Northern Virginia Personal Injury Lawyer Blog : Northern Virginia Injury Lawyer & Attorney : Brien Roche Law Firm : Medical Malpractice, Product Liability, Car Accidents : Washington DC, North Virginia, Maryland

A diversity claim is one wherein the parties are of diverse citizenship. A citizen of the state of Connecticut may sue a citizen of the state of Massachusetts in the federal court in Massachusetts. That difference or diversity of citizenship establishes one of the elements of a diversity claim. The diversity claim, however, must also involve a monetary controversy in which the amount at stake is in excess of $75,000 (not including any interest or any attorneys fees that may be claimed).

The civil jurisdiction of the federal courts is legislated by Congress. Congress has chosen to limit the overall civil jurisdiction of the federal courts. The logic is that civil litigants can always go into state court to resolve their disputes, and as such the federal courts should be reserved only for certain types of disputes. Disputes between citizens of different states may be subject to some local or regional prejudice if brought in state court, and therefore Congress has decided that these types of civil claims, provided they meet the monetary amount set forth above, can be brought in federal court in order to avoid the potential prejudice or bias.
 

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The federal court system is quite different from the state court system. You will recall from what was said previously that the federal courts are courts of limited jurisdiction. On the other hand, the state courts are courts of general jurisdiction, or, to put it another way, virtually of unlimited jurisdiction. The term jurisdiction in this sense refers to subject matter jurisdiction—the types of claims that the court has the authority to hear.

There are some claims arising under federal law that can be asserted only in federal court, but the general rule is that virtually any type of civil claim (under state or federal law) can be brought in the state court system. That is not true of the federal court system. In order to bring a civil claim in the federal court, there are certain requirements that have to be met. There are two ways to bring a civil claim into federal court. You can bring a diversity claim or you can bring a claim involving a federal question.
 

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An expert witness is simply a witness who has expertise in a particular area, whose testimony the court has determined may assist the jury in understanding the issues of the case and therefore fairly deciding the issues. Expert testimony has been abused over the years in that it is sometimes presented on issues that do not require expert testimony. The rule of thumb for the admissibility of expert testimony is that it must relate to a subject matter that the jury might have difficulty understanding without expert testimony. The expert must assist the jury in understanding the issue. In a medical malpractice case in which there is an issue as to whether the surgery should have been conducted one way or another, the jury needs to hear expert testimony from medical doctors as to how the surgery should have been conducted. The jury does not have the expertise to decide that issue on its own, and therefore must hear from medical experts who will educate the jurors as to what the medical issues are and how the surgery either should have or should not have been conducted. It is then up to the jury to decide which of those experts they believe and to render a verdict.

Certain types of expert testimony have been ruled inadmissible by some courts. For instance, in some jurisdictions, expert testimony of how a particular automobile accident may have occurred is considered to be inadmissible because that is normally considered to be something that a jury can understand and determine on its own, without the aid of expert testimony.

There is a tendency within the legal profession to offer expert testimony on as many issues as possible in order to bolster the claim or defense being asserted. Recently, many courts have taken a somewhat dim view of that tendency and have endeavored to restrict the admissibility of expert testimony. The reasoning is that in many of these types of cases, the jury has sufficient expertise or common sense to understand and resolve the issues.
 

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A more common objection, however, is hearsay. The hearsay objection may arise not only in regard to documentary evidence, but also in regard to testimonial evidence (the testimony of witnesses). Generally defined, hearsay is an out-of-court statement that is offered for its truth value.

Example: The plaintiff makes a statement at the scene of an accident saying “I am at fault.” If it were to be offered as truth in court, would it be considered hearsay? Looking at the definition of hearsay as being an out-of-court statement that is offered for its truth value, the statement would be hearsay. The statement was made out of court (it was made at the accident scene) and it is being offered for its truth value (to prove that the plaintiff was at fault at the time of the accident because he said so).

The general purpose of the hearsay rule is to exclude evidence that may not be reliable. Another reason for the exclusion of hearsay evidence is that its presentation denies the other party the right to cross examine the person who is making the statement. If, at the scene of an accident, a police officer makes a statement to the effect that the plaintiff was at fault for the accident, that statement is hearsay if offered as evidence in court because it was stated out of court and is offered for its truth value. If the police officer does not testify at trial, then obviously he or she cannot be cross examined about that statement. It would be unfair to allow either party to repeat that statement in court because the witness making the statement is not present to be cross examined about it. If, however, the police officer does testify at trial, then it is possible that, under certain circumstances, he or she may be confronted with that prior statement and asked to explain it.

As indicated above, hearsay evidence is not generally admissible, but there are a number of exceptions to the hearsay rule. For example, when the plaintiff stated that he was at fault, the statement was hearsay. However, the court may still admit it on the grounds of it being an exception to the hearsay rule because it is an admission of a party to this particular action. The exceptions to the hearsay rule are very extensive—so extensive that some people might say that the rule itself now has no meaning.
 

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Documents and physical objects are frequently offered as exhibits or as evidence at trial. The first inquiry in regard to any document or other physical object is whether it is authentic. A document or object is authentic if it has been proven to be what it appears to be. If a will is presented to the court as an exhibit and is offered as the will of John Jones, then before that document can be entered into as evidence (shown to the jury), a witness will need to confirm that it is the will of John Jones and that the document bears his signature. That type of testimony establishes the authenticity of the document—simply that it is what it appears to be.

From a common sense point of view, lay people looking at that may say that it has the name at the top indicating that it is the Last Will and Testament of John Jones, it bears the signature of John Jones, and the signature appears to be authentic. Based upon all of that, common sense would suggest that the document is what it appears to be—the Last Will and Testament of John Jones. The court, however, normally requires more than simply the appearance of validity. Typically, a witness will need to testify that the document is in fact the Last Will and Testament of John Jones and the witness may have to testify as to how he or she knows that is so.

Once the authenticity of a document has been established, there may be other objections that could be made regarding that document. Any objections as to relevance and privilege will have to be dealt with.
 

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Evidence, in general terms, can fall into two broad categories. There is direct evidence and circumstantial evidence. Direct evidence consists of witnesses testifying to things within their personal knowledge or may consist of documents, pictures, or other things that directly prove a particular thing. For instance, a person testifying that “I saw the wolf attack the chicken coop” would be direct evidence.

Circumstantial evidence may be thought of as indirect evidence, or evidence that leads to a particular conclusion although there is no direct testimony, document, or thing that proves that event. Going back to the example of the wolf attacking the chicken coop—if no one actually saw the attack happen, but you see the wolf’s footprints around the chicken coop and the dead chickens, then you may conclude that the wolf is the one who killed the chickens, even though no one actually saw it happen.

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The principle criteria of admissibility is that the evidence must be relevant. Relevance means that the evidence that is being offered tends to prove or disprove an issue in the case. If the issue in the case is whether you ran a red light, evidence that shows that the traffic light was not properly functioning at the time of the accident is relevant and typically would be admissible. Likewise, evidence of the cycle of nearby traffic lights and your speed as you traveled from a nearby intersection to the intersection in question may all be relevant to whether or not the light was red when you entered the intersection. All of those facts tend to prove or disprove whether you ran that red light and therefore are relevant.

Relevance means that the evidence that is being offered tends to prove or disprove an issue in the case.

Some evidence may be relevant but it is so highly prejudicial that the court determines that it should not be admitted. In tort claims, most courts have determined that evidence of insurance is not admissible because it is too prejudicial. If a jury knew that a defendant was insured, then jury verdicts may be higher simply because of that. Accordingly, most courts have determined that evidence of a defendant being insured is not admissible even though it may be relevant.
 

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Within the law of evidence, there are certain presumptions that may arise on occasion. A presumption is a recognition that if one particular fact is proven, then a second fact is inferred or assumed from the first.

Example: If I prove that a child is under the age of seven, then a presumption arises that the child is incapable of negligence. That is, having proved first that the child was under seven, the court then recognizes a presumption that the child cannot be guilty of negligence.

A presumption is a recognition that if one particular fact is proven, then a second fact is assumed.

This presumption may be unrebuttable. A different presumption may exist as to a child between the ages of 7 and 14. This presumption is considered to be a rebuttable presumption. If it can be shown that the child is of sufficient sophistication, intelligence, and experience that he or she can understand the nature of his or her acts and is capable of committing a negligent act, then the presumption may be rebutted.

There are a number of other presumptions that exist in the law. A person accused of a crime is presumed to be innocent. That presumption must be overcome by the government by presenting evidence of criminal behavior. If a person holds the power of attorney for another individual and profits from that relationship, then there is a presumption that his or her profiting from that relationship is fraudulent. The basis for that presumption is that, as the attorney in fact or holder of a power of attorney for an individual, a person has a great deal of power over that individual and can manipulate the assets or activities of that individual.

A presumption of death from an absence of seven years may also arise. If a person disappears and is not seen or heard from for a period of seven years, then he or she is presumed dead.

Another presumption that is frequently referred to is the presumption of knowledge of the law. As a citizen of this country, you are presumed to know the law. Obviously, no one can know all of the laws. However, common sense should tell you that if you are about to engage in behavior that is questionable, then you may need to check to see whether that behavior is illegal. If you then engage in that behavior, you cannot raise a defense that you did not know the law, because you are presumed to know the law.
 

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As previously stated, the plaintiff has the burden of proof in a civil case. There are different burdens that apply in different types of cases. Generally, in a civil case, the burden of proof is what is referred to as the preponderance of the evidence—the greater weight of the evidence. Recall the example of tipping the scales by a featherweight. If the plaintiff tips those scales by so much as a featherweight, then his or her burden of proof based upon a preponderance of the evidence has been met.

In some civil claims, however, the burden of proof may be somewhat higher. In particular, regarding fraud claims, the burden of proof is generally considered to be what is called clear and convincing evidence. That burden of proof or standard of proof is higher than simply a preponderance of the evidence. If you were to think of a preponderance of the evidence as being something more than fifty percent, then clear and convincing evidence would be a level of proof in the range of seventy-five to perhaps as high as ninety percent.

Another term that is used in criminal cases is that of proof beyond a reasonable doubt. That is a level of proof that even goes beyond clear and convincing evidence, and probably is more in the range of ninety percent.

It is probably misleading to try to ascribe numerical figures to any of these standards of proof, since they really are not susceptible to numerical classification. These numerical classifications are merely designed to provide some illustration of the different levels of burden of proof.
 

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In the course of litigation, it is not uncommon for one party to raise an objection based upon privilege. There are several different privileges that exist within the law. The husband/wife privilege precludes either spouse from testifying against the other based upon what they learned from the other spouse during the course of the marriage. If a husband tells his wife that he has just murdered the next door neighbor, then the wife may be precluded from repeating that statement in a court of law.

One of the privileges that is at the foundation of our legal system is the attorney/client privilege. When a client retains an attorney, anything that client says to the attorney is deemed to be privileged and cannot be repeated by the attorney without the consent of the client, unless the communication involves proposed criminal activity. For instance, if a client tells his attorney that he is about to blow up a building, the attorney—under the law of most states—must advise him of the possible legal consequences, urge him not to commit the crime, and advise him that the attorney must reveal his intention to the authorities unless he abandons the proposed criminal activity. If the client confesses to his attorney that he blew up a building, the attorney is bound by the attorney/client privilege not to disclose that information.

In the case of the attorney/client privilege, the privilege belongs to the client, not to the attorney. If the client wishes to divulge those communications, then he or she may do so. The attorney, however, may not divulge those communications without the consent of the client, unless the client has already divulged them on his or her own. Some states also recognize other types of privileges, wherein communications made by one person to another may not be divulged without the consent of the person to whom the privilege belongs. (Such privilege exists in regard to the physician/patient relationship and the priest/penitent relationship.)

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The competency of a witness to testify may frequently become an issue. Generally, any witness within the age of reason is considered to be competent, provided that witness has not been declared incompetent by a court. The age of reason varies depending upon the maturity and intelligence of the witness, with age 7 generally being a cutoff point. Between ages 7 and 14, it is a matter for the trial judge to determine whether the child is of sufficient sophistication to testify. A person is declared incompetent by a court if there has been a judicial determination that he or she is deficient in mental capacities to the point where he or she cannot conduct his or her own affairs and needs to have someone else appointed as a guardian. If a person has been declared incompetent, then he or she may not be able to testify.

Other issues of competency may arise in terms of taking of an oath. Some people maintain that they cannot take an oath because of their religious beliefs. Normally, that is resolved by having the person affirm that they will tell the truth rather than having them state that they will tell the truth so help me God.
 

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Once a witness has been put on the witness stand, he or she may be impeached. To impeach a witness means to contradict him or her in some manner or form, or to otherwise undermine his or her credibility. A witness may be impeached by presenting contrary statements that he or she has made on prior occasions about the issue in controversy; by showing that he or she has some particular bias or prejudice against the other party; or, by attacking the witness’ character by showing that he or she has been previously convicted of a criminal offense constituting a felony or a crime of moral turpitude. (A felony is a crime for which a person may be imprisoned for more than a year. A crime of moral turpitude is a crime that involves lying, cheating, or stealing.)

Normally, in a civil case, general character evidence is not admissible. The court in a civil action does not want to hear evidence about how good a person the plaintiff or the defendant may be. However, that type of testimony may be allowed in a criminal action to show the character and reputation of the defendant who has been accused of the crime.
 

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The purpose of cross-examination, on the other hand, is to allow the adverse party (the party who has not called the witness) to try to pin that witness down. The witness is not typically allowed to explain his or her answers on cross-examination.

A skillful cross examiner will ask only questions in the form of Isn’t it true that…. That type of questioning is intended to elicit a simple yes or no answer and to not allow the witness to explain answers in any detail. This form of questioning is called leading. If the witness wishes to explain the answer or if the attorney who initially called the witness wishes to have the witness explain the answer, then that attorney will have the opportunity on redirect examination (the examination that takes place after the cross-examination).

The general format by which questioning of witnesses is conducted is:

* first, by direct examination, in which nonleading questions are asked by the attorney calling the witness;

* second, by cross-examination by opposing counsel, frequently through the use of leading questions; and,

* third, by redirect examination, in which the party that originally called the witness may ask more nonleading questions, allowing the witness to explain any answers that may have been given on cross-examination.

Cross-examination is generally limited by the scope of the direct examination. If, on direct examination, the witness was only asked a limited number of questions about limited issues, then the cross-examination must be limited to those issues. The cross-examination may not go beyond the general scope of the direct examination.

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The party that calls a witness to testify is required to ask that witness nonleading questions. That form of examination, called direct examination, is intended to allow the witness to testify rather than to have the attorney testify. If the attorney were allowed to ask leading questions (questions that suggest the answer within the content of the question) then in essence the attorney is testifying and not the witness. An example of a leading question would be “Isn’t it true that you beat your wife?” That question, by its very content, suggests that the answer is yes—that the witness does beat his wife. That type of questioning is not allowed on direct examination. A nonleading form of that same question would be “What do you know about your wife having been beaten?”

The general purpose of direct examination of witnesses is to allow the witness to explain what he or she knows. If that witness provides testimony that needs further explanation, then the attorney can ask the witness to simply explain the answer.

 

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If you have ever been in a courtroom in which multiple witnesses are potentially going to testify, you may recall the judge asking whether there is a request for a rule on witnesses. The rule on witnesses means that witnesses who have not testified should not be in the courtroom. That rule does not apply to the parties to the litigation. This means the plaintiff and the defendant in a civil case both have a right to be present, even though they may testify as witnesses. However, witnesses who have not yet testified may be excluded from the courtroom until they testify. In addition, this rule on witnesses may be extended to prohibit anyone from talking to witnesses about what is going on in the courtroom until that witness gives his or her testimony. A violation of that rule on witnesses may result in a witness being excluded from testifying. The purpose of this rule is to prevent one witness’ testimony from being influenced by what another witness has said in the courtroom.

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As previously defined, evidence is the presentation of testimony from witnesses and the presentation of documents or physical things for the jury to review. The rules of evidence govern how those things may be admitted into evidence. For something to be admitted into evidence technically means that the jury is allowed to hear it or see it. If it is not admitted into evidence, then the jury should not see or hear it. If, by chance, they have heard or seen evidence that was not properly admitted, they will be instructed to disregard that evidence. The rules of evidence are designed to provide some degree of reliability to the evidence that is presented in the courtroom. These rules can become very complex.

The rules of evidence are designed to provide some degree of reliability to the evidence that is presented in the courtroom.

The principal form in which evidence is presented is by putting a witness on the witness stand and having him or her respond to questions from the attorney who has called that witness. The testimony rendered by that witness is considered to be evidence. The jury may rely upon that evidence to decide the case. The testimony presented by one witness may be sufficient to convince a jury to rule in favor of the party that called that witness, even though the other party may have called ten witnesses who presented contrary testimony.
 

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Most courts have adopted rules of procedure and rules of evidence. Those rules of procedure may be contained, to some extent, in the state code (in which case the procedural rules in essence become statutory law), or they may be in a formal set of rules referred to as the rules of procedure. In the federal court system, there is a set of rules referred to as the Federal Rules of Civil Procedure. Many state courts have adopted similar sets of rules of civil procedure.

In addition, there may be a set of rules referred to as the rules of evidence. In the federal court system, there is a formal set of rules referred to as the Federal Rules of Evidence that have been written by the Judicial Conference. Those Federal Rules of Evidence apply in federal court. At the state court level, many states have adopted their own state rules of evidence. Those rules are designed to govern the admissibility of evidence in that state court system.
 

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If either party feels as though he or she has not been dealt with fairly by the trial court, either has a right to appeal that decision to the next highest court within that state’s court system. Although each party has a right to appeal, the court may be a court of discretionary appeal, and may decide not to hear the case.

An appeal is a very laborious process. In order to properly present an appeal, the transcript of the trial proceeding may have to be prepared. That transcript is prepared by a court reporter. The court reporter expects to be paid for the preparation of a transcript. The preparation of a transcript frequently costs several thousands of dollars. In addition, the party bringing the appeal has to present a legal argument (in the form of a brief or memorandum) to the appellate court stating why the trial court’s decision is in error.

The parties are not allowed to present new evidence on appeal. Instead, they are bound by the record created at the trial court level. Anything that was not properly presented or properly objected to at the trial court level is not going to be considered on appeal. An appeal is not an opportunity to re-try the case. It is simply an opportunity to request a higher court to review and correct an error made by the trial court. If a reversible error is found, the case is sent back to the trial court for a new trial or, in some instances, the appellate court reverses the trial court’s decision and enters a new judgment.
 

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Once a jury verdict is entered, either party has a right to make post-trial motions. Those posttrial motions will typically come in the form of a motion for a new trial, a motion to decrease the size of a jury verdict, or, in some instances a motion to increase the size of the jury verdict.

Judges are reluctant to disturb a jury verdict. The traditional thinking has been that once a jury has spoken, that statement is final. If, however, the jury obviously disregarded the instructions of the court or returned a verdict that is clearly excessive or inadequate, the court has the authority to set aside that verdict (and, in some states, to actually alter that verdict).

Motions for a new trial must be based on some procedural error committed by the trial judge. For instance, if the trial judge were to admit evidence that should not have been admitted, allowed an attorney to say something to the jury that is inappropriate, or improperly instructed the jury on an issue of law, then any of those may be a basis for a motion for new trial.
 

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Any decision rendered by a jury is normally expected to be unanimous in a civil case. The jury reviewing the evidence is required to apply the principle that the plaintiff has the burden of proof. The plaintiff, being the one who is bringing the claim, has the burden of proving his or her case by what is referred to as the preponderance of the evidence (the greater weight of the evidence). If you think of a scale that is evenly balanced, and if a feather were placed on one side of that scale, then that feather’s weight would constitute a preponderance of the evidence. If the plaintiff tips the scales in his or her favor by so much as a featherweight, then the plaintiff has met his or her burden of proving the case by a preponderance of the evidence.

Sometimes people ask: What does it mean to prove something? Something is proven by presenting evidence in support of it. Any evidence may be sufficient to prove something. One witness testifying that he or she saw you run a red light may be sufficient to establish your fault in an auto accident case, even though you presented ten witnesses who said that the light was green.

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At the conclusion of all of those motions—if they are denied—the jury will be instructed by the court what the law is in the case. Those instructions may be oral or they may be given to the jury in writing. The jury will then be instructed to consider all the evidence, the jury instructions, and then render a verdict.

Before they begin their deliberations, however, the jury will hear from the attorneys one more time in the form of closing arguments. The purpose of closing arguments is to give the attorneys one last opportunity to argue their respective positions on the case in order to persuade the jurors to vote in their favor.

The size of a jury may differ from jurisdiction to jurisdiction. The size of a jury in a civil case is usually anywhere from five to twelve people, but the parties can agree to have fewer jurors.
 

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Once the opening statements have been completed, the plaintiff will present his or her evidence first. That evidence comes in two forms—the presentation of testimony from witnesses and the presentation of documents or other tangible things for the jury to review. At the conclusion of all the plaintiff’s evidence, the defendant has the right to make a motion to dismiss or to strike the plaintiff’s case based upon any number of legal theories. This type of motion is a statement by the defendant saying that even if the plaintiff’s evidence is to be believed, it is not sufficient to justify a judgment being entered against the defendant. The court normally will rule on such a motion at that time. Typically, that type of motion is denied. If the motion is denied, the defendant then has the right to present his or her evidence.

At the conclusion of the presentation of all of the defendant’s evidence, the defendant may renew his or her motion to strike or motion for a directed verdict. In addition, the plaintiff may make a motion to strike any defenses and to request the court enter judgment against the defendant as a matter of law. That type of motion is a statement by the plaintiff that even if what the defendant says is true, he or she still has no bona fide defense to the claim, and therefore, there is nothing for the jury to decide.

The function of a jury is to hear evidence when there is a factual dispute, to evaluate that evidence, and then to render a decision based on it.

It is important to keep in mind that the function of a jury is to hear evidence when there is a factual dispute, to evaluate that evidence, and then to render a decision based on it. If there is no true factual dispute, then there is nothing for a jury to decide and the court (judge) will make the decision.
 

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Once a jury has been chosen, the court will allow both parties to have opening statements. The purpose of opening statements is to allow the attorneys to give the jury a road map of where the case is going to go. Opening statements are not intended to be argumentative, but are intended to simply be a recitation of the facts that will be presented during the course of the trial.
 

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If the case is to be tried before a jury, then the first stage in the trial is voir dire. Voir dire literally means “to speak truthfully.” It is an opportunity for certain questions to be asked of the potential jurors to determine whether they know anything about the case, whether they know any of the parties, whether they have any interest in the outcome of the case, or whether they may have any particular bias or prejudice for or against either party. Voir dire is typically conducted by the attorneys, although in some courts, it may be conducted by the judge. Once the voir dire is completed, the parties have the opportunity to strike (dismiss) all or some of those jurors they feel would not be receptive to their case.

In addition, some jurors may be stricken for cause. For example, if a juror indicates that, based upon what she has heard about the case, she has already made up her mind, typically she is going to be stricken for cause because she comes to the case with a predisposition.
 

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After the conclusion of the discovery process, there may be a pretrial conference with a judge. The purpose of that pretrial conference is to identify the remaining issues that need to be decided and to attempt to resolve any outstanding legal issues prior to the trial. In addition, some courts conduct what are referred to as settlement conferences. These conferences may be conducted by neutral mediators and are designed simply to allow the parties to come together in an informal setting to discuss settlement. Those settlement discussions are generally confidential and if the case does not settle, anything said during those settlement conferences cannot be used against the other party.

If the case is not settled it will be scheduled for trial. It may be tried either before a judge or a jury. Juries are picked from the general population of that city, county, or jurisdiction where the court sits. Every state has different rules as to exactly how juries are chosen, but typically they are chosen from the voter registration rolls and property ownership rolls of that jurisdiction. In some jurisdictions, they may also be drawn from the Department of Motor Vehicle rolls identifying persons who have drivers’ licenses.
 

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Once the answer to the complaint has been filed, most civil claims allow for what is called discovery. Discovery is designed to allow each party to ask the other party what they know about the claim that has been asserted, who any relevant witnesses may be, and to identify any relevant documents. Discovery may come in several different forms.

It may come in the form of written interrogatories, consisting of written questions that either party may send to the other. These have to be answered in writing and under oath. The discovery may also consist of requests for documents and inspection, meaning that the party issuing the request wishes to see documents in the possession of the other party, or may wish to inspect certain things in the custody or control of the other party.

In addition, there may be requests for admissions, which are written statements the other party is required to either admit or deny. The purpose of requests for admissions is essentially to narrow the issues of contention in the case so that each party knows exactly what they are fighting over.

There may also be depositions allowed. A deposition is an oral examination that is conducted in the presence of a court reporter. The purpose of a deposition is to have an opportunity to orally examine the other party or witnesses so that there are no surprises at trial. The overall purpose of this discovery process is to make sure that each side has ample opportunity to discover the claims or defenses of the other party so that at the time of trial, each party is fully aware of what the other party intends to present.

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Once the lawsuit has been filed and the complaint has been properly served, the defendant has a designated period in which to respond. That period of time normally ranges anywhere from twenty to thirty days. The defendant may respond by filing a motion or by filing an answer. The different types of motions that may be filed by the defendant in response to the complaint would be motions raising issues of lack of jurisdiction, failure to properly state a claim, or certain other affirmative defenses.

A motion based upon a lack of jurisdiction is a statement that the court in which the suit was filed does not have jurisdiction—the authority—to hear the claim. Another type of motion that may be filed is a motion to dismiss for failure to state a claim, which means that the defendant is saying that even if everything stated in the complaint is true, it still does not constitute a basis for a lawsuit against the defendant.

Other types of affirmative defenses that may be raised through a motion would be such defenses as the statute of limitations, res judicata, release, accord and satisfaction, and several other such defenses. If a statute of limitations defense is raised, the defendant is claiming that your suit was filed too late and is therefore barred by the statute of limitations. If a motion is filed based upon res judicata, the defendant is claiming that this claim has already been adjudicated once and it cannot be litigated again. If the defendant raises the defense of release or accord and satisfaction, there has been some sort of settlement reached in regard to the claim and therefore the reassertion of the claim is barred.

If no motions are filed within the time allowed after service of a complaint, the defendant is to file an answer. That answer is supposed to respond to each of the numbered paragraphs of the Complaint so that the plaintiff knows exactly what issues are going to be contested. In addition, the defendant may be called upon to raise any affirmative defenses in that answer. An affirmative defense may be any of the defenses mentioned above that could be raised in the form of a motion or other such defenses that would constitute an automatic bar to the claim asserted.
 

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Once a lawsuit has been properly filed, that complaint has to be served upon the defendant. It is served either by the local sheriff, a special process server, or any other person authorized by law.  The form of service is typically personal service, meaning that the complaint and any other accompanying court process (documents) issued by the clerk of the court has to be served on the defendant in person. Some states authorize what is referred to as substituted service, meaning that in some instances, the complaint may be delivered to a member of that defendant’s household or may even be posted on the front door of the residence where the defendant is believed to live.

If the defendant cannot be found through one of those means, then there may be other forms of substituted service allowed by state law. These consist of service upon the Commissioner of the Department of Motor Vehicles in regards to an automobile accident, and in some instances, service upon the Secretary of State when the defendant is believed no longer to be living in that state. These other forms of service are governed by state law, and thus vary from state to state.
 

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Any person can walk into a courthouse and file a lawsuit. The party bringing that lawsuit is referred to as the plaintiff. The party being sued is referred to as the defendant. The initial document filed with the court to initiate a lawsuit may have different names, depending upon the jurisdiction where you are filing. Typically, the initial document filed with the court to initiate a civil claim is referred to as a complaint. In any complaint, you can ask for either legal relief or equitable relief. If the claim being pursued is a legal claim, then the damages being requested would consist of compensatory damages and perhaps punitive damages.

Compensatory damages are designed to make a person whole from the loss he or she has suffered.

Compensatory damages are damages that are designed to compensate the plaintiff for his or her injuries. To put that another way, compensatory damages are designed to make that person whole for the loss he or she has suffered as a result of the conduct of the defendant. Punitive damages, on the other hand, are designed to punish the defendant for egregious conduct. Punitive damages are rarely awarded, and normally when they are awarded they are carefully reviewed by the court to determine the appropriateness of the award.
 

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Within the civil justice system there may be several divisions or offices of the court dealing with different types of issues. There may be a landlord/tenant division, a small claims division, a domestic relations division, a probate division, and a tax division. Each of those divisions deals with the types of claims associated with their name. For instance, the landlord/tenant division will deal with landlord/tenant disputes, including evictions by landlords or complaints by tenants involving failure to comply with building code requirements.

The small claims division may deal with any type of claim within a jurisdictional monetary limit. The small claims division is a type of people’s court, wherein lawyers are typically not allowed and the strict rules of evidence may not apply. The domestic relations division deals with domestic matters, including divorce, custody, alimony, child support, and adoption. The probate division deals with estate matters and guardianship matters. Finally, within a civil court there may be a general civil division that would hear all claims other than the ones mentioned above.
 

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Within the civil justice system there are two types of claims that can be presented and resolved by the court—law claims and equity claims. A law claim is a claim for money damages. Money damages means that the party bringing the suit (the plaintiff) is requesting that a monetary judgment be awarded against the party who is being sued (the defendant). Another type of claim that can be litigated in the civil justice system is an equity claim. In some states an equity claim is referred to as an equitable claim or a chancery claim. Equity claims are claims wherein the party bringing the suit is not necessarily asking for judgment for a monetary amount, but is asking the court to direct the other party to either do something or not to do something.

Example: A law claim might arise from an automobile accident where one party is injured and claims the injury is due to the fault of the other driver. The lawsuit may be filed requesting the court to award a monetary amount against the other party that is accused of being at fault.

An equity claim might arise when one neighbor is seeking to enjoin (or prevent) another neighbor from building an extension of their home onto the first neighbor’s property. To prevent that type of encroachment, a lawsuit would be filed requesting an injunction. If the court granted that request, then an injunction would be issued preventing that activity.
 

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There are two types of cases—criminal and civil. A federal judge may one day conduct a complex civil trial and the next day preside over a routine federal criminal case. There is no distinct demarcation between civil court and criminal court within the federal court system. However, there may be a clear demarcation between the two in some states. There may be a specific court that is known as the criminal court, wherein only criminal cases are heard. The important thing to keep in mind is that the civil system is entirely separate and distinct from the criminal system. Indeed, the rules that apply to one in many instances have no application whatsoever to the other. This chapter explains civil justice in both the state court and the federal court systems.

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This concludes the section dealing with the sources of the law. To fully understand what the law is, you must know whether the law referred to is constitutional law, statutory law, case law, or administrative law. In some respects, there is a certain pecking order or hierarchy that might be applied to those different sources of the law. If a particular activity is either allowed or disallowed under the Constitution, then no statutory law, case law, or administrative law can overturn that. That is not to say, however, that all constitutional rights are necessarily absolutes.

Your constitutional rights can be restricted to some extent by state or local laws.

For instance, people have a constitutional right to peaceably assemble, but for purposes of maintaining public order, the government may require that you obtain a permit to conduct that peaceable assembly on public property. Simply because you want to peaceably assemble by calling a demonstration on Fifth Avenue in Manhattan does not mean that you have an absolute right to do that during the middle of rush hour. In that sense, your constitutional rights can be restricted to some extent by state or local laws.

In looking at a legal issue or question, the general checklist of things that you would want to ask yourself are the following.

o Is there some constitutional provision that may be involved?

o Is there any statutory law that may be controlling?

o Is there any case law dealing with this issue, and if so, what court am I going to look at in terms of determining the source of that case law? (If the issue is one that involves provisions of the U.S. Constitution, then the U.S. Supreme Court is the ultimate decisionmaker in those questions. Look at case law from that court, as well as case law from any of the lower federal courts. If the issue is simply one involving state statutory law, look at case law from the highest court of that state.)

o Are there any administrative rules or regulations that may be applicable?
 

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The legal profession itself is governed by rules and regulations published by their profession. Within every state there is an agency or entity that is responsible for publishing rules that govern the conduct of attorneys. Those rules of conduct are generally referred to as disciplinary rules. If an attorney violates a disciplinary rule, he or she may be disciplined by the state bar and subjected to certain sanctions. For example, if you were represented by an attorney and found that the attorney had done something that you considered to be highly improper, you may want to look at the disciplinary rules to see if there is something set forth there that might govern the particular behavior in question.

There are also rules of procedure designed to provide some uniformity to how lawsuits proceed. Rules of civil procedure:

* define what should be contained within a set of suit papers initiating a lawsuit (also called a complaint);
* define how a complaint is to be served;
* set forth what affirmative defenses may be raised by a defendant;
* set forth a variety of rules governing the discovery process; and,
* set forth the procedures by which a judgment of a court may be reviewed by the trial court.

Rules of criminal procedure govern how a defendant is to be dealt with in terms of the initial charging, his or her right to be informed of the charge, what rights he or she may have in terms of discovery, and how the eventual trial will proceed.

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These rules and regulations can be very important. Suppose you wanted to assert a claim against a motel owner because of carbon monoxide poisoning that occurred while you were in the motel. The type of claim that would be asserted would be a civil claim (law claim) for money damages based upon the negligence of that motel owner. There may, however, be regulations published by the state agency that controls the motel/hotel industry that set forth certain standards as to how motels are to maintain gas producing appliances, as to prevent carbon monoxide poisoning. The regulations published by that state agency could be extremely helpful in pursuing a civil claim against that motel owner.
 

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At the federal level, all regulations are published within the Federal Register. They are also contained within a document known as the Code of Federal Regulations (C.F.R.). The C.F.R. can be found in a law library and is generally organized in numerical fashion to correspond (to the extent possible) with the statutory code sections that they are designed to interpret and expand upon.
 

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The rule making process consists of the following four steps.

1. The agency publishes proposed rules.

2. Members of the public are given the opportunity to comment on those rules.

3. The rules may be revised based upon the public’s comments.

4. The final rules are enacted.

The document where these rules are published is known as the Federal Register. The Federal Register is a publication put out by the Government Printing Office that contains all of the proposed and adopted rules and regulations of the federal agencies.

As discussed earlier, there may be administrative agencies within the legislative and judicial branches of government. For instance, the General Accounting Office is an independent administrative agency created by Congress and charged with investigating all matters related to the receipt, disbursement, and use of public money. At the state level within the judicial branch of government, there may be an administrative agency, known as the state bar, charged with the responsibility of administering and supervising the legal profession. As an administrative agency within the judicial branch of government, a state bar is subject to the control of the highest court of that state.

The regulations that are adopted by administrative agencies have the effect of law. They are designed to expand on laws created by legislative bodies. The legislative bodies that enact the statutory law try to be as precise as possible in terms of writing the statutes. However, the statutes are often somewhat general because the legislative body simply does not have the expertise or, in some cases, the time to enact statutes that deal with all of the nitty-gritty issues that may arise within that subject area. The administrative agencies generally have the expertise and the time to publish regulations that are much more precise and that deal with the nitty-gritty issues that the agency confronts.

The regulations that are adopted by administrative agencies have the effect of law.

The regulations published by the administrative agencies are designed to be an explanation and an elaboration of the statutes that the agency is charged with enforcing. Theoretically, there should never be a situation in which there is a conflict between what the statute says and what the regulations set forth by the agency say. If there were such a direct conflict, then the statute would be controlling. The regulations are designed to flesh out the statutory scheme. You may think of the statutes as being the skeleton and the regulations as being the meat on the bones.

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Another facet of the law is what is referred to as administrative law. At both the state and federal level, there are administrative agencies. Most of those agencies are part of the executive branch of government. As discussed in the material dealing with constitutional law, our government is divided into three branches—the executive branch, the judicial branch, and the legislative branch.

