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Real Property
Real property, as contrasted with personal property (also called personalty), is land together with the buildings and fixtures on the land. The law regarding real property ownership, transfers, rights, and duties is well developed and complex. Items of personal property (such as well pumps, central heating and air conditioning systems, in ground swimming pools, etc.) once affixed to real property so that removal requires substantial repairs to restore the real property to its former condition, are called fixtures and are thereafter treated as part and parcel of the real property in the contemplation of law.
Interests in real property vary widely from total ownership (called fee simple absolute) to leasehold interests in which ownership is not actually conveyed. Limited conveyances of real property include interests for life, for a term of years, for the duration of some condition, or interests in trust.
The motto of this nation is, "In God we trust." God is truth. God is love. God is reason.
God is found in court by seeking truth through the exercise of human reason ... not by mere hypothesis or superstitious speculation but by rules that establish truth and protect the innocent against injustice brought about by falsehood.
Reason guides our courts, reason that refuses to deny the truth of God, reason that trusts in God.
In court (more than anywhere else in life) reason can be relied upon and truth established. You have a right to demand that reason guide and control your courts so truth can be put on the public record! Let no authority steal this from you. If someone says or does something unreasonable in your lawsuit, you have every right to object and be sustained by the court. If the opposing party takes some action that seems unreasonable, object. If an attorney for the other side does something you feel is unreasonable, object. If your own attorney threatens some action you believe is unreasonable, object (and, if necessary, fire him). If the judge acts unreasonably, demand to be heard objecting on the record.
Rely on reason. Let common sense direct you. Truth is reasonable, and nothing but truth has any place in our courts. Be informed, however. Don't rush into battle with your mind frozen on one idea. Don't ignore weak spots in your armor. Take time to doubt yourself. Try to poke holes in your ideas. Put your theories to the acid test. Prod every assumption. Dig deep if you want to win in court.
Ask others. Before you take any action in court, ask your very best friend what she thinks. Listen to her! If she thinks your arguments are nonsense, listen to her! If she thinks the other side is wrong and you are right, you have gained common sense, and reason is on your side. Listen to others.
Ask another friend, someone who can see both sides of the circumstance. Ask what she thinks about your claims, then listen to her. If she thinks you’re reaching for more than your fair share, listen. If she agrees the other side should be ordered by the court to compensate you for your losses, you have gained common sense, and reason is on your side. Listen to reason.
Share your case with anyone you believe you can trust. Talk about every matter before the court. Don’t hide your weak points. Share all. See what others think. Ask how they feel. People with whom you share your case are human beings just like judges. If friendly counselors agree with your reasoning, so will good and wise judges.
Analyze your case before and during court battles. Ask respected people in your community if they think your case is fair. Ask how they think the judge should rule. Tell them the entire story. Tell them all the facts. Ask, "Does this seem reasonable? What do you honestly think?" Then listen. If wise counselors believe your position is reasonable, it probably is. Fair-minded judges, from the highest federal court to the lowest local magistrate, will rule in favor of the more reasonable party.
Reason rules American courts. This is the highest law of the land.
That which is unreasonable has no place in courts of justice. That which is unreasonable opposes natural law and the common law of man. That which is unreasonable denies common sense. To support the unreasonable is unethical. No court should ever permit unreasonable verdicts. Unreasonable rule is tyranny that undermines the very security of civilized life for which purpose alone courts are justly established by lawful governments.
Reasonable men and women should always prevail over unreasonable people.
Of or pertaining to the reasonable man, who is controlled by reason.
There is no better way to define this word. Only by examining the reasonable man can any of us have any hope of agreeing what is reasonable and what is not. That is reasonable which the reasonable man would do or think or say, etc. Anything a reasonable man would not do is patently unreasonable. Therefore, to understand the term properly, one must examine the reasonable man.
Reasonable Man
Though some militant feminists might proclaim this an oxymoron, the "reasonable man" is a concept critically essential to the very framework of our civil judicial system. The reasonable man is a fictitious person. In real life there are very few if any persons male or female who could be said to be reasonable in every regard. Our civil law invented the reasonable man to serve as a standard for us all. Either we live up to the standard set by the reasonable man, or the court may find us to be unreasonable. In tort law, for example, negligence may be defined as the failure to act reasonably, i.e., as a reasonable man would act. The reasonable man exercises care not to injure others. To the reasonable man some truths are self-evident. The reasonable man knows the difference between direct facts and imagined conjectures. The reasonable man cares for his neighbor’s welfare. He does not steal. He does not lie. He acts responsibly to others and to himself. He follows the Golden Rule. He is not required to throw his life away attempting to rescue the widow’s parakeet from a marauding cat. He is allowed to exercise self-interest. He is not required to give his money to the poor. He is required, however, to act in a way that will not adversely affect the welfare of others or the welfare of society as a whole. The reasonable man exercises due diligence to ensure that his acts (including his words both spoken and written) do not injure others. The reasonable man sets the stage for civilized governments to establish a system of justice and fair play. What is good for the reasonable man is good for us all.
