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Cestui Que

Literally a beneficiary, i.e., a person for whom a benefit has been provided by some legal mechanism.

A cestui que could be a named beneficiary of a will or other legal provision but is usually a particular beneficiary of a trust, in which case the trust may be called a "Cestui Que Trust".

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.

Causation

Causation is the relationship between the action of one person and the injury of another. It may be proximate (close, and therefore actionable in court) or distal (remote, and therefore not actionable in court). To be liable for the injury of another, one must have acted in such a way as to proximately cause the injury. A person injured only remotely in consequence of the action of another has no right to sue, as where intervening superceding causes contribute to an injury.

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.

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.

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.

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.

Clean Hands

The doctrine of "clean hands" applies to cases where one party seeks to persuade the court to exercise its equitable discretion, so the court looks to see if either party has dirty hands, e.g., whether one party has done something unfair with regard to the issues of the case. It is not enough if one party has an unsavory history. The "unclean hands" must apply to the issues in controversy, such as preventing the other party from performing his contract, etc. The ancient maxim is, "He who comes to equity must come with clean hands."

Co-defendant

When two or more defendants are sued in the same case, they are called co-defendants.

Co-plaintiff

When two or more plaintiff's join to file a single lawsuit, they are called co-plaintiffs.

Color of Law

Color of law is that characteristic of an individual who acts as a judge, police officer, mayor, or other public official.

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 or by decisions of appellate courts, 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 supersede 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 a thousand-fold.

Conclusory

A statement such as, "Defendant owes plaintiff one million dollars," is said to be conclusory, i.e., alleging facts without supporting evidence. You should object to such statements to make your record clear and prevent them from unfairly influencing the court. Demand admissible evidence! Never forget you are dealing with human beings who are easily persuaded by empty statements without evidence. (Think about arguments you've had at home.) It is important to make the court record clear that conclusory statements by your opponent are NOT evidence and should not be permitted to stand without support in the form of admissible evidence.

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.

Consent Order

A consent order is one entered upon stipulation of both parties, i.e., by agreement. The parties prepare and file their stipulation and proposed order. The judge signs the order, because the parties have consented to entry of the order by agreement in writing.

Contempt

The condition of refusing to honor and obey court rules and orders. Penalties for contempt range from a simple fine to continuous imprisonment until the contempt is cured. If you succeed with a motion to compel discovery, the court will order the other side to respond to your discovery request(s). If the other side fails or refuses to respond, you can file a "Motion to Show Cause" why the other side should not be held in contempt. The court may order the other side to show cause. Then, if they do not show cause, the court will order them once again to respond to your discovery request(s). If they fail or refuse to respond after being ordered the second time, you will file a "Motion for Contempt", and the court will likely find them in contempt. The punishment may be imprisonment until they respond to your discovery request(s).

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.

Contract of Adhesion

See Adhesion Contract.

Contumacious

The spirit or attitude of those who refuse to honor and obey court rules and orders. One may be said to have shown a contumacious disregard for the court's authority.

Conversion

Conversion is a civil cause of action that arises when defendant, without permission or lawful authority, takes possession of tangible personal property rightfully belonging to plaintiff.

It doesn't matter whether defendant retains possession or returns it. Conversion takes place at the moment of unlawful possession. It matters not if possession is temporary. If defendant takes possession of any tangible personal property of plaintiff, even for only a few seconds without permission or lawful authority, the thing possessed has been "converted".

Once conversion is made, this cause of action will lie. Defendant cannot un-ring the bell by returning the property.

Tangible personal property includes (but is not limited to) such things as a bicycle, boat, airplane, and or prize bull ... dead or alive.

Money is personal property but is not tangible personal property. A dollar bill is a negotiable instrument, not unlike any other dollar bill. It is not normally considered to be "unique". And, like other instruments (e.g., deeds, mortgages, and such like documents that merely "represent" assets but in and of themselves have no intrinsic value) money is considered intangible property. The wrongful taking of money, therefore, does not give rise to an action for conversion, because money is not "tangible personal property".

An exception is a collection of rare coins or some other identifiable currency having value inherent in the particular tangible thing that it is. A dollar bill might be useful to play a game of fool's poker with, or it could be used to stuff into crack in the wall to keep out drafts, but it is not unlike any other dollar bill and has no inherent value other than some strange use to which any other dollar bill could be put. The wrongful taking of ordinary money, therefore, may give rise to an action for civil theft, but an action for conversion will not lie unless the "money" is rare coins or such like having a uniquely inherent value so it can be treated as "tangible personal property", like a bicycle, boat, airplane, or prize bull.

The gist of conversion is the exercise of dominion or control over the tangible property of another that is inconsistent with the owner's right of possession, i.e., depriving the rightful owner of his property without the owner's consent or other lawful authority.

The wrong is not in the taking but in the depriving.

Real property (houses, barns, buildings, things attached to them, and the land they sit on) is not "personal property" and cannot be converted.

Coram Nobis

Coram Nobis (Latin “before us”) is a writ from an appellate court directing a lower court to correct its judgment based on facts not available at the time.

If the facts were unavailable due to some unjust circumstance that existed at the time of judgment (e.g., fraud or error on the part of the lower court), the judgment may be corrected. If the facts were unavailable due to negligence on the part of the complaining party, this writ should not be granted.

Coram Vobis

See Coram Nobis.

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.

Counterclaim

When a defendant is sued he has the right as part of his defense to sue the person who is suing him. He does this by filing a counterclaim in response to the complaint that was filed by the plaintiff. He then becomes the counter-plaintiff as well as defendant.

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 the time of writing this entery the minimum jurisdictionary amount in controversy, exclusive of attorneys fees and costs, 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

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-claim

When two or more defendants are sued they are called co-defendants. When one co-defendant sues another co-defendant, the pleading used to file the action is called a cross-claim.

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.

Cross-plaintiff

When one co-defendant files a crossclaim against another co-defendant, he is called a cross-plaintiff.

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.