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CIVIL PROCEDURE
То start a civil case, a pleading must be filed with the court, called a complaint, naming the party against whom the case is brought (the defendant). The person or organization filing the case is called the plaintiff. Most civil cases are prepared and filed by an attorney paid for by the plaintiff. The complaint must state a cause of action (there must be enough set forth that a defendant can know what he is accused of having done). Only some civil cases must be verified (sworn to), and there is a court cost payable at the time of filing a civil case.
Next a summons is issued, inviting defendant to come to court. The summons tells the defendant how many days he has to make appearance and file an answer. If he does not, a default judgment may be entered against him. A defendant can defend without a lawyer.
Both parties have a right to jury trial but they must file a paper asking for a jury or they lose the right. There is not, generally, a right to speedy trial in civil cases.
In the U.S., the first question in civil procedure is: “What court do I want?" As we have 50 state law and procedure systems plus one federal system picking the right court is a problem. Today there is little, if any, need for this diversity, we could easily have one law and procedure for the entire nation. You select the court based upon jurisdiction: General, Special, and Exclusive (within each of which is in personam, in rem, and quasi in rem).
General Jurisdiction means that a court can consider any type of case. Special Jurisdiction means that a court only handles one type of case: maybe juvenile; family (divorces, adoptions, etc.); criminal; bankruptcy. Exclusive Jurisdiction means that this is the only court in which the type of case may be filed.
In personam jurisdiction means that the court has power over the person. It is the highest and best form of jurisdiction for the reason that if you win judgment, it has full faith and credit in all other states and can be easily enforced.
In rem jurisdiction means the court has jurisdiction over property (real or personal) of the other party. Thus a judgment can be entered effecting that property and be binding against the defendant even if the defendant is not in the jurisdiction of the court (in personam).
Quasi in rem means that jurisdiction over the property is used to create in personam jurisdiction if certain other factors are present called substantial contacts with the jurisdiction.
A suit filed in a state court may be removed to federal court in certain circumstances, and a federal court may send a case to a state court in certain circumstances. A state court in county A may order a case transferred to a state court in county Вunder non convenes forum doctrine, but one state cannot send to another state. If we had one uniform law for the entire nation, only the question of non convenes forum would exist, all other questions of jurisdiction would disappear. The issue of jurisdiction grows out of state sovereignty: which state has sufficient contacts to be able to exercise control over the citizen of another state.
Picking the right court is important; because if you pick the wrong court, your judgment may have little, or even no, value. And while you are searching for the right court, the statute of limitations might expire and you would have no case anywhere.
Once served with summons, a defendant must appear and file an answer and admit, deny, claim lack of information, or request to make; more specific each allegation of the complaint.
Defendant may file a counter-claim against plaintiff for any other claim, even if totally unrelated to plaintiffs case (even a tort action countering a contract action). Defendant may file a cross-claim against another defendant or a single one of multiple plaintiffs. A defendant can file a third-party claim against someone not a party to the case who defendant says will be liable to defendant if plaintiff wins. Defendant can request the court for permission to interplead a party, who defendant thinks may be affected by the case and whose presence is needed for a full and final determination. Defendant can also file affirmative defenses: such as set-off. In some cases if defendant has an affirmative defense, counter-claim, or cross-claim, and does not file it, he loses that claim for all time.
At any time before trial, either party may file a motion for judgment on the pleadings or motion for summary judgment (The first allows the court to look at the pleadings and say if a case exists. The second allows the court to look at the pleadings plus evidence submitted by discovery or affidavit (a sworn statement of a person).
At any time after a case has begun, parties may commence discovery of what the evidence is. Discovery is self-governing in that the court does thing unless a party objects to some form of discovery proposed by other party. Types of discovery are: depositions; deposition by written examination; or requester for admissions, examination or copying.
Prior to the trial, the judge will hold a pre-trial conference with the attorneys (and sometime the parties). At the end of the hearing, an order will be entered, listing the issues for the trial. Any and all issues listed in pleadings are merged into this order which then controls the rest of case. The judge can also take the various cross and counter cases and create entire new cases for them so that they are tried separately. The vast majority of all civil cases in the U.S., like the vast majority all criminal cases, are not tried — they are settled. The problem is that parties rarely face each other: all bargaining is done by the attorneys. Thus, the parties have no ownership in the settlement, even though they prove the settlement, and they never get to speak to each other, so all their feelings and emotions are still inside them, eating at them. As in criminal cases, we need face to face confrontation of the parties in civil es for any true resolution of conflict, or healing, to take place.
HISTORICAL DEVELOPMENT OF ANGLO-AMERICAN LAW
Before the Norman Conquest of England in 1066 AD, law had moved away from blood feud to trial by combat because of pressures from the barons and community. But there was no uniformity in the country.
Under the Normans, the king began to appoint reeves in each shire (sheriff) to hear and decide disputes among the people and to enforce the king's interests. The king took to sending judges about the country to hear appeals. Thus developed a "Common Law" for all of England.
The Common Law is a case-by-case process of development of three branches of law (Criminal, Civil, and Equity) and of three sub-branches of Civil Law (Property, Torts, and Contract). For a nation with little or no Civil Law, knowledge of historical Common Law development allows a person harmed to bring a case not under limited statutory law of a nation at the moment, but under the ancient concepts of the Common Law, arguing cases from England and the US. Though the Common Law will have no binding effect (precedent), you hope a judge will listen, consider, and adopt the truths presented. So you would actually create Common Law for the future of your nation.
In 1215 AD, the barons forced the king to submit to the law of the land by the Magna Charter. By this, the rule of law became established, that is, "no man is above the law and all are equal before the law".
With time, the reeves and judges bound themselves to the prior decisions by a concept of stare decisis, the prior case holds or precedent. Soon the system became so bound that justice seemed lost. People began to petition the king through his chief religious officer, the Chancellor, for relief. Thus developed the Equity Courts.
Civil courts handled matters of torts (personal wrongs resulting from breach of duty), crimes (breaches of the king's peace), property violations, and contracts and used the jury trial. Equity did not use the jury.
