C
Case Management
Case management is a concern of the court, where limited judicial resources demand that
litigants pursue their causes expeditiously. Therefore, in most jurisdictions, either at the direction of the court or upon motion of a party, judges will hold case management conferences to set schedules for
discovery, coordinate trial, and generally to take care of bookwork and housekeeping so the
lawsuit progresses smoothly and efficiently through the system, rather than requiring overmuch time on the court's calendar for unnecessary hearings and delays.
Cause of Action
A cause of action is essential to every civil
lawsuit; it is the basis for your complaint. Usually the plaintiff will assert separate
counts in his complaint -- one for each cause of action. To adequately allege a cause of
action he must state all the facts that are required to win on each cause of action. These
are sometimes called elements
of the cause of action. If the plaintiff alleges a cause of action for breach of contract
and proves each and every one of the essential elements of that cause of action (i.e., if
he can prove the facts that he alleged in his complaint are true), he wins. It's that
simple.
Certiori
See Writ of Certiorari.
Chattel
See Personal Property.
Circumstantial Evidence
Evidence purportedly based on inferences as opposed to direct evidence. Circumstantial evidence is an invention. Circumstantial evidence reaches
beyond the boundaries of known truth into the realm of conjecture, imagination, and hunches. To be admissible in court, circumstantial evidence must be derived from direct evidence. It must be directly derived from direct evidence. It cannot be derived from other circumstantial evidence, inferences upon inferences, or opinions founded on intuition. The inferences circumstantial evidence makes must be reasonable ... or the evidence is excluded for lack of credibility. Circumstantial evidence derived from an inference upon another inference is always excluded by reasonable courts.
Circuit
Court
Most states are comprised of local governmental units called
counties, each with its own courthouse where local judges preside over county
courts (usually including small claims courts) and circuit judges preside
over more powerful courts known as circuit courts. Each circuit has a chief
judge who has authority to command all judges in his circuit, from magistrates
hearing small claims cases in the county courts to judges presiding over capital
murder cases in the circuit court. The chief judge of the circuit answers only
to the justices of the state supreme court. The term comes from the days when
judges rode horseback from one county to the next along a continuous route
called the circuit, hearing disputes that exceeded the jurisdiction of the local
county courts.
Civil Law
The body of law (and its rules) that deals with the
rights of individuals and legal entities
(e.g., trusts, corporations,
partnerships) providing injured parties with court-enforced remedies for
breaches of duty (causes
of action) arising from contract,
negligence, intentional
torts, and crimes.
Civil law differs from criminal law in that it protects the
rights of individuals and legal entities to recover money damages or other
compensation for the wrongs of others, while criminal law protects the rights of
society at large.
Civil law actions are prosecuted by private actors,
individuals or legal entities and punish wrongdoers by making them pay other
individuals or legal entities for their injuries. Examples are
breach of contract actions or automobile
negligence actions.
Criminal actions are prosecuted by the government and punish
wrongdoers by depriving them of liberty or, in egregious circumstances, of life
itself.
Common Law
A body of jurisprudence evolved over centuries from the
common sense and persistence of people who refused to be ruled by the power of
pride. The principles of common law are embodied in maxims that express, perhaps
better than constitutions, the will of the people toward the exercise of
government power and the importance of keeping that power in check. Many people
are confused about common law, failing to realize it is constantly subject to
change. Where a principle of common law is found violative of the maxims, the
principle must be abandoned. This takes place when the people, acting through
duly elected or appointed representatives, amend and re-codify the legal limits
of acceptable public behavior through duly enacted statutory or constitutional
change. To the extent amendment is carried out in accordance with
due process
and the rule of law, the rule of statutes and constitutions supercede common law
and are an expression of the will of the people. For those who object that the
common law should forever control, let it be said that as citizens of free republics
it is our dutyto teach the maxims
to our neighbors and our children so our leaders and we the people ourselves will
have better guidance.
Common Sense
The presence of mind and general caution and concern that the
law imputes to all persons, i.e., sense
everyone should have. Everyone owes a duty
to use common sense. The breach of this duty may give rise to a
cause of action.
Competence
See competent.
Competency
The degree to which a person is competent,
q.v. Persons deemed incompetent as a matter of law are those persons who, usually as a
result of dementia or lunacy, are incapable of understanding the nature of truth; such
persons are, therefore, never able to sue, maintain, or defend lawsuits except by the
representation of another who must be appointed by the court to speak and act on behalf of
the incompetent.
Competent
Having the right to be believed. A competent witness, for
example, is one that is not disqualified by self-interest, felonious intent, inability to
understand the nature of sworn testimony (as is the case with infants and small children),
imbecility, dementia, or other disability restricting the reasonableness of giving such
person credence, i.e., any condition that would render that person's testimony unreliable.
