Month: January 2022

The short and simple answer is that questions of law are for the judge to decide whereas questions of fact are for the jury to decide.  However, while technically correct, this short answer is incomplete.  Especially if you are charged with a crime like intoxicated driving.

One reason this explanation is incomplete is because it ignores the issue of jury nullification where judges are thought to be “judges of the law.” However this is a complicated and controversial topic, and beyond the scope of this article. To learn more about jury nullification, see; What is Jury Nullification and is it Lawful in Michigan?

What is a question of law and who decides these questions?

Questions of law relate to things such as what law applies to a particular case or controversy, how the law applies in a case, what evidence is and is not both relevant and/or admissible, and what instructions to give to a jury. In a criminal case involving chemical evidence, like a breath test in a drunk driving case, or ballistics evidence is a murder case, this evidence can be suppressed by the judge if an interpretation of existing law suggests that the evidence should not be admitted at trial. The validity of an arrest, and the admissibly of a confession, the admissibility of evidence, these are all legal questions. Traditionally, questions of law may only be resolved by a judge.

What is a question of fact, and who decides these questions?

A question of fact can only be resolved by a jury or by a judge on a bench trial, meaning a trial without a jury present. A typical question of law in a drunk driving case is whether the prosecutor has proved a person is intoxicated because the officer testifies that they failed one or more field sobriety tests, had slurred speech or bloodshot eyes. In a self-defense case where a murder has occurred a question of fact might be whether the accused had an honest and reasonable belief that there was imminent risk of death, serious bodily injury or sexual assault. To make either determination the jury are said to be “judges of the facts.”

Who decides if a jury will be empaneled to “decide fact questions?

As with any other crime in Michigan, if you are charged with intoxicated driving, then you have an absolute right to a jury trial.  You have this right regardless of whether the intoxication is allegedly caused by alcohol, marijuana, or some other drug. You have this right because both the Michigan and United States Constitutions indicate that a person accused of a crime has an absolute right to a trial by jury.

Because this right is yours and no one else’s, it will be up to you, not your lawyer, to decide if you want a trial in your case. However, in making this decision you will need to discuss your case with your lawyer, and then decide if you should plead guilty or whether a trial is in your best interest.  As part of this discussion, it may be helpful for you to understand the role a jury plays in a trial; and that role is to be the finders of fact. In a jury trial, this principle is set forth in standard Michigan Criminal Jury instruction 3.1 as follows:

Duties of Judge and Jury

(3) As jurors, you must decide what the facts of this case are. This is your job, and nobody else’s. You must think about all the evidence and then decide what each piece of evidence means and how important you think it is. This includes whether you believe what each of the witnesses said. What you decide about any fact in this case is final.

(4) It is my duty to instruct you on the law. You must take the law as I give it to you. If a lawyer says something different about the law, follow what I say. At various times, I have already given you some instructions about the law. You must take all my instructions together as the law you are to follow. You should not pay attention to some instructions and ignore others.

But what exactly is a “question of fact” and how does that differ from a question of law?  In a criminal case a question of fact might be “was a search warrant supported by probable cause” or, looking at the rules of evidence, “is the breath or blood test admissible?”  Another common legal issue might be “was the traffic stop lawful.”  These are all issues for a judge to decide prior to trial.  A jury does not have the authority or power to decide these legal issues, and therefore cannot, for example, dismiss a case because the police unlawfully stopped or arrested you.

However, in deciding these legal issues, judges often must make findings of fact, and this is because most issues are a combination of law and facts.  This is where things get more difficult to understand or explain. “[T]he appropriate methodology for distinguishing questions of fact from questions of law has been, to say the least, elusive.”[i]  Also, the Court has yet to arrive at “a rule or principle that will unerringly distinguish a factual finding from a legal conclusion.”[ii]

Therefore, certain legal issues, even once decided by a judge, can still be addressed with the jury.  For example, if prior to trial your lawyer argues that the breath test should be suppressed because the police didn’t observe you continuously for 15 minutes prior to the breath test, and the judge denies the motion, the judge is saying that your legal issue “goes to weight rather than admissibility.”  This means the judge has found that the breath test is admissible, but it’s up to the jury to decide what weight to give the test.  In this example, it means the jury must decide if the lack of 15-minute observation means the test is not reliable. Again, the Michigan Criminal Jury Instructions cover this issue in 15.5.