To America came a well-developed law and system, and a commitment to rule of law as a means to have and preserve freedom. The colonists also came as commercial units used to private property ownership and ownership of the means of production. And they came with a belief in religious liberty and a high distrust of governmental power. They saw rights and power as bestowed by God to people. In turn, people would have to delegate some of their powers to government to make rule of law work. Our form of government is:
1) Constitutional; there is a central document which defines government;
2) Separated; in types of branches and within a given branch (a horizontal concept);
3) Federated; not all power is at any one level (a vertical concept);
4) Delegated; the people delegate somebody to the States and the States delegate to the National;
5) Representational.
The more complex the governmental system, the more laws needed; a dictatorship needs less laws than democracy. The US has multiple levels of legal systems: International; Federal; State; County; City. Each has its own laws and system subject to some control by next higher level; higher levels may be limited by lower levels if not all State authority was "delegated" to Federal.
The US has three branches of government:
Executive (enforces laws; contains the bureaucracy or employees of the executive branch): president; governor; mayor, manager, or council.
Legislative (writes laws). In counties and municipalities, legislative branch often called Council or Commissioners.
Judicial (interprets the law). Municipalities do not always have courts.
Jurisdiction is the word which defines the types of cases any particular court may process: territorial (by the place of the act or by place of residence of one or more of the parties); subject matter (limitation of dollar amount, punishment level, or type of case); in rem or in personam (over property or a person). Jurisdiction is defined by statutes or constitutions.
Judges may be elected or appointed and, with rare exceptions, must be lawyers.
The issue is not what is the law as much as it is what is the result. Result is a combination of a process, the way in which the game is played, and an individual sense of how the matter ended (justly or unjustly).
CRIMINAL LAW: The Issue of Public Wrongs
At earliest English law, because of a lack of legislative law and be cause of a lack of a place and process to turn to, people were left to blood feuds for resolution of conflict. You hurt me, I killed you. Then your uncle killed me, so my dad killed your dad, etc.
The community got tired of this. The local baron was worried about the drain on his fighting force. And local religious leaders had a hard time putting a feud into theologically permissive behavior.
So, a "local law" began to appear, with an incentive to people to settle cases by compensation. People in conflict were "invited" to come and sit with others of a community to seek resolution of the conflict.
When the parties could not agree and no one could prove "truth", they were left without a remedy. To have a law is wonderful. To have a process is better. But no remedy means a law or process is of little value.
To determine truth, trial by "ordeal", "combat", or "oaths" was in stituted. In "combat", each party got a sword, and fought it out under the theory that God would protect the innocent one. If a person was found "guilty", he, or his heirs, paid something to the injured party and sometimes something to the local baron.
With the Norman Conquest, the new king, intent upon consolidating power, established "King's Courts". Here an injured person (plaintiff) brought action against a wrongdoer (defendant). But all monies (fines) went to the king rather than to the victim; the king had to pay judges, keep an army (the police) fed and clothed, etc. Thus developed Crimi nal Law, the key components of which are:
The king (state, people) is seen as victim. Crime is considered to be an act which the public desires not to be done, and which the public is willing to punish if it is done. It is a public wrong.
Because the remedy is punishment, some protections of the accused become necessary; we do not want to punish an innocent person. Thus, there can be no crime without a statute, and acts done before there is a statute are not criminal (ex post facto). The statute must set forth every material element of the criminal conduct (no punishment without a "knowledge"). However, we are all presumed to know the law.
The state must prove the defendant did the necessary acts (actus reus) beyond a reasonable doubt. This means that the balance scales must tip to their near maximum. Since punishment is the remedy, we want to be certain that we only punish the guilty, not the innocent.
Defendant must have done the acts with a level of knowledge (mens rea, guilty mind) declared in the statute. Over time, and in order of im portance today, this necessary mental state was determined to be: inten tional, reckless, or negligent conduct, or strict liability.
After conviction, the question is asked: What punishment should be to carry out the five purposes for punishment: reformation; restraint; retribution; and deterrence (individual or general).
Crime has three major parts: crime against person; crime against property; and crime against the public order.
A crime against person always involves force or threat of force against the body of another (murder, battery, rape, robbery, extortion, kidnapping, etc.).
Crimes against property are distinguished by an absence of force against a person and loss of property is the key (theft, embezzlement, false pretenses, forgery, burglary, arson, etc.).
Crimes against public order include rioting, treason, and most of the "victimless" crimes (prostitution, sale of pornography, drug deals, and, until recently, abortion). Violence to person or loss of property may or may not be present. What is present, is behavior seen harmful to the integrity of community to such an extent as to call for criminal punish ment. Sometimes we see these as "moral crimes".
Intent has its own set of definitions:
Specific intent: Defendant has a determination of mind to commit at least one of the required elements of a criminal offense. Example: first degree murder normally requires proof of premeditation, which is a matter of intent found to be existent before picking up the gun, to do an act (shoot the gun) and bring about a result (kill the person).
Transferred intent convicts a person of a result, which they did not intend, but which was a result of the illegal act. Example: I intend to kill A by shooting, but miss and kill B, whom I love and would never kill. My intent to kill A is transferred to B; I am guilty of murder.
Implied intent: We are rational people, intelligent and understand ing; so intent to do an act may be implied from doing of the act.
Strict liability: Here there is no need for a mental status. We are li able for doing the act without defense. Example: sexual intercourse with a female under a specified age (statutory rape). Your belief con cerning her age (even a reasonable belief) is no defense.
Let's look at some of the common criminal defenses. First, there are istakes of fact. I take a bag of yours at the airport thinking it is mine; we can say mistake of fact, but it really is lack of intent to steal. Or I buy an item not knowing it to be stolen, no intent, no crime. However, if its value is $100 and I pay $1 and the transaction is on a street corner, maybe I am unable to make the defense work for me. Any mistake of fact must be honest and reasonable.
Can my voluntary intoxication be a defense? Generally, no; it is an act of choice, negligent or reckless in character, so it is not allowed as a defense, involuntary intoxication may be a defense.
