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What’s what: Documents in the court

September 25th, 2014 | Posted by admin in Uncategorized - (0 Comments)

Lawyers can, and often do, bury you in paper.

  • Eek – Here’s a summons!
  • Oh – Here’s a contract, a subpoena!

Now what?

What are all these papers?

Since law is a profession of words, it is vital to understand the type of document with which you are dealing. A document is a paper with legal significance.

  • Are you signing away your fortune or proving that you have one? Are you asking the court to move the trial or is the court forcing you to move?

Here are some common and basic types of documents, each with its own purpose, limits, and significance.

Affidavit: A written statement of facts sworn to under oath and signed in front of a person authorized to administer an oath, such as a notary public.

The person writing it is called the affiant. The part signed by the notary is called the jurat, and says something like:

  • Sworn before me this______day of _______________20_____at______ .

Bill: This little word has many legal meanings. Among these are:

  • It may be a law in draft form; that is, before it is passed by the legislature, while it is debated before enactment (when a bill becomes a law).
  • It is the Bill of Rights that sets out many basic rights and freedoms.
  • It may be something we all know very well, a statement of money owed. Too often, the mailbox is full of bills!

Certificate: A document stating a fact, qualification, promise, et cetera. For example: A teaching certificate permits a person to teach in the state jurisdiction of the certificate; a marriage certificate states the person is married (in all jurisdictions). Note: In some places these are called “licenses.” See below.

Charter: An act of the legislature that sets up a corporation. Called “certificate of incorporation.” A city charter, which creates a city, is also set up by the legislature. A charter school is set up through the state laws (created by the legislature).

Contract: An agreement between people, corporations, or other entities (not the court, but) which can be enforced by a court. It is usually written, but not always.

Deed: A writing that transfers ownership of land and buildings from one person to another (the grantor to the grantee).

Decree: A judgment of a court. An order. For example: A divorce decree ends a marriage.

Indictment: A written accusation by a grand jury, stating that there is enough evidence against a person to charge him/her with a crime.

Interrogatories: A pretrial discovery tool used in civil cases. It is a set of written questions that one party serves – don’t you love that word! – on the other. The questions are answered under oath.

License: A document giving official permission to do something. For example: A driver’s license permits a person to drive; a license to practice medicine in the jurisdiction covered by the license lets a person be a doctor there. (Note: As with certificates, some licenses are limited to specific jurisdictions.)

Motion: An application to a court for a ruling or an order. For example: A motion to change the trial location is a change of venue motion. A motion to strike asks judge to remove specific testimony from the record.

Order: A command or decision by a judge.

Ordinance: A municipal (city) law.

Record: The history of a court action. All the testimony, documents, and other evidence presented.

Statute: A law passed by state or federal legislatures.

Subpoena: A written order or writ requiring the person to whom it is addressed to appear in court to give testimony (called a subpoena ad testificandum) and/or to bring specific documents or other evidence (called a subpoena duces tecum).

Summons: Written notice to a person or persons or corporation or other entity that there is a lawsuit against him/her/them/it. The document that starts an action when served upon the D.

Testament: Any proof that serves as evidence of something. For example, a last will and testament proves how the decedent (person who died) wanted his property (called “estate”) distributed after his death.

Warrant: A writ or order authorizing an officer to make an arrest, conduct a search of a person or premises or seize property belonging to a D, or perform another task. Examples are bench warrants, search warrants, arrest warrants.

Will: A document that states how a person wants to dispose of (divide, give away) his property (“estate”) after death.

Writ: A formal document ordering an action. Usually, it orders an officer of the state to do something. For example, writ of habeas corpus, writ of certiorari, writ of execution.

Writ of habeas corpus: The Great Writ. An order that a person appear in court to determine if he is held in custody legally.

Writ of certiorari: An order by a higher court to a lower court to get the record of proceedings so that the higher court can review the lower court’s decision for error.

