2

    书名：法律英语：法学概论(第3版)

    作者：黑姆斯·伊肯

    出版社：中国人民大学出版社

    出版日期：2009-10-1

    ISBN：978-7-300-11228-2

    价格：45.00元

    3目录

    CONTENTS

    出版说明

    序言

    英文原版书部分

    PREFACE

    ACKNOWLEDGMENTS

    ABOUT THE AUTHORSABOUT THE AUTHORS

    CHAPTER 1 THE LEGAL COMMUNITY AND PROFESSIONAL

    RESPONSIBILITY

    SEC.1-1 INTRODUCTION

    SEC.1-2 THE LEGAL PROFESSION

    SEC.1-3 THE PARALEGAL PROFESSION

    SEC.1-4 LEGAL SUPPORT STAFF

    SEC.1-5 COURT PERSONNEL

    SEC.1-6 AGENCY PERSONNEL

    SEC.1-7 PROFESSIONAL ORGANIZATIONS

    SEC.1-8 ETHICAL RESPONSIBILITIES

    CHAPTER 2 THE AMERICAN LEGAL SYSTEM

    SEC.2-1 INTRODUCTION

    SEC.2-2 FEDERALISM—THE RELATIONSHIP BETWEEN

    FEDERAL AND STATE GOVERNMENT

    SEC.2-3 THE FEDERAL GOVERNMENT AND THE

    LEGAL SYSTEM

    SEC.2-4 STATE GOVERNMENTS AND THE LEGAL

    SYSTEM

    SEC.2-5 THE COURTS AND THEIR ROLES

    CHAPTER 3 LAWS: THEIR SOURCES

    SEC.3-1 INTRODUCTION

    SEC.3-2 CONSTITUTIONAL LAW

    SEC.3-3 CASE LAW

    SEC.3-4 STATUTORY LAW

    SEC.3-5 ADMINISTRATIVE REGULATIONS

    CHAPTER 4 FINDING THE LAW:LEGAL RESEARCH

    4SEC.4-1 INTRODUCTION

    SEC.4-2 BEFORE YOU BEGIN

    SEC.4-3 WHERE TO BEGIN THE RESEARCH

    SEC.4-4 CASE LAW

    SEC.4-5 STATUTORY LAW

    CHAPTER 5 USING THE LAW:ANALYSIS AND LEGALWRITING

    SEC.5-1 INTRODUCTION

    SEC.5-2 APPROACHING A LEGAL RESEARCH

    ANALYSIS AND WRITING PROJECT

    SEC.5-3 THE CASE BRIEF

    SEC.5-4 THE LEGAL MEMORANDUM

    SEC.5-5 PERSUASIVE WRITING

    CHAPTER 6 LAWS:CIVIL VS.CRIMINAL

    SEC.6-1 INTRODUCTION

    SEC.6-2 WHERE CRIMINAL AND CIVIL LAWS ARE

    FOUND

    SEC.6-3 HOW CRIMINAL AND CIVIL CASES ARE

    HANDLED

    SEC.6-4 QUASI-CRIMINAL CASES

    CHAPTER 7 BUSINESS PRACTICE:CONTRACT, PROPERTY,AND EMPLOYMENT LAW

    SEC.7-1 INTRODUCTION

    SEC.7-2 CONTRACT LAW

    SEC.7-3 REAL PROPERTY LAW

    SEC.7-4 INTELLECTUAL PROPERTY LAW

    SEC.7-5 EMPLOYMENT LAW

    CHAPTER 8 CIVIL PROCEDURE BEFORE TRIAL

    SEC.8-1 INTRODUCTION TO CIVIL LITIGATION

    SEC.8-2 CAUSE OF ACTION

    SEC.8-3 JURISDICTION

    SEC.8-4 VENUE

    SEC.8-5 PLEADINGS

    SEC.8-6 PRETRIAL MOTIONS

    SEC.8-7 DISCOVERY

    SEC.8-8 PRETRIAL CONFERENCES AND SETTLEMENT

    CHAPTER 9 CRIMINAL PRACTICE: CRIMINAL LAW AND

    JUVENILE LAW

    SEC.9-1 INTRODUCTION TO CRIMINAL PRACTICE

    SEC.9-2 PURPOSES OF CRIMINAL LAW

    SEC.9-3 ELEMENTS OF A CRIME: MENS REA AND

    5ACTUS REUS

    SEC.9-4 CRIMES

    SEC.9-5 DEFENSES TO CRIMINAL CHARGES

    SEC.9-6 INTRODUCTION TO JUVENILE LAW

    SEC.9-7 THE JUVENILE COURT

    SEC.9-8 PROSECUTION OF JUVENILE OFFENDERS

    CHAPTER 10 CONSTITUTIONAL LAW

    SEC.10-1 INTRODUCTION

    SEC.10-2 CONSTITUTIONAL PRINCIPLES OF

    U.S.GOVERNMENT

    SEC.10-3 THE BILL OF RIGHTS

    SEC.10-4 CIVIL RIGHTS AND DISCRIMINATION

    SEC.10-5 VOTING RIGHTS

    SEC.10-6 PRIV ACY AND THE DUE PROCESS CLAUSE

    中文辅导部分

    第一章 法律共同体和职业责任

    第一节 导论

    第二节 法律职业

    第三节 律师助理行业

    第四节 律师事务所中的辅助人员

    第五节 法院中的法律从业人员

    第六节 政府机构中的法律从业人员

    第七节 职业组织

    第八节 职业道德

    第二章 美国法律体系

    第一节 导论

    第二节 联邦制：联邦政府和州政府之间的关系

    第三节 联邦政府及其法律体系

    第四节 州政府及其法律体系

    第五节 法院及其作用

    第三章 法律渊源

    第一节 导论

    第二节 宪法

    第三节 判例法

    第四节 制定法

    第五节 行政规章

    第四章 寻找法律：法律检索

    第一节 导论

    第二节 检索前的准备工作

    第三节 从哪里开始检索

    6第四节 判例法检索

    第五节 制定法检索

    第五章 运用法律：分析和法律写作

    第一节 导论

    第二节 如何完成法律检索和法律文书写作

    第三节 判例摘要

    第四节 法律备忘录

    第五节 有说服力的法律文书

    第六章 法律：民法和刑法

    第一节 导论

    第二节 刑事和民事法律规范的出处

    第三节 如何处理刑事和民事案件

    第四节 准刑事案件

    第七章 商业实践：合同法、财产法和劳动法

    第一节 导论

    第二节 合同法

    第三节 不动产法

    第四节 知识产权法

    劳动法

    第八章 民事诉讼审前程序

    第一节 民事诉讼导论

    第二节 诉由

    第三节 管辖

    第四节 审判地

    第五节 诉讼文书

    第六节 审前申请

    第七节 证据勘示

    第八节 审前会议和和解

    第九章 刑事实践：刑法和青少年犯罪法