Another category of defenses is called justification. It includes self-defense, defense of others, defense of property, acts done under appar ent authority, and consent. Self-defense is viewed from the mind and the person claiming the defense, not from the mind of a reasonable per son. What this means is: we cannot second-guess the action after the fact; if there may have been several reasonable responses, and this was one of them then the defense is good. But the force I use in defense must be proportionate to the force you use against me. An aggressor cannot claim self-defense unless he terminates the conflict and then finds he must defend against the continuing attack of the other. Defense of others normally requires a prior relationship between the person be ing attacked and the person claiming the defense. Defending one, who later proves to have been the aggressor, means you cannot claim the de fense because that person could not claim the defense. Defense of prop erty is very limited as to the amount of force you can use.
Acts done under apparent authority is a defense allowing public of ficials (and those acting under their oversight) to possibly commit a crime and not be punished, if it was reasonably necessary to doing their job. Consent is a defense where the consent to act would have been il legal, for example, I consent to your battery of me in a boxing match.
Another set of defenses is called excuse. Infancy, necessity entrapment and insanity are classic examples. Historically, infancy defense was avail able to anyone under the age of 7; they were presumed incapable of form ing the intent needed for a criminal act. From 7 to 14 it was presumed they could not, but the presumption could be overturned upon a showing of suf ficient age and understanding. Above 14 they were presumed capable. To day, in the U.S., we use Juvenile Courts to deal with people under the age of 18; however, for certain crimes, and at certain ages, youth can be re moved from the juvenile system to the adult system.
Necessity (including compulsion, duress, coercion) is a defense where the act is acknowledged, and the criminality of the act is known in advance, but the person claims that they have no choice. The defense is not available in a homicide, very limited in crimes against persons, and normally only found in property offenses. There is involved a sense of emergency response to a situation, and the harm being prevented by the illegal act must be greater than the harm the illegal act causes.
Insanity only became a defense in 1843. It is a direct outgrowth of the issue of intent as is the defense of infancy. When first allowed it was only if one could not understand the difference between right or wrong, or did not have the ability to understand that an act was wrong because of mental disease or defect. It has since expanded to matters such as diminished capacity and irresistible impulse.
CRIMINAL PROCEDURE
In both criminal and civil proceedings, a document (Pleading) must be filed with the court to start a proceedings - called an Information in Criminal Law. The papers are filed for the State by a Prosecutor. To an Information is attached an Affidavit To Show Probable Cause, under oath. The documents name a defendant, set forth the facts constituting the offense, the statute which has been violated, and the source of the information (confession, eyewitness, etc.).
The judge then issues a bench warrant to the sheriff for arrest of a defendant. The court cannot proceed further until the defendant is served with warrant plus information and affidavit service results in arrest, and the defendant is taken into custody.
Upon arrest, a day for the defendant to appear in court is set normally within one week. At arrest, the defendant will be advised of: (1) the charge; (2) right to an attorney; (3) right to an appointed attorney at state expense if he can't afford an attorney; (4) does not have to say anything without an attorney present; (5) anything said can be used against him in court; and (6) right to bail, amount of bail, and way to post it. The defendant is allowed free phone calls to tell people where he is, and to arrange bail.
The defendant may be arrested before papers have been filed when the officer has probable cause to believe he has committed a crime. Then he will be told these same rights, except bail. But if a warrant is not secured from a judge filed within 72 hours, he must be released (he can be rearrested later, however).
At the first court hearing (arraignment) the court will:
Ask the defendant (1) if he has an attorney, intends to employ an attorney, or needs attorney appointed for him; (2) if he is prepared to enter a plea of guilty or not guilty; (3) advise defendant of his right to jury trial; (4) if the defendant says he wants to waive any right, court will examine him to see if he understands rights and effect of a waiver; (5) reconsider the matter of bail possibly by a pre-trial release report; (6) possibly set the matter for preliminary hearing or for omnibus hearing and/or set the case for trial.
If the defendant remains silent court will enter a plea of not guilty, set the case for jury trial, and appoint an attorney to meet and consult with the defendant.
Between arraignment and trial, the defendant has the right to discovery: to see investigatory file of prosecutor, take depositions of witnesses, view physical evidence, have special investigators appointed or expert witnesses hired to examine evidence and testify, right to compel people to come and testify (subpoenas), or produce tangible evidence, etc. He must tell prosecutor names and addresses of his witnesses, and certain special defenses (as alibi or self-defense). If the defendant is indigent all necessary costs of defense will be paid by the state.
Between arraignment and trial, the prosecutor and defense attorney will engage in plea and/or sentence bargaining. There may be special pre-trial hearings on issues of the admissibility of evidence (such as a confession, evidence seized by a search warrant, etc.). There may be a preliminary hearing requested by the defendant to test the existence of probable cause. Court may set omnibus hearing with prosecutor and defense attorney to discuss if case is ready for trial. In criminal cases the judge keeps the case moving; in civil cases, the lawyers do.
If the defendant pleads guilty or is convicted at trial the court sets sentencing hearing and pre-sentence report (normally prepared by Probation Department). The report will contain: criminal, educational, family and work histories of the defendant; statement of facts of the crime charged; and drug or psychological evaluations. The defendant gets to view report before hearing and can introduce evidence at hearing. Victims are often invited to hearing, and can give input on what they believe should happen. However, the court may be bound by a form of mandatory sentence.
If sentenced to prison, the defendant is sent to the Department of Corrections, which selects the actual prison. When released from prison he is placed on parole (like probation - periodic reporting to officer).
A purpose of jury was to keep citizenry informed about Tightness of the law as a check against tyranny of the law. That protection is breaking down because of (1) inability of the jury to nullify the law; (2) failure of the jury to know the penalty; (3) the dramatic increase of plea-bargaining; (4) the development of Administrative Law where there is no right to a jury trial. At the same time, confrontation of the offender is breaking down. Confrontation means: This is what you did; It was wrong; You chose to do it; Here is the hurt you caused; Here is what you must do to make the wrong right; Don't do it again. Without confrontation there is little chance of reformation.
Problems are:
(1) lack of speed in the process; (2) plea bargaining; (3) lack of direct confrontation by victim; (4) prosecutor discretion; (5) change in defense attorney from counselor to upholder of rights rules, and process; (6) Juvenile Justice System; and (7) highly adversarial nature of the process.