A competent witness is not necessarily credible, however the
testimony of an incompetent witness might, under certain circumstances, be completely
credible in light of other known facts. Credibility goes to the believability of the
testimony. Competence goes to the reliability of persons testifying (or the authenticity
of documents). Credibility goes to the believableness of the evidence given by such
persons (or documents). An example of a competent document is a certified copy of a court
order, while a document that might be deemed to lack competence is a copy of an unsigned
typed letter received by a fax machine.
A person who is deemed by the court legally incompetent is one
whose disabilities render their verbal and other representations incompetent, i.e., not
worthy of belief. In modern usage the term incapacitated is replacing the term
incompetent, however the reason "incompetent" was used for so many years is that
it addresses competency, which is an issue dealing with believability, not capacity to act
in one's own behalf.
Complaint
Where it all begins. One person (thereafter called a party
instead of a person) undertakes to force another person (also thereafter called a party
and no longer a person) to do something the other does not wish to do. The first party
filing the complaint is called the plaintiff. The party against whom the complaint is
filed is called the defendant. There may be more than one defendant. There may be more
than one person joined as plaintiff. The complaint is what sets the ball rolling. The
complaint should plainly state a cause of action and all
facts the plaintiff can prove in support of the allegations of each separate cause of
action (i.e., allegations of sufficient facts to prove each count). The complaint demands
an answer from the defendant, i.e., the public filing of a specific response to each of
the numbered allegations of the plaintiff's complaint. The complaint and answer taken
together comprise what are called the pleadings. Each side "pleads" with the
court. The plaintiff complains to the court and obtains the court's jurisdiction over the
defendant. The defendant answers and demands to be released from the court's jurisdiction
or in turn seeks some remedy from the plaintiff. Each party seeks relief from the court by
way of an order compelling the other to do something the other does not wish to do. The
order sought may be a money judgment, an injunctive order, or some other exercise of state
power. The parties before the court are called litigants. The plaintiff has the burden to
prove his case. The complaint should completely state the
plaintiff's case, without the slightest omission of any detail necessary to require a
reasonable court to favorably decide the outcome. The complaint is the single most
important document filed in any lawsuit (and, strangely, one of the least attended-to
documents filed by lawyers today). Many lawyers follow what are called "form
books". You get the idea. They use forms to draft their pleadings. The better
practitioner wins his lawsuit on the day he files the complaint. The winning practitioner
completely
states his client's case in the complaint. Each count should allege a separate cause of
action and include all provable facts that tend to establish the plaintiff's right to
judgment on each such cause of action. The complaint should completely state
the plaintiff's case. Do not be brief! Do not permit your lawyer to be brief! State your
causes of action and state every fact you can prove that will support your causes of
action.
Don't be lazy. Do a good job, and you improve your chance of
winning.
Conflict of Interest
When a person stands to gain an advantage from playing both
sides of the street, he is said to have a conflict of interest. On the one hand
he may gain from taking a particular position with regard to one person while
(perhaps unknown to that person) he may have an opportunity to gain a greater
advantage for himself by taking an alternative position favorable to another.
The result, of course, is that neither side can trust him ... nor should trust
him.
When a lawyer attempts to represent a new client against the
interests of a former client, he is said to have a conflict of interest (though,
technically, his interests are not in conflict, because it is the new
client who stands to gain an advantage, not the lawyer). What makes this
objectionable is not that the lawyer cannot be trusted to represent his new
client's case zealously but that the new client may gain an unfair advantage by
his lawyer's having had prior access to facts about his old client that could
help him win for the new client. So, where a lawyer technically does not have a
conflict of interest, there may nonetheless be created an appearance of
conflict. The rules of professional conduct of most bars forbid such
representation and treat the lawyer as if he, in fact, has a conflict because he
stands in the shoes of his client who actually has the advantage.
The situation is sometimes referred to simply as having a
conflict, as, "Attorney Jones has a conflict representing his new client." Just
remember that a true conflict of interest arises from playing both sides of the
street.
Contract
A promise for a promise.
Every contract, whether written in ink with the formalities of seals and witnesses or merely spoken in a private meeting between two persons, is an agreement in which promises are exchanged. A meeting of the minds.
Contracts need not be in writing to be enforceable (though local laws, e.g., the statute of frauds, may prevent a party from bringing a lawsuit for breach of contract unless the contract meets certain necessities set forth differently by each state).
The main thing to look for is an "understanding of the parties with regard to the exchange of promises". If such an understanding exists and can be established as a fact upon the record of the court, there will always exist a cause of action on the contract, though you may have to get at it by bringing your lawsuit under a different cause of action, e.g., trust theory or quantum meruit.