    第一节 刑事实践导论

    第二节 刑法的目的

    第三节 犯罪要件：犯罪意图与犯罪行为

    第四节 犯罪

    第五节 刑事控诉的抗辩

    第六节 青少年犯罪法导论

    第七节 青少年法庭

    第八节 青少年犯罪的起诉

    第十章 宪法

    第一节 导论

    第二节 美国政府的宪法原则

    7第三节 权利法案

    第四节 民权和歧视

    第五节 选举权

    第六节 隐私和正当程序条款

    后记

    8出版说明

    根据教育部《关于加强高等学校本科教学工作提高教学质量的若

    干意见》的精神要求，为适应我国加入WTO后的发展需要，我国高

    等学校法学等专业的课程安排中双语教学要逐步达到一定的比例。

    为了引进对国内双语教学有帮助的优秀的国外原版教材，同时对

    其加以适当改造，使之真正符合我国目前双语教学的发展状况和广大

    师生的教学需求，我们对其中的诸多问题进行了探索。比如，在哪些

    课程上引进原版教材对我国的法学教学更有借鉴和学习意义，引进何

    种难度和多大体量的教材；又比如，如何降低纯粹的英文原版教材的

    学习难度，如何为广大师生提供辅助学习材料；等等。

    奉献于读者面前的这套21世纪法学系列双语教材，就是基于以上

    考虑和探索而做的一种有益尝试。

    首先，我们选择了在国际法学科、重要的民商事法学科和法学基

    础理论学科率先引进国外的原版教材，选择其中难度适中的国外原版

    教材。

    其次，我们对教材的体例进行了精心的编排和设计，对较厚的原

    版教材进行了精心的改编。

    最后，整套教材采取了英文原版书配中文辅导用书的形式：每本

    教材前一部分是英文原版教材(为适宜教学，作了相应删改)，后一部

    分是我们约请国内从事双语教学的优秀教师编写的与英文原版教材相

    配套的中文辅导内容，设置了重点词汇解析、内容导读、案例解析等

    栏目。这些配套的中文辅导内容将会为学习英文原版教材的读者提供

    较大的帮助。

    本套丛书从原版样书的审核挑选，到艰难的版权谈判过程，再到

    体例内容的各项设计以及作者的精心编写，每一项努力都是为了给大

    9家奉献对我国法学双语教学真正有所裨益的好教材，希望在广大师生

    的关心和支持下，我们能将这套教材做得更好!

    编者

    2009年9月

    10序言

    法律英语和英美法的双语教学在当今的法学教育中受到了越来越

    多的重视，因此编写一本适合现阶段学生学习要求的法律英语和英美

    法概论教材有着重要的现实意义。2008年中国人民大学出版社的郭虹

    编辑和作者曾就如何编写法律英语和英美法双语教材进行过一次深入

    的讨论，达成了一个共识：随着我国学生英语能力的提高和授课教师

    法律视野的开阔，使用原版教材进行法律英语的系统教学已是迫在眉

    睫。恰逢此时中国人民大学出版社引进了美国培生出版集团的美国法

    学院教材，我们商定，以法律英语系列教材的方式将美国原版教材引

    入中国的法学双语教学中。而之所以要编写系列教材，是因为法律英

    语的学习绝不仅仅是英文加法律单词，不懂英美法来学习法律英语只

    能是无源之水、无本之木。而英美法博大精深，单靠一两本教材如何

    能将其精华囊括殆尽？因此，结合各个部门法全面、系统地出版适合

    我国教学现状的双语教材将是一个大胆的尝试。但选取哪一本教材作

    为系列教材的开篇之作则成了头等大事。

    在众多的原版教材中，由乔安妮·班克·黑姆斯和伊冯娜·伊肯所著

    的Introduction to Law一书，引起了作者的注意。万事开头难，法律英

    语和英美法的学习也不例外，总要有一个“入门”的教材将学生引入英

    美法学习的殿堂中来，这就要求教材要难易适中，此外，还要有基础

    性和全面性，要较为全面地把英美法的基础知识介绍清楚，从而为以

    后的法律英语和英美法学习打下坚实的基础。以此观之，该书即是一

    本符合我国现阶段法律英语和英美法双语教学需求的恰当之选。该书

    在内容上系统介绍了英美法的基本知识，其最大特点是以其简单精练

    的语言——即Plain English来撰写法学教材，因此对该书的使用能起

    到事半功倍之效：通过“简单”的语言掌握“复杂”的英美法知识，在英

    文中学习法律，在法律中提高英文。因此，将其译为《法律英语：法

    学概论》，既是希望通过该书将法律英语和英美法概论的双语教学有

    机结合，为法学双语教学提供一个全新的视角，也希望将此书作为法

    律英语系列教材的开篇之作，从概论开始，逐步深入各个部门法，建

    11立一个法律英语和英美法的教材体系。

    本教材在原著的基础上，结合我国法学双语教学的现实需求，分

    为中英文两个部分，其英文部分选取了原版教材中的十章进行适当改

    编，其覆盖范围包括了英美普通法的核心基本理论和主要的部门法基

    础知识。中文部分在编写过程中考虑到学习法律英语和英美法双语教

    学的特殊性——既有学习法律术语和基本的法律知识的专业性要求，还要掌握法律英语中的语言技能，在体例上做了如下安排：

    首先，将原书中标出的基本的法律词汇进行翻译，以便于理解和

    掌握，此为“基础词汇释义”。

    其次，选取原书中值得深入分析的重点法律词汇进行详细分析，英汉并重，即“重点词汇详解”。

    序言法律英语：法学概论(第3版)再次，原书虽然是法律教材，但是语言简单精确，结合法律语境学习英语语言技巧并学以致用，则

    是法律英语学习的事半功倍之坦途，因此本书中文部分还特别列举了

    值得好好体会的语言知识点，即“英语技能提高要点提示”。

    又次，法律英语的学习绝不是简简单单的几个单词、几个句子，不懂法律知识，也难以学好法律英语，至少是掌握不了其中之精髓，本书中的“重点法律知识分析”部分即选取了法律知识要点进行详细分

    析，力图使读者体会其中的内涵。

    最后，英美普通法的特点在于其案例法体系，案例的学习是学习

    法律英语不可或缺的部分，本书中的“案例解析”部分即对教材中的案

    例结合涉及的法律问题进行了全面的分析，既有层层递进的详细论

    述，也有结合案例情况以问题形式进行的启发式分析，并且还点出了

    案例中的语言要点。目的只有一个，即使读者深入理解案例的精髓和

    熟悉案例的语言韵味，不再对案例感到陌生和排斥，期待读者在阅读

    完本书中二十个左右的案例后能对英美法案例有一个切身的认识。

    为了提高学生的阅读和学习兴趣，在本书的编写中，还穿插

    了“词义辨析”和“Small quiz”两个小栏目，前者是对需要掌握的同义词

    或近义词进行了比较分析，促使读者更为全面地掌握词汇的含义并能

    熟练使用，而后者则是结合具体的知识点，通过提小问题的方式，帮

    助读者主动思考，加深理解。

    作者在双语教学中有一个切身体会——启发式和互动式的教学方

    式最能调动学生的学习热情和提高学习效果，因此，在运用教材进行

    12教学的过程中，有两个方面值得关注：

    第一，运用英语教学中的paraphrase的教学方式，鼓励(甚或在

    适当的时候采用“强迫”)学生使用自己的语言来解释词汇，重述案件

    的概况，将教材中已有的词汇、短语、句型有机地融入自己的表述

    中，特别是将在教材中出现的一些看似简单和日常化的词语运用到法

    律语言中，可以有效地提高学生的语言能力和对法律知识的理解，并

    能排除学生对法律英语的畏难情绪。

    第二，与其他法律英语和英美法教材相比，本教材的一大特点在

    于其较为充实的案例。众所周知，案例教学是英美法学教育的特色之

    一。通过案例的学习读者可以掌握英美法的语言特点和思维方式。因

    此，对于本教材中的案例，授课教师可以采取灵活多样的方式调动学

    生的主动学习：结合案情分为原、被告双方进行课堂辩论，利用教材

    中教授的案例分析方法进行案例分析的课堂提问和发言，利用教材中

    教授的诉讼文件的书写格式模拟案件的起诉书等法律文件，全面利用

    网络资源对相关案例的背景资料进行查询并在此基础上结合案例涉及

    的法律理论写小论文，等等，从而使学生能够活学活用法律语言，掌

    握英美法的思维技巧。

    总之，作者希望通过本书为我国法学教育的双语教学贡献一份力

    量，其中疏漏之处，诚挚希望各位同仁批评指正!