Results are: excuse, justification, rationalization and blame-casting of defendant rather than repentance.
TORTS: The Issue of Private Wrongs
Because the victims were soon forgotten in the king's system, they turned back to the local courts, filing cases against offenders who had caused them a harm. These actions were first known as trespass; later torts: "A complex machine for shifting human losses from one who sustained loss to someone else."
At first, there were three varieties of trespass:
1) Trespass with force of arms against the person:
Assault: Acts placing plaintiff in reasonable apprehension of an imminent battery taking place. Words are never enough but may be with some action. There must be present apparent ability of defendant in plaintiffs perception to carry out the threat.
Battery: Intentional touching of the person of another in a rude, insolent or angry manner. "Person" includes things attached to him at the time, and the touching can be by an agency set in motion.
False imprisonment: plaintiff must be aware that he is not free to move about at will as a result of the acts of defendant. Confinement must be total and without freely given consent.
(2) Trespass against the personal, private property of another by carrying away theft (exerting unauthorized control over property of another with intent to deprive the owner of the use and enjoyment) and
(3) Trespass against real estate; breaking the close. In burglary an historic statutory element is "breaking and entering".
All three trespasses require proof of a specific intent to do the act which caused the harm; that is, that the act of the defendant was volitional as opposed to a reflex. But it was not necessary to prove that a harm was intended or that harm even resulted. Trespass began in strict liability, at the opposite end of Criminal Law!
But the original law was insufficient. Defendant throws a log towards the road, hitting plaintiff who is walking past. Plaintiff, being harmed, has an action in trespass against defendant, because he was directly touched by the agency set in motion by defendant. But what if, instead of hitting plaintiff, the limb lays in the highway and plaintiff, in the dark, stumbles over it and is injured. What then?
Local courts developed actions on the case. Trespass became the action for direct and immediate harm without actual damages. Actions on case were for consequential or indirect harm where actual damages did have to be proven.
But in actions on the case you also had to prove a fault that the defendant did the act with some mental culpability, but not necessarily with mens rea. Gradually fault became the doing of an act negligently, recklessly, or intentionally.
Negligence means to do an act, which a reasonably prudent person would, in same or similar circumstances, not do, or to refrain from doing an act, which a reasonably prudent person would do. You were held to a mythical community standard of conduct. The community, in the form of the jury, determined its standards case by case.
Reckless means doing an act with a heedless disregard for the safety of others, where the actor knows, or has every reason to know, that a very high risk of harm is being created.
Intentional means the act was done knowingly and volitionally, but the result of the act may not have been intended or even foreseeable.
These definitions are, for all practical purposes, the same when used in the Criminal Law, but in reverse order of importance. That is, intent is the most important question in Criminal Law, with negligence least; in tort, negligence is most important, with intent the least.
At first tort had a problem with liability for any negligent inaction. Eventually it developed the theory that since the tortfeasor is in the best position to reduce or eliminate the risks of his behavior, he may be held responsible for failing to do so provided that he had a duty to act.
The interest and power of the king in Criminal Law soon swallowed up the tort actions of assault, battery, false imprisonment, theft, burglary, arson, murder, mayhem, etc. Tort Law for a time lost its character of strict liability, except for trespass on real property. It later developed some strict liability in manufacture, possession or use of dangerous items (dynamite), stored water on the premises, etc.
Tort Law became the way to address a private wrong, while Criminal Law addressed public wrongs. But the same acts could be a crime and a tort! Today, although not at first, a person might be sued at both Criminal Law and Tort Law for the exact same acts.
Tort Law asks: (1) Was there duty owed by the defendant to the plaintiff? (2) Was this duty breached? (3) Was the behavior negligent, reckless, intentional, or under strict conduct? (4) Did damage proximately result? (5) Is the proof sufficient to tip the scales of justice? (6) What compensation is proper?
Proximate cause means two things:
(1) Cause in fact: the plaintiffs injury wouldn't have occurred but for defendant's act;
(2) Legal cause: a reasonable relationship between act done and the risk created (foreseeability).
Tort is considered to have several purposes: (1) compensate people for wrongs suffered; (2) place the cost of compensation upon those who, in justice, ought to bear it; (3) prevent future loss and harm (general and specific deterrence); (4) vindicate the person wronged; and (5) to deter victims from making an individual retaliation for wrongs done.
The difference between crime and tort is seen in the matter of to whom the fault must be acknowledged: to the state (in Criminal Law) or a victim (in Tort Law). There is also a difference in the response of the law: punishment in Criminal Law and compensation to victim in Tort Law.
Many of the defenses at Criminal Law are available in such as self-defense, necessity, infancy, insanity. The difference is that you are working in the field of preponderance of the evidence rather than presumption of innocence: tort liability is easier to prove and harder to defend against. What truly happens is that the jury tends to pragmatism as it looks at these defenses, both in crime and in tort.
The defense, which you most frequently encounter in Tort Law, is contributory negligence or comparative negligence. Under the former, the historical approach to torts, if I drove slowly through a red light while you sped through the green light, and we crashed, your negligence (speeding) would prevent you from recovery against my negligence (red light violation). The rule said that if there was any contributory negligence, regardless of how slight, it prohibited recovery. In fact, juries probably weighted the degrees of negligence, and altered the damage award accordingly.
But, because of the question of fairness, the law in the U.S. is now almost totally comparative negligence: that is, the jury decides the percentage of fault of each party, determines the damage due the plaintiff, and then judge applies a formula which reduces the damages by the percentage of contributing fault of the plaintiff.
Some other defenses in tort actions, which are really just variations on the contributory negligence concept, are: last clear chance; assumption of risk; abuse/misuse of product. The first would apply in our car collision: you, if driving reasonably, would have seen my driving slowly through the red light and stopped as you had the last clear chance to avoid the collision.
Assumption of risk says you knew there was a risk to your behavior and you chose to go ahead. If you are then hurt by the anticipated risk, there is no recovery. Abuse/misuse of product is a variation of this in product liability cases: you use the product in a way, in which it was not intended, then you cannot complain if the product fails and you are hurt.
