Civil Law

The Basics

Civil Law

  • Is between two parties (individuals, firms, businesses, governments, etc.)

    • When you hear “lawsuit” think civil law

    • Judge Judy

Criminal Law

  • Society says it’s a harm against society

    • There is a crime committed

    • Law & Order

Who is involved in a civil case?

Plaintiff

  • Person that makes the complaint

    • Brings the case to court

    • Feels they’ve been harmed

      • Not necessarily physical harm

    • Seeking redress from the court

      • Redress - remedy or compensation for a wrong or grievance

Defendant

  • Must defend themselves against the plaintiff’s arguments

Types of civil law:

Tort law

  • Tort - a harm or injury committed by a person against another, other than a breach of contract

    • Awards damages for harm suffered

      • Damages - a sum of money claimed or awarded in compensation for a loss or an injury

    • Reactive form of law

Three basic elements of a tort case

  • 1. The plaintiff must show that the defendant had a legal duty to protect from harm

    • 2. The plaintiff must show that the defendant failed to live up to their responsibility not to harm

    • 3. The plaintiff must show that they suffered some damage

Contract law

  • One of the most important areas of civil law

    • A contract:

      • A legal agreement between two or more parties to do something in the future

      • An agreement that brings some special responsibilities and/or protections

      • Imposes responsibilities and expectations

Deals with these questions:

  • What are the elements of a valid contract?

    • How should a judge or jury interpret the provisions of a contact?

    • Have the provisions or obligations of the contract been met or conversely been violated?

    • If a contract has been violated, what sort of damages did the victim incur?

    • What is the violator of the contract required to do to compensate the victim?

Property law

  • Defines what property is

    • Property - anything that can be legally owned and controlled by an individual person

Categories of Property

  • Real; permanent and substantial

Land, buildings, crops, livestock

  • Personal; everything else

Cars, clothes, small stuff

  • Intellectual property

Inventions, literature, symbols, images

Deals with these questions:

  • Who owns or has exclusive possession of a piece of property?

    • Who is allowed to use a given piece of property?

    • Who can dispose of property?

    • Who can sell property?

Common instruments of property law:

  • Deeds

    • Titles to homes

    • Titles to automobiles

    • Leases for rental properties

    • Leases for automobiles or other equipment

Estate or succession law

  • Law that deals with the issues that arise from the death of an individual

    • Estate - the collection of property, assets, and obligations or debts that a person has at the time of their death

Deals with:

  • Establishing wills

Will - the legal instrument that permits a person to make decisions on how their estate will be managed and distributed after their death

Wills are proactive documents

Guides the court if there is a dispute

No will? No problem

Well maybe a little problem, but there is a formula in place

  • The process of probate - determining is a will is valid

    • Executor - a person or institution appointed to carry out the terms of the will

    • The will usually names one or more executors

A good will has several

Their job is to protect the estate

Legitimate debts have to be paid

Sometimes non-legitimate claims come in too

If no executor is named, the court can appoint one

Domestic relations law (family law)

  • Formerly known as Family Law

    • Still often informally called family law

    • Deals with disputes within family structures

Concerned with:

  • Marriage

    • Marital separation

    • Divorce

    • Alimony

    • Paternity

    • Child custody

    • Child support

    • Parental rights/adoption

Who is legally married?

  • Traditionally only between a man and a women

No longer true

Overtime, two types of marriage developed:
Common Law Marriage

Never formally married by church or state, but claim to be married

Statutory Marriage

The state create a formal law of marriage

  • Some states still have “common law marriage”

If you claim to be married for a set number of years, you’re legally married

Usually 5 or 10 years depending on the state

Although not really - there are statutes that regulate it…so it’s really statutory marriage

  • Full faith and credit clause of the Constitution

    • Defense of Marriage Act - 1996

    • Obergefell v. Hodges - 2015

Separation - a legal term

  • In some states you have to be legally separated before you can get divorced

Divorce - the actual split of the marriage

  • Before 1965 it was very hard to get a divorce

Had to have a good reason; “show cause”

  • Now all 50 states have “no fault divorce”

“irreconcilable differences”

Alimony - spousal support

  • Temporary, or permanent

    • Pre 1970s more permanent

    • After 1970s more temporary

Paternity - Determining identity of father

Child Custody - who retains custody?