    姜栋

    2009年7月

    13英文原版书部分

    PREFACE

    The study of law attracts students for a variety of reasons.Many see the

    study of law as a career choice—as the opportunity to become a lawyer，a

    paralegal，or some other related professional.Some are interested because

    of personal dealings with the legal system，while others are interested

    simply because it is a fascinating subject.Whatever reasons motivate the

    student，an introductory class in law must accomplish certain basic

    objectives.Students must develop an understanding of the organization of the

    legal system.They must comprehend basic legal concepts related to

    procedural and substantive law.Students should also be introduced to

    cases，statutes，and the Constitution，the sources of all of our laws.While

    students in an introductory law class should not be forced to learn about the

    law entirely through reading cases，some experience in reading cases is

    essential to learning about the law.

    Our years of teaching paralegal students have convinced us that any

    introductory law course must begin with and emphasize the development of

    a strong legal vocabulary.Also important is the opportunity to use and

    develop the analytical skills so important to any legal professional.Our

    goal，therefore，in writing this text is to help instructors by providing

    beginning students with a book that keeps their interest while providing an

    overview of the organization and operation of the legal system，as well as

    an introduction to some of the basic concepts of substantive and procedural

    law.More importantly，however，we have included several features that

    give students the opportunity to develop a strong legal vocabulary and to

    build their analytical skills.

    14THE THIRD EDITION OF INTRODUCTION TO LAW

    Feedback from instructors and students who use this text convinces us

    that the basic organization and features of this textbook are

    successful.Students have especially appreciated the extensive key term

    definitions in the margin，the interesting cases，and the wide use of

    common hypothetical cases to explain the application of legal

    principles.These features remain in the text.However，the law has never

    been，nor will it ever be，a static entity.Any useful textbook dealing with

    the law must reflect these changes.As a result，where applicable，the law

    has been updated in this text.Other changes reflect the changing face of the

    legal system，as well as our desire to provide students with the following.

    ▼ More practice in building analytical skills

    ▼ An awareness of the global view of law

    ▼ An introduction to the ever-growing important areas of

    constitutional，employment，and environmental law

    ▼ Extended coverage of the unauthorized practice of law

    ▼ Updated information on the current impact of technology in law

    practice to accomplish these goals，the third edition of Introduction to Law

    contains the following new features

    ▼ A new chapter，“Constitutional Law，” introducing and discussing

    some of the major concepts of constitutional law

    ▼ New coverage of legal research strategies

    ▼ Introduction to the areas of employment and environmental law

    ▼ Inclusion of new U.S.Supreme Court cases

    ▼ Expanded discussion of the unauthorized practice of law

    ▼ A new chapter feature，“Around the World，” providing

    information and Web sites related to international aspects of law

    ▼ A new chapter feature，“Skills Assessment，” containing

    assignments for students to test the skills needed in a law office

    15▼ Expanded use of tables and charts to clarify legal concepts

    INSTRUCTIONAL AND LEARNING FEATURES OF

    INTRODUCTION TO LAW

    The many features of Introduction to Law make it an excellent choice

    for both the student and the instructor.Students will find an easy-to-read text

    with a built-in dictionary，realistic factual situations，and high-interest

    cases.Instructors will find an organized text containing questions to help

    students review text material，hypothetical situations for class analysis and

    discussion，and assignments in each chapter.In addition，an Instructor's

    Manual provides the instructor with chapter outlines，answers to review

    questions，a test bank，and transparency masters.The supplemental

    material is especially helpful to adjunct faculty.More specifically，Introduction to Law contains the following features.

    ▼ Numerous charts and tables illustrate and clarify legal concepts.

    ▼ Legal vocabulary is identified in boldface type.The key terms are

    defined in the margins of the text where the terms appear，and are also

    listed at the end of each chapter for review.

    ▼ A case file containing a hypothetical factual situation opens each

    chapter.This case file serves as an introduction to the subject matter，encouraging students to think about the subject matter in a law office or

    everyday setting，rather than simply as more textual reading.

    ▼ Carefully selected and edited case law appears in each chapter.The

    case law introduces students to reading the law and assists with the

    development of critical thinking skills.The cases are interesting and even

    familiar.Most cases have been edited in an effort to shorten them and to give

    beginning students the opportunity to ascertain the important concepts of the

    case without being confused.(In editing the cases，we have taken some

    liberties with normal rules of editing.)To assist the student，we have also

    provided a brief introduction to most cases，as well as questions for case

    analysis following the case.

    ▼ A “Technology Corner” box in each chapter provides a list of

    Internet sites that are relevant to the material in the chapter.A “Featured Web

    Site” box in each chapter provides an overview of one important Web

    site，along with student assignments using the site.

    16▼ Internet references to international organizations，laws，and legal

    resources appear in each chapter in a feature titled “Around the World.”

    This feature allows students to explore global influences on the legal system

    as well as to compare the U.S.legal system with that of other nations.

    ▼ “Ethical Concerns” boxes in each chapter contain hypothetical

    situations presenting ethical questions suitable for class discussion.Students

    are given the opportunity to apply the various ethical rules to real-life

    situations.

    ▼ A “Chapter Summary” is included in every chapter.The summaries

    are short overviews of the major concepts covered in the chapter.

    ▼ Basic “Questions for Review” follow each chapter summary.These

    questions are designed to assist the student in focusing on the most important

    concepts in the chapter.

    ▼ “Questions for Analysis” at the end of each chapter require the

    student to apply the concepts covered in the chapter.

    ▼ An “Assignments and Projects” section，which follows the

    “Questions for Analysis，” contains hands-on activities to help the student

    build necessary skills.

    ▼ “Skills Assessment” provides students with an opportunity to test a

    variety of skills needed to survive in a law office.

    ▼ Most chapters include a feature called “A Point to Remember.” This

    practical information helps students focus on the skills and concepts that

    will help them in their legal studies.

    ▼ A complete Glossary at the end of the text contains definitions for

    all highlighted key terms used in the text.

    ▼ A mock trial can be found in Appendix III,and a Basic Citation

    Reference Guide is included as Appendix IV .The mock trial could be used

    at the end of Chapter 17(“The Trial”).We have found that a mock trial is fun

    and memorable for students.We have provided the basic fact pattern and the

    legal issues.The trial is a good opportunity for students to apply the

    materials presented in the preceding chapters.

    17▼ Appendix VII,“Recent United States Supreme Court

    Decisions,”contains summaries of important recent cases.In the various

    chapters,students are asked to do factual analysis based on the cases.

    ▼ A complete Instructor's Manual is available.The Instructor's Manual

    contains suggested course syllabi,chapter outlines,answers to“Questions for

    Review,”and suggestions for additional teaching materials.It also includes a

    test bank with answers and transparency masters.

    18ACKNOWLEDGMENTS

    No textbook can be produced through the sole effort of its authors.The

    third edition of Introduction to Law is no exception.

    We would like to thank several individuals whose recommendations，assistance，and encouragement have made this work possible and

    enjoyable.Daily contributions came，first and foremost，from our

    husbands，Bill Ekern and Mark Hames: they have each contributed their

    special talents and knowledge to improving this text.More importantly，they have been a constant source of encouragement and support.Special

    thanks are also extended to Delene Waltrip and Hope Allen，paralegals

    extraordinaire.