And, of course, foreseeability, mentioned earlier, is a form of defense. Just keep in mind that in our system it is the jury, which is going to determine all of these issues. Hopefully they have some common sense, which they bring to the process.
PROPERTY LAW:
The Issue of Rights
Law may be broken into Criminal Law and Civil Law. Civil Law may be broken into Property Law, Contract Law and Tort Law. Each of these three may be broken into law and equity components. But it is Property Law which brings a need for the other many types of Civil Law. It is the right of private property ownership ("mine, not yours") which gives the need for Property Law. If there is no right to private property, then the king owns everything and punishes any who violates the laws he makes to protect what is his.
Well, if two of the actions in trespass were based upon injury to property or to property rights, a law of property would be required so that we could determine who owned what, or had what rights in what property. If you damage my property, we need Tort Law, if I want to sell the land to you we need Contract Law; if I want you to get my property when I die, we need Inheritance Law; if I want to pay by check, we need Negotiable Instruments Law; if we want to be merchants or manufacturers of products, we need Merchant Law; we need remedies and procedure to make law work for us when someone breaches the law.
Thus Property Law asks:
What are the respective rights: ownership - possession - use, present or future, contingent or certain, etc. of competing parties (that is, whose rights are the higher)?
Is the proof sufficient to tip the scales?
What needs to be done to uphold, or protect the rights?
Because of the importance attached to ownership of property and the means of production as well as the right to peaceable enjoyment, damages did not need to be shown to bring and win a case in Property Law. The earliest cases were all strict liability: volitionally do an act and you are liable without regards to the state of your mind. However, the state of your mind might effect the damage question.
Now for some of the words of Property Law:
Некоторые понятия, используемые в вещном праве:
Real, personal, and mixed (fixtures) property:
tangible and intangible property; legal and equitable interests.
Ownership, possession, and use of property:
claims for damage: nuisance, trespass; defenses: estoppel, laches length of time of claim: privity; tacking.
Private, public, and common property rights (interests):
current, future, and contingent property rights;
some types: remainder and reversion; conditions subsequent; life estate; trusts; dower; equitable servitudes; termination: surrender or abandonment.
Rights on, above, and under property:
examples: easements; covenants; license; support; upper and lower riparian water rights; issues in determining: burden or benefit; dominant or servient; issues relative to you and the government: zoning; eminent domain.
Transfer of property:
bargain and sale; gift; equitable conversion; inheritance; adverse possession.
Issues of conveyance:
deed; grant; recording; statute of fraud; delivery; warranty (express or implied); consideration; marketable title; risk of loss; breach; specific performance; mortgages and equity of redemption.
Forms of ownership:
joint tenancies, common tenancies, and tenancies by entireties;
issues between owners: partition; severance; rents;
profits; expenditures for improvements.
Landlord and tenant:
types: fixed; periodic; at will or at sufferance; tenant "rights": quiet enjoyment; assignment or sublease; holding over; forcible detainer; landlord issues: eviction; waste; joint issues: liabilities for injuries to others; mitigation of damages.
CONTRACT LAW: The Issue of Vows
As tort actions on the case developed, Contract Law began to be based on dealings in land and between merchants. The first of these were based upon contracts under seal. There was a written document signed by the parties to which they had affixed their personal wax seals - thus the term. As between merchants, some rules of behavior were becoming so taxed that contracts were implied to exist even when there was nothing under seal. But the Law Merchants did not, at first, help normal buyers because of the doctrine of caveat emptor - "let the buyer beware".
But what was to be done when someone promised to do a service for another, like build a barn, but verbally and not in writing? Then he builds negligently: the barn falls on the owner's cattle, injuring the cattle (which are personal property). Thus we have two parts of trespass: damage to personal property as a result of negligence. But the property is not attached to plaintiff (trespass force of arms), it is not removed (trespass by taking), the harm is not direct (it is like the log laying in the highway) and it rose out of agreement (contract). To solve this new problem, local courts created under Tort Law, a field called assumpsit.
Soon came an action on the case in contract for deceit. Assumpsit became the complaint for direct harm while action on the case was for indirect harm. And very quickly implied promises of good workmanship were imposed upon those who offered their services or wares to the general public. Eventually, assumpsit and its related concepts split off from torts and became what we now call Contract Law. Today we have added, under a warranty portion of Contract Law, strict liability in contract for defective products. Etc., etc., etc. The law is never static; it is always in change, growing or retreating, which also affects notions of justice, and the need for some absolutes.
Now to look at the terms of Contract Law:
Mutual Assent (Offer and Acceptance):
revocable and irrevocable (consideration to hold open is needed) offers; unilateral (performance response) or bilateral (promise response); knowledge of offer required to accept; communication of acceptance to offeror required; certainty of terms needed; offer is personal to offeror and to offeree.
Consideration:
legal detriment (to do what need not do, or not to do what may do) by each (mutuality) and adequate (not a fake); promissory estoppel (anticipated reliance upon a promise, reasonably done by offeree, with harm resulting to offeree, will make a contract though offeror did not intend contract).
Legal Capacity:
infants (under 21) and the mentally infirm may avoid contract after incapacity no longer exists (exception for necessities).
Form and Interpretation:
statute of frauds (what contracts must be in writing); course of dealing or of trade (to aid in interpretation of terms); parole evidence rule (no oral testimony from events prior to execution of a contract allowed to contradict terms).
Conditions, Performance and Breach:
anticipatory repudiation; substantial performance (may remove from statute of frauds); excuse of performance; tender of performance; warranties.
Defenses:
impracticability; risk of casualty loss; frustration; illegality; discharge of duties.
Remedies:
avoidance or revocation; duress, undue influence, misrepresentation, fraud; mutual mistake of fact (or of law); unconscionability (issue of lack of mutuality); ratification after performance.
Third Party Beneficiaries:
may they benefit; may they enforce.
Assignment (of Rights) and Delegation (of Duties):
Contract Law came to ask these questions:
Was there a contract? This meant an offer (promise) by one with an acceptance (promise) by another.