The executive branch is headed by the president at the federal level and by the governor at the state level. The judicial branch at the federal level is headed by the chief justice of the U.S. Supreme Court. At the state level, the Judicial branch is headed by the chief justice of the highest court of that state, which in most instances is referred to as the Supreme Court (although in some states, it may be referred to as the Court of Appeals).

Within the legislative branch, there typically is no one person who is the head of that branch. At the federal level, the legislature is bi-cameral, meaning that it consists of two bodies. Those two bodies are the House of Representatives and the Senate. The Speaker of the House is the leader of that legislative body. The President Pro Tempore is the leader of the Senate. At the state level, there may be the same general type of organization within the legislative branch.

You may be asking yourself, What do the above comments have to do with administrative rules or regulations? Although most administrative rules and regulations are set forth by administrative agencies within the executive branch, there may be administrative agencies within the judicial branch or the legislative branch that could set forth rules and regulations of their own.

The administrative agencies that most of us are probably familiar with are federal agencies like the Food and Drug Administration, the Department of Justice, the Department of Commerce, the Department of Agriculture, and the Federal Communications Commission. Some of these federal agencies are cabinet-level agencies, meaning that the heads of those agencies are members of the President’s cabinet.

Others may be considered to be independent agencies. For instance, the Federal Election Commission is an independent agency that has the specific responsibility of overseeing compliance with the federal election laws by presidential candidates and other candidates at the national level. Another independent agency is the Nuclear Regulatory Commission, which is charged with the responsibility of overseeing the use of nuclear power in the nonmilitary arena.

These agencies generally have the authority to issue regulations. These regulations in some instances may be referred to as rules. Although there is a technical distinction between a rule and a regulation, for purposes of this discussion they are treated as being one and the same. These administrative agencies are created by acts of Congress and are given a specific purpose as set forth in the U.S. Code. The agencies are also given the authority to write and publish rules and regulations that will govern its conduct.

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The importance of case law from various courts, to some extent, has to be evaluated based upon the status of the court that rendered the decision. This refers to the precedent value the case holds over other courts.

For instance, a decision rendered by a trial judge in the Hanover County Superior Court in North Carolina may be of great interest nationwide, but it is not binding on anyone other than the parties in that particular case. If that case, however, is appealed to the North Carolina Court of Appeals and a written decision is rendered, then that case law becomes binding to every person in North Carolina as the law of the state. If that case is then appealed to the North Carolina Supreme Court, then the decision rendered by the North Carolina Supreme Court becomes the law of North Carolina and is binding upon all litigants in the North Carolina State Court System.

If that case involved a constitutional or federal issue, it may be further appealed to the U.S. Supreme Court. A decision by the Supreme Court is binding upon the entire nation.

In the federal system, a decision rendered by a United States District Court judge is typically only binding upon the litigants in that case. However, if that case is appealed from the United States District Court to the United States Court of Appeals for that circuit, then the decision rendered by that United States Court of Appeals becomes binding upon all of the persons within that federal circuit. For instance, the Fourth Circuit Court of Appeals includes the states of Maryland, North Carolina, South Carolina, Virginia, and West Virginia. Any decision rendered by the United States Court of Appeals for the Fourth Circuit is binding upon all persons within that five state area.

It is quite possible that the United States Circuit Court for the Eleventh Circuit could decide a case with similar issues and come up with an opposite conclusion. Typically, when a conflict exists between circuits, the issue will be presented to the U.S. Supreme Court to decide how to resolve the conflict between the circuits.
 

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Written decisions rendered within the state court system are found in regional reporters. The publishing house that is responsible for publishing state court decisions has essentially divided the United States into regions. For instance, Illinois is contained within the North Eastern Region. As such, a decision by the Illinois Supreme Court that is reported in written form could be found both in the state reporter, known as the Illinois Official Supreme Reporter, and also in the regional reporter, known as the North Eastern Reporter. The decision of Jones v. Smith from the Supreme Court of Illinois discussed earlier would be reported under the same name with the following citation: 208 Ill. 2d 450, 804 N.E.2d 480 (2004). The decision then would be found in volume 208 of the Illinois Official Supreme Reporter at page 450 and would also be found in the regional reporter known as the North Eastern Reporter at volume 804, page 480. Again, the year refers to the year when the decision was rendered.

Written decisions from trial courts at the state court level frequently are not published by any publishing house. To the extent they are available at all, they may only be available within that local court house. Some states have adopted trial court reporting systems wherein certain written decisions that are presented to them may be published. In the state of Virginia there is a publication known as Circuit Court Opinions, which consists of written decisions made by circuit court judges in the state of Virginia. Those decisions, however, are only published if either the judge or one of the attorneys forwards that written decision to the publishing firm.

Courts either at the state or federal level are charged principally with resolving disputes that are presented to them and in that context, render interpretations of state or federal statutes or state or federal constitutional provisions. Any decision rendered by a trial court judge is subject to being reviewed and potentially overturned by the appellate court that has appellate jurisdiction over that trial court. For instance, in the federal system, any decision rendered by a United States District Court is subject to appeal to the United States Court of Appeals for that circuit. The United States District Court judge may have rendered a written decision.

That decision then can be reviewed by the judges in the United States Circuit Court for that circuit, and those judges on the circuit court can either agree or disagree with the decision from the United States District Court. The decision rendered by the United States Court of Appeals likewise may be appealed to the United States Supreme Court. If the U.S. Supreme Court exercises its discretion and decides to hear the case, then the U.S. Supreme Court can either uphold or reverse that decision.

At the state court level the same procedure applies. Any decision rendered by a trial court can be appealed to the appellate court that has jurisdiction. The appellate court can then either uphold or reverse the trial court decision. The high court within that state generally has the last word on those cases that are initially tried within that state. However, if the case involves an issue of federal or constitutional law, then the U.S. Supreme Court can decide to hear a case from the state court system.
 

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Case law for the most part comes from appellate courts. The appellate courts may be intermediate courts or they may be the high court of that state or court system. For instance, there is an abundance of case law rendered by the U.S. Circuit Court of Appeals. Likewise, there is a wealth of decisions rendered by the United States Supreme Court.

The decisions of the appellate courts are contained within various bound volumes published by different law publishing companies. A written decision rendered by a United States District Court judge may be published in legal books known as the Federal Supplement (abbreviated F. Supp.).

Example: A decision rendered by a United States District Court judge is generally referred to by the name of the parties, e.g., Jones v. Smith, 317 F. Supp. 2d 820 (N.D.IL. 2004). That case would then be found in volume 317 of the Federal Supplement Second beginning on page 820. The parenthetical means that it is a decision from a United States District judge in the Northern District of Illinois, that was rendered in 2004.

NOTE: The volumes are put into series and when they reach a certain number, generally 999, the numbering begins again at one. That is why you will find a 2d or 3d in the citation.

Decisions rendered by a United States Circuit Court of Appeals are found in law books known as the Federal Reporter. For instance, a decision rendered by the United States Circuit Court of Appeals for the Ninth Circuit could be reported at 356 F.3d 121 (9th Circ. 2004). That citation means that the decision was rendered by the United States Court of Appeals for the Ninth Circuit in 2004 and can be found in Volume 356 of the Federal Reporter Third Series at page 121.

Decisions from the United States Supreme Court may be reported in three different reporting systems, all of which are published by different publishing houses. For instance, a decision from the United States Supreme Court would frequently be referred to as Jones v. Smith 535 U.S. 85, 125 S. Ct. 25, 159 L. Ed. 2d 125 (2004). That decision would be found in any one of those three volumes with the first volume being referred to as the United States Reporter, Case Law 23 Volume 535, page 85. That same decision can also be found in the Supreme Court Reporter, in Volume 125, page 25 and would also be found in the Lawyer’s Edition Second Series in volume 159, page 125. The year refers to the year when the decision was rendered.
 

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The case law referred to earlier in this chapter consists of the written decisions of the various courts. Typically, trial courts do not generate case law. Even though a trial court judge may issue a written opinion (also called a decision) in a given case, that decision has very limited application. Decisions rendered by trial judges are only binding in regard to that specific case. They do not necessarily have any controlling effect upon any other trial judge within that trial court and do not have any controlling effect on any trial judge in any other trial court. Trial courts are the lowest tribunal and as such any written decisions rendered by trial court judges are of limited application.

Many cases decided by trial courts are decided by juries. Juries do not render written decisions explaining their analysis of the case, but rather simply render a verdict. That verdict in a civil case would be either in favor of the plaintiff or in favor of the defendant. If the verdict is in favor of the plaintiff and there is an amount of money being sought by the plaintiff, then the jury would fix the amount of the monetary award (i.e., value the damages). If there is no jury deciding the case, then the judge may enter a verdict or a judgment order fixing the amount of damages or granting one party the form of relief that is sought.
 

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The state court systems vary dramatically from state to state. Some states have a single trial court. In these states, the trial court is generally referred to as a court of general jurisdiction, wherein all civil and criminal cases are initiated.

Other states have what is referred to as a two-tier trial court system. In the state of Virginia, the lowest trial court is the General District Court. That court hears all criminal misdemeanor cases and can also hear all civil cases wherein the amount claimed is less than $15,000. (A misdemeanor is a crime wherein the potential penalty is no more than one year in jail.) There are no juries in the General District Court. Any case that is heard in the General District Court may then be appealed to the Circuit Court, where the party bringing the appeal is entitled to a new trial (referred to as a trial de novo). In the Circuit Court either party can request a jury trial. The Circuit Court is a court of general jurisdiction, meaning that virtually any type of case can be brought within the circuit court.

Many states also have what is referred to as an intermediate court of appeals. That intermediate court of appeals is essentially the equivalent of the United States Circuit Court of Appeals, except that the state intermediate court of appeals only hears appeals from the state trial courts. These intermediate courts of appeals generally will hear any case that is appealed to them. However, in some states the intermediate courts of appeals are courts of limited jurisdiction and may have authority to only hear certain types of cases.

The highest court in most states is referred to as the Supreme Court, but some states may refer to their highest court by a different name. That high court may be a court of discretionary appeal, meaning that they exercise discretion as to which cases they will hear, much like the U.S. Supreme Court. These courts of appeal, whether they be intermediate or supreme, do not actually try cases, but simply review briefs and records submitted to them by the attorneys, then hear oral arguments and make a decision.
 

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It is important to make a clear distinction in your mind between criminal cases and civil cases. A criminal case is, in essence, a lawsuit brought by the government acting through a prosecutor against an individual who is accused of violating a criminal statute. For instance, if you deface a federal building, you may be charged with a federal crime in a federal courthouse. Or if you punch your next door neighbor in the nose on private property, you most likely would be charged with a violation of a state criminal statute. It would be tried in state court before a state court judge, and you would have the right to have a jury present, with that jury being drawn from the cities, counties, or towns where that court had jurisdiction.

A civil case, on the other hand, does not involve any criminal penalty. A civil case involves a claim for monetary relief or a claim for equitable relief. For instance, if you are injured in an automobile accident, you may have a right to sue that other party for monetary damages seeking compensation for your medical expenses, loss of income, and pain and suffering. In a claim seeking equitable relief, you are asking the court to order the other party to either do or not do something. For example, you may sue your next door neighbors to enjoin, or prevent, them from extending their home onto your private property. In that case, you are not asking for money damages but for an order to enjoin your neighbors from constructing their home on your private property. There are a wide variety of civil cases that may be instituted.

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The federal court system is somewhat more integrated than the state courts because the federal courts do not necessarily recognize state boundaries in terms of their authority. The federal courts consist of the Supreme Court, circuit, and district courts.

The U.S. Supreme Court is the most important federal court. It sits in Washington, D.C., and is composed of nine judges, or justices, who are nominated by the president and then approved by the Senate. The sitting justices are all attorneys, and in fact, most of them are former judges from lower courts who have been elevated to the U.S. Supreme Court. However, there is no requirement that a U.S. Supreme Court justice be an attorney.

The United States Supreme Court is a court of discretionary appeal. That means it exercises its discretion in deciding which cases it will hear. As a court of appeal, it does not actually try cases, but rather, it simply reviews legal briefs as submitted by attorneys or litigants. It hears oral arguments that are limited to an hour or two and thereafter renders a written decision. The U.S. Supreme Court does not actually hear from witnesses, hear evidence, or resolve factual disputes as might be done by a jury. Rather, it simply reviews the record presented from the trial that occurred in the lower court, and then determines whether or not there was a procedural, evidentiary, or constitutional error committed at the trial court level.

In order to have a case presented to the U.S. Supreme Court, the party who is requesting the hearing must first file a petition. If the petition is denied, the case will not be heard by the U.S. Supreme Court. If the petition is granted, the nine justices will hear the appeal and render a decision. Thousands of cases are appealed to the U.S. Supreme Court every year, but only a very small percentage of them are actually heard.

Example: In the 2002 term, 8,255 cases were appealed to the U.S. Supreme Court, but the U.S. Supreme Court only issued written decisions in seventy-nine cases.

The federal court system is essentially shaped like a pyramid. At the top of the pyramid is the U.S. Supreme Court. The U.S. Supreme Court is, as its name suggests, supreme and is final in the sense that it is the court of last resort. There is no higher court. Below the U.S. Supreme Court are eleven U.S. Circuit Courts of Appeals. The United States is divided into eleven numbered federal circuits, plus two additional circuits designated the D.C. Circuit and the Federal Circuit. Within each of those circuits is a U.S. Circuit Court of Appeals. These courts hear appeals from either the trial court below or from certain federal agencies that have a right of direct appeal to the U.S. Circuit Courts.

These U.S. Circuit Courts are somewhat similar to the U.S. Supreme Court in that they are simply courts of appeal. The U.S. Circuit Courts do not actually try cases—they do not hear evidence, the litigants do not testify in front of them, and they do not typically resolve factual questions as would be done by a jury. The U.S. Courts of Appeals simply review briefs submitted to them by attorneys, then hear oral argument from the attorneys, and thereafter render a written decision or issue an order either affirming, modifying, or overruling the decision from the trial court.

The diagram is designed to show in a general framework the layout of the court system on both the federal level and the state level.

COURT SYSTEM

COURT                      FEDERAL SYSTEM                                    STATE SYSTEM

Highest Court          U.S. Supreme Court                           Name may vary from state to state,
                                                                                             but frequently called Supreme Court.

Intermediate
Court of Appeals     U.S. Circuit Court of Appeals            Name may vary from state to state.

Trial Court               U.S. District Court                            Name may vary from state to state. 
                                                                                             Some states have a single-tiered trial 
                                                                                             court. Other states have a two-tiered 
                                                                                             trial court system, which means that 
                                                                                             there are two different levels—one 
                                                                                             being a higher trial court for more 
                                                                                             serious matters and the other being a 
                                                                                             lower trial court for less serious 
                                                                                             matters.
 
Below the U.S. Circuit Courts of Appeals are the U.S. District Courts, which are the trial courts within the federal system. The United States is divided into ninety-four federal districts. For instance, in the state of Virginia there are two federal districts: the Eastern District of Virginia and the Western District of Virginia. In the United States District Court for the Eastern District of Virginia, there are several different divisions that are part of that federal district. A division simply means that there is a courthouse located in that locality to serve the counties or cities within proximity of that courthouse.

The United States District Courts are presided over by United States District judges, who are nominated by the President to their position and then approved by the Senate. There may also be magistrates within the United States District Court, who are judicial officers with the authority to hear certain types of cases assigned to them by the United States District judge.

The United States District Court as a trial court is a court of limited jurisdiction, meaning that it has only limited authority to hear certain types of cases. In the criminal area, the United States District Courts can only hear cases that involve any federal crime (i.e., a violation of federal law). For instance, referring back to the Rodney King case, the police officers in that case were charged with a violation of federal civil rights law. They were tried in a United States District Court before a United States District Court judge with a jury that was composed of citizens within that United States district.

United States District Courts, as courts of limited jurisdiction, can only hear cases that involve either a question of federal law (federal question) or that involve disputes between citizens of different states. This latter requirement, dealing with citizens of different states, is known as diversity jurisdiction in the federal courts. For example, a citizen of the state of Connecticut may sue a citizen of the state of Mississippi in the United States District Court of Mississippi relating to an automobile accident that occurred in Ohio.

Federal law not only requires that there be diversity of citizenship, but also that the amount sued for (the amount in controversy) be at least $75,000. As such, if you were involved in an automobile accident in the state of Texas while you were a citizen of Texas and the other party likewise was a citizen of Texas, you could not bring that suit in federal court because there is no diversity of citizenship. If, on the other hand, the other party to the automobile accident was driving a United States postal truck, the case would be brought in the United States District Court, since it is a claim against the U.S. Government based on a federal statute (e.g., the Federal Tort Claims Act).

A criminal case is, in essence, a lawsuit brought by the government acting through a prosecutor against an individual who is accused of violating a criminal statute.

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Case law is the law as stated in specific cases decided by courts. Case law is in written form, and generally contains a brief synopsis of the facts of the case, an analysis of the legal principles that apply, and a statement of the court’s decision (what is generally known as the holding of the case). The holding is the crux of the decision rendered by that court. Insofar as that court has jurisdiction or authority to interpret the law, the holding then becomes law. Any language in the case decision other than the holding is surplus language, or what may be referred to as obiter dictum (or simply dicta). The dicta within a court decision is not binding law, but rather is simply utilized by that court to explain its rationale.

To fully understand the scope of case law and what effect it has upon our daily lives, it is necessary to understand the structure of the court system. In the United States there are two entirely separate and distinct court systems—the federal court system and the state court system. Each state has its own court system that is entirely separate and entirely distinct from the federal system, and from the court systems of the other forty-nine states in the Union.
 

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The impact of local codes is most often seen in regard to housing, traffic, and zoning issues. For instance, if you want to build a home of a particular type on a specific piece of property, the construction may have to meet certain zoning requirements in terms of height, size, and proximity to the boundary line. In areas where zoning regulations apply, you probably would not be able to build a ten-story home in a residential community with a building height limit of twenty-five feet. Likewise, traffic laws frequently are set forth in local codes, although those local traffic regulations have to be consistent with any state laws passed on those same issues. Again, the issue of preemption applies. For instance, an absurd situation would exist if every locality were allowed to decide whether a green light meant go or stop.
 

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The federal statutory laws are found in the United States Code. The copy of the Code that most lawyers are familiar with is the United States Code Annotated. The term annotated means there are notations following the code section from court cases that have interpreted or applied that particular statutory code section. The annotations are frequently helpful in interpreting what the true meaning is of that statutory code section.

Most state codes are annotated and contain court decisions from both state and federal courts interpreting the various code sections. Local codes tend not to be annotated simply because the local governments that publish the local codes do not have the financial resources to annotate their local codes. Also, there tends not to be a great volume of case law interpreting local codes.

There is a shorthand abbreviation that is used for references to the United States Code. For instance, 28 USC §1392 is a reference to Title 28 of the United States Code Section 1392. The United States Code contains many volumes, like a set of encyclopedias. All of the titles are numbered sequentially on the binding of each volume. 28 USC §1392 would be found in one of the volumes marked Title 28. Within those volumes, §1392 would be found sequentially.

The state codes may have their own distinct numbering system. For instance, in regard to the Virginia Code, references to a code section would be to a specific numbered section such as Virginia Code Section 8.01-234. That is a reference to Title 8.01. Within that title, you would look for the code section designated as 234. Local codes may be designated in a similar fashion.

The volume of legislation that has been passed by the United States Congress is, in many respects, mind-boggling. There is federal legislation on virtually every issue. It is important to keep in mind, however, that the federal government, even though it seems to be involved in every aspect of our lives, is still a government of limited jurisdiction. You may recall from the section dealing with constitutional law that our founding fathers established the federal government as a government of limited authority with the understanding that whatever authority was not bestowed upon the federal government remained with the state governments. You would never guess that by looking at the volume of federal legislation.

Whatever authority was not bestowed upon the federal government remains with the state governments.

The most significant limitation upon the authority of the federal government is to enact legislation in the criminal sphere. For instance, the federal government has no authority to pass a statute that prohibits homicide in your private home on private property. The federal government does have the authority, however, to pass a law prohibiting homicide on federal land, in a federal building, or against a federal officer. As such, most criminal prosecutions are initiated in the state
courts under state law, because the authority of the federal government to enact criminal law truly is limited.

Example: The dichotomy between federal and state law was found in the Rodney King case in Los Angeles, in which police officers were accused of beating a criminal suspect. Those police officers were first tried under state criminal laws and were acquitted (i.e., found not guilty).

The federal government then stepped in and decided that those same police officers would be prosecuted under federal civil rights laws. The federal government had no authority to prosecute them for the crime of assault, since the crime in question did not occur on federal territory, did not involve a federal official, and did not involve a distinct federal interest as far as the assault only was concerned.

The federal government, however, has passed laws that make it a crime for certain persons acting in official governmental capacity to violate the civil rights of people. Those police officers were then prosecuted in the federal court under that federal law. It is in the criminal field that you see the authority of the federal government most clearly restricted in terms of its ability to enact legislation prohibiting certain types of crimes.

At first blush, it would seem that this is a violation of the double jeopardy clause contained within the Fifth Amendment of the United States Constitution. It has been held, however, by the courts that it is not a double jeopardy violation since there are two separate sovereigns involved—the federal government and the state government. In addition, there were two separate offenses involved—one was the offense of assault under the state code and the other was a civil rights violation under the federal code.

It is in the criminal field that you see the authority of the federal government most clearly restricted.

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A general principle that applies to this statutory scheme is a principle known as preemption. When there is a conflict on a specific issue between federal statutory law and state statutory law, federal law will generally preempt, or supersede, the state law. That same principle applies in regard to a conflict between state law and local law. Local government cannot enact legislation that is contrary to the state statutory law. The logic behind this concept is that there has to be one entity that is supreme. For instance, it would be an absurd situation if the federal government passed an income tax law and then certain states decided that their citizens would not have to comply with that law. The American Civil War was fought in part over the issue of states’ rights—whether the federal government was going to be supreme or whether the states were going to be supreme on the issue of slavery.
 

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Statutory law falls into three categories—federal statutory law, state statutory law, and local statutory law. The federal statutory law is found in the United States Code. The state statutory law is found in the state code enacted by the legislative body that governs that state. Local statutory law is found in local codes and ordinances. Those local codes may be county codes, city codes, or town codes that are enacted by the local governing body.
 

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Aside from the U.S. Constitution, each state within the Union has a state constitution. Those state constitutions may vary dramatically from one state to another. The key point to remember in regard to the state constitution is that it may bestow additional rights upon the citizens of that state, but it cannot restrict the rights guaranteed under the U.S. Constitution.
 

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All of the amendments are important. A brief description of the other amendments to the U.S. Constitution follows.

* The Eleventh Amendment states that federal courts do not have the authority to hear lawsuits brought by a citizen or non-citizen of one state against another state in the Union. (This is not to be confused with diversity jurisdiction.)

* The Twelfth Amendment deals with the functioning of the electoral college.

* The Thirteenth Amendment abolishes slavery.

* The Fifteenth Amendment extends the right to vote to all citizens.

* The Sixteenth Amendment allows for income tax to be imposed.

* The Seventeenth Amendment deals with the number of senators for each state and how vacancies in a senate seat are filled.

* The Eighteenth Amendment enacts prohibition.

* The Nineteenth Amendment grants women the right to vote.

* The Twentieth Amendment deals with presidential succession and the convening of Congress.

* The Twenty-first Amendment repeals prohibition.

* The Twenty-second Amendment imposes limits on how long a person can serve as President.

* The Twenty-third Amendment allows the District of Columbia electors to vote for President and Vice President.

* The Twenty-fourth Amendment establishes the right of citizens to vote without being restricted by paying a poll tax. This is an Amendment principally designed to prohibit states from precluding certain citizens from voting by imposing financial restraints on them.

* The Twenty-fifth Amendment deals with presidential succession.

* The Twenty-sixth Amendment gives 18-year-olds the right to vote.

* The Twenty-seventh Amendment prohibits congressional pay raises from taking effect until the next election of representatives.
 

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There are numerous other amendments passed over the years that are significant. Perhaps the most important of those is the Fourteenth Amendment—one of the post-Civil War amendments ratified in 1868. This Amendment contains several clauses, the most important of which is the so-called Due Process Clause, which expressly indicates that no state shall deprive any person of life, liberty, or property without due process of law.

You may recall that within the Fifth Amendment there is a due process clause. That due process clause, as is true of the first ten amendments, was deemed to be a restriction of federal power and not state power. This meant that the federal government could not deprive any person of life, liberty, or property without due process of law. That restriction, however, did not apply to the states until the enactment of the Fourteenth Amendment. Through the eventual interpretation of the Due Process Clause contained within the Fourteenth Amendment, most of the rights contained within the Bill of Rights were deemed to be no longer simply a restriction on federal power but also on state power. This means that those rights contained within the Bill of Rights apply to citizens not only when dealing with the federal government, but now also when dealing with state and local governments.

The Fourteenth Amendment also contains what is known as the Equal Protection Clause. It states that governmental authority may not be used to deny any person equal protection of the laws. Over time, that equal protection clause was interpreted to preclude governmental authority from denying black citizens the same protection of the laws as were accorded to white citizens.
 

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The first ten amendments to the Constitution are referred to as the Bill of Rights. They contain many of the most fundamental rights enjoyed by the American people.

The First Amendment states that Congress has no authority to make any law “respecting an establishment of religion or prohibiting the free exercise of religion.” It further states that Congress can do nothing to restrict freedom of speech or freedom of press, or the right of the people to peaceably assemble and to petition the government.

The Second Amendment deals with the right to bear arms, but is written in the context of bearing arms as part of a regulated militia.

The Third Amendment states that the government cannot, in time of peace, quarter soldiers in a private home without the consent of the owner. In time of war, the government may only do so in a manner prescribed by law.

The Fourth Amendment deals with unreasonable searches. It expressly states that people shall be secure in their persons, houses, and papers from unreasonable searches and seizures by governmental authorities. It further states that search warrants may be issued only upon a finding of probable cause. That means there must be a determination made, based upon substantial, believable evidence, that the person to be searched has committed a crime or the place to be searched contains evidence of a crime.

The Fifth Amendment defines the concept known as double jeopardy, which means that a person cannot be tried twice for the same crime. That same Amendment further sets forth the right against selfincrimination—that a person cannot be made to testify against him- or herself. This Amendment also contains the foundation of the Due Process Clause, which states that a person cannot be deprived of life, liberty, or property without due process of law.

Due process is a critical concept to our entire legal system. It requires two things:

1. a person must be given notice of the charges or claims made against him or her and

2. a person must be given an opportunity to answer those charges or claims before he or she can be deprived of life, liberty, or property.

The Sixth Amendment provides for the right to a speedy trial and the right to a jury trial in a criminal proceeding. This Amendment further sets forth the right to confrontation in a criminal case, meaning that a person accused of a crime has the right:

* to confront the witness who is making the claim against him or her;
* to compel witnesses in his or her favor to appear in court and give testimony; and,
* to be represented by a competent lawyer in the defense of that criminal charge.

The Seventh Amendment preserves the right to have a jury trial in certain civil cases.

The Eighth Amendment prohibits excessive bail and further disallows punishment that is deemed to be cruel and unusual. This Amendment has been used to argue against capital punishment and other forms of punishment over the years.

The Ninth Amendment states that just because certain rights are set forth in the Constitution does not mean they are the only rights people have. That is to say, whatever other rights the people have, they still retain.

The Tenth Amendment limits the power of the federal government by stating that powers not delegated to the United States Government by the Constitution and not prohibited by the Constitution to the states are expressly reserved to the states or to the people. The initial framers of the Constitution viewed the U.S. Government as a government of limited authority. Whatever authority was not placed in the United States Government rested with the states.
 

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Article One of the U.S. Constitution sets forth the powers of the U.S. Congress. It specifies that there shall be a House of Representatives and a Senate, and defines how those members shall be elected and compensated. It also sets forth general powers and limitations of those legislative bodies.

Article Two of the U.S. Constitution states that the executive power of the government shall be vested in the President. It then defines the extent of that executive power, how the president shall be elected, and what his or her qualifications for office shall be.

Article Three of the U.S. Constitution states that the judicial power of the United States shall be vested in the Supreme Court, as well as inferior courts Congress may establish. The model created in the first three articles of the Constitution is a system of checks and balances. Each branch of government is considered to be equal, and each one in different respects has the ability to check and to balance the others. For instance, the legislative branch has the authority to enact legislation. That legislation is then sent to the president who, as the head of the executive branch, can veto the legislation. The legislative branch may then override that veto. If the law is passed (actually becomes law), then it can be reviewed by the judicial branch for purposes of determining whether it is constitutional and for purposes of interpreting the law. If the legislative branch, for whatever reason, does not like the interpretation imposed on the law by the judicial branch, then it can amend the law so as to expressly state how the law should be interpreted.

Article Four of the U.S. Constitution defines the concept known as Full Faith and Credit, which means that the public acts, records, and judicial proceedings of any one state shall be given full faith and credit in every other state in the union. This Article further defines the term known as privileges and immunities, which means that the citizens of each state shall be entitled to all the same privileges and immunities as the citizens of any other state. The privileges and immunities clause precludes one state from granting certain privileges or immunities to its citizens that would not apply to citizens of other states. For instance, Minnesota could not grant Jesse “The Body” Ventura the sole right to conduct wrestling matches in that state to the exclusion of all persons who were not citizens of Minnesota. To allow that would be a violation of the privileges and immunities clause.

Article Five of the U.S. Constitution provides for amendments to the Constitution.

Article Six of the U.S. Constitution states that this Constitution and the laws of the United States made pursuant to the Constitution shall be the supreme law of the land. That means that if there is any conflict between federal law and state law regarding an issue that the federal government has the right to legislate, then federal law will always be supreme.

Article Seven of the U.S. Constitution provides that nine states are needed to ratify the Constitution before it becomes effective.
 

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The U.S. Constitution is a contract, or an agreement of the people of this land. It sets forth certain basic rights of the people that cannot be taken away and defines the powers of the governmental authority. The U.S. Constitution truly is the foundation of our entire legal system. Some people would say that the rights we enjoy in this country are natural rights, and that the Constitution is simply a clarification of those rights and a limitation on the power of the government to infringe on those rights. Others say that the Constitution itself is the actual source of the rights. But that theoretical argument is probably of little significance to the reader. What is important to remember about the Constitution is that it does set forth the essential composition of our government and how it can interact with us as citizens.

Try a quick test of your knowledge of constitutional law at this point. Suppose your next door neighbor breaks into your home looking for something that he thinks you may have stolen from him. The neighbor conducts a thorough and obviously unreasonable search of your premises without a warrant. Is that a constitutional violation?

Constitutional violations can only be committed by the government or its representatives.

Hopefully you said “no” to answer that question. The Constitution is a compact between the people and the government. Constitutional violations can only be committed by the government or its representatives. As such, one citizen violating the rights of another citizen is not a constitutional violation at the federal or state level. Your neighbor has violated state law, and he can be charged with that state law violation and also could be sued civilly for trespassing and for damaging your property.

The most important point to keep in mind regarding the U.S. Constitution is that it is the basic framework or foundation upon which our legislative, judicial, and executive branches are built. It defines certain basic rights that the people have and that no governmental authority can take away. The framers of the U.S. Constitution wished to define the authority of government and then place in the people all rights that were not specifically bestowed upon the government.
 

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The Constitution that most of us are familiar with is the U.S. Constitution. In addition to the U.S. Constitution, all fifty states have their own state constitutions. To some extent, these are modeled after the U.S. Constitution—but may vary from it. The state constitutions may give the people of that state greater rights than the U.S. Constitution bestows upon them, but it cannot restrict the rights guaranteed by the U.S. Constitution. The U.S. Constitution in that respect is supreme, but more importantly, the U.S. Constitution sets minimum standards that must be complied with by all governmental officers in dealing with the people.

The U.S. Constitution is divided into seven articles and twenty-seven amendments. The Constitution begins with the words—

We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

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Most insurance is sold through insurance agents. Insurance agents are frequently referred to as dual agents. That is, they are both an agent of the company that underwrites the insurance policy and also the person who applies for the insurance policy. To say that they are a dual agent means that they have certain duties to each party—certain duties to the underwriter and also certain
duties to the insured.
 

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If you are a medical doctor, you most likely have a malpractice insurance policy covering you. That malpractice policy is a form of liability coverage that would apply in an instance where a patient sues you for malpractice. In that event, the malpractice insurance company would step in, conduct an investigation, and determine if the claim should be adjusted or negotiated. Some medical malpractice policies require the consent of the doctor before any settlement offers can be made. In the event the insurance company does not settle your patient’s claim, the patient may file suit against you. The insurance company would appoint an attorney to represent you and then would indemnify you as to any judgment up to the amount of your policy limits.

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Another type of insurance coverage is homeowners insurance coverage. A homeowners policy typically includes a fire endorsement, which would cover you in the event that your house, including contents, burns down. It is important that you make sure that the stated value is consistent with the replacement cost or the fair market value of the house when reviewing this type of coverage. For instance, if you are in a geographical area where property values are increasing dramatically, then it is important that you likewise increase the covered amount under this provision of your homeowners policy to make sure that there is enough money paid to you in the event that your house does burn down. Likewise, within this type of policy there may be coverage for water damage, theft, and also for liability claims.

Liability may arise in a homeowner’s context when a guest is on your premises and is injured as a result of some defect on the premises. For instance, suppose there is a large hole in your backyard that is covered by overgrown grass and your guest falls into that hole and breaks an ankle. If you knew of the hole and did not disclose it, then the guest may have a basis for a liability claim against you alleging that there is negligence on your part. If a judge or jury were to agree with that, then the liability insurance policy would have to indemnify you up to your policy limits. Under this type of liability policy, the liability insurance carrier would also provide an attorney to defend you.

Under a homeowners policy, if there are specific valuable items of personal property that you wish to have covered, they normally have to be covered under a scheduled loss section of the policy where the specific items are identified. There may even be a requirement that an appraisal or pictures of the objects be provided as part of the insurance policy.

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Another type of insurance coverage is health insurance. Health insurance contracts are frequently group insurance contracts wherein you, as a member of a group, pay a premium to the insurance company in return for the insurance company agreeing to cover medical and hospital expenses up to certain limits. The general limitation of the scope of coverage under these policies is that the treatment that you receive must be reasonable and necessary and the cost of the treatment must be consistent with the usual and customary charges for other practitioners in the area.

For instance, if you decide to have plastic surgery that is purely elective, this type of treatment may not be covered unless you have a special endorsement or provision within your policy that provides coverage since the treatment is not necessary. Likewise, if you choose to go to the most expensive orthopaedic surgeon in the area because you think he or she is the best, all of the charges rendered by that surgeon may not be covered under your policy. The policy is governed by what is usual and customary for those types of services and not necessarily by what the best practitioner in that area may charge.
 

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Another form of insurance is life insurance coverage. A life insurance policy is simply a contract between you—the insured—and the insurance company wherein the insurance company agrees to pay a certain amount of benefits upon your death. Assuming that there have been no misrepresentations made by you in applying for this type of insurance coverage, then your survivors would simply make a claim to that insurance company upon your passing and the designated beneficiary will then receive the benefits due.

There are different types of life insurance coverage. The most common form of life insurance coverage these days is term life insurance. Term life insurance policies have no value other than the face amount of the policy and even then have no value unless the person who is insured passes away during the coverage period.

Another type of life insurance coverage is that of whole life coverage. This is actually a type of investment in which the value of the policy may increase over a period of time as you pay premiums. You may also be allowed to take loans against the policy and perhaps even redeem the policy for a fixed amount of money. The theory behind whole life is that you not only are insuring your life, but you are also making an investment that is increasing in value over a period of time that you may utilize by taking a loan against it or cashing it in.