  • “Tender Years” Doctrine

Child Support - who pays for the child?

Termination of custody of rights

Adoption

New issues civil law is dealing with:

  • Living wills and right to die debates

    • New reproductive technology

In vitro fertilization

Surrogate pregnancies

Civil rights law

  • Law to protect individual rights from abuse

    • Civil rights help to create more egalitarian society

    • This creates new classes of litigants

    • In the old days…

      • Sovereign Immunity - king and queen are appointed by God. Can do no harm

      • You couldn’t sue the government unless you had permission

    • Now, you can sue the government

Current civil rights law debates

Qualified Immunity (Pierson v. Ray - 1967)

A type of legal immunity

Grants government officers, including law enforcement officers, performing discretionary functions immunity from civil suits unless the plaintiff shows that the official violated “clearly established statutory or constitutional rights of which a reasonable person would have known”

In practice has come to mean that you can’t sue public employees for doing their job, even if it’s a situation where you could normally sue someone

You can still sue the government for its employees’ actions

For example, you can sue the city of Morgantown for the actions of a Morgantown Police Officer, but you can not sue the individual officer

Why have qualified immunity?

“The purpose of qualified immunity is to protect officials from liability that could hamper their ability to do their jibs and subject their game-time decisions to a judicial system ‘ill-suited’ to make such second guesses” - Vermont Supreme Court

Proponents of qualified immunity argue that government officials, specifically law enforcement, would not be able to do an adequate job of protecting their communities if they were subject to potential lawsuits every time they interact with citizens

Criticisms of qualified immunity

Difficulty of suing public officials

Immunizes public officials even when there is clear legal misconduct (remember they have to explicitly violate a “clearly established constitutional right” to be sued)

How can something ever become “clearly established” when lawsuits are not allowed…?

Police Brutality

Qualified immunity often allows police brutality to go unpunished (at least within the legal system, officers can still be fired from their job)

Has created a “shoot first, think later” approach to policing

No federal law grants qualified immunity - created by the Supreme Court precedent

There have been attempts to end qualified immunity for police officers at the federal level - they have failed

Some states have ended/limited qualified immunity

New Mexico - outright ban on qualified immunity for all government workers

Colorado - outright ban on qualified immunity for police officers

New York - individual police officers can be sued with some restrictions

Connecticut - qualified immunity still exists, but is much less strict

Civil Trial Process

  • In a civil trial, the litigants (plaintiff and defendant) are responsible for convincing others of their story

    • Civil trials and criminal trials have different: Standards of Proof

There are three common standards of proof:

Preponderance of the evidence (civil trials)

  • Only in civil trials

    • After listening to all of the evidence, which story is more convincing and credible?

Clear and convincing evidence (civil trials)

  • More evidence than preponderance

    • “Highly and substantially more probable to be true than not”

    • State legislatures can require it for certain cases

      • Juvenile cases, parental rights cases, etc.

    • Again, just for civil trials

Beyond a reasonable doubt (criminal trials)

  • Note: only for criminal trials

    • The defendant must be found guilty beyond a reasonable doubt, the defendant will acquitted

      • Aquitted - to be found not guilty of criminal charge

      • Important note: just because someone is acquitted for a crime, does not mean that the victim's family cannot sue them in a civil case

    • Very difficult standard

      • Purposely made this way

Example: OJ Simpson

  • Both criminal and civil cases

Criminal Case

  • Charged with 2 counts of homicide

    • Needed proof beyond reasonable doubt

    • He didn’t have to testify

    • He was acquitted

Civil Case

  • Goldman’s father sues for wrongful death

    • Moves to preponderance of evidence

    • OJ has to take the stand

    • Found him responsible for both deaths

    • He has to pay 33.5 million to victims’ family

Other differences between civil and criminal cases:

  • No right to remain silent

    • You must testify is called to do so

    • No right to counsel

      • It is your responsibility to get a lawyer if you want one

Civil Court seeks to answer two basic questions:

Question of fact

  • What happened?

Question of law

  • How does the law apply

Jury Trial

  • In a jury trial, juries are responsible for establishing what happened based on evidence

    • The judge determines how the law applies once the jury establishes what happened

    • Sometimes litigants may want a Bench Trial

      • This means a trial with no jury, just a judge

Steps of a civil court case:

Recognition of a case

  • Do people recognize they have a case?