Costs
Costs in most jurisdiction include filing fees; costs of serving papers on the other side; court reporters' fees for attending and transcribing hearings, depositions, and trial proceedings; and very little else. In most American jurisdictions, the prevailing party is entitled to recover his costs from the losing party
... but this does not normally include attorneys' fees. Long-distance telephone tolls, fees charged by
process servers, secretarial costs, office supplies, and such like ancillary costs of suing in American jurisdiction must be born by the person bringing the lawsuit and cannot be recovered.
Count
Each cause of action in
the complaint should be stated in a separate count. Each count is nothing more than a
separate statement of a single cause of action. For example, if you have a count for
breach of contract and a count for negligence, you have two counts, i.e., two separate
statements of causes of action. Each cause of action is stated separately in a count. Keep
your counts separate. Make sure to allege each and every element of your causes of action
and also allege for each such cause of action all facts you can prove to support the
allegations of your cause of action. This is very important.
County Court
Most states are made up of jurisdictional districts known as
counties, each having a particular city known as the county seat where the Courthouse
is located. County courts typically have limited jurisdiction to hear such
disputes as landlord-tenant cases, cases involving an amount of money below a
set limit (at present this amount is $15,000 in Florida), and small-claims. In
Florida, as in most states, several adjacent counties comprise what is called a
circuit (from the days when a single judge rode horseback on a circuit from
courthouse to courthouse to serve needs of the people in several counties) and circuit
courts that have jurisdiction
to hear appeals from county courts.
Courthouse
A building where courts are convened. Courthouse is always
capitalized when used in reference to a particular courthouse, and it is one word, not two.
Credibility
Having the capacity of being credible,
q.v.
Credible
Think of the word "incredible", take off the
"in" that reverses it, and you see what credible means. Believable. In
particular, believable by an ordinary reasonable man, i.e., one who is not gullible or
easily persuaded. Some writers suggest the concept of worthiness, declaring a credible
thing as one that is worthy of being believed. Only credible evidence is admissible. See also competent.
Cross-Examination
Cross-examination is sometimes said to be the most powerful
engine ever devised by man for getting at the truth. It is a process of questioning
witnesses whereby the answer may be presented as part of the question. Such
questions are called leading questions.
The
rules permit cross-examination (i.e., leading questions) in certain circumstances and forbid it in others.
Sometimes only direct questions may be
asked. A party may usually cross-examine opposing parties and their witnesses
but cannot cross-examine his own witnesses who must be questioned by
direct-examination, instead (i.e., by non-leading questions that do not suggest
answers). In most jurisdictions, a party may always cross-examine the other
party's witnesses, while he is required to question his own witnesses by direct
examination alone. If his own witness becomes a hostile witness, he then may be permitted
to cross-examine ... otherwise not.
An example of a leading question permitted during
cross-examination is, "Isn't it a fact you were in Miami when the First
National Bank was robbed?" This is a leading question since it suggests an
answer. During cross-examination, a lawyer may suggest facts, leading the witness to give
an answer the lawyer wishes to put on the record.
During direct examination, however, questions cannot lead the witness at
all (i.e., questions may not suggest answers). A party may ask his own
witnesses, "Where were you on the day of the robbery?" He is not,
however, permitted to suggest the answer in any way (e.g., "Isn't it a fact you saw
the defendant running out of the First National Bank carrying sacks of
money?"). Doing so is cause
for objection.
Cross-examination cuts through obfuscation and deceit.
Cross-examination forces self-interested witnesses to answer responsively (i.e., to the
point and not evasively). Direct questioning is easier to evade with non-responsive or
oblique answers. Cross-examination gives lawyers an effective tool to pin down an
uncooperative witness and require the testimony to come to the point.
It is much more difficult to get at the truth with direct
examination. Try it on some friends and see for yourself. Unless you can give hints to the
answers you want, a witness reluctant to assist you can easily evade the answers you seek.
Keep this in mind when questions are being prepared for depositions, hearings, or trial.
If you are questioning a witness you called to the stand, you
won't be permitted to lead with, "You were in Miami on the day of the robbery,
weren't you?" That's a leading question. Instead, you will be required to ask,
"Where were you on the day of the robbery." If your witness was in
Fort Lauderdale at
any time during the day, even if only for breakfast, he may lawfully answer, "I
was in Fort Lauderdale that day." He might also have been in Tampa or West
Palm Beach that same day, of course.
If you can ask, "Isn't it a fact you were in Miami on
the day of the robbery?" the witness will be required to tell the whole
truth.
Savvy litigants are on the lookout for
evasive answers and continue questioning until the facts sought are clearly stated on the
record.
Know the difference between direct and cross-examination. Know
when you can and when you cannot use leading questions. Winning frequently depends on it.
Custody
The act of responsibility for the welfare of another. The warden of a prison has custody of his prisoners. The custodial parent of a divorced family may have custody of children of the broken marriage. A guardian has custody of his ward. Custody does not necessarily require control, but it does imply responsibility.
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