Gale Encyclopedia Of American Law 3Rd Edition Volume 3 P28 pdf

Greater convictions are automatically
appealed to a court of military review, which
considers matters of
FACT AND LAW. Consisting
largely of higher-ranking military judges,
these courts exist for each branch of the military
and have a total of 31 appellate military
judges. The Uniform Code of Military Justice
requires them to review serious sentences such
as confinement of one year or more, dishonor-
able discharge, or dismissal of officers or
cadets. Sentences to general officers and flag
officers are also reviewed automatically. In all
cases, defendants are granted free counsel for
their appeals.
At the next level, the Court of Military
Appeals—composed of five civilian judges who
Any Last Words? The Evolution of
the Court-Martial
T
hroughout most of its 200-year
history, the court-martial was the
ogre of U.S. law. Modeled on sixteenth-
century European ideas about discipline
and punishment, courts-martial worked
smoothly. Commanders ran them,
defendants had few rights, and punish-
ments were arbitrary: disobedient sol-
diers were fined, jailed, or discharged,
and deserters flogged or hanged.
CONSTI-

TUTIONAL LAW
rarely got in the way.
Between 1775 and 1950, the U.S. military
scarcely altered its methods. It was not
until the
VIETNAM WAR era that reform
came at the hands of federal lawmakers
and judges. In the early 2000s the
military tribunal resembles the average
federal court.
Historically, the military justice sys-
tem has always been distinct from the
civilian court system. It formally began in
1775 when the
CONTINENTAL CONGRESS
enacted the first American ARTICLES OF
WAR
, closely modeled on the British
Articles of War, which had their roots
in sixteenth-century Europe. Under the
articles, military justice had a simple
two–sided goal: to promote
GOOD BEHAV-
IOR
and punish bad behavior. It specified
civilian offenses such as
MURDER and
LARCENY, and military offenses such as
disobedience, disrespect to officers, and
desertion. To try defendants for viola-

tions, it established a simple tribunal
made up of officers under the control of
their commander. Accused parties had
few if any of the due process and appeal
rights enjoyed by defendants in civilian
courts. No standard rules for punish-
ment existed; as with all matters in a
court-martial, punishment was decided
completely at the discretion of the
commander.
Free from the constraints of civilian
courts, early courts-martial produced
stark results. General
GEORGE WASHINGTON,
like other commanders, understood the
court-martial’s potential for keeping
order in the ranks. During the Revolu-
tionary War, he ordered his troops to
watch the execution of fellow soldiers
who had been convicted of desertion.
Discipline—often severe—remained the
hallmark of the court-martial for the
next century. Few citizens or politicians
objected because military culture was
highly esteemed. Soldiers who brought
shame on the service were thought to
deserve whatever they got.
Despite earnest efforts, few early
critics of the court-martial achieved
much. By the mid-1800s, scholarly calls

for reform began with the work of John
O’Brien, an Army lieutenant who wrote
A Treatise on American Military Laws,
and the Practice of Courts Martial: with
Suggestions for Their Improvements in
1846. O’Brien argued for lessening the
influence of commanders, enacting more
uniform rules, and clearly establishing
specific punishments. But neither law-
makers nor the courts were very
impressed. Congress had always accepted
the distinction between civilian and
military justice, and in a number of
decisions, the U.S. Supreme Court con-
sistently upheld the constitutionality of
the court-martial system.
The onset of
WORLD WAR I brought
changes in the form of new Articles of
War (Act of August 29, 1916, ch. 418, §§
3–4, 39 Stat. 619, 650). Defense counsel
was guaranteed “if such counsel be
reasonably available,” but there was no
provision for appealing convictions. The
author of the revision,
JUDGE ADVOCATE
General Enoch H. Crowder, had scoffed
at the latter idea in testimony before the
U.S. Senate:
In a military code there can be,

of course, no provision for
courts of appeal. Military disci-
pline and the purposes which it
is expected to [serve] will not
permit of the vexatious delays….
However, we safeguard the
rights of an accused, and I think
we effectively safeguard them, by
requiring every case to be
appealed in [the] sense [that
commanding generals must
approve every sentence, and
sentences of death or dismissal
require additional confirmation
by the president] (S. Rep. No.
130, 64th Cong., 1st Sess. 34–35).
As a startling example soon showed,
these protections had little if any value.
In November 1917 a court-martial tried
63 members of the all-black Twenty-
fourth Infantry Division of the U.S.
Army who were charged with a variety
of offenses, including mutiny and
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
258 COURT-MARTIAL
are appointed by the president of the United
States—may decide to hear any petition from an
unsuccessful appeal to a court of military review.
Finally, once military remedies have been
exhausted, federal courts, including the U.S.