In most life insurance policies, the application for insurance is included as part of the policy. The reason for that is that payments under life insurance policies are generally rather substantial. If there are any misrepresentations made in the application that may be a basis for voiding the insurance policy. Frequently those misrepresentations are not discovered until after the person has passed away and an autopsy has been performed.
 

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The type of insurance coverage that you are probably most familiar with is automobile insurance coverage. An automobile policy may include several different forms of coverage. Within one policy there may be liability coverage, there may be medical expense coverage, there may be collision coverage, and there may be uninsured motorist and underinsured motorist coverage. Each of those types of coverage is dramatically different and each of them has a different objective.

Liability coverage is designed to protect you, the insured, in the event you are involved in a collision in which some other person is injured as a result of your alleged negligence. If a person is injured and they contend that you are negligent, then they may assert a liability claim against you for their medical expenses, lost wages, pain and suffering, resulting disabilities, disfigurement, etc.

Your liability insurance policy would cover you in that instance by providing you with an attorney to defend you in that claim and by indemnifying (reimbursing) you for any judgment rendered against you in that case up to your policy limits. If your policy limits are fifty thousand dollars, but the judgment entered against you is for five hundred thousand dollars, then your insurance company is only obliged to pay fifty thousand dollars. The remaining four hundred and fifty thousand dollars may come out of your pocket.

Also within an automobile insurance policy there may be comprehensive coverage. Comprehensive coverage is a type of first party coverage wherein you may make a claim against your own policy as a result of damage to your vehicle. If your vehicle was damaged in a collision and you do not wish to or cannot assert a claim against the other party (or if you were at fault), then you may make a claim against your own policy under your collision coverage. Your insurance company will then pay you for the repair cost of your vehicle. In the event your vehicle is totaled, it will pay you the fair market value for that vehicle. If someone other than you was at fault, your insurance company may then have a right of recovery against that other driver.

Most forms of collision coverage do carry a deductible. This means that you would only be compensated by your insurance carrier for the amount of money that exceeded your deductible amount.

Auto insurance coverage also offers what is referred to as medical expense coverage or personal injury protection coverage. This is a type of first party coverage wherein you may make a claim against your own insurance company for medical expenses incurred as a result of a collision. If you are injured in an automobile collision while in your car, you can make a claim against your policy for payment of your medical expenses to the extent that they were reasonable and necessary as a result of this collision. If you are a passenger in someone else’s vehicle, then, assuming there is medical payments coverage for the vehicle you are riding in, you can also make a claim for medical payments under that policy. You may be able to make a claim for medical payments under both your policy and the policy of the vehicle you are riding in.

Another form of coverage under a typical automobile insurance policy is uninsured motorist and underinsured motorist coverage. This is a very important form of coverage because it protects you in the event that you are involved in a collision that is the fault of an uninsured or underinsured motorist.

Example: Suppose you are hit from the rear by a vehicle that is uninsured and you are injured. You could sue the driver of that striking vehicle, but he or she may have no assets to pay any judgment that you may obtain against him or her. In that instance, your own uninsured motorist coverage would apply. In such an event your insurance company could essentially step in and defend that uninsured motorist, or at least take a position that is contrary to you, by challenging your claims for uninsured motorist benefits.

The same basic principle would apply if that striking vehicle was underinsured.

Example: Suppose the vehicle that struck you from behind has twenty-five thousand dollars in coverage but your medical expenses as a result of the collision are fifty thousand dollars. The
striking motorist would then be underinsured. If you got a judgment for your medical expenses, he or she may not be able to pay it. His or her insurance policy would pay the first twenty-five thousand dollars, but anything beyond that would be covered by your policy to the extent that you had underinsured motorist coverage.

Uninsured motorist coverage is a very broad form of coverage. Even if you are a bicyclist or a pedestrian struck by an uninsured motorist (or by a hit-and-run motorist), you may make a claim for and recover under your own uninsured motorist coverage.

If you are struck by a hit-and-run motorist, you may make a claim under your own uninsured motorist coverage.

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An insurance policy is a contract. The parties to the contract are the insurance company and the insured. In addition, there may be a beneficiary or what may be referred to as a third party beneficiary of an insurance contract. In a life insurance policy, the beneficiary is the person who receives the death benefits upon the death of a person who was insured. In an automobile insurance policy, the third party beneficiary under a liability policy is the individual who was injured and who receives compensation from that liability insurance policy. The beneficiary or third party beneficiary is not a named party to the insurance contract, but is generally the person who is intended to benefit from the insurance policy. As such that beneficiary may have certain rights under the policy.

There are a variety of different types of insurance policies that can be written. The most common types of policies are liability, life insurance, and health insurance policies.
 

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Workers’ compensation claims can be complicated when an individual has suffered an injury while employed with one company and then goes to work for another company and later reinjures him- or herself. Which employer is going to be responsible for that compensation?

Some states have set up what is referred to as a second injury fund. In these states, that second injury will be partially paid out of that second injury fund and then also partially paid by the second company. That second injury fund is a fund of money that is created by contributions from all of the different insurance companies that underwrite workers’ compensation insurance coverage in that jurisdiction.

A similar type of fund that may exist is the uninsured employer’s fund. An employer who has not taken out workers’ compensation coverage and who therefore cannot pay the benefits called for under the workers’ compensation act may still be covered in the sense that the employee may make a claim against the uninsured employer’s fund. To the extent that any payments are made out of that fund, the fund administrator or the attorney general of that state will typically make a claim against the uninsured employer in order to recover such payments.
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If an employee is injured on the job as a result of the fault of some third person, then that employee may have a basis for a claim (sometimes referred to as a third party claim) against that other individual or company. For instance, suppose you are working on a construction job and you are employed by the general contractor. If, while performing those duties, an employee of a plumbing sub-contractor drops a pipe that strikes you on the head, you may be entitled to the benefits called for under the act. In addition to being compensated under the workers’ compensation act, you may also have a basis for a claim against the plumbing sub-contractor whose employee dropped the pipe on you. In some states, on a construction job such as this, all contractors may be immune from suit by any other employee on that construction job. In other states, the employee may sue any other responsible contractor on the job.

If the injured employee in that circumstance does recover money from the third party who caused the injury, then the employer of that injured worker (or more likely the employer’s insurance carrier) is entitled to recover all or part of the monies paid to the worker under the workers’ compensation act. This is a principle known as subrogation. Subrogation literally means that one party is subrogated or steps into the shoes of another party and acquires their rights.

Under most workers’ compensation acts, once the employee makes a claim for and receives benefits, then to the extent that the employee has any right of recovery against a third party, the employer or its insurance carrier acquires that right of recovery to the extent of wage and income benefits it paid to the employee. The purpose of allowing subrogation in this instance is to hold down the cost of workers’ compensation insurance coverage and further to prevent the employee from receiving a double recovery on the wages and medical benefits received.

If the employee receives compensation under the workers’ compensation act and is further compensated for the same injuries as a result of the third party civil claim, that constitutes a double recovery to the employee. After paying back amounts paid to him for wage and medical benefits under the workers’ compensation act, the employee is entitled to keep any excess damages awarded by a jury or received in settlement.
 

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There also is a good bit of controversy regarding the provision of medical treatment to injured workers. Typically, the medical treatment is controlled by the employer or the employer’s insurance carrier. This means that the employee receives treatment from doctors who have been chosen by the insurance carrier or the employer. These doctors obviously know who is paying their bill and they know that the insurance carrier and the employer expect this employee to return to work at some point in time so that their financial exposure in paying wage benefits is limited. Although these doctors generally provide quality medical care for the injured employee, they have a somewhat mixed loyalty. They know that the employer and the insurance company want this employee to return to work, but they also know that it is not necessarily always in the employee’s interest to return to work too quickly or even to return to that form of work at all.

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The law relating to workers’ compensation coverage can become extremely complex when dealing with issues of occupational disease. The run-of-the-mill, on-the-job injury in which an employee falls and breaks an ankle does not involve a great deal of controversy. However, the claim of the employee who over a period of time develops, for example, carpal tunnel syndrome as a result of typing at the keyboard, is harder to classify as being a result of the employment. Different states have dealt with that issue in a variety of ways. Some states provide coverage for these types of repetitive stress injuries or exposure injuries; other states do not.

Another area of significant controversy in regard to workers’ compensation claims is compensation for emotional injuries. In some states, an employee who suffers, for example, a nervous breakdown because of emotional stress on the job may be entitled to the whole range of benefits under the workers’ compensation system. Other states have denied those types of benefits on the theory that the relationship between employment and emotional injury is simply too tenuous and therefore the employer should not be made to bear the burden of the expense associated with that type of injury.
 

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There has been a good deal of controversy over the extent to which workers’ compensation laws should provide benefits to injured employees. Many states put a cap on the amount of wage benefits that the employee can receive. In some jurisdictions the employee can receive no more than five hundred weeks of wage benefits, which is the equivalent of approximately ten years of benefits. This is to the advantage of the employer in that it puts a limitation on the employer’s or the insurer’s liability.

However, it may be a detriment to the employee if the employee is permanently disabled and cannot return to any form of work. If in fact the employee is permanently and totally disabled, then he or she may be able to extend those benefits under state law. However, proving that a worker is both permanently and totally disabled is not an easy task. As such, in many states employees are left in a situation in which they cannot return to their former employment, yet at the end of the allowable time their wage benefits are terminated.

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In the event that an employee is killed on the job, the family of that employee is entitled to death benefits. Those death benefits are wage benefits that will, at least in part, replace the loss of income as a result of the death of the employee.

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Wage benefits are calculated based upon the average weekly wage—the wages of the employee over a period of time are totaled up and then averaged. Once that average has been calculated, the employee is typically entitled to two thirds of that average weekly wage (up to a statutory ceiling).

The second form of benefit received under workers’ compensation is medical coverage. If an employee is injured on the job, he or she is entitled to reasonable and necessary hospital and medical treatment related to that injury to hopefully get him or her back on his or her feet and able to resume his or her employment. If the employee is not able to resume his or her former employment, then he or she may be entitled to rehabilitation services that will either allow him or her to return to some other form of employment or be trained in a new line of work.

A final type of compensation that the employee may be entitled to as a result of an on-the-job injury is compensation for permanent disability. Most workers’ compensation acts have created a schedule in which specific disabilities are worth a certain number of weeks of wages. For instance, a person who loses a foot may be entitled to one hundred and fifty weeks of wages over and above any other benefits that he or she may receive. A person who loses an eye on the job may be entitled to an equivalent amount of compensation. Those forms of compensation are in addition to the wage loss benefits otherwise paid and any medical expenses that have been paid.
 

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Workers’ compensation acts around the country are administered by a governmental agency for that jurisdiction. If an employee is injured on the job, he or she must report that injury to his or her employer within a designated period of time and file a written report of that injury. If the employee is forced to lose time from work or requires medical treatment, then he or she may file a claim with the administrative agency that administers workers’ compensation claims for that jurisdiction. Once a claim is filed, the employer can either contest or accept the claim.

If the employer accepts the claim, then the employer is agreeing that the employee was injured on the job, that the injury arose out of the employment, and that the employee is entitled to medical coverage and perhaps to wage benefits for the time disabled. If the employer decides to challenge the claim, there will be a hearing before an administrative law judge or a hearing officer who will then make a decision whether the claim is compensable and whether the employee should be paid wage benefits and/or medical benefits.

There has been a good bit of litigation over the years as to exactly what constitutes being an employee. Typically a person who is an independent contractor will not qualify as an employee under the workers’ compensation act. Likewise, the individual who is the owner of the business may not qualify as an employee unless he or she has expressly chosen to include him- or herself in that definition within the policy of insurance issued.

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Workers’ compensation is a form of insurance coverage that is designed to protect the working person in the event of injury. In a workers’ compensation claim the parties involved are the injured worker, his or her employer, and the employer’s workers’ compensation insurance company. Before the passage of workers’ compensation laws, a worker who was injured on the job was forced to file suit against his or her employer and potentially wait for months or even years before ever receiving any compensation for an injury.

As a result, the worker and his or her family may have had no income for an extended period of time because the worker was injured and unable to work. Further, the worker often was unable to pay for medical treatment. If the worker did eventually recover from the employer in a civil action, that award of money damages frequently came too late for the worker since by that point he or she was destitute and perhaps permanently impaired because of the lack of proper medical treatment.

As such, many states began passing workers’ compensation laws that provided a type of compromise. Under these laws, the worker did not have to prove any fault on the part of the employer when injured, but simply had to prove that he or she was on the job and that the injury arose out of his or her employment. If those two things could be proven, then the worker was entitled to receive a portion of his or her wages for the period of time disabled and further was entitled to appropriate medical treatment related to that injury.

In return for that, the employer received immunity from a civil claim brought by the employee for the injury. That is, the employee could not file a civil action against the employer. The employee’s exclusive remedy is the worker’s compensation benefits.

Every state has its own workers’ compensation law and that law can vary dramatically from state to state. The general thrust, however, of the worker’s compensation system nationwide is as stated.

In addition, there are workers’ compensation acts that operate at the federal level. Individuals employed by the federal government are covered by the Federal Employees Compensation Act. It is a workers’ compensation act that is administered by the U.S. Department of Labor. There is also another federal statute known as the Longshoremen and Harbor Worker’s Act, which technically covers longshoreman and harbor workers but includes private, nonfederal employees who are working on defense installations as well. It also covers private employees working overseas who are covered by the Defense Base Act—a type of workers’ compensation act that incorporates the Longshoremen and Harbor Workers Act.

In most states, an employee’s exclusive remedy is workers’ compensation benefits.
 

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If the injury suffered results in the death of a person, then that person’s estate may assert a wrongful death claim. A wrongful death claim occurs when the injured party, rather than having simply suffered personal injury, has actually died as a result of the misconduct of the defendant. A wrongful death claim may be based upon a negligence theory, a breach of warranty theory, or an intentional tort theory, such as assault and battery.

Wrongful death claims are a fairly recent phenomenon. Common law did not recognize wrongful death claims, on the theory that once a person had died, there was no amount of money that could compensate for the loss. As such, a person’s claim died with him or her. However, over the years, the state legislatures have come to recognize that even though death may bring an end to the suffering and damages incurred by the decedent, there may be persons left behind who have been damaged and may continue to be damaged in the future as a result of the passing of the decedent.

Every state has its own wrongful death statute that defines exactly what damages are recoverable under the wrongful death act. Typically the damages recoverable are damages consisting of solace and grief experienced by the survivors, loss of earnings suffered by the dependents from the decedent’s subsequent inability to generate income, any medical expenses incurred by the decedent, and funeral expenses.

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Several states still recognize various types of immunities. That immunity may come in the form of sovereign immunity, charitable immunity, or family immunity. Sovereign immunity is based upon the concept that the king cannot be sued. In the United States that means the sovereign or the government cannot be sued. Many jurisdictions have waived that immunity either in whole or in part. If the local or state governmental entity that you are planning on suing is deemed by state law to be immune from tort claims, then you may not be able to sue that entity at all unless it expressly chooses to waive its immunity. Many governmental entities by means of state law have expressly waived their immunity either entirely or have allowed claims to be asserted against them up to certain dollar amounts. (This varies from state to state.)

Charitable immunity is a doctrine that applies in many states to organizations that are truly charitable. A charitable organization is generally considered to be one that fulfills a strictly charitable function and does not make any attempt to collect its debts. Charitable organizations may be immune from tort claims. For instance, if you were injured on the premises of the Red Cross because of some negligence on their part, depending on the law in that particular state, the Red Cross may have the defense of charitable immunity to your claim because they truly are a charitable organization.

There are certain states that still recognize elements of family immunity. That is, tort claims may not be asserted against parents or siblings for certain types of behavior.

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There are several affirmative defenses that may be raised in regard to a tort claim. An affirmative defense is a defense that may be raised by a defendant that constitutes a complete bar to a claim. One of those affirmative defenses is that of the statute of limitations. Every state has set forth a statute of limitations for virtually every type of civil claim, whether it be a tort claim, contract claim, or otherwise. If the claim is not asserted within the time allowed by that statute, then the claim is deemed to be barred. The assertion of a claim is accomplished in most states by actually filing a lawsuit at the courthouse. Some states require actual service of the suit papers upon the defendant before the statute of limitations runs.

Another defense that may be asserted in a tort case is that of assumption of the risk. Assumption of the risk arises when the plaintiff understands the nature of the risk involved and voluntarily
assumes that risk.

Example: If you decide to go out to the supermarket during the middle of a very bad ice storm, recognizing that the roads and walkways are not navigable, and while walking from your car to the store, you slip and fall, then you probably have assumed the risk of an injury. You knew that there was a risk associated with going out during those weather conditions and you voluntarily chose to accept that risk.

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Different states have different ways of how they deal with negligence claims. Some of them acknowledge the concept of comparative negligence, while other states are known as contributory negligence jurisdictions. In a comparative negligence jurisdiction, the negligence may be compared between the parties. For instance, going back to the red light example, if you happened to be intoxicated and laying in the middle of the intersection when you were struck, then there obviously would be some negligence on your part. The jury would be called upon to compare the different levels of negligence.

In that example, the jury might conclude that the driver was 50% negligent and you were also 50% negligent. If the jury then determined that your total damages were $100,000, you would only receive $50,000, because you were 50% negligent.

In a contributory negligence jurisdiction there is no comparison of negligence. This means that if you were negligent by 1%, and that negligence was a cause of your damage, then your claim is barred and you receive nothing. Contributory negligence is a principle derived from the common law that is still recognized in some states. It is indeed a very harsh principle of law and in many instances is unfair to people who are probably entitled to recover something for their damages, but may not be entitled to 100% compensation.
 

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Another important principle in liability in a tort action is joint and several liability. Under the principle of joint and several liability, each defendant is 100% liable for the judgment that is rendered. This principle has been under a good deal of attack lately because it can create circumstances wherein a defendant can wind up paying more than his or her fair share of any judgment, especially if the other defendant cannot afford to pay.

Joint and several liability is something that is well ingrained into our legal system. The rationale behind it is to make sure that the plaintiff can obtain full recovery for whatever judgment is entered. It then becomes the burden of the defendants against whom the judgment has been entered to fight among themselves as to any eventual sharing of that liability.
 

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The final element of any tort claim that must be established is damages. Damages may be thought of as the injury incurred. The injury may come in the form of personal injury such as a broken arm or leg, pain and suffering, emotional distress, medical expenses, lost wages, or permanent disability. Pain and suffering is an elusive concept. The words themselves best define the concept. When you are physically injured, it would be expected that you would experience some pain, anguish, or emotional stress. Normally, a jury in an injury case is called upon to award a monetary amount for that pain and suffering along with the other damages that are claimed.
 

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Aside from the types of claims mentioned previously, there are several intentional torts that can be asserted. Those intentional torts consist of such claims as assault and battery, conversion, defamation, false imprisonment, fraud, malicious prosecution, invasion of privacy, trespass, and the intentional infliction of emotional distress. All these claims have specific elements that must be met and proved in order for a plaintiff to prevail.

A battery is simply an unwanted touching of one person by another. Conversion is the taking of a person’s property without that person’s consent. (Conversion in the civil system is similar to larceny in the criminal system.)

Defamation can come in either written (libel) or oral (slander) form and consists of making injurious statements about a person that are untrue. If the injurious statements involve an imputation of a criminal offense, involve moral turpitude, impute a contagious disease, impute unfitness to perform the duties of office, or include words that prejudice a person in his or her profession or trade, then they may be referred to as being defamatory per se.

If the alleged statement is not defamatory per se, then the plaintiff may have to prove what are called special damages in order to recover against the defendant. Special damages would come in the form of out-of-pocket expenses incurred as a result of those defamatory statements.

Example: If you are a surgeon and David calls you a butcher, that is a statement that is defamatory per se. You could assert a defamation claim against David even though you may not have incurred any special damages (any out-of-pocket expense as a result of the making of that statement).

Keep in mind that truth is always a complete defense to a defamation claim.

If, on the other hand, you are unemployed and Sarah calls you a crook, and as a result of making that comment you incur so much emotional distress that you seek psychiatric help, you may have a basis for a defamation claim against Sarah. Even though the comment made is not defamatory per se, the fact that you have incurred medical expenses as a result of Sarah making the comment about you satisfies the special damages requirement. It gives you the basis for a defamation claim against Sarah.

The truth is always a complete defense to a defamation claim.

Some statements, although defamatory, are protected by a qualified or absolute privilege. For instance, a statement made by an employer about an employee to a new prospective employer may be governed by a qualified privilege. The idea is to allow employers to freely exchange information about employees. What that means is that the employee in a defamation action against the former employer may have to claim and prove that there actually was some malice in the statements that were made.

An absolute privilege would be one that is an absolute bar to a claim for defamation. For instance, comments made in the course of a judicial proceeding are generally governed by such a privilege. The idea is to allow the parties to freely exchange comments during such a proceeding.

Claims of false imprisonment and malicious prosecution arise in the context of a person improperly restraining another person or initiating a criminal prosecution that is subsequently found to be unjustified.

Fraud is the intentional misrepresentation of a material fact made for the purpose of inducing reliance and that does induce reliance to the detriment or damage of the plaintiff. Fraud is a very difficult thing to prove. Unlike most civil claims that must be proven simply by a preponderance of the evidence or what is referred to as the greater weight of the evidence, fraud claims must be proved by clear and convincing evidence, which is a much higher standard and much more difficult to prove. The reason for the higher standard of proof in fraud claims is that the law recognizes fraud as an offense involving surreptitious behavior that may be subject to different interpretations. It is therefore felt that the plaintiff should have a more difficult burden of proof in these types of claims than would apply in the run-of-the-mill tort claims that may be asserted.

Another intentional tort is called the intentional infliction of emotional distress. To pursue such a claim, you must prove that the conduct of the defendant was intentional and outrageous, that the conduct caused emotional distress, and that the emotional distress was severe. It is often difficult to meet all of these elements.
 

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Strict liability means that the defendant is liable for his or her conduct in certain instances, even without a showing of actual negligence, if that conduct was a cause of injury to the plaintiff. Strict liability normally only arises in regard to activities that are extremely dangerous. For instance, if you are operating a quarry and in the course of blasting with dynamite you damage the home of one of your neighbors, that neighbor may not have to prove that there was any negligence on your part in the blasting operation, but simply has to prove that the blasting was the cause of damage to his or her home. In that circumstance, the party conducting the blasting may be strictly liable for any damage that results from that dangerous activity.
 

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A significant concept within tort law is vicarious liability. The concept of vicarious liability means a principal may be liable for the conduct or the misconduct of his or her agents. That principal/agent relationship arises in the employment context between an employer and an employee. It may also arise in other contexts involving contractors. From a plaintiff’s point of view, the concept of vicarious liability is important because it typically is that legal concept that allows for complete recovery of damages. For instance, if you are rear-ended by a truck driven by an employee of the ABC Company, your attorney would file the claim against not only the driver, but also the employer. If suit was filed only against the driver and it turns out that there was no insurance covering that vehicle, then whatever judgment you got against the driver may be uncollectible simply because the driver may not have the financial resources to pay the judgment. If, however, you get the judgment also against the employer, then that employer probably would have the financial resources either in the form of insurance coverage or otherwise to satisfy the judgment.

The employer in that case is liable for the conduct of the employee, assuming that the employee was acting within the scope of his or her employment. If, on the other hand, the employee was on a personal mission while operating a company vehicle and the employer had no knowledge of it and had not consented to it, then there may be no vicarious liability. Perhaps the employee was acting on his or her own and was not doing anything on behalf of the employer at the time of the collision.

The concept of vicarious liability has been the subject of a good deal of litigation over the years.

Example: Suppose an insurance salesman comes into your home to sell you insurance on behalf of the XYZ Company. He presents to you his business card along with all the brochures of the XYZ Company. He convinces you that based upon the extensive advertising of that Company and because of the well recognized name that this is a very reputable company. Based on that you purchase a policy of insurance and tender a check in a substantial amount. If the salesman then
absconds with the money, is the XYZ Company liable for your loss?

They probably are even though that salesman may not be a direct employee of the company. The salesman in that instance may be an independent contractor, but the XYZ Company is probably still liable because it is the one who gave that salesman all the trappings of authenticity, gave him the opportunity to engage in his fraudulent behavior, and essentially set the whole process in motion through the use of its company name and company advertising.
 

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Literally, the term res ipsa loquitur means the thing speaks for itself. Res ipsa loquitur is a rule of evidence that states that a jury may conclude that a defendant is negligent if:

* the plaintiff has been injured as a result of an instrumentality (some tool or object) that is in the exclusive control of that defendant;

* the defendant has or should have exclusive knowledge of the way that instrumentality was used; and,

* the injury is one that would not normally have occurred if the instrument had been used properly.

Example: Suppose you are walking down the street and a dresser drawer falls on your head. It so happens that the dresser drawer came from the apartment window above. It had been placed there by the tenant who was doing some spring cleaning and the tenant accidentally bumped the dresser drawer. Have the elements of res ipsa loquitur been met in that instance?

They probably have been, in that the dresser drawer was in the exclusive control of the defendant, the defendant had exclusive knowledge as to how the dresser drawer was used, and finally the injury is one that would not normally have occurred if the dresser drawer had been used properly. As long as you can prove those basic elements, you probably would be entitled to recover money against that tenant for her negligence.

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You have probably heard of the term attractive nuisance. That is a concept of negligence that is recognized in many states. An attractive nuisance is an object that by its very location and configuration is attractive and also dangerous to children. If the owner of that object allows it to remain accessible to children knowing that it will attract them and knowing that they probably will be injured if they come in contact with it, that may be a basis for a negligence claim against the owner of that object.
 

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Many tort claims that are brought involve children. Children, in general, are given a favored status in the law, meaning that they have special protection. This is likewise true in regard to tort claims. For instance, in regards to negligence claims, children under 7 years of age are generally legally incapable of committing any act of negligence.

Children between the ages of 7 and 14 are generally presumed to be incapable of committing negligence, although that presumption can be rebutted with the presentation of evidence showing that the child is capable of committing a negligent act because of his or her intelligence level, experience level, or other factors that may bear on that.
 

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In addition to proving that there was a breach of the standard of care by a doctor, the plaintiff must also show that the breach was a proximate cause of the plaintiff’s injury. In the example of the puncture of the arterial wall by the catheter, the defendant may argue that even if that was negligence, the patient only had a 5% chance of survival and therefore was probably going to die anyhow. As such, any negligence that may have been committed was really irrelevant. This is a frequent defense raised in professional negligence claims and is frequently one that has some merit—the doctor may have been negligent, but the patient would have died anyhow. This reemphasizes the importance of the concept of proximate cause. That is, even though the doctor may have been negligent, the negligence may not have been a cause of injury since the patient may have suffered dire consequences in any event.
 

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In most negligence claims, the issue of standard of care arises. In an automobile accident case, the standard of care is defined by the traffic regulations. For instance, the traffic regulations dictate that you shall not enter an intersection on a red light. That regulation establishes the standard of care by which all persons are bound in terms of passing through an intersection. In other contexts there may be building codes or other state or local codes that establish the standard of care by which property owners are bound. Those codes can be the basis upon which a negligence case may be founded because they establish the standard of care to which the defendant is held. If the defendant has violated that code, then that may be evidence of a breach of duty by that defendant. If that breach resulted in damage to you, then you may have a basis for a negligence claim against the property owner.

The concept of standard of care becomes especially important in certain types of professional liability claims—medical malpractice claims, legal malpractice claims, or architectural malpractice claims. In those types of claims, the plaintiff has to establish what the standard of care is. The standard of care is established by means of the presentation of evidence by experts in that field. For instance, if in the course of your heart surgery the surgeon happens to penetrate your coronary artery with a catheter and you suffer irreparable damage, has the standard of care for that procedure been violated? That is not something a nonmedical person could answer. Therefore, it is not something that a group of jurors could answer as nonmedical people unless they hear evidence from a medical expert establishing what the standard of care is.

The standard of care in that particular instance may be that the surgeon, through the use of radiological instruments, should have been able to tell where the catheter was going and therefore should have known when he or she was about to puncture the arterial wall. The surgeon could have avoided the rupture if he or she had been attentive to the radiological instrument that showed where the catheter was.

In that instance, the standard of care evidence presented by the plaintiff may show that the doctor was negligent in puncturing the arterial wall with that catheter. You can rest assured that the defendant doctor will bring in his own medical expert who will refute that and who will state that there is no breach of the standard of care in this circumstance. It was simply an unfortunate accident that happened and that there was no negligence on the part of the doctor.
 

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Professional liability claims may come in the form of medical malpractice actions, legal malpractice actions, accounting malpractice claims, or architectural malpractice actions. In many states, the medical profession has been granted certain special protections. For instance, some states have imposed a cap or a limitation on the amount of money that can be recovered against any doctor or health care provider as a result of their negligence. The reason for that cap on damages is to help hold down the cost of medical malpractice insurance coverage for health care providers.

In addition, some states have imposed special requirements that must be met before a doctor or a health care provider can be sued. In some cases the plaintiff must have the claim reviewed by a medical malpractice review panel that makes a preliminary determination whether the claim has any merit. The decision rendered by the medical malpractice review panel may in some instances be admissible in evidence if the case is tried in front of a jury.

A professional liability claim is different from any other type of tort claim that may be asserted. With these types of claims, the plaintiff typically has to present testimony from a witness who has some expertise in that field as to the standard of care that should have been adhered to by that professional person. Evidence must then be presented as to the breach of that standard of care and how that breach caused damage to the plaintiff.

In a medical malpractice action, that testimony typically comes from another medical doctor in the same field of expertise as the defendant that is being sued. The same concept applies normally in legal malpractice actions and also in architectural malpractice actions. There could be some instances when expert testimony would not be necessary because the negligence is so obvious that there is no need to bring an expert witness into court to explain the technical aspects of the case.

For instance, if a patient goes into the hospital for an operation on the right knee and the doctor ends up operating on the left knee, there is no need for expert testimony to establish that the standard of care is that the doctor should have operated on the right knee. Any reasonable person would know that the operation on the left knee was unnecessary and therefore was negligent on
the doctor’s part.
 

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A product liability claim is one in which a person contends that a particular product is defective in some way and that defect has caused injury. You may recall a famous product liability claim that was brought against Ford Motor Company many years ago relating to its Pinto automobiles. Ford made an engineering decision to place the gas tank on the Pinto in the rear of the vehicle, even though it knew that placing the gas tank in this location could result in serious injury to the occupants if the vehicle was involved in a rear end collision.

Documentation was produced during litigation that Ford knew or should have known of that risk, yet made a conscious decision to continue to keep those vehicles on the road because it felt the overall financial benefit would weigh in its favor, even if it had to pay several million dollars in claims as a result of injuries.

The jury in one of those cases returned a very substantial award against Ford Motor Company for compensatory damages for the injuries suffered by the plaintiff. The jury also awarded substantial punitive damages to punish Ford for its wrongful conduct in not taking the vehicles off the road or warning the public of the dangers associated with that vehicle.

Another fairly well known product liability case involved a McDonald’s restaurant. In that case, an elderly woman purchased a cup of coffee from a drive-in window at McDonald’s. She apparently placed that cup of coffee between her legs and subsequently spilled the coffee. The case received a good deal of attention because it was touted by the insurance industry as an example of a runaway jury verdict. In fact, the insurance industry failed to disclose to the public that in that particular case the plaintiff had made an attempt to settle the case simply for her medical bills, which were substantial because she was hospitalized for over a week. McDonald’s, however, refused to entertain any reasonable settlement offers.

The evidence that was presented at trial was that McDonald’s had been warned on many occasions that their coffee was approximately twenty degrees hotter than what was recommended by the local health department and was so hot that it could cause third degree burns. In fact, the coffee served by McDonald’s was not just hot (135̊ to 140̊), but at 180̊ to 190̊ was able to cook through all layers of skin within seven seconds. McDonald’s admitted that its coffee was 40̊ to 50̊ hotter than is fit for human consumption and knew that more than seven hundred people, including babies, had been burned by its coffee. McDonald’s, however, refused to reduce the temperature of its coffee because it felt it sold more coffee at that level than it would at a lesser temperature.

The plaintiff in this case was an elderly woman who suffered third degree burns over six percent of her body. The state where that case was tried was a comparative negligence state. As such, the jury, having found the plaintiff partially negligent because of how she carried the coffee, reduced her verdict by a proportion that was due to her own negligence.

In addition to awarding a compensatory damage amount, the jury also awarded punitive damages against McDonald’s equal to its gross receipts of two days of coffee sales in order to teach it a lesson. The actual verdict in that case was $200,000 for compensatory damages and $2.7 million dollars in punitive damages. The punitive damage award was reduced by the court on a posttrial motion to $480,000. As a result of that verdict, McDonald’s reduced the temperature of its coffee.

A product liability claim may be founded upon negligence principles, but it may also raise a legal theory known as breach of warranty. Within the sale of a product there is either an express or implied warranty that the product is reasonably fit for the purpose for which it is sold. If it turns out that the product is not reasonably fit for that purpose, then that may constitute a breach of warranty and may give rise to a claim for damages if someone is injured as a result of that breach of warranty. Breach of warranty claims technically are contract claims, but they may be asserted as part of a product liability lawsuit.

Normally, in a product liability claim, the plaintiff will need to present some expert testimony as to what the defect is in the product. For instance, in the Ford Pinto case, the plaintiff had to present expert testimony from engineers to establish that the placement of the gas tank in the rear of the vehicle was dangerous and was not good engineering.
 

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Another area of the law that produces many tort claims is premises liability. A person who is lawfully on someone else’s premises and who is injured as a result of some negligence of that property owner may have a claim against the property owner. The duty or standard of care to which the property owner is held may depend on the status of the injured person.

The different statuses that may apply are that of invitee, licensee or trespasser. An invitee is typically someone who comes onto the property for some legitimate business purpose. A licensee may generally be thought of as a social guest. A trespasser is someone who is not allowed on the premises and who is there without the knowledge or consent of the property owner.

Exactly what duty is owed by the property owner to each of these different classes of persons may vary dramatically from state to state. The general rule of law, however, is that a property owner has a duty to exercise ordinary care to keep his or her premises in a reasonably safe condition. When an owner fails to exercise that ordinary care and someone who is lawfully on the premises is injured as a result, the property owner may be liable.

One thing that distinguishes premises liability claims from other types of tort claims is that the party who is injured (the plaintiff) must prove that the property owner had notice of the defective condition on the premises. For instance, if your daughter slips and falls on a banana peel that was on the floor in the school cafeteria, she does not necessarily have a basis for a claim against the school system or the company that runs the cafeteria. She must present some evidence of how long that banana peel had been on the floor in order to prevail on such a claim. If it turns out that the banana peel had only been there a short period of time and was there because of the actions of some other student in the school, the school may not have had a reasonable opportunity to see the banana peel and clean it up. Thus, there may not be any negligence on the part of that school.

A property owner can only exercise ordinary care toward defects or deficiencies that he or she has knowledge of.

The logic of this rule is that a property owner is not necessarily a guarantor of the safety of all persons on his or her premises but is simply required to exercise ordinary care. A property owner can only exercise ordinary care as to those defects or deficiencies that he or she has some knowledge of or that he or she should have known of.

In the case of your daughter, she must prove that the banana peel had been on the floor long enough that the school system or the manager of the cafeteria should have known that the banana peel was on the floor. The school system or cafeteria manager should therefore have cleaned it up or placed signs out to warn customers of the presence of the object on the floor.

If the banana peel was placed on the floor either intentionally or accidently by an employee of the entity that operates the school cafeteria or by an employee of the school system, then your daughter may not have to prove that that entity had notice of the presence of the banana peel on the floor. The negligence of the employee in placing it there would simply be imputed to the employer.

Take another example of a premises liability claim.

