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Members of the Judicial System

Who are the primary players in the judicial system?

The legal system has a number of diverse contributors. Each plays a unique role is a quite intricate system. The primary players discussed in this chapter include:

• Judges

• Private and Public Lawyers (and their staff)

• Jurors

• Other System Members

These individuals are primary members of the judicial system based upon an individual’s Constitutional rights. The 6th and 7th Amendments grant an individual charged with a crime or subject to a civil penalty of $75 or more the right to trial by a jury of her peers. Articles I and III account for the authority to create a federal court system under the direction of judicial officers or judges. Due Process rights allow an individual the right to representation in a judicial proceeding. The distinct roles played by judges, jurors, and attorneys are discussed individually in separate sections.

What types of judges are part of the judiciary?

There are many types of judges in the legal system.

Federal System

• Federal District Court Judges – Judges for the federal trial court.

• Federal Magistrate Judges – Special federal court judges who hear certain pre-trial and post-trial matters.

• Federal Circuit Court Judges – Appellate judges on the appellate courts for all of the district courts within its geographic jurisdiction (judicial circuit).

• US Supreme Court Justices – Justices (judges) who sit on the highest appellate court in the US legal system.

• Judges for Special Article I Courts:

⁃ Federal Administrative Judges – Judges that preside over the various legislative (administrative) courts established by congress, such as the Tax Court.

⁃ Specialty Court Judges – Judges that preside over the various special courts designed by Congress under Congress, such as bankruptcy courts and courts-martial.

State Judicial System

• Local Municipal Court Judges – Judges presiding over municipal hearings to enforce city or municipal ordinances.

• State Magistrate Judges – Specialty court judges who preside over county or small claims courts. They also serve the function of granting warrants, holding probable cause hearings, and presiding over initial appearances.

• Intermediate State Court Trial Judges – Judges who preside over special trial courts of limited jurisdiction.

• Superior Court Judges – Judges who preside over trial courts of general jurisdiction.

• State Appellate Court Judges – Appellate judges who hear appeals from trial courts within its geographic jurisdiction.

• State Supreme Court Justices – Appellate judges (Justices) sitting in the highest appellate court in the state.

• State Administrative Judges – Judges presiding over the administrative agencies created by the state legislature.

• Specialty Court Judges – Judges presiding over special courts designated by the state constitution or legislature. Special court judges may include: family court judges, probate court judges, and masters in equity.

Some jurisdictions may have special names, designations, qualifications, etc., for judges presiding over a specific court.

Discussion: How do you feel about the distinct roles of judges in different courts? Do you think should be distinct qualifications (education and training) for judges presiding over a particular court?

Practice Question: Given what you known about the federal and state legal systems, what are the similarities and differences between the types of judges in the state and federal system?

The trial judge plays the following roles in the judicial process:

Applying Procedural Law – The judge marshals the proceeding and presentation of evidence in accordance with procedural law. In this capacity, she observes and applies constitutional limitations and guarantees of due process of law. This includes applying procedural law, such as the admission of evidence at trial.

Applying Substantive Law – The judge identifies applicable rules of law to apply in each case. In essence, the judge tells the jury what law to apply when trying the defendant’s conduct. This is commonly known as instructing or “charging the jury”.

Role as Fact-Finder – In some cases, the parties are not entitled to a jury trial. As such, the trial judge may also serve as the finder of fact (the typical role of the jury). A judge often assumes this role in lower-level courts or when the defendant requests trial by judge alone. For example, the judge assumes the role of fact finder in traffic or small claims courts.

Applying Equity – Equity is the inherent power of a judge to act in accordance with principles of fairness or justice when the law does not provide an adequate remedy through money damages. Equity allows the judge to order parties to take actions to achieve a fair and just result.

To give a practical explanation, the trial judge serves a role similar to a referee in a sports game.

