Law consists of the body of principles that govern conduct and that can be enforced in Courts or by administrative agencies. A right is the legal power to require someone else to do something or refrain from doing something. A duty is the legal obligation to do or not do something. The U. S. Constitution grants certain fundamental rights to persons, and these rights cannot be altered or eliminated by any statute, ordinance or judicial decision.
For example, Americans enjoy a fundamental right of privacy which guarantees the right to be protected from unreasonable governmental searches and seizures of property along with the right to be free from intrusion by the government and others into one’s private affairs. The U. S. Supreme Court has held that the right of privacy is a constitutional right even though this is not specifically stated in the constitution. State constitutions as well as certain federal and state statutes also recognize this right.
Sources of Law usually refers to a statute passed by State Legislature or Congress. This term can also refer to Constitutional law, whether a State Constitution or the U.S. Constitution. Statutory laws are laws passed by a State Legislature or Congress. Ordinances are laws passed by a City (e.g., city council) or County (e.g., board of supervisors).
Administrative regulations are generally regulations written by National or State administrative agencies. For example, the Internal Revenue Service (IRS) passes Revenue Regulations. These Regulations generally have the force of law since Congress gives the IRS this authority to pass them with the force of law. Generally, such regulations are interpretations and specific rules about a statute in the Internal Revenue Code.
Sometimes regulations do not have the force of law, but are looked to in interpreting law by the Courts. The regulations passed by the Wage & Hour Department of the Department of Labor regarding the Fair Labor Standards Act might be an example. These regulations do not carry the same weight of authority as regulations passed by the IRS.
Case law involves principles expressed for first time in a court decision. For example, imagine a spectator attending a baseball game in 1890. The batter fouls the ball which hits and injures a spectator. The spectator sues the team and the player who hit the ball for negligence. If the court, for the first time, held that a spectator assumes the risk of getting hit by a foul ball at a baseball game, this would establish the case law of assumption of risk. Old case law is often called common law.
Imagine that a spectator gets hit by a basketball while attending a basketball game. A court should use the precedent set by the baseball case to rule that the spectator assumed the risk of getting hit by a ball at a basketball game. The phrase stare decisis is Latin for let the decision stand. In other words, Courts should not change precedent.
Uniform State laws resulted from the work of the National Conference of Commissioners on Uniform State Laws. This Conference consisted of representatives from every State. They drafted statutes on various subjects for adoption by State legislatures. For example, the Uniform Commercial Code has been adopted in every State. This Code deals with such areas as the sale of goods and negotiable instruments (e.g., checks). A Uniform State Law is not binding in a state unless it is adopted by a state’s legislature.
Substantive law is law that creates, defines and regulates rights and liabilities, such as a law passed by Congress or a state’s legislature. This term also includes case law. Procedural law is law that provides the guidelines in enforcing rights and liabilities given by substantive law. For example, the Federal Rules of Civil Procedure deals with procedures that must be followed in prosecuting a lawsuit in a Federal Court. Procedures are given on such areas as filing a complaint, answering the complaint, what motions are allowed, etc.
The Court System and its Personnel A court is a tribunal established by a government to decide controversies, provide a remedy for persons who have been wronged, punish wrongdoers, and prevent wrongs.
Courts can decide only certain types or classes of cases (lawsuits). Jurisdiction is the power to hear and decide cases. Courts may have:
- Original jurisdiction is the power to decide cases where the law suit is filed.
- Appellate jurisdiction is the power to review decisions of lower courts to determine if a lower court made a reversible error.
- General or jurisdiction is the power to decide most types of cases, whether civil or criminal,
- Limited (special) jurisdiction is the power to decide only certain types of cases.
Criminal or Civil Jurisdiction
Criminal courts can decide cases involving crimes, whereas civil courts can decide cases involving private wrongs and other civil disputes.
Courts with original jurisdiction are trial courts, and they render the initial judgment in civil and criminal cases. A reversible error ordinarily occurs when a lower court: (i) applies the wrong law in resolving the case; or (ii) incorrectly interprets or applies the law in resolving a case.
