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Sunday, June 12, 2016

The Law vs. Procedure and Civil vs. Criminal: What Genealogists Should Know About Court Cases -- Part One

Graphics, Court, Justice, Design, Animation, 3D

[Note: some of the content of this post repeats topics I have covered in previous posts. But repetition is at the basis of real learning]

Years ago, most of the population of the United States got its knowledge of the laws and court system from watching TV shows like Dragnet and Perry Mason. Today, the same thing is happening but the shows have changed to NCIS and CSI. I do not see this as an advance and the knowledge of our system of laws and courts is probably less today than ever before. Genealogists are not more knowledgeable on the average, than the general population. After explaining the law to my clients for so many years, I think I pretty well have an idea of this particular state of affairs.

Most of the interest genealogists have in the law seems to be focused on copyright and privacy, leaving a broader understanding only to those with a legal background or who have made a special effort to research and understand court records. Fortunately, no has to understand law at the level required to pass a bar examination to be a good legal researcher, but it does help to know some basic concepts and a substantial amount of jargon.

My ancestors seemed to end up in court regularly and it is possible that your ancestors may have had their own brush with the legal system. Research into court records may shed valuable light on serious and complex family dilemmas or add more layers of mystery to the historical past, but in either case, court records are sometimes the only way to resolve some types of historical research questions. A few of the many categories of issues that can only be resolved by research into the underlying court cases include the following:
  • adoptions
  • divorces
  • child custody
  • will contests
  • probate
  • land disputes
  • naturalization
  • criminal convictions
  • family feuds 
This list could go on and on. I have written on the subject quite a few times, but find that repetition is good for learning. I have also decided to move on from focusing on the "beginners" level and deal with issues that requires a little more study and understanding. But with all things having to do with the law and courts, there are still some basic concepts that must be understood to benefit from doing the research. 

Fundamentally, law cases and records have not been preserved for the benefit of genealogists. Court records are available mainly because our entire English-based legal system depends on having records that can go back over a thousand years. So genealogical researchers have to depend on researching records that are not necessarily easy to access without a connection to the legal system. For example, today there are two major online suppliers of huge databases of legal information and cases; and These are both very expensive subscription services that require formal training to adequately use. In my own legal practice, we had regular training from Westlaw representatives. Neither of these services has any kind of entry level access. In some limited cases, universities and colleges with law schools may have academic versions of these databases, but access is usually limited to those associated with the facility such as students, faculty and staff. Larger libraries may also have some limited access to these hugely useful databases. 

As with any large online database, superficial searching is usually frustrating and unproductive. Legal research is qualitatively different than most academic research and legal research skills are not directly useful to genealogists. You might say that research is research, but when it comes to legal research as done by attorneys and judges, the objectives of the research are vastly different than those of genealogists. Court cases may preserve exactly the genealogical information you are searching for or may allude to the questions you are asking and frustratingly omit the details the genealogist needs. 

Fundamentally, we need to start somewhere and understanding some basic concepts of the law in the United States is the first crucial step. 

There are two basically different aspects to our legal system: criminal law and civil law. The distinction, as I have written about recently, is easily stated but hard to understand. Criminal law deals with violations of criminal statutes where the penalties involve incarceration or penalties such as fines and forfeiture. Civil law is everything else. So let's say you are driving down the road and inadvertently exceed the speed limit. You are pulled over by a police officer and given a traffic ticket for speeding. Is this a criminal or civil matter? You have to pay a fine, so it would seem to be a criminal matter. If you want to fight the ticket, you have to go to "traffic court" and will need to deal with a magistrate or judge. Whether or not a routine traffic stop involves a criminal action might seem to be an easily decided issue. But then there are attorneys and judges involved. Nothing about the law in the United States is simple. If you want to get some idea of the complexity, start with Wikipedia: Traffic stop and then start reading the articles cited in the footnotes. 

So, there is a "gray area" between what is clearly criminal law and what is clearly outside of the criminal legal system. As a matter of fact, criminal law only makes up a very small, but significant, area of the law in general. Percentage-wise, criminal actions constitute a relatively small minority of all legal actions in the United States but they probably get the most attention and publicity. Additionally, the newspapers are probably a good place to find notice of a criminal case, but civil actions may merit little or no notice. For example, in our society, divorces go mostly unnoticed by the news media (except for celebrities) until one of the spouses shoots the other spouse.

From a genealogical research standpoint, it is important to know that criminal cases and civil cases are sometimes physically separated from each other and filed and maintained in entirely different places in the court system. They are usually numbered and designated differently than civil cases. Also, criminal cases have their own procedure and jargon or terminology.

Now a brief introduction to the difference between legal procedure and the law. The law is what courts use to decide cases. Procedure is what you do in court to get your case decided. My opinion is that in the United States, the legal profession deals with procedure 90 percent of the time and with the law about 10 percent. I am guessing, but my impression is that many lawyers can spend three years in law school and don't learn the difference between procedure and the law until they actually begin their practice of their profession. My second guess is that some attorney never really understand court procedures for the simple reason that they never go to court. The basic law in the United States changes rather slowly over time. However, court procedures change frequently. If you leave the practice of law for even a year, you might have to re-learn a whole bunch of procedural changes.

Hmm. Now it is time to get into the details. Stay tuned.

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