Example: Suppose you are the tenant in a large apartment building where there have been a series of crimes committed resulting in serious personal injuries to the occupants. The property owner is aware of those crimes, but takes no steps to warn other tenants of the crime wave in that building and likewise takes no steps to improve security in the building. If you are subsequently assaulted and injured as a result of a person coming onto the premises for the purpose of committing a crime, then you may have a claim against that landlord based upon a negligence theory. That is, the landlord knew or should have known that there was a danger to the tenants, yet the landlord took no steps to either warn the tenants or to decrease the security risk to the tenants.

Look at that claim from the point of view of how the four elements of a tort claim apply. The first element of a tort claim is the establishment of a duty owed by the defendant to the plaintiff. The duty in this case arises out of the relationship of the parties. That is, the property owner or the landlord owes a duty of reasonable care to persons who are lawfully on the premises.

Reasonable care is that degree of care that a prudent person would exercise in a given circumstance.

You may ask, what is reasonable care? Reasonable care is whatever a jury says it is. A textbook definition of reasonable care is that degree of care that a prudent person would exercise in that circumstance. If the landlord in this instance failed to take some steps to warn the tenants or persons lawfully on the premises of the criminal incidents occurring, then that may be evidence of a breach of the duty to exercise reasonable care and fulfill the second element. If the assault in question was perpetrated by some person who was unlawfully on the premises, then the third element of a tort claim has been met in that the breach of duty has been shown to be a cause of injury. The final element of a tort claim is simply that of injury or damage. In this case, the injury or damage consists of the personal injury to the plaintiff.
 

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The most common form of tort claim arises from automobile collisions. Those tort claims normally involve some careless or reckless act by one driver resulting in a collision with another motor vehicle. Whether the operation of a motor vehicle involves actual negligence depends upon how the driver’s conduct is viewed in the light of the Rules of the Road as set forth either in your state code or local code governing traffic regulations. The rules of the road or traffic regulations establish the standards for operation of motor vehicles. A violation of these rules or regulations typically constitutes negligence.

Motor vehicle accidents involving common carriers (buses, taxis, trains, and planes) may have a set of rules that are slightly different than what would apply to an automobile. Common carriers are frequently held to a very high degree of care. As such, if there is even slight negligence on their part that contributes to the injury of one of their passengers, then the common carrier may be liable.
 

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There are several different types of torts. The most common tort that you may have some contact with is that of negligence. Negligence is a failure to exercise ordinary care.

The concept of negligence is founded upon the idea that a duty is owed from one person to another and there has been a breach of that duty, which then causes an injury or damage to another party. For instance, in the red light example, the duty owed was the duty of not running a red light. If that duty is violated by running the red light and as a result of that you are injured, then all of the elements of a negligence claim have been met.

There are four essential elements to any tort claim.

1. There must be a duty that is owed by the defendant (the party against whom the claim is made) to the plaintiff (the party bringing the claim).

2. There must be a breach or violation of that duty by the defendant.

3. That breach of duty must have then been a proximate cause of injury to the plaintiff.

4. There must be actual injury or damage to the plaintiff.

The first two elements of any tort claim—duty and breach of duty—have just been discussed. The third element of any tort claim is that of proximate cause. Proximate is not to be confused with the term approximate. Proximate literally means “immediate to, contiguous, touching, or direct.” Approximate means not proximate. A proximate cause of an event is one that is reasonably foreseeable. If a person runs a red light, then it is reasonably foreseeable that he or she may injure someone. As such, that negligence may be a proximate cause of injury.

Example: Suppose Alan is playing a game of catch with his son in front of his house. His wind-up is a bit too aggressive and he overthrows the ball. The ball goes through the front window of your home and then through the rear window of your home striking a barbecue stove that is on your back porch. The stove then falls off the back porch, rolls down the hill, and kills another neighbor. What is Alan responsible for?

The first question is whether Alan was negligent. Alan probably was negligent for throwing the ball so hard that it broke the front window of your home. The next question is whether that negligence was a proximate cause of injury to your home. Clearly it was.

The final question is whether or not that negligence was a proximate cause of injury to your neighbor. That is a tougher question. It comes down to essentially an issue of whether it was reasonably foreseeable that by throwing the ball as hard as he did, it would not only go through your front window, but also the back window, and then strike your barbecue oven, knock it off the back porch, cause it to roll down the hill, and strike your neighbor. That type of resulting injury is probably not reasonably foreseeable, and as such, the chain of causation would have been broken at some point in that sequence of events. Typically, in that type of case, the question of proximate cause would be submitted to a jury for resolution as to whether or not Alan’s negligence was a proximate cause of injury to your neighbor.

The fourth and final element of any tort claim is that of damages or injuries incurred. To justify a recovery of any substantial amount, the injuries or damages must be more than minimal. Those injuries may include medical expenses, lost wages, pain and suffering, humiliation, etc.
 

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A tort is a civil wrong that is not based upon a contract. If, for example, a person runs a red light and strikes your vehicle (which is lawfully in the intersection), then you could sue that person civilly for the tort of having run the red light. That tort action does not arise out of any contract between you and the other person.
 

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In reviewing a written contract, there are several things that you need to be on the lookout for.

* The identity of the parties. Each of the parties needs to be expressly identified. If you are dealing with a corporate entity, you need to make sure the complete name of that corporation is stated in the contract. The only way to confirm that you have the complete name of that corporation is to call the state agency that supervises corporations to get the complete name. In addition, the contract should expressly identify the position of the person signing on behalf of the corporation, so that it is clear that he or she is a corporate officer and therefore has the authority to sign.

* Consideration. The consideration must be expressly stated in the document.

* Governing law. It is a good idea to state in the contract what state law is going to control this contract in the event there is a dispute that arises. This is important if you are entering into a contract with a person or entity that is not based in the same state where you are.

* Time of the essence. A time of the essence clause is significant if you are interested in prompt performance by the other party. If prompt performance is not a big deal to you, then you may not want a time of the essence clause. If there is a time of the essence clause in the contract and either party does not comply with the time requirements set forth in the contract, then that is considered to be a material breach of the contract.

* Survival. The term survival means that if one party to the contract were to pass away before there has been complete performance, then the obligation set forth in the contract would apply to the estate and heirs of that person.

* Modification. It is a good idea to expressly state in the contract that any modification of the contract must be in writing and must be signed by both parties. That eliminates any possibility of there being any oral modification which may be the subject of a later dispute.

* Waiver. A waiver is an intentional relinquishment of a known right. It is generally a good idea to have a waiver clause in the contract that says that the failure of either party to insist upon strict performance of any of the provisions of this agreement shall not be interpreted as a waiver of any other default or breach of the same or similar nature. This will help prevent a situation in which a waiver of strict performance of a contract provision on one occasion will constitute a waiver of future breaches by that other party.

* Severability. This term means that if any provision within the agreement is found to be invalid or unenforceable, it will not effect the enforceability or validity of the other provisions in the agreement. Suppose for instance that a particular paragraph in your contract was determined to be either unenforceable or illegal by a court, that conceivably could invalidate your entire contract unless you have this clause within the contract.

* Assignability. The general rule is that any contract may be assigned unless the contract expressly says otherwise. Assignment of a contract essentially means that you are selling your rights under the contract to another party. For instance, if the contract that you are entering into is a contract for the purchase of an automobile, then you may sign a written contract agreeing to buy that automobile for a certain price. You may then assign it (sell it) to another party unless the contract says that assignment is not allowed. What you are selling in this instance is the contract, not the car. You need to decide whether or not you want a nonassignment clause within your contract.

* Integration. An integration clause in a contract says that this contract contains the entire understanding of the parties and that the parties expressly agree that there are no oral or written representations, warranties, or agreements relied upon other than what is expressly said within the written agreement. You may recall the discussion about the parol evidence rule that bars the admissibility of any precontract discussions that may have taken place between the parties before the contract is actually signed. An integration clause reconfirms that and goes a little bit further to confirm also that any postcontract discussions (discussions or communications that took place after the contract was signed) are not to be relied on by the parties. The word integration in this context means that the entire understanding of the parties is integrated into the one document.
 

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Claims for breach of contract, aside from involving claims for money damages, may also involve claims for equitable relief. Equitable relief consists of requests by one party to enjoin or dictate either the performance or nonperformance of certain things.

Example: Suppose Bob enters into a contract with his neighbor to allow a sewer line to be placed across his property so that his neighbor can hook up to the sewer line. However, when the sewer company comes to install the line, Bob decides to stand at the boundary with a shotgun to prevent the excavation. In that instance, Bob may be enjoined from that conduct. The court may order Bob to step aside and allow the excavation to be completed pursuant to the agreement.

The court in that case would issue an injunction requiring Bob to cease and desist any behavior that obstructs the excavation. In addition, the neighbor could also sue Bob for money damages since Bob caused the neighbor to have to hire an attorney to file a suit for the injunction. In that circumstance, the attorney’s fees might be recoverable.
 

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Another form of damage that may be recoverable as part of a breach of a contract claim is what is known as liquidated damages. Liquidated damages are expressly set forth in the contract in the event there is a breach. For instance, in many construction contracts it is expressly agreed by the parties that if the contractor does not complete the job by a certain date, he or she will have to pay damages of a fixed amount per day. Liquidated damages are frequently called for in contracts because it may be difficult for the parties to determine what the actual monetary damages are in the event of a breach or, in this case, a delay in performance.
 

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The damages that may be provided in a contract action generally fall into two categories—direct damages and indirect damages. Direct damages are those that are actually spelled out in the contract. In the painting example, the $100 that was to be paid would be the direct damages. Suppose Joe told you when he agreed to paint your house that he needed to be paid by a certain date otherwise his landlord was going to evict him from his business location, putting him out of business. If that had been disclosed initially and it was within the contemplation of the parties that Joe would suffer significant consequences if payment was not made in a timely fashion, then those consequential damages—the damages flowing from the failure to pay—may likewise be recoverable in a contract claim as indirect damages.

 

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As mentioned, the typical contract involves an offer being made, the offer then being accepted by another party, and the exchange of some consideration. There are, however, other theories or means by which a contract may come into existence.

Sometimes a person who is not technically a party to a contract may have rights under the contract if he or she is a third-party beneficiary. In order for that beneficiary to enforce the contract with the other parties to the transaction, that beneficiary typically must have been intended by the other parties to benefit from the contract. A typical third party beneficiary arrangement would be a party who was injured by another person and who then sues that responsible party and makes a claim against their liability insurance policy. The injured person is an intended beneficiary of that responsible party’s policy and may sue to enforce payment under the policy.

In some instances, a quasi-contract may be recognized. A quasicontract is a contract implied even though there is no express promise to do anything. In order for a quasi-contract to be recognized, there must have been some benefit conveyed by one party to another. The purpose of recognizing quasi-contracts is to prevent the party receiving the benefit from being unjustly enriched.

In addition, the concept known as promissory estoppel may be recognized to enforce certain obligations. If certain promises are made and the other person reasonably relies on them and suffers some loss as a result, then under certain circumstances, that person may sue to enforce the promise made, even if no actual contract was formed.
 

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In determining whether one party has failed to comply with the terms of the contract to the point in which damages should be awarded, the court will ask whether the breach of the contract is material. A material breach of contract is one that goes to the very heart of the agreement. In the house painting example, the failure to pay the one hundred dollars obviously goes to the very heart of the agreement and that failure to pay clearly would be a material breach of contract. If, on the other hand, the painter was one day late in completing the job then, typically, that one day delay would not be a material breach of contract unless the contract contained a time is of the essence clause. If such a clause was in the contract, then that means that the parties have expressly agreed that every minute counts. If the party that is required to perform does not perform on time, then that will be considered a material breach that may bar any right to payment that the parties may have.

A material breach of contract goes to the very heart of the agreement.
 

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Contracts are the foundation of our commercial system. A contract is an agreement. If the agreement is violated then the person who is in violation is liable for the damages called for under the contract. If Joe agrees to paint your house for a hundred dollars by a certain date, and after completing the job satisfactorily you refuse to pay Joe, then you are in breach of the contract and he can sue you for one hundred dollars. If Joe has to hire an attorney to file that lawsuit, then he may be able to recover his attorney’s fees provided that the contract allows for that.

The general rule of law in the United States is that each party has to pay its own attorney fees regardless of who prevails. There has been a movement over the last several years to require that in civil litigation the losing party pay the attorney’s fees of the winning party. This is the law in some countries. But the United States has never adopted that rule because it has been felt that such a rule would deter worthy litigants from bringing claims that are justifiable if they thought that there was any chance of their losing and thereby having to pay the attorney’s fees of the
opposing party.

Referring back to the house painting example, if Joe knew that you were going to hire the most expensive lawyer in town and knew that those attorney fees could be thousands of dollars, that certainly would be a significant deterrent for him to file suit. If he lost, he would have to pay more than what his own claim was for. In the American system of justice, a party should not be deterred from bringing a suit for fear that he or she may have to pay the legal fees of the other side if he or she loses.

The philosophy within the American judicial system is that the courts are accessible to any party who feels as though he or she has been wronged by some other person. In earlier times, when one person wronged another there might be a duel in the street to resolve that dispute. Our civilization has evolved to the point where we wish to deter those types of confrontations and encourage parties to resolve their disputes in a civil fashion in front of a judge or jury instead. As such, the American Rule does not allow for the recovery of attorney’s fee unless stipulated in a written agreement. This is generally considered to be the more democratic rule in that the threat of attorney’s fees being awarded should not be a deterrent to a potentially worthy litigant bringing a law suit.
 

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Once a contract has been entered into, the parties are obviously interested in the performance of the contract. It is not unusual, however, that there are certain conditions imposed on one or both parties before performance is necessary. For example, in your typical homeowners insurance contract, a condition that you must satisfy before your insurance company is obliged to make any payments to you is to provide a sworn proof of loss statement itemizing the damage that you are claiming. The insurance company also has the right to examine you under oath as to that claim. Once those conditions have been satisfied, the insurance company has an obligation to pay you for the damages incurred that are covered by your policy.

Sometimes those conditions within the contract may be the subject of what is referred to as waiver or estoppel. A condition may be waived if the insurance company informs you that you do not have to comply with that condition. A waiver is a relinquishment of a known right. If the insurance company has a right to require that you file a written proof of loss and they expressly waive that or tell you that you do not have to file a written proof of loss, then that constitutes a waiver of that condition.

In some instances, a party may be estopped from requesting that the conditions be satisfied. For instance, again referring to the insurance claim, if the insurance adjuster handling the matter told you that he would complete the proof of loss form and then submit it to you for your signature within the time allowed by the contract and you relied upon that representation, then the insurance carrier may be estopped from denying coverage to you for failing to have filed the proof of loss form within the time allowed.

An estoppel arises when a party makes a representation and the other party relies upon that representation to his or her detriment. In the example, the insurance adjuster represented that he would complete the proof of loss form. You relied upon that, and as a result of that adjuster’s failure to do what he said he would do, your proof of loss form was not submitted in a timely fashion. In that circumstance, the insurance company would be estopped from denying your claim for failing to comply with the condition.
 

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Terms within the contract that are not expressly defined are typically given their dictionary definition by any court that may be called upon to interpret the contract. A rule of evidence that is important in regard to contract interpretation is the parol evidence rule. It declares that statements made by the parties prior to the signing of the contract will not be considered by a court in a contract dispute. The rule is well recognized and may be further strengthened by language within the contract itself that expressly says that the parties are only bound by the terms of the contract as set forth in the four corners of the document. The logic behind the parol evidence rule is that parties should not rely on precontract statements to define the intent of their agreement when, in fact, they have gone to the pains of putting their agreement in writing with the understanding that the writing constitutes the entire agreement.

The parol evidence rule may seem to be somewhat inconsistent with the example of how a party was fraudulently induced to enter into a contract for the sale of a home. The parol evidence rule, however, should not be confused with that instance of fraud. Fraudulent statements that are made to induce a party to enter into a contract are not deemed to be governed by the parol evidence rule. Fraudulent statements may be a basis for setting aside the contract because those fraudulent statements undermine the integrity and fairness of the agreement.

The meaning of a contract may also be garnered from looking at the prior course of dealing between the parties to this contract. That is, their prior course of dealing may give some clue as to what they intended the contract to mean.

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There are several other defenses that can conceivably be asserted to a claim to enforce a contract. For instance, if one of the parties was a minor or suffering from mental incompetency at the time, then those facts may be defenses to the validity of the contract. This defense is called lack of capacity to contract. Likewise, if there was a mutual mistake by the parties, then that could void a contract on the theory that there has been no meeting of the minds and therefore no agreement.

Example: A mutual mistake might arise in a circumstance in which the seller offers to sell his 1964 Cadillac that is parked in front of his home and the purchaser agrees to buy the 1964 Cadillac parked in front of the home. However, it turns out that there were in fact two 1964 Cadillacs parked in front of this home and the parties were referring to different vehicles when they entered into what they thought was their agreement. In that type of circumstance, there has been no meeting of the minds because the parties were mutually mistaken as to which vehicle was being sold.

It is not unheard of that in the course of defending a contract claim, the defendant may claim that he or she was induced to enter into the contract due to fraud on the part of the other party. Fraud can be loosely defined as a misrepresentation of a material fact.

Example: You want to buy a house. You ask the sellers whether they have ever had a wet basement. The sellers tell you that they have never had a wet basement even though they know full well that it is untrue. That misrepresentation may constitute fraud.

If you then proceed to buy the house, based upon the false representation and find out after the sale that in fact the basement does leak, then you may sue the sellers for the fraud. To make your claim, you must have been induced to enter into the contract and to have suffered certain damages. In this case, you bought a house that was faulty and therefore, worth less than what you paid.

Other conceivable defenses to a contract claim could come in the formof duress, undue influence, impossibility, and frustration. Duress is simply a threat or perceived threat to induce a party to enter into a contract. If someone puts a gun to your head and makes you sign a contract, that contract is not enforceable because you were operating under duress. Duress may also come in a number of other forms that may be considerably more subtle.

Undue influence arises when certain persons may have a great deal of control over a party and utilize that control in order to unduly influence a person to enter into a contract.

Example: Betty holds a power of attorney for her next door neighbor who is 94. The power of attorney authorizes Betty to conduct all of the financial affairs for her neighbor. If Betty encourages her next door neighbor to sign a contract selling his home for $100,000 under market value, that would be an example of undue influence. It would be a basis for setting aside that contract of sale.

Impossibility arises where it truly becomes impossible to perform a contract due to something that is unforeseen by the parties. For instance, the destruction of the World Trade Center made the performance of the leases for that building impossible. A related concept is that of frustration of purpose. For instance, during the inauguration of a new president, there may be certain contracts entered into. If the inauguration, however, is canceled, then the purpose of those contracts has been frustrated. If you were one of the suppliers who agreed to provide the grandstands for the inauguration, the U. S. Government may be able to void the contract with you since the inauguration is not going forward.

Most contracts can and should be brief and straightforward.

If you have ever read a multi-page contract drafted by an attorney, you probably found it to be a nightmarish experience. Although complicated business transactions call for contracts that are precise and complex, most contracts can and should be brief and straightforward. To the extent that there is any ambiguity in a contract, typically that ambiguity is interpreted against the party that drafted the contract.
 

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Contracts may either be in writing or oral. Whether the contract is oral or in writing, it is equally valid, although there may be problems enforcing certain types of contracts that are not in writing. Most states have adopted, in some form or another, a law know as the Statute of Frauds. The Statute of Frauds is a law that is designed to minimize the possibility of fraudulent behavior in certain types of transactions. For instance, a person buying or selling land cannot enforce a contract of sale for land unless that contract is in writing. The logic behind that requirement is that over the years, there has been so much litigation relating to oral contracts for the sale of land and allegations of fraudulent behavior that those types of contracts must be in writing and be signed by the person against whom the agreement is being enforced. That type of requirement is designed to minimize the likelihood of there being any fraud perpetrated against the buyer. If the seller signs the agreement and agrees to sell the land for a certain price and all of that is confirmed in writing, then the chance of that transaction being fraudulent is considerably reduced.

The Statute of Frauds is designed to minimize the possibility of fraudulent behavior.

Other types of transactions that typically need to be in writing to be enforcable are transactions that involve pledging the credit of another for a transaction, agreements to marry, agreements to pay real estate brokerage commissions, agreements that cannot be performed within one year, and agreements to lend money or extend credit for a significant amount, such as $25,000 or more. All of those types of transactions are ones that over the years have been found to be the subject of frequent litigation with allegations being made of fraud. Because of that, many states have found it best to require those types of transactions be put in writing and signed by the party against whom enforcement of the contract is being sought.
 

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Contracts are the foundation upon which our economic system is built. They are of such importance that a body of law has developed known as the Uniform Commercial Code. This uniform law has been adopted by most states in the Union—either in whole or in part—and lays out certain principles dealing with commercial transactions (contracts). The Uniform Commercial Code, in large measure, governs the conduct between merchants and other parties dealing with merchants.

The Uniform Commercial Code establishes legal principles that control many business transactions. For instance, when you buy a piece of exercise equipment from a sporting goods store, your legal right to return that equipment, to get replacement parts, or to file suit for a problem related to the equipment are all governed both by the warranty that comes with the product and also by the Uniform Commercial Code.

The Uniform Commercial Code also governs transactions involving security instruments and negotiable instruments. A security instrument is a document (typically filed at a courthouse or other public repository) that is designed to put the public on notice that a particular item of personal property, which may be found at a particular location, is security for a debt of the owner of that property to another person.

A security instrument in that regard is similar to a mortgage on your home. A mortgage is a type of security instrument that is designed to secure the mortgage lender in the event you do not make your monthly mortgage payments. If you fail to make your monthly mortgage payments, then the lender has the right to foreclose and to sell your property at public auction.

The Uniform Commercial Code also deals with negotiable instruments. A negotiable instrument is any instrument that may be negotiated or sold for value. For instance, a promissory note wherein one person promises to pay another a fixed amount of money is a negotiable instrument. Likewise, a check is a negotiable instrument. The Uniform Commercial Code deals with the law governing those types of instruments.
 

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Most people have probably had the experience of attending an auction. The conduct of an auctioneer is similar to negotiating a contract. The auctioneer is putting a product on the market for sale and by announcing certain figures, he or she is requesting offers to purchase the item for that price. If you raise your hand and offer the number that the auctioneer has mentioned, then that is deemed to be an offer for the consideration as stated by the auctioneer. When the auctioneer drops the gavel on the highest offer, that is deemed to be an acceptance of that last offer. As part of any auction, there may also be certain published conditions that are made part of the auction. If that is so, then by bidding at the auction, you have agreed to those terms.

 

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Consideration is a very elusive, but important concept. An easy way to think of it is as the tit for tat, the quid pro quo or, to put it another way, it is simply the meat of the agreement. If there is no consideration, then there is no contract. Going back to the example of the house painting, if Joe wrote you a letter offering to paint your house, but never stated when he would finish it or what compensation he expected and you simply wrote back saying that those terms were agreeable, that would probably not be a contract because there is no consideration stated.

Typically the performance of a preexisting legal duty cannot serve as consideration for a contract. For instance, if you are already under a duty to perform a certain act and you then promise to do it as the consideration for a contract, that consideration is insufficient.

Forbearance to do a certain act may serve as consideration.

Example: If Connie agrees not to sue you for payment of $100, then that is sufficient consideration to make a contract enforceable. That forbearance serves as a legal detriment and therefore is sufficient consideration.
 

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The way that an agreement comes about is generally through an offer being made by one party and then that offer being accepted by the other party.

Example: If Joe were to send you a letter offering to paint your house for one hundred dollars with such work to be accomplished by a certain date and you then wrote on the bottom of the letter that these terms were agreeable and sent that back to Joe, that letter would constitute a written contract. The offer was in the form of the letter. The acceptance came in the form of your acknowledging the agreement. The consideration for the agreement is the one hundred dollars to be paid for the services rendered.

The offer may come in two different forms—written or oral form. The more precise the terms of the offer, the better off the parties will be in establishing the certainty of their agreement. A common example of an offer is an advertisement that may appear in the newspaper by a car dealer offering to sell a used Toyota Camry for $17,500.

Suppose you were to see that advertisement and go to the dealership prepared to pay $17,500. If the dealer then told you that there were other terms that were not stated in the advertisement (handling charges, processing fees and other such fees), you could rightfully tell the dealer that it made an offer to sell this vehicle for $17,500 and you are prepared to pay it. The dealer is obliged to sell the vehicle to you for that amount. (Of course on top of that $17,500 would be any taxes that are mandated by law.) The advertisement constituted an offer and you accepted the offer for the agreed upon consideration of $17,500.

If, on the other hand, you had come into the dealership and rather than offering $17,500, you offered to pay $17,000 for the vehicle, then that would be a counter offer. A counter offer is, by its very terms, a rejection of the original offer. The dealership would be free to reject your counter offer.

There are several different ways that an offer may be framed. The person making the offer may state certain terms and conditions that have to be met in order for the offer to be accepted. If those terms and conditions are not met, then there cannot be a valid acceptance of the offer.
 

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Life is about agreements. The materials in this section explore these agreements.

Agreements you make with others are often called contracts, but there are several variations on this. You have employment contracts and marital contracts; your lease is a contract, as are arrangements with creditors.

The first two chapters of this section cover the laws of contracts and torts. This serves as an introduction to the remaining chapters that cover specific areas in which the principles of contract law and tort law are applied.

A contract is an agreement between two persons to either do something or not to do something in exchange for some form of consideration. An agreement may come in several different forms. The agreement may be implied as a result of the conduct of the parties. On the other hand, the agreement may be expressed, meaning that the parties have expressly stated what their intentions are and what they wish to obtain as a result of the agreement. An expressed contract may be in writing or it may be oral. Either type of contract is equally enforceable in most instances, although a written contract is always preferable because it clearly sets forth the terms of the agreement. An oral contract is always subject to dispute, because the parties may have different recollections of exactly what they agreed to.

A contract may be in writing or it may be oral.

Sometimes people classify contracts as unilateral or bilateral. A unilateral contract might be most easily thought of as one in which the offer can be accepted only by doing some act. For instance, if your neighbor offers a $100 reward for the return of his cat, then you can accept that offer only by returning the cat.

A bilateral contract, on the other hand, is one where the giving of a promise is the expected consideration. Most contracts are bilateral. For example, you agree to buy my car for $100. You have agreed to do something (pay me $100) and I have agreed to do something (sell you my car).

 

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A federal court may have subject matter jurisdiction, but no personal jurisdiction over the defendant.

Lawyers frequently argue over the respective merits of bringing a civil claim in state court versus federal court. Some lawyers maintain that it is always to the advantage of the plaintiff to litigate a claim in federal court for the following reasons.

* The Federal Rules of Evidence typically are a bit more lenient, and therefore more favorable to a plaintiff than are the state rules of evidence.

* The federal courtrooms are much grander and larger than the typical state courtrooms, and therefore juries are likely to be more impressed with a case brought in federal court and more likely to return a verdict favorable to the plaintiff.

* Federal judges are sometimes considered higher caliber than state court judges.

Those reasons are very subjective and there are probably as many lawyers across the nation who feel that it is better for a plaintiff to file suit in state court than it is in federal court. In any event, since the plaintiff initiates the lawsuit, the plaintiff has the opportunity, to some extent, to choose the forum. Even though a suit may be initiated in state court, if the federal subject matter jurisdiction requirements have been met, then the defendant may remove that case from state court to federal court.

Once a case has been initiated in federal court, the process that is followed is much the same as what has been described previously in the state court system. The particular procedural rules that are followed in federal court may differ from what are followed in state court, but the basic procedure is much the same once the lawsuit has been initiated.

When hearing a diversity case, a federal court is, in essence, sitting as if it were a state court. The federal judge who is called upon to make rulings of law has to apply the pertinent state law that governs that transaction. If a citizen of Connecticut sues a citizen from Massachusetts in a federal court in Massachusetts for an automobile accident that occurred in the state of Connecticut, then the federal judge in Massachusetts is going to apply Connecticut law to that claim. Massachusetts law on the particular issues in questions may be markedly different than Connecticut law.

A federal judge, however, who hears a federal question case typically is going to apply federal law, since the claim itself arose under federal law.

Even though a federal judge may be called upon to apply state law in a diversity claim, he or she is still bound by the Federal Rules of Procedure, which govern the civil procedure in that court system. He or she is also bound by the Federal Rules of Evidence, which are the rules that govern the admissibility of evidence in the federal court system. As such, a federal judge, when sitting in a diversity claim, is called upon to apply a number of different types of law—both state law and federal law—to different aspects of the case.

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In order to file suit against a person in the state of Massachusetts, for example, either in state or federal court, you have to assert and be able to prove that the court (state or federal) has personal jurisdiction over that defendant. Personal jurisdiction can be obtained in a number of different ways.

* If the defendant committed the alleged wrong in the state of Massachusetts, then that would give the courts (state or federal) within that state personal jurisdiction over him or her.

* If the defendant lives in the state of Massachusetts, then the courts (state or federal) in that state would have personal jurisdiction over him or her.

* If the defendant has engaged in a course of conduct wherein he or she has substantial contacts with the state of Massachusetts and the claim in question “arose out of those contacts,” then that may likewise give the courts (state and federal) personal jurisdiction over him or her in the state of Massachusetts.

The concept of personal jurisdiction is entirely separate and distinct from the concept of subject matter jurisdiction. Subject matter jurisdiction of the federal courts (in terms of civil claims) must be founded upon diversity or a federal question. That relates exclusively to what is called subject matter jurisdiction. Personal jurisdiction deals with the issue of whether the court has authority over that defendant to litigate that claim.

The concept of personal jurisdiction is founded on the idea that it would be unfair for a citizen of
California to have to litigate a claim in Massachusetts unless that citizen of California had done something that would constitute some substantial contact with the state of Massachusetts that gave rise to the claim in question. The mere fact that a federal court may have subject matter jurisdiction to litigate your claim does not necessarily mean that it has personal jurisdiction over the defendant to litigate that claim.

Personal jurisdiction deals with the issue of whether the court has authority over a particular defendant.

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The second way of bringing a civil claim into federal court is by suing under a federal statute or a federal constitutional provision. For instance, if you file a civil rights claim against your employer, even though you may be a citizen of Ohio and you employer may be a citizen of Ohio, you can still bring that claim in federal court because the claim is brought under federal law. Likewise, if you pursue a claim against a defendant under a theory involving a violation of your constitutional rights, then that type of claim may be brought in federal court because it is founded upon a federal constitutional issue.

Unlike diversity claims, federal question cases do not have any monetary jurisdictional limits. That is, the discrimination claim that you bring against your employer may only be worth one hundred dollars, but you can still bring that claim in federal court.
 

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A diversity claim is one wherein the parties are of diverse citizenship. A citizen of the state of Connecticut may sue a citizen of the state of Massachusetts in the federal court in Massachusetts. That difference or diversity of citizenship establishes one of the elements of a diversity claim. The diversity claim, however, must also involve a monetary controversy in which the amount at stake is in excess of $75,000 (not including any interest or any attorneys fees that may be claimed).

The civil jurisdiction of the federal courts is legislated by Congress. Congress has chosen to limit the overall civil jurisdiction of the federal courts. The logic is that civil litigants can always go into state court to resolve their disputes, and as such the federal courts should be reserved only for certain types of disputes. Disputes between citizens of different states may be subject to some local or regional prejudice if brought in state court, and therefore Congress has decided that these types of civil claims, provided they meet the monetary amount set forth above, can be brought in federal court in order to avoid the potential prejudice or bias.
 

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The federal court system is quite different from the state court system. You will recall from what was said previously that the federal courts are courts of limited jurisdiction. On the other hand, the state courts are courts of general jurisdiction, or, to put it another way, virtually of unlimited jurisdiction. The term jurisdiction in this sense refers to subject matter jurisdiction—the types of claims that the court has the authority to hear.

There are some claims arising under federal law that can be asserted only in federal court, but the general rule is that virtually any type of civil claim (under state or federal law) can be brought in the state court system. That is not true of the federal court system. In order to bring a civil claim in the federal court, there are certain requirements that have to be met. There are two ways to bring a civil claim into federal court. You can bring a diversity claim or you can bring a claim involving a federal question.
 

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An expert witness is simply a witness who has expertise in a particular area, whose testimony the court has determined may assist the jury in understanding the issues of the case and therefore fairly deciding the issues. Expert testimony has been abused over the years in that it is sometimes presented on issues that do not require expert testimony. The rule of thumb for the admissibility of expert testimony is that it must relate to a subject matter that the jury might have difficulty understanding without expert testimony. The expert must assist the jury in understanding the issue. In a medical malpractice case in which there is an issue as to whether the surgery should have been conducted one way or another, the jury needs to hear expert testimony from medical doctors as to how the surgery should have been conducted. The jury does not have the expertise to decide that issue on its own, and therefore must hear from medical experts who will educate the jurors as to what the medical issues are and how the surgery either should have or should not have been conducted. It is then up to the jury to decide which of those experts they believe and to render a verdict.

Certain types of expert testimony have been ruled inadmissible by some courts. For instance, in some jurisdictions, expert testimony of how a particular automobile accident may have occurred is considered to be inadmissible because that is normally considered to be something that a jury can understand and determine on its own, without the aid of expert testimony.

There is a tendency within the legal profession to offer expert testimony on as many issues as possible in order to bolster the claim or defense being asserted. Recently, many courts have taken a somewhat dim view of that tendency and have endeavored to restrict the admissibility of expert testimony. The reasoning is that in many of these types of cases, the jury has sufficient expertise or common sense to understand and resolve the issues.

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A more common objection, however, is hearsay. The hearsay objection may arise not only in regard to documentary evidence, but also in regard to testimonial evidence (the testimony of witnesses). Generally defined, hearsay is an out-of-court statement that is offered for its truth value.

Example: The plaintiff makes a statement at the scene of an accident saying “I am at fault.” If it were to be offered as truth in court, would it be considered hearsay? Looking at the definition of hearsay as being an out-of-court statement that is offered for its truth value, the statement would be hearsay. The statement was made out of court (it was made at the accident scene) and it is being offered for its truth value (to prove that the plaintiff was at fault at the time of the accident because he said so).

The general purpose of the hearsay rule is to exclude evidence that may not be reliable. Another reason for the exclusion of hearsay evidence is that its presentation denies the other party the right to cross examine the person who is making the statement. If, at the scene of an accident, a police officer makes a statement to the effect that the plaintiff was at fault for the accident, that statement is hearsay if offered as evidence in court because it was stated out of court and is offered for its truth value. If the police officer does not testify at trial, then obviously he or she cannot be cross examined about that statement. It would be unfair to allow either party to repeat that statement in court because the witness making the statement is not present to be cross examined about it. If, however, the police officer does testify at trial, then it is possible that, under certain circumstances, he or she may be confronted with that prior statement and asked to explain it.

As indicated above, hearsay evidence is not generally admissible, but there are a number of exceptions to the hearsay rule. For example, when the plaintiff stated that he was at fault, the statement was hearsay. However, the court may still admit it on the grounds of it being an exception to the hearsay rule because it is an admission of a party to this particular action. The exceptions to the hearsay rule are very extensive—so extensive that some people might say that the rule itself now has no meaning.
 

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Documents and physical objects are frequently offered as exhibits or as evidence at trial. The first inquiry in regard to any document or other physical object is whether it is authentic. A document or object is authentic if it has been proven to be what it appears to be. If a will is presented to the court as an exhibit and is offered as the will of John Jones, then before that document can be entered into as evidence (shown to the jury), a witness will need to confirm that it is the will of John Jones and that the document bears his signature. That type of testimony establishes the authenticity of the document—simply that it is what it appears to be.