Was there an adequate consideration (a legal detriment, giving up a legal right; agreeing to do what one was not legally required to do) to support each promise?
Did each party have the legal capacity to contract (an issue of age, mental infirmity, or marital status if a woman)?
Was the contract valid? This included matters such as duress, fraud, misrepresentation, etc.
What were the conditions of the contract, and were they "certain"? That is, can we readily determine what it was that the parties agreed so that a proper remedy may be ordered? In the Merchant Law, the contract was examined from the standpoint of the "hypothetical reasonable merchant".
Has the contract been breached?
Was the breach material?
Is the proof sufficient to tip the scales of justice?
What needs to be done to restore the injured to the position they occupied prior to the breach, or otherwise to make right for the wrong done by the breach?
EQUITY: The Issue of Fairness
I think that by now you can see the propensity for the law to pile rules upon rules upon rules. This can produce a certain form of a strait-jacket, which is exactly what happened.
To compound matters, in the fields of tort, contract and property, the courts developed the doctrine of stare decisis - "precedent". It is a commitment to the rules, procedures, principles, and holdings of prior cases. The courts saw themselves as bound to these past cases, and were unable to change to meet new situations. As time went by, more and more people began to bring disputes, so more and more "unusual" situations were faced.
Bound by stare decisis, the law began to stagnate.
And, the remedies available, that is, "I won; so what?" at law were proving too inflexible to meet the "peculiar" needs of new victims and new cases. So people began to petition the king for extraordinary relief outside of law. As it was extraordinary, the king referred the cases to his religious officer (chancellor), for a review of the moral issues involved. From this developed the chancellery courts and equity, with its own set of requirements, remedies, defenses, and rules of proof.
Once you proved a basic case under tort, contract, or property law and you had to make that proof before asking for equitable remedies -you only needed to ask the following additional questions:
Was your remedy at law adequate? If not, then equity would act.
Did you come to the court with "clean hands"? Since you are asking for justice, and for an extraordinary remedy, you may not do so if you have some fault in the matter.
Have you been guilty of laches? That is, have you slept on your rights, allowing the other party to change their position in reliance upon your silence, to their detriment?
What is fair? What should be done?
Because the remedies available in equity were very powerful, the judges were concerned that skillful lawyers might manipulate a jury to an unjust result. To avoid such potential abuses, the jury was denied in equity.
For a number of years, the two fields of law, law and equity, developed side by side, even fighting one another for power. Today we have merged the two systems into one, with our judges having the ability to move from one field to the other during the process of a case. Where both issues are involved, we will have a bifurcated trial: the jury hears the part dealing with law, while the judge decides the matters of equity.
Today we consider remedies as a part of the issue of "I won; so what?". Common Law remedies were compensatory damages and restitution.
Compensatory damages were designed to make good the loss, they substituted for a tangible thing. Damages may be general, special, punitive, or nominal.
General damages are considered to flow directly from a proven wrong. It is not necessary to prove that a damage is reasonably foreseeable by the defendant; only that they are natural and incidental to the harm, and flow from it. In contract cases, general damages seek to restore the plaintiff to where he would have been if the contract had not been breached, for the loss of the benefit of the bargain.
Special damages must be reasonably related to the injury (but for), reasonably certain in amount (not speculative) and reasonably foreseeable.
Punitive damages were like a fine, with the money going to the plaintiff and not the state, to punish the defendant to deter him from doing such acts again, and to deter other possible defendants. It requires that the defendant has gone beyond bounds of decency in his conduct. Showing bad faith or malice will help establish such damages, as will grossly reckless conduct or conduct which shows massive indifference to the potential for harm.
Nominal damages are at the opposite end: there is no specific harm involved, but a right has been determined, they are normally granted after proof of the right has been made and after the court has determined that no compensatory damages have been established.
Restitution, in comparison to compensatory damages, does not aim to restore the loss sustained by the plaintiff; it transfers from the defendant to the plaintiff any unjust enrichment, secured by the defendant by his improper acts which it would not be right for him to retain.
There were times when the remedies of the Common Law just were not good enough. That is where equity came in with: rescission; reformation; injunction; specific performance; equitable receivership; interpleader; sequestration; and declaratory judgment.
But in tort and property cases in equity, plaintiff had to prove that his remedy at law was inadequate and face a question of balancing the hardships. In contract actions, plaintiff also had to prove that there were a mutuality of conditions; no outstanding conditions; and an enforceable contract.
Balancing the hardships meant that the court would look at the hardship and issue an order against a defendant which may cause defendant versus the hardship to plaintiff if the order is not entered. If an order against defendant then seems "unjust", only money damages will be awarded the plaintiff.
Defendants at equity could also raise two additional defenses: laches and "unclean hands". Laches is a question of how much time has elapsed since plaintiff knew of the problem and during which he did nothing and what harm the delay caused the defendant. Unclean hands is the recognition that the plaintiff is asking the court to "do justice" and cannot ask for that if he has, in the matter at issue, been guilty of "injustice".
Rescission may often involve restitution by both sides, for it attempts to end the relationship between the parties as though it had never been begun. Grounds for rescission are: fraud or material misrepresentation; mistake (mutual or by one, but known to the other who takes advantage of the mistake rather than warning about it); duress; illegality; impossibility of performance; or failure of consideration. Generally, the party seeking to rescind must tender back any thing he gained in the process. At law the act of tender and the notice of intent to rescind rescinds the contract at that instant.
Reformation proceeds on the theory that the parties did reach an agreement but that, in reducing it to writing, something went wrong, through mistake or fraud, and thus they signed what they did not agree. Here the request is made for the court to reform a document to the original intent of the parties. An additional defense here is ratification if the plaintiff learns of the mistake and then continues to act as in the contract.
Specific performance is limited to contract actions. It orders a defendant to do what he promised he would do. It is here that the terms mutuality of conditions, no outstanding conditions, and enforceability arise.
If the contract is so one-sided as to be unconscionable, it will not be ordered against a weaker party. If one asking for enforcement has not fulfilled his part, he will not be allowed to order the other to fulfill his part in advance. If the contract has an illegal act, which makes it unenforceable, the court will not order enforcement.