    Special thanks to the reviewers of this text: Adam Epstein，Central

    Michigan University，Mt.Pleasant MI；Franklin Moore，Bronx

    Community College，Bronx，NY.

    19ABOUT THE AUTHORSABOUT THE AUTHORS

    Joanne Banker Hames is an attorney who has been actively involved in

    paralegal education since 1977，and who is an instructor and the former

    coordinator for the ABA-approved paralegal program at DeAnza

    Community College located in the heart of Silicon Valley.She earned her

    J.D.from Santa Clara University Law School and has been an active

    member of the California Bar since 1972.Prior to her involvement in

    paralegal education，she practiced law in a firm specializing in

    litigation.She is co-author of Civil Litigation，Legal Research，Analysis，and Writing: An Integrated Approach，and Constitutional Law:

    Principles and Practice.

    Yvonne Ekern is a member of the law faculty of Santa Clara University

    Law School and adjunct faculty of DeAnza Community College Paralegal

    Program.For many years，she was the chairperson of an ABA-approved

    Paralegal Program and Division Chair of the Applied Arts and Sciences

    Division of West Valley Community College.She graduated from the

    University of Idaho School of Law in 1985，after which she worked in

    criminal and family law offices.Prior to completing law school，she taught

    high school English and math in California and Missouri.She is co-author of

    Legal Research，Analysis，and Writing: An Integrated Approach，and

    Constitutional Law: Principles and Practice.She has over twenty years of

    teaching experience.

    20CHAPTER 1 THE LEGAL COMMUNITY AND

    PROFESSIONAL RESPONSIBILITY

    1-1 Introduction

    1-2 The Legal Profession

    1-3 The Paralegal Profession

    1-4 Legal Support Staff

    1-5 Court Personnel

    1-6 Agency Personnel

    1-7 Professional Organizations

    1-8 Ethical Responsibilities

    CHAPTER OBJECTIVES

    When you complete this chapter you should be able to

    211.Describe the requirements for becoming a lawyer.

    2.Explain some of the different types of law practice.

    3.Explain the role of the paralegal in the legal environment.

    4.Identify the skills required of a paralegal.

    5.List and describe the responsibilities of the various personnel

    working in law offices and in the courts.

    6.Identify the organizations for legal professionals.

    7.Describe some of the major ethical rules that govern legal

    professionals.

    8.Explain how to avoid the unauthorized practice of law.

    CASE FILE: PEOPLE V .TERRY JACOBS

    Terry Jacobs has always been fascinated by the law.Terry's spare time

    is spent watching television shows about lawyers and police or reading

    legal thrillers written by authors such as Grisham and Turow.At one time

    Terry even considered becoming a lawyer, but the thought of seven years of

    college and the corresponding cost made Terry put aside.Instead, Terry

    surfed the net and found several articles and books on the law written for

    paralegals.After reading the books, Terry started a paralegal business called

    Jacobs Paralegal Services.As part of this business, Terry often helped

    people obtain divorces.Now, the local bar association claims that Terry is

    engaged in the unauthorized practice of law.After investigating the matter,the local prosecutor filed criminal charges against Terry.

    22SEC.1-1 INTRODUCTION

    Whether based on fact or fiction, legal stories capture the interest of

    the American public.Daily news reports in all media generally include some

    stories involving our legal system.Sometimes the events involve serious

    issues such as the rights of those accused of terrorist activities.Sometimes

    the stories involve less serious but more incredible issues such as the right

    to sue a fast food restaurant for causing obesity.Often, the stories involve

    legal difficulties of celebrities who get involved in everything from murder

    to child abuse to domestic disputes.The entertainment media also focus

    heavily on legal stories.Popular fiction, television series, and movies are

    often based on law-related events.

    Clearly, the law is a fascinating topic.More than that, however, the law

    affects all aspects of our lives, from the selection of our president to the

    way we drive our automobiles.At times the law is simple and

    straightforward.At other times it can be complex and involved, requiring

    experts to explain and interpret it.

    Whether your goal is to work in the law or whether you are just

    interested in law, you should know certain basic concepts about the

    U.S.legal system.This text is intended to introduce you to some of the basics

    of the U.S.legal system.You will not learn everything there is to learn about

    the law; that is an impossible task.However, as you go through the various

    chapters, you will see how the legal system is organized and how it

    functions.You will read about some important areas of law and see how

    legal disputes are handled both in and out of court.

    The starting point in learning about the law is to become familiar with

    the participants who make up the legal community.This first chapter

    introduces you to the various members of the legal community.It also

    introduces some of the important ethical rules that guide these professions.

    23SEC.1-2 THE LEGAL PROFESSION

    LAWYERS

    A lawyer

    [1]

    , who is also called an attorney[2]

    , is an individual licensed

    by a state to practice law.States generally require that individuals take and

    pass a special examination, a bar examination[3]

    , before they can be

    licensed to practice law.The license is valid only within the state that issues

    it.If an individual wishes to practice law in a state on a regular basis, that

    individual must be licensed within that state.Prior to taking a bar

    examination, most individuals have completed a four year bachelor's degree

    program followed by a three-year law school program.On completion of

    law school, most graduates receive a Juris Doctor (doctor of law)

    degree.Because of the ever-changing nature of the law, some states now

    require licensed attorneys to regularly complete a certain number of hours

    of continuing education in order to maintain their license to practice law.

    THE PRACTICE OF LAW

    Lawyers practice their profession in different ways.Many lawyers

    work in privately owned law firms.The lawyers may be the employees or

    owners of the law firm, either individually, in partnership with other

    lawyers, or in an association with other lawyers.The law firm may even be

    incorporated.A law partnership operates under the same partnership laws as

    any business.The partners share profits and each is responsible for all of the

    liabilities of the business.However, because of certain ethical rules, only

    licensed attorneys can be partners.Many states recognize a new type of

    partnership, a limited liability partnership (LLP).In this business form, the

    partners in the law firm have limited liability for the acts of their

    partners.An association is a type of business organization where lawyers

    may share office and support-staff expenses, but do not share in the profits

    of the law practice itself.In some cases the law practice is incorporated.In

    such an event, the state laws regulating corporations apply to the

    organization.Shareholders, or owners of the corporation, are generally

    limited to attorneys.

    Not all lawyers work in private law firms.Many work for local, state,or federal government organizations such as prosecutors' offices (sometimes

    24known as district attorneys), public defenders' offices, state attorneys'

    offices, or the U.S.Attorney's office.Other attorneys work in legal

    departments of corporations or insurance companies.In these instances, the

    attorneys are usually salaried employees, although the heads of some of

    these organizations may be elected or appointed officials.

    The nature of the day-to-day work done by attorneys depends on where

    the attorney works or the area of expertise or specialty of that

    attorney.However, what constitutes the practice of law is somewhat

    consistent among all legal practitioners.Although there is no exact definition

    of the practice of law, generally the practice of law includes such activities

    as appearing in court, giving legal advice, and preparing legal documents to

    meet specific client needs.

    注释

    [1]lawyer:An individual who is authorized by a state to practice law.

    [2]attorney:Another term for lawyer.

    [3]bar examination:An examination administered by a state that tests an

    individual's knowledge of the law and is a prerequisite to being allowed to

    practice law.

    25SEC.1-3 THE PARALEGAL PROFESSION

    Because of the complexities of the law, most people rely on the work

    and efforts of professionally trained individuals whenever they have a legal

    problem.Traditionally, these trained individuals have been attorneys.In

    recent years, with the emergence of the paralegal profession, this has

    changed.Paralegals[1]

    , also known as legal assistants[2]

    , are individuals

    whose training and education enable them to assist lawyers by performing

    various legal tasks.Although they cannot give legal advice or appear in

    court, paralegals, under the supervision of a lawyer, do much of the legal

    work traditionally done by lawyers.If a paralegal is properly trained and

    supervised, clients receive the same level of legal work as they would from

    attorneys working alone, and they receive it at an affordable cost.