From a common sense point of view, lay people looking at that may say that it has the name at the top indicating that it is the Last Will and Testament of John Jones, it bears the signature of John Jones, and the signature appears to be authentic. Based upon all of that, common sense would suggest that the document is what it appears to be—the Last Will and Testament of John Jones. The court, however, normally requires more than simply the appearance of validity. Typically, a witness will need to testify that the document is in fact the Last Will and Testament of John Jones and the witness may have to testify as to how he or she knows that is so.

Once the authenticity of a document has been established, there may be other objections that could be made regarding that document. Any objections as to relevance and privilege will have to be dealt with.
 

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Evidence, in general terms, can fall into two broad categories. There is direct evidence and circumstantial evidence. Direct evidence consists of witnesses testifying to things within their personal knowledge or may consist of documents, pictures, or other things that directly prove a particular thing. For instance, a person testifying that “I saw the wolf attack the chicken coop” would be direct evidence.

Circumstantial evidence may be thought of as indirect evidence, or evidence that leads to a particular conclusion although there is no direct testimony, document, or thing that proves that event. Going back to the example of the wolf attacking the chicken coop—if no one actually saw the attack happen, but you see the wolf’s footprints around the chicken coop and the dead chickens, then you may conclude that the wolf is the one who killed the chickens, even though no one actually saw it happen.
 

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The principle criteria of admissibility is that the evidence must be relevant. Relevance means that the evidence that is being offered tends to prove or disprove an issue in the case. If the issue in the case is whether you ran a red light, evidence that shows that the traffic light was not properly functioning at the time of the accident is relevant and typically would be admissible. Likewise, evidence of the cycle of nearby traffic lights and your speed as you traveled from a nearby intersection to the intersection in question may all be relevant to whether or not the light was red when you entered the intersection. All of those facts tend to prove or disprove whether you ran that red light and therefore are relevant.

Relevance means that the evidence that is being offered tends to prove or disprove an issue in the case.

Some evidence may be relevant but it is so highly prejudicial that the court determines that it should not be admitted. In tort claims, most courts have determined that evidence of insurance is not admissible because it is too prejudicial. If a jury knew that a defendant was insured, then jury verdicts may be higher simply because of that. Accordingly, most courts have determined that evidence of a defendant being insured is not admissible even though it may be relevant.
 

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Within the law of evidence, there are certain presumptions that may arise on occasion. A presumption is a recognition that if one particular fact is proven, then a second fact is inferred or assumed from the first.

Example: If I prove that a child is under the age of seven, then a presumption arises that the child is incapable of negligence. That is, having proved first that the child was under seven, the court then recognizes a presumption that the child cannot be guilty of negligence.

A presumption is a recognition that if one particular fact is proven, then a second fact is assumed.

This presumption may be unrebuttable. A different presumption may exist as to a child between the ages of 7 and 14. This presumption is considered to be a rebuttable presumption. If it can be shown that the child is of sufficient sophistication, intelligence, and experience that he or she can understand the nature of his or her acts and is capable of committing a negligent act, then the presumption may be rebutted.

There are a number of other presumptions that exist in the law. A person accused of a crime is presumed to be innocent. That presumption must be overcome by the government by presenting evidence of criminal behavior. If a person holds the power of attorney for another individual and profits from that relationship, then there is a presumption that his or her profiting from that relationship is fraudulent. The basis for that presumption is that, as the attorney in fact or holder of a power of attorney for an individual, a person has a great deal of power over that individual and can manipulate the assets or activities of that individual.

A presumption of death from an absence of seven years may also arise. If a person disappears and is not seen or heard from for a period of seven years, then he or she is presumed dead.

Another presumption that is frequently referred to is the presumption of knowledge of the law. As a citizen of this country, you are presumed to know the law. Obviously, no one can know all of the laws. However, common sense should tell you that if you are about to engage in behavior that is questionable, then you may need to check to see whether that behavior is illegal. If you then engage in that behavior, you cannot raise a defense that you did not know the law, because you are presumed to know the law.
 

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As previously stated, the plaintiff has the burden of proof in a civil case. There are different burdens that apply in different types of cases. Generally, in a civil case, the burden of proof is what is referred to as the preponderance of the evidence—the greater weight of the evidence. Recall the example of tipping the scales by a featherweight. If the plaintiff tips those scales by so much as a featherweight, then his or her burden of proof based upon a preponderance of the evidence has been met.

In some civil claims, however, the burden of proof may be somewhat higher. In particular, regarding fraud claims, the burden of proof is generally considered to be what is called clear and convincing evidence. That burden of proof or standard of proof is higher than simply a preponderance of the evidence. If you were to think of a preponderance of the evidence as being something more than fifty percent, then clear and convincing evidence would be a level of proof in the range of seventy-five to perhaps as high as ninety percent.

Another term that is used in criminal cases is that of proof beyond a reasonable doubt. That is a level of proof that even goes beyond clear and convincing evidence, and probably is more in the range of ninety percent.

It is probably misleading to try to ascribe numerical figures to any of these standards of proof, since they really are not susceptible to numerical classification. These numerical classifications are merely designed to provide some illustration of the different levels of burden of proof.

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In the course of litigation, it is not uncommon for one party to raise an objection based upon privilege. There are several different privileges that exist within the law. The husband/wife privilege precludes either spouse from testifying against the other based upon what they learned from the other spouse during the course of the marriage. If a husband tells his wife that he has just murdered the next door neighbor, then the wife may be precluded from repeating that statement in a court of law.

One of the privileges that is at the foundation of our legal system is the attorney/client privilege. When a client retains an attorney, anything that client says to the attorney is deemed to be privileged and cannot be repeated by the attorney without the consent of the client, unless the communication involves proposed criminal activity. For instance, if a client tells his attorney that he is about to blow up a building, the attorney—under the law of most states—must advise him of the possible legal consequences, urge him not to commit the crime, and advise him that the attorney must reveal his intention to the authorities unless he abandons the proposed criminal activity. If the client confesses to his attorney that he blew up a building, the attorney is bound by the attorney/client privilege not to disclose that information.

In the case of the attorney/client privilege, the privilege belongs to the client, not to the attorney. If the client wishes to divulge those communications, then he or she may do so. The attorney, however, may not divulge those communications without the consent of the client, unless the client has already divulged them on his or her own. Some states also recognize other types of privileges, wherein communications made by one person to another may not be divulged without the consent of the person to whom the privilege belongs. (Such privilege exists in regard to the physician/patient relationship and the priest/penitent relationship.)
 

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The competency of a witness to testify may frequently become an issue. Generally, any witness within the age of reason is considered to be competent, provided that witness has not been declared incompetent by a court. The age of reason varies depending upon the maturity and intelligence of the witness, with age 7 generally being a cutoff point. Between ages 7 and 14, it is a matter for the trial judge to determine whether the child is of sufficient sophistication to testify. A person is declared incompetent by a court if there has been a judicial determination that he or she is deficient in mental capacities to the point where he or she cannot conduct his or her own affairs and needs to have someone else appointed as a guardian. If a person has been declared incompetent, then he or she may not be able to testify.

Other issues of competency may arise in terms of taking of an oath. Some people maintain that they cannot take an oath because of their religious beliefs. Normally, that is resolved by having the person affirm that they will tell the truth rather than having them state that they will tell the truth so help me God.
 

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Once a witness has been put on the witness stand, he or she may be impeached. To impeach a witness means to contradict him or her in some manner or form, or to otherwise undermine his or her credibility. A witness may be impeached by presenting contrary statements that he or she has made on prior occasions about the issue in controversy; by showing that he or she has some particular bias or prejudice against the other party; or, by attacking the witness’ character by showing that he or she has been previously convicted of a criminal offense constituting a felony or a crime of moral turpitude. (A felony is a crime for which a person may be imprisoned for more than a year. A crime of moral turpitude is a crime that involves lying, cheating, or stealing.)

Normally, in a civil case, general character evidence is not admissible. The court in a civil action does not want to hear evidence about how good a person the plaintiff or the defendant may be. However, that type of testimony may be allowed in a criminal action to show the character and reputation of the defendant who has been accused of the crime.
 

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The purpose of cross-examination, on the other hand, is to allow the adverse party (the party who has not called the witness) to try to pin that witness down. The witness is not typically allowed to explain his or her answers on cross-examination.

A skillful cross examiner will ask only questions in the form of Isn’t it true that…. That type of questioning is intended to elicit a simple yes or no answer and to not allow the witness to explain answers in any detail. This form of questioning is called leading. If the witness wishes to explain the answer or if the attorney who initially called the witness wishes to have the witness explain the answer, then that attorney will have the opportunity on redirect examination (the examination that takes place after the cross-examination).

The general format by which questioning of witnesses is conducted is:

* first, by direct examination, in which nonleading questions are asked by the attorney calling the witness;

* second, by cross-examination by opposing counsel, frequently through the use of leading questions; and,

* third, by redirect examination, in which the party that originally called the witness may ask more nonleading questions, allowing the witness to explain any answers that may have been given on cross-examination.

Cross-examination is generally limited by the scope of the direct examination. If, on direct examination, the witness was only asked a limited number of questions about limited issues, then the cross-examination must be limited to those issues. The cross-examination may not go beyond the general scope of the direct examination.

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The party that calls a witness to testify is required to ask that witness nonleading questions. That form of examination, called direct examination, is intended to allow the witness to testify rather than to have the attorney testify. If the attorney were allowed to ask leading questions (questions that suggest the answer within the content of the question) then in essence the attorney is testifying and not the witness. An example of a leading question would be “Isn’t it true that you beat your wife?” That question, by its very content, suggests that the answer is yes—that the witness does beat his wife. That type of questioning is not allowed on direct examination. A nonleading form of that same question would be “What do you know about your wife having been beaten?”

The general purpose of direct examination of witnesses is to allow the witness to explain what he or she knows. If that witness provides testimony that needs further explanation, then the attorney can ask the witness to simply explain the answer.

 

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If you have ever been in a courtroom in which multiple witnesses are potentially going to testify, you may recall the judge asking whether there is a request for a rule on witnesses. The rule on witnesses means that witnesses who have not testified should not be in the courtroom. That rule does not apply to the parties to the litigation. This means the plaintiff and the defendant in a civil case both have a right to be present, even though they may testify as witnesses. However, witnesses who have not yet testified may be excluded from the courtroom until they testify. In addition, this rule on witnesses may be extended to prohibit anyone from talking to witnesses about what is going on in the courtroom until that witness gives his or her testimony. A violation of that rule on witnesses may result in a witness being excluded from testifying. The purpose of this rule is to prevent one witness’ testimony from being influenced by what another witness has said in the courtroom.

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As previously defined, evidence is the presentation of testimony from witnesses and the presentation of documents or physical things for the jury to review. The rules of evidence govern how those things may be admitted into evidence. For something to be admitted into evidence technically means that the jury is allowed to hear it or see it. If it is not admitted into evidence, then the jury should not see or hear it. If, by chance, they have heard or seen evidence that was not properly admitted, they will be instructed to disregard that evidence. The rules of evidence are designed to provide some degree of reliability to the evidence that is presented in the courtroom. These rules can become very complex.

The rules of evidence are designed to provide some degree of reliability to the evidence that is presented in the courtroom.

The principal form in which evidence is presented is by putting a witness on the witness stand and having him or her respond to questions from the attorney who has called that witness. The testimony rendered by that witness is considered to be evidence. The jury may rely upon that evidence to decide the case. The testimony presented by one witness may be sufficient to convince a jury to rule in favor of the party that called that witness, even though the other party may have called ten witnesses who presented contrary testimony.
 

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Most courts have adopted rules of procedure and rules of evidence. Those rules of procedure may be contained, to some extent, in the state code (in which case the procedural rules in essence become statutory law), or they may be in a formal set of rules referred to as the rules of procedure. In the federal court system, there is a set of rules referred to as the Federal Rules of Civil Procedure. Many state courts have adopted similar sets of rules of civil procedure.

In addition, there may be a set of rules referred to as the rules of evidence. In the federal court system, there is a formal set of rules referred to as the Federal Rules of Evidence that have been written by the Judicial Conference. Those Federal Rules of Evidence apply in federal court. At the state court level, many states have adopted their own state rules of evidence. Those rules are designed to govern the admissibility of evidence in that state court system.
 

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If either party feels as though he or she has not been dealt with fairly by the trial court, either has a right to appeal that decision to the next highest court within that state’s court system. Although each party has a right to appeal, the court may be a court of discretionary appeal, and may decide not to hear the case.

An appeal is a very laborious process. In order to properly present an appeal, the transcript of the trial proceeding may have to be prepared. That transcript is prepared by a court reporter. The court reporter expects to be paid for the preparation of a transcript. The preparation of a transcript frequently costs several thousands of dollars. In addition, the party bringing the appeal has to present a legal argument (in the form of a brief or memorandum) to the appellate court stating why the trial court’s decision is in error.

The parties are not allowed to present new evidence on appeal. Instead, they are bound by the record created at the trial court level. Anything that was not properly presented or properly objected to at the trial court level is not going to be considered on appeal. An appeal is not an opportunity to re-try the case. It is simply an opportunity to request a higher court to review and correct an error made by the trial court. If a reversible error is found, the case is sent back to the trial court for a new trial or, in some instances, the appellate court reverses the trial court’s decision and enters a new judgment.
 

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Once a jury verdict is entered, either party has a right to make posttrial motions. Those posttrial motions will typically come in the form of a motion for a new trial, a motion to decrease the size of a jury verdict, or, in some instances a motion to increase the size of the jury verdict.

Judges are reluctant to disturb a jury verdict. The traditional thinking has been that once a jury has spoken, that statement is final. If, however, the jury obviously disregarded the instructions of the court or returned a verdict that is clearly excessive or inadequate, the court has the authority to set aside that verdict (and, in some states, to actually alter that verdict).

Motions for a new trial must be based on some procedural error committed by the trial judge. For instance, if the trial judge were to admit evidence that should not have been admitted, allowed an attorney to say something to the jury that is inappropriate, or improperly instructed the jury on an issue of law, then any of those may be a basis for a motion for new trial.

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Any decision rendered by a jury is normally expected to be unanimous in a civil case. The jury reviewing the evidence is required to apply the principle that the plaintiff has the burden of proof. The plaintiff, being the one who is bringing the claim, has the burden of proving his or her case by what is referred to as the preponderance of the evidence (the greater weight of the evidence). If you think of a scale that is evenly balanced, and if a feather were placed on one side of that scale, then that feather’s weight would constitute a preponderance of the evidence. If the plaintiff tips the scales in his or her favor by so much as a featherweight, then the plaintiff has met his or her burden of proving the case by a preponderance of the evidence.

Sometimes people ask: What does it mean to prove something? Something is proven by presenting evidence in support of it. Any evidence may be sufficient to prove something. One witness testifying that he or she saw you run a red light may be sufficient to establish your fault in an auto accident case, even though you presented ten witnesses who said that the light was green.
 

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At the conclusion of all of those motions—if they are denied—the jury will be instructed by the court what the law is in the case. Those instructions may be oral or they may be given to the jury in writing. The jury will then be instructed to consider all the evidence, the jury instructions, and then render a verdict.

Before they begin their deliberations, however, the jury will hear from the attorneys one more time in the form of closing arguments. The purpose of closing arguments is to give the attorneys one last opportunity to argue their respective positions on the case in order to persuade the jurors to vote in their favor.

The size of a jury may differ from jurisdiction to jurisdiction. The size of a jury in a civil case is usually anywhere from five to twelve people, but the parties can agree to have fewer jurors.
 

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Once the opening statements have been completed, the plaintiff will present his or her evidence first. That evidence comes in two forms—the presentation of testimony from witnesses and the presentation of documents or other tangible things for the jury to review. At the conclusion of all the plaintiff’s evidence, the defendant has the right to make a motion to dismiss or to strike the plaintiff’s case based upon any number of legal theories. This type of motion is a statement by the defendant saying that even if the plaintiff’s evidence is to be believed, it is not sufficient to justify a judgment being entered against the defendant. The court normally will rule on such a motion at that time. Typically, that type of motion is denied. If the motion is denied, the defendant then has the right to present his or her evidence.

At the conclusion of the presentation of all of the defendant’s evidence, the defendant may renew his or her motion to strike or motion for a directed verdict. In addition, the plaintiff may make a motion to strike any defenses and to request the court enter judgment against the defendant as a matter of law. That type of motion is a statement by the plaintiff that even if what the defendant says is true, he or she still has no bona fide defense to the claim, and therefore, there is nothing for the jury to decide.

The function of a jury is to hear evidence when there is a factual dispute, to evaluate that evidence, and then to render a decision based on it.

It is important to keep in mind that the function of a jury is to hear evidence when there is a factual dispute, to evaluate that evidence, and then to render a decision based on it. If there is no true factual dispute, then there is nothing for a jury to decide and the court (judge) will make the decision.
 

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Once a jury has been chosen, the court will allow both parties to have opening statements. The purpose of opening statements is to allow the attorneys to give the jury a road map of where the case is going to go. Opening statements are not intended to be argumentative, but are intended to simply be a recitation of the facts that will be presented during the course of the trial.
 

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If the case is to be tried before a jury, then the first stage in the trial is voir dire. Voir dire literally means “to speak truthfully.” It is an opportunity for certain questions to be asked of the potential jurors to determine whether they know anything about the case, whether they know any of the parties, whether they have any interest in the outcome of the case, or whether they may have any particular bias or prejudice for or against either party. Voir dire is typically conducted by the attorneys, although in some courts, it may be conducted by the judge. Once the voir dire is completed, the parties have the opportunity to strike (dismiss) all or some of those jurors they feel would not be receptive to their case.

In addition, some jurors may be stricken for cause. For example, if a juror indicates that, based upon what she has heard about the case, she has already made up her mind, typically she is going to be stricken for cause because she comes to the case with a predisposition.
 

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After the conclusion of the discovery process, there may be a pretrial conference with a judge. The purpose of that pretrial conference is to identify the remaining issues that need to be decided and to attempt to resolve any outstanding legal issues prior to the trial. In addition, some courts conduct what are referred to as settlement conferences. These conferences may be conducted by neutral mediators and are designed simply to allow the parties to come together in an informal setting to discuss settlement. Those settlement discussions are generally confidential and if the case does not settle, anything said during those settlement conferences cannot be used against the other party.

If the case is not settled it will be scheduled for trial. It may be tried either before a judge or a jury. Juries are picked from the general population of that city, county, or jurisdiction where the court sits. Every state has different rules as to exactly how juries are chosen, but typically they are chosen from the voter registration rolls and property ownership rolls of that jurisdiction. In some jurisdictions, they may also be drawn from the Department of Motor Vehicle rolls identifying persons who have drivers’ licenses.
 

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Once the answer to the complaint has been filed, most civil claims allow for what is called discovery. Discovery is designed to allow each party to ask the other party what they know about the claim that has been asserted, who any relevant witnesses may be, and to identify any relevant documents. Discovery may come in several different forms.

It may come in the form of written interrogatories, consisting of written questions that either party may send to the other. These have to be answered in writing and under oath. The discovery may also consist of requests for documents and inspection, meaning that the party issuing the request wishes to see documents in the possession of the other party, or may wish to inspect certain things in the custody or control of the other party.

In addition, there may be requests for admissions, which are written statements the other party is required to either admit or deny. The purpose of requests for admissions is essentially to narrow the issues of contention in the case so that each party knows exactly what they are fighting over.

There may also be depositions allowed. A deposition is an oral examination that is conducted in the presence of a court reporter. The purpose of a deposition is to have an opportunity to orally examine the other party or witnesses so that there are no surprises at trial. The overall purpose of this discovery process is to make sure that each side has ample opportunity to discover the claims or defenses of the other party so that at the time of trial, each party is fully aware of what the other party intends to present.
 

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Once the lawsuit has been filed and the complaint has been properly served, the defendant has a designated period in which to respond. That period of time normally ranges anywhere from twenty to thirty days. The defendant may respond by filing a motion or by filing an answer. The different types of motions that may be filed by the defendant in response to the complaint would be motions raising issues of lack of jurisdiction, failure to properly state a claim, or certain other affirmative defenses.

A motion based upon a lack of jurisdiction is a statement that the court in which the suit was filed does not have jurisdiction—the authority—to hear the claim. Another type of motion that may be filed is a motion to dismiss for failure to state a claim, which means that the defendant is saying that even if everything stated in the complaint is true, it still does not constitute a basis for a lawsuit against the defendant.

Other types of affirmative defenses that may be raised through a motion would be such defenses as the statute of limitations, res judicata, release, accord and satisfaction, and several other such defenses. If a statute of limitations defense is raised, the defendant is claiming that your suit was filed too late and is therefore barred by the statute of limitations. If a motion is filed based upon res judicata, the defendant is claiming that this claim has already been adjudicated once and it cannot be litigated again. If the defendant raises the defense of release or accord and satisfaction, there has been some sort of settlement reached in regard to the claim and therefore the reassertion of the claim is barred.

If no motions are filed within the time allowed after service of a complaint, the defendant is to file an answer. That answer is supposed to respond to each of the numbered paragraphs of the complaint so that the plaintiff knows exactly what issues are going to be contested. In addition, the defendant may be called upon to raise any affirmative defenses in that answer. An affirmative defense may be any of the defenses mentioned above that could be raised in the form of a motion or other such defenses that would constitute an automatic bar to the claim asserted.
 

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Once a lawsuit has been properly filed, that complaint has to be served upon the defendant. It is served either by the local sheriff, a special process server, or any other person authorized by law. The form of service is typically personal service, meaning that the complaint and any other accompanying court process (documents) issued by the clerk of the court has to be served on the defendant in person. Some states authorize what is referred to as substituted service, meaning that in some instances, the complaint may be delivered to a member of that defendant’s household or may even be posted on the front door of the residence where the defendant is believed to live.

If the defendant cannot be found through one of those means, then there may be other forms of substituted service allowed by state law. These consist of service upon the Commissioner of the Department of Motor Vehicles in regards to an automobile accident, and in some instances, service upon the Secretary of State when the defendant is believed no longer to be living in that state. These other forms of service are governed by state law, and thus vary from state to state.

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Any person can walk into a courthouse and file a lawsuit. The party bringing that lawsuit is referred to as the plaintiff. The party being sued is referred to as the defendant. The initial document filed with the court to initiate a lawsuit may have different names, depending upon the jurisdiction where you are filing. Typically, the initial document filed with the court to initiate a civil claim is referred to as a complaint. In any complaint, you can ask for either legal relief or equitable relief. If the claim being pursued is a legal claim, then the damages being requested would consist of compensatory damages and perhaps punitive damages.

Compensatory damages are designed to make a person whole from the loss he or she has suffered.

Compensatory damages are damages that are designed to compensate the plaintiff for his or her injuries. To put that another way, compensatory damages are designed to make that person whole for the loss he or she has suffered as a result of the conduct of the defendant. Punitive damages, on the other hand, are designed to punish the defendant for egregious conduct. Punitive damages are rarely awarded, and normally when they are awarded they are carefully reviewed by the court to determine the appropriateness of the award.
 

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Within the civil justice system there may be several divisions or offices of the court dealing with different types of issues. There may be a landlord/tenant division, a small claims division, a domestic relations division, a probate division, and a tax division. Each of those divisions deals with the types of claims associated with their name. For instance, the landlord/tenant division will deal with landlord/tenant disputes, including evictions by landlords or complaints by tenants involving failure to comply with building code requirements.

The small claims division may deal with any type of claim within a jurisdictional monetary limit. The small claims division is a type of people’s court, wherein lawyers are typically not allowed and the strict rules of evidence may not apply. The domestic relations division deals with domestic matters, including divorce, custody, alimony, child support, and adoption. The probate division deals with estate matters and guardianship matters. Finally, within a civil court there may be a general civil division that would hear all claims other than the ones mentioned above.

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Within the civil justice system there are two types of claims that can be presented and resolved by the court—law claims and equity claims. A law claim is a claim for money damages. Money damages means that the party bringing the suit (the plaintiff) is requesting that a monetary judgment be awarded against the party who is being sued (the defendant). Another type of claim that can be litigated in the civil justice system is an equity claim. In some states an equity claim is referred to as an equitable claim or a chancery claim. Equity claims are claims wherein the party bringing the suit is not necessarily asking for judgment for a monetary amount, but is asking the court to direct the other party to either do something or not to do something.

Example: A law claim might arise from an automobile accident where one party is injured and claims the injury is due to the fault of the other driver. The lawsuit may be filed requesting the court to award a monetary amount against the other party that is accused of being at fault.

An equity claim might arise when one neighbor is seeking to enjoin (or prevent) another neighbor from building an extension of their home onto the first neighbor’s property. To prevent that type of encroachment, a lawsuit would be filed requesting an injunction. If the court granted that request, then an injunction would be issued preventing that activity.
 

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There are two types of cases—criminal and civil. A federal judge may one day conduct a complex civil trial and the next day preside over a routine federal criminal case. There is no distinct demarcation between civil court and criminal court within the federal court system. However, there may be a clear demarcation between the two in some states. There may be a specific court that is known as the criminal court, wherein only criminal cases are heard. The important thing to keep in mind is that the civil system is entirely separate and distinct from the criminal system. Indeed, the rules that apply to one in many instances have no application whatsoever to the other. This chapter explains civil justice in both the state court and the federal court systems.
 

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This concludes the section dealing with the sources of the law. To fully understand what the law is, you must know whether the law referred to is constitutional law, statutory law, case law, or administrative law. In some respects, there is a certain pecking order or hierarchy that might be applied to those different sources of the law. If a particular activity is either allowed or disallowed under the Constitution, then no statutory law, case law, or administrative law can overturn that. That is not to say, however, that all constitutional rights are necessarily absolutes.

Your constitutional rights can be restricted to some extent by state or local laws.

For instance, people have a constitutional right to peaceably assemble, but for purposes of maintaining public order, the government may require that you obtain a permit to conduct that peaceable assembly on public property. Simply because you want to peaceably assemble by calling a demonstration on Fifth Avenue in Manhattan does not mean that you have an absolute right to do that during the middle of rush hour. In that sense, your constitutional rights can be
restricted to some extent by state or local laws.

In looking at a legal issue or question, the general checklist of things that you would want to ask yourself are the following.

o Is there some constitutional provision that may be involved?

o Is there any statutory law that may be controlling?

o Is there any case law dealing with this issue, and if so, what court am I going to look at in terms of determining the source of that case law? (If the issue is one that involves provisions of the U.S. Constitution, then the U.S. Supreme Court is the ultimate decisionmaker in those questions. Look at case law from that court, as well as case law from any of the lower federal courts. If the issue is simply one involving state statutory law, look at case law from the
highest court of that state.)

o Are there any administrative rules or regulations that may be applicable?
 

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The legal profession itself is governed by rules and regulations published by their profession. Within every state there is an agency or entity that is responsible for publishing rules that govern the conduct of attorneys. Those rules of conduct are generally referred to as disciplinary rules. If an attorney violates a disciplinary rule, he or she may be disciplined by the state bar and subjected to certain sanctions. For example, if you were represented by an attorney and found that the attorney had done something that you considered to be highly improper, you may want to look at the disciplinary rules to see if there is something set forth there that might govern the particular behavior in question.

There are also rules of procedure designed to provide some uniformity to how lawsuits proceed. Rules of civil procedure:

* define what should be contained within a set of suit papers initiating a lawsuit (also called a complaint);
* define how a complaint is to be served;
* set forth what affirmative defenses may be raised by a defendant;
* set forth a variety of rules governing the discovery process; and,
* set forth the procedures by which a judgment of a court may be reviewed by the trial court.

Rules of criminal procedure govern how a defendant is to be dealt with in terms of the initial charging, his or her right to be informed of the charge, what rights he or she may have in terms of discovery, and how the eventual trial will proceed.
 

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These rules and regulations can be very important. Suppose you wanted to assert a claim against a motel owner because of carbon monoxide poisoning that occurred while you were in the motel. The type of claim that would be asserted would be a civil claim (law claim) for money damages based upon the negligence of that motel owner. There may, however, be regulations published by the state agency that controls the motel/hotel industry that set forth certain standards as to how motels are to maintain gas producing appliances, as to prevent carbon monoxide poisoning. The regulations published by that state agency could be extremely helpful in pursuing a civil claim against that motel owner.

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At the federal level, all regulations are published within the Federal Register. They are also contained within a document known as the Code of Federal Regulations (C.F.R.). The C.F.R. can be found in a law library and is generally organized in numerical fashion to correspond (to the extent possible) with the statutory code sections that they are designed to interpret and expand upon.
 

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The rule making process consists of the following four steps.

1. The agency publishes proposed rules.

2. Members of the public are given the opportunity to comment on those rules.

3. The rules may be revised based upon the public’s comments.

4. The final rules are enacted.

The document where these rules are published is known as the Federal Register. The Federal Register is a publication put out by the Government Printing Office that contains all of the proposed and adopted rules and regulations of the federal agencies.

As discussed earlier, there may be administrative agencies within the legislative and judicial branches of government. For instance, the General Accounting Office is an independent administrative agency created by Congress and charged with investigating all matters related to the receipt, disbursement, and use of public money. At the state level within the judicial branch of government, there may be an administrative agency, known as the state bar, charged with the responsibility of administering and supervising the legal profession. As an administrative agency within the judicial branch of government, a state bar is subject to the control of the highest court of that state.

The regulations that are adopted by administrative agencies have the effect of law. They are designed to expand on laws created by legislative bodies. The legislative bodies that enact the statutory law try to be as precise as possible in terms of writing the statutes. However, the statutes are often somewhat general because the legislative body simply does not have the expertise or, in some cases, the time to enact statutes that deal with all of the nitty-gritty issues that may arise within that subject area. The administrative agencies generally have the expertise and the time to publish regulations that are much more precise and that deal with the nitty-gritty issues that the agency confronts.

The regulations that are adopted by administrative agencies have the effect of law.

The regulations published by the administrative agencies are designed to be an explanation and an elaboration of the statutes that the agency is charged with enforcing. Theoretically, there should never be a situation in which there is a conflict between what the statute says and what the regulations set forth by the agency say. If there were such a direct conflict, then the statute would be controlling. The regulations are designed to flesh out the statutory scheme. You may think of the statutes as being the skeleton and the regulations as being the meat on the bones.

 

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Another facet of the law is what is referred to as administrative law. At both the state and federal level, there are administrative agencies. Most of those agencies are part of the executive branch of government. As discussed in the material dealing with constitutional law, our government is divided into three branches—the executive branch, the judicial branch, and the legislative branch.

The executive branch is headed by the president at the federal level and by the governor at the state level. The judicial branch at the federal level is headed by the chief justice of the U.S. Supreme Court. At the state level, the Judicial branch is headed by the chief justice of the highest court of that state, which in most instances is referred to as the Supreme Court (although in some states, it may be referred to as the Court of Appeals).

Within the legislative branch, there typically is no one person who is the head of that branch. At the federal level, the legislature is bi-cameral, meaning that it consists of two bodies. Those two bodies are the House of Representatives and the Senate. The Speaker of the House is the leader of that legislative body. The President Pro Tempore is the leader of the Senate. At the state level, there may be the same general type of organization within the legislative branch.

You may be asking yourself, What do the above comments have to do with administrative rules or regulations? Although most administrative rules and regulations are set forth by administrative agencies within the executive branch, there may be administrative agencies within the judicial branch or the legislative branch that could set forth rules and regulations of their own.

The administrative agencies that most of us are probably familiar with are federal agencies like the Food and Drug Administration, the Department of Justice, the Department of Commerce, the Department of Agriculture, and the Federal Communications Commission. Some of these federal agencies are cabinet-level agencies, meaning that the heads of those agencies are members of the President’s cabinet.

Others may be considered to be independent agencies. For instance, the Federal Election Commission is an independent agency that has the specific responsibility of overseeing compliance with the federal election laws by presidential candidates and other candidates at the national level. Another independent agency is the Nuclear Regulatory Commission, which is charged with the responsibility of overseeing the use of nuclear power in the nonmilitary arena.

These agencies generally have the authority to issue regulations. These regulations in some instances may be referred to as rules. Although there is a technical distinction between a rule and a regulation, for purposes of this discussion they are treated as being one and the same. These administrative agencies are created by acts of Congress and are given a specific purpose as set forth in the U.S. Code. The agencies are also given the authority to write and publish rules and regulations that will govern its conduct.
 

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The importance of case law from various courts, to some extent, has to be evaluated based upon the status of the court that rendered the decision. This refers to the precedent value the case holds over other courts.

For instance, a decision rendered by a trial judge in the Hanover County Superior Court in North Carolina may be of great interest nationwide, but it is not binding on anyone other than the parties in that particular case. If that case, however, is appealed to the North Carolina Court of Appeals and a written decision is rendered, then that case law becomes binding to every person in North Carolina as the law of the state. If that case is then appealed to the North Carolina Supreme Court, then the decision rendered by the North Carolina Supreme Court becomes the law of North Carolina and is binding upon all litigants in the North Carolina State Court System.

If that case involved a constitutional or federal issue, it may be further appealed to the U.S. Supreme Court. A decision by the Supreme Court is binding upon the entire nation.

In the federal system, a decision rendered by a United States District Court judge is typically only binding upon the litigants in that case. However, if that case is appealed from the United States District Court to the United States Court of Appeals for that circuit, then the decision rendered by that United States Court of Appeals becomes binding upon all of the persons within that federal circuit. For instance, the Fourth Circuit Court of Appeals includes the states of Maryland, North Carolina, South Carolina, Virginia, and West Virginia. Any decision rendered by the United States Court of Appeals for the Fourth Circuit is binding upon all persons within that five state area.

It is quite possible that the United States Circuit Court for the Eleventh Circuit could decide a case with similar issues and come up with an opposite conclusion. Typically, when a conflict exists between circuits, the issue will be presented to the U.S. Supreme Court to decide how to resolve the conflict between the circuits.
 

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Written decisions rendered within the state court system are found in regional reporters. The publishing house that is responsible for publishing state court decisions has essentially divided the United States into regions. For instance, Illinois is contained within the North Eastern Region. As such, a decision by the Illinois Supreme Court that is reported in written form could be found both in the state reporter, known as the Illinois Official Supreme Reporter, and also in the regional reporter, known as the North Eastern Reporter. The decision of Jones v. Smith from the Supreme Court of Illinois discussed earlier would be reported under the same name with the following citation: 208 Ill. 2d 450, 804 N.E.2d 480 (2004). The decision then would be found in volume 208 of the Illinois Official Supreme Reporter at page 450 and would also be found in the regional reporter known as the North Eastern Reporter at volume 804, page 480. Again, the year refers to the year when the decision was rendered.

Written decisions from trial courts at the state court level frequently are not published by any publishing house. To the extent they are available at all, they may only be available within that local court house. Some states have adopted trial court reporting systems wherein certain written decisions that are presented to them may be published. In the state of Virginia there is a publication known as Circuit Court Opinions, which consists of written decisions made by circuit court judges in the state of Virginia. Those decisions, however, are only published if either the judge or one of the attorneys forwards that written decision to the publishing firm.

Courts either at the state or federal level are charged principally with resolving disputes that are presented to them and in that context, render interpretations of state or federal statutes or state or federal constitutional provisions. Any decision rendered by a trial court judge is subject to being reviewed and potentially overturned by the appellate court that has appellate jurisdiction over that trial court. For instance, in the federal system, any decision rendered by a United States District Court is subject to appeal to the United States Court of Appeals for that circuit. The United States District Court judge may have rendered a written decision.

That decision then can be reviewed by the judges in the United States Circuit Court for that circuit, and those judges on the circuit court can either agree or disagree with the decision from the United States District Court. The decision rendered by the United States Court of Appeals likewise may be appealed to the United States Supreme Court. If the U.S. Supreme Court exercises its discretion and decides to hear the case, then the U.S. Supreme Court can either uphold or reverse that decision.