Supreme Court, will review a court-martial
conviction for claims of denial of constitutional
rights.
FURTHER READINGS
Ferris, Andrew M. 1994. “Military Justice: Removing the
Probability of Unfairness.” Univ. of Cincinnati Law
Review (fall).
Fuger, Stanley T. 1992. “Military Justice: Variation on a
Theme.” Connecticut Bar Journal 66 (June).
Konecke, Eric J. 1995. “The Appointments Clause and
Military Judges: Inferior Appointment to a Principal
Office.” Seton Hall Constitutional Law Journal 5 (spring).
murder, stemming from a race riot in
Houston in which over a dozen people
had died. The court-martial convicted
58 men. Thirteen were sentenced to
death and hanged the following morn-
ing. Despite General Crowder’s assur-
ances, neither the president nor even the
military authorities in Washington, D.C.,
had been informed. According to regu-
lations, the authority of a department
commander was sufficient in time of war
to confirm death sentences and the
commander’s order needed no further
confirmation because he was the con-
vening authority who had started the
court-martial.
The Houston hangings prompted an
immediate tightening of the rules for

death sentences, but the experience of
drafted men in World War I and
WORLD
WAR II
brought about greater change.
Called up to fight in the millions—and
also court-martialed in the millions—
civilians disliked their taste of military
justice. As a result of public outcry, Senate
hearings in 1917 led to a 1920 revision of
the Articles of War. This revision provid-
ed for preliminary investigations, defense
counsel, the presence of a legally trained
member at every court-martial, and
higher review of all sentences of death,
dismissal, or dishonorable discharge. The
right to defense counsel for soldiers was
ahead of its time; civilians would not have
this right universally recognized by the
U.S. Supreme Court for several more
decades. The new Articles of War also
provided for automatic appellate review
of convictions.
In practice, not all the provisions of
the new articles were followed. Resources
for carrying them out were limited, and
commanders could not always be
counted on to depart from tradition.
The aftermath of World War II, in which
some 2 million soldiers faced court-martial,

brought even greater calls for reform.
Major reform began in 1950. Con-
gress passed the
UNIFORM CODE OF MILITARY
JUSTICE
(10 U.S.C.A. §§ 801–940), a
sweeping reform of the military justice
system applying to all branches of the
service. This code created the Court of
Military Appeals, a three-judge civilian
body designed to review certain convic-
tions. The code also extended greater
protections to defendants: lawyers had to
be assigned to defend them, and they
now enjoyed significant due process
rights. On the other hand, the military
retained all other authority over the
administration of military justice. The
code kept the traditional hierarchy of
three courts convened by commanders at
increasingly higher command levels with
escalating punishments—summary, spe-
cial, and general courts-martial. It estab-
lished “law officers” who functioned like
judges, but it retained much of the
traditional model of command control,
which gave to commanders the power to
appoint the investigating officer, counsel,
and court members (with the enlisted
accused having the right to request that

one-third be enlisted members). And it
extended court-martial jurisdiction over
both service members and certain classes
of civilians.
Further reform came through the
courts and Congress. In 1955 the U.S.
Supreme Court held that discharged
service members could not be court-
martialed for crimes committed while
they were on active duty (United States ex
rel. Toth v. Quarles, 350 U.S. 11, 76 S. Ct. 1,
100 L. Ed. 8). In 1969 the Court held that a
case could be tried at court-martial only if
the offense was connected to the defen-
dant’s military service in O’Callahan v.
Parker, 395 U.S. 258, 89 S. Ct. 1683, 23 L.
Ed. 2d 291. In 1970 the Court of Military
Appeals held that civilian employees of the
military overseas could not be subjected to
court-martial (United States v. Averette, 19
U.S.C.M.A 363).
Congress brought reform with the
Military Justice Act of 1968 (Pub. L. 90-
632, Oct. 24, 1968, 82 Stat. 1335), which
revamped the Uniform Code of Military
Justice. It accomplished several key
changes: (1) court-martial procedures
were made to resemble more closely
those of U.S. district courts; (2) the law
officer was changed to a military judge,

with functions and powers like those of a
federal district judge; (3) the military
judge was protected from influence by
military authorities; (4) new intermediate
appellate courts of military review were
created in each service; and (5) defen-
dants were given the choice of trial by
judge or by jury. Additional reform came
in the Military Justice Act of 1983 (Pub. L.
98-209, Dec. 6, 1983, 97 Stat. 1393),
which specifically provided for review of
Court of Military Appeals decisions by the
U.S. Supreme Court. By 1987 military
justice had improved to the point that the
U.S. Supreme Court overturned O’Calla-
han and returned to the military greater
authority to conduct courts-martial
(Solorio v. United States, 83 U.S. 435,
107 S. Ct. 2924, 97 L. Ed. 2d 364).
In the early twenty-first century, the
court-martial functions smoothly as a
system governed by law. In every signifi-
cant way, the modern court-martial is at
least the equivalent of a federal criminal
trial.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
COURT-MARTIAL 259
Wiener, Frederick B. 1990. “American Military Law in the
Light of the First Mutiny Act’s Tricentennial.” Military
Law Review 126 (fall).