    • Do they perdue that case?

Looking for a lawyer

  • Most common way to find a lawyer is word of mouth

    • No right to counsel

    • No lawyer? Low chance of winning

      • Equal justice under the law?

Alternatives to finding a lawyer
Federal legal Services

Government program that provides representation to low-income citizens

Most people don’t qualify

Only for the most serious civil cases

Legal Aid Societies

Where private lawyers donate services

First: German Fraternal Society in 1876

Waiting lists are very long

Note: some cases can’t be taken

Must be taken on contingency

Pre-paid legal services

Unions or employers pay a set fee ro a group of lawyers who provide services

Legal referral services

Lawyers will discuss your problem and refer you ti ither lawyers

Word of mouth

Paying for a lawyer

  • Usually you know how you will pay

    • A case on “Contingency” - client pays no legal fees unless they win

      • Raises political and professional questions

      • Logic: increase access to system

      • The system has a few opponents

Businesses and Insurance Companies

Reformers

Standard Costs:

33.3% settles without a suit + minimal fees

40% if settled with a suit + a decent amount of fees

50% if an appeal is taken by either + lots of fees

Contingency Opponent - Businesses

Contingency fee lawyers have expanded the number of grievances

Businesses are paying more in torts

They claim this makes them less competitive

Businesses want to limit access to torts

Contingency Opponent - Reformers

Reformers want to make contingency cases more equitable for clients

Claim system rewards lawyers excessively at expense of clients

Lawyers minimize risk by picking winners

ABA Ethics Committee Proposal for Contingency Reform:

Note: did not pass

Would have required a 60 day period in which defendants could settle

If they settle in that time, lawyer gets less

If they don’t, lawyer gets paid higher rates on money they had to “work” for

Lawyers didn’t like this proposal

If you haggle for a car, why not law?

Lawyers and clients aren’t on equal footing

Lawyers claim judiciary should deal with it

Picking a court

  • What court will handle the issue?

    • State: domestic relations, estates, property

    • Federal: bankruptcy

    • Other things: litigants must choose

    • Diversity Jurisdiction

      • Amount over 75k

      • Case arose under state law

      • Litigants are residents of different states

      • There are limits to this:

Worldwide V.W. v. Woodson (1980)

Filing a complaint - summons

  • Legal document that tells the court what a plaintiff’s case is about

Three main functions:

  • Tell why the court has jurisdiction

    • Explain the claim

    • Explain relief being sought

    • Defendant is informed through summons

Filing a response

  • Defendant can file an answer

    • Response explains their position

    • No response: default judgment

      • Like a forfeit

      • Judge relies on complaint

      • Will you really get that money?

    • Responses a defendant can make:

      • Admit to allegations and agree to damage sought

      • Deny allegations (this sets up the possibility of trial)

      • Affirmative defense - it’s a bad complaint

      • Court can’t legally provide relief

      • Agree to facts. Disagree with legitimacy of damages

      • Cross-complaint - Now I’m suing you!

Pre-trial activities

  • Note: everything leading up to this is usually where cases are settled. Going to trial is rare

Motions

  • Formally asking a court to make a decision

    • Usually occur in pre-trial to set up a case

    • Motions can be raised at any time

Pretrial - Motions

Motions to Quash

Asking the court to void a summons because it wasn’t properly served or presented to the defendant

Motion to strike

Asking the court to strike certain parts of the plaintiff’s complaint because they are not relevant

Motion to make more definite

Asking for your opponent to clarify things before pleading

Motion to dismiss

The complaint is not a good one, and the whole thing should be thrown out

Motion for summary judgment

The defendant explicitly tells the court that it isn’t challenging the facts of the case, just the applied law

Pre-trial - Discovery

  • Allowing either side access to material in the hands of the opposing side

No access to notes or plans

  • Idea is to foster a resolution

    • Process imposed on both sides

    • Reminiscent of inquisitorial system

    • Both sides can obtain more information

    • Depositions - asking witness questions under oath

    • Interrogatories - witnesses respond in writing

    • Affidavits - submitting facts of case to court

Pre-trial - Conferences

  • A pre-trial meeting is required by most courts

    • Increases possibility of settling

    • The American court system wants cases to settle

    • After conference, meet with judge

    • Judge makes written record

    • Judges vary on how the approach this aspect of the job

    • Social Science Research: pre-trial conferences do not make trials quicker, but they do increase quality

Less likely to produce an appeal

The Trial

  • Going to trial is expensive!

