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Lawyering Skills
University of Kansas School of Law
Keller, Pamela V.


Legal Institutions

*** see handout ***

The Common Law
•Term used in more than one way
•Used as the legal tradition to distinguish it from others (such as civil, Islamic)-Big Picture
•Also used to distinguish it from statutory
•To distinguish between common law and equity
•Came from England, 11th century, William the Conqueror 1066, and set up the system of govt, feudal system
•The king was ultimately responsible for justice across the lands and if you had a dispute, you went to the King, or rather his court of judges.
•Over time, as a result of the growing number of disputes, the judges began to travel and hold a term of court in various locations, called a term of common plea.
•Through discussion amongst themselves, the judges decided they desired consistency amongst their decisions and began to write them down and refer to the common decision-thus they began to apply a common law.
•The common law court became quite strict and rigid and the people appealed to the kings’ chancellor who thus developed equity for those who couldn’t find an adequate remedy in the common law court.
•The Kings chancellor was a religious man and chose not to deal with money, instead he ordered people to do something or to refrain from doing something.
•Eventually the courts merged and you can ask for remedies or for specific action.

What is common law?
•Case law is developed from a dispute and common law is the precedent derived from.
•It is fair, adjustable, and adaptable to the changing ways of the society.
•Three types of Law (in order of importance)
•Common Law

Stare Decisis- to stand by a previous decision
•It means, “To abide by, or to adhere to, decided cases.”
•Previous decisions of courts can affect the decisions of cases brought by parties that played no part in the actual decision affecting them.
•Why use Stare Decisis?
•Promotes efficiency in the court
•Promotes predictability and allows lawyers and clients some level of expectation
•Promotes fairness, most basic component of justice, and prohibits decision makers from using facts that are not relevant to the case.

Other things that affect
•Res Judicata- prevents a person who has lost a previous case from retrying the same matter in a later case. Claim Preclusion.
•Collateral Estoppels- You cannot re-try facts. Issue Preclusion.

Precedent among Courts
•If there is precedent from a higher court, the lower court has to apply that same rule, they cannot overrule it. The only thing they can do is argue the facts are different.
•If there is precedent from that same court it is bound, unless it can distinguish factual differences. It can very rarely overrule its own decision.
•En Banc­- Only the whole court of appeal can overrule its decision, a three judge panel cannot due that.
•Higher courts are not bound by lower courts, nor are they bound by courts of different law.
•A KS District Trial Ct is never bound by a Tenth Circuit Court, even if they are applying KS state law (because they are in a different system of law).
•Binding v Persuasive
•Binding is controlling authority, precedent
•How persuasive it is still leaves the decision up to the court to adopt policy or not. Lawyers often have to make predictions about what a court will do, given it is not binding.
•Have to look at a written opinion in order to have precedent. Unpublished opinions are not precedent.
•There are several diff types of opinions, only two are precedent:
•Majority opinions
•Per Curium- opinions by the court as a whole


a. California Supreme Court
b. Missouri Supreme Court
c. Kansas Court of Appeals

•Will your case be decided under federal or state law?
State Law
•Which prior decision is binding authority for your issue? Why?
Lower courts are not binding, nor are they in the jurisdiction.
•Which prior decision is persuasive authority for your issue? Why?
The KS Court of Appeals can have persuasive authority; they just cannot have binding authority.

3. You are arguing in the Michigan Court of Appeals that a person who recklessly
aids in the suicide of another may be convicted of manslaughter according to
Michigan law. You have found the following case law to support your position
(assume all are equally on point):

a. Arizona Supreme Court
b. California Supreme Court
c. Michigan Court of Appeals

•Will your case be decided under federal or state law?
State Law
•Which prior decision is binding authority for your issue? Why?
Michigan Court of Appeals is binding authority because the court does not rule against itself unless en banc (which means the entire panel of judges sits together).
•Which prior decision is persuasive authority for your issue? Why?
Arizona and California Supreme Court decisions can act as persuasive authority even though they are in different jurisdictions, they just cannot act as binding authority.

4. You are arguing in the U.S. District Court, District of Massachusetts that an