Writ of execution: A court order to enforce a judgment granted to the P by authorizing the sheriff to impose a levy on property, in the court’s jurisdiction, that belongs to the judgment debtor (D).
from: Legal Grind Press first release:

The Little Law Book is an adaptation of LEGALESE by Miriam Kurtzig Freedman (Dell 1990). The book is written for legal description and thus should not be relied upon in the execution of legal decisions. Since laws vary from State to State, we urge you to contact a legal professional in your own State.

Read the online book in the Law Library.

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Who’s who in the courtroom

September 18th, 2014 | Posted by admin in Uncategorized - (0 Comments)

And who says/does what to whom

 

A courtroom can be an overwhelming place, with its formality, its procedures, and its people. Lots of people do different jobs there. The court employs some of them; others play a role in the specific proceeding. Here’s a who’s who that may help.

Prosecution: In a criminal case, the government (state, local, or federal) that brings a defendant (D) to trial for a crime.

Plaintiff (P): The person who sues a D.

Defendant (D): In a criminal case the person charged with a crime. In a civil case the person sued by the P.

Parties: In a civil case, the P and D. Each is a party. Also called litigants. There may be more than one P or D. There may be a large group ofP’s orD’s who don’t even know each other, as in a class action suit.

Witness: A person called by either party in a civil case or by either side in a criminal case to give evidence, through testimony, to the court. The witness testifies (answers questions) under oath.

There are many types of witnesses, including:

  • Character witness: A witness who vouches for the character and standing in the community of a party orD, but who does not know about the specific case before the court.
  • Expert witness: A witness with special knowledge, experience, or training in the field about which he testifies. An expert witness is permitted to give his opinion in court, unlike a lay witness who generally does not give an opinion.
  • Lay witness: A witness generally called to testify about what he knows or saw first-hand or to impart other firsthand knowledge he may have.
  • Material witness: In a criminal case, the witness whose testimony is vital to prove the guilt or innocence of the D.
  • Hostile witness: A witness who is biased against the party or side questioning him.

 

Others in the courtroom include:

Judge: A public officer with authority to hear and decide cases in court.

Bailiff: A court attendant who maintains order in court. He’s the one who shouts, “Order in the court!”

Clerk: A court officer who files documents with the court (such as motions and pleadings), keeps records of all legal proceedings, and generally knows what’s going on. If you have questions about the court’s procedures, ask the clerk!

Law clerk: A person, often a young lawyer, who helps the judge with research and writing decisions and other documents.

Jury: In a jury trial, a group of laypersons who decide the facts in a case at trial. A jury may have six or twelve members, depending on the court and state involved. Called a petit jury.

Grand jury: In a criminal matter, the group of persons convened by the court to hear evidence from the prosecution and decide if there is enough to bring the accused to trial.

Lawyer: Also called attorney, counsel, advocate, and possibly other names, as well…. The person-hired to represent his/her client’s interests to-achieve a specific legal goal. Remember that the client is the employer-not the other way around!

A lawyer is also considered an “officer of the court,” with an obligation to do justice. As you can imagine, these roles may sometimes be challenging and can create conflicts for lawyers.

Prosecuting Attorney: Also called district attorney, assistant district attorney, and government’s lawyer. The lawyer prosecuting a criminal case for the government (The People) or representing the government in any other matter.

Bar: The railing separating the participants in a trial from the observers. Lawyers are called “members of the bar.” To disbar a lawyer is to revoke his license to practice law.

Magistrate: A judge (sometimes called a judicial officer) of a lower court, dealing with misdemeanor cases for example, a justice of the peace.

Sheriff: A law officer of a county who serves summonses, subpoenas, and other legal documents and carries out judgments of the court. A sheriff also calls jurors.

Deputy sheriff: A person appointed by the sheriff to assist him.

 

The following officials may function in administrative agencies, not courts.

Hearing officer: Also called hearing examiner or administrative law judge. A public officer with authority to hear and decide cases in an administrative agency. Examples of these agencies include the tax agencies, labor boards, real estate boards, social security, special education, et cetera.

 

from: Legal Grind Press first release:

The Little Law Book is an adaptation of LEGALESE by Miriam Kurtzig Freedman (Dell 1990). The book is written for legal description and thus should not be relied upon in the execution of legal decisions. Since laws vary from State to State, we urge you to contact a legal professional in your own State.