    Today, legal services are commonly provided by a “team” consisting

    of lawyers, paralegals, and other support staff.By properly utilizing a

    support staff, especially paralegals, today's attorneys find that their time is

    most efficiently and economically spent performing tasks that require the

    expertise they gained in law school.Conversely, clients find that when

    paralegals, rather than attorneys, perform certain legal tasks, the cost of

    legal services is greatly reduced.The value of paralegals to the legal

    community is so great that labor experts predict the paralegal profession

    will continue to be one of the fastest-growing professions in the United

    States.

    PARALEGALS IN THE LEGAL ENVIRONMENT

    Most paralegals work under the supervision of attorneys either in

    private law offices, government law offices (such as prosecutors' offices),or in the legal departments of corporations or other businesses.A paralegal

    who works in a firm that handles automobile accident cases might interview

    clients and witnesses, draft documents to be filed in court, or summarize

    medical records.On the other hand, a paralegal who works for a probate

    attorney might be involved in gathering and organizing financial data or

    preparing inheritance tax returns.

    The day-to-day tasks that paralegals perform are as varied as the types

    of law that are practiced.However, certain knowledge and skills are

    26commonly required of all paralegals.Paralegals need to have a basic

    knowledge of the legal system, substantive laws, and legal

    procedures.Subsequent chapters in this book will cover these areas.Legal

    assistants should also have some knowledge of the substantive and

    procedural laws of the state in which they work.This is the focus of most

    formal paralegal education.In addition, every paralegal should know and

    understand the ethical obligations that bind legal professionals.These

    obligations are discussed later in this chapter.

    A POINT TO REMEMBER

    Paralegals cannot engage in the unauthorized practice of law.They

    cannot appear in court or give legal advice.However, under the supervision

    of an attorney, they can perform many tasks often done by lawyers, such as

    interviewing clients, drafting legal documents, and doing legal research.

    Paralegals must also possess certain basic skills.These include the

    following.

    Oral and Written Communication Skills

    Paralegals frequently communicate orally and in writing with the

    courts, attorneys, other paralegals, and clients.Paralegals commonly

    interview clients and witnesses, and then summarize in writing the content

    of such interviews.Additionally, paralegals draft all types of legal

    documents.

    Research Skills

    Some paralegals do extensive legal research and writing for attorneys,while others do very little.However, all paralegals must have basic legal

    research skills.Furthermore, all paralegals should have general research

    skills.For example, as a paralegal you might be asked to locate the address

    of a distant court; in a medical malpractice case, you might be asked to

    research certain medical conditions.

    Critical ThinkingAnalytical Skills

    Critical thinking skills are essential for anyone working as a legal

    assistant and are required for most if not all of the legal work done by

    paralegals.For example, the ability to analyze and synthesize facts is

    27required for legal research and preparing legal documents.It is also needed

    for reviewing legal documents and reviewing and evaluating evidence.

    Organizational Skills

    Case files in a legal office often contain numerous documents.In major

    lawsuits the number of documents may be in the thousands.Paralegals may

    be responsible for indexing and organizing all of them.If a case is in

    litigation, many time deadlines are also critical.Papers may have to be filed

    in court or served on other parties to the lawsuit, or court appearances by

    the attorney might be set.Someone must keep track of everything; often that

    someone is a paralegal.

    General OfficeComputer Skills

    A paralegal in a law office is expected to possess general office

    skills.Today that means computer literacy.Word processing skills are a

    must.Most law firms use the word processing software Microsoft Word,although some may use WordPerfect.Ability to use the Internet effectively

    and efficiently is also essential.Legal and factual research uses the

    Internet.Most courts are now online.And, of course, no office operates

    without e-mail.In addition, knowledge about general filing and billing

    procedures, proper telephone etiquette, and general business communication

    skills is essential.

    INDEPENDENT PARALEGALS

    Not all paralegals work in law offices.Some, like Terry Jacobs, prefer

    the benefits of self-employment.In some instances they work as independent

    contractors, offering their services to different attorneys for specific legal

    projects.For example, they might do a legal research project, handle a

    probate, or summarize documents in a specific case.Paralegals who work

    like this are sometimes referred to as independent or freelance paralegals;

    they do much the same type of work as traditional paralegals.

    Contrasted with paralegals who work independently for attorneys are

    those who offer their services directly to the public.This type of work

    presents serious ethical and legal questions because, absent specific

    legislation to the contrary, only attorneys can give legal advice, appear in

    court, or otherwise engage in the practice of law.In recent years many state

    legislatures have considered the issue of trained nonattorneys providing

    28limited legal services to the public.The term legal technician[3]

    rather than

    paralegal is sometimes used to designate these individuals.Advocates of

    legal technicians stress the need for affordable legal services, while

    opponents stress the dangers of allowing nonattorneys to practice law, even

    to a limited extent.

    REGULATION OF PARALEGALS

    Unlike attorneys, paralegals are not generally licensed by any

    government agency.In fact, in most states anyone can be called a

    paralegal.However, a number of states have enacted or are considering

    some type of regulation of paralegals.See Figure 1-1, Regulation of

    Paralegals, for an example of recent legislation passed in California related

    to paralegals.Aside from governmental regulation, the paralegal profession

    itself has adopted forms of self-regulation.Two major professional

    organizations established professional standards and voluntary certification

    for paralegals: the National Association of Legal Assistants (NALA) and

    the National Federation of Paralegal Associations (NFPA).NALA

    administers a national examination that tests paralegal

    competency.Paralegals who pass the examinations are referred to as

    Certified Legal Assistants (CLAs)

    [4]

    . CLAs are required to take several

    hours of continuing education regularly to maintain their status.NALA

    further administers certain specialty examinations to paralegals who have

    passed the basic CLA examination.NFPA also administers a competency

    examination known as PACE (Paralegal Advanced Competency Exam).

    Both NALA and NFPA have sought to enhance the paralegal profession

    by adopting codes of ethical standards for paralegals.Neither organization,however, has authority to punish or discipline anyone who violates these

    standards.

    293031Although the paralegal profession has been largely unregulated,changes are beginning.For example, California recently enacted legislation

    limiting the use of the term paralegal to those who work for attorneys and

    who have paralegal education or experience.Continuing legal education is

    also required.California also regulates independent paralegals who provide

    services to the public.These individuals, referred to as licensed document

    assistants, must meet educational or experience requirements.They must be

    licensed and bonded.Unlike attorneys, however, they do not need to take an

    32examination to be licensed.

    PARALEGAL EDUCATION

    The traditional definition of a paralegal refers to the fact that

    paralegals have special training and education.In the early days of the

    paralegal profession, in the 1960s and 1970s, few formal paralegal

    programs existed.Instead, many law firms hired intelligent, educated

    individuals and trained them to be paralegals.As the paralegal profession

    grew and developed, formal paralegal education became a prerequisite for

    many if not most paralegal jobs.Formal paralegal programs are offered by

    numerous educational institutions, both public and private, and vary in

    length and depth of material covered.To provide some standard, in the

    1970s the American Bar Association (ABA) established guidelines for

    paralegal education and undertook to approve programs that met those

    guidelines and requested approval.The requirements for approval relate to

    curriculum, faculty, and support services of the educational institution.The

    ABA works closely with an organization known as the American

    Association for Paralegal Education (AAfPE).Paralegal programs can join

    the AAfPE even if they are not approved by the ABA.