Injunction is an order to a defendant, which may proceed on its own without any damage, or as a part of a damage case. It orders defendant to do, or not to do, specific things, and can come at three stages of a case: temporary restraining order, preliminary injunction; and/or permanent injunction. Bonds are normally required before an injunction is ordered.
Temporary restraining orders are issued without a chance for the defendant to respond. They are not favored, are very carefully scrutinized, require the plaintiff to post a bond, and may lead to a claim against plaintiff for damages if the order is subsequently found to have been inappropriate. There must be a hearing within 10 days of issuance of the order, with notice to the defendant required.
Preliminary injunctions are entered for the length of a case, although they can be removed before that time.
Permanent injunctions are good until revoked.
Equitable receivership is where the court takes property at issue between the parties from both parties and places it in the hands of a third party to manage until the case is determined.
Interpleader is when someone with property, which he knows is not his own, is faced with more than one person claiming the property, brings the property into court and the judge orders all the conflicting parties against the property to come and state their cases, while the one who had the property may get to go home.
Sequestration is when an officer of the court is ordered to take possession of some property of the defendant and then either deliver it to the plaintiff or sell it and give the proceeds to the plaintiff.
Declaratory judgment asks a court to look at a contract, a statute, or a situation before a conflict has erupted, and declare the meaning of the thing reviewed so that the parties may proceed without conflict.
Finally, both law and equity also offered a remedy of contempt of court. Contempt of court is a remedy of the court rather than of a party, but a party may ask the court to make a finding of contempt. It is the matter of the court upholding the honor of the law, legal process, and position of the judge.
COURTS STRUCTURE IN BRITAIN
1. The courts of criminal jurisdiction include: the Magistrates’ Courts, which try the less serious offences and Crown Courts including the Central Criminal Court in London, known as “Old Bailey” (some important cases from the provinces are tried there).
2. It is the Magistrates’ Courts (sometimes called police courts) that try the majority of all criminal cases and some civil cases. The office of magistrate dates back to the year 1360, when they were designed to be a kind of policeman, whose duty was to search out and arrest offenders, as well as to give evidence against them at their trials. In the course of tie they acquired such a wide range of duties that by the middle of the 19th century they were almost entirely responsible for the government of counties. However towards the end of the 19th century the establishment of County Councils (in 1888) relieved the county magistrates of their governmental responsibilities, leaving them judicial functions.
3. Nowadays the Magistrates’ Court is believed to be the most common type of law court in England and Wales. There are 700 magistrates’ courts and about 30,000 magistrates. Magistrates’ Courts are presided over by law magistrates (also called justices of the peace – JPs) who work part-time and are unpaid. The courts consist of between 2 and 7 magistrates. In a few cities there are also stipendiary magistrates who sit alone and have legal training.
4. The Crown Court is responsible for trials of the more serious cases and the appeals from Magistrates’ Courts are often heard here. Today it has 90 branches in different towns and cities. Civil cases (divorce or bankruptcy cases) are dealt with in County Courts. All those civil cases that cannot be decided by County Courts are heard by the High Court. The Court of Appeal hears both criminal and civil appeals and the House of Lords is the final appellate tribunal.
5. Certain cases may be referred to the European Court of Justice in Luxembourg. In addition, individuals have made the British Government change its practices in a number of areas as a result of petitions to the European Court of Human Rights.
6. The legal system also includes juvenile courts (which deal with offenders under 17) and coroners’ courts (which investigate violent, sudden or unnatural deaths). There are also administrative tribunals, which deal with disputes between individuals, and disputes between individuals and government departments (for example, over taxation).
CONSUMER RIGHTS
1. In their role as consumers, ordinary EU citizens are sure to be key players in the Union’s new frontier-free single market. The Union has in fact incorporated as the basis of its consumer policy, the protection of the five fundamental rights, which lie at the heart of national policies. These are:
a) The protection of consumers’ health and safety.
Only products, which will not endanger health or safety, may be put on the market. This means setting safety requirements, providing full information about potential risks, protecting consumers against physical injury.
b) The protection of consumers’ economic interests.
There is for example a general ban on misleading advertising and unfair terms in contracts with consumers.
c) Consumers need to be put in a position where they can make an informed choice among goods and services offered. This includes objective information on the features and price of the items available. Consumers also require proper information about their efficient and safe use.
d) The right to redress.
Consumers have the right to receive advice and help when seeking redress for faulty products or for injury or damage resulting from the use of goods and services. There must be simple, affordable and rapid procedures for settling complaints and claims.
e) Consumer representation and participation.
Representatives of consumers need to be present in decision-taking procedures on issues of concern to them at local, national or EU level. At Union level, this covers not only specific consumer issues but also other relevant policy areas like food laws, transport, competition policy, financial services, environment, and the like.
2. When the Community (the former name of European Union) adopted its first consumer program in 1975, it focused on the practical application of the five principals. As a first result, a number of directives were adopted over the next 10 years covering among other things the safety of cosmetic products, the labeling of foodstuff, misleading advertising, consumer rights in door-step selling, product liability and the provision of consumer credit.
3. In addition to its program of legislation on consumer protection, the Union took steps to make sure the interests of consumers are taken into account at local and EU level. It has supported the development of national consumer organizations and of five major EU-wide organizations with consumer interests. These are: The European Consumer’s Organization (BEUC), The Confederation of Family Organizations in the European Union (Coface), the European Community of Consumer Cooperatives (Eurocoop), The European Trade Union Confederation (ETUC), The European Interregional Institute for Consumer Affairs (EIICA).
INTERPOL
1. Interpol is an international corporation founded in 1923 as a service organization devoted to coordinating actions against international criminals. Its clients are 174 agencies throughout the world. This organization is not under the control or supervision of any government.
2. Interpol is a reorganized intergovernmental police force whose task is to hunt down the international criminal. A multinational force, much like the United Nations, Interpol is made up of police of the Free World and a bona fide law enforcement agency in its own right. Fighting international terrorism and sky-jackings, Interpol still leads the war on narcotics, assists a number of nations in the continuing search for wanted Nazi war criminals. One of the most highly respected groups in the world, Interpol, like any other police force is under governmental control to safeguard the basic rights of every citizen. It operates according to a strict code of behavior and adheres to the highest ethical standards.