Read the online book in the Law Library.

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Criminal Law

September 11th, 2014 | Posted by admin in Criminal Law - (0 Comments)

Felonies, Misdemeanors & Violations

Criminal law is the stuff of TV shows, of good guys and bad guys. There are many different kinds of crimes which can be classified in different ways.

  • Examples of violations: Littering, jaywalking, creating a public nuisance, some zoning violations.
  • Examples of traffic violations: Parking violations, and some minor moving violations, such as speeding or passing on the right.
  • Examples of misdemeanors: Simple assault, driving under the influence of alcohol, petty larceny, trespassing, writing a bad check.
  • Examples of felonies: Robbery, burglary, assault with a deadly weapon, rape, murder, perjury, killing or injuring someone while driving under the influence of alcohol or drugs.

Petty offenses do not generally appear on a person’s criminal record, and are generally punishable by a fine, not imprisonment.

Misdemeanors, on the other hand, go on a person’s criminal record and are generally punishable by a fine and/or confinement in jail or reformatory.

Felonies also go on a person’s criminal record. A felon, a person convicted of a felony, loses many civil rights, including the right to vote, and may be punished bya fine and/or more than a year in prison or penitentiary, or by death (capital punishment), in states having the death penalty.

Treason, the most severe crime, goes on a person’s criminal record, and is punishable by death, or by prison for not less than five years.

As for the places to which criminals are confined, here’s a general rule: Jails and reformatories are usually reserved for less severe crimes and often are run by the city or county. Prisons and penitentiaries are usually used for more severe crimes and are run by states or by the federal government.

Larceny: In How Many Ways Can Someone Steal?

Larceny is a crime made up of several elements: the taking of property (something) which belongs to someone else, without his consent and with the intent of permanently depriving him of it. Also known as theft, stealing, and purloining. The taking–from one place to another’is called “asportation.”

  • Grand Larceny: If the property is valuable (usually over two hundred dollars).
  • Petit Larceny: If the property is of low value’as found in the state statute.

There are many types of larceny, as Larcenous Larry and Vicky Victim will now demonstrate:

  • Robbery: If Larry takes something from Vicky directly (off her body) or within her sight, with force, and against her will. Purse snatching is a form of robbery. Pickpocketing is not a form of robbery because, although Larry takes something out of Vicky’s pocket, she is unaware of it and not frightened.
  • Armed Robbery: If Larry has a lethal weapon when he robs Vicky and if Vicky believes he has one.
  • Extortion: If Larry uses threats or other coercion to get Vicky’s money’but does not threaten her personal safety, as in robbery. If, for example, he tells her he will reveal facts about her past (even if true) and she pays him to be quiet, this is extortion. It’s also known as blackmail.
  • Burglary: If Larry takes Vicky’s property from her house.
  • Breaking and Entering is the crime Larry commits if he enters Vicky’s house with the intent to commit a crime there.
  • Embezzlement: If Larry has property entrusted to him but then takes it for himself through fraud. Here, even if he intends to give it back, it’s still embezzlement. For example, this crime may happen among employees who have money entrusted to them but falsify records, deposits, et cetera, to take the money.
  • Pilferage: If Larry takes small amounts (often, again and again) so his larceny won’t be discovered. This crime is a problem many stores have among their employees who pilfer goods.
  • Shoplifting: If Larry takes displayed goods from a store while ‘shopping’ there.
  • False pretenses: Getting money or property by lying with the intent to defraud. Also called ‘misrepresentation.’ For example: submitting phony bills; the “white collar” crime of fraud; submitting “padded” bills for reimbursement. A salesman’s misrepresentation of the facts about a product, which induces a customer to buy it; e.g., if Larry, salesman, lies to Vicky about what’s in the product and she buys it’based on his statements.
  • Misrepresentation is making a statement that is designed to deceive or milead someone. Bad checks are a form of false pretenses called “uttering.” Larry writes a bad check if he knows there is no money in his account to cover it.
  • Receipt of stolen property: If Larry’s friend gets the goods and knows they are stolen. The crime can also occur if a stranger buys the goods from Larry, while knowing they are stolen.