    PARALEGALS AS PROFESSIONALS

    In a 1989 case, Missouri v.Jenkins, the U.S.Supreme Court discussed

    the role of paralegals in the practice of law.Missouri v.Jenkins was an

    aftermath of a major school desegregation case filed in Kansas City,Missouri.After a lengthy court battle, the plaintiffs in the case

    won.According to Section (abbreviated §) 1988 of the United States Code,the attorneys for the prevailing party were entitled to collect reasonable

    attorney fees from the losing party.In this case, the attorneys for the

    prevailing party used paralegals extensively and wanted reimbursement for

    their time at a rate of 35 to 40 per hour, which was the common rate at

    which paralegal time was billed to clients.The paralegals themselves were

    actually paid in the range of 15 per hour.The trial court awarded fees for

    the paralegal time at the rate of 35 to 40 per hour; the other side appealed

    and requested a hearing in the U.S.Supreme Court.In writing this decision,the Court made frequent reference to the United States Code (abbreviated

    U.S.C.in the decision).

    Missouri v.Jenkins

    33491 U.S.274 (1989)

    ABOUT CASE LAW IN GENERAL

    Before you read the excerpt from Missouri v.Jenkins, you should know

    what case decisions are.Published case decisions (or case law) are

    decisions of cases written by judges.Most often, these are decisions from

    judges who heard appeals in cases.They all involve real people or

    organizations who had real disputes.When you read the case itself, you are

    reading what the judges said about those people and their dispute.The

    decision is intended primarily to resolve their dispute.Because of the

    concept of precedent

    [5]

    or stare decisis[6]

    , this decision can have a far-

    reaching effect in the legal system.Precedent or stare decisis means that

    once a specific factual dispute has been resolved in a particular way, if the

    same factual dispute arises again, it should be resolved in the same

    way.When judges write an opinion, they usually include a brief history of

    the factual dispute between the parties.They also discuss the reasons for

    their decision.In discussing the reasons for their decision, judges frequently

    refer to other cases or statutory law they considered.When they do this they

    also give a citation[7]

    for that law.A citation is a standard reference that tells

    readers where they can find the law.The case name for this case, Missouri

    v.Jenkins, is followed by a citation.This is a reference to a book in which

    this case is published.In this citation, the book is abbreviated as U.S.(United

    States Reports).The abbreviation is preceded by a volume number and

    followed by a page number.Case law and citations are explained in more

    detail in later chapters.

    OPINION

    Missouri's contention is that the District Court erred in compensating

    the work of law clerks and paralegals (hereinafter collectively

    “paralegals”) at the market rates for their services, rather than at their cost

    to the attorney.While Missouri agrees that compensation for the cost of these

    personnel should be included in the fee award, it suggests that an hourly rate

    of 15—which it argued below corresponded to their salaries, benefits, and

    overhead— would be appropriate, rather than the market rates of 35 to

    50.According to Missouri, § 1988 does not authorize billing paralegals'

    hours at market rates, and doing so produces a “windfall” for the attorney.

    We begin with the statutory language, which provides simply for “a

    34reasonable attorney's fee as part of the costs.” 42 U.S.C.§ 1988.Clearly, a

    “reasonable attorney's fee” cannot have been meant to compensate only

    work performed personally by members of the bar.Rather, the term must

    refer to a reasonable fee for the work product of an attorney.Thus, the fee

    must take into account the work not only of attorneys, but also of secretaries,messengers, librarians, janitors, and others whose labor contributes to the

    work product for which an attorney bills her client; and it must also take

    account of other expenses and profit.The parties have suggested no reason

    why the work of paralegals should not be similarly compensated, nor can

    we think of any.We thus take as our starting point the self-evident

    proposition that the “reasonable attorney's fee” provided for by statute

    should compensate the work of paralegals, as well as that of attorneys.The

    more difficult question is how the work of paralegals is to be valuated in

    calculating the overall attorney's fee.

    The statute specifies a “reasonable” fee for the attorney's work

    product.In determining how other elements of the attorney's fee are to be

    calculated, we have consistently looked to the marketplace as our guide to

    what is “reasonable.” A reasonable attorney's fee under § 1988 is one

    calculated on the basis of rates and practices prevailing in the relevant

    market, i.e., “in line with those [rates] prevailing in the community for

    similar services by lawyers of reasonably comparable skill, experience,and reputation,” and one that grants the successful civil rights plaintiff a

    “fully compensatory fee,” comparable to what “is traditional with attorneys

    compensated by a fee-paying client.”

    If an attorney's fee awarded under § 1988 is to yield the same level of

    compensation that would be available from the market, the “increasingly

    widespread custom of separately billing for the services of paralegals and

    law students who serve as clerks” must be taken into account.All else being

    equal, the hourly fee charged by an attorney whose rates include paralegal

    work in her hourly fee, or who bills separately for the work of paralegals at

    cost, will be higher than the hourly fee charged by an attorney competing in

    the same market who bills separately for the work of paralegals at “market

    rates.” In other words, the prevailing “market rate” for attorney time is not

    independent of the manner in which paralegal time is accounted for.Thus, if

    the prevailing practice in a given community were to bill paralegal time

    separately at market rates, fees awarded the attorney at market rates for

    attorney time would not be fully compensatory if the court refused to

    compensate hours billed by paralegals or did so only at “cost.” Similarly,35the fee awarded would be too high if the court accepted separate billing for

    paralegal hours in a market where that was not the custom.

    We reject the argument that compensation for paralegals at rates above

    “cost” would yield a “windfall” for the prevailing attorney.Neither

    petitioners nor anyone else, to our knowledge, has ever suggested that the

    hourly rate applied to the work of an associate attorney in a law firm creates

    a windfall for the firm's partners or is otherwise improper under § 1988,merely because it exceeds the cost of the attorney's services.If the fees are

    consistent with market rates and practices, the “windfall” argument has no

    more force with regard to paralegals than it does for associates.And it

    would hardly accord with Congress' intent to provide a “fully compensatory

    fee” if the prevailing plaintiff's attorney in a civil rights lawsuit were not

    permitted to bill separately for paralegals, while the defense attorney in the

    same litigation was able to take advantage of the prevailing practice and

    obtain market rates for such work.Yet that is precisely the result sought in

    this case by the State of Missouri, which appears to have paid its own

    outside counsel for the work of paralegals at the hourly rate of 35.

    Nothing in § 1988 requires that the work of paralegals invariably be

    billed separately.If it is the practice in the relevant market not to do so, or to

    bill the work of paralegals only at cost, that is all that § 1988

    requires.Where, however, the prevailing practice is to bill paralegal work

    at market rates, treating civil rights lawyers' fee requests in the same way is

    not only permitted by § 1988, but also makes economic sense.By

    encouraging the use of lower cost paralegals rather than attorneys wherever

    possible, permitting market-rate billing of paralegal hours “encourages

    cost-effective delivery of legal services and, by reducing the spiraling cost

    of civil rights litigation, furthers the policies underlying civil rights

    statutes.” Such separate billing appears to be the practice in most

    communities today.In the present case, Missouri concedes that “the local

    market typically bills separately for paralegal services,” and the District

    Court found that the requested hourly rates of 35 for law clerks, 40 for

    paralegals, and 50 for recent law graduates were the prevailing rates for

    such services in the Kansas City area.Under these circumstances, the court's

    decision to award separate compensation at these rates was fully in accord

    with § 1988.