M Crim JI 15.5 Factors in Considering Operating While Intoxicated [OWI] and Operating While Visibly Impaired [OWVI]

As you consider the possible verdicts, you should think about the following:

(7) In considering the evidence and arriving at your verdict, you may give the test whatever weight you believe that it deserves. The results of a test are just one factor you may consider, along with all other evidence about the condition of the defendant at the time [he/she] was operating the motor vehicle.

Because it’s not always easy to understand the limits or extent of power of a jury in a criminal case it will be important for you to discuss any legal vs. factual issues that may exist in your case, the strengths and weaknesses of these issues, and how these issues may play out during a jury trial.  Armed with this information you will be able to make fully informed trial or no-trial decision.

“Law” is a system of rules designed to regulate behavior in both public and private society. Social and/or governmental institutions create and enforce these rules. Humans have been making laws for thousands of years. Early examples include ancient Egyptian law, Babylonian law, ancient Chinese law, and Old Testament law. There are many categories of law, including criminal law, civil law, and so on. Why does law matter at all? Here are ten reasons why:

#1 Laws set the standard for acceptable (and unacceptable) behaviors

At its most basic, the law is about mitigating conflict. When creating laws, societies reckon with what drives conflict. Some things – like murder and theft- are obvious and have been included in laws stretching back to ancient times. However, as time goes on and societies change, what’s considered acceptable changes, too. Legal systems adapt so they can provide clarity and context for unacceptable actions. They also offer guidelines for appropriate consequences.

#2 Laws provide access to justice

If it’s against the law to punch someone in the face, someone who gets punched can do something about it other than simply swinging back. In a perfect world, justice is equal. It doesn’t matter who got punched or who did the punching. What matters is that the law against punching was broken. Everyone in a society – and not just a privileged few – must have equal access to justice through the law.

#3 Laws keep everyone safe

Laws don’t only respond to injustices and harm. They work to prevent them. Food safety laws are a prime example. In the past, the food industry was horrendously unregulated. In the 18th and 19th centuries, American food producers went to extreme measures in their quest for profit. They watered down milk and stirred in materials like chalk for color. They mixed dirt into coffee, tea, and spices and added lead to beer and wine. In 1906, President Roosevelt and Congress passed the Pure Food and Drug Act, as well as the Meat Inspection Act. This marked the beginning of modern food safety and monitoring. Today, food safety laws protect the public from potentially-fatal food poisoning.

#4 Laws protect the most vulnerable in society

Many laws are specifically designed to protect certain groups of people. Laws like the Civil Rights Act (the United States) and the Sex Discrimination Act (Australia) make it illegal to discriminate. These types of laws protect what’s known as “negative rights,” which is the right to be free from something, like discrimination. Anyone can be discriminated against, but as history shows, certain people are more at risk. Laws designed to prevent discrimination based on race, sex, gender, religion, and more protect these groups and give them better access to justice.

#5 The process of creating laws encourages civil and political engagement

As societies change, laws must change, too. Advancements in technology are a prime example of why. In recent times, revenge porn has become a major issue. According to one study, around 10 million Americans have had explicit photos shared without consent. While there are state laws, there is no federal law. In Australia, an electronic petition called upon the A.C.T. Legislative Assembly to criminalize revenge porn. The Assembly listened. This is a great example of people engaging with the law-making process and making law matter as issues evolve.

#6 Laws offers people a variety of career options

As a career, law is varied and versatile. Because there are so many different areas of law, there are hundreds of job options. Lawyers can specialize in everything from contracts to immigration to criminal law. A person can also become a professor of law, while there are also jobs for paralegals, consultants, and researchers. The legal system is big, so there is room for all kinds of skills and expertise.

#7 Laws are important to maintain peace

Earlier in this article, we touched on how law is essentially about mitigating conflict. That makes law essential to maintaining peace. This is because injustice fuels conflict. If destructive behaviors are allowed to flourish without remedy, people will suffer and become dissatisfied with their government. If justice is applied unequally, this also fans the flames of conflict. For the sake of peace, societies need to strengthen their rule of law and ensure that it’s fair.

#8 Laws are important for social progress

We’ve discussed how legal systems should adapt and evolve with the times. If laws remained stagnant, so would societies. Throughout history, law has been employed as a tool for social change. It was laws that made slavery, segregation, and apartheid illegal. Laws prevent people from getting fired from their jobs because of who they marry or because of a disability. The concept of law as a mechanism for social change is complicated because if the majority of a community doesn’t agree with the law, it’s likely that the law won’t be enforced. However, having a law on the books gives people more power than if the law didn’t exist at all. It’s an important step (though not necessarily the final step) to real social change.