3. Interpol has never been recognized or established by any international charter or treaty and has no police powers. Because of Interpol’s cooperation with the UN particularly in the area of drugs, Interpol was recognized as intergovernmental organization. Interpol members are police and not governmental representatives, although certain governments have sent observers from their military, intelligence, customs, post office, and immigration departments.
4. Interpol does not have powers of arrest or any investigative rights. Its function is to disseminate information. Today 80 per cent of the permanent staff is French. Interpol is like any large corporation with bureaus in various countries and with representatives from these offices also stationed at the main office. Information is exchanged between the many national bureaus, but the police forces themselves are subject to the laws and policies of their respective nations. Interpol is divided into four main bodies – the General Assembly, the Executive Committee, the General Secretariat and the National Central Bureaus.
5. The General Assembly is composed of the delegates from each member country. It is “the Supreme Authority”. The General Assembly controls the policy of the organization. The Executive Committee is a nine-member board made-up of the president, two vice-presidents, and six delegates chosen by the General Assembly.
6. The General Secretariat, the permanent body, located in Lion, is Interpol’s business division. It contains the “permanent departments”, four of which specialize in certain crimes: one handles murder, burglary, assault, larceny, car theft, and missing persons; another deals with bank frauds and other types of embezzlement; a third with drug traffic and moral offences; and a fourth deals with forgery and counterfeiting.
7. Other divisions are the general records department, where files are kept, and a special records department, where fingerprints and other methods of identification are used. The National Central Bureaus are the Interpol offices in various countries. Each NCB is empowered to communicate directly with and exchange information with any other NCB.
POLICE FORCE IN THE UNITED STATES
1. Historians suggest that the first modern police in the United States did not come into existence until 1833 in the city of New York.
2. The first municipal police agencies consisted of nightwatchmen whose responsibility was to protect property during the evening and early morning hours. Crime continued to increase, however, and gradually there were demands to hire men to provide similar protection during the daylight hours as well. Thus, by the 1830s and 1840s these two types of police were combined to form a unified, more effective municipal police agency. The modern police departments came into existence, especially in the years following World War I.
3. Since 1920 municipal police agencies have increasingly grown in personnel and responsibilities. Special training and more selective recruitment practices have been developed to go hand in hand with the use of such technological developments as automobile, the individual police radio, and the computer. The great part of police work does not involve crime-fighting situations but rather consists of both service and peacekeeping activities.
4. Service functions include directing traffic and enforcing traffic regulations, answering accident calls, aiding the sick, helping find a lost child or rescue a lost pet, recovering stolen property, and reporting fires. These are all services performed to assist the public.
5. Peacekeeping functions of the police are designed to maintain public order.
PHASES OF INVESTIGATION
1. The objectives of the investigator provide a convenient division of the investigation into three phases: (1) the criminal is identified; (2) he is traced and located; and (3) the facts proving the guilt are gathered for court presentation. This division is made for convenience of discussion, since the three phases are not necessarily separated in time but are usually fused throughout the investigation. The same evidence, moreover can often be used for all three objectives.
2. Identifying the Criminal. In the first stage the criminal is identified, i.e., some person is identified as the perpetrator of the criminal acts. Ordinarily the identity of the criminal is discovered in one or more of the following ways: confession, eyewitness testimony, or circumstantial evidence.
3. Tracing and Locating the Criminal. The second phase of the investigation is concerned with locating the offender. Obviously many of the steps previously suggested for identifying the suspect will also lead to his location. Usually the criminal is not hiding; he is simply unknown. In those cases, then, the problem is primarily one of identification. In many cases, however, it is necessary to trace a fugitive who is hiding.
4. Proving the Guilt. It is assumed that the criminal has been identified and is now in custody. The investigation, however, is far from complete; it has entered the third and often the most difficult phase, namely, gathering the facts necessary in the trial to prove the guilt of the accused.
5. The final test of a criminal investigation is in the presentation of the evidence in court. The fact of the existence of the crime must be established; the defendant must be identified and associated with crime scene; competent and credible witnesses must be available; the physical evidence must be appropriately identified, its connection with the case shown; and the whole must be presented in an orderly and logical fashion.
NATURE OF INVESTIGATION
1. A criminal investigator is a person who collects facts to accomplish a threefold aim: to identify and locate the guilty party and to provide evidence of his guilt. Investigation is an art and science. The tools of the investigator are for the sake of simplicity, referred to as the three “I’s”, namely: Information, Investigation, and Instrumentation. By the application of the three “I’s” in varying proportions the investigator gathers the facts which are necessary to establish the guilt of the accused in a criminal trial.
2. It should be noted, that there are no normative criteria for judging the success or failure of an investigation. The fact that the crime remains unsolved does not indicate a deficiency in the investigation; nor does a conviction of the accused necessarily mean that the investigation was conducted in an intelligent manner. An investigation may be considered a success if all the available information relevant and material to the issues or allegations of the case is uncovered. There is, however, no way of knowing, ordinarily, whether the information was available.
3. It is a common misconception that every crime is intrinsically soluble; that there is always sufficient evidence available to reveal the identity of the criminal, that the perpetrator always leaves traces at the crime scene which, in the hands of a discerning investigator or technician, will lead inevitably to his door. Many crimes are not susceptible of solution because the evidence is insufficient. The absence of eyewitnesses, discernible motives and physical clues will obviously prohibit a solution unless the criminal confesses. Often, the corpus delicti or fact that the crime was committed cannot be established, and even a confession is of little value.
4. The concept of solving crime does not satisfy the requirements of a completed investigation. To the general public, this term describes merely the process of discovering the identity of the suspect and apprehending him. These achievements, however, leave the investigator far from his ultimate goal of presenting sufficient evidence in a court of law to warrant a conviction.
5. Finding the perpetrator is frequently the simplest phase of the investigation; obtaining the evidence to support the charge in court is often an exceedingly complex task.
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