    It has frequently been recognized in the lower courts that paralegals

    are capable of carrying out many tasks, under the supervision of an attorney

    36that might otherwise be performed by a lawyer and billed at a higher

    rate.Such work might include, for example, factual investigation, including

    locating and interviewing witnesses; assistance with depositions,interrogatories, and document production; compilation of statistical and

    financial data; checking legal citations; and drafting correspondence.Much

    such work lies in a gray area of tasks that might appropriately be performed

    either by an attorney or a paralegal....

    CASE ANALYSIS

    1.The parties to a case are the people or organizations who have

    brought their dispute to court.Who are the parties in this case? Which party

    petitioned the Supreme Court for review? Can you tell which party won the

    case at the trial level?

    2.Describe the nature of the dispute between the parties in this

    case.How did the Court resolve the dispute?

    3.What does the Court say about the nature of work done by

    paralegals? Do you think this has any impact on how judges and lawyers

    view the paralegal profession?

    4.Is the Court treating paralegals more like secretaries or more like

    attorneys? Explain.

    注释

    [1]paralegal:An individual whose training and education enables him or

    her to assist lawyers by performing certain legal tasks that traditionally

    have been done by lawyers.

    [2]legal assistant:Another term for paralegal.

    [3]legal technician:A term used to describe a nonattorney who is

    authorized to engage in a limited practice of law.

    [4]Certified Legal Assistant (CLA):A paralegal or legal assistant who

    has passed a special examination given by the National Association of Legal

    Assistants.

    [5]precedent:The example set by the decision of an earlier court for

    37similar cases, or similar legal questions that arise in later cases.

    [6]stare decisis:“It stands decided”; another term for precedent.

    [7]citation:A standard abbreviated way of explaining where law is

    found.

    38SEC.1-4 LEGAL SUPPORT STAFF

    LEGAL SECRETARIES

    Another important member of the legal team is the legal secretary.As

    with other legal professionals, the work done by legal secretaries in law

    offices varies depending on the education and experience of the legal

    secretaries and the area of specialty of the firm employing them.Their jobs

    may be primarily secretarial in nature, but in some cases are much more

    involved.Before the advent of the paralegal profession, many legal

    secretaries not only did traditional secretarial work, but also performed

    many of the tasks now assigned to paralegals.In fact, in the early days of the

    paralegal profession, many new paralegals were former.

    Most legal secretarial jobs include such activities as word processing,scheduling appointments, notifying clients of court dates, and calendaring

    court appearances.Although such tasks are primarily secretarial, a limited

    knowledge of the law and the legal process is necessary.Legal secretaries

    frequently deal with the courts; furthermore, they must know the proper

    format for preparing various types of legal documents as well as be familiar

    with court rules regarding the filing of any court documents.Sometimes, the

    work of legal secretaries extends beyond secretarial functions and into the

    realm of paralegal work.Some legal secretaries draft legal documents,interview clients, and summarize records.Often legal secretaries, like the

    lawyers for whom they work, become experts in certain areas of the

    law.They may be known as litigation secretaries, patent secretaries, or

    corporate secretaries.

    In larger law firms, marked distinctions exist between the paralegal

    job and the legal secretary position.Each has very distinct assigned tasks.In

    smaller firms, however, the differences between a legal secretary and a

    paralegal are sometimes hard to determine.Generally, however, paralegals

    have more formal legal education and are expected to work more

    independently than legal secretaries.Attorneys who operate small law firms

    may not need both a legal secretary and a paralegal.They will therefore

    often seek a “legal secretaryparalegal” for their support staff.That is, they

    want someone who can perform the job of both the legal secretary and the

    paralegal.

    39LAW CLERKS

    The term law clerk[1]

    is most commonly used to refer to law students

    interning or working in the law firm while attending school.Their jobs often

    involve considerable legal research and preparation of legal memoranda[2]

    ,which are written explanations and analyses of factual and legal problems.

    OTHER SUPPORT STAFF

    Depending on the size of the law firm and the nature of its work,several other legal support positions may exist in a law firm.These include

    case assistants, case clerks, document coders, and calendar clerks.Although

    their actual job descriptions may vary from firm to firm, case assistants and

    case clerks generally assist paralegals.Document coders usually read and

    extract information from documentary evidence in a case and enter that

    information into a computerized database.Calendar clerks maintain the

    office calendar, which may include court appearances, client appointments,and filing dates.Many paralegals begin their careers in one of these support

    positions.

    A POINT TO REMEMBER

    If you work in a law firm, you are a member of a team.You must be

    willing and able to work harmoniously with all other members of that team,including attorneys and support staff.

    A Question of Overtime Pay

    Under federal labor rules found in the Code of Federal Regulations

    (C.F.R.), employees who work overtime must be compensated for that time

    unless they are“exempt.” One category of exemption exists for an employee

    “who customarily and regularly exercises discretionary powers ...” [29

    C.F.R.541.1(d)].This section is further interpreted in section 541.107,which defines customarily and regularly as “a frequency which must be

    greater than occasional but which, of course, may be less than constant.”

    Furthermore, “[t]he requirement will be met by the employee who

    normally and recurrently is called upon to exercise and does exercise

    discretionary powers in the day-to-day performance of his duties.The

    requirement is not met by the occasional exercise of discretionary powers.”

    (29 C.F.R.541.107).

    40Questions

    1.Do you think paralegals are entitled to overtime pay according to this

    law?

    2.What factors are important in making this determination?

    3.What about other law office support staff?

    4.What about attorneys?

    注释

    [1]law clerk:A term used to refer to a law student interning or working

    in a law firm while attending school.

    [2]legal memorandum:An informal interoffice document written to

    communicate the results of legal research and the resulting legal analysis.

    41SEC.1-5 COURT PERSONNEL

    The legal community consists not only of attorneys, paralegals, and

    support staff, but also of the personnel of the various courts in which

    attorneys appear.Litigation attorneys and their support staff, including

    paralegals, are in regular contact with judges, court clerks, court reporters,and bailiffs.

    JUDGES

    Judges[1]

    preside over U.S.courts and are decision makers within the

    court system.The exact role of any judge depends on the specific court and

    whether a jury is also involved.Judges normally have a legal background; in

    fact, some courts require that judicial candidates have a minimum number of

    years of experience before they qualify for the position.The selection

    process of judges depends on the law of the jurisdiction in which the judge

    serves.In federal courts, all judges (for trial courts, appellate courts, and the

    Supreme Court) are nominated by the president and confirmed by the

    Senate.Each state has its own process of judicial selection, which may

    include public election andor executive appointment.In addition to regular

    judges, many trial courts use the services of individuals known as

    magistrates, commissioners, and referees, sometimes referred to as quasi-

    judicial officers[2]

    .Quasi-judicial officers usually have limited judicial

    functions and often hear only certain types of matters—for example, traffic

    cases or pretrial motions.They are selected by the judges they assist.

    COURT CLERKS

    Court clerks[3]

    are court employees who assist in the smooth operation

    of the court.They perform a variety of functions, including filing documents,marking and safeguarding evidence during a trial, and reviewing written

    orders submitted by attorneys for the judge's signature.While no special

    educational requirements for this position exist, court clerks are generally

    required to have some knowledge of court procedures.

    COURT REPORTERS

    42Court reporters[4]

    are specially trained individuals who record

    verbatim the oral proceedings that take place in court.Their training consists

    of learning to be proficient on the stenographic machine used in court, as

    well as learning about the legal system with an emphasis on terminology.In

    many states, court reporters are licensed by the state only after passing an

    arduous examination.

    BAILIFFS

    Bailiffs[5]

    , sometimes called court deputies or court attendants,provide safety and order within the courtroom.In the federal courts this

    position is sometimes filled by a deputy U.S.marshal.In state courts the

    bailiff may be a peace officer, although this is not always the case.