Discussion: Some analogies compare the trial judge to a referee in a sporting match. Why do you think this is an adequate or inadequate comparison? Why do you think that some defendants will request that a judge serve as fact finder in a given case?

Practice Question: Lisa is a superior court judge in Alabama. In a criminal trial, the defendant requests a trial by judge alone and agrees to forego her right to a jury trial. Lisa is concerned that serving as fact-finder in the case would cause issues for appeal and denies the defendant’s request. During the trial, the defense counsel makes a motion to exclude from evidence a confession signed by the defendant. Lisa overrules the motion and allows introduction of the confession to the jury. At the end of the presentation of evidence, Lisa rejects the defense counsel’s proposed jury instruction and delivers to the jury her own explanation of the substantive law to be applied to the facts. Explain how these activities fit within the core functions of a trial court judge.


What are the duties of appellate court judges or justices?

The duties of an appellate court judge are distinct from those of a trial judge. Specifically, the appellate court serves as legal reviewer of trial court decisions. It does not generally make determinations about the facts of the case, except in special circumstances (known as “de novo review”); rather, the court reviews the case based on the facts as found by the trial court and present in the trial record. That is, the appellate court accepts the juries findings of fact as true. As an example, if the jury finds that an individual was driving the car that hit the plaintiff, the appellate court must assume that is true. The appellate court judges review the case for legal inadequacy and serve the following functions.

Application of the Law (Procedural and Substantive)

• In reviewing a case, the appellate judges determine if the law was applied correctly to the case. This process includes reviewing the application of procedural and substantive law. If the procedural law is found to have been applied incorrectly, the judges look to determine if the error was prejudicial to the losing party. If so, the case may be overturned in whole or in part and remanded to the trial court for further proceedings. If the substantive law is applied incorrectly, the case is generally overturned and remanded. The court’s determination of whether the substantive law was applied correctly is generally based on the plain meaning of the statute and legislative intent in passing the statute. In making this assessment, the appellate judge will look at the legislative notes, prior appellate court opinions, or other indications of how and why the legislature passed the law. If the law, as applied, does not comply with the legislature’s intent, the appellate court has the ability to overturn the decision (verdict) and remand the case for re-trial. The court may overturn the entire case or just the charge or cause of action negatively affected by the erroneous application of law.

Discussion: Do you think a procedural error justifies overturning a case? How prejudicial do you believe a procedural error must be to justify overturning the case? Do you think that overturning part of a jury finding and upholding another part is fair and just? Should the case always be overturned in the event of a substantive error? Do you feel that the entire case should be overturned if the court finds a substantive error?

Practice Question: Lisa is a superior court judge in Alabama. In a criminal trial, the Defendant request for a trial by judge alone and agrees to forego his right to a jury trial. Lisa is concerned that serving as fact-finder in the case would cause issues for appeal and denies the Defendant’s request. During the criminal trial, defense counsel makes a motion to exclude from evidence a confession signed by the defendant. Lisa overrules the motion and allows introduction of the confession to the jury at trial. At the end of presentation of evidence, Lisa instructs rejects defense counsel’s proposed jury instruction and delivers to the jury her own explanation of the substantive law to be applied in the case. On appeal, what legal issues will the appellate court review in this situation?

Constitutionality of the Law

• Appellate judges are responsible for determining whether the law or government action, as applied, is consistent with and does not violate the Constitution. That is, they are charged with the power of interpreting laws and determining if the law is unconstitutional. Any law or government action that violates the constitutional rights of an individual is void and unenforceable. Additionally, if the law in question violates a superior law it will receive a limiting interpretation or be overturned entirely. Appellate judges’ power to overturn the law is a critical piece of the checks and balances system. As a result, the legislators who passed the law must start over if they wish to pass another law to achieve their intended purpose.

Discussion: What do you think of the role of the Supreme Court in reviewing the major cases and determining whether the law involved is constitutional. For example, consider The Affordable Care Act, Same-Sex marriage, Immigration Laws, Marijuana laws, etc. What has been or will be the role of the US Supreme Court in evaluating this law?

