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A guide to the rules attorneys follow in civil lawsuits.
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With your course I defeated many collection agencies and their lawyers. Your course is excellent!
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- Bailee
- Bailiff
- An officer of the court, usually a sheriff's deputy, whose Duty is to protect everyone within the court and to carry out every order of the judge. Bailiffs are typically very kind men and women, however they do carry weapons and have authority to do whatever is necessary to keep the peace and carry out the judges' orders, whether it's carrying the jury foreman's verdict form to the bench or escorting someone out of the courtroom in handcuffs and leg irons.
- Bailment
- Tender of a thing (tangible personal property as opposed to money or other intangible personal property) to one entrusted with its care (e.g., a warehouseman or bicycle shop). If the tender is accepted, the one who accepts is called the bailee, and the one who made the tender the bailor. Applies only to goods and other things, not money or intangibles.
- Bailor
- Bar
- Contrary to a false belief promoted on the internet by well-meaning people who cling to conspiracy theories, this word does not mean "British Accreditation Registry" or anything of the sort.
- The "bar" is simply a railing or partial partition that separates the public gallery from the courtroom arena where parties present their arguments in person or by lawful representatives (who are permitted to bring their cases "before the bar" as opposed to being required to stay "behind the bar" with those who have no part in the word battle).
- Anyone whose interest is at stake in a courtroom controversy is permitted to bring his or her case before the bar, i.e., to pass from the public gallery into that part of the room within the bar to present evidence and legal argument. The area of a courtroom within the bar where arguments are made and evidence presented is sometimes called "the bar" to distinguish it from "the bench" (i.e., that part of the courtroom on the business side of the bar but behind a bench restricted to judges, their clerks, bailiffs, and other officials who are not parties to the "action" within the bar.
- In other words, at the far end of every courtroom is an area called "the bench", reserved for judicial officials, an area that has its own doors that lead to chambers within the courthouse. At the other end of the courtroom doors admit the public to a gallery, a seating area that is normally open to anyone who cares to learn more about our judicial system. Across the middle of the room is a railing or partial partition past which members of the general public are not permitted to go, for their presence would interfere with justice. In the middle is the arena where justice seeks its due.
- This is the "bar".
- Those who practice law as a profession (men and women who advise and assist members of the public who choose to study disciplines other than law) make their living at the bar. In time the professionals came to be known as members of the bar or, simply, "the bar". Anyone of good character willing to study an accredited curriculum and pass the bar exam can be admitted to practice before the bar. It is not a secret society, and its members have made no secret oaths to the British Crown ... and those who say otherwise are liars. The word has nothing whatever to do with Britain ... for courtrooms in every nation have a bar of some form, barring the public who have no interest in the outcome of controversies from interfering with those whose future depends on what is decided from the bench as a result of what is presented (decently and in order) from within the bar.
- It is regrettable that Public Legal Education has fallen so far behind in this wonderful nation that self-seeking liars would be able to foist an utterly ridiculous concept on an uninformed public in an effort to cast a cloud of treason on lawyers and judges without whom none in America would have liberty or any hope of true justice. To accuse all lawyers of making a secret oath to the British Crown (as those who call their selfish rebellion patriotism viciously are doing) is but evidence of their disregard for the truth upon which all human hope for progress must depend. Only the truth is true. Support Public Legal Education.
- Barratry
- The practice of "manufacturing" lawsuits out of thin air. As Black defines barratry, it is "the practice of exciting groundless judicial proceedings". It is, unfortunately, a practice of unscrupulous lawyers that has seen an alarming increase in recent years. Through increasing public knowledge of legal proceedings generally, and the principles of American justice in particular, we may hope to stem the tide of lawless lawyering by empowering people to better understand what is going on in our courts ... and what should be going on in our courts.
- Battery
- Many years ago, when life was simpler than today, battery was the infliction of some form of violence upon another, i.e., the use of force. The term was most commonly used to describe beating another or striking the other forcibly with an object. Today battery takes place when any person touches another without consent ... with or without an object. Beware. The mere touching of another person without that person's consent is considered battery by today's courts. No harm need be done to the other person. Purely innocent intent can result in an action for battery. Don't touch without permission.
- Beneficial Title
- The beneficiary of a trust is said to hold "beneficial title" to the trust assets, while the trustee is said to hold "legal title" for the beneficiary's benefit. Outside trust interests, title is whole and not split. But, when a trust is created, title splits into the two types. The holder of beneficial title cannot sell or manage the assets, since he does not have legal title. The trustee can sell or manage but may not use the assets, since he holds only legal title. More at Trusts.
- Best Evidence Rule
- Many people (including novice lawyers) encounter disastrous consequences when they assume their "ton of evidence" cannot be admitted to the court record, i.e., what they thought was evidence that would win their case turns out to be inadmissible, that the court will not allow it to be admitted to the court record or relied upon in proving one's case".
- If one's opponent is competent and not asleep at the wheel, an objection will surely be made based on the Best Evidence Rule. This powerful rule requires original documents to be offered as evidence rather than mere copies that can easily be forged using inexpensive technology available today to almost everyone.
