THE COURT SYSTEM
PART -1- SEPTEMBER 2015
As Claims professionals, we often encounter situations
where knowledge of the US court system is very important. This 5 part post
seeks to explore the court system. In the first part I will provide
terminology that is related to insurance claims. Some definitions may
have slightly differing meanings but the terms here can serve a good research
starting point. As time goes on, I will add to this list.
Robert.
PART -1- TERMINOLOGY
MOTIONS FOR SUMMARY JUDGMENT
When ruling on a motion for summary judgment, a motion for summary judgment should be granted when the pleadings/discovery, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. After adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. On a summary judgment motion, the record and all reasonable inferences that can be drawn from it must be viewed in the light most favorable to the nonmoving party. These motions can be filed by either party and are helpful in resolving part or even the entire case. Many times motions to dismiss are filed that are more appropriate for motions for summary judgment.
MEDIATION
This is where both parties agree on a neutral mediator. The mediator’s fee is usually split between the parties and is an hourly rate. The parties usually discuss their positions in the claim and decide what they are going to offer and what they are willing to accept to conclude the case. Many insurance coverage cases resolve this way than in litigation. More and more courts require mediation prior to allowing a trial to occur.
DECLARATORY ACTION
A declaratory judgment action is filed when a party is in doubt of his/her right and files suit to seek a judgment from the court declaring those rights. These actions can be extremely helpful in coverage litigation. Sometimes a policyholder will file such an action to ensure that he or she is not breaching any duties under the policy. Sometimes insureds and insurers file these actions to seek an answer to a question on coverage or interpretation of a policy provision.
CASE
A case describes a dispute taken to court. An appellate court decision
published in a book of such decisions is also called a case and may be
used as guidance or precedent by other courts. A person doing legal
research will commonly say that he has to look up a case to see if its
ruling on a point should be followed by other courts. The core legal
issue in a case is sometimes referred to as the gravaman of the case.
LEADING CASE
The most important published case in a particular area of law is called
the leading case. Such important cases are used as guidance by lawyers
and judges who face similar issues later. For example, in the area of
abortion, the leading case is Roe v. Wade.
LITIGATION
Litigation is the process of bringing and pursuing a lawsuit. Litigation
often proceeds much like trench warfare; initial court papers define the
parties' legal positions as trenches define battlefield positions. After
the initial activity, lawyers sit back for several months or years and
lob legal artillery at each other until they grow tired of the warfare
and begin settlement negotiations. If settlement is unsuccessful (90% of
all lawsuits are settled without trial), the case goes to trial, and may
be followed by a lengthy appeal.
Many states have enacted reforms directed at shortening the time a case
takes to get to trial and minimizing the expense traditionally
associated with litigation. Among these reforms are:
* "fast track" rules that prohibit delays and require each phase of the
case to be completed within a particular period of time * limits on how
much information can be obtained from the opposing party * requirements
that certain types of cases be arbitrated (a simpler procedure) rather
than pushed through the court system * requirements that attorneys
inform their clients of alternative dispute resolution procedures such
as mediation, and * court-sponsored techniques such as mini-trials and
early neutral evaluation that are designed to get the parties to settle
by giving them a realistic assessment of what is likely to happen if the
case goes to trial.
ACTION
Action is another word for lawsuit, case, legal matter or litigation.
Cause of action refers to a set of facts that make up the grounds for
filing a lawsuit.
ISSUE
Issue refers to the central point of dispute in a case.
HEARING
A hearing is a legal proceeding (other than a trial) held before a judge
or court commissioner. At a trial, disputed questions of fact and law
are resolved and the case is concluded (although the parties may
appeal). At a hearing, on the other hand, preliminary issues, procedural
issues (including granting an uncontested or default divorce) and post-
trial modifications and enforcements are heard.
A.L.J.
Administrative hearings are informal, yet very important. Usually, the
A.L.J. meets with representatives from the agency and the applicant
seeking benefits. The applicant may choose to be or not be represented
by an attorney and in fact, many administrative agencies permit
paralegals, law students or law clerks to appear on behalf of
applicants. Each side presents its evidence and elicits testimony from
its witnesses. The hearing is often tape recorded, as opposed to taken
down by a court reporter. The A.L.J. renders a decision called an
administrative order, which may be reviewed by either a higher level
within the agency or by a court.
TRIAL
A trial may be before a judge only or before a jury. Virtually all
family law trials are held without juries.