Practice Question: The US Congress passes a law requiring all individuals in the United States to apply for a driver’s license, regardless of whether the individual ever intends to drive a vehicle. Applying for the license takes time and costs money. Any individual who fails to apply for the license will face an income tax penalty. Proceeds from these penalties will be used to fund federal highway construction projects. Helen is not happy about the new law and files a federal court action against the director of the Federal Highway Administration (FHWA). The trial court grants summary judgment to the FWHA Commissioner; so, Helen appeals to the Circuit Court of Appeals. In this scenario, what legal issues will the appellate court review?

Developing the Common Law

• Appellate judges render decisions when reviewing a case. Along with these decisions, the court writes an opinion on how the law was or should have been applied in the case. The appellate judge’s written opinion ultimately becomes part of the common law and serves as precedent for lower judges to apply in future cases. In this way, appellate judges are like legislators – interpreting and creating the manner in which the law should be applied.

Discussion: The power of judicial review, arguably, makes the judiciary the most powerful branch of Government. How do you feel about the ability of the judiciary to develop law through the interpretation of the law as applied in a given case? Can you think of an example where judicial review overturned a lower court’s decision?

Practice Question: Adam lives in rural Louisiana. One day, he navigates his small fishing boat through a series of small creeks that eventually open up to a lake. While fishing on the lake, the local game warden approaches Adam and issues him a citation. Adam is now facing charges for trespass for unlawful entrance on a state-controlled lake and illegal fishing. The citation is based upon a Louisiana statute authorizing state-controlled wildlife areas and the restriction of those areas to public use. Adam, a savvy business student, begins researching the state statute and its legal history. He finds a state appellate court opinion stating that the Louisiana statute cannot lawfully prohibit access to the water resources that are accessible by a navigable waterway. Navigable waterways are controlled by federal law, and any state law in conflict is preempted. If Adam presents this case to the trial court, would it potentially have an effect upon the outcome of the trial? Why or why not?

What do attorneys do?

Areas of Practice – There are dozens of areas of law practice that are largely, if not completely, separate and unrelated. Very few attorneys are experts in more than a couple of legal areas. Below are some common areas of legal practice: Criminal Law, Civil Action (Tort Lawyers), Insurance Litigation, Secured Transactions, Administrative law, Contract law, Consumer Law, International shipping and trade, Immigration law, Intellectual Property law, Antitrust law, Securities law, Banking and Finance Law, Corporate Governments, Environmental law, Land and Property, Labor and Employment, Social Security & Disability, Elder Law, Estate Planning, Worker’s Compensation, Family law, Human Rights, Election law, Sports law, etc.

Duties to Clients – Attorneys are counselors, advocates, and public servants. More specifically, they are fiduciaries and advocates for their clients’ interests and officers of the court. The attorney’s oath of office subjects the attorney to a professional code of ethics that governs all of her professional practice activities. The attorney is generally trained to navigate the legal system. This may involve working within the courtroom. Below are some universal truths about lawyers and those who practice in the courtroom.

Fiduciaries – Attorneys have a duty of trust, confidentiality, and loyalty to their client. This means that, absent certain exceptions, an attorney cannot disclose confidences related to her by a client. This relationship requires a high degree of professional and ethical conduct. Lawyers are subject to sanction (or even disbarment) for failure to live up to these high ethical standards.

Court Representation – Individuals may represent themselves or hire a licensed attorney to counsel and represent them before the court. Attorneys must be licensed by and admitted to a court’s bar to represent clients before that body.

Officers of the Court – Attorneys are officers of the court and are required to seek justice and to try cases on the merits only. While attorneys represent their clients, they have ethical obligations to the court to promote and seek justice. The system is not designed to be a battle of wits, but rather a presentation of evidence for a just decision.

Not all attorneys practice law in a courtroom; however, these standards apply equally to attorneys who provide legal services outside of the courtroom.