The Federal Court System consists of the following three levels of courts:
Federal district courts have original jurisdiction to decide most cases filed in federal court including: (i) civil suits in which the U.S. is a party; (ii) actions involving any federal law, such as the US. Constitution, federal statutes or administrative rules, or US treaties; and (iii) cases between parties who are residents of different states if $75,000 or more is involved. Other federal courts with limited jurisdiction include the federal bankruptcy court, Tax Court, US. Court of International Trade, US. Claims Court, and Court of Military Appeals.
A U.S. Courts of Appeals has only appellate jurisdiction and review judgments of federal district courts in their respective circuits. The decision of a U. S. Court of Appeals is final unless the Supreme Court hears an appeal of the case.
The U.S. Supreme Court is the highest federal court and has original jurisdiction over cases involving ambassadors, public ministers or consuls, and cases in which two or more states are involved. It has appellate jurisdiction over all cases brought in federal court and certain cases appealed from state supreme courts. Through the process of granting a writ of certiorari, the Court has the discretion to decide whether or not to hear an appeal.
State Court Systems
The typical state court system consists of the following types of courts. A general trial court has general jurisdiction of criminal and civil cases. States may have courts with limited jurisdiction, such as juvenile courts, probate courts, and family law courts. Cities and counties may also have courts of limited jurisdiction such as municipal courts, traffic courts, and small claims courts. The highest court in most states is called the state supreme court and generally only has appellate jurisdiction. The decision of a state supreme court is typically final unless a writ of certiorari is filed with the U.S. Supreme Court.
The Participants in the Court System
The plaintiff is the party who commences a civil lawsuit and the prosecutor is the party who brings a criminal case on behalf of the government. The defendant is the party against whom a civil or criminal lawsuit is brought. The judge is the primary officer of the court, and the jury is a body of citizens who are appointed by a court to determine the facts and render a verdict in a case.
Someone working at a court may be an “employee” of the Court or an “officer” of the Court or both. The judge is the primary officer of a court. He or she may be elected or appointed. For example, federal judges are appointed. Many state court judges are elected (unless someone dies in office and a temporary appointment is made by the governor). Attorneys are considered to be officers of the Court. This is why a judge can appoint attorney to represent an indigent defendant in a criminal case. Attorneys have to be sworn in by a court in order to practice in that type of court.
A Clerk of the court is sometimes elected (e.g., county clerks) and sometimes appointed (e.g. a federal court clerk).
The sheriff of a county not only has law enforcement duties, but court duties as well. For example:
- Serving a summons (e.g., serving a civil complaint in a lawsuit);
- Serving a subpoena (on witnesses);
- Preserving Order in a court; and
- Carrying out judgments by taking possession of assets and selling them to satisfy a monetary judgment if necessary;
U.S. Marshals have similar duties in federal courts except they do not serve a summons or subpoenas except in rare situations.
Jurors are officers of the court. They are responsible for deciding on what the true facts are in a case (i.e., the finders of fact).
Steps in a Civil Lawsuit
Filing a Complaint or Petition
Any complaint or petition for relief in a court must be filed within the statutory time limit (Statute of Limitations). These statutes vary from state to state. These statutes also vary depending on what your cause of action is. For example, in many states, the statute of limitations regarding a cause of action for breach of contract is three years, while the cause of action for an intentional tort, like slander, is one year.
A complaint is a general statement of the plaintiff’s claim. The complaint must describe the actions that led to the claim of a violation (i.e., violation of rights). The claim can be for money damages. It could also be a claim for equitable remedies like specific performance (e.g., court forcing a party to abide by a contract) or an injunction (e.g., stopping a person from doing something). The complaint must establish jurisdiction of the court in which it is filed. For example, if the complain is filed in federal court, it must show diversity of citizenship or that a federal statutory or constitutional question is involved.
Class actions are sometimes filed against large companies. A class action can occur when a group of plaintiffs have same cause of action against one defendant. For example a group of consumers might sue a lender for failure to pay abide by federal truth-in-lending disclosures on their loan forms. One advantage in a class action is that legal expenses can be shared by a large group of plaintiffs. Class actions have been the subject of abuse. Oftentimes individual plaintiffs get a small amount, while their lawyers get a fee based on the total amount paid to all members of the class. This amount can be huge. This practice has led to some frivolous class action suits.