COURT OF APPEAL
An intermediate federal judicial tribunal of review
that is found in thirteen judicial districts, called
circuits, in the United States.
A state judicial tribunal that reviews a
decision rendered by an inferior tribunal to
determine whether it made errors that warrant
the reversal of its judgment.
U.S. COURTS OF APPEALS were created by
Congress in 1891 and were known until 1948
as U.S. Circuit Courts of Appeals. Such courts
have appellate jurisdiction over the majority of
cases decided by U.S. District Courts except
those cases in which the court has made an
interlocutory order regarding an injunction;
such cases are directly reviewable by the
SUPREME
COURT OF THE UNITED STATES
. federal courts of
appeals are also empowered to review orders of
many federal administrative agencies, such as
the
NATIONAL LABOR RELA TIONS BOARD.
Cases before the court of appeals are usually
heard by a panel of three judges, but in some
circuit cases, actions involving significant con-
stitutional questions are heard
EN BANC,withall
the judges serving on the court present to decide
the case by a majority vote. In 1982 Congress

enacted the Federal Courts Improvement Act
(96 Stat. 25; 28 U.S.C.A. § 1 note) creating the
Court of Appeals for the Federal Circuit which
commenced hearing cases on October 1, 1982,
and constitutes the thirteenth circuit in the
United States. The Court of Appeals for the
Federal Circuit provides a national forum for
the uniform application and enforcement of law
in cases involving similar issues, particularly
those involving patent and public contracts law,
which in the past were often decided differently
from circuit to circuit, necessitating appeal to
the Supreme Court for a definitive answer. This
court was established from the merger of the
Federal
COURT OF CLAIMS and the Court of
Customs and Patent Appeals. Although struc-
turally similar to the 12 other courts of appeals,
it differs from them in that its intermediate
appellate jurisdiction is based upon subject
matter, not geography, and it hears appeals
from all federal circuits. This topical approach
toward adjudication results from the new court
assuming appellate jurisdiction from cases for-
merly brought before the Court of Claims and the
Court of Patent Appeals. The court also enter-
tains appeals from the Court of International
Trade, the
PATENT AND TRADEMARK OFFICE, the MERIT
SYSTEMS PROTECTION BOARD

, and other agencies.
In some states, the court of appeals is an
intermediate appellate tribunal that reviews the
decisions of lower courts on appeal. Its decisions
are, however, subject to review by the highest
appellate tribunal in the state if the unsuccessful
party files an appeal and the justices agree to hear
the case. When the state court of appeals is the
intermediate level of appellate review, it possesses
mandatory jurisdiction; litigants have a statutory
right to appeal their cases to it.
State Courts of appeals are frequently courts
of
LAST RESORT when their decisions are final and
are not subject to review by any other state
tribunal. When it is the highest appellate court in
the state, the court of appeals has discretionary
jurisdiction; it selects the decisions it will review.
If a case presents questions involving federal
statutes or the Constitution, the U.S. Supreme
Court might accept the case for review of the
judgment rendered by the state courts of appeals.
There might be two separate systems of state
courts of appeals: one for the review of civil
cases and one for the appeal of criminal matters.
CROSS REFERENCES
Appellate Court; Federal Courts.
COURT OF CLAIMS
A state judicial tribunal established as the forum in
which to bring certain types of lawsuits against the

state or its political subdivisions, such as a county.
The former designation given to a federal tribunal
created in 1855 by Congress with original jurisdic-
tion—initial authority—to decide an action
brought against the United States that is based
upon the Constitution, federal law, any regulation
of the executive department, or any express or
implied contracts with the federal government.
Such courts are created by statute or consti-
tution and can entertain only actions specified by
law, such as those involving violations of
provisions of the state constitution or law or
based upon breach of government contracts.
The federal courts Improvement Act of
1982 (28 U.S.C.A. § 1 et seq.) abolished the U.S.
Court of Claims and established the Court of
Appeals for the Federal Circuit and the U.S.
Claims Court to shar e various aspects of the
jurisdiction of the former court.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
260 COURT OF APPEAL
COURT OF PROBATE
A judicial body that exercises jurisdiction over the
acceptance of wills as valid documents and over
the management and settlement of the estates of
minors or of spendthrifts, of mentally incompetent
persons, and of habitual drunkards.
Such courts possess a limited jurisdiction in
civil and criminal cases in some states. In some
jurisdictions, they are also called orphans’