Discussion: Do you think that the majority of the public is aware of all of the specialties that exist in legal practice? Why do you think that there are so many specialty areas of legal practice? Do all of these specialties call into question the professional competence of general practitioners? Do you find any conflict of interest for attorneys who are expected to be officers of the court as well as zealous advocates for their clients?

Practice Question: Grace has her own legal practice where represents corporations in contract law matters. She primarily works with investment banks to develop and memorialize corporate funding arrangements. One of her biggest clients, ABC, Inc., approaches her about suing a competitor, 123, Inc., in state court for anti-competitive behavior. Grace has very little experience in this area, but she decides to undertake some due diligence in order to adequately advise the client on the situation. From her investigation, she learns that there are really no grounds for a lawsuit against 123. More troubling, however, is Grace learns that ABC has been involved in an on-going scheme that could be considered fraudulent to its shareholders. Grace brings this matter to the attention of the CEO of ABC. The CEO tells her to ignore the shareholder matters and, if she wants to continue representing ABC in other matters, to initiate litigation against 123 immediately. What are the duties and ethical considerations that constrain Grace in this situation?

What is the role of “Jurors” in the judicial system?

The 6th and 7th Amendments to the Constitution guarantee the right to trial by jury in criminal and civil cases, with certain exceptions. The right to trial by a jury varies between criminal and civil cases.

Civil Cases – The 6th and 7th Amendments do not guarantee a right to a jury trial in every trial. In civil cases, the right to a jury trial is linked to a dollar amount in controversy between the parties. States may have courts of special jurisdiction that have an amount-in controversy limit and do not allow for a jury trial. If the parties want a jury trial, however, either party has the option of filing the case in a superior court of general jurisdiction, where a jury trial is an option. In this way, each party’s access to a jury trial is not limited. Parties may also enter into contracts that forgo the right to a jury trial in the event of dispute.

Criminal Cases – Due process requires that criminal cases in which a party faces potential imprisonment afford her a jury trial. Very minor criminal infractions that involve a fine and no potential for incarceration often do not allow for a jury trial. For example, a citation for speeding may not entitle a party to a jury trial.

In criminal cases the defendant may elect to forgo a jury trial and have the judge act as fact finder. In civil cases, if the right to jury trial exists, both parties must consent to forgo the right to a jury trial.

Discussion: Do you believe that every civil and criminal case should be entitled to a jury trial? Is there a good justification for tying the right to a jury trial to an amount in controversy or incarceration?

Practice Question: Carla has a dispute with her electrician, Dan, over her bill for electrical work. Carla claims that Dan quoted a price of $300 for the work and then increased the price to $750 after the work was completed. She does not want to pay the higher amount. Dan ultimately sues Carla in the local magistrate’s court, which does not allow for jury trials. What are Carla’s options in this situation?

How many jurors and juror votes are required to find someone guilty in a criminal case or liable in a civil case?

The number of jurors and the number of juror votes required for a finding of guilt or civil liability vary depending upon the type of case (criminal or civil) and the court (state or federal).

Number of Jurors – Not all court cases involve a jury trial. When a jury trial is warranted, the number of jurors required is known as “petit jury”. Rule 48 of FRCP states that, a “Court shall seat a jury of not fewer than six and not more than twelve members.” Most cases do not have 12 jurors.

Note: Most states require that all murder cases have 12 jurors.

Unanimous Vote – In criminal cases, most courts (state and federal) require unanimous vote by the jury to find the defendant guilty. Currently, courts in only two states allow for conviction of a defendant via non-unanimous voting, and those are generally reserved for minor charges.

Note: Federal military courts-martial, a special form of Article I federal court that enforces criminal actions, allows for a non-unanimous finding of guilty in certain cases.

Majority Vote – In civil cases, many states have eliminated the unanimity requirement to find a defendant liable. This means that many states allow for a finding of civil liability with a simple majority vote by jurors. These statutes may require a minimum number of jurors on the jury.