Service of Process generally involves attaching a copy of the complaint to a summons which is served on the defendant. The summons explains to the defendant what is going on and certain rights that that the defendant has. The summons explains:
- That the defendant is being sued;
- The name of the Court in which he is being sued;
- When he must file an answer; and
- The fact that a default judgment will be entered if no answer is filed.
The summons (or process) is delivered by an officer of the court. In many state courts, this can be a deputy sheriff or a professional process server. Deputy Marshals or process servers are used in federal court. Constables are used in justice of some states. In exceptional circumstances, when the defendant can not be found, service may be made by publication in a newspaper. Generally, anyone above the age of eighteen (18) can be appointed to serve process,
The summons must normally be served on the individual defendant. Some states allow service on a member of defendant’s household if the defendant is not available. A plaintiff must serve a corporate defendant by serving the registered agent or an appropriate officer of the corporation.
The Answer
In the answer, the defendant tells his side of the story. He is supposed to admit facts that are true and deny allegations that are not true. This answer must be filed within a certain period of time which is usually stated on the summons. Failure to file an answer can result in a default judgment against the defendant. This is a judgment for failure to defend that is entered against the defendant just like there had been a trial.
The defendant can file a counterclaim against the plaintiff as part of his answer. The effect of the counterclaim is that the defendant is suing the plaintiff in the same action. The plaintiff must file an answer to the counterclaim or a default judgment will be taken against him.
Ending a Suit through Motions
Motions are formal requests for the court to take some sort of action. The pleadings generally will consist of the complaint, the answer, any counterclaim, and all motions. In a motion for judgment on the pleadings, the defendant is arguing that even if everything said in the complaint were true, plaintiff would still have no cause of action against defendant. For example, suppose you have a business partner who calls you a liar in a room where only you and your partner were present. You sue you partner for slander. He would be entitled to a judgment on the pleadings since there was no publication (verbally or in writing) of your slanderous remark. Only he heard it. If the court grants this motion, the case is over unless you appeal the judgment.
Another type of motion that is often filed is a motion to dismiss. Two common grounds for this motion are expiration of the appropriate statute of limitations or that the court lacks jurisdiction over the case. For example, courts of equity in some states have jurisdiction over disputes involving land. If such a dispute were filed in a circuit court, a motion to dismiss for lack of jurisdiction would be appropriate.
A motion for summary judgment is appropriate in situations where there are no important facts in dispute and the only dispute is how the law should be applied to the facts. If there is no dispute over the important facts of the case, there is nothing for a jury to determine since that is their job, to decide what the facts are based on the evidence presented at trial. The judge will therefore apply the law to the facts and render a judgment. That will be the end of the case unless there is an appeal. Generally, this motion is not made unless all discovery has been completed.
Discovery
The period allowed for discovery is when the plaintiff and defendant get information from each other and other people to use as evidence at trial. Discovery pleadings generally consist of the following:
- Interrogatories are written questions submitted (with the court’s permission) by one party to a civil suit to the opposing party on any matter relevant to the case. The opposing party must answer in writing, under oath and within the period allowed by the court. The objective of the interrogatory process is to obtain admissions of the crucial facts of the opposing party’s case.
- Requests for Production of Documents: These are written requests served on the opposing party’s attorney requesting that documents relevant to the case be produced for inspection and copying.
- Requests for Admission: These are requests from one party to another to admit facts that are not in dispute so that the evidence produced at trial will basically include matters that are in dispute. Honest and complete responses can shorten the trial.
- Depositions: These are statements of the parties or potential witnesses taken under oath by a court reporter. Depositions are usually taken by a private court reporter (i.e., one not employed by a court) in the office of one of the lawyers. Depositions are used to pin down the testimony of witnesses and to find out what witnesses are going to say at trial.
Courts are generally very liberal regarding what information is subject to discovery. It must be generally relevant in some way although, technically, courts will allow the parties to ask for anything that is reasonably calculated to lead to discoverable evidence.
Attorneys do not have to disclose work product. Work product consists of the thoughts, strategies and theories of the attorneys of the parties, whether it is in the form of memos, notes, letters or any similar document.
