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Thursday, February 25, 2016

Genealogical Insight: Anatomy of a Court Case

In order for a genealogical researcher to adequately evaluate court records it is necessary to understand some of the terminology. This is accomplished by taking the time to look up any words or phrases not understood in the readily available legal dictionaries. Learning about the law has a lot in common with learning a foreign language. You cannot avoid dictionaries or word lists. The basic resource for defining legal terms is the Black's Law Dictionary first published back in 1891. We are presently into the 10th Edition. In almost all cases, genealogists do not need the latest edition of the dictionary, any one of the previous editions will work just fine. Almost any attorney, particularly those who are involved in going to court, have a copy of Black's Law Dictionary readily available or now uses the online sources such as

That said, there is also a need for genealogical researchers to understand some of the basics of court procedures for both civil and criminal cases. For this reason, I decided to write an outline of two "typical" law cases; one civil and one criminal. Before I begin with the summary, I should note that there are an almost endless list of possible pleadings (documents written by attorneys) that can be filed with any court. The type of document filed is only limited by the imagination of the attorneys involved and loosely by the Rules of Procedure whether civil or criminal. What I am attempting here is to supply a general outline not an exhaustive list of all possible pleadings.

Civil law, as opposed to criminal law, is aimed at resolving issues that do not deal with criminal activity as defined by the criminal laws (code) of the country involved. My examples apply to only the United States. Every other country has its own laws and procedures.

The Civil Lawsuit

Civil lawsuits are basically claims for monetary damages or some other defined relief from a court of law. A civil complaint is a document filed or given to a court in which the complaining party, the plaintiff, alleges the facts that entitle the plaintiff (or plaintiffs) to some kind of relief, usually payment of an amount of money. It is the nature of our form of law in the United States that civil law cases are primarily claims for money damages. The objective of a lawsuit is to determine whether or not the monetary relief requested by the Plaintiff is warranted and then issue a judgment or award against the opposing party or parties known as the defendant or defendants. From here on, to simplify this explanation, I will use the singular forms of all of the party designations but understand that they can apply to any number of plaintiffs or defendants.

Before a lawsuit is filed, it is customary to do an initial review of the sufficiency of the cause of action. In other words, there has to be a determination of whether or not the plaintiff's claim is one that is allowed by the law. This is one of the most complex parts of any type of litigation. If the case is worth pursuing, the plaintiff or his or her attorney, files a complaint, that is a document setting forth the nature and basis for the plaintiff's claims. The "filing" of a complaint consists in delivering a copy to the court that will consider the action and complies with the rules of procedure of that court for filing such documents.

The complaint is then formally delivered