Mistake of fact is not larceny: If Larry takes Vicky’s property but thinks it is his own, there is no larceny because he had no intent to deprive Vicky of her property. This may happen at a restaurant, if Larry takes the wrong umbrella.

Note: The key to larceny crimes is the intent to deprive the owner of his property. However, this is not true for embezzlement, as shown above. Note also that the key to receipt of stolen property is knowledge that the property is ‘hot.’

Homicide

Homicide is the killing of one person by someone else. Here are some examples.

  • –A shoots B and kills him.
  • –C kills D while driving under the influence of alcohol (DWI).
  • –E kills F in self-defense.
  • –G fights with H. H falls, hits his head, and dies.

These are all homicides. But, are they all criminal homicides? If so, are they examples of murder or manslaughter?

Punishment for the different homicides varies greatly.  Note that of all homicides, first-degree murder is the most serious and punished most severely.

There are three broad categories of homicides:

Justifiable

  • –by a soldier in wartime.
  • –by court order (such as execution).
  • –when necessary to prevent a felony, stop a riot, catch a felon.

Excusable

  • –as a result of an accident or a mistake.
  • –as a result of ordinary negligence. (As in a car accident. But see below for gross negligence.)
  • –by someone who has no legal capacity to commit the crime (such as a child).

Criminal

  • –is neither justifiable nor excusable.

State laws divide criminal homicide into different categories. While these differ from state to state, a generalized pattern is summarized below.

Punishment

Crime – Indictment – Trial/Guilty Plea/Plea Bargain – Conviction – Punishment

Punishment is the penalty for a crime. The court’s punishment order is called the sentence. ”I sentence you to ”

Note that the terminology for the person punished changes during the criminal sequence. Before the indictment he is the “accused.” After the indictment, before the conviction, he is the “defendant” (D). Following conviction (or guilty plea), he is the “convict.”

Criminal law sometimes is called penal law (punishment law).

Jails and prisons are sometimes called “penal institutions.” An example from history: Australia was used by the British government as a penal colony for prisoners. Apparently it was preferable to send prisoners ‘down under’ than to incarcerate them back home!

Punishments include:

  • Capital Punishment: The death penalty. (Your head is your “capital.”)
  • Corporal Punishment: Physical punishment, such as lashing. (Your “corpus” is your body.)
  • Imprisonment/Incarceration: Confinement in a jail or prison (or anywhere against your will, actually).
  • Determinate Sentence/Indeterminate Sentence: A determinate sentence is for a fixed time period, as determined by statute. The statue lists the number of months or years of incarceration for specific crimes. Indeterminate sentences have fixed minimum and maximum time periods within that range. The actual length of time a person may serve is set by the statutes, officials, and the prisoner’s behavior. You’ve heard of “time off for good behavior.” This may occur with an indeterminate sentence.
  • Parole: Release from jail or prison after serving part of a sentence. The release is conditional on the convict’s behavior outside prison. If he violates the terms of his release, it may be revoked. In that case he “violates parole” and may be reincarcerated.
  • Fine: A sum of money a convict pays to the court. (This money is different from damages, which a defendant pays a plaintiff.)
  • Restitution: An order that the convict resotre the victim’s property. Example: by paying for repair of damage or by the return of specific items.
  • Suspended sentence: A prison term that a convict does not actually serve in prison. Instead, he is placed on probation. If he violates the terms of probation, then he is sent to serve the term.
  • Probation: Letting the convict serve his term outside prison, during good behavior and, usually, under the supervision of a probation officer. If the convict violates the terms of his probation, he may be incarcerated. Note that generally parole occurs after a convict has been incarcerated for some time, while probation occurs instead of incarceration. The word probation comes from the Latin: proving something. It appears also in “probating” a will (proving its authenticity); or a “probationary” period at work to see if the new employee will work out well. In the case of criminal law it gives a convict a chance to prove his good behavior. The word parole has a Latin root that means to speak. Here the convict promises (says) he will behave himself. Interesting difference.