    • Still can settle in trial

Trial consist of:

  • Jury Selection and voir dire hearing

    • Opening Statements

    • Witness/Evidence

    • Closing Arguments

    • Jury Charge

    • Jury Deliberations

    • Judgment

The Trial - Jury Selection
Jury Array

A list of potential jurors

Compiled from other databases

Selective Service, DMV records, registered voters, etc.

Problems with this?

These lists tend to under-represent the poor and minorities

General Jury Panel

The group of potential jurors called to the courthouse to wait

Voir dire hearing

French for “state the truth”

Screening process for potential jurors

The Trial - Voir Dire

  • Judges have lots of control over how they conduct voir dire in their courtroom

    • Judges generally ask some basic questions first

Do you know the litigants?

Will you be fair?

  • Lawyers ask more specific and personal questions to try and discover any biases

Lawyers can choose to exclude potential jurors

Challenge for cause

Legal disqualification

Unlimited number

Peremptory challenge

Any reason

Limited number

  • In reality the jury is not “selected” as much as it is formed by those who were not excluded

    • Size of the jury varies

In WV for civil cases its 6 + 1 alternate

Opening Statements

  • Lawyers preview their cases to the jurors

    • A narrative

    • Not a place for facts or evidence yet

Each side can present in a trial:

  • Narrative

    • Witnesses

    • Physical evidence

Witnesses
Expert witness

A person who is permitted to testify at a trial because of special knowledge or proficiency in a particular field that is relevant to the case

  • Each side can call witnesses

Lawyers prepare the witness on their side for testimony

Three types of examination or witness questioning

Direct Examination

Lawyer questions the witness to help build their case

Only allowed to speak on first hand knowledge

Cross Examination

Opposing lawyer asks questions

Test veracity of witnesses

Redirect examination

Lawyer repairs damage done by opposing lawyer by asking witness to clarify or restate things

The Trial- The Record

  • The court record is extremely important

    • A court’s record is all appellate courts have

They do not retry cases

  • Attorneys object to things that might appear later in an appeal

    • A court reporter records everything said in the courtroom - word for word

They use a fancy keyboard that is more efficient than the QWERTY keyboard

The Trial - Closing Arguments

  • Lawyers summarize evidence

    • It is their opportunity to speak to the jury

Summarize what they heard

Tell them how they should rule

Why they should rule that way

The Trial - Jury Charge

  • The judge gives instructions to jury

    • Tells them what level of evidence to use

Two types of jury charge

Requestered instructions

Patterned instructions

Requested Instructions

Lawyers suggest what the judge should include in charge

Litigants can motion for special charges

Benefit:

Tailored case

Negative:

Possibility of appeal

Patterned Instructions

Model and uniform instructions

Developed at state level or specific court

Supporters:

Increase accuracy, impartiality, uniformity, save time

Opponents:

Decrease flexibility

General problems with jury instructions:

They can be confusing to normal people

They are long. Hard to remember.

Law is explained after the jury hears evidence

Reformers:

Jurors need to hear before and after

Problem:

Jurors might fit evidence to charge

Jury Deliberations

  • After charge, jury must deliberate

    • Jury ranges from 6 to 12

    • Small jury

Unanimous

  • Large jury

Super majority (depends of state)

  • Jury decides “what happened?”

    • If jury decides for defendant: trial is over

    • If jury decides for plaintiff: trial moves to next stage: determination of judgment

    • Some cases might ask for special verdict

    • Jury can also split their verdict

The Trial - Judgement

  • Either the judge or the jury determines what remedy needs to be provided

Critics

Juries favor individuals over businesses

Juries see companies as having money

This ties to a perceived litigation crisis

Evidence shows that juries tend to be fair

Much of criticism steps from media attention to unusual cases

One remedy:

Judges can reduce awards

Verdict

Side Story: History of Right to Counsel

Requirement for criminal counsel - 1960s

  • Gideon v. Wainwright - landmark Supreme Court case

    • Gideon’s Trumpet - excellent movie about the case

Historical reasons for this:

  • England and US developed differently

    • Magna Carta (England) - 1215

      • Legal system needed to provide more access

      • Became guarantee at no cost

    • In US things developed differently

    • No guarantee at first - but there was a reason

    • The colonies did not like how English courts were hard to access

    • They wanted courts available to all

      • Some colonies even outlawed the professional practice of law

    • Ideal world of no lawyers didn’t happen

    • The poor had to depend on donations until the government began funding legal services

Jury Instruction Controversy

  • We previously mentioned there is some debate about Jury Instructions

    • A pair of scholars decided to investigate

    • Steele and Thornburg (1998)

      • Research Questions:

        • What level of comprehension do jurors have?