- Refer to and rely on the official rules of evidence in your jurisdiction to learn more about the best evidence rule. Above all, avoid making the all-too-common mistake of thinking because you have a "ton of evidence" that the stuff you think is evidence will be admitted when the other side jumps up to demand, "Objection, your Honor. Best evidence rule!"
- Bias
- A limitation on an individual's power to decide based solely on justice and fair-mindedness. Bias results from personal interest in the outcome. For example, a witness might be biased against his former employer in a case between the employer and another disgruntled employee. An employer might be biased against a former employee whom the employer believes slandered the business. Most of us are affected by bias at some level. The best of us are little effected by it when the goal is justice and a fair-minded outcome.
- Bigamy
- Being "married" to more than one person. Purists argue in terms of "what is marriage?" Some offer convincing arguments. Yet, in the face of constant pressures for change, civil law protects marriage of one man to one woman. Would that men and women would protect the civil law of marriage. Would that men and women would learn what civil life is all about. Bigamy is a felony crime in many states, i.e., a crime authorizing incarceration by force.
- Binding
- A contract is said to be binding when it has the power of the law behind it, i.e., when a party who suffers damages as a result of breach can sue upon it. Not all contracts can be sued upon. For example, a contract in contemplation of marriage (e.g., where Tommy promises Suzy he'll marry her if she kisses him) cannot be enforced in any court in America ... not even if it's written on parchment, signed, witnessed, and sealed with wax and velvet ribbons. The courts simply will not hear the case. If Tommy promises to paint Suzy's house for $800 and she gives him $800, the contract may be binding ... or it may not. It could depend on whether the agreement is in writing, signed, dated, or otherwise complies with the law of the state jurisdiction where the promise is made. Most states have a "statute of frauds" that dates back to the common law of England to protect people from those who would commit perjury in court, claiming they had a verbal agreement when there never was an agreement. Such statutes require contracts to be in writing if they are for the sale of goods for more than a particular amount of money or for services that cannot be performed within the space of a particular time frame. Some contracts require the signatures of witness (e.g., deeds or other conveyances of land) in order to be binding (i.e., to give the aggrieved party power to bring a lawsuit for breach). Even if a contract isn't binding, a court may still provide a legal remedy, but not for breach of contract. Instead, the court may impute a trust and allow the aggrieved person to recover what might otherwise be unjustly lost by preventing the defaulting person from gaining an advantage by breach of duty or breach of trust. These cases are often successful. The cause of action is called unjust enrichment and proceeds to judgment by virtue of the court's powers in equity. Though the contract may not be binding, the power of justice acting in equity is. See contract and the tutorials for more information.
- Blue Laws
- Laws forbidding trade on Sunday, allegedly so-named because early Puritans published them on blue paper. Blue laws survived into the 20th Century in many states. Gradually exceptions began to apply, such as an exception allowing "drug stores" to stay open to sell prescriptions and other emergency medical supplies. Then the blue laws were loosened to allow gas stations, convenience stores, and other businesses to stay open throughout the weekend. By the end of the last century, blue laws were pretty much a thing of the past. A vestige remains in employment discrimination claims by persons whose employers require them to work on Sundays (or Saturdays, that are "Sabbath" for Seventh-Day Adventists and other religious groups). These persons complain that such rules interfere with their "right to work" but, of course, there is no common-law right of one free person to demand of another free person the benefit of being gainfully employed on the employee's own terms. It has been said blue laws originated in a statute codified during the reign of Emperor Constantine (c. 321 A.D.), who implemented many changes to accommodate demands of the early Christian movement for recognition of faith-based rules and traditions. The following may be a rough translation:
"Let all judges, city people, and tradesmen rest upon the venerable day of the sun. But let those dwelling in the country freely and with full liberty attend to the culture of their fields; since it frequently happens that no other day is fit for sowing grain, or planting vines; hence, the favorable time should not be allowed to pass, lest the provisions of heaven be lost."
- Breach
- A break or failure, as in breach of duty, breach of contract. One is said to be "in breach" when he has broken his promise or failed to meet his obligation. It is the breach of duty that gives rise to every cause of action.
- Brief
- Simply put, a short statement of a case or a somewhat more detailed argument for or against a motion. The latter is often called a memorandum and states both facts and citations to controlling law. The former simply puts forth a concise statement of what the case is about. See Memorandum.
- Burden
- One of the most interesting things about studying the law is discovering those things you believed inviolably true to be completely wrong. For example, have you ever heard anyone say, "It'll just be your word against mine"? That is completely wrong in court. In court one side or the other always has the burden to prove what he claims is in fact true. Always. Always. ALWAYS! Whoever makes a motion, pleads a cause, asserts a claim, promotes a legal argument, or demands an order from the court in any form must carry his burden of proof. If he is asserting a legal premise, he must prove he is correct. If he demands a judgment in his favor he must prove he is entitled as a matter of law and as a matter of fact. If he moves the court he must satisfy the court by carrying his burden to prove he and not the other side should prevail. The party who does not move the court or assert a claim (other than to deny his opponent's claim) does not have the burden to prove anything! The burden is carried by meeting the standard of proof required in that particular kind of case. For example, the standard of proof required in most civil cases (i.e., the burden to prove) is the greater weight of the evidence, also called a preponderance of the evidence.