courts and surrogate courts.
COURT OPINION
A statement that is prepared by a judge or court
announcing the decision after a case is tried;
includes a summary of the facts, a recitation of the
applicable law and how it rela tes to the facts, the
rationale supporting the decision, and a judgment;
and is usually presented in writing, though
occasionally an oral opinion is rendered.
Court opinions are the pronouncements of
judges on the legal controversies that come
before them. In a common-law system, court
opinions constitute the law by which all
controversies are settled. Attorneys analyze
prior opinions on similar legal issues, attempt-
ing to draw parallels between their case and
favorable court opinions and to distinguish
unfavorable opinions. Judges study relevant
opinions in rendering their decisions.
The majority of court opinions are not
released for publication. Those that are released
by the courts are collected in law books called
reporters. Each state has at least one reporter
that contains the opini ons of its courts, and the
nation has several reporte rs that contain the
opinions of the federal courts.
All published opinions are similar in format.
At the top of each reporter page appears the
name of the reporter preceded by the volume
number. In the upper outside corner of the page

is the page number. The volume, reporter
name, and page number constitute the citation,
which is used to locate the opinion or to refer
to it. This citation may be abbreviated; for
example, the citation “100 Cal. Rptr. 600” is a
shorthand reference to the opinion that appears
in volume 100 of the California Reporter at page
600. Many opinions are published in more than
one reporter. In that situation, the additional
citations are called parallel citations.
The first segment of the court opinion itself is
the title of the action. It identifies the parties to the
case and their roles in the action, such as
PLAINTIFF
or DEFENDANT. If the opinion is from an appellate
court, the party who appealed the lower court’s
decision is identified as appellant, and the party
who is defending the lower court’sdecisionis
identified as respondent. In a criminal case, the
plaintiff is usually the state prosecuting the
crime—or the United States, if the federal
government is prosecuting. After the title, a docket
or calendar number assigned by the court appears,
followed by the name of the court delivering the
opinion and the date of the decision.
After this identifying information, most
reporters insert a summary of the facts and
the decision. In addition, some reporters classify
the points of law applied by the court into
individual paragraphs, called headnotes, that

help the reader extract and analyze each legal
concept discussed. The summary and headnotes
are written by the publisher of the reporter for
the convenience of the reader and are not part
of the court’s opinion.
The court’s discussion of the case is often
preceded by a syllabus, w ritten by the
COURT
REPORTER
, which briefly summarizes the case.
After the syllabus, the court identifies the
attorneys representing the parties.
Finally, the text o f the opinion is presented. It
usually opens with the name of the judge who wrote
it. If the words per c uriam or by the c ourt appear at
this point, they mean that the court chose not to
identify any individual judge as the author. If the
opinion is d esignated a memorandum opinion, it is
usually a concise opinion of the entire court.
At the beginning of the opinion, the court
briefly recounts the facts and issues involved in
the case. Then, it delineates the applicable rules
of law and explains how they relate to the facts
of the case. In determining what the applicable
law is, the court first looks for any relevant
statutes. If no statute governs the action, the
court relies on past decisions in similar cases, or
precedent. If it is a case of first impression—
that is, no existing statute or precedent governs
the case—the court bases its opinion on similar

decisions and on its own reasoning.
A court opinion may be as brief as a few
sentences or as long as severalhundred pages.Inits
course, the judge or the court may make
observations or express convictions that do not
contribute to the final holding in the case. These
statements are called dicta and have no binding or
precedential force. After the discussion of the facts
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
COURT OPINION 261
Who’s Suing Whom? Terms and
Abbreviations in Case Titles
T
B
he titles of court cases frequently contain terms and abbreviations t hat help to indicate the nature of the
dispute. The accompanying chart identifies and explains many of the terms that may appear in case titles.
Term Definition Example
ad hoc For this; for this purpose Capital City Press v. Mouton, Judge ad Hoc
ad litem For the suit; for the litigation Estate of Langhorn v. Laws, Administrator
Ad Litem adm’r
Administrator Grievance Adm’r v. Lange
adm’r de bonis non Administrator of the remainder of a
partially settled estate.
Vogel, Adm’r De Bonis Non v. Wells
ad valorem According to value; a tax imposed on
value of property
Aerospace Workers Inc. v. Dept. of
Revenue, Division of ad Valorem Taxes
a.k.a., a/k/a Also known as Luis Barras, a.k.a. Luis Ramos v. State of
Texas

alter ego The other self (Alter ego asserts that
the defendants are one for purposes of
liability)
Ledford v. Mining Specialists, Inc., and Its
Alter Ego, Point Mining, Inc.
am icus curiae Friend of the court; one with an interest
in the case, but not a party
Livingston v. Guice. United States of
America, Amicus Curiae appellant
Party appealing a court’s decision to a
higher court
Moore, Appellant v. Derwinski,
Appellee
appellee Party against whom an appeal is taken Moore, Appellant v. Derwinski,
Appellee
certiorari, cert. Writ requiring a certified record of a
case from a court
In re Petition of Johnson for a Writ of
Certiorari
complainant One who applies to a court for legal
redress
Florida Bar, Complainant v. Clement,
Respondent
d.b.a., d/b/a Doing business as M./t/L. Rendleman d.b.a. Commercial
Insulators, Inc. v. Clarke
de facto In fact; in deed; actually McMullen, a De Facto Guardian v.
Muir defendant
Party defending against or denying
allegations
Gretencord, Plaintiff v. Ford Motor Co.,