        • Could we increase that comprehension

Steele and Thornburg (1998)

Participants

  • Jurors not selected in Dallas Courthouse

There were four groups:

  • 1. Read instructions with legal language

    • 2. Read instructions in plain English

    • 3. Given written instructions with legal language

    • 4. Given written instructions with plain English

Subjects were asked to paraphrase what they heard or read

Findings

  • Written instructions foster better comprehension

    • Jury comprehension is overall pretty low

Problems with the Study

They test memory

  • Does that measure comprehension

They test individuals

  • Real juries are groups

When they all put their memories together, they likely remember much more

The individuals in the study were given very broad “instructions”

  • In a real trial, they would be given much more specific instructions and possibly remember/understand them better

    • The scholars concluded that reform was needed

Why reform is unlikely

  • Lawyers believe jurors understand

    • Lawyers think low comprehension helps them

    • Lawyers fear appellate courts might overturn

    • Legal concepts are purposefully vague

For example: “reasonable person,” “preponderance of the evidence”

Tort Law

  • A tort is a type of action by one individual that causes harm to another

2 important types:

Negligence suit

  • Tough case to prove

    • Plaintiff has to show the jury that defendant caused harm by not using reasonable care

Strict liability suit

  • Easier to prove

    • Includes product liability

    • Plaintiff has to show that defendant’s actions were unreasonably dangerous, regardless of precautions taken

    • For both negligence and strict liability suits, the plaintiff must show that there was injury or damage and the defendant’s actions caused it

Dreisonstok v. Volkswagenwerk (1974)

  • Court rules against VW

    • The case is appealed

    • Appeals court has to review precedent

      • Precedent from Evans:

        • Collisions aren’t intended use; manufacturer doesn’t have to foresee

      • Precedent from Larsen:

        • Can;t make crash proof cars but must eliminate rick of unreasonable injury

    • Appeals court rules for VW

    • No unreasonable risk in design

    • Girl didn’t use seatbelt

    • Anu vehicle would have done this

    • Macro outcome: safer cars

    • Micro outcome: co compensation

Defamation Law

  • Action that lowers the reputation of plaintiff

Libel

  • Written form

Slander

  • Oral form

    • Law treats them differently

      • Libel is generally more severe

      • Slander is hard to prove

        • Generally the plaintiff must prove actual suffered damages

    • Truth is the best defense

      • If what was said is true, it doesn’t matter if it caused damages

    • Some states have an explicit right to privacy

    • Valentine v. CBS, Inc. (1983)

English standard

  • Deference to privacy

    • Burden of proof on those being accused some laws protect officials

    • Harder for press

Canadian Standard

  • Mostly follows English standard

    • Much easier to win defamation suit if plaintiff

    • Worries that this system stifles free speech

United States Standard

  • Burden of proof on those making the claim

    • New York Times v. Sullivan (1964)

      • Case pertain to public figures and ability to criticize them

      • Public figures must prove “actual malice” on the part of reporters or publishers

    • Plaintiffs must show that defamation was harmful

Contact Law

  • A contract is an agreement which is undergirded by the law and the legal system

Five elements of a valid contract

  • An agreement

    • Two competent parties

    • True assent or agreement

    • Consideration

    • Legal subject matter

Engel (1984): The Oven Bird’s Song

  • How do local attitudes affect usage of the court system?

    • Illinois - “Slander County”

    • Increase in migrant workers + industrial companies = New demographics

He splits the county into 2 groups:

Insiders

Long-time residents
Individualists

A person who lives with risks is responsible for avoiding them

If an injury befalls them it is probably their fault

Therefore, it is improper to seek compensation from a defendant

Outsiders

  • Newcomers to the area

    • Juries in Sander County very pro-defendant

    • Broken contracts? Pro-plaintiff

    • New residents - different norms

    • Sander county litigates less

    • Newcomers are at a disadvantage, but are the most likely to litigate

Sally Engle Merry (1979): Going to Court

How are disputes managed?