Reasonableness Test
When a judge exercises judicial discretion, the law imposes a responsibility to do so within reasonable bounds. When an aggrieved party believes there has been an abuse of discretion an appeal may be taken to the next higher court to challenge the judge’s ruling based on the reasonableness test, whereupon the higher court is required to examine the lower court’s ruling to determine if reasonable persons could disagree with the ruling. If the appellate court finds that the lower court’s ruling complies with the reasonableness test, it will affirm. If the appellate court finds the lower court’s ruling does not pass the reasonableness test, i.e., that reasonable persons acquainted with the law and facts might have reached a different opinion, the appellate court will either reverse the ruling or remand the case back to the lower court for further proceedings consistent with the appellate court’s findings.
The lawful taking back of property or persons illegally taken, but without going through the courts, i.e., using self-help to get them back (so long as it is without violence).
Refusal to perform a duty, most often applied in circumstances where a judge either voluntarily refuses to hear a case or is removed from the case in response to a motion for recusal, usually on the grounds that the judge has a personal or business relationship with one or more of the parties or lawyers that's likely to unjustly influence the court's ability to rule without bias. Recusal is controlled by statutes and case law and will not be granted simply because a party "believes" the judge is, has, or is likely to decide contrary to what one might wish.
See Recusal.
Re-direct is direct examination that follows cross-examination by the opposing party. Re-direct must inquire only into matters already raised. Typically, when a party puts on his own witness, he must constrain his questions to direct questions, i.e., one is not ordinarily permitted to lead his own witness (e.g., "What did you see?").
Following the initial direct examination, the other side gets to cross-examine the witness, i.e., to lead the witness by suggesting answers within the questions (e.g., "You never saw the contract, did you?") Then the initial party may be permitted to re-direct, i.e., to ask additional direct questions inquiring into matters raised by the other side during cross-examination.
Though the terms "regulation" and "law" are commonly used interchangeably, authorities agree that laws result from legislative bodies while regulations are promulgated by agencies and, in most cases, apply only to persons specifically answerable to such agencies. Though regulations are effectively laws, they are so only in respect of the ability of their issuing agencies to enforce them.
Regulations that control court procedures, for example (i.e., rules of court) apply only to persons involved in court proceedings and not to the general public at large.
The degree to which a fact or thing is relevant.
A thing is relevant if it relates to a dispositive issue, i.e., an issue that can dispose of a controversy and thus decide the outcome of a case or some relevant part of a case. Relevant evidence, therefore, is evidence that tends to prove or disprove a material fact, i.e., a fact that if believed by the court would affect the outcome of a case. All relevant evidence is admissible unless it falls within one of the categories of restricted evidence, e.g., hearsay or privileged communications.
Relief may come in many forms. Relief from judgment, which is to reduce or cancel a judgment. Relief from stay, which is to allow the parties to proceed after the court has entered a stay order. Normally the only person who has authority to grant relief is the judge who has jurisdiction over the matter.
Relief from Stay
Relief from stay is sought whenever a court, e.g., a bankruptcy court, has entered an order staying the proceedings. The relief from stay order is obtained by filing a motion for relief from stay. Most commonly, the motion is filed in bankruptcy court where the filing of a bankruptcy petition creates an automatic stay of proceedings in any court where a party is attempting to collect from the debtor in bankruptcy. If the creditor holds a perfected lien (or if the debt arose as a result of a fraud or crime) the stay can be lifted. See Stay.
This word comes from the Latin mittere, to send. (We get the word "mission" from the same root.) To remit is to send something back, as when you send money or other value to satisfy an obligation. Remittitur is the noun form, sometimes applied as the act of a appellate court sending an appealed case back to the trial court to be reconsidered or the trial court "sending back" the exorbitant money judgment of an emotional jury that substantially exceeds what justice should reasonably allow.
Removal is the process whereby one obtains an order of the court directing the parties to take their case to another court, e.g., from state to federal court. For example, if a defendant is sued in state court and the case involves interpretation of patent or trademark rights (issues upon which our federal courts have exclusive jurisdiction) then he may move the court to have the case removed to federal court. The state court judge has no discretion to deny the order, because the state court has no jurisdictional authority to rule on issues of patent or trademark interpretation. The case must be removed. As with everything else in court, one must present and make a record with the court that shows he has a proper predicate (i.e., a valid basis in fact and law) to support a motion for removal.
When a defendant files a counterclaim or raises issues not included in the plaintiff’s complaint, the plaintiff files a reply in response to the defendant’s case. The reply is to the defendant’s case what the answer is to the plaintiff’s case, a response to the allegations of the other.
When a defendant files affirmative defenses with his answer, the plaintiff should file a reply to the affirmative defenses, again a response to the allegations of the other.
When an appellant files his or her initial brief, the appellee files a reply brief in response, arguing against the allegations of fact and law in the appellant’s brief.
The process of refusing to honor the terms of a contract or other obligation. Examples are failure to pay an agreed amount, failure to deliver goods, and failure to perform services bargained for in the contract. See Anticipatory Repudiation.
Latin for "thing", usually the thing over which people are disputing in a lawsuit, e.g., a dead person’s estate or a house or diamond ring. The res in a lawsuit is the thing people are fighting about.