Pretrial Conferences always are required in Federal Courts and are being required more and more in some state courts. The following usually occur in pretrial conferences:
- The parties agree on the facts not in dispute.
- They tell each other whom their witnesses will be.
- They identify what their evidence will be and provide copies of documents that will be offered into evidence.
Each party will submit in writing the facts they intend to prove and the law or jury instructions that should be applied to the facts. The Judge will generally act somewhat as a mediator, at least in federal court, and try to get the parties to settle case.
The Trial
Facts have to be in dispute to make a trial necessary. The Trier of fact can either be a jury or a judge alone, unless a jury is required by law. A jury trial is generally required by Constitution if the amount in controversy exceeds $20. However, a jury trial is generally not required if it is an equitable issue like an injunction action. The right to a jury can be waived. There is an absolute right to a jury trial in criminal cases.
Prospective jurors are drawn at random from voting lists or other lists (like licensed drivers) and make up the pool from which the juries are picked. Some prospective jurors are excused, like mothers of small children or someone on whom serving would be a hardship like an accountant during tax season.
Voir dire is used to weed out jurors that may be biased in some way. The judge and the attorneys ask questions about a prospective juror’s knowledge of the case, occupation, relationship to the attorneys or parties, and similar questions. Most states have jurors fill out a questionnaire on general topics to save time. Jurors can be challenged for cause. The argument would be that they were incapable of making an impartial decision. For example, they might be friends of one of the parties or one of the attorneys.
Attorneys can also use a limited number of peremptory challenges to remove potential jurors with whom they are uncomfortable. A peremptory challenge is a right to strike a juror with or without cause. However, the challenge can’t be based on race or sex. In a personal injury action involving a big company, plaintiff attorneys sometimes will want jurors of limited education rather than business people. People with limited education are sometimes more likely to rule on emotion against a big rich insurance company, for example.
In the opening statement, each party’s attorney gives a summary of what he intends to prove and the evidence that will be used. Next, the plaintiff presents his evidence, which will primarily consist of the testimony of witnesses. The plaintiff has the burden of proof. The standard of proof is the preponderance of evidence in most civil cases. The standard in criminal cases is beyond a reasonable doubt. The standard in some civil cases, like in a suit charging fraud, is clear and convincing evidence. This standard is somewhere in between beyond a reasonable doubt and preponderance of evidence.
In direct examination of a witness, the attorney calling the witness will ask the questions. In the cross-examination of the witness, the opposing counsel asks questions. He will often try to discredit the witness. For example, if accident that is the subject of the suit occurred at night, the questioning might go something like this:
- You testified that you were 60 ft. from the accident, is that correct?
- The accident happened on August 15, is that correct?
- It was cloudy that night, wasn’t it?
- It was dark, wasn’t it?
- You couldn’t see very well, could you?
A good cross-examiner will only ask questions that he knows the answer to and which will yield a yes or no answer. However, a witness has the right to explain his answer.
In redirect examination, the attorney who called the witness will try to undo any damage caused by the cross examination. The opposing counsel will then have the right to re-cross. This is similar to cross-examination.
The witness must have personal knowledge of what he is testifying about. He must have direct or indirect contact with facts of case, e.g., actually witnessed the accident in question or overheard the contract in dispute being negotiated. A witness must testify based on his personal knowledge. He generally cannot give his opinion unless it is based on his five senses. Examples:
- Looked dark.
- Smelled smoke.
- Saw the defendant take the item from the store.
- Felt pain.
- Heard the misrepresentations made by the salesman.
An expert witness can give opinions. For example, in a medical malpractice case involving a doctor, an expert witness (usually another doctor) will have to give an opinion that the defendant doctor’s actions were negligent in that they were not in accordance with the standard of care of the medical community. In an eminent domain suit a main issue will be the fair market value of the real property that is to be condemned. Both parties will need to call an appraiser as an expert witness to give his opinion as to the fair market value of the property.