  • Gossip

    • Violence

    • Reference to outsiders

    • Avoidance

    • Endurance

    • Lumping it

    • Those who use the court system use it as a weapon

    • It forces the person to come to court

    • The court usually doesn;t solve problems

    • Those involved don’t usually want a dialogue

Those more likely to use the system:

  • Women, the weak, old men, less likely to use violence

    • Different racial groups in conflict

    • The Chinese used very little litigation. Closely-knit

    • Residents who had inside court knowledge

    • Residents who were planning to leave

    • Most conflicts were managed by avoidance

O’Barr and Conley (1988)

  • Interview litigants in small claims courts

    • Findings

      • Most plaintiffs have been influenced by T.V.

      • They don’t understand that criminal and civil trials are different

      • Plaintiffs overestimate the power if the civil justice system

Takao Tanase (1990)

  • In Japan, trials are considered dakatsu

    • Japan had 11.3k lawyers

    • Japanese lawyers don’t specialize

    • You don’t need a lawyer for most things

    • Japanese culture: embarrassing to discuss problems

    • Our (US) culture: people fight to get on TV

    • Japanese bar is smaller

    • Pass rate is 1.6%

    • US lawyers are preventative

    • Lawyers in Japan only used when a legal issue is critical

Litigation Rates: An explosion?

  • This is the notion that Americans litigate too much, and it is hurting businesses

Researchers can look at it two ways:

  • Across time (longitudinal)

    • Across cultures

Civil Litigation Research Project, 1980

  • Two researchers - Rich Miller and Austin Sarat

    • How much civil litigation is there?

    • How much makes it to the courthouse?

    • Study interviews 1000 people over phone

      • 5 different regions across the US

    • Did you suffer anything that could have been a potential case? What did you do?

Continuum of respondent reactions:

  • Grievances

    • Claims

    • Disputes

    • Meeting with a lawyer

    • Court filings

Bayless Manning (1977)

  • He was Dean of Stanford Law in California

    • Note: this is an opinion piece

    • Note: he doesn’t provide any empirical evidence

    • He says: No doubt that there is an explosion

Problems caused by the explosion:

  • Simple dollar costs

    • Clogged judicial system

    • Legislative ineffectiveness

    • Loss of public respect for law and the system

    • More litigation hurts the poor

What causes this?

  • The federal system

    • Historical reliance on courts and law

    • Interest group representation

    • Elected officials and score-keeping

    • Technology and social change

    • Bureaucracy

    • No braking mechanisms

Marc Galanter (1986)

  • Examines litigation across cultures

Number of civil cases per 1000 citizens

  • Australia - 62.06

    • New Zealand - Pols Pols 53.32

    • Canada - 46.58

    • US - 44.0

    • West Germany - 23.25

    • Italy - 9.66

    • Netherlands - 8.25

    • Spain - 3.45

    • In 1970s, US wasn’t litigation leader

    • Adversarial common law systems litigate more than inquisitorial systems

    • US does not lead in number of lawyers

    • Galanter admits that this kind of data has validity problems

Wayne McIntosh (1987)

  • Civil courts in ST. Louis from 1820 to 1970

    • Are we a more litigious society compared to our past?

    • Most important explanatory variable for court activity was increased population

    • More people = more court usage

    • When controlling for population increases, still a rise in cases filed

    • But the number of cases litigated was stagnant

    • Hypothesis: modern Americans used case filings to show opponents they are serious, but most Americans handle outside of court

    • Decrease in contract and property law

    • Torts increased at the turn of the century, and then went down

    • Big increase in family law around 1945

    • McIntosh doesn’t find much of a litigation explosion

Litigation Explosion? Wrapping up

  • In another study, Galanter finds that as income rises, so does likelihood to litigate

    • Might be wealthy actors suing each other

    • Some lawsuits, like the McDonalds mentioned in the book, get lots of attention

      • Makes people think it’s happening all the time

    • Galanter thinks explosion is urban legend

    • We don’t know if we are experiencing an explosion, but we probably aren’t