Defendant
defendant in error Appellee May v. State of Wisconsin, Defendant in Error
duces tecum A command to produce certain
evidence
In re Grand Jury Subpoena Duces Tecum
et alius, et allii, et al. And another; and others City of Lubbock et alius v. Knox
et uxor; et ux. And wife Kostohryz et ux. v. McGuire
et vir And husband Broadwater v. Dorsey et vir
ex officio By virtue of the office Tenneco Oil Co. v. Stephens, Ex Officio Tax
Collector
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
262 COURT OPINION
Term Definition Example
ex parte By or for one party Ex parte Johnson
ex’r Executor Marilyn Haudrich as Ex’r v. Howmedica
ex relatione, ex rel. On information or on behalf of an
interested party
State ex rel. Miller v. Miller
feme sole A single woman Holman, Feme Sole v. Stephen F. Austin
Hotel
guardian ad litem Guardian for the suit or litigation
(concerning an incompetent or minor)
Grace M., as Guardian ad Litem for Laurie
M., a Minor v. Oakland Unified School
District
habeas corpus Writ commanding that a person be
released from unlawful detention
In re Writ of Habeas Corpus for Martinez
in personam Against the person Claudio v. United States and Ken’s Marine
Service, Inc., in personam

in re In the matter of In re Estate of Lange
in rem Against the thing; against the property Scindia Steam Navigation Co., Ltd. v.
3,952.536 Metric Tons Peerless Eagle Coal,
in rem, et al.
inter alia Among others Kot v. Inter a lia, North Ea st Detective Division
inter vivos Between the living Rudd v. Ruth inter vivos Family Trust
mandamus Writ commanding the performance of
an act or the restoration of illegally
deprived rights
Ex parte Sierra Club Petition for WritofMa ndamus
v. Alabama Environmental Management
Commission
n.k.a., n/k/a Now known as Bernasek n.k.a. Staron v. Bernasek
nunc pro tunc After a deadline and given retroactive
effect
Application of West for Admission to the
Bar nunc pro tunc pendente lite
Pending the suit; during the litigation Parsley, Adminis-trator Pendente Lite v.
Harlan
petitioner Party filing a petition Walton, Petitioner v. Walton, etc., et al.,
Respondents
plaintiff Party bringing a civil action by filing a
complaint
Oetting, Plaintiff v. United States,
Defendant
plaintiff in error Appellant Miles, Plaintiff in Error v. Justice
of the Peace Court #13 pro forma
As a matter of form Pentecostal Church of God of America, a
Pro Forma Corporation v. Hughlett
pro hac vice For this occasion Mohawk Assoc. and Furlough, Inc., as

Owner Pro Hac Vice of the Tug Mohawk
for exoneration from liability
pro se For one’s own behalf; appearing for
oneself
Loftin, Individually, pro se v. United States
quasi As if; analogous to Mount Carbon Metropolitan
District, a Quasi-Municipal Corporation, v.
Lake George Co. respondent
Appellee Forehand, Petitioner v. Fogg, Respondent
sub nom Under the name Jones v. Lujan, sub nom. Hodel
versus , vs., v. Against Roe v. Wade
B
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
COURT OPINION 263
and the applicable law, the opinion announces
the holding, which is the legal principle or
principles derived from the opinion. Only the
holding is binding precedent in subsequent cases.
Each reported decision may comprise one
opinion written by one judge on behalf o f the entire
court, or several o pinions w ritten by individuals or
groups of judges. No t all t he opinions i n a ca se have
the same l egal force. The most s ignificant is a
majority opinion, in which a majority of the
members o f the court agree both with the reasoning
and with the hold ing. A majority opinion has the
most conclusive precedential value of any opinion.
An opinion agreed upon by the largest number of
judges but fewer than a majority of those on the
court i s a plurality opinion. A plurality may occur

where, for e xample, f our o f n ine j ustices join one
opinion, two others write concurrences, and three
write dissents. A plurality opinion constitutes the
holding of the court, since it i s joined b y the largest
number of justices, but it carries less precedential
valuethanamajorityopinionbecauseitisnot
agreed upon by a majority of the court. If a judge or
judgesagreewiththeoutcomeofthecasebutnot
with the majority’s reasoning, they may write a
separate concurring opinion. Conversely, a dissent-
ing opinion may be written by a judge or judges
who disagree with the decision of the court. Neither
a c oncurrence n or a dissent has precedential value.
The last segment of a majority or plurality
opinion sets forth the judgment of the court.
The judgment is the official decision of the
court on the rights and claims of the parties and
resolves the controversy between them. It may
be a final determination, or it may remand the
case (send it back) to a lower court for further
action. A judgment may be completely in favor
of one party, or partly in favor of one and partly
in favor of another. It may be a straightforward
affirmance or reversal of a lower court’s
decision, or it may affirm on some questions,
reverse on others, and rem and on still others.
FURTHER READINGS
Ochs, Linnea L. 1987. Webster’s New World Legal Word
Finder. 2d ed. Englewood Cliffs, N.J.: Prentice-Hall.
Statsky, William P. 2008. Introduction to Paralegalism:

Perspectives, Problems, and Skills. 7th ed. Farmington
Hills, Mich.: Cengage Learning.
Wren, Christopher G., and Jill R. Wren. 1999. The Legal
Research Manual: A Game Plan for Legal Research and
Analysis. 2d ed. Madison, Wisc.: Legal Education.
CROSS REFERENCES
Canons of Construction; Stare Decisis.
COURT REPORTER
A court reporter is an individual who transcribes
spoken or recorded speech in court proceedings
and depositions.
Court reporters have played a significant
role in the U.S. legal system, transcribing
testimony in court proceedings as well as in
depositions. Prior to the introduction of
mechanical and electronic transcribing devices,
court reporters recorded speech by writing in
shorthand. There are different methods of
shorthand, which all rely on symbols and
abbreviations to speed the recording process.
With the introduction of machines, shorthand
symbols were transferred to a series of keys, that
when depressed, produced the appropriate
abbreviation. Court reporters are called on
during proceedings to read back testimony.
When a trial transcript or deposition must be
produced, the court reporter uses the shorthand
note to assemble the full written record. In the
early 2000s, the use of computer technology and
digital audio recording have had a significant

impact on court reporting.
Becoming a court reporter requires inten-
sive training. Private business schools offer
court reporting classes, and the length of study
ranges from one to three years, as students
develop listening skills, concentration habits,
and mastery of the shorthand language. Because
lawyers and judges rely on speedy and accurate
transcription, some state court systems will not
hire a reporter without a certification from a
national court reporting organization. The
National Court Reporters Association (NCRA)
and the National Verbatim Court Reporters
Association (NVRA) are the major accrediting
organizations. To become certified, the NCRA
requires a reporter to type at least 225 words per
minute, and the NVRA requires 250 words per
minute. In addition, both associations require a
candidate to pass a four-part exam that includes
written and skills components.
Though most court reporters are hired by
trial court judges, there are freelance reporters
who specialize in taking civil depositions, record-
ing arbitration hearings, and filling in for official
court reporters when they are unable to be in
court. Court reporters also work for the television
industry, performing real time closed-captioning
of live programs for the hearing impaired.
Traditionally, court reporters have been
confidential employees of trial judges, though

GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
264 COURT REPORTER
some appellate courts retain reporters to tran-
scribe oral arguments. In some states, court
reporters have joined unions so that they can
negotiate benefits and resolve disputes with judges
and court administrators. Official court reporters
are government employees, but they are also
independent contractors. When a lawyer requires
the preparation of a trial transcript for an appeal or
some other purpose, the lawyer must make
financial arrangements with the court reporter
or reporters who took notes. Court reporters
charge on a per page basis; the actual amount of
text on a transcript page is usually quite small,
which results in more income for the reporter.
Official reporters are not allowed to produce
transcripts while working at the court but must do
so in the evenings and on weekends. Appellate
courts set deadlines for the preparation of
transcripts, which places additional stress on
reporters. Therefore, the income of a court
reporter comes from two sources, which is unique
for a government employee. However, reporters
are required to purchase their transcribing
equipment and software, which is expensive.
Because court reporting relies on keystrokes,
reporters are vulnerable to repetitive stress
injuries. They may receive workers’ compensa-
tion awards for their injuries. Court adminis-

trators advise judges to give reporters frequent
courtroom breaks and to forbid reporters from
going back to their offices and typing during
these breaks. Computer technology has helped
reduce the keystrokes needed to prepare a
transcript. The computer program produces a
rough draft that the reporter edits.
The supply of certified court reporters has
not met the demand since the 1990s. Fewer
individuals train to be reporters, and so me of
those who complete their training are unable to
pass the national certification tests. Some court
systems have waived the certification require-
ment, either permanently or for the first few
years of employment; reporters can be dis-
charged if they have not obtained the certifica-
tion at the end of the designated period.
Beginning in the 1980s, court systems began
experimenting with video and audio technology
to eliminate the need for a court reporter. Court
administrators argued that only a fraction of
cases are appealed, making the transcription of
every trial proceeding a wasteful expense. In the
1980s, Kentucky courts set up video cameras
and multiple microphones to videotape court
proceedings. A court clerk operated the tape
machine, and if there was a question about
testimony, the clerk would replay the tape on a
courtroom monitor. The tape was archived and
if there was an appeal, a typist would listen to