After the plaintiff presents all his evidence, he rests his case. In a jury trial, the plaintiff will ordinarily make a motion for a directed verdict. This motion is to be granted by the judge if the plaintiff has not made a prima facie case. The plaintiff must offer proof of each legal element of his claim. This is called making a prima facie case. For example, to prove fraud, you would normally have to prove:
- that a false statement had been made;
- that defendant knew it was false;
- that defendant made statement to deceive plaintiff;
- that plaintiff was deceived;
- resulting in damages to plaintiff.
Failure to offer proof on one of these elements could cause a motion for directed verdict to be sustained. That would be the end of the trial.
Next, the defendant (i.e., the defendant’s attorney) calls his witnesses and introduces his evidence. Evidence, other than testimony, that either party could introduce would be documents, like a contracts or a letter, or tangible items like a defective piece of equipment.
Hearsay evidence is testimony that is offered by a witness who does not have personal knowledge of the information being given but just heard it from someone else. This type of evidence is generally inadmissible. In a suit where the issue is whether or not a contract was breached, suppose that testimony is offered by a witness to the effect that the witness heard the defendant say that he had no intention of strictly abiding by the terms of the contract. Such evidence would be hearsay and generally not admissible. There are several exceptions to the hearsay rule.
In the closing argument each attorney summarizes what he has proven. Hopefully, each attorney will have proven what he promised to prove during his opening statement. Attorneys for each party will also try to point out defects in the case of the opposition.
In a jury trial jury instructions are given to the jury at the end of the case. These instructions are prepared by the attorneys of both parties and presented to the judge for approval. The instructions tell the jurors what the law is and how to apply the law to the facts that have been proven. Here are some possible samples of jury instructions in a case involving conversion (civil theft of personal property):
Instruction to Jury as to the Definition of Conversion: You are instructed that conversion consists in the exercise of dominion and control over property inconsistent with, and in denial of, the rights of the true owner or the party having the right of possession. It is the exercise of a wrongful claim of right or dominion over the property which assumes that the converter is entitled to its possession. This taking to oneself of another person’s property is a conversion.
Instruction to Jury that Refusal to Deliver Goods after Demand and Tender of Freight and Storage Charges can Constitute Conversion: You are instructed that if you believe from the evidence that plaintiff was the owner of the property in question, and made proper demand and tender prior to this suit, but that defendant refused to deliver the property unless plaintiff paid freight and storage charges on other property not received or stored at the same time as the property in question, then such refusal of delivery by defendant constituted a conversion.
Instruction to Jury that Unauthorized Sale of Personal Property can Constitute Conversion: You are instructed that any assertion of title to, or any act of dominion over, personal property inconsistent with the rights of the owner, such as a sale of the property of one person by another, is a conversion. Therefore, if you find that the plaintiff was the owner of the (describe personal property) at the time of the alleged taking, and that the defendant sold it without the plaintiff’s consent you should find for the plaintiff.
Instruction to Jury Regarding Compensatory Damages for Conversion: You are instructed that if, under the evidence and the instructions of the court, you find the defendant liable to the plaintiff for damages for conversion of the (describe personal property), then the measure of the plaintiff’s damages will be the value of the property at the time and place of the conversion, with (number) percent interest since that date.
During jury deliberations, the jurors will decide on a verdict. A unanimous verdict is ordinarily not required in civil cases. In some states, only nine out of twelve of the jury must agree on a verdict. A hung jury occurs when the jury cannot agree on a verdict. The case must be tried over again or dismissed.
Post trial motions generally consist of the following:
- Motion for a new trial. Sample grounds would be if the jury misconstrued a jury instruction or the jury clearly should have found more damages.
- Motion for a judgment notwithstanding the verdict (JNOV). If the judge grants a JNOV, the judge reverses the decision of the jury and enters judgment for the other side because, for example, the jury’s verdict clearly did not conform to the evidence. It is rare for a judge to grant a JNOV.
An appeal to a higher court can be made by the party who lost the case or if the party who won believes that damages do not conform to the evidence. There are time limits on appeal. The time in which a party has to file a notice of appeal depends on the court.
The appellate court makes its decision on selected portions to the transcript of the trial, legal briefs of the attorneys, and oral arguments of the attorneys, if permitted by court. No witnesses are heard or evidence is presented.