Following a court’s sentencing order the executive branch (the governor of a state or the President of the U.S.) sometimes (rarely) steps in to change that order, through the power of executive clemency. There are three types:

  • Pardon: The best! Declares the person innocent. Wipes the slate clean. Clears the person’s criminal record.
  • Commutation of sentence: Reduces the punishment. Example: by shortening theprison term or changing a sentence of capital punishment to imprisonment.
  • Reprieve: A temporary suspension in the punishment. Example: to give the convict time to settle his business, deal with family matters, and so on, before he starts a prison term. It’s also a stay of execution of a pending death penalty, often to give a prisoner more time for further appeals to court.

Finally, remember, the Constitution limits punishments in key ways:

  • The Eight Amendment guarantees that there shall be no “cruel and unusual punishment.” The definition of “cruel and unusual” changes over time and is left for the courts to define. Now it generally means punishment that is so disproportionate to the crime that it offends our notions of fundamental fairness. That’s pretty clear, isn’t it! But it means you probably won’t go to jail for jaywalking, and torture is considered “cruel.”
  • The Fifth Amendment protects defendant’s against double jeopardy. This means that if a defendant is found innocent by a court, he may not be tried again for the same offense. However, if the first trial ended in a hung jury (no verdict), he may be tried again. He was not acquitted. If the first case was in state court, he may be tried for the same offense in federal court. Remember, too, that even if a defendant is acquitted in a criminal case, he may still be sued civilly by a victim(s) or other plaintiff(s). That would not be a case of double jeopardy. The language of the Amendment is picturesque: nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.

from: Legal Grind Press first release:

The Little Law Book is an adaptation of LEGALESE by Miriam Kurtzig Freedman (Dell 1990). The book is written for legal description and thus should not be relied upon in the execution of legal decisions. Since laws vary from State to State, we urge you to contact a legal professional in your own State.

Read the online book in the Law Library.

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Marriage and Divorce

September 4th, 2014 | Posted by admin in Family Law - (0 Comments)

GETTING TOGETHER

Marriage is a K (contract). John and Mary promise to fulfill the duties of a married couple as imposed by law. These include support, inheritance, and consortium. Consortium is the legal right of one spouse to the company and affection of the other.

John and Mary marry after fulfilling the state’s requirements (including age and mental competence), obtaining a license, passing blood tests, and having a ceremony with witnesses. Their marriage is a “special” K because John and Mary cannot dissolve (end) it. Only a court can.

Common law Marriage: If John and Mary live in a state that recognizes this type of marriage, they may enter into it as follows: They can live together (cohabit); and they can “hold themselves out” as if they were married, by telling others they are married and referring to themselves as married people. Common law marriages do not require ceremonies or licenses. And contrary, to popular belief, the cohabitation period need not always be as long as seven years. It varies from state to state.

Prenuptial agreement: Also called premarital or antenuptial agreement: A K that two people may write and agree upon. It details their rights and duties, especially with respect to property and debts. The goal of a prenuptial agreement is to minimize future disputes in case of divorce or when one spouse dies.

Living together: From a general legal standpoint this arrangement is not a marriage. John and Mary live together. Period. Recently, however, some states have held that express or implied agreements between John and Mary during their life together are enforceable after they break upSeparation: A legal term that refers to John and Mary’s agreement to live apart although they are married. They may enter into an agreement about all aspects of their separation.

Note: if John or Mary later breaches their agreement, the court will treat it as a breach of K.

SPLITTING UP

Legal separation: A legal term that refers to a court order. If John and Mary cannot agree on terms of a separation, either of them may sue the other in court. If the court orders the terms of separation, the order is a “legal separation.” It may also be called “temporary orders.”

Note: if John or Mary later breaches this order, the breach will be treated as contempt of court.

Desertion or abandonment: The legal result of John’s or Mary’s leaving the other without an agreement between them. Desertion is a ground, or legal cause, of fault divorce. Check state law, as each has a different description of what constitutes desertion.

Remember that laws of marriage and divorce are established by the states because of the Tenth Amendment to the Constitution. These amendment reserves to the state or people all powers not delegated by the Constitution to the federal government. There is no federal marriage and divorce law.