    A POINT TO REMEMBER

    Maintaining a good relationship with all court personnel is essential

    for every law firm.Always be polite and considerate when dealing with

    anyone working in the court.

    注释

    [1]judge:An individual who presides over a U.S.court.

    [2]quasi-judicial officers:Individuals who are not judges but who

    fulfill limited judicial functions; they include magistrates,commissioners, and referees.

    [3]court clerk:A court employee who assists the court and the judge by

    filing documents, marking and safeguarding evidence, reviewing documents

    that are submitted to the judge, and performing other similar tasks.

    [4]court reporter:A person who records (electronically or

    stenographically) the testimony that takes place during the open court

    proceedings; the court reporter will produce a transcript.

    [5]bailiff:An individual who is responsible for the safety of the judge

    and for order within the courtroom; sometimes known as a court deputy or

    court attendant.

    43SEC.1-6 AGENCY PERSONNEL

    The legal community is not limited to those who work in law offices or

    in the courts.Government agencies and offices often play an important role

    in many types of law practice.Not all types of law practice require attorneys

    to deal with the courts.Some attorneys (and their staff) deal with various

    government agencies, either because documents must be filed with the

    agency or information must be obtained from it.For example, a lawyer who

    incorporates businesses must file articles of incorporation with the

    secretary of state's office in the state in which the business is to be

    incorporated.If corporate securities (such as stock) are to be offered on a

    national exchange, then the Securities and Exchange Commission regulates

    that activity.Other agencies include state departments of motor vehicles,state boards that regulate workers' compensation cases (cases of employees

    who been have injured on the job), state departments of real estate, and state

    consumer agencies.Many other federal, state, and local agencies exist.

    A large body of law regulates the rights and powers of many of these

    agencies.One of the important aspects of this law relates to disputes that

    arise concerning the actions of the agency.In a dispute over some action

    taken by an agency, the disputing parties must often try to resolve that

    dispute within the agency itself rather than immediately filing a lawsuit in a

    court.This process usually involves a formal hearing known as an

    administrative hearing[1]

    .See Table 1-1 for a summary of the various

    members of the legal community.

    44注释

    [1]administrative hearing:A hearing before an administrative agency

    regarding a dispute between an individual and the agency.

    45SEC.1-7 PROFESSIONAL ORGANIZATIONS

    An examination of the legal community would not be complete without

    including a list of some common professional organizations for the various

    members of the legal community.

    AMERICAN BAR ASSOCIATION (ABA)

    The ABA is a national organization that strives to promote high

    professional standards within the American legal community and to

    safeguard the administration of justice to the public.Membership in this

    organization is voluntary and is open to all attorneys.Paralegals may also

    join.More information can be found on the ABA Web site at

    www.abanet.org.

    STATE BAR ASSOCIATIONS

    In order for attorneys to be authorized to practice law in any state, they

    must belong to the state bar association of that state.State bar associations

    traditionally monitor the ethical conduct of attorneys practicing within the

    state and impose sanctions on lawyers found to have violated the ethical

    standards of the profession.These organizations speak for the legal

    community to legislators, often endorsing or opposing proposed legislation

    that affects the legal system.

    LOCAL BAR ASSOCIATIONS

    Local bar associations are voluntary associations of attorneys within

    small geographical regions (usually county or city).They often provide

    continuing legal education for lawyers and sometimes try to resolve

    disputes with clients, especially those involving fees.They may also provide

    special legal services to the needy.

    AMERICAN TRIAL LAWYERS ASSOCIATION (ATLA)

    ATLA is a national professional group consisting primarily of trial or

    litigation lawyers.It also allows paralegal membership.This organization

    provides continuing education for members, and is often vocal in connection

    with any proposed legislation that affects the rights of individuals to litigate

    46their disputes.To read more about ATLA, go to its Web site at

    www.atlanet.org.

    NATIONAL ASSOCIATION OF LEGAL ASSISTANTS

    (NALA)NALA is a professional organization for paralegals or legal

    assistants that strives to promote high professional standards for the

    paralegal profession.As described earlier, it has adopted a code of ethics

    for paralegals and also administers a national examination that paralegals

    may choose to take if they meet the prerequisites.This organization confers

    the title of CLA on legal assistants or paralegals who pass the organization's

    examination.(Paralegals can now choose to use the title CP— Certified

    Paralegal—if they prefer the term paralegal rather than legal assistant.)

    Membership in NALA is voluntary and is open to all paralegals.To read

    more about NALA and the CLA exam, go the NALA Web site at

    www.nala.org.

    NATIONAL FEDERATION OF PARALEGAL ASSOCIATIONS

    (NFPA)NFPA is primarily a national organization consisting of local

    paralegal associations, although individuals may join.Like NALA, it strives

    to promote high professional standards for the paralegal profession.It has

    adopted a code of ethics for paralegals and also offers a national

    examination that qualified paralegals may take.NFPA maintains a Web site

    at www.paralegals.org.

    AMERICAN ASSOCIATION FOR PARALEGAL EDUCATION

    (AAFPE)AAfPE is a national organization of paralegal schools and

    educators.It sets standards for paralegal education and works with the ABA

    in approving paralegal schools.Read more about this organization at

    www.aafpe.org.

    LOCAL PARALEGAL ASSOCIATIONS

    Many local communities have their own professional organizations for

    paralegals and paralegal students.Usually they strive to promote the

    professional standards of the paralegal position by sponsoring educational

    seminars for the members and by closely watching proposed legislation

    regarding paralegals.

    47SEC.1-8 ETHICAL RESPONSIBILITIES

    All members of the legal profession, including attorneys, paralegals,and support staff, are bound by ethical standards.When a lawyer agrees to

    represent a client, a special relationship is created between the lawyer and

    the client.This fiduciary relationship[1]

    means that the attorney must exercise

    the highest degree of trust and care with that client.The relationship carries

    with it various duties or obligations for the attorney in handling the

    case.These duties are more than moral obligations.State bar associations

    require attorneys to adhere to a certain standard of conduct; failure of an

    attorney to do so will result in sanctions against the attorney, including

    reprimands, suspension, and disbarment.Disbarment

    [2]

    results in an attorney

    being denied the right to practice law in the state.Specific rules of conduct,sometimes referred to as canons of ethics or rules of professional conduct,vary slightly from state to state.However, in general they are patterned after

    suggested standards published by the American Bar Association.The ABA

    has numerous publications regarding legal ethics, including The Annotated

    Model Rules of Professional Conduct.Remember that the ABA does not

    have the power to dictate any rules to attorneys because it is a voluntary

    association and has no regulatory power over attorneys.Attorneys are

    regulated by the state bar association of the state in which they practice.The

    ethical rules for individual states can be located on the Internet.Many of

    these rules are linked to the site maintained by NALA, www.nala.org.They

    can also be accessed under “Legal Subjects,” subtopic “Ethics and

    Professional Responsibility,” on the Findlaw Web site at

    www.findlaw.com.

    Because most paralegals are not regulated or licensed by any state,states generally do not have the power to impose mandatory rules of

    conduct.However, two paralegal associations, NALA and NFPA, have

    adopted recommended canons of ethics for paralegals.Furthermore, a

    paralegal working under the supervision of a lawyer must also follow the

    ethical rules that govern attorneys.Because paralegals are not licensed, they

    are not subject to any disciplinary action by a state bar.If a paralegal

    violates any of the standards, however, other penalties might result.The

    attorney is responsible for his or her staff, and, therefore, a ......