American law and the US Constitution apply to everyone in the US, irrespective of citizenship or immigration status, and even illegal immigrants have most of the same basic legal rights as US citizens. Under the US constitution, each state has the power to establish its own system of criminal and civil laws, resulting in 50 different state legal systems, each supported by its own laws, prisons, police forces, and county and city courts. There’s a wide variation in state and local laws, making life difficult for people moving between states. Never assume that the law is the same in different states (Conflict of State Laws is a popular course in American law schools).
The US Judiciary
The US judiciary is independent of the government and consists of the Supreme Court, the US Court of Appeals and the US District Courts. The Supreme Court, the highest court in the land, consists of nine judges who are appointed for life by the President. Its decisions are final and legally binding on all parties. In deciding cases, the Supreme Court reviews the activities of state and federal governments and decides whether laws are constitutional. The Supreme Court has nullified laws passed by Congress and even declared the actions of US presidents unconstitutional. Momentous judgements in recent years have involved the Watergate scandal, racial segregation, abortion and capital punishment.
However, when appointing a Supreme Court judge, the President’s selection is based on a candidate’s political and other views, which must usually correspond with his own. The Supreme Court was for many years made up of members with a liberal or reformist outlook, although this trend has been reversed in recent years with the appointment of conservative judges by successive Republican presidents.
The federal courts
A separate system of federal courts operates alongside state courts and deals with cases arising under the US Constitution or any law or treaty. Federal courts also hear disputes involving state governments or between citizens resident in different states. Cases falling within federal jurisdiction are heard before a federal district judge. Appeals can be made to the Circuit Court of Appeals and in certain cases to the US Supreme Court.
The civil and criminal courts
There’s a clear separation and distinction between civil courts, which settle disputes between people (such as property division after a divorce), and criminal courts that prosecute those who break the law. Crimes are categorised as minor offences (‘misdemeanours’) or serious violations of the law (‘felonies’). Misdemeanours include offences such as dropping litter, illegal parking or jay-walking, and are usually dealt with by a fine without a court appearance. Felonies, which include robbery and drug dealing, are tried in a court of law and those found guilty are generally sentenced to prison (jail). In many counties and cities, there are often eccentric local laws (usually relating to misdemeanours rather than felonies).
People who commit misdemeanours may be issued a summons (unsuspecting foreigners who violate local by-laws may be let off with a warning), while anyone committing a felony is arrested. An arrest almost always involves being ‘frisked’ for concealed weapons, handcuffed and read your rights. You must be advised of your constitutional (Miranda) rights when arrested. These include 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. You will be asked if you wish to waive your rights. This isn’t recommended, as any statement you make can then be used against you in a court of law.
It’s better to retain your rights and say nothing until you’ve spoken with a lawyer. At the police department, you’re charged and have the right to make one telephone call. This should be to your embassy or consulate, a lawyer or the local legal aid office, or (if necessary) to someone who will stand bail for you. You’re then put into a cell until your case comes before a judge, usually the same or next day, who releases you (if there’s no case to answer) or sets bail. Bail may be a cash sum or the equivalent property value. For minor offences, you may be released on your ‘personal recognisance’. In serious cases, a judge may oppose bail.
About lawyer referal services
In many areas, lawyer (or attorney) referral services are maintained by local (e.g. county) bar associations, whose members provide legal representation for a ‘reasonable’ fee. Before retaining a lawyer, ask exactly what legal representation costs, including fees for additional services such as medical experts, transcripts and court fees. Most importantly, hire a lawyer who’s a specialist and experienced in handling your type of case. If you cannot afford a lawyer and your case goes to court, a court-appointed lawyer represents you.
An unusual feature of the US legal system is plea bargaining, which involves the prosecution and the defence making a deal where the defendant agrees to plead guilty to a lesser charge, thus saving the court time and leading to a reduced sentence. This has made the US legal system something of a lottery, often with victims’ lives at stake, and in high profile cases (such as the O.J. Simpson case) a media circus. In the US, you’re normally considered guilty until proven innocent, at least in the eyes of the general public, and you may be tried and convicted by the media (there are virtually no reporting restrictions in the US), long before your trial comes to court.