#9 Laws make human rights a reality

Supreme Court Justice Sonia Sotomayor once said, “I firmly believe in the rule of law as the foundation for all our basic rights.” Basic rights are the human rights that everyone is entitled to. This includes the right to life, the right to marry, the right to be free from discrimination, and more. These are listed in the Universal Declaration of Human Rights, but that document is not legally binding. To make human rights a reality, they have to be protected through laws. Without law, human rights would be an abstract concept. If you would like to learn more about human rights, consider studying a masters.

#10 Laws are not always good for society

The fact that law can be used to harm is the last reason why it’s so important. Laws are not always beneficial to society or they’re only beneficial to a select group. Governments often use laws to increase their power and punish critics. Laws can also be problematic when they fail to address the root causes of a problem and even end up making it worse. Fines, which are meant to encourage people to follow laws, can add up to the point of putting people in debt and criminalizing poverty. The war on drugs is another key example of how laws can hurt people. Instead of treating drug addiction as a public health issue, laws have turned it into a criminal one. In these cases, laws end up violating human rights instead of protecting them.Share

Getting along with colleagues can sometimes be easier said than done. While everyone’s job is focused on the practice of law, personal differences sometimes outnumber similarities, and disparities in temperament, work ethic, efficiency, and general work habits can cause friction among colleagues and undermine the success of the law firm.

Although you can’t – and shouldn’t try to – be everyone’s friend, with some effort, it is possible to have a positive work relationship with all members of your legal team. Here are some ways to help facilitate a collaborative law firm work environment:

Make a good first impression

If you are starting a new job, focus on getting off to a good start with coworkers. Everyone has had a “first day,” and it will take time to get to know your coworkers, but a good first impression is the best way to start your relationship. Be friendly and show that you are willing to learn.

Research from Psychology Today discusses “Predictive Outcome Value Theory,” the idea that:

“During an initial conversation, we form a positive or negative judgment about forming a future relationship with a person. The theory argues, and research supports, that if we form positive judgments, then we will communicate more with this person and seek more information. Conversely, if we form a negative judgment, we will restrict our communication.”

This first impression can plant the seed that will hopefully blossom into a collaborative work environment.

Adopt a team mentality

Working at a law firm involves being part of a team. Every role is essential, from the senior partner to the support staff. Make an effort to get along with all employees, and avoid treating one member differently than another according to rank or supposed level of importance.

Be a good listener

Ever wonder how balanced your conversations are? Do others enjoy talking with you or do they feel overshadowed? Try to spend one-third of conversations speaking and two-thirds listening. Remember that listening is an active practice that involves focusing intently on what is being said. Train yourself to pay attention to what your colleague is saying without getting distracted.

Being a good listener at work can give you a boost in productivity, fewer misunderstandings, better progress toward goals, and stronger relationships with your coworkers.

Avoid office politics

Office gossip, taking sides in a dispute and complaining about others happen to some extent in any place where people are working closely together for long periods of time. But you can avoid getting tangled in office politics, and keep from being the person who instigates. Try changing the subject or focusing on the positive if gossip comes up. Avoid sharing personal or job-related issues with colleagues who may not keep the information to themselves. If all else fails, claim a deadline and just walk away.

Welcome diversity

Not everyone looks or thinks the way you do—and that’s a good thing. Today’s law firms employ people who are diverse in background, race, religion, ethnicity, gender, and age. These aspects should always be celebrated and respected, and every employee treated with dignity, consideration, and respect.

According to Entrepreneur, diversity benefits the workplace by driving innovation, increasing creativity, and improving access to the market. When firms can access a variety of ideas and experiences, they are better equipped to understand and anticipate their clients.

Have a can-do attitude

According to Canadian Lawyer Magazine, “Attitude is everything. Adopting the right attitude can convert a negative stress into a positive one.”

During stressful times at a law firm, you can help reduce friction among coworkers, by demonstrating a willingness to work with everyone and anyone to get the job done. Offer your assistance whenever you can, and show that no task is beneath you.

Aim for harmony at work

Discord at work is, unfortunately, all too prevalent. Discourage negative workplace interactions and do your part to build a harmonious relationship with your coworkers. Show that you are a team player, that you are not interested in generating strife or contributing to bad feelings. Keep in mind that little things, such as a genuine thank you, can go a long way to creating comfort, rapport, and trust in the workplace.