the audio and prepare a transcript.
Since then other courts have found ways to
eliminate court reporters. There are a growing
number of digital courtrooms, where audio is
recorded to computer hard drives. As with
videotape, transcripts can be produced by typists,
thereby reducing costs. As voice recognition
software improves, the time is anticipated when
a rough draft of a transcript will be produced by
the computer. Nevertheless, many judges refuse
to part with their court reporters. They see the
reporter as an integral part of the judicial unit.
Appellate courts rely on timely and accurate
transcripts. Problems can occur when multiple
reporters worked on a lengthy trial. The parties
cannot write their legal briefs until all the
transcripts are filed; if one court reporter is
tardy, the appellate process cannot move
forward. Appellate courts have the authority to
issue orders compelling a court reporter to
prepare a transcript immediately but use this
power sparingly. Another problem occurs when
a court reporter becomes ill, dies, or is
otherwise unavailable. If the reporter’snotes
are available, another reporter can prepare a
transcript. However, the accuracy of this
transcript may be questioned by a party. If the
notes are unavailable, appellate co urt rules
provide that the parties prepare a statement of
proceedings that details the trial testimony as

accurately as possible. The trial judge reviews
the statement and certifies it as accurate.
FURTHER READINGS
Aikman, Alexander. 2006. The Art and Practice of Court
Administration. Boca Raton, Fla.: CRC Press.
Knapp, Mary, and Robert McCormick. 1998. TheCompleteCourt
Reporter’s Handbook. 3d. ed. New York: Prentice Hall.
Ostrom, Brian. 2007. Trial Courts as Organizations.
Philadelphia: Temple Univ. Press.
COURTROOM TELEVISION NETWORK
The Courtroom Television Network (Court TV)
was a cable network devoted to explaining law to
the layperson. Changes in the media and the law
paved the way for Court TV. From the 1960s to the
1980s, reporting on legal affairs was largely the
business of two markets: specialized publications
for lawyers and daily newspapers. The former was
highly detailed; the latter took a broad, general
approach. Televisiontookthe most sparing look at
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
COURTROOM TELEVISION NETWORK 265
the law, usually in small slices of news broadcasts.
But as state laws increasingly permitted television
cameras in state courtrooms, the role of television
increased. At the same time, another trend
transformed television itself: the p ublic’s appetite
for so-called reality programming, a format
popularized by shows such as the National
Broadcasting Company’s Unsolved Mysteries and
the Fox Network’s Cops and America’sMost

Wanted. Cheaper to make than dramas and
sitcoms, this programming subsequently glutted
the airwaves in the form of cops-and-criminals
shows, tabloid journalism, and infotainment (the
combination of information and entertainment).
Court TV was founded in 1991, a novel
venture in television programming and a long
shot: Few thought a twenty-four-hour-per-day,
seven-day-per-week diet of live trials and legal
analysis would succeed. Within two years,
though, the network ranked fourth in the Nielsen
Company’s daytime cable ratings. It built this
record with gavel-to-gavel coverage of civil and
criminal trials, including a string of highly
publicized cas es in the e arly 1990s, a s well as
with a mixture of regular programs that exam-
ined in simple language how the legal system
works. This nuts-and-bolts approach coincided
with—and, to an extent, helped influence—
controversial changes in legal journalism. Law-
yers, judges, and the media are divided over
whether the public is served or misled by the
Court TV approach, and this debate only
intensified after comprehensive coverage of the
O. J. SIMPSON MURDER trial in 1995.
Court TV was created by legal publisher
Steven Brill. Known as an innovator, Brill had
founded American Lawyer magazine in 1978.
Neither as technical as law journals nor as cursory
as the mainstream press, the trade magazine

critically profiled attorneys and law firms, dealt
with matters such as how juries reach decisions,
and generally modeled its methods on investiga-
tive journalism. It emphasized the inner workings
of the law—taking an approach that, ten years
later, television was avidly pursuing with law
enforcement. In July 1991, with the financial
backing of Time Warner, Brill launchedCourt TV.
The network initially broadcast an obscure Florida
murder trial but soon had high profile cases to
cover, including the prosecution of murderer-
cannibal Jeffrey Dahmer and the trials of accused
parent murderers Erik and Lyle Menendez. Court
TV’saudienceslowlyincreased.
In addition to essentially live trial broad-
casts—delayed by ten seconds to preserve
confidential information about jurors, witnesses,
and attorney-client privilege—Court TV devel-
oped legal affairs programs. Other programs
condensed entire trials into two-hour highlights
or followed accused persons from jail to court in
what the network called “the ultimate lesson on
how the judicial process works, outlining legal
failures and successes through the lives of those
who are players in the system.” It also featured a
weekly debate program, Washington Watch,
which featured important legal figures.
Steven Brill’s decision in 1997 to sell his
stake in Court TV to his partners, Time Warner
and Liberty Media, changed the direction of the