At the state court level the same procedure applies. Any decision rendered by a trial court can be appealed to the appellate court that has jurisdiction. The appellate court can then either uphold or reverse the trial court decision. The high court within that state generally has the last word on those cases that are initially tried within that state. However, if the case involves an issue of federal or constitutional law, then the U.S. Supreme Court can decide to hear a case from the state court system.
 

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Case law for the most part comes from appellate courts. The appellate courts may be intermediate courts or they may be the high court of that state or court system. For instance, there is an abundance of case law rendered by the U.S. Circuit Court of Appeals. Likewise, there is a wealth of decisions rendered by the United States Supreme Court.

The decisions of the appellate courts are contained within various bound volumes published by different law publishing companies. A written decision rendered by a United States District Court judge may be published in legal books known as the Federal Supplement (abbreviated F. Supp.).

Example: A decision rendered by a United States District Court judge is generally referred to by the name of the parties, e.g., Jones v. Smith, 317 F. Supp. 2d 820 (N.D.IL. 2004). That case would then be found in volume 317 of the Federal Supplement Second beginning on page 820. The parenthetical means that it is a decision from a United States District judge in the Northern District of Illinois, that was rendered in 2004.

NOTE: The volumes are put into series and when they reach a certain number, generally 999, the numbering begins again at one. That is why you will find a 2d or 3d in the citation.

Decisions rendered by a United States Circuit Court of Appeals are found in law books known as the Federal Reporter. For instance, a decision rendered by the United States Circuit Court of Appeals for the Ninth Circuit could be reported at 356 F.3d 121 (9th Circ. 2004). That citation means that the decision was rendered by the United States Court of Appeals for the Ninth Circuit in 2004 and can be found in Volume 356 of the Federal Reporter Third Series at page 121.

Decisions from the United States Supreme Court may be reported in three different reporting systems, all of which are published by different publishing houses. For instance, a decision from the United States Supreme Court would frequently be referred to as Jones v. Smith 535 U.S. 85, 125 S. Ct. 25, 159 L. Ed. 2d 125 (2004). That decision would be found in any one of those three volumes with the first volume being referred to as the United States Reporter, Case Law 23 Volume 535, page 85. That same decision can also be found in the Supreme Court Reporter, in Volume 125, page 25 and would also be found in the Lawyer’s Edition Second Series in volume 159, page 125. The year refers to the year when the decision was rendered.
 

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The case law referred to earlier in this chapter consists of the written decisions of the various courts. Typically, trial courts do not generate case law. Even though a trial court judge may issue a written opinion (also called a decision) in a given case, that decision has very limited application. Decisions rendered by trial judges are only binding in regard to that specific case. They do not necessarily have any controlling effect upon any other trial judge within that trial court and do not have any controlling effect on any trial judge in any other trial court. Trial courts are the lowest tribunal and as such any written decisions rendered by trial court judges are of limited application.

Many cases decided by trial courts are decided by juries. Juries do not render written decisions explaining their analysis of the case, but rather simply render a verdict. That verdict in a civil case would be either in favor of the plaintiff or in favor of the defendant. If the verdict is in favor of the plaintiff and there is an amount of money being sought by the plaintiff, then the jury would fix the amount of the monetary award (i.e., value the damages). If there is no jury deciding the case, then the judge may enter a verdict or a judgment order fixing the amount of damages or granting one party the form of relief that is sought.
 

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The state court systems vary dramatically from state to state. Some states have a single trial court. In these states, the trial court is generally referred to as a court of general jurisdiction, wherein all civil and criminal cases are initiated.

Other states have what is referred to as a two-tier trial court system. In the state of Virginia, the lowest trial court is the General District Court. That court hears all criminal misdemeanor cases and can also hear all civil cases wherein the amount claimed is less than $15,000. (A misdemeanor is a crime wherein the potential penalty is no more than one year in jail.) There are no juries in the General District Court. Any case that is heard in the General District Court may then be appealed to the Circuit Court, where the party bringing the appeal is entitled to a new trial (referred to as a trial de novo). In the Circuit Court either party can request a jury trial. The Circuit Court is a court of general jurisdiction, meaning that virtually any type of case can be brought within the circuit court.

Many states also have what is referred to as an intermediate court of appeals. That intermediate court of appeals is essentially the equivalent of the United States Circuit Court of Appeals, except that the state intermediate court of appeals only hears appeals from the state trial courts. These intermediate courts of appeals generally will hear any case that is appealed to them. However, in some states the intermediate courts of appeals are courts of limited jurisdiction and may have authority to only hear certain types of cases.

The highest court in most states is referred to as the Supreme Court, but some states may refer to their highest court by a different name. That high court may be a court of discretionary appeal, meaning that they exercise discretion as to which cases they will hear, much like the U.S. Supreme Court. These courts of appeal, whether they be intermediate or supreme, do not actually try cases, but simply review briefs and records submitted to them by the attorneys, then hear oral arguments and make a decision.
 

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It is important to make a clear distinction in your mind between criminal cases and civil cases. A criminal case is, in essence, a lawsuit brought by the government acting through a prosecutor against an individual who is accused of violating a criminal statute. For instance, if you deface a federal building, you may be charged with a federal crime in a federal courthouse. Or if you punch your next door neighbor in the nose on private property, you most likely would be charged with a violation of a state criminal statute. It would be tried in state court before a state court judge, and you would have the right to have a jury present, with that jury being drawn from the cities, counties, or towns where that court had jurisdiction.

A civil case, on the other hand, does not involve any criminal penalty. A civil case involves a claim for monetary relief or a claim for equitable relief. For instance, if you are injured in an automobile accident, you may have a right to sue that other party for monetary damages seeking compensation for your medical expenses, loss of income, and pain and suffering. In a claim seeking equitable relief, you are asking the court to order the other party to either do or not do something. For example, you may sue your next door neighbors to enjoin, or prevent, them from extending their home onto your private property. In that case, you are not asking for money damages but for an order to enjoin your neighbors from constructing their home on your private property. There are a wide variety of civil cases that may be instituted.

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Case law is the law as stated in specific cases decided by courts. Case law is in written form, and generally contains a brief synopsis of the facts of the case, an analysis of the legal principles that apply, and a statement of the court’s decision (what is generally known as the holding of the case). The holding is the crux of the decision rendered by that court. Insofar as that court has jurisdiction or authority to interpret the law, the holding then becomes law. Any language in the case decision other than the holding is surplus language, or what may be referred to as obiter dictum (or simply dicta). The dicta within a court decision is not binding law, but rather is simply utilized by that court to explain its rationale.

To fully understand the scope of case law and what effect it has upon our daily lives, it is necessary to understand the structure of the court system. In the United States there are two entirely separate and distinct court systems—the federal court system and the state court system. Each state has its own court system that is entirely separate and entirely distinct from the federal system, and from the court systems of the other forty-nine states in the Union.
 

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The impact of local codes is most often seen in regard to housing, traffic, and zoning issues. For instance, if you want to build a home of a particular type on a specific piece of property, the construction may have to meet certain zoning requirements in terms of height, size, and proximity to the boundary line. In areas where zoning regulations apply, you probably would not be able to build a ten-story home in a residential community with a building height limit of twenty-five feet. Likewise, traffic laws frequently are set forth in local codes, although those local traffic regulations have to be consistent with any state laws passed on those same issues. Again, the issue of preemption applies. For instance, an absurd situation would exist if every locality were allowed to decide whether a green light meant go or stop.
 

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The federal statutory laws are found in the United States Code. The copy of the Code that most lawyers are familiar with is the United States Code Annotated. The term annotated means there are notations following the code section from court cases that have interpreted or applied that particular statutory code section. The annotations are frequently helpful in interpreting what the true meaning is of that statutory code section.

Most state codes are annotated and contain court decisions from both state and federal courts interpreting the various code sections. Local codes tend not to be annotated simply because the local governments that publish the local codes do not have the financial resources to annotate their local codes. Also, there tends not to be a great volume of case law interpreting local codes.

There is a shorthand abbreviation that is used for references to the United States Code. For instance, 28 USC §1392 is a reference to Title 28 of the United States Code Section 1392. The United States Code contains many volumes, like a set of encyclopedias. All of the titles are numbered sequentially on the binding of each volume. 28 USC §1392 would be found in one of the volumes marked Title 28. Within those volumes, §1392 would be found sequentially.

The state codes may have their own distinct numbering system. For instance, in regard to the Virginia Code, references to a code section would be to a specific numbered section such as Virginia Code Section 8.01-234. That is a reference to Title 8.01. Within that title, you would look for the code section designated as 234. Local codes may be designated in a similar fashion.

The volume of legislation that has been passed by the United States Congress is, in many respects, mind-boggling. There is federal legislation on virtually every issue. It is important to keep in mind, however, that the federal government, even though it seems to be involved in every aspect of our lives, is still a government of limited jurisdiction. You may recall from the section dealing with constitutional law that our founding fathers established the federal government as a government of limited authority with the understanding that whatever authority was not bestowed upon the federal government remained with the state governments. You would never guess that by looking at the volume of federal legislation.

Whatever authority was not bestowed upon the federal government remains with the state governments.

The most significant limitation upon the authority of the federal government is to enact legislation in the criminal sphere. For instance, the federal government has no authority to pass a statute that prohibits homicide in your private home on private property. The federal government does have the authority, however, to pass a law prohibiting homicide on federal land, in a federal building, or against a federal officer. As such, most criminal prosecutions are initiated in the state courts under state law, because the authority of the federal government to enact criminal law truly is limited.

Example: The dichotomy between federal and state law was found in the Rodney King case in Los Angeles, in which police officers were accused of beating a criminal suspect. Those police officers were first tried under state criminal laws and were acquitted (i.e., found not guilty).

The federal government then stepped in and decided that those same police officers would be prosecuted under federal civil rights laws. The federal government had no authority to prosecute them for the crime of assault, since the crime in question did not occur on federal territory, did not involve a federal official, and did not involve a distinct federal interest as far as the assault only was concerned.

The federal government, however, has passed laws that make it a crime for certain persons acting in official governmental capacity to violate the civil rights of people. Those police officers were then prosecuted in the federal court under that federal law. It is in the criminal field that you see the authority of the federal government most clearly restricted in terms of its ability to enact legislation prohibiting certain types of crimes.

At first blush, it would seem that this is a violation of the double jeopardy clause contained within the Fifth Amendment of the United States Constitution. It has been held, however, by the courts that it is not a double jeopardy violation since there are two separate sovereigns involved—the federal government and the state government. In addition, there were two separate offenses involved—one was the offense of assault under the state code and the other was a civil rights violation under the federal code.

It is in the criminal field that you see the authority of the federal government most clearly restricted.

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A general principle that applies to this statutory scheme is a principle known as preemption. When there is a conflict on a specific issue between federal statutory law and state statutory law, federal law will generally preempt, or supersede, the state law. That same principle applies in regard to a conflict between state law and local law. Local government cannot enact legislation that is contrary to the state statutory law. The logic behind this concept is that there has to be one entity that is supreme. For instance, it would be an absurd situation if the federal government passed an income tax law and then certain states decided that their citizens would not have to comply with that law. The American Civil War was fought in part over the issue of states’ rights—whether the federal government was going to be supreme or whether the states were going to be supreme on the issue of slavery.
 

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Statutory law falls into three categories—federal statutory law, state statutory law, and local statutory law. The federal statutory law is found in the United States Code. The state statutory law is found in the state code enacted by the legislative body that governs that state. Local statutory law is found in local codes and ordinances. Those local codes may be county codes, city codes, or town codes that are enacted by the local governing body.
 

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Aside from the U.S. Constitution, each state within the Union has a state constitution. Those state constitutions may vary dramatically from one state to another. The key point to remember in regard to the state constitution is that it may bestow additional rights upon the citizens of that state, but it cannot restrict the rights guaranteed under the U.S. Constitution.
 

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All of the amendments are important. A brief description of the other amendments to the U.S. Constitution follows.

* The Eleventh Amendment states that federal courts do not have the authority to hear lawsuits brought by a citizen or non-citizen of one state against another state in the Union. (This is not to be confused with diversity jurisdiction.)

* The Twelfth Amendment deals with the functioning of the electoral college.

* The Thirteenth Amendment abolishes slavery.

* The Fifteenth Amendment extends the right to vote to all citizens.

* The Sixteenth Amendment allows for income tax to be imposed.

* The Seventeenth Amendment deals with the number of senators for each state and how vacancies in a senate seat are filled.

* The Eighteenth Amendment enacts prohibition.

* The Nineteenth Amendment grants women the right to vote.

* The Twentieth Amendment deals with presidential succession and the convening of Congress.

* The Twenty-first Amendment repeals prohibition.

* The Twenty-second Amendment imposes limits on how long a person can serve as President.

* The Twenty-third Amendment allows the District of Columbia electors to vote for President and Vice President.

* The Twenty-fourth Amendment establishes the right of citizens to vote without being restricted by paying a poll tax. This is an Amendment principally designed to prohibit states from precluding certain citizens from voting by imposing financial restraints on them.

* The Twenty-fifth Amendment deals with presidential succession.

* The Twenty-sixth Amendment gives 18-year-olds the right to vote.

* The Twenty-seventh Amendment prohibits congressional pay raises from taking effect until the next election of representatives.
 

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There are numerous other amendments passed over the years that are significant. Perhaps the most important of those is the Fourteenth Amendment—one of the post-Civil War amendments ratified in 1868. This Amendment contains several clauses, the most important of which is the so-called Due Process Clause, which expressly indicates that no state shall deprive any person of life, liberty, or property without due process of law.

You may recall that within the Fifth Amendment there is a due process clause. That due process clause, as is true of the first ten amendments, was deemed to be a restriction of federal power and not state power. This meant that the federal government could not deprive any person of life, liberty, or property without due process of law. That restriction, however, did not apply to the states until the enactment of the Fourteenth Amendment. Through the eventual interpretation of the Due Process Clause contained within the Fourteenth Amendment, most of the rights contained within the Bill of Rights were deemed to be no longer simply a restriction on federal power but also on state power. This means that those rights contained within the Bill of Rights apply to citizens not only when dealing with the federal government, but now also when dealing with state and local governments.

The Fourteenth Amendment also contains what is known as the Equal Protection Clause. It states that governmental authority may not be used to deny any person equal protection of the laws. Over time, that equal protection clause was interpreted to preclude governmental authority from denying black citizens the same protection of the laws as were accorded to white citizens.

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The first ten amendments to the Constitution are referred to as the Bill of Rights. They contain many of the most fundamental rights enjoyed by the American people.

The First Amendment states that Congress has no authority to make any law “respecting an establishment of religion or prohibiting the free exercise of religion.” It further states that Congress can do nothing to restrict freedom of speech or freedom of press, or the right of the people to peaceably assemble and to petition the government.

The Second Amendment deals with the right to bear arms, but is written in the context of bearing arms as part of a regulated militia.

The Third Amendment states that the government cannot, in time of peace, quarter soldiers in a private home without the consent of the owner. In time of war, the government may only do so in a manner prescribed by law.

The Fourth Amendment deals with unreasonable searches. It expressly states that people shall be secure in their persons, houses, and papers from unreasonable searches and seizures by governmental authorities. It further states that search warrants may be issued only upon a finding of probable cause. That means there must be a determination made, based upon substantial, believable evidence, that the person to be searched has committed a crime or the place to be searched contains evidence of a crime.

The Fifth Amendment defines the concept known as double jeopardy, which means that a person cannot be tried twice for the same crime. That same Amendment further sets forth the right against selfincrimination—that a person cannot be made to testify against him- or herself. This Amendment also contains the foundation of the Due Process Clause, which states that a person cannot be deprived of life, liberty, or property without due process of law.

Due process is a critical concept to our entire legal system. It requires two things:

1. a person must be given notice of the charges or claims made against him or her and

2. a person must be given an opportunity to answer those charges or claims before he or she can be deprived of life, liberty, or property.

The Sixth Amendment provides for the right to a speedy trial and the right to a jury trial in a criminal proceeding. This Amendment further sets forth the right to confrontation in a criminal case, meaning that a person accused of a crime has the right:

* to confront the witness who is making the claim against him or her;
* to compel witnesses in his or her favor to appear in court and give testimony; and,
* to be represented by a competent lawyer in the defense of that criminal charge.

The Seventh Amendment preserves the right to have a jury trial in certain civil cases.

The Eighth Amendment prohibits excessive bail and further disallows punishment that is deemed to be cruel and unusual. This Amendment has been used to argue against capital punishment and other forms of punishment over the years.

The Ninth Amendment states that just because certain rights are set forth in the Constitution does not mean they are the only rights people have. That is to say, whatever other rights the people have, they still retain.

The Tenth Amendment limits the power of the federal government by stating that powers not delegated to the United States Government by the Constitution and not prohibited by the Constitution to the states are expressly reserved to the states or to the people. The initial framers of the Constitution viewed the U.S. Government as a government of limited authority. Whatever authority was not placed in the United States Government rested with the states.
 

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Article One of the U.S. Constitution sets forth the powers of the U.S. Congress. It specifies that there shall be a House of Representatives and a Senate, and defines how those members shall be elected and compensated. It also sets forth general powers and limitations of those legislative bodies.

Article Two of the U.S. Constitution states that the executive power of the government shall be vested in the President. It then defines the extent of that executive power, how the president shall be elected, and what his or her qualifications for office shall be.

Article Three of the U.S. Constitution states that the judicial power of the United States shall be vested in the Supreme Court, as well as inferior courts Congress may establish. The model created in the first three articles of the Constitution is a system of checks and balances. Each branch of government is considered to be equal, and each one in different respects has the ability to check and to balance the others. For instance, the legislative branch has the authority to enact legislation. That legislation is then sent to the president who, as the head of the executive branch, can veto the legislation. The legislative branch may then override that veto. If the law is passed (actually becomes law), then it can be reviewed by the judicial branch for purposes of determining whether it is constitutional and for purposes of interpreting the law. If the legislative branch, for whatever reason, does not like the interpretation imposed on the law by the judicial branch, then it can amend the law so as to expressly state how the law should be interpreted.

Article Four of the U.S. Constitution defines the concept known as Full Faith and Credit, which means that the public acts, records, and judicial proceedings of any one state shall be given full faith and credit in every other state in the union. This Article further defines the term known as privileges and immunities, which means that the citizens of each state shall be entitled to all the same privileges and immunities as the citizens of any other state. The privileges and immunities clause precludes one state from granting certain privileges or immunities to its citizens that would not apply to citizens of other states. For instance, Minnesota could not grant Jesse “The Body” Ventura the sole right to conduct wrestling matches in that state to the exclusion of all persons who were not citizens of Minnesota. To allow that would be a violation of the privileges and immunities clause.

Article Five of the U.S. Constitution provides for amendments to the Constitution.

Article Six of the U.S. Constitution states that this Constitution and the laws of the United States made pursuant to the Constitution shall be the supreme law of the land. That means that if there is any conflict between federal law and state law regarding an issue that the federal government has the right to legislate, then federal law will always be supreme.

Article Seven of the U.S. Constitution provides that nine states are needed to ratify the Constitution before it becomes effective.
 

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The U.S. Constitution is a compact, or an agreement of the people of this land. It sets forth certain basic rights of the people that cannot be taken away and defines the powers of the governmental authority. The U.S. Constitution truly is the foundation of our entire legal system. Some people would say that the rights we enjoy in this country are natural rights, and that the Constitution is simply a clarification of those rights and a limitation on the power of the government to infringe on those rights. Others say that the Constitution itself is the actual source of the rights. But that theoretical argument is probably of little significance to the reader. What is important to remember about the Constitution is that it does set forth the essential composition of our government and how it can interact with us as citizens.

Try a quick test of your knowledge of constitutional law at this point. Suppose your next door neighbor breaks into your home looking for something that he thinks you may have stolen from him. The neighbor conducts a thorough and obviously unreasonable search of your premises without a warrant. Is that a constitutional violation?

Constitutional violations can only be committed by the government or its representatives.

Hopefully you said “no” to answer that question. The Constitution is a compact between the people and the government. Constitutional violations can only be committed by the government or its representatives. As such, one citizen violating the rights of another citizen is not a constitutional violation at the federal or state level. Your neighbor has violated state law, and he can be charged with that state law violation and also could be sued civilly for trespassing and for damaging your property.

The most important point to keep in mind regarding the U.S. Constitution is that it is the basic framework or foundation upon which our legislative, judicial, and executive branches are built. It defines certain basic rights that the people have and that no governmental authority can take away. The framers of the U.S. Constitution wished to define the authority of government and then place in the people all rights that were not specifically bestowed upon the government.
 

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The Constitution that most of us are familiar with is the U.S. Constitution. In addition to the U.S. Constitution, all fifty states have their own state constitutions. To some extent, these are modeled after the U.S. Constitution—but may vary from it. The state constitutions may give the people of that state greater rights than the U.S. Constitution bestows upon them, but it cannot restrict the rights guaranteed by the U.S. Constitution. The U.S. Constitution in that respect is supreme, but more importantly, the U.S. Constitution sets minimum standards that must be complied with by all governmental officers in dealing with the people.

The U.S. Constitution is divided into seven articles and twenty-seven amendments. The Constitution begins with the words—

We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

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Most insurance is sold through insurance agents. Insurance agents are frequently referred to as dual agents. That is, they are both an agent of the company that underwrites the insurance policy and also the person who applies for the insurance policy. To say that they are a dual agent means that they have certain duties to each party—certain duties to the underwriter and also certain
duties to the insured.
 

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If you are a medical doctor, you most likely have a malpractice insurance policy covering you. That malpractice policy is a form of liability coverage that would apply in an instance where a patient sues you for malpractice. In that event, the malpractice insurance company would step in, conduct an investigation, and determine if the claim should be adjusted or negotiated. Some medical malpractice policies require the consent of the doctor before any settlement offers can be made. In the event the insurance company does not settle your patient’s claim, the patient may file suit against you. The insurance company would appoint an attorney to represent you and then would indemnify you as to any judgment up to the amount of your policy limits.

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Another type of insurance coverage is homeowners insurance coverage. A homeowners policy typically includes a fire endorsement, which would cover you in the event that your house, including contents, burns down. It is important that you make sure that the stated value is consistent with the replacement cost or the fair market value of the house when reviewing this type of coverage. For instance, if you are in a geographical area where property values are increasing dramatically, then it is important that you likewise increase the covered amount under this provision of your homeowners policy to make sure that there is enough money paid to you in the event that your house does burn down. Likewise, within this type of policy there may be coverage for water damage, theft, and also for liability claims.

Liability may arise in a homeowner’s context when a guest is on your premises and is injured as a result of some defect on the premises. For instance, suppose there is a large hole in your backyard that is covered by overgrown grass and your guest falls into that hole and breaks an ankle. If you knew of the hole and did not disclose it, then the guest may have a basis for a liability claim against you alleging that there is negligence on your part. If a judge or jury were to agree with that, then the liability insurance policy would have to indemnify you up to your policy limits. Under this type of liability policy, the liability insurance carrier would also provide an attorney to defend you.

Under a homeowners policy, if there are specific valuable items of personal property that you wish to have covered, they normally have to be covered under a scheduled loss section of the policy where the specific items are identified. There may even be a requirement that an appraisal or pictures of the objects be provided as part of the insurance policy.

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Another type of insurance coverage is health insurance. Health insurance contracts are frequently group insurance contracts wherein you, as a member of a group, pay a premium to the insurance company in return for the insurance company agreeing to cover medical and hospital expenses up to certain limits. The general limitation of the scope of coverage under these policies is that the treatment that you receive must be reasonable and necessary and the cost of the treatment must be consistent with the usual and customary charges for other practitioners in the area.

For instance, if you decide to have plastic surgery that is purely elective, this type of treatment may not be covered unless you have a special endorsement or provision within your policy that provides coverage since the treatment is not necessary. Likewise, if you choose to go to the most expensive orthopaedic surgeon in the area because you think he or she is the best, all of the charges rendered by that surgeon may not be covered under your policy. The policy is governed by what is usual and customary for those types of services and not necessarily by what the best practitioner in that area may charge.
 

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Another form of insurance is life insurance coverage. A life insurance policy is simply a contract between you—the insured—and the insurance company wherein the insurance company agrees to pay a certain amount of benefits upon your death. Assuming that there have been no misrepresentations made by you in applying for this type of insurance coverage, then your survivors would simply make a claim to that insurance company upon your passing and the designated beneficiary will then receive the benefits due.

There are different types of life insurance coverage. The most common form of life insurance coverage these days is term life insurance. Term life insurance policies have no value other than the face amount of the policy and even then have no value unless the person who is insured passes away during the coverage period.

Another type of life insurance coverage is that of whole life coverage. This is actually a type of investment in which the value of the policy may increase over a period of time as you pay premiums. You may also be allowed to take loans against the policy and perhaps even redeem the policy for a fixed amount of money. The theory behind whole life is that you not only are insuring your life, but you are also making an investment that is increasing in value over a period of time that you may utilize by taking a loan against it or cashing it in.

In most life insurance policies, the application for insurance is included as part of the policy. The reason for that is that payments under life insurance policies are generally rather substantial. If there are any misrepresentations made in the application that may be a basis for voiding the insurance policy. Frequently those misrepresentations are not discovered until after the person has passed away and an autopsy has been performed.
 

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The type of insurance coverage that you are probably most familiar with is automobile insurance coverage. An automobile policy may include several different forms of coverage. Within one policy there may be liability coverage, there may be medical expense coverage, there may be collision coverage, and there may be uninsured motorist and underinsured motorist coverage. Each of those types of coverage is dramatically different and each of them has a different objective.

Liability coverage is designed to protect you, the insured, in the event you are involved in a collision in which some other person is injured as a result of your alleged negligence. If a person is injured and they contend that you are negligent, then they may assert a liability claim against you for their medical expenses, lost wages, pain and suffering, resulting disabilities, disfigurement, etc.

Your liability insurance policy would cover you in that instance by providing you with an attorney to defend you in that claim and by indemnifying (reimbursing) you for any judgment rendered against you in that case up to your policy limits. If your policy limits are fifty thousand dollars, but the judgment entered against you is for five hundred thousand dollars, then your insurance company is only obliged to pay fifty thousand dollars. The remaining four hundred and fifty thousand dollars may come out of your pocket.

Also within an automobile insurance policy there may be comprehensive coverage.  Comprehensive coverage is a type of first party coverage wherein you may make a claim against your own policy as a result of damage to your vehicle. If your vehicle was damaged in a collision and you do not wish to or cannot assert a claim against the other party (or if you were at fault), then you may make a claim against your own policy under your collision coverage. Your insurance company will then pay you for the repair cost of your vehicle. In the event your vehicle is totaled, it will pay you the fair market value for that vehicle. If someone other than you was at fault, your insurance company may then have a right of recovery against that other driver.

Most forms of collision coverage do carry a deductible. This means that you would only be compensated by your insurance carrier for the amount of money that exceeded your deductible amount.

Auto insurance coverage also offers what is referred to as medical expense coverage or personal injury protection coverage. This is a type of first party coverage wherein you may make a claim against your own insurance company for medical expenses incurred as a result of a collision. If you are injured in an automobile collision while in your car, you can make a claim against your policy for payment of your medical expenses to the extent that they were reasonable and necessary as a result of this collision. If you are a passenger in someone else’s vehicle, then, assuming there is medical payments coverage for the vehicle you are riding in, you can also make a claim for medical payments under that policy. You may be able to make a claim for medical payments under both your policy and the policy of the vehicle you are riding in.

Another form of coverage under a typical automobile insurance policy is uninsured motorist and underinsured motorist coverage. This is a very important form of coverage because it protects you in the event that you are involved in a collision that is the fault of an uninsured or underinsured motorist.

Example: Suppose you are hit from the rear by a vehicle that is uninsured and you are injured. You could sue the driver of that striking vehicle, but he or she may have no assets to pay any judgment that you may obtain against him or her. In that instance, your own uninsured motorist coverage would apply. In such an event your insurance company could essentially step in and defend that uninsured motorist, or at least take a position that is contrary to you, by challenging your claims for uninsured motorist benefits.

The same basic principle would apply if that striking vehicle was underinsured.

Example: Suppose the vehicle that struck you from behind has twenty-five thousand dollars in coverage but your medical expenses as a result of the collision are fifty thousand dollars. The
striking motorist would then be underinsured. If you got a judgment for your medical expenses, he or she may not be able to pay it. His or her insurance policy would pay the first twenty-five thousand dollars, but anything beyond that would be covered by your policy to the extent that you had underinsured motorist coverage.

Uninsured motorist coverage is a very broad form of coverage.
Even if you are a bicyclist or a pedestrian struck by an uninsured
motorist (or by a hit-and-run motorist), you may make a claim
for and recover under your own uninsured
motorist coverage.

If you are struck by a hit-and-run motorist, you may make a claim under your own uninsured motorist coverage.

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An insurance policy is a contract. The parties to the contract are the insurance company and the insured. In addition, there may be a beneficiary or what may be referred to as a third party beneficiary of an insurance contract. In a life insurance policy, the beneficiary is the person who receives the death benefits upon the death of a person who was insured. In an automobile insurance policy, the third party beneficiary under a liability policy is the individual who was injured and who receives compensation from that liability insurance policy. The beneficiary or third party beneficiary is not a named party to the insurance contract, but is generally the person who is intended to benefit from the insurance policy. As such that beneficiary may have certain rights under the policy.

There are a variety of different types of insurance policies that can be written. The most common types of policies are liability, life insurance, and health insurance policies.
 

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Workers’ compensation claims can be complicated when an individual has suffered an injury while employed with one company and then goes to work for another company and later reinjures him- or herself. Which employer is going to be responsible for that compensation?

Some states have set up what is referred to as a second injury fund. In these states, that second injury will be partially paid out of that second injury fund and then also partially paid by the second company. That second injury fund is a fund of money that is created by contributions from all of the different insurance companies that underwrite workers’ compensation insurance coverage in that jurisdiction.

A similar type of fund that may exist is the uninsured employer’s fund. An employer who has not taken out workers’ compensation coverage and who therefore cannot pay the benefits called for under the workers’ compensation act may still be covered in the sense that the employee may make a claim against the uninsured employer’s fund. To the extent that any payments are made out of that fund, the fund administrator or the attorney general of that state will typically make a claim against the uninsured employer in order to recover such payments.
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If an employee is injured on the job as a result of the fault of some third person, then that employee may have a basis for a claim (sometimes referred to as a third party claim) against that other individual or company. For instance, suppose you are working on a construction job and you are employed by the general contractor. If, while performing those duties, an employee of a plumbing sub-contractor drops a pipe that strikes you on the head, you may be entitled to the benefits called for under the act. In addition to being compensated under the workers’ compensation act, you may also have a basis for a claim against the plumbing sub-contractor whose employee dropped the pipe on you. In some states, on a construction job such as this, all contractors may be immune from suit by any other employee on that construction job. In other states, the employee may sue any other responsible contractor on the job.

If the injured employee in that circumstance does recover money from the third party who caused the injury, then the employer of that injured worker (or more likely the employer’s insurance carrier) is entitled to recover all or part of the monies paid to the worker under the workers’ compensation act. This is a principle known as subrogation. Subrogation literally means that one party is subrogated or steps into the shoes of another party and acquires their rights.

Under most workers’ compensation acts, once the employee makes a claim for and receives benefits, then to the extent that the employee has any right of recovery against a third party, the employer or its insurance carrier acquires that right of recovery to the extent of wage and income benefits it paid to the employee. The purpose of allowing subrogation in this instance is to hold down the cost of workers’ compensation insurance coverage and further to prevent the employee from receiving a double recovery on the wages and medical benefits received.

If the employee receives compensation under the workers’ compensation act and is further compensated for the same injuries as a result of the third party civil claim, that constitutes a double recovery to the employee. After paying back amounts paid to him for wage and medical benefits under the workers’ compensation act, the employee is entitled to keep any excess damages awarded by a jury or received in settlement.
 

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There also is a good bit of controversy regarding the provision of medical treatment to injured workers. Typically, the medical treatment is controlled by the employer or the employer’s insurance carrier. This means that the employee receives treatment from doctors who have been chosen by the insurance carrier or the employer. These doctors obviously know who is paying their bill and they know that the insurance carrier and the employer expect this employee to return to work at some point in time so that their financial exposure in paying wage benefits is limited. Although these doctors generally provide quality medical care for the injured employee, they have a somewhat mixed loyalty. They know that the employer and the insurance company want this employee to return to work, but they also know that it is not necessarily always in the employee’s interest to return to work too quickly or even to return to that form of work at all.
 

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The law relating to workers’ compensation coverage can become extremely complex when dealing with issues of occupational disease. The run-of-the-mill, on-the-job injury in which an employee falls and breaks an ankle does not involve a great deal of controversy. However, the claim of the employee who over a period of time develops, for example, carpal tunnel syndrome as a result of typing at the keyboard, is harder to classify as being a result of the employment. Different states have dealt with that issue in a variety of ways. Some states provide coverage for these types of repetitive stress injuries or exposure injuries; other states do not.

Another area of significant controversy in regard to workers’ compensation claims is compensation for emotional injuries. In some states, an employee who suffers, for example, a nervous breakdown because of emotional stress on the job may be entitled to the whole range of benefits under the workers’ compensation system. Other states have denied those types of benefits on the theory that the relationship between employment and emotional injury is simply too tenuous and therefore the employer should not be made to bear the burden of the expense associated with that type of injury.
 

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There has been a good deal of controversy over the extent to which workers’ compensation laws should provide benefits to injured employees. Many states put a cap on the amount of wage benefits that the employee can receive. In some jurisdictions the employee can receive no more than five hundred weeks of wage benefits, which is the equivalent of approximately ten years of benefits. This is to the advantage of the employer in that it puts a limitation on the employer’s or the insurer’s liability.

However, it may be a detriment to the employee if the employee is permanently disabled and cannot return to any form of work. If in fact the employee is permanently and totally disabled, then he or she may be able to extend those benefits under state law. However, proving that a worker is both permanently and totally disabled is not an easy task. As such, in many states employees are left in a situation in which they cannot return to their former employment, yet at the end of the allowable time their wage benefits are terminated.

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In the event that an employee is killed on the job, the family of that employee is entitled to death benefits. Those death benefits are wage benefits that will, at least in part, replace the loss of income as a result of the death of the employee.

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Wage benefits are calculated based upon the average weekly wage—the wages of the employee over a period of time are totaled up and then averaged. Once that average has been calculated, the employee is typically entitled to two thirds of that average weekly wage (up to a statutory ceiling).

The second form of benefit received under workers’ compensation is medical coverage. If an employee is injured on the job, he or she is entitled to reasonable and necessary hospital and medical treatment related to that injury to hopefully get him or her back on his or her feet and able to resume his or her employment. If the employee is not able to resume his or her former employment, then he or she may be entitled to rehabilitation services that will either allow him or her to return to some other form of employment or be trained in a new line of work.

A final type of compensation that the employee may be entitled to as a result of an on-the-job injury is compensation for permanent disability. Most workers’ compensation acts have created a schedule in which specific disabilities are worth a certain number of weeks of wages. For instance, a person who loses a foot may be entitled to one hundred and fifty weeks of wages over and above any other benefits that he or she may receive. A person who loses an eye on the job may be entitled to an equivalent amount of compensation. Those forms of compensation are in addition to the wage loss benefits otherwise paid and any medical expenses that have been paid.

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Workers’ compensation acts around the country are administered by a governmental agency for that jurisdiction. If an employee is injured on the job, he or she must report that injury to his or her employer within a designated period of time and file a written report of that injury. If the employee is forced to lose time from work or requires medical treatment, then he or she may file a claim with the administrative agency that administers workers’ compensation claims for that jurisdiction. Once a claim is filed, the employer can either contest or accept the claim.