DIVORCE, DISSOLUTION, ANNULMENT

Divorce or dissolution: The end of a marriage by court decree. Dissolution is the term more often used in no-fault actions. Following a divorce, John’s and Mary’s rights and duties are specified from the date of the final decree.

Annulment: A court decree stating that John and Mary never legally married because they didn’t fulfill the requirements of marriage. Perhaps John or Mary fraudulently deceived the other.

Following an annulment, John and Mary revert to their premarital status. They are single, have never been married.

Fault divorce: What may result if John or Mary sues the other for divorce, claiming that the spouse is “at fault.” Note that the fault needs to be proven.

Different grounds of fault include:

  • adultery
  • bigamy
  • conviction of a crime involving moral turpitude (an act that is so vile-or base-that it contravenes basic moral standards)
  • cruelty (mental or physical)
  • desertion or abandonment
  • habitual drunkenness
  • insanity
  • nonsupport

Contested divorce: If John and Mary cannot agree on the terms of their divorce. Their case will be argued, or contested, in court.

Uncontested or default divorce: When John and Mary agree on the terms or one of them does not appear in court. The court finalizes the agreement or default.

No-fault divorce or dissolution: A divorce that is decreed in a state with no-fault divorces. In this type of divorce couples may be able to meet the standards of proof easily. A marriage can be ended for the following reasons, or grounds:

  • irreconcilable differences that have led to an irretrievable breakdown of the marriage (John and Mary cannot get along).
  • separation for a specified time.

Quickie divorce: What occurs if John or Mary goes to a state or country with a short residency requirement for divorce for the purpose of obtaining the divorce.

This kind of divorce dissolves the marriage only. It cannot deal with custody or property issues, because that state or country has no jurisdiction over those issues.

ISSUES IN A DIVORCE/DISSOLUTION ACTION

Alimony: Money for support and maintenance to which one spouse is entitled from the other spouse after a divorce or separation.

The court usually awards an amount based on need. Payments often end if the receiving spouse remarries or if either spouse dies.

Palimony: Support (money) that may be awarded to John or Mary, even if unmarried, after they stop living together. (They must have had an enforceable agreement between them.) This new doctrine in the law exists only in some states.

Child custody: John and Mary will have the rights and duties of care and control of their child following a divorce or separation. Legal custody is the right and duty to make vital decisions about the child’s education, medical care, religious training, and similar issues.

There are two basic arrangements:

  • Custody in one parent with visitation rights in the other. Usually, the child lives with one parent (the custodial parent) while the noncustodial parent may visit with the child.
  • Joint custody. John and Mary both have legal custody. The child may live with each of them at different times. The court usually decides contested custody cases on a standard of the “best interest of the child.” As you can imagine, this is often a difficult standard to apply. The court considers such factors as the past history of childcare, the fitness of the parent(s), and, in some cases, the child’s wishes.

Child support: Payment for the child’s care and support from the noncustodial parent to the custodial parent. These payments usually end at the child’s age of majority, or when he completes his education, or when he becomes emancipated.

Division of property: What property do John and Mary get after a divorce? Property includes anything that can be owned, such as a house, land, jewelry, money, stocks, patents, and rights (e.g., a copyright on a book).

There are two major division patterns in the different states….

  • Common law (separate property): John and Mary may each have their own (separate property) and may hold property together, such as a car or a house (marital property).In a divorce they (or the court) decide how to divide all the different categories of property, according to equitable distribution.
  • Community property: John and Mary generally continue to hold what they had before the marriage. However, all property earned during the marriage is owned by both. In a divorce this community property is divided equally between them. The premarriage property generally remains with John or Mary, as it was.

Divorce decree: The court order that ends the marriage. It determines all the issues between John and Mary.

Interlocutory decree (decree nisi): A temporary decree, issued during the proceedings. There is generally a waiting period before the decree can become final.

Final decree: Issued at the end of all proceedings. Any breach of the decree is treated as contempt of court.
from: Legal Grind Press first release:

The Little Law Book is an adaptation of LEGALESE by Miriam Kurtzig Freedman (Dell 1990). The book is written for legal description and thus should not be relied upon in the execution of legal decisions. Since laws vary from State to State, we urge you to contact a legal professional in your own State.

