The American legal system is based on the federal law and made greater by the laws implemented and enacted by the state legislatures. Then comes local laws that are passed by local counties and cities.
The rights and freedom given to each American citizen are called the “Bill of rights” which is covered in the first 10 amendments of the US Constitution.
The laws and US Constitution apply to everyone in the US irrespective of the fact that they are a citizen or not. In fact, even the illegal immigrants have some of the most common basic legal rights.
The most confusing thing about American laws is that each state has the liberty and power to form their own laws (criminal and civil). As a result of this, there are 50 different state legal systems with their own laws, prisons, police force and courts. So, if you are moving from one state to another, there are high chances that something considered legal in 1 state may not be legal in the one you are moving, and it is always advisable to check the basic laws.
The US judiciary consists of the US Court of Appeals, The District Courts and the Supreme Court & these courts function independent of the government. As you would have guessed, The Supreme Court is the highest court in land and any decision given by the Supreme court is final and binding to all parties. There 9 judges in the Supreme Court and they are appointed for life by The President of United States.
In conflicting cases, the Supreme Court will review the activities of the State & Federal governments and then conclude if the laws passed by them are Constitutional or not.
There have been times when the Supreme courts have reversed laws passed by the Congress and even declared the actions of the US presidents unconstitutional.
Some of the major judgements are Racial Segregations, Abortion, Capital Punishment and the infamous Watergate Scandal that led the resignation of President Nixon.
There’s one catch here though. As we know that The President appoints the Supreme Court Judge and therefore that selection can be biased in the form that he may appoint a judge that has similar political and other views as that of the President. The Supreme Court for many years was made up of members with a liberal mindset, although as we know now, that this trend is changing. Case in point the recent appointment of Judge Brett Kavanaugh by President Donal Trump.
Cases that arise under the US Constitution or any law / treaty is dealt by the Federal courts and not State Courts. The Federal Court also hears if there any disputes between State Governments or between citizen or residents of different states. Cases that fall under the jurisdiction of a federal court are heard by a federal district judge. Any appeals after the decision of the federal court can then be made to the Circuit Court of Appeals or even the Supreme Court in some cases.
There is a clear distinction between civil and criminal courts. Civil courts listen to disputes between 2 citizens whereas as the name suggests, a criminal court deals with cases that includes someone breaking the law.
Crimes are categorized as minor or serious violations of law. Minor crimes are called misdemeanors and serious violations are called felonies.
Some of the misdemeanors include:
- Illegal parking
These crimes are usually closed by asking the person committing the crime to pay a fine and may not even have to appear in the court.
Felonies, which include robbery, drug trafficking or dealing are tried in a court of law and the guilty is generally sentenced to prison. As mentioned earlier, State laws differ and sometimes, a misdemeanor is dealt with harshly in a particular state.
People committing minor crimes (misdemeanors) may be issued summons (foreigners who mistakenly break a law may be let off with a warning). However, anyone who commits a felony is arrested. While arresting, the police may frisk them to check if they have any concealed weapons, handcuff them and even read them their rights.
Anyone who is arrested must be advised of their constitutional (Miranda) rights. These rights are, “You have the right to remain silent, the right to have a lawyer present during questioning and the right to have a free court appointed lawyer if you cannot afford one”. The person is also asked if they want to waive their rights. This is never recommended because then whatever they say can be used against them in the court.
If you are arrested, always retain your rights and do not say anything unless you’ve spoken to your lawyer or a lawyer. At the police department, you will be charged, and you have a right to make 1 telephone call. Chose this call carefully. We suggest, you should make this call to your embassy or the consulate, a lawyer or the local legal aid office or someone you know who is capable enough to stand bail for you.
You will then be put into a cell until your case comes before a judge, usually, the same or next day.
You can be released if the judge thinks there’s no case or may set bail. A bail may be a cash sum or the equivalent property value. In some cases, the judge may oppose bail too.
Lawyer Referral services in many areas are maintained by local (e.g. county) bar associations. The members of this bar association will provide legal representation for a fee.
In case you have to “retain” a lawyer be very clear about what the legal representation costs are including fees for services such as medical experts, transcripts and court fees. It is very important to hire a lawyer who is a specialist and is experienced in handling the type of case you are entangled in. Of course, if you cannot afford lawyer, court will appoint a lawyer for you.
Now comes the weird part of the US legal system – plea bargaining. This involves a deal between the prosecution and the defence where the defendant pleads guilty but to a lesser charge for a reduced sentence and ultimately saving time of everyone – the court’s and theirs.
This can sometimes not work in the favour of a victim and sometimes make a mockery of a case (as seen in many cases. For e.g. The OJ Simpson case). Keep in mind that in the US you are normally considered guilty unless proven innocent, at least in the eyes of the general public and you may be tried and convicted by the media long before the trial comes to court.
Often, penalties can be harsh for less serious crime while professional and white-collar criminals with the best defence can get off easily with a small sentence or even just a fine. The reason for this may be that many judges are elected and not appointed from the qualified members of the legal profession. This has resulted in bad legal decisions and a lack of consistency in sentencing.
In the US, Litigation is everywhere. It is a national tradition and some people even joke about it being a sport preferred by lawyers. Why so?
There are approximately 15-20 million civil suits in a year which has led to a huge backlog of cases in all states and even in the Supreme Court.
An unusual aspect of US law is that lawyers are allowed to work on contingency fee basis. This means that they can accept a case based on a no-win – no fee basis. And if they win, they’ll charge upto 50% of what you are suing for. And if you intend to hire a lawyer on a non-contingency basis, the cost will be too high for you to afford.
According to a lot of people, this system is flawed as in such a scenario, the lawyer is always trying to win the case and doesn’t mind bending the law or crossing ethical boundaries. It is because contingency fee system, the number of litigation cases is so high in this country. And the lawyers are happy to pursue because of the high return they make of these cases and the awards made by US courts.
As a result of the prevalent litigation system, individuals must not only have liability insurance to protect them from being sued but everyone from doctors to carpenters need to have expensive malpractice insurance to protect themselves against litigation from patients or customers. There’s a saying that the whole US economy and legal system is underpinned by litigation in which half the population is directly employed while the other half is a plaintiff or a defendant.
Almost everyone apart from the lawyers agree that the litigation system is out of control but no one knows how to resolve it while lawyers think of new and innovative ways of litigation. There is also a term coined for lawyers who follow ambulances to be the first in line to represent accident victims. They are called ambulance chasers.
It has gone so out of control that in many states there are weird product liability, personal liability and consequential loss laws. Some of these have limited liability while others don’t. As a result of which, there are absolutely obvious and some very weird warnings listed on products and articles anticipating ridiculous implausible events to protect themselves from litigation.
For example, in some states you will see that a bottle of beer has warnings about drinking and driving, choking on stopper, breaking the glass and cutting yourself or someone else, swallowing broken glass, taking alcohol where it is prohibited, drinking under age or giving a drink to someone under age, alcoholism, carrying alcohol in your car or over certain state borders, being mugged or falling over while drunk, etc, etc. – and this is hardly an exaggeration!
In the US, you can sue a tobacco company for causing your cancer, a car manufacturer for causing an accident, a ski firm for contributing to your ski accident, or a computer software company for fouling up your tax return. In fact, anything that can (however remotely) be blamed on someone else, will be!
Do not discuss your injury after an accident to anyone other than your lawyer and especially not with anyone connected with the other party. You should also never sign any documents they present to you without legal advice. And even if you forget this guide, we are sure you will come across hoardings or tv adverts (Better Call Saul) that will remind you of your rights to sue in accident situations.
A lot of companies are so terrified of courts that they do not want to go to trial. For some it is bad for their business and therefore they end up settling out of court by paying a good amount of money.
If you own a business and are not being sued by a few 100 people then you probably aren’t worth suing and if someone sues you then, it is a sign that you are successful. It is weird but that’s how this country works.
Many social service agencies provide free legal assistance to immigrants (legal and illegal), although some may serve the nationals of a particular country or religion only. There are help lines and agencies offering free legal advice in most towns and cities, many with legal aid societies (offering free advice and referral on legal matters), Better Business Bureaux (dealing with consumer-related complaints, shopping services, etc.) and departments of consumer affairs (who also handle consumer complaints).