事实或法律问题又相同，原告可以合并起诉). The plaintiff may join as defendants all persons who are necessary to a complete determination or settlement of the questions(原告可以把所有对彻底解决或处理争议必不可少的人作为被告合并起诉). If a defendant alleges that a complete determination of a controversy cannot be made without other parties, that defendant may bring in new third parties as third-party defendants (如果被告声称彻底解决争议还必须有其他当事人，他可以将其他人作为第三被告纳入该案). The procedure is usually followed when someone is liable to a defendant who, in turn, is liable to the plaintiff. A?B(defendant)?C(plaintiff). A is the third party.

A distinctive element of the Anglo-American judicial procedure is the adversary system. Within this system, the responsibility for beginning suit(提起诉讼), for shaping the issues(界定争议), and for producing evidence(出示证据) rests almost entirely upon the parties to the controversy. The court takes almost no active part. It does not do its own investigating. It rarely even asks a question. Most often it is only responsible for guiding the proceeding according to certain procedural rules and for making decisions on questions of law that arise.

The reasons to have adversary system. First, it is believed that a truer decision will be reached as a result of a contest directed by interested parties(人们认为由有利害关系的当事人为主导的较量可以导致更符合实际情况的决定). Second, since the parties have a direct interest in the resolution of the dispute, they should bear the burden of the time and energy required. Third, setting up sides reduces the determination of the suit to some yes-or-no questions, which are easier for an unbiased judge(树立对立面使案件的处决变成了几道是非题，使不具偏见的法官较容易处理). Fourth, the human instinct to do battle is better satisfied by a contest that is very much in the hands of the parties.

26

English for the Legal Profession

Critics of the adversary system point out that the adversary system tends to reduce litigation to a game, in which the outcome will depend more on the skill of the lawyer than on the true merits of the case(而非案件本身的是非曲直). In recent years, there has been a trend toward increasing the active role of the court. But the system remains, and it is still true that in the US, the control over almost all phases of the judicial process continues to reside in the parties.

27

English for the Legal Profession

Chapter 10 Commencing a Legal Action

Lawsuits do not begin themselves. Someone must first decide to sue someone else for an alleged injury. But before making the decision to sue, the potential litigant must first consider whether the injury is one for which the law furnishes a relief (在决定起诉之前，可能参与诉讼者必须考虑法律是否对这种伤害提供救助). If he believes so, he must next consider the probability of winning the lawsuit, i.e., whether he can find and bring to court the person who has injured him, and whether he can produce the witnesses and evidence that will prove the case. And then, perhaps most important of all, the must ask himself whether the lawsuit is worth the time, the effort and the expenses it will cost, or whether other alternatives, among them settlement, arbitration, self-help and letting matters rest, are better.

After all these factors have been considered and the potential litigant decides to commence a legal action, he must then consider to which court he should bring the case.

A lawsuit must be brought before a court that has the power to hear the case. The power to hear the case is known as jurisdiction, which has two aspects: jurisdiction over the matter and jurisdiction over the parties. The former means that the lawsuit must be of the type that the court was created to decide(案件必须属于法院有权受理的种类). A criminal court would have no jurisdiction in a divorce matter. A federal district court will not have jurisdiction over many disputes (for example, disputes over damages for breach of contract between citizens of one state), because the subject matter jurisdiction of federal courts is limited by the Constitution.

A court must also have jurisdiction over the parties. Its jurisdiction over the plaintiff is established when the plaintiff files the suit with the court and thus voluntarily submits to its jurisdiction.

Jurisdiction over the defendant is accomplished by the service of a summons/service of process(传票送达) issued by the court. Service of summons is not much of a problem if the defendant is a citizen of the forum state(法院所在州). If this is not the case, the assertion of jurisdiction will have to depend on whether the defendant has minimum contacts(最低限度联系) with the state to satisfy the due process(正当司法程序) clause of the Constitution. If the defendant has no minimum contacts with the forum state, there will be no basis for jurisdiction over his person, and service cannot be effected(执行传票送达).

Service of summons in a few cases may be effected by publishing a notice in a

28