The American judicial system

May 1st, 2012

Law Society of South Africa AGM 2012

The Law Society of South Africa’s annual general meeting took place from 26 to 27 March at Emperors Palace in Johannesburg. On the agenda were the Legal Practice Bill, court-based mediation, business rescue, corruption and the attorneys’ profession and social media.

By Mapula Sedutla

American attorney Leroy Wilson Jr was the guest speaker at the AGM. In his speech, he provided an outline of the court system in the United States (US) and the state of New York in particular.

The two justice systems

Mr Wilson Jr said that America had two court systems, namely the federal and state systems. He said that, based on his experience, federal courts, with some exceptions, tended to manage cases better. The US has 50 state jurisdictions and most US law is state law, with 90% of cases in the US being heard in state courts. Each state has different applicable laws and, as a result, a lawyer must be admitted in a particular state in order to practise there.

Federal justice system

Federal courts are established by the US Constitution, which provides for Article I and Article III courts. Article I courts are specialised courts, while Article III courts have plenary jurisdiction, Mr Wilson Jr said.

District courts are the courts of first instance of the federal court system. Mr Wilson Jr said that when cases are filed in district courts the attorney involved will state whether the case is a normal one, a complex one or whether the case should be expedited. It is at this stage that case management begins in US courts.

Mr Wilson Jr said that for a case to be heard in a federal court it must fall under one of its three types of jurisdiction, namely subject matter jurisdiction (for subject matters such as the US Constitution and laws, treaties, bankruptcy, customs, patent law, admiralty and international trade), party jurisdiction (if the party involved is the federal government, a state, an ambassador, a public official or a foreign state) and diversity jurisdiction (matters between citizens of different states and claims of amounts larger than $ 75 000).

In federal courts 12% of judges are African-American, 8% are Hispanic, 1% are Asian-American and 79% are Caucasian, while 29% are female.

The New York justice system

Mr Wilson Jr said that the state of New York had 62 different counties, each with a county court that handles predominately criminal matters and some civil matters. The New York State Supreme Court has general original and appellate jurisdiction. In civil matters, the Supreme Court can hear almost any claim involving any amount; however, a case may be referred to the lower courts if the jurisdictional amount falls within their jurisdiction.

The family court has jurisdiction over family matters, except for certain matters pertaining to divorce proceedings, adoptions, relationships between family members and conciliation of spouses. Mr Wilson Jr said that to become a family court judge one has to be admitted to practise in the state of New York for ten years. A family court judge can serve as a judge until the end of the year in which he reaches the age of 70, the mandatory retirement age. He can, however, be certified for an additional term up to the age of 76. The term of office of a family court judge is ten years, with a salary of $ 136 700 per year.

The President nominates candidate judges of the Supreme Court and the senate votes to confirm this – a simple majority is required for judges to be elected. Mr Wilson Jr said that judges of the Supreme Court were elected by judicial district. They have to be admitted to practise for ten years before they can become a judge; they serve until the age of 70 and may be certified for additional terms. The term of office for Supreme Court judges is 14 years, with a salary of $ 136 700 per year. The appeals heard in the Supreme Court appellate division are those to which an appeal is authorised from the Supreme Court. The selection process for justices of the appellate division is by designation of the governor from among the Supreme Court judges of the state of New York. The Presiding Judge and the majority of associate judges have to be residents of the department where the designation is made. The annual salary of the Presiding Judge is $ 147 600 and associate judges earn $ 144 000 per year.

How to become a lawyer

Mr Wilson Jr said that to become a lawyer in the US, a person would usually need a four-year undergraduate degree, followed by attendance at a law school for a further three years. The curriculum in most law schools is divided into two parts, a core part and an elective part. For one to receive Bar accreditation and admission to the State Bar, he would have to be a graduate from an accredited law school. In addition, 43 states require continuing legal education.

The jury system and economic empowerment

Mr Wilson Jr was asked whether the jury system was a weakness in the US judicial system. He said that the law in each country developed according to local customs and, even though countries learn from each other, what is suitable in one country may not be suitable in another. He said that he did not believe that the jury system was a weakness in the US judicial system as a jury of one’s peers, which consists of people from his community, will have a better sense of justice than one person or even three people.

Mr Wilson Jr was also asked what government programmes had been implemented in the US that were similar to South Africa’s black economic empowerment programmes that influenced briefing patterns and the advancement of African-American practitioners. Mr Wilson Jr said that economic empowerment in the US was implemented through legislation. He said that in 1961 President John F Kennedy issued Executive Order 10925, which required government contractors to use affirmative action. In 1965 President Lyndon B Johnson signed Executive Order 11246, the underlying philosophy of which was that government would establish and determine the terms and conditions under which to do business with contractors.

Mapula Sedutla,

This article was first published in De Rebus in 2012 (May) DR 13.