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Mocavo

Some people eat, sleep and chew gum, I do genealogy and write...

Tuesday, December 13, 2011

Where is the genealogy in a civil lawsuit and what is a tort feasor?

Civil law is entirely different than criminal law, not just a little different. The rules, the case law, the procedures, the jargon or terminology, all of these things and more are different even though, from TV and the movies, you are given the impression that the law is all the same. A lot more of your ancestors were probably involved with the civil court system than the criminal court system. Civil law includes probate, divorces, adoptions, land disputes, name changes, contracts, bankruptcies, foreclosures and a whole lot more. Unfortunately for the genealogical researcher each of these areas of the law also have their own jargon, procedures, rules and case law. Subsequently, most attorneys emphasize one type of law or narrow their practice to related types of law.

Now, I am not going to cover the whole subject of civil law in one post. The point of this sort-of series of posts is to illustrate not just the complexity of the law but to illustrate the vast amount of information locked up in the court system that is valuable to genealogists. 

Essentially, if a law case is not a criminal case, it is a civil case. It is far easier to define what is criminal law than it is to describe civil law. Black's Law Dictionary presently has well over 800 pages of legal definitions most of which apply to civil law (see Garner, Bryan A., and Henry Campbell Black. Black's Law Dictionary. St. Paul, Minn: Thomson West, 2009). At a very minimum, if you are going to attempt to do research in court cases you should, at a minimum, be familiar with Black's Law Dictionary. The very first day I attended law school, after the first classes, there was a stampede of students to the library to try and figure out what the professors had said that day. There is no way that you can assume that the words you read in the court cases have the same meanings that they would have in common practice outside of law. In addition, some of the terms are extremely strange and some are still in Latin. For example, it is not uncommon for people to go to court without an attorney. When they do so, they are said to be proceeding in propria persona or pro per. As a side note, let's just say that some very interesting things come out of cases where people represent themselves in court.

If you fail to understand the language of the court, you are liable to end up with a conclusion about a case that is absolutely the opposite of what actually happened. Now all that said, law cases can be a gold mine of genealogical information. Just one example. Many civil lawsuits involve taking testimony both in court during hearings and trials, but also out of court at depositions or oral testimony under oath. Of course, even though people are under oath to tell the truth, this doesn't always happen. But the range of information given in court testimony can be extensive. It is not uncommon for the attorney asking questions during testimony to review the whole life story of the person testifying especially if the history of the person's life is pertinent to the issues before the court.

But before getting into any details, it is a good idea to get at least a basic idea of the jargon or terminology so we are speaking the same language. A law suit is a civil action brought before a judge in some court for a decision. A law suit is started by filing (depositing a copy of a document) a complaint or petition. The person filing the complaint or petition is variously called the plaintiff or petitioner. The complaint or petition asks the court to do something usually to award damages for an injury or wrong committed by another person. Of course, life would be easy if things were that simple. Beginning a law suit in each of the different areas of the law all have their own forms and procedures. So in some instances the complaint or petition may be called an application or some other term.

Once a law suit is filed, a copy of the initiating document, complaint or petition, is served on the opposing party if there is one. I say this because some types of court actions have only one party. For example, a name change is a court action in which there is a petition, but no response is ever filed. Only extremely rarely are name changes opposed by anyone. In each case the designation of the opposing party depends on the type of document required by a particular action. If the document is a complaint and the filing party is the plaintiff, then the opposing party is called the defendant. In a action involving a petition, the person filing the action is the petitioner and the opposing party, if any, is the respondent. In other types of legal actions, the parties may have other designations.

Before going further, you need to be aware that all of this terminology has possibly changed dramatically over time. For example, in a probate case, the person administrating the will of the deceased has been called an executor (executrix for a female), administrator (administratrix), and currently in some states, personal representative of the estate. They all mean essentially the same thing at different times and in different places.To understand a case in the 1800s or the 1700s, you might have to learn a different set of terms depending on the type of lawsuit.

Next, I need to move on to what happens when the case is opened by the court and where you might find some of the genealogically important records. But it is time to end for today. Hmm. I never got around to tort feasor did I? Well, now you have something to look forward to.

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