BENCH TRIAL
A bench trial is another term for a trial before a judge only. In
general, the parties begin with the presentation of evidence, although
in some cases they make opening statements. After the plaintiff finishes
presenting his evidence, the defendant presents her case. After the
defendant concludes her presentation, the plaintiff may rebut the
defendant's case. Rarely are closing arguments made. The judge may rule
immediately, but more often takes anywhere from a few hours to a few
weeks to consider the evidence and reach a decision.
SUBMISSION
When a judge does not immediately announce a decision, the judge is said
to take the case under submission.
JURY TRIAL
In a jury trial, the jury is selected by the parties through a process
called voir dire, where the judge or parties ask jurors questions in
order to determine their biases and opinions. (Each side gets to reject
a certain number of potential jurors.) After the jury is chosen and
sworn in, the parties give opening arguments, present their evidence and
give closing arguments. The jury then deliberates; when it reaches a
decision, it returns to the courtroom and announces the verdict.
The roll of the jury is to decide issues of fact. Parties are entitled
to a jury trial by the federal constitution in those types of cases,
such as breach of contract, which existed in 1789, the effective date of
the constitution. Kinds of cases that have come into existence since
then, however, such as divorce (which in 1789 still fell under the
religious courts) and actions in juvenile courts, are not guaranteed
jury trials. States are free to make jury trials available for such
actions, but few have. In fact, only Texas and Georgia permit jury
trials for divorces.
WHERE THE LAW COMES FROM
There are two major ways in which legal principles are developed in the
United States. One is through appellate court decisions in individual
cases, called case law. The other is through the passage of laws by
voters and legislative bodies, called statutes.
CASE LAW
Legal principles that are developed by appellate courts when deciding
appeals are collectively termed the case law or common law. Since the
12th century, the common law has been England's primary system of law.
When the United States became independent, states adopted the English
common law as their law. Since that time, decisions by U.S. courts have
developed a body of U.S. case law which has superseded English common
law in most areas.
PRECEDENT
Precedent is a legal principle, created by a court decision, which
provides an example or authority for judges deciding similar issues
later. Generally, decisions of higher courts (within a particular system
of courts) are mandatory precedent on lower courts within that system--
that is, the principle announced by a higher court must be followed in
later cases. For example, the California Supreme Court decision that
unmarried people who live together may enter into cohabitation
agreements (Marvin v. Marvin), is binding on all appellate courts and
trial courts in California (which are lower courts in relation to the
California Supreme Court). Similarly, decisions of the U.S. Supreme
Court (the highest court in the country) are generally binding on all
other courts in the U.S.
Decisions of lower courts are not binding on higher courts, although
from time to time a higher court will adopt the reasoning and conclusion
of a lower court. Decisions by courts of the same level (usually
appellate courts) are considered persuasive authority. That is, they
should always be carefully considered by the later court but need not be
followed.
As a practical matter, courts can usually find precedent for any
direction they want to go in deciding a particular case. Accordingly,
precedent is used as often to justify a particular outcome in a case as
it is to guide the decision.
STATUTE
Under the U.S. and state constitutions, statutes are considered the
primary source of law in the U.S.--that is, legislatures make the law
(statutes) and courts interpret the law (cases).
Most state statutes are organized by subject matter and published in
books referred to as codes. Typically, a state has a family or civil
code (where the divorce laws are usually contained), a criminal code
(where incest, bigamy and domestic violence laws are often found),
welfare code (which contains laws related to public benefits), probate
code (where laws about wills, trusts and probate proceedings are
collected) and many other codes dealing with a wide variety of topics.
Federal statutes are organized into subject matter titles within the
United States Code (for example, Title 18 for crimes and Title 11 for
bankruptcy).
LEGISLATIVE INTENT
Legislative intent is what a legislature as a whole had in mind when it
passed a particular statute. Normally, any given statute is interpreted
by looking just at the statute's language. But when the language is
ambiguous or unclear, courts try to glean the legislative intent behind
words by looking at legislative interpretations (for instance, reports
issued by legislative committees) which were relied upon by legislators
when voting on the statute.
Statutes are often ambiguous enough to support more than one
interpretation, and the material reflecting legislative intent is
frequently sparse. This leaves courts free to interpret statutes
according to their own predilections. Once a court interprets the
legislative intent, however, other courts will usually not go through
the exercise again, but rather will enforce the statute as interpreted
by the other court.
UNIFORM STATUTES
Uniform laws, such as the Uniform Child Custody Jurisdiction Act, the
Uniform Pre-Marital Agreement Act, and others, are model laws proposed
by a national group of judges, lawyers and law professors called the
Uniform Law Commissioners. The commissioners propose the laws; states
are free to enact or reject them.