Read the online book in the Law Library.

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Small Claims Court Tips

August 28th, 2014 | Posted by admin in Uncategorized - (0 Comments)

Let’s say Sam takes eight shirts to the cleaners. Five of them are fine, but three are ruined. The cleaners will assume no responsibility for the damage. What can Sam do?

Sue buys a new table. When she gets home, she discovers many scratches on it. The store won’t take it back.

Betsy’s landlord won’t return her security deposit after she moves out of the apartment.

PICTURE ONE OF THE ABOVE

In these cases, and countless others like them, what can folks do? They have several options, such as: they can try to settle the problem with the other side, forget about it, or sue in small claims court.
Small claims courts are designed to provide an informal, fast, and inexpensive way to settle disputes. They are used in uncomplicated civil cases that involve relatively small dollar amounts. Generally, a person can sue someone without using a lawyer. However, it may be worthwhile to consult a lawyer before proceeding with a case, to assess the case and strategies to use.

The first and very basic issue is: Do you have a case? That is, do you have a “cause of action?” Remember, just because something bad happened does not mean it’s anyone’s fault legally. Just because you are (even rightfully) mad doesn’t mean the court can help you.

The basic question is: Has the D done a legal wrong for which the P can sue? Usually, this means that you have to sue on a legal theory, such as negligence, breach of K, implied warranty, and so on.

Every state sets its own maximum for which someone can sue in small claims court. These maximums range up to $7,500 or so. Check state limits! To find out the maximum in any state, call the clerk of the small claims court.

As well, on the web, use a search engine to take you to “small claims court,” where many states provide information.

In these courts the judge or arbitrator decides the entire matter: both the facts involved and the applicable law. In some states parties may appeal these decisions to higher courts; in others they may not. Here is a summary of the procedure involved

1. The plaintiff (P) fills out a complaint or claim against the defendant (D). This document states the basic facts and what the P seeks to win. Many times the court has a standard form that should be used. Contact the clerk to get one.

2. The P pays a filing fee to the court. If the D loses, he may have to reimburse the P later.

3. The P gets a hearing date and a case number from the clerk.

4. The P gets the complaint delivered to the D, usually by having the clerk mail it with a summons or by having the sheriff deliver it. The summons orders the D to answer the complaint by a certain date. It is the P’s responsibility to have the complaint delivered by any means necessary, as he cannot proceed in court without that. Remember the basic due process notice requirements in American law!

5. The D may offer to settle the case or may, in some states, file his answer (also called “response”). In some states the D need not file an answer at all. At this time the D may choose to settle or use the answer to prepare his case.

6. Either party may ask the clerk for a continuance (postponement) if he/they cannot appear in court on the assigned date.

7. On the assigned date, both parties should appear in court at the proper time. Otherwise they risk losing by default. As in sports, if one side fails to appear, s/he may lose and get a default judgment against her or him.

8. Both parties should prepare their case by having the appropriate documents and witnesses. Documents may include sales slips, photos of damage, advertising that was relied on, letters, and anything else that may prove the case.

9. Depending on the judge or arbitrator and state where the case is heard, both parties may be allowed to present their story (with the P going first), present witnesses, question the witnesses of the other side, answer the questions posed by the judge or arbitrator, and so on.

10. The judge or arbitrator may announce the decision at the end of the hearing or may send it within a few days. If the P wins, he will get an order, called a judgment, against the D for a specific amount of money or another form of payment. The D now becomes the judgment debtor.

11. Now starts the challenge of collecting on that judgment!

Remember: Procedures vary from state to state. Visit a small claims court in your area to see how the process works. It’s the best way to prepare for your day in court.

 

from: Legal Grind Press first release:

The Little Law Book is an adaptation of LEGALESE by Miriam Kurtzig Freedman (Dell 1990). The book is written for legal description and thus should not be relied upon in the execution of legal decisions. Since laws vary from State to State, we urge you to contact a legal professional in your own State.

Read the online book in the Law Library.

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