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Wednesday, June 22, 2016

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

Hammer, Horizontal, Court, Justice, Right, Law

First year law students (and even many practicing lawyers) grapple with the concept of the differences between the law and procedure. Genealogists who are not lawyers are similarly lost when it comes to understanding the distinction. Non-lawyers are also stymied by the distinction between criminal and civil law. Simple explanations of the differences do not adequately convey the differences. Court cases and legal proceedings are an extremely valuable source of genealogical research but these records are not usually maintained or available through traditional channels of libraries and archives. Most legal and court documents are maintained in court houses and law libraries that are completely separate from the facilities normally used by genealogists.

Genealogists who talk about "research trips" commonly refer to "searching courthouse records." But my years of doing legal research in law libraries has shown me that a courthouse search, even if involving many days, would likely miss much of the information available to lawyers and court personnel. Even today, with the vast resources of the Internet, finding one particular case can be a real challenge. One of my daughters was recently doing research here in Utah for a book she is writing and was looking for a particular court case that had been referenced in other publications. Even after a diligent effort, we could not locate the original court record.

The idea of this and other series of posts I am currently writing is to explore some of the basic concepts of the law to assist genealogists in their research. In some cases, I may repeat the explanations is several different ways to try and make the subjects as understandable as possible.

First, law and procedure. In the United States, the law is an amalgamation of statutes and regulations created at all the levels of government and the decisions of all the judges in all the courts in American history and even dating back to ancient times in England and beyond. I have seen references, for example, to Hammurabi's Code from 1754 BC made in legal arguments. Although there are huge online websites containing vast collections of legal cases and other documents likely of interest to genealogists, these websites are extremely expensive and not generally available for casual research.

When lawyers speak of the "Law," they are generally referring to all of the statutes, cases decisions and other rulings by courts and government administrative organizations that define the relationships between people living within the United States. Only a relatively small amount of this information has any relevance to genealogical research. Genealogical research is more focused on the records kept by the courts and other agencies in deciding legal controversies.

In the past, there were books of compilations of both the statutory law and the decisions of all of the courts that recorded such decisions. These books came out in updated series. The federal statutes were contained in a huge set of books called the United States Code or USC. An annotated set of these statutes with cases citations to lawsuits involving each statute were contained in a set of books called the United States Code Annotated or USCA. Here are the citations to these two works.

United States, United States, Congress, House, Committee on the Judiciary, and West Publishing Company. United States Code. Washington: U.S. Govt. Print. Off., 1971.
United States, West Group, West Publishing Company, Edward Thompson Company, and United States. United States Code Annotated. St. Paul: West Group, 1927.

These sets of books have been outmoded by the online versions. The case law of the United States is contained in the "Reporter system." West Publishing has a set of all the court decisions on both the federal and state levels. It would take a substantially sized library to have a complete set of all the federal and state reports and the statutory volumes. The cost of paying to update all these books is substantial. My last law firm in Mesa got rid of almost all these books about twenty years ago. However, copies of the books are still maintained in large law libraries around the country. The complete reporter system of state and federal cases runs into thousands of volumes.

The challenge, of course, if finding anything at all of genealogical significance in these huge libraries. Some of this accumulation of U.S. law has made its way online and is searchable. For example, if I wanted to know about a lawsuit involving my Great-grandfather Henry Martin Tanner, I could simply do a Google search for his name, with variations, and add some or all of the words "court, judge, jury, decision, verdict," and so forth. By doing a general search and adding the term "Arizona," I found a number of references to court cases involving my ancestor.

Legal procedure, on the other hand, deals with the rules of the courts and other government agencies. The procedural rules are published every year as they are revised. West Publishing has a Federal Procedural Book and one for each of the states and territories. Procedural rules deal with how a case is filed and proceeds through the court system. This is generally the area of court cases that causes the genealogical researcher the most problems. Without a general knowledge of the court procedures at the time any such action was maintained, the outcome of the action may be obscured by the procedures involved. Genealogical researchers may completely miss important facts or even important documents because of a lack of understanding of the court procedures of the time.

One good example of this involves probate cases. Unlike some other types of court actions, the time limits for various procedures involving the probate of an ancestor's estate can take many years to complete. A probate action could be also be filed years after the ancestor died. There are very few probate case reports or files that have made their way into the online genealogical database programs and if those cases are indexed, it is not likely that every mention of every person involved in the probate was included in the index.

There are procedural rules that govern cases generally, but there are also specific rules that apply only to very specific types of cases. For example, the rules of court procedure may have some general provisions about filing any kind of lawsuit, but there will also likely be specialized rules that apply to one type of court or to one type of court action. So, for example, there are Rules of Procedure but there are likely also Rules of Probate Procedure.

My legal experience gives me only a slight advantage when it comes to knowing and applying the rules of procedure for any given court in any given time period. I have to do the research just like any non-lawyer would have to do.

I will keep writing on this topic and get into the issue of civil vs. criminal law.

Here is the previous post in this series:

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