Topics covered by uniform laws are often ones in which there is much
interstate activity, such as marriage, divorce, paternity, custody and
child support and in which consistency, predictability and uniformity
are desirable. Some uniform laws have been passed by all states (for
example, the Uniform Child Custody Jurisdiction Act) whereas others have
only been enacted by a few (for instance, the Uniform Divorce
Recognition Act). Clearly, the central goal of uniformity is well served
only if a significant number of states enact a given uniform law.
ORDINANCE
An ordinance is a law enacted by a municipal body, such as a city
council or county commission (sometimes called county council or county
board of supervisors). Ordinances govern matters not already covered by
state or federal laws such as zoning, safety and building regulations.
LAWS OF SUBSTANCE AND PROCEDURE
Laws which define legal duties and rights are called the substance of
the law, or substantive law. Substantive laws include the standards for
custody, the grounds for divorce and the right to have an abortion.
On the other hand, the body of laws which tells how to go to court and
get judicial relief is generally called the law of civil procedure.
Civil procedure is predominantly made up of statutes and rules issued by
individual courts.
PARTIES
A person who sues or defends a lawsuit or any person joined in a
lawsuit, such as a pension plan administrator is called a party. A party
has the right to conduct discovery and receive notice of all proceedings
connected with the lawsuit.
PRO PER OR PRO SE
A party to a lawsuit who represents herself, rather than being
represented by a lawyer is called a party in pro per (or pro se). Both
terms mean "for yourself." Pro per and pro se litigants often find it
difficult to do their own legal work because the legal system is hostile
to self-helpers. Arizona and Colorado, however, have implemented an
automated court system that provides people with legal information and
helps them complete court documents themselves. Also, self-help law
books and paralegals who directly serve the public are increasingly
available to help pro per and pro se litigants in many states.
PLAINTIFF
The person who initiates a lawsuit by filing a complaint is called the
plaintiff. When the document that initiates a lawsuit is called a
petition rather than a complaint, the initiating person is usually
referred to as the petitioner rather than the plaintiff.
DEFENDANT
The person against whom a lawsuit is filed is usually called the
defendant. In some states, or in certain types of actions, the defendant
is called the respondent. The term respondent is also used to designate
the person responding to an appeal.
SPECIAL CONCERNS OF PLAINTIFFS AND DEFENDANTS
In Forma Pauperis. In Forma Pauperis is a Latin term meaning "in the
character of a pauper." It refers to a petition filed by a poor person
in order to proceed in court without having to pay court costs such as
filing fees.
In forma pauperis proceedings are available in every state. A person
with a low income (usually eligible for or receiving public assistance)
fills out in forma pauperis papers (indicating income and expenses)
before filing his first court paper (complaint or answer). The papers
request that the court decide whether or not the costs be paid. Although
a hearing before a judge is sometimes needed, the more usual practice is
for the court to grant or deny the request without a hearing.
Military personnel. A person on active military duty is a person who has
enlisted in the armed services and is serving out the term of his
enlistment, or is an officer in the armed services who has not
transferred to the reserves, resigned, retired or been dismissed. A
person on active military duty is prohibited by a federal law (Soldiers
and Sailors Civil Relief Act, 50 U.S.C. Section 501 et seq.) from being
subjected to any civil court action, including a divorce, unless he
consents to the power of the court to hear the case. A plaintiff who
wants to sue someone on active military duty who won't consent must wait
until he leaves active duty. The reasons for this rule are:
* it would not be fair to proceed in court against a serviceperson who
is prevented from attending because of his military duty, and * it would
be too disruptive and expensive for the military to have its members
coming and going long distances just because they have been sued.
CO-RESPONDENT
The "other man" or "other woman" named in the court papers for a fault
divorce alleging adultery is called the co-respondent.
APPELLANT
The person who objects to the trial court decision and asks the appellate court
to review the decision by filing an appeal is called an
appellant (also called a petitioner in some states).
APPELLEE
The party against whom an appeal is filed is called the appellee or the
respondent. Sometimes the appellee will also appeal certain aspects of
the lower court's decision; he then becomes a cross-appellant as well as
an appellee. In this situation, the appellant (the one who filed the
appeal) becomes a cross-appellee or cross-respondent.
TENDER LIABILITY
Liability caused by the wrongful acts of a lending institution. Lender liability claims most frequently arise when a debtor challenges the validity of a loan agreement in a counterclaim against a financial institution after the institution has filed a collection action. Such claims typically allege: misrepresentation of repayment terms, fraud, economic duress, and withholding of promised credit by the lender.