If the employer accepts the claim, then the employer is agreeing that the employee was injured on the job, that the injury arose out of the employment, and that the employee is entitled to medical coverage and perhaps to wage benefits for the time disabled. If the employer decides to challenge the claim, there will be a hearing before an administrative law judge or a hearing officer who will then make a decision whether the claim is compensable and whether the employee should be paid wage benefits and/or medical benefits.

There has been a good bit of litigation over the years as to exactly what constitutes being an employee. Typically a person who is an independent contractor will not qualify as an employee under the workers’ compensation act. Likewise, the individual who is the owner of the business may not qualify as an employee unless he or she has expressly chosen to include him- or herself in that definition within the policy of insurance issued.
 

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Workers’ compensation is a form of insurance coverage that is designed to protect the working person in the event of injury. In a workers’ compensation claim the parties involved are the injured worker, his or her employer, and the employer’s workers’ compensation insurance company. Before the passage of workers’ compensation laws, a worker who was injured on the job was forced to file suit against his or her employer and potentially wait for months or even years before ever receiving any compensation for an injury.

As a result, the worker and his or her family may have had no income for an extended period of time because the worker was injured and unable to work. Further, the worker often was unable to pay for medical treatment. If the worker did eventually recover from the employer in a civil action, that award of money damages frequently came too late for the worker since by that point he or she was destitute and perhaps permanently impaired because of the lack of proper medical treatment.

As such, many states began passing workers’ compensation laws that provided a type of compromise. Under these laws, the worker did not have to prove any fault on the part of the employer when injured, but simply had to prove that he or she was on the job and that the injury arose out of his or her employment. If those two things could be proven, then the worker was entitled to receive a portion of his or her wages for the period of time disabled and further was entitled to appropriate medical treatment related to that injury.

In return for that, the employer received immunity from a civil claim brought by the employee for the injury. That is, the employee could not file a civil action against the employer. The employee’s exclusive remedy is the worker’s compensation benefits.

Every state has its own workers’ compensation law and that law can vary dramatically from state to state. The general thrust, however, of the worker’s compensation system nationwide is as stated.

In addition, there are workers’ compensation acts that operate at the federal level. Individuals employed by the federal government are covered by the Federal Employees Compensation Act. It is a workers’ compensation act that is administered by the U.S. Department of Labor. There is also another federal statute known as the Longshoremen and Harbor Worker’s Act, which technically covers longshoreman and harbor workers but includes private, nonfederal employees who are working on defense installations as well. It also covers private employees working overseas who are covered by the Defense Base Act—a type of workers’ compensation act that incorporates the Longshoremen and Harbor Workers Act.

In most states, an employee’s exclusive remedy is workers’ compensation benefits.

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If the injury suffered results in the death of a person, then that person’s estate may assert a wrongful death claim. A wrongful death claim occurs when the injured party, rather than having simply suffered personal injury, has actually died as a result of the misconduct of the defendant. A wrongful death claim may be based upon a negligence theory, a breach of warranty theory, or an intentional tort theory, such as assault and battery.

Wrongful death claims are a fairly recent phenomenon. Common law did not recognize wrongful death claims, on the theory that once a person had died, there was no amount of money that could compensate for the loss. As such, a person’s claim died with him or her. However, over the years, the state legislatures have come to recognize that even though death may bring an end to the suffering and damages incurred by the decedent, there may be persons left behind who have been damaged and may continue to be damaged in the future as a result of the passing of the decedent.

Every state has its own wrongful death statute that defines exactly what damages are recoverable under the wrongful death act. Typically the damages recoverable are damages consisting of solace and grief experienced by the survivors, loss of earnings suffered by the dependents from the decedent’s subsequent inability to generate income, any medical expenses incurred by the decedent, and funeral expenses.
 

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Several states still recognize various types of immunities. That immunity may come in the form of sovereign immunity, charitable immunity, or family immunity. Sovereign immunity is based upon the concept that the king cannot be sued. In the United States that means the sovereign or the government cannot be sued. Many jurisdictions have waived that immunity either in whole or in part. If the local or state governmental entity that you are planning on suing is deemed by state law to be immune from tort claims, then you may not be able to sue that entity at all unless it expressly chooses to waive its immunity. Many governmental entities by means of state law have expressly waived their immunity either entirely or have allowed claims to be asserted against them up to certain dollar amounts. (This varies from state to state.)

Charitable immunity is a doctrine that applies in many states to organizations that are truly charitable. A charitable organization is generally considered to be one that fulfills a strictly charitable function and does not make any attempt to collect its debts. Charitable organizations may be immune from tort claims. For instance, if you were injured on the premises of the Red Cross because of some negligence on their part, depending on the law in that particular state, the Red Cross may have the defense of charitable immunity to your claim because they truly are a charitable organization.

There are certain states that still recognize elements of family immunity. That is, tort claims may not be asserted against parents or siblings for certain types of behavior.
 

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There are several affirmative defenses that may be raised in regard to a tort claim. An affirmative defense is a defense that may be raised by a defendant that constitutes a complete bar to a claim. One of those affirmative defenses is that of the statute of limitations. Every state has set forth a statute of limitations for virtually every type of civil claim, whether it be a tort claim, contract claim, or otherwise. If the claim is not asserted within the time allowed by that statute, then the claim is deemed to be barred. The assertion of a claim is accomplished in most states by actually filing a lawsuit at the courthouse. Some states require actual service of the suit papers upon the defendant before the statute of limitations runs.

Another defense that may be asserted in a tort case is that of assumption of the risk. Assumption of the risk arises when the plaintiff understands the nature of the risk involved and voluntarily assumes that risk.

Example: If you decide to go out to the supermarket during the middle of a very bad ice storm, recognizing that the roads and walkways are not navigable, and while walking from your car to the store, you slip and fall, then you probably have assumed the risk of an injury. You knew that there was a risk associated with going out during those weather conditions and you voluntarily chose to accept that risk.

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Different states have different ways of how they deal with negligence claims. Some of them acknowledge the concept of comparative negligence, while other states are known as contributory negligence jurisdictions. In a comparative negligence jurisdiction, the negligence may be compared between the parties. For instance, going back to the red light example, if you happened to be intoxicated and laying in the middle of the intersection when you were struck, then there obviously would be some negligence on your part. The jury would be called upon to compare the different levels of negligence.

In that example, the jury might conclude that the driver was 50% negligent and you were also 50% negligent. If the jury then determined that your total damages were $100,000, you would only receive $50,000, because you were 50% negligent.

In a contributory negligence jurisdiction there is no comparison of negligence. This means that if you were negligent by 1%, and that negligence was a cause of your damage, then your claim is barred and you receive nothing. Contributory negligence is a principle derived from the common law that is still recognized in some states. It is indeed a very harsh principle of law and in many instances is unfair to people who are probably entitled to recover something for their damages, but may not be entitled to 100% compensation.
 

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Another important principle in liability in a tort action is joint and several liability. Under the principle of joint and several liability, each defendant is 100% liable for the judgment that is rendered. This principle has been under a good deal of attack lately because it can create circumstances wherein a defendant can wind up paying more than his or her fair share of any judgment, especially if the other defendant cannot afford to pay.

Joint and several liability is something that is well ingrained into our legal system. The rationale behind it is to make sure that the plaintiff can obtain full recovery for whatever judgment is entered. It then becomes the burden of the defendants against whom the judgment has been entered to fight among themselves as to any eventual sharing of that liability.
 

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The final element of any tort claim that must be established is damages. Damages may be thought of as the injury incurred. The injury may come in the form of personal injury such as a broken arm or leg, pain and suffering, emotional distress, medical expenses, lost wages, or permanent disability. Pain and suffering is an elusive concept. The words themselves best define the concept. When you are physically injured, it would be expected that you would experience some pain, anguish, or emotional stress. Normally, a jury in an injury case is called upon to award a monetary amount for that pain and suffering along with the other damages that are claimed.
 

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The final element of any tort claim that must be established is damages. Damages may be thought of as the injury incurred. The injury may come in the form of personal injury such as a broken arm or leg, pain and suffering, emotional distress, medical expenses, lost wages, or permanent disability. Pain and suffering is an elusive concept. The words themselves best define the concept. When you are physically injured, it would be expected that you would experience some pain, anguish, or emotional stress. Normally, a jury in an injury case is called upon to award a monetary amount for that pain and suffering along with the other damages that are claimed.
 

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Aside from the types of claims mentioned previously, there are several intentional torts that can be asserted. Those intentional torts consist of such claims as assault and battery, conversion, defamation, false imprisonment, fraud, malicious prosecution, invasion of privacy, trespass, and the intentional infliction of emotional distress. All these claims have specific elements that must be met and proved in order for a plaintiff to prevail.

A battery is simply an unwanted touching of one person by another. Conversion is the taking of a person’s property without that person’s consent. (Conversion in the civil system is similar to larceny in the criminal system.)

Defamation can come in either written (libel) or oral (slander) form and consists of making injurious statements about a person that are untrue. If the injurious statements involve an imputation of a criminal offense, involve moral turpitude, impute a contagious disease, impute unfitness to perform the duties of office, or include words that prejudice a person in his or her profession or trade, then they may be referred to as being defamatory per se.

If the alleged statement is not defamatory per se, then the plaintiff may have to prove what are called special damages in order to recover against the defendant. Special damages would come in the form of out-of-pocket expenses incurred as a result of those defamatory statements.

Example: If you are a surgeon and David calls you a butcher, that is a statement that is defamatory per se. You could assert a defamation claim against David even though you may not have incurred any special damages (any out-of-pocket expense as a result of the making of that statement).

Keep in mind that truth is always a complete defense to a defamation claim.

If, on the other hand, you are unemployed and Sarah calls you a crook, and as a result of making that comment you incur so much emotional distress that you seek psychiatric help, you may have a basis for a defamation claim against Sarah. Even though the comment made is not defamatory per se, the fact that you have incurred medical expenses as a result of Sarah making the comment about you satisfies the special damages requirement. It gives you the basis for a defamation claim against Sarah.

The truth is always a complete defense to a defamation claim.

Some statements, although defamatory, are protected by a qualified or absolute privilege. For instance, a statement made by an employer about an employee to a new prospective employer may be governed by a qualified privilege. The idea is to allow employers to freely exchange information about employees. What that means is that the employee in a defamation action against the former employer may have to claim and prove that there actually was some malice in the statements that were made.

An absolute privilege would be one that is an absolute bar to a claim for defamation. For instance, comments made in the course of a judicial proceeding are generally governed by such a privilege. The idea is to allow the parties to freely exchange comments during such a proceeding.

Claims of false imprisonment and malicious prosecution arise in the context of a person improperly restraining another person or initiating a criminal prosecution that is subsequently found to be unjustified.

Fraud is the intentional misrepresentation of a material fact made for the purpose of inducing reliance and that does induce reliance to the detriment or damage of the plaintiff. Fraud is a very difficult thing to prove. Unlike most civil claims that must be proven simply by a preponderance of the evidence or what is referred to as the greater weight of the evidence, fraud claims must be proved by clear and convincing evidence, which is a much higher standard and much more difficult to prove. The reason for the higher standard of proof in fraud claims is that the law recognizes fraud as an offense involving surreptitious behavior that may be subject to different interpretations. It is therefore felt that the plaintiff should have a more difficult burden of proof in these types of claims than would apply in the run-of-the-mill tort claims that may be asserted.

Another intentional tort is called the intentional infliction of emotional distress. To pursue such a claim, you must prove that the conduct of the defendant was intentional and outrageous, that the conduct caused emotional distress, and that the emotional distress was severe. It is often difficult to meet all of these elements.
 

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Strict liability means that the defendant is liable for his or her conduct in certain instances, even without a showing of actual negligence, if that conduct was a cause of injury to the plaintiff. Strict liability normally only arises in regard to activities that are extremely dangerous. For instance, if you are operating a quarry and in the course of blasting with dynamite you damage the home of one of your neighbors, that neighbor may not have to prove that there was any negligence on your part in the blasting operation, but simply has to prove that the blasting was the cause of damage to his or her home. In that circumstance, the party conducting the blasting may be strictly liable for any damage that results from that dangerous activity.

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A significant concept within tort law is vicarious liability. The concept of vicarious liability means a principal may be liable for the conduct or the misconduct of his or her agents. That principal/agent relationship arises in the employment context between an employer and an employee. It may also arise in other contexts involving contractors. From a plaintiff’s point of view, the concept of vicarious liability is important because it typically is that legal concept that allows for complete recovery of damages. For instance, if you are rear-ended by a truck driven by an employee of the ABC Company, your attorney would file the claim against not only the driver, but also the employer. If suit was filed only against the driver and it turns out that there was no insurance covering that vehicle, then whatever judgment you got against the driver may be uncollectible simply because the driver may not have the financial resources to pay the judgment. If, however, you get the judgment also against the employer, then that employer probably would have the financial resources either in the form of insurance coverage or otherwise to satisfy the judgment.

The employer in that case is liable for the conduct of the employee, assuming that the employee was acting within the scope of his or her employment. If, on the other hand, the employee was on a personal mission while operating a company vehicle and the employer had no knowledge of it and had not consented to it, then there may be no vicarious liability. Perhaps the employee was acting on his or her own and was not doing anything on behalf of the employer at the time of the collision.

The concept of vicarious liability has been the subject of a good deal of litigation over the years.

Example: Suppose an insurance salesman comes into your home to sell you insurance on behalf of the XYZ Company. He presents to you his business card along with all the brochures of the XYZ Company. He convinces you that based upon the extensive advertising of that Company and because of the well recognized name that this is a very reputable company. Based on that you purchase a policy of insurance and tender a check in a substantial amount. If the salesman then
absconds with the money, is the XYZ Company liable for your loss?

They probably are even though that salesman may not be a direct employee of the company. The salesman in that instance may be an independent contractor, but the XYZ Company is probably still liable because it is the one who gave that salesman all the trappings of authenticity, gave him the opportunity to engage in his fraudulent behavior, and essentially set the whole process in motion through the use of its company name and company advertising.
 

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Literally, the term res ipsa loquitur means the thing speaks for itself. Res ipsa loquitur is a rule of evidence that states that a jury may conclude that a defendant is negligent if:

* the plaintiff has been injured as a result of an instrumentality (some tool or object) that is in the exclusive control of that defendant;

* the defendant has or should have exclusive knowledge of the way that instrumentality was used; and,

* the injury is one that would not normally have occurred if the instrument had been used properly.

Example: Suppose you are walking down the street and a dresser drawer falls on your head. It so happens that the dresser drawer came from the apartment window above. It had been placed there by the tenant who was doing some spring cleaning and the tenant accidentally bumped the dresser drawer. Have the elements of res ipsa loquitur been met in that instance?

They probably have been, in that the dresser drawer was in the exclusive control of the defendant, the defendant had exclusive knowledge as to how the dresser drawer was used, and finally the injury is one that would not normally have occurred if the dresser drawer had been used properly. As long as you can prove those basic elements, you probably would be entitled to recover money against that tenant for her negligence.

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You have probably heard of the term attractive nuisance. That is a concept of negligence that is recognized in many states. An attractive nuisance is an object that by its very location and configuration is attractive and also dangerous to children. If the owner of that object allows it to remain accessible to children knowing that it will attract them and knowing that they probably will be injured if they come in contact with it, that may be a basis for a negligence claim against the owner of that object.
 

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Children
Many tort claims that are brought involve children. Children, in general, are given a favored status in the law, meaning that they have special protection. This is likewise true in regard to tort claims. For instance, in regards to negligence claims, children under 7 years of age are generally legally incapable of committing any act of negligence.

Children between the ages of 7 and 14 are generally presumed to be incapable of committing negligence, although that presumption can be rebutted with the presentation of evidence showing that the child is capable of committing a negligent act because of his or her intelligence level, experience level, or other factors that may bear on that.
 

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In addition to proving that there was a breach of the standard of care by a doctor, the plaintiff must also show that the breach was a proximate cause of the plaintiff’s injury. In the example of the puncture of the arterial wall by the catheter, the defendant may argue that even if that was negligence, the patient only had a 5% chance of survival and therefore was probably going to die anyhow. As such, any negligence that may have been committed was really irrelevant. This is a frequent defense raised in professional negligence claims and is frequently one that has some merit—the doctor may have been negligent, but the patient would have died anyhow. This reemphasizes the importance of the concept of proximate cause. That is, even though the doctor may have been negligent, the negligence may not have been a cause of injury since the patient may have suffered dire consequences in any event.
 

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In most negligence claims, the issue of standard of care arises. In an automobile accident case, the standard of care is defined by the traffic regulations. For instance, the traffic regulations dictate that you shall not enter an intersection on a red light. That regulation establishes the standard of care by which all persons are bound in terms of passing through an intersection. In other contexts there may be building codes or other state or local codes that establish the standard of care by which property owners are bound. Those codes can be the basis upon which a negligence case may be founded because they establish the standard of care to which the defendant is held. If the defendant has violated that code, then that may be evidence of a breach of duty by that defendant. If that breach resulted in damage to you, then you may have a basis for a negligence claim against the property owner.

The concept of standard of care becomes especially important in certain types of professional liability claims—medical malpractice claims, legal malpractice claims, or architectural malpractice claims. In those types of claims, the plaintiff has to establish what the standard of care is. The standard of care is established by means of the presentation of evidence by experts in that field. For instance, if in the course of your heart surgery the surgeon happens to penetrate your coronary artery with a catheter and you suffer irreparable damage, has the standard of care for that procedure been violated? That is not something a nonmedical person could answer. Therefore, it is not something that a group of jurors could answer as nonmedical people unless they hear evidence from a medical expert establishing what the standard of care is.

The standard of care in that particular instance may be that the surgeon, through the use of radiological instruments, should have been able to tell where the catheter was going and therefore should have known when he or she was about to puncture the arterial wall. The surgeon could have avoided the rupture if he or she had been attentive to the radiological instrument that showed where the catheter was.

In that instance, the standard of care evidence presented by the plaintiff may show that the doctor was negligent in puncturing the arterial wall with that catheter. You can rest assured that the defendant doctor will bring in his own medical expert who will refute that and who will state that there is no breach of the standard of care in this circumstance. It was simply an unfortunate accident that happened and that there was no negligence on the part of the doctor.
 

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Professional liability claims may come in the form of medical malpractice actions, legal malpractice actions, accounting malpractice claims, or architectural malpractice actions. In many states, the medical profession has been granted certain special protections. For instance, some states have imposed a cap or a limitation on the amount of money that can be recovered against any doctor or health care provider as a result of their negligence. The reason for that cap on damages is to help hold down the cost of medical malpractice insurance coverage for health care
providers.

In addition, some states have imposed special requirements that must be met before a doctor or a health care provider can be sued. In some cases the plaintiff must have the claim reviewed by a medical malpractice review panel that makes a preliminary determination whether the claim has any merit. The decision rendered by the medical malpractice review panel may in some instances be admissible in evidence if the case is tried in front of a jury.

A professional liability claim is different from any other type of tort claim that may be asserted. With these types of claims, the plaintiff typically has to present testimony from a witness who has some expertise in that field as to the standard of care that should have been adhered to by that professional person. Evidence must then be presented as to the breach of that standard of care and how that breach caused damage to the plaintiff.

In a medical malpractice action, that testimony typically comes from another medical doctor in the same field of expertise as the defendant that is being sued. The same concept applies normally in legal malpractice actions and also in architectural malpractice actions. There could be some instances when expert testimony would not be necessary because the negligence is so obvious that there is no need to bring an expert witness into court to explain the technical aspects of the case.

For instance, if a patient goes into the hospital for an operation on the right knee and the doctor ends up operating on the left knee, there is no need for expert testimony to establish that the standard of care is that the doctor should have operated on the right knee. Any reasonable person would know that the operation on the left knee was unnecessary and therefore was negligent on the doctor’s part.
 

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A product liability claim is one in which a person contends that a particular product is defective in some way and that defect has caused injury. You may recall a famous product liability claim that was brought against Ford Motor Company many years ago relating to its Pinto automobiles. Ford made an engineering decision to place the gas tank on the Pinto in the rear of the vehicle, even though it knew that placing the gas tank in this location could result in serious injury to the occupants if the vehicle was involved in a rear end collision.

Documentation was produced during litigation that Ford knew or should have known of that risk, yet made a conscious decision to continue to keep those vehicles on the road because it felt the overall financial benefit would weigh in its favor, even if it had to pay several million dollars in claims as a result of injuries.

The jury in one of those cases returned a very substantial award against Ford Motor Company for compensatory damages for the injuries suffered by the plaintiff. The jury also awarded substantial punitive damages to punish Ford for its wrongful conduct in not taking the vehicles off the road or warning the public of the dangers associated with that vehicle.

Another fairly well known product liability case involved a McDonald’s restaurant. In that case, an elderly woman purchased a cup of coffee from a drive-in window at McDonald’s. She apparently placed that cup of coffee between her legs and subsequently spilled the coffee. The case received a good deal of attention because it was touted by the insurance industry as an example of a runaway jury verdict. In fact, the insurance industry failed to disclose to the public that in that particular case the plaintiff had made an attempt to settle the case simply for her medical bills, which were substantial because she was hospitalized for over a week. McDonald’s, however, refused to entertain any reasonable settlement offers.

The evidence that was presented at trial was that McDonald’s had been warned on many occasions that their coffee was approximately twenty degrees hotter than what was recommended by the local health department and was so hot that it could cause third degree burns. In fact, the coffee served by McDonald’s was not just hot (135̊ to 140̊), but at 180̊ to 190̊ was able to cook through all layers of skin within seven seconds. McDonald’s admitted that its coffee was 40̊ to 50̊ hotter than is fit for human consumption and knew that more than seven hundred people, including babies, had been burned by its coffee. McDonald’s, however, refused to reduce the temperature of its coffee because it felt it sold more coffee at that level than it would at a lesser temperature.

The plaintiff in this case was an elderly woman who suffered third degree burns over six percent of her body. The state where that case was tried was a comparative negligence state. As such, the jury, having found the plaintiff partially negligent because of how she carried the coffee, reduced her verdict by a proportion that was due to her own negligence.

In addition to awarding a compensatory damage amount, the jury also awarded punitive damages against McDonald’s equal to its gross receipts of two days of coffee sales in order to teach it a lesson. The actual verdict in that case was $200,000 for compensatory damages and $2.7 million dollars in punitive damages. The punitive damage award was reduced by the court on a posttrial motion to $480,000. As a result of that verdict, McDonald’s reduced the temperature of its coffee.

A product liability claim may be founded upon negligence principles, but it may also raise a legal theory known as breach of warranty. Within the sale of a product there is either an express or implied warranty that the product is reasonably fit for the purpose for which it is sold. If it turns out that the product is not reasonably fit for that purpose, then that may constitute a breach of warranty and may give rise to a claim for damages if someone is injured as a result of that breach of warranty. Breach of warranty claims technically are contract claims, but they may be asserted as part of a product liability lawsuit.

Normally, in a product liability claim, the plaintiff will need to present some expert testimony as to what the defect is in the product. For instance, in the Ford Pinto case, the plaintiff had to present expert testimony from engineers to establish that the placement of the gas tank in the rear of the vehicle was dangerous and was not good engineering.
 

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Another area of the law that produces many tort claims is premises liability. A person who is lawfully on someone else’s premises and who is injured as a result of some negligence of that property owner may have a claim against the property owner. The duty or standard of care to which the property owner is held may depend on the status of the injured person.

The different statuses that may apply are that of invitee, licensee or trespasser. An invitee is typically someone who comes onto the property for some legitimate business purpose. A licensee may generally be thought of as a social guest. A trespasser is someone who is not allowed on the premises and who is there without the knowledge or consent of the property owner.

Exactly what duty is owed by the property owner to each of these different classes of persons may vary dramatically from state to state. The general rule of law, however, is that a property owner has a duty to exercise ordinary care to keep his or her premises in a reasonably safe condition. When an owner fails to exercise that ordinary care and someone who is lawfully on the premises is injured as a result, the property owner may be liable.

One thing that distinguishes premises liability claims from other types of tort claims is that the party who is injured (the plaintiff) must prove that the property owner had notice of the defective condition on the premises. For instance, if your daughter slips and falls on a banana peel that was on the floor in the school cafeteria, she does not necessarily have a basis for a claim against the school system or the company that runs the cafeteria. She must present some evidence of how long that banana peel had been on the floor in order to prevail on such a claim. If it turns out that the banana peel had only been there a short period of time and was there because of the actions of some other student in the school, the school may not have had a reasonable opportunity to see the banana peel and clean it up. Thus, there may not be any negligence on the part of that school.

A property owner can only exercise ordinary care toward defects or deficiencies that he or
she has knowledge of.

The logic of this rule is that a property owner is not necessarily a guarantor of the safety of all persons on his or her premises but is simply required to exercise ordinary care. A property owner can only exercise ordinary care as to those defects or deficiencies that he or she has some knowledge of or that he or she should have known of.

In the case of your daughter, she must prove that the banana peel had been on the floor long enough that the school system or the manager of the cafeteria should have known that the banana peel was on the floor. The school system or cafeteria manager should therefore have cleaned it up or placed signs out to warn customers of the presence of the object on the floor.

If the banana peel was placed on the floor either intentionally or accidently by an employee of the entity that operates the school cafeteria or by an employee of the school system, then your daughter may not have to prove that that entity had notice of the presence of the banana peel on the floor. The negligence of the employee in placing it there would simply be imputed to the
employer.

Take another example of a premises liability claim.

Example: Suppose you are the tenant in a large apartment building where there have been a series of crimes committed resulting in serious personal injuries to the occupants. The property owner is aware of those crimes, but takes no steps to warn other tenants of the crime wave in that building and likewise takes no steps to improve security in the building. If you are subsequently assaulted and injured as a result of a person coming onto the premises for the purpose of committing a crime, then you may have a claim against that landlord based upon a negligence theory. That is, the landlord knew or should have known that there was a danger to the tenants, yet the landlord took no steps to either warn the tenants or to decrease the security risk to the tenants.

Look at that claim from the point of view of how the four elements of a tort claim apply. The first element of a tort claim is the establishment of a duty owed by the defendant to the plaintiff. The duty in this case arises out of the relationship of the parties. That is, the property owner or the landlord owes a duty of reasonable care to persons who are lawfully on the premises.

Reasonable care is that degree of care that a prudent person would exercise in a given circumstance.

You may ask, what is reasonable care? Reasonable care is whatever a jury says it is. A textbook definition of reasonable care is that degree of care that a prudent person would exercise in that circumstance. If the landlord in this instance failed to take some steps to warn the tenants or persons lawfully on the premises of the criminal incidents occurring, then that may be evidence of a breach of the duty to exercise reasonable care and fulfill the second element. If the assault in question was perpetrated by some person who was unlawfully on the premises, then the third element of a tort claim has been met in that the breach of duty has been shown to be a cause of injury. The final element of a tort claim is simply that of injury or damage. In this case, the injury or damage consists of the personal injury to the plaintiff.
 

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The most common form of tort claim arises from automobile collisions. Those tort claims normally involve some careless or reckless act by one driver resulting in a collision with another motor vehicle. Whether the operation of a motor vehicle involves actual negligence depends upon how the driver’s conduct is viewed in the light of the Rules of the Road as set forth either in your state code or local code governing traffic regulations. The rules of the road or traffic regulations establish the standards for operation of motor vehicles. A violation of these rules or regulations typically constitutes negligence.

Motor vehicle accidents involving common carriers (buses, taxis, trains, and planes) may have a set of rules that are slightly different than what would apply to an automobile. Common carriers are frequently held to a very high degree of care. As such, if there is even slight negligence on their part that contributes to the injury of one of their passengers, then the common carrier may be liable.
 

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There are several different types of torts. The most common tort that you may have some contact with is that of negligence. Negligence is a failure to exercise ordinary care.

The concept of negligence is founded upon the idea that a duty is owed from one person to another and there has been a breach of that duty, which then causes an injury or damage to another party. For instance, in the red light example, the duty owed was the duty of not running a red light. If that duty is violated by running the red light and as a result of that you are injured, then all of the elements of a negligence claim have been met.

There are four essential elements to any tort claim.

1. There must be a duty that is owed by the defendant (the party against whom the claim is made) to the plaintiff (the party bringing the claim).

2. There must be a breach or violation of that duty by the defendant.

3. That breach of duty must have then been a proximate cause of injury to the plaintiff.

4. There must be actual injury or damage to the plaintiff.

The first two elements of any tort claim—duty and breach of duty—have just been discussed. The third element of any tort claim is that of proximate cause. Proximate is not to be confused with the term approximate. Proximate literally means “immediate to, contiguous, touching, or direct.” Approximate means not proximate. A proximate cause of an event is one that is reasonably foreseeable. If a person runs a red light, then it is reasonably foreseeable that he or she may injure someone. As such, that negligence may be a proximate cause of injury.

Example: Suppose Alan is playing a game of catch with his son in front of his house. His wind-up is a bit too aggressive and he overthrows the ball. The ball goes through the front window of your home and then through the rear window of your home striking a barbecue stove that is on your back porch. The stove then falls off the back porch, rolls down the hill, and kills another neighbor. What is Alan responsible for?

The first question is whether Alan was negligent. Alan probably was negligent for throwing the ball so hard that it broke the front window of your home. The next question is whether that negligence was a proximate cause of injury to your home. Clearly it was.

The final question is whether or not that negligence was a proximate cause of injury to your neighbor. That is a tougher question. It comes down to essentially an issue of whether it was reasonably foreseeable that by throwing the ball as hard as he did, it would not only go through your front window, but also the back window, and then strike your barbecue oven, knock it off the back porch, cause it to roll down the hill, and strike your neighbor. That type of resulting injury is probably not reasonably foreseeable, and as such, the chain of causation would have been broken at some point in that sequence of events. Typically, in that type of case, the question of proximate cause would be submitted to a jury for resolution as to whether or not Alan’s negligence was a proximate cause of injury to your neighbor.

The fourth and final element of any tort claim is that of damages or injuries incurred. To justify a recovery of any substantial amount, the injuries or damages must be more than minimal. Those injuries may include medical expenses, lost wages, pain and suffering, humiliation, etc.
 

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A tort is a civil wrong that is not based upon a contract. If, for example, a person runs a red light and strikes your vehicle (which is lawfully in the intersection), then you could sue that person civilly for the tort of having run the red light. That tort action does not arise out of any contract between you and the other person.
 

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In reviewing a written contract, there are several things that you need to be on the lookout for.

* The identity of the parties. Each of the parties needs to be expressly identified. If you are dealing with a corporate entity, you need to make sure the complete name of that corporation is stated in the contract. The only way to confirm that you have the complete name of that corporation is to call the state agency that supervises corporations to get the complete name. In addition, the contract should expressly identify the position of the person signing on behalf of the corporation, so that it is clear that he or she is a corporate officer and therefore has the authority to sign.

* Consideration. The consideration must be expressly stated in the document.

* Governing law. It is a good idea to state in the contract what state law is going to control this contract in the event there is a dispute that arises. This is important if you are entering into a contract with a person or entity that is not based in the same state where you are.

* Time of the essence. A time of the essence clause is significant if you are interested in prompt performance by the other party. If prompt performance is not a big deal to you, then you may not want a time of the essence clause. If there is a time of the essence clause in the contract and either party does not comply with the time requirements set forth in the contract, then that is considered to be a material breach of the contract.

* Survival. The term survival means that if one party to the contract were to pass away before there has been complete performance, then the obligation set forth in the contract would apply to the estate and heirs of that person.

* Modification. It is a good idea to expressly state in the contract that any modification of the contract must be in writing and must be signed by both parties. That eliminates any possibility of there being any oral modification which may be the subject of a later dispute.

* Waiver. A waiver is an intentional relinquishment of a known right. It is generally a good idea to have a waiver clause in the contract that says that the failure of either party to insist upon strict performance of any of the provisions of this agreement shall not be interpreted as a waiver of any other default or breach of the same or similar nature. This will help prevent a situation in which a waiver of strict performance of a contract provision on one occasion will constitute a waiver of future breaches by that other party.

* Severability. This term means that if any provision within the agreement is found to be invalid or unenforceable, it will not effect the enforceability or validity of the other provisions in the agreement. Suppose for instance that a particular paragraph in your contract was determined to be either unenforceable or illegal by a court, that conceivably could invalidate your entire contract unless you have this clause within the contract.

* Assignability. The general rule is that any contract may be assigned unless the contract expressly says otherwise. Assignment of a contract essentially means that you are selling your rights under the contract to another party. For instance, if the contract that you are entering into is a contract for the purchase of an automobile, then you may sign a written contract agreeing to buy that automobile for a certain price. You may then assign it (sell it) to another party unless the contract says that assignment is not allowed. What you are selling in this instance is the contract, not the car. You need to decide whether or not you want a nonassignment clause within your contract.

* Integration. An integration clause in a contract says that this contract contains the entire understanding of the parties and that the parties expressly agree that there are no oral or written representations, warranties, or agreements relied upon other than what is expressly said within the written agreement. You may recall the discussion about the parol evidence rule (p.108) that bars the admissibility of any precontract discussions that may have taken place between the parties before the contract is actually signed. An integration clause reconfirms that and goes a little bit further to confirm also that any postcontract discussions (discussions or communications that took place after the contract was signed) are not to be relied on by the parties. The word integration in this context means that the entire understanding of the parties is integrated into the one document.
 

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Claims for breach of contract, aside from involving claims for money damages, may also involve claims for equitable relief. Equitable relief consists of requests by one party to enjoin or dictate either the performance or nonperformance of certain things.

Example: Suppose Bob enters into a contract with his neighbor to allow a sewer line to be placed across his property so that his neighbor can hook up to the sewer line. However, when the sewer company comes to install the line, Bob decides to stand at the boundary with a shotgun to prevent the excavation. In that instance, Bob may be enjoined from that conduct. The court may order Bob to step aside and allow the excavation to be completed pursuant to the agreement.

The court in that case would issue an injunction requiring Bob to cease and desist any behavior that obstructs the excavation. In addition, the neighbor could also sue Bob for money damages since Bob caused the neighbor to have to hire an attorney to file a suit for the injunction. In that circumstance, the attorney’s fees might be recoverable.
 

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Another form of damage that may be recoverable as part of a breach of a contract claim is what is known as liquidated damages. Liquidated damages are expressly set forth in the contract in the event there is a breach. For instance, in many construction contracts it is expressly agreed by the parties that if the contractor does not complete the job by a certain date, he or she will have to pay damages of a fixed amount per day. Liquidated damages are frequently called for in contracts because it may be difficult for the parties to determine what the actual monetary damages are in the event of a breach or, in this case, a delay in performance.
 

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The damages that may be provided in a contract action generally fall into two categories—direct damages and indirect damages. Direct damages are those that are actually spelled out in the contract. In the painting example, the $100 that was to be paid would be the direct damages. Suppose Joe told you when he agreed to paint your house that he needed to be paid by a certain date otherwise his landlord was going to evict him from his business location, putting him out of business. If that had been disclosed initially and it was within the contemplation of the parties that Joe would suffer significant consequences if payment was not made in a timely fashion, then those consequential damages—the damages flowing from the failure to pay—may likewise be recoverable in a contract claim as indirect damages.

 

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As mentioned, the typical contract involves an offer being made, the offer then being accepted by another party, and the exchange of some consideration. There are, however, other theories or means by which a contract may come into existence.

Sometimes a person who is not technically a party to a contract may have rights under the contract if he or she is a third-party beneficiary. In order for that beneficiary to enforce the contract with the other parties to the transaction, that beneficiary typically must have been intended by the other parties to benefit from the contract. A typical third party beneficiary arrangement would be a party who was injured by another person and who then sues that responsible party and makes a claim against their liability insurance policy. The injured person is an intended beneficiary of that responsible party’s policy and may sue to enforce payment under the policy.