Jury Findings – In general, juries do not need to give reasons for their votes in a civil or criminal case. The jury will provide a simple verdict (guilty/not guilty or liable/not liable) and does not have to explain its reasoning in the matter. Some special verdicts, however, require jurors to answer a series of questions to ascertain their understanding of the law and procedure. Further, the jury may have to indicate whether they find aggravating circumstances, which may be a legal requirement for a certain finding. Even in these cases, the juror does not have to explain why they find facts to be convincing or no.

As previously stated, the specific rules applicable to jurors, juror votes, and findings will vary slightly depending upon the case and the court system.

Discussion: How do you feel about the requirement in civil cases that a majority of jurors find liability? Are there good arguments for or against requiring unanimous jury findings in civil trials? What do you think about only requiring six jurors when determining guilt or innocence in criminal trial (other than capital trials)? Should jurors be required to give their reasoning behind finding guilt or innocence?

Practice Question: Julie is a law clerk for a mid-sized legal firm. She is assigned to assist firm attorneys on a civil litigation matter in which her firm is defending its client in a contract dispute for $2 million. The client is a large corporation with a corporate counsel who wants to be apprised of every step of the litigation. Her first assignment is to work on the voir dire questions used to identify biases in potential juror candidates. As part of the assignment, she is putting together a one-page explanation of the jury selection process for the client. She begins by laying out the total number of jurors required, votes required to establish liability, and any additional requirements of the jury. Help Julie write this first portion of the strategic plan.

Who are some of the other players in the court system?

The court system can be large and complicated. To run properly, it requires a number of individuals to carry out specific functions. Some of the primary actors are as follows:

• Process Servers – Process servers deliver legal documents (serve process) to individuals being called into court. Some jurisdictions allow private parties to serve process for the court. Other jurisdictions require police authorities to serve process.

• Clerks of Court – Clerks of court run the office that manages all publicly filed court documents for that jurisdiction. All court documents are first filed with the Clerk of Court. The Clerk of Court may also manage the process for service of process.

• Court Reporter – The court reporter records and transcribes the official record of the court. This record is used in appellate review.

• Bailiff – The bailiff controls security in the courtroom and carries out the orders of the court. This includes executing contempt orders.

• Paralegals & Law Clerks – Paralegals and law clerks carry out many of the administrative tasks that support the court and trial process. This includes conducting research for attorneys, companies, government bodies, judges, or justices.

• Staff Attorneys – Legislative and administrative bodies employ staff attorneys. These attorneys research issues and serve as the primary architects and scribes of laws proposed by the bodies they serve. For example, staff attorneys write the majority of the laws proposed by members of the legislative branch.

• Prosecutors & Public Defendants – These are the government attorneys employed to represent the government in prosecuting alleged crimes and representing the defendants subjected to prosecution.

• Law Professors – These legal scholars and practice experts train attorneys and act as contributors to the body of legal thought. Researching professors write about specific areas of law and provide analysis and insight for use by practitioners, legislators, and the court.

• Law Journals – Law journals review, edit, and publish works of original thought that add to the intellectual body of law. These published works serve as influential sources for use by practitioners, legislators, and the court.

• Bar Associations – Bar associations are federal, state, and local groups of attorneys. These organizations can be very influential in shaping the development of law and the legal system through advisory votes and committee proposals.

The above list of contributors to the court system is by-no-means exhaustive.

• Practice Question: Derrick is a new business manager who oversees the corporate collections group. As part of his role, he has to be aware of all legal actions by the corporation for outstanding debts. Derrick recalls some of what he learned in school about the legal process, but is very confused by the whole process. He tries to read legal material online, but realizes he does not have enough time to fully educate himself on the process. He assigns his intern (you) to explain the whole litigation process in two pages. He specifically wants you to begin be explaining the role of everyone involved in the process. Write a memo explaining the role of everyone involved in the litigation process.

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