Res Ipsa Loquitur
A Latin phrase meaning simply, "The thing speaks for itself."
The phrase is applied in cases where one need not prove a fact (such as the cause of plaintiff’s damage) because the fact is proven by the damage itself.
In law school we studied a case where a fellow was injured while walking under a window. He was hit on the head by a heavy falling object. The court reasoned that heavy objects do not fall out of windows other than as a result of somebody’s negligence or intention. The injured party won his lawsuit without being required to prove how the object came to fall out of the window. The thing, i.e., the heavy object falling as a result of somebody’s negligence or outright intention, spoke for itself, so no proof was required.
Res Judicata
A Latin phrase meaning simply, "The thing has been already adjudged."
Res judicata is an affirmative defense by which a person sued may respond, "This matter has already been decided by the court and cannot again be litigated." If, in fact, the thing in dispute has already been decided by a court of competent jurisdiction, the issue is said to be res judicata and cannot be re-argued.
To grant rescission, q.v.
Rescission is an equitable remedy granted by a court to relieve a person from a contract unjustly entered into. A common example is the relief granted to a mentally incapacitated person who signs a deed giving away her house. Equity rules the law and, therefore, will not permit the wrong to be allowed. By rescinding the deed, it is as if the signature had never been given.
Most courts require as a condition precedent to granting rescission that it be possible to restore the parties to their status quo, i.e., that after rescission they be in much the same condition as before. This would come into play, for example, if a family member were to get his mentally incompetent aunt to sign a promissory note for $100,000 then spend the $100,000 and later seek to have the court rescind the promise because his aunt didn’t know what she was doing. This would, of course, work an unjust enrichment against the lending institution, so rescission would not be granted.
One who responds to an appeal, as opposed to the appellant who initiates the appeal.
Respondeat Superior
A binding legal doctrine that holds employers legally liable for wrongful acts of employees when employees are acting within the scope of their employment.
If an employee is acting outside the scope of his or her employment (e.g., eating lunch at a diner when he or she does a bad deed) the doctrine does not apply.
In general, supervisors are responsible for the acts of their agents.
Responsibility is the consequence of duty. Each of us, in exchange for the benefits of living in community with others, owes a duty to all. That duty creates responsibility. Part of our responsibility is to answer claims for damages filed by people who say you injured them by breaching your duty. They must prove the breach, and they must prove the injury (Liability & Damages). If the complaining party can prove both, you lose and are required by government to meet your responsibility by paying the other side for their damages. Responsibility applies to both parties. We are all responsible to each other. It is the purpose of government to enforce our responsibility.
The act of restoring a person to their former state. Paying for a person’s damages is one form of restitution. Giving back stolen property is another. Restitution is no defense, however, because you cannot give back time.
Talk about a difficult word to define! Dictionaries use terms like justice, propriety, law, and morality to define what’s "right" (words themselves defined only in terms of "right") leaving the answer perhaps forever hidden in the human heart.
Right is not wrong (another word over which there is much unfortunate disagreement).
One man said right is not left. He made a game of asking children, "What’s right?" Children tried again and again for an acceptable answer. "Right things are never left," he told them.
Three related words in Spanish are: left, right, and straight ahead. A different view.
Other words for right and left are dexter and sinister.
Right is not merely lawful, nor is a thing necessarily wrong because it is against the law.
Civil courts are ever searching for this truth. Good ones find it. Right results.
Rule of Law
Before America was born, men and women were ruled by kings who claimed divine right to rule, kings who changed laws to suit their personal whim. This was considered intolerable by our founding fathers who dreamed of a nation established on the rule of duly enacted laws ... not edicts of arrogant tyrants.
Humanity lived under iron rule of one form of king or another for thousands of years until that fateful day in Philadelphia, when wise, courageous leaders gathered on the Fourth of July 1776 to institute a new form of government whereby people would rule themselves under law.
This is what is known as the Rule of Law, i.e., justice administered according to written laws instead of the ever-changing desire of private interest.
The dream of America is a land of liberty and justice for all. No longer will kings and tyrants rule us. We will rule ourselves, according to the Rule of Law.
The Rule of Law lives in the hearts of free people everywhere. We know deep inside that each of us is entitled to be treated equally by government, that no men or set of men should be given special favors or powers to rule us beyond the limits of our written law. The Rule of Law asserts that men should not be trusted to govern others unless their rule is just, tempered by fixed laws that prevent tyranny, laws that stop individuals from accumulating wealth by force, laws that keep those in high office from exercising power without restraint, laws that deny majority power to act without due regard for the rights of individuals who are a minority, laws that prevent the powerful from plundering the weak.
The Rule of Law decrees that Law shall govern us according to the will of the People and not by the will of ambitious men and women in high places.
The Rule of Law is what our heroes died for in past wars for liberty.
The Rule of Law is worthy of our highest aspirations and dedicated efforts as a united people.
This principle that laws should govern instead of men -- laws of our making and not the cruel edicts of tyrant dictators or divine right decrees of kings -- is the bedrock of human justice, the philosophical cornerstone of these United States, and the foundation of hope for all mankind.