channel. CEO Henry Schleiff decided to expand
into new areas, worried that the network’s
reliance on trials was turning it into a niche
network such as C-SPAN or the Golf Channel.
He also disliked that ratings were dependent on
the availability of a so-called hot trial. For example,
ratings dropped dramatically after the O.J.
Simpson trial ended—down 80 percent by 1997.
Court TV moved to purchase programming
from the broadcast networks to syndicate to its
viewers and then began producing its own legally
focused reality programming in 2000. In 2007
Turner Broadcasting purchased the network and
renamed it truTV. Though the network vowed to
keep broadcasting trials for six hours each day, its
Marc Juris, executive
vice president of
truTV, formerly
known as the
Courtroom Television
Network.
AP IMAGES
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
266 COURTROOM TELEVISION NETWORK
evening program would largely abandon true
crime for subjects like feuding neighbors, oil
drillers, and renegade snowboarders.
FURTHER READINGS
Larson, Megan. 2002. “Out-of-Court Settlement: Ratings,
Sales Improving as Court TV Moves away from Trials,

Acquired Shows.” Mediaweek (July 29).
truTV Newtork. Available online at;www.trutv.com
(accessed October 12, 2009).
CROSS REFERENCES
Broadcasting; Cameras in Court; Simpson, O. J.
COURTS OF REQUEST
Inferior judicial tribunals in England, created by
special enactments of Parliament, that possessed
local jurisdiction to determine actions involving
claims for small debts. These courts were abolished
in 1846 and replaced by county courts.
COVENANT
An agreement, contract, or written promise
between two individuals that frequently constitu-
tes a pledge to do or refrain from doing something.
The individual making the promise or
agreement is known as the covenantor, and the
individual to whom such promise is made is
called the covenantee.
Covenants are really a type of contractual
arrangement that, if validly reached, is enforce-
able by a court. They can be phrased so as to
prohibit certain actions and in such cases are
sometimes called negative covenants.
There are two major categories of covenants
in the law governing real property transactions:
covenants
RUNNING WITH THE LAND and covenants
for title.
Covenants Running with the Land

A c ovenant is s aid to run with the land i n the event
that the covenant is annexed to the estate and
cannot be separated from the land or the land
transferred w ithout it. Such a covenant exists if the
original owner as well as e ach successive owner of
the property is either s ubject to itsburd en or entitled
to its benefit. A c ovenant running with the land i s
said to touch a nd concern the property. For
example, an individual might own property subject
to the restriction that it is only to be used for church
purposes. When selling the land, the person can
only do so upon an ag reement by the buyer that he
or she, too, will only use the land for church
purposes. The land is thereby burdened or
encumbered by a
RESTRICTIVE COVENANT, because
the covenant specifically limits the use to which the
land ca n b e put. In a ddition, the covenant runs with
the land because it remains attached to it despite
subsequent c hanges in its ownership. This type of
covenant is also called a covenant appurten ant.
Certain easements also run with the land.
An easement, for example, that permits one
landowner to walk across a particular portion of
the property of an adjoining landowner in order
to gain access to the street would run with the
land. Subsequent owners of both plots would
take the land subject to such easement.
A covenant in gross is unlike a covenant
running with the land in that it is personal,

binding only the particular owner and not the
land itself. A subsequent owner is not required
to keep the promise as one would with a
covenant appurtenant.
Covenants for Title
When an individual obtains title to, or posses-
sion and ownership of, real property, six
covenants are ordinarily afforded to him or
her. They are (1) covenant for seisin; (2)
covenant of the right to convey; (3) covenant
against encumbrances; (4) covenant for
QUIET
ENJOYMENT
; (5) covenant of general warranty;
and (6) covenant for further assurances.
A deed to real property that provides for usual
covenants generally includes the first five of these
covenants. When a deed provides for full cove-
nants, it is regarded as giving such protection as is
extended pursuant to all six covenants.
Covenants for seisin and of the right to
convey are ordinar ily regarded as being the same
thing. Essentially, they make a guarantee to the
grantee that the grantor is actually the owner of
theestatethatheorsheistransferring.
The covenant against encumbrances pro-
mises to the grantee that the property being
conveyed is not subject to any outstanding rights
or interests by other parties, such as mortgages,
liens, easements, profits, or restrictions on its use

that would diminish its value. The existence of
zoning restrictions do not constitute breach of
this covenant; however, the existence of a
violation of some type of zoning or building
restriction might be regarded as a breach thereof.
The covenants of quiet enjoyment and
general warranty both have the legal effect of
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
COVENANT 267