In some instances, a quasi-contract may be recognized. A quasicontract is a contract implied even though there is no express promise to do anything. In order for a quasi-contract to be recognized, there must have been some benefit conveyed by one party to another. The purpose of recognizing quasi-contracts is to prevent the party receiving the benefit from being unjustly enriched.

In addition, the concept known as promissory estoppel may be recognized to enforce certain obligations. If certain promises are made and the other person reasonably relies on them and suffers some loss as a result, then under certain circumstances, that person may sue to enforce the promise made, even if no actual contract was formed.
 

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In determining whether one party has failed to comply with the terms of the contract to the point in which damages should be awarded, the court will ask whether the breach of the contract is material. A material breach of contract is one that goes to the very heart of the agreement. In the house painting example, the failure to pay the one hundred dollars obviously goes to the very heart of the agreement and that failure to pay clearly would be a material breach of contract. If, on the other hand, the painter was one day late in completing the job then, typically, that one day delay would not be a material breach of contract unless the contract contained a time is of the essence clause. If such a clause was in the contract, then that means that the parties have expressly agreed that every minute counts. If the party that is required to perform does not perform on time, then that will be considered a material breach that may bar any right to payment that the parties may have.

A material breach of contract goes to the very heart of the agreement.

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Contracts are the foundation of our commercial system. A contract is an agreement. If the agreement is violated then the person who is in violation is liable for the damages called for under the contract. If Joe agrees to paint your house for a hundred dollars by a certain date, and after completing the job satisfactorily you refuse to pay Joe, then you are in breach of the contract and he can sue you for one hundred dollars. If Joe has to hire an attorney to file that lawsuit, then he may be able to recover his attorney’s fees provided that the contract allows for that.

The general rule of law in the United States is that each party has to pay its own attorney fees regardless of who prevails. There has been a movement over the last several years to require that in civil litigation the losing party pay the attorney’s fees of the winning party. This is the law in some countries. But the United States has never adopted that rule because it has been felt that such a rule would deter worthy litigants from bringing claims that are justifiable if they thought that there was any chance of their losing and thereby having to pay the attorney’s fees of the opposing party.

Referring back to the house painting example, if Joe knew that you were going to hire the most expensive lawyer in town and knew that those attorney fees could be thousands of dollars, that certainly would be a significant deterrent for him to file suit. If he lost, he would have to pay more than what his own claim was for. In the American system of justice, a party should not be deterred from bringing a suit for fear that he or she may have to pay the legal fees of the other side if he or she loses.

The philosophy within the American judicial system is that the courts are accessible to any party who feels as though he or she has been wronged by some other person. In earlier times, when one person wronged another there might be a duel in the street to resolve that dispute. Our civilization has evolved to the point  where we wish to deter those types of confrontations and encourage parties to resolve their disputes in a civil fashion in front of a judge or jury instead. As such, the American Rule does not allow for the recovery of attorney’s fee unless stipulated in a written agreement. This is generally considered to be the more democratic rule in that the threat of attorney’s fees being awarded should not be a deterrent to a potentially worthy litigant bringing a law suit.
 

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Once a contract has been entered into, the parties are obviously interested in the performance of the contract. It is not unusual, however, that there are certain conditions imposed on one or both parties before performance is necessary. For example, in your typical homeowners insurance contract, a condition that you must satisfy before your insurance company is obliged to make any payments to you is to provide a sworn proof of loss statement itemizing the damage that you are claiming. The insurance company also has the right to examine you under oath as to that claim. Once those conditions have been satisfied, the insurance company has an obligation to pay you for the damages incurred that are covered by your policy.

Sometimes those conditions within the contract may be the subject of what is referred to as waiver or estoppel. A condition may be waived if the insurance company informs you that you do not have to comply with that condition. A waiver is a relinquishment of a known right. If the insurance company has a right to require that you file a written proof of loss and they expressly waive that or tell you that you do not have to file a written proof of loss, then that constitutes a waiver of that condition.

In some instances, a party may be estopped from requesting that the conditions be satisfied. For instance, again referring to the insurance claim, if the insurance adjuster handling the matter told you that he would complete the proof of loss form and then submit it to you for your signature within the time allowed by the contract and you relied upon that representation, then the insurance carrier may be estopped from denying coverage to you for failing to have filed the proof of loss form within the time allowed.

An estoppel arises when a party makes a representation and the other party relies upon that representation to his or her detriment. In the example, the insurance adjuster represented that he would complete the proof of loss form. You relied upon that, and as a result of that adjuster’s failure to do what he said he would do, your proof of loss form was not submitted in a timely fashion. In that circumstance, the insurance company would be estopped from denying your claim for failing to comply with the condition.
 

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Terms within the contract that are not expressly defined are typically given their dictionary definition by any court that may be called upon to interpret the contract. A rule of evidence that is important in regard to contract interpretation is the parol evidence rule. It declares that statements made by the parties prior to the signing of the contract will not be considered by a court in a contract dispute. The rule is well recognized and may be further strengthened by language within the contract itself that expressly says that the parties are only bound by the terms of the contract as set forth in the four corners of the document. The logic behind the parol evidence rule is that parties should not rely on precontract statements to define the intent of their agreement when, in fact, they have gone to the pains of putting their agreement in writing with the understanding that the writing constitutes the entire agreement.

The parol evidence rule may seem to be somewhat inconsistent with the example of how a party was fraudulently induced to enter into a contract for the sale of a home. The parol evidence rule, however, should not be confused with that instance of fraud. Fraudulent statements that are made to induce a party to enter into a contract are not deemed to be governed by the parol evidence rule. Fraudulent statements may be a basis for setting aside the contract because those fraudulent statements undermine the integrity and fairness of the agreement.

The meaning of a contract may also be garnered from looking at the prior course of dealing between the parties to this contract. That is, their prior course of dealing may give some clue as to what they intended the contract to mean.
 

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There are several other defenses that can conceivably be asserted to a claim to enforce a contract. For instance, if one of the parties was a minor or suffering from mental incompetency at the time, then those facts may be defenses to the validity of the contract. This defense is called lack of capacity to contract. Likewise, if there was a mutual mistake by the parties, then that could void a contract on the theory that there has been no meeting of the minds and therefore no agreement.

Example: A mutual mistake might arise in a circumstance in which the seller offers to sell his 1964 Cadillac that is parked in front of his home and the purchaser agrees to buy the 1964 Cadillac parked in front of the home. However, it turns out that there were in fact two 1964 Cadillacs parked in front of this home and the parties were referring to different vehicles when they entered into what they thought was their agreement. In that type of circumstance, there has been no meeting of the minds because the parties were mutually mistaken as to which vehicle was being sold.

It is not unheard of that in the course of defending a contract claim, the defendant may claim that he or she was induced to enter into the contract due to fraud on the part of the other party. Fraud can be loosely defined as a misrepresentation of a material fact.

Example: You want to buy a house. You ask the sellers whether they have ever had a wet basement. The sellers tell you that they have never had a wet basement even though they know full well that it is untrue. That misrepresentation may constitute fraud.

If you then proceed to buy the house, based upon the false representation and find out after the sale that in fact the basement does leak, then you may sue the sellers for the fraud. To make your claim, you must have been induced to enter into the contract and to have suffered certain damages. In this case, you bought a house that was faulty and therefore, worth less than what you paid.

Other conceivable defenses to a contract claim could come in the formof duress, undue influence, impossibility, and frustration. Duress is simply a threat or perceived threat to induce a party to enter into a contract. If someone puts a gun to your head and makes you sign a contract, that contract is not enforceable because you were operating under duress. Duress may also come in a number of other forms that may be considerably more subtle.

Undue influence arises when certain persons may have a great deal of control over a party and utilize that control in order to unduly influence a person to enter into a contract.

Example: Betty holds a power of attorney for her next door neighbor who is 94. The power of attorney authorizes Betty to conduct all of the financial affairs for her neighbor. If Betty encourages her next door neighbor to sign a contract selling his home for $100,000 under market value, that would be an example of undue influence. It would be a basis for setting aside that contract of sale.

Impossibility arises where it truly becomes impossible to perform a contract due to something that is unforeseen by the parties. For instance, the destruction of the World Trade Center made the performance of the leases for that building impossible. A related concept is that of frustration of purpose. For instance, during the inauguration of a new president, there may be certain contracts entered into. If the inauguration, however, is canceled, then the purpose of those contracts has been frustrated. If you were one of the suppliers who agreed to provide the grandstands for the inauguration, the U. S. Government may be able to void the contract with you since the inauguration is not going forward.

Most contracts can and should be brief and straightforward.

If you have ever read a multi-page contract drafted by an attorney, you probably found it to be a nightmarish experience. Although complicated business transactions call for contracts that are precise and complex, most contracts can and should be brief and straightforward. To the extent that there is any ambiguity in a contract, typically that ambiguity is interpreted against the party that drafted the contract.
 

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Contracts may either be in writing or oral. Whether the contract is oral or in writing, it is equally valid, although there may be problems enforcing certain types of contracts that are not in writing. Most states have adopted, in some form or another, a law know as the Statute of Frauds. The Statute of Frauds is a law that is designed to minimize the possibility of fraudulent behavior in certain types of transactions. For instance, a person buying or selling land cannot enforce a contract of sale for land unless that contract is in writing. The logic behind that requirement is that over the years, there has been so much litigation relating to oral contracts for the sale of land and allegations of fraudulent behavior that those types of contracts must be in writing and be signed by the person against whom the agreement is being enforced. That type of requirement is designed to minimize the likelihood of there being any fraud perpetrated against the buyer. If the seller signs the agreement and agrees to sell the land for a certain price and all of that is confirmed in writing, then the chance of that transaction being fraudulent is considerably reduced.

The Statute of Frauds is designed to minimize the possibility of fraudulent behavior.

Other types of transactions that typically need to be in writing to be enforcable are transactions that involve pledging the credit of another for a transaction, agreements to marry, agreements to pay real estate brokerage commissions, agreements that cannot be performed within one year, and agreements to lend money or extend credit for a significant amount, such as $25,000 or more. All of those types of transactions are ones that over the years have been found to be the subject of frequent litigation with allegations being made of fraud. Because of that, many states have found it best to require those types of transactions be put in writing and signed by the party against whom enforcement of the contract is being sought.
 

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Contracts are the foundation upon which our economic system is built. They are of such importance that a body of law has developed known as the Uniform Commercial Code. This uniform law has been adopted by most states in the Union—either in whole or in part—and lays out certain principles dealing with commercial transactions (contracts). The Uniform Commercial Code, in large measure, governs the conduct between merchants and other parties dealing with merchants.

The Uniform Commercial Code establishes legal principles that control many business transactions. For instance, when you buy a piece of exercise equipment from a sporting goods store, your legal right to return that equipment, to get replacement parts, or to file suit for a problem related to the equipment are all governed both by the warranty that comes with the product and also by the Uniform Commercial Code.

The Uniform Commercial Code also governs transactions involving security instruments and negotiable instruments. A security instrument is a document (typically filed at a courthouse or other public repository) that is designed to put the public on notice that a particular item of personal property, which may be found at a particular location, is security for a debt of the owner of that property to another person.

A security instrument in that regard is similar to a mortgage on your home. A mortgage is a type of security instrument that is designed to secure the mortgage lender in the event you do not make your monthly mortgage payments. If you fail to make your monthly mortgage payments, then the lender has the right to foreclose and to sell your property at public auction.

The Uniform Commercial Code also deals with negotiable instruments. A negotiable instrument is any instrument that may be negotiated or sold for value. For instance, a promissory note wherein one person promises to pay another a fixed amount of money is a negotiable instrument. Likewise, a check is a negotiable instrument. The Uniform Commercial Code deals with the law governing those types of instruments.
 

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Most people have probably had the experience of attending an auction. The conduct of an auctioneer is similar to negotiating a contract. The auctioneer is putting a product on the market for sale and by announcing certain figures, he or she is requesting offers to purchase the item for that price. If you raise your hand and offer the number that the auctioneer has mentioned, then that is deemed to be an offer for the consideration as stated by the auctioneer. When the auctioneer drops the gavel on the highest offer, that is deemed to be an acceptance of that last offer. As part of any auction, there may also be certain published conditions that are made part of the auction. If that is so, then by bidding at the auction, you have agreed to those terms.

 

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Consideration is a very elusive, but important concept. An easy way to think of it is as the tit for tat, the quid pro quo or, to put it another way, it is simply the meat of the agreement. If there is no consideration, then there is no contract. Going back to the example of the house painting, if Joe wrote you a letter offering to paint your house, but never stated when he would finish it or what compensation he expected and you simply wrote back saying that those terms were agreeable, that would probably not be a contract because there is no consideration stated.

Typically the performance of a preexisting legal duty cannot serve as consideration for a contract. For instance, if you are already under a duty to perform a certain act and you then promise to do it as the consideration for a contract, that consideration is insufficient.

Forbearance to do a certain act may serve as consideration.

Example: If Connie agrees not to sue you for payment of $100, then that is sufficient consideration to make a contract enforceable. That forbearance serves as a legal detriment and therefore is sufficient consideration.

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The way that an agreement comes about is generally through an offer being made by one party and then that offer being accepted by the other party.

Example: If Joe were to send you a letter offering to paint your house for one hundred dollars with such work to be accomplished by a certain date and you then wrote on the bottom of the letter that these terms were agreeable and sent that back to Joe, that letter would constitute a written contract. The offer was in the form of the letter. The acceptance came in the form of your acknowledging the agreement. The consideration for the agreement is the one hundred dollars to be paid for the services rendered.

The offer may come in two different forms—written or oral form. The more precise the terms of the offer, the better off the parties will be in establishing the certainty of their agreement. A common example of an offer is an advertisement that may appear in the newspaper by a car dealer offering to sell a used Toyota Camry for $17,500.

Suppose you were to see that advertisement and go to the dealership prepared to pay $17,500. If the dealer then told you that there were other terms that were not stated in the advertisement (handling charges, processing fees and other such fees), you could rightfully tell the dealer that it made an offer to sell this vehicle for $17,500 and you are prepared to pay it. The dealer is obliged to sell the vehicle to you for that amount. (Of course on top of that $17,500 would be any taxes that are mandated by law.) The advertisement constituted an offer and you accepted the offer for the agreed upon consideration of $17,500.

If, on the other hand, you had come into the dealership and rather than offering $17,500, you offered to pay $17,000 for the vehicle, then that would be a counter offer. A counter offer is, by its very terms, a rejection of the original offer. The dealership would be free to reject your counter offer.

There are several different ways that an offer may be framed. The person making the offer may state certain terms and conditions that have to be met in order for the offer to be accepted. If those terms and conditions are not met, then there cannot be a valid acceptance of the offer.
 

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Life is about agreements. The materials in this section explore these agreements.

Agreements you make with others are often called contracts, but there are several variations on this. You have employment contracts and marital contracts; your lease is a contract, as are arrangements with creditors.

The first two chapters of this section cover the laws of contracts and torts. This serves as an introduction to the remaining chapters that cover specific areas in which the principles of contract law and tort law are applied.

A contract is an agreement between two persons to either do something or not to do something in exchange for some form of consideration. An agreement may come in several different forms. The agreement may be implied as a result of the conduct of the parties. On the other hand, the agreement may be expressed, meaning that the parties have expressly stated what their intentions are and what they wish to obtain as a result of the agreement. An expressed contract may be in writing or it may be oral. Either type of contract is equally enforceable in most instances, although a written contract is always preferable because it clearly sets forth the terms of the agreement. An oral contract is always subject to dispute, because the parties may have different recollections of exactly what they agreed to.

A contract may be in writing or it may be oral.

Sometimes people classify contracts as unilateral or bilateral. A unilateral contract might be most easily thought of as one in which the offer can be accepted only by doing some act. For instance, if your neighbor offers a $100 reward for the return of his cat, then you can accept that offer only by returning the cat.

A bilateral contract, on the other hand, is one where the giving of a promise is the expected consideration. Most contracts are bilateral. For example, you agree to buy my car for $100. You have agreed to do something (pay me $100) and I have agreed to do something (sell you my car).

 

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Any party to a lawsuit or a criminal proceeding has the authority to subpoena witnesses. The power to subpoena witnesses is a basic constitutional right, since witnesses are the primary form by which evidence is presented. If parties could not present witnesses, then they could not present evidence in support of their case. The way a witness is compelled to appear in court is by means of a subpoena. The word subpoena literally means under penalty.

A subpoena is a court directive telling a person to appear at a particular place and time for the purposes of giving testimony.

A subpoena is a court directive telling a person to appear at a particular place and time for the purposes of giving testimony. A subpoena may be for you to appear at a trial or at a deposition. (A deposition is a means of discovery conducted in most civil litigation, wherein the attorneys have the opportunity to ask witnesses what they know about a particular event relevant to that lawsuit.)

If you should be served with a subpoena, the subpoena will typically indicate the name, address, and phone number of the attorney that requested you to appear. You should feel free to call that attorney and find out why you have been subpoenaed. If the date and time of the subpoena is not convenient for you, then you should inquire as to whether that date and time can be changed. If the attorney tells you that the date and time cannot be changed and you simply are not able to appear, then you need to bring that to the attention of the court immediately so the issue can be resolved by the court.

If you are subpoenaed to appear for trial or for a deposition, the local rules of the court may require that the attorney pay you a fee for your traveling expenses and for time that you lose from work. That is something that is governed by law and something that you should inquire into.

Sometimes witnesses ask whether they can ask questions during the course of the proceeding. Typically the answer to that question is “no.” You have been subpoenaed to give information and not to make inquiries on your own. That does not mean that during the course of a proceeding you may not stop and ask a question. If a bona fide question occurs to you, you should ask it. You may be told that your question cannot be answered or you may be provided with an appropriate answer.

The purpose of your appearing to testify is to respond to particular questions that are asked of you by the attorneys, the parties, or the court. Once that questioning has been completed, you will be excused and allowed to proceed about your normal routine. In some instances, after you have finished testifying, the judge may tell you that you have to remain in the courthouse because you may be called again as a witness. If that presents a problem for you as far as your own scheduling, you need to bring that to the attention of the court immediately so that the issue can be dealt with. Most judges and attorneys are willing to work with witnesses in order to accommodate their schedules. The burden, however, is upon the witness to bring those issues to the attention of the court or the attorneys.
 

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As citizens, we all have an obligation to serve as jurors when summoned. Your summons to appear as a juror may come from a state court or from a federal court. Jurors are chosen by different means in different jurisdictions. Some jurisdictions draw from records of the Department of Motor Vehicles, property owner records, and voting records. Other jurisdictions may draw from only one or two of these things.

Lawyers and judges have debated the merits of how jurors should be chosen for many years. Most judges probably think that jurors should be drawn from voting lists and also from property ownership roles because that tends to produce a group of potential jurors that are more involved in the community. People that are simply listed with the Department of Motor Vehicles as being licensed drivers but who are not voters or property owners may be less involved in their community. The merits of the respective positions on that issue lay in the eyes of the beholder.

In any event, if you are called as a juror, you must respond unless you are subject to one of the exemptions that applies in your jurisdiction. Over the last several years, the number of exemptions that have applied has been narrowed in most states. It used to be that the exemptions were so broad that the court frequently was left with the only eligible jurors being housewives. That is not in any way to diminish the ability of housewives to decide the merits of litigation, but the goal of a jury trial is to provide a trial by one’s peers. That is not accomplished if the jury is limited to a narrow segment of the community.

When you are called as a juror, you will have the opportunity to state any particular problems you may have with serving. In most instances, however, unless the reason you cannot serve is extremely compelling and virtually of an emergency nature, then your excuse for not serving will likely be rejected by the court.

Your initial selection for service in a courtroom is a matter of a random draw. A certain number of jurors will be sent to a particular courtroom assigned to a judge who has been assigned a particular case. Once you are sent to that courtroom, you may be asked certain preliminary questions that are designed to determine whether there is something that would automatically disqualify you from jury service. Then the lawyers (or, in some cases, the judge) will have the opportunity to conduct what is called voir dire, a questioning process to determine whether you have any particular bias or interest in the outcome of the case. If you do, you may be dismissed from service for that reason.

If a case is going to last for several days, alternate jurors may be chosen. Typically, those alternate jurors will not be identified to the jury members themselves, since the knowledge that you were an alternate may affect the level of attention that you would apply to the case. Once all of the evidence is concluded and the closing arguments have been completed, the alternate
jurors may be excused.

One thing that frequently comes up during the course of jury service is whether jurors are allowed to take notes or to ask questions during the proceeding. That is a matter of discretion of the individual judge and can vary dramatically from state to state and from courtroom to courtroom. Some judges allow jurors to take notes; others do not. Some judges allow jurors to ask questions, while others do not.

Some judges allow jurors to take notes; others do not.

The logic behind the jury system is this: since the parties themselves are not able to resolve the particular dispute that has been brought to the courtroom, the best way to resolve the dispute is to have a group of unbiased citizens hear the evidence (in an objective fashion) and then decide that case fairly, based solely upon the evidence presented to them in the courtroom. Trial lawyers will tell you that the jury system is the great equalizer. The poorest citizen in this country can sue the mightiest corporation, and when those two parties come before a jury, they are equal. The jury is to treat each party with the same respect and attention.

The proponents of tort reform maintain that the jury system is a system that has gone awry. They maintain that jurors frequently award outlandish sums for ridiculous cases. Although it is not unheard of that juries do sometimes runaway, that is very much the exception. Even if the jury does do something that is contrary to the evidence and the law as given to them, the trial judge always has the authority to correct that by reversing the jury verdict in a criminal case if the defendant was wrongfully convicted or in a civil case by reducing the amount of the verdict if it is too high.
 

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Most states are concerned about responsibility of parents for the actions of their children. Many states have enacted laws imposing liability upon the parents for misconduct of their children resulting in property damage. For instance, if your juvenile eggs the next door neighbor’s home, resulting in property damage, you may be liable for that damage as a parent. However, the states that have enacted such laws typically put a cap on the extent of the parental liability in terms of dollars.
 

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Teenagers are all interested in acquiring a drivers’ license. Many of them operate under the misperception that they have a right to a drivers’ license. No one has a right to a driver’s license. The possession of a driver’s license is a privilege. It can be taken away from any holder by the state based upon infractions. In the case of juveniles, most states impose more stringent requirements in terms of taking a driver education course and operating under the supervision of an adult driver for a period of time before that person can actually get a drivers license. Once the driver’s license is issued, there is typically a probationary-type period in which the license can be taken away from that juvenile for any serious infraction. In that regard, juveniles are treated somewhat differently than adults.
 

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Teenagers who are under age 18 are citizens, and therefore—at least theoretically—have many of the same rights as adult citizens. However, in most states, minors are considered to be legally incompetent, which means they cannot enter into contractual relationships and, in large measure, are subject to the control of parents. However, that does not mean their rights can be trampled on. For instance, in regard to school related activities, juveniles do have certain due process rights in terms of being informed of any charges that are made against them and having a right to confront those charges through some sort of hearing process. The U.S. Supreme Court has stated that the schools do have a great deal of latitude in terms of maintaining proper discipline and decorum on school property. Therefore, privacy rights that may apply to people in their own home do not necessarily apply in a public school.

Example: If a student is hoarding drugs in his locker, he probably does not have a privacy right to that locker. The locker is not his property—it is public property, and he is violating the law by storing drugs in that locker. Therefore, if the school officials decide to go into that locker without his consent, they can do so.

Following up on that same example, suppose that a teacher accuses a student of hoarding drugs in his locker but there is no direct proof of that. Is it appropriate to put a memorandum in the student’s file stating that accusation? It probably would not be appropriate to do so and at the very least the student would have the right to certain procedural due process rights consisting of the right to know what the charge is that is being made against him and then the right to be heard on that charge. In this particular example, the student would have a right to know what the content is of that accusation from the teacher and then would have a right to make a presentation in front of the principal or other appropriate school official as to why that allegation is not true.

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Juvenile Court is sometimes referred to by lawyers and law enforcement officers as Kiddie Court. The Juvenile Court in some jurisdictions, however, can be more than simply what the name may imply. In some jurisdictions, it may actually be a type of Family Court wherein all different types of family disputes may be resolved. This chapter will not deal with family law issues but rather simply deal with issues of juvenile justice.

The logic behind the juvenile court system in the United States is that because juveniles are underage, they should be dealt with in a different fashion than adults. In many jurisdictions, juvenile offenses are not even referred to as criminal offenses. Juvenile records in most jurisdictions are strictly confidential and are not subject to public access either by means of subpoena or other inquiry. As such, a juvenile arrested and processed through the Juvenile Court does not have to report that offense on a job application or other type of inquiry unless directly asked about it since the inquiry itself is not going to be subject to any public confirmation.

A juvenile arrested and processed through the juvenile court system does not have to report that offense on a job application.

Proceedings in Juvenile Court are all conducted by a judge with no jury present. For certain types of offenses, however, a juvenile may be transferred to the adult system and may be tried as an adult with all the consequences that might apply to an adult. (That type of treatment is generally reserved for more serious offenses.)

An offense in Juvenile Court is generally handled in a somewhat informal fashion. There may be a prosecutor present in Juvenile Court. That prosecutor represents the interest of the government or the victim. The prosecutor may present evidence in front of the judge who then hears from the defense and renders a decision. That decision normally consists of a finding of whether the juvenile is involved and if so there may be some punishment imposed. That punishment may consist simply of a monetary fine, performing some community service, or for more extreme circumstances, confinement to a juvenile home for a period of time.

The thrust of the juvenile court system is to be instructive and rehabilitative—to instruct the juvenile as to the error of his or her ways and to assist him or her with rehabilitation. That is dramatically different from the thrust of the adult court system, which may have an element of rehabilitation about it, but is more oriented toward a finding of guilt or innocence and then punishing the guilty.

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A related defense in property crimes is protection of property. As a general rule, a person can use whatever force, short of deadly force, that reasonably appears to be necessary to protect property. A classic case in that regard involved the homeowner who laid a trap in his home consisting of a spring gun that fired when the burglar entered the front door. Since a spring gun automatically fires, anyone entering the house is at risk. And since human life is valued over property, the homeowner cannot claim defense of property when someone was killed entering the house.

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The ultimate defense to a crime against a person is self-defense. As a general rule, a person may use whatever force is reasonably necessary to prevent immediate and unlawful harm to him- or herself. Some jurisdictions have adopted the retreat rule that requires a person who can safely retreat to do so before using deadly force.

In general, the defense of self-defense permits a person to employ reasonable, nondeadly force to resist an unlawful arrest. However, as a practical matter, resisting an unlawful arrest is a risky maneuver because it could result in worse physical harm to the accused.

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Another defense that may be raised to some criminal violations is that of vagueness. The U.S. Constitution precludes punishing a person under a statute that is too vague to be understood. A statute should be sufficiently clear that a reasonable person could determine what conduct is forbidden and the statute should be sufficiently clear as to prevent arbitrary enforcement by the police. Loitering statutes over the years have been subject to tests for vagueness. For example, if they preclude any person from being on a public street at any time, then they may be subject to constitutional challenges for vagueness.

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Entrapment is a much more difficult defense. The purpose of the entrapment defense is to prevent the government from manufacturing a crime. An undercover police officer who offers to purchase narcotics from someone who he or she believes to be a pusher is not guilty of entrapment. However, an undercover police officer who applies immense pressure to a suspect to sell him or her narcotics by establishing a friendship with him or her and then playing on that friendship to overcome that person’s unwillingness to sell narcotics probably would be guilty of entrapment.

The purpose of the entrapment defense is to prevent the government from manufacturing a crime.

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A woman who is threatened with sexual assault, and who then breaks down a neighbor’s front door to seek refuge is not guilty of burglary because her conduct is governed by the defense of necessity. She needed to find safety.
 

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Coercion arises when there is duress. The bank teller who turns over the bank’s money to the robber is acting under duress and therefore is not guilty of larceny in removing the money from the drawer. He or she is coerced in releasing the money.
 

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Another defense that can be raised is intoxication. If a crime requires specific intent, then a person who is intoxicated may be incapable of forming that specific intent.
 

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There are several defenses that can be raised in a criminal case.

One of the more newsworthy defenses is that of insanity. Different states have adopted different rules as to how insanity is to be determined.

Some states adopt a simple test known as the M’Naghten rule, which is simply a determination of whether the perpetrator was able to distinguish right from wrong. Other states adopt the irresistible impulse test that may apply when a defendant knew he or she was doing wrong, but the status of his or her mind prevented him or her from controlling his or her conduct—he or she was overtaken by an irresistible impulse to engage in that behavior.

The District of Columbia adopted the Durham test several years ago. It provides that an accused is not criminally responsible if his or her unlawful act was the product of mental disease or mental defect. These types of insanity defenses are generally the subject of a good deal of controversy and normally involve expert testimony from psychiatrists or other mental health professionals.

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Prosecutors over the last several years have become more daring in bringing conspiracy charges against persons involved in criminal behavior. Conspiracy is an agreement between two or more persons to commit an unlawful act or to commit a lawful act, in an unlawful manner, and one or more persons commit an overt act in furtherance of the conspiracy. In a conspiracy case, the agreement itself is the actus reus and the intent to commit the unlawful act is the mens rea.

Suppose you and I agree to rob a bank. The agreement alone does not constitute a conspiracy. If, however, I go out and buy a handgun that is to be used in the robbery, at that point I have committed an overt act to pursue the conspiracy and at that point I may be guilty of the crime of conspiracy.
 

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The law also recognizes principals and accessories in criminal activity. The getaway man (driver) in a bank robbery who does not actually go into the bank is an accessory. That person probably will be punished similarly as the principals, who were actually in the bank. If, however, a person not even at the scene of the bank robbery assists the bank robbers in getting the getaway vehicle, knowing that it was to be used for that purpose, then he or she also may be an accessory. An accessory in that context probably would not be subject to the same punishment as a principal.

A person could also become an accessory by assisting the bank robbers in eluding the police. In that event, he or she would be an accessory after the fact. Again, in that type of circumstance, he or she probably would not be subject to the same punishment as the principals.

More difficult cases arise when a person is present at the time of a crime under circumstances that suggest approval. Normally, this is not sufficient to convict a person of a criminal violation. One exception to this would be an instance in which the defendant is under a duty to act.

Example: If a father stands by idly while his minor son attacks a third person, he could—at least in some states—be guilty of a criminal violation.

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Another type of criminal behavior is solicitation. Solicitation involves a specific intent to engage in a particular type of criminal conduct. If I offer to pay you $50,000 to kill my business partner, that constitutes solicitation.

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The mere attempt to commit a crime may also be a crime. An attempt to commit a crime normally involves a specific intent. For instance, attempted murder involves the specific intent to kill. If someone’s intent, however, is only to cause serious bodily harm, then he or she cannot be guilty of attempted murder. Because attempt requires a specific intent, it is impossible to attempt a crime that by definition cannot be committed intentionally. For example, involuntary manslaughter cannot be attempted because it requires the wrongdoer to cause death unintentionally.

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Aside from intent, another essential element of most criminal violations is that of actus reus, meaning the guilty act. If a person merely forms the intent to kill someone, but never does anything to actually implement it, then he or she has not committed any crime. If, however, that person forms the intent, goes out and purchases the weapon, and enters into a conspiracy to use that weapon to kill someone, then he or she may be guilty of a crime. In order to constitute actus reus, the act must be voluntary.

These two critical elements of mens rea and actus reus must occur concurrently.

Example: If Mark intentionally shoots to kill you, but misses and later accidentally kills you, he is not guilty of murder. At the time that Mark committed the act (actus reus) of accidentally killing you, he no longer had the intent (mens rea) of actually killing you.

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STUDENT RAPED, KILLED IN DORM: FAILURE TO TIMELY NOTIFY OF NATURE OF DEATH; INADEQUATE SECURITY; EMOTIONAL DISTRESS; SETTLEMENT

Doe, 22, was raped and killed in a dorm room at the university she attended. When school officials first notified her parents, they told them the death seemed to be accidental even though the circumstances—she was found half nude with bruising and a pillow covering her face—indicated there had been foul play. Neither Doe’s parents nor the campus community was notified the death was a homicide until 10 weeks after she died. The university was fined $357,000 by the federal government for its failure to timely notify. Doe’s parents suffered severe emotional distress when the circumstances were finally revealed to them.

Doe’s parents, on behalf of her estate, claimed the university violated federal law by not immediately notifying the community of the nature of the crime. Doe’s parents also claimed the university failed to have adequate security, as there had been an increase in crime on campus in the two years before Doe’s death, but the school did not address the problem.

The parties settled for $2.5 million before suit was filed, paid by the university’s insurer.

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EXCULPATORY CLAUSE IN LEASE ABSOLVING LANDLORD OF LIABILITY FOR ANY OCCURRENCE ON RENTAL PROPERTY IS OVERLY BROAD, UNENFORCEABLE.

The Supreme Court of Idaho held that exculpatory clause in a lease that absolves a landlord of liability for any occurrence on the rental premises is overly broad and unenforceable.

Here, Jesse sued the owner of her apartment complex for failure to maintain the premises after she fell into a sinkhole in a planting area on the property. A trial court granted defendant summary judgment, finding that an exculpatory clause in plaintiff’s lease immunized him from liability.

Reversing, the state high court first reviewed a landlord’s common-law duties to a tenant as well as those under the state’s implied warranty of habitability law, Idaho Code Ann. §6-320. A landlord must exercise reasonable care to protect a tenant, and this includes the duty to maintain the premises in a condition not hazardous to the tenant’s health or safety, the court said. Noting that a landlord has the freedom to contract away certain duties and liabilities, the court pointed out, however, that such exculpatory clauses must “speak clearly and directly” to the injury-causing conduct.

There are two public policy exceptions to this rule exempting a party from liability for negligence, the court said. The first is when one of the parties is at an obvious disadvantage in bargaining power, and the second is when a public duty is involved. When the state legislature passed §6-320, it established such a public duty of landlords to maintain their premises—areas covered by a lease—in nonhazardous conditions. The lease at issue here does not cover the planting area where plaintiff fell, and public policy does not require areas not necessary for habitation to be subject to the same nonhazardous conditions requirements, the court said. Thus, the only question is whether the exculpatory clause is enforceable as written.

Looking to the language of the clause, which states that a landlord is not liable for any occurrence anywhere on the property, the court found it to be too broad because it does not speak “clearly and directly” to what conduct it immunizes.

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In the chapter on tort law, strict liability and vicarious liability are discussed. To some extent, those concepts are also recognized in criminal law. Strict liability arises when a conviction can be obtained merely upon proof that the defendant perpetrated an act forbidden by statute. A common type of strict liability offense is a traffic violation. If you run a stop sign, it makes no difference what your intent was. The mere act of running the stop sign makes you guilty of a violation.

Vicarious liability can arise in the criminal context when the conduct of another person can be attributed to you.

Example: If Debbie runs a restaurant and an employee of hers sells alcohol to a minor, then she may be liable under the local liquor laws.

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An essential element of a criminal offense is what is known as mens rea or intent. Different crimes may require different levels of intent. There are a variety of different ways that the courts have addressed these levels of intent. Two common distinctions, though somewhat confusing, are specific intent and general intent. A specific intent crime is one that calls for a particular state of mind in order to satisfy the elements of that offense.

Different crimes may require different levels of intent.

For instance, in first degree murder there must be premeditation—a specific intent to kill. In second degree murder, however, there need not be a specific intent to kill. There may simply be a general intent. If a person fires a gun into a crowd of strangers, with no intent to kill anyone, he or she could be guilty of second degree murder for acting recklessly.

Another aspect of intent is what is referred to as transferred intent. Transferred intent arises when a person intends to harm one victim but in fact harms another.

Example: If Bobby throws a rock at you and rather than hitting you, hits your next door neighbor, he may still be guilty of the crime of assault and battery even though he did not intend to hit your neighbor. His intent is deemed to be transferred from you to the neighbor.

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