Penalties are often harsh, particularly for less serious crimes, while professional and white-collar criminals who can afford the best defence often get off with a light sentence or a fine. Many American judges are elected, rather than appointed from qualified members of the legal profession, which often results in bad legal decisions and a lack of consistency in sentencing (at the lower court levels, corrupt judges aren’t unknown).
The litigation
Litigation is an American tradition and national sport, and every American has a right to his day in court (as well as to his 15 minutes of fame). There are 15 to 20 million civil suits a year, which leads to a huge backlog of cases in all states and even the Supreme Court. One of the most unusual aspects of US law is that lawyers are permitted to work on a contingency fee basis, whereby they accept cases on a ‘no-win, no-fee’ basis. If they win, their fee is as high as 50 per cent of any damages. If you must hire a lawyer on a non-contingency basis, the cost is usually prohibitive.
Many people believe this system helps pervert the cause of justice, as a lawyer’s only concern is winning a case, often irrespective of any ethical standards or the facts of the matter. The contingency-fee system is responsible for the proliferation of litigation cases, which lawyers are happy to pursue because of the absurdly high awards made by US courts.
The litigation system is primarily designed to make lawyers rich, while ensuring that almost everyone else ends up a loser. Not only must individuals have liability insurance to protect against being sued, but everyone from doctors to plumbers must have expensive malpractice insurance to protect themselves against litigious patients or customers. The whole US economy and legal system is underpinned by litigation (in which it seems half the population are directly employed and the other half are plaintiffs or defendants!).
Everyone (except lawyers) agrees that litigation is out of control and is seriously undermining the US’s competitiveness. Nobody, however, seems to know what to do about it. Meanwhile, lawyers spend their time dreaming up new and lucrative areas of litigation. (They even follow ambulances in an attempt to be first in line to represent accident victims, hence the term ‘ambulance chasers’!)
In many states, there are hair-raising product liability, personal liability and consequential loss laws. Some of these have limited liability, while others don’t, meaning that multiple warnings are printed on the most unlikely articles. In fact, most companies attempt to anticipate the most ridiculous and implausible events in order to protect themselves against litigation. Taken to ridiculous extremes a bottle of beer would have warnings about drinking and driving, choking on the stopper, breaking the glass and cutting yourself or someone else, swallowing broken glass, taking alcohol where it’s 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 fact, alcohol does carry a number of health warnings regarding cancer risk and other health problems, birth defects, driving and operating machinery. In Colorado, a barman must insure himself against being sued for serving someone who’s later involved in a car accident. 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!
If you’re the victim of an accident, you must never discuss your injuries with anyone connected with the other party and must never sign any documents they present to you without legal advice. Put the matter in the hands of an experienced litigation lawyer and let him handle everything. And in case you might forget, there are television adverts advising you of your rights to sue in accident situations, by attorneys claiming special competence at winning huge settlements.
Most companies and professionals are so frightened of the courts that many cases don’t go to trial, e.g. personal injury and medical malpractice cases, which, apart from the cost of losing, are bad for business. This adds to the proliferation of law suits, as it’s expensive to fight a legal battle even if you win, and litigants know that most companies are happy to settle out of court. If you’re in business and not being sued by at least 100 people, it’s usually a sign that you’re broke and therefore not worth suing. If someone sues you for your last dime, don’t take it personally – it’s simply business.
Not surprisingly there are a lot of lawyers in the US. The chief role of lawyers is to make themselves (very) rich and to make business as difficult as possible for everyone else. Never forget that lawyers are in business for themselves and nobody else and, although they may be representing you, their brief never strays far from the bottom line (i.e. how much they will be paid).
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).
This article is an extract from Living and Working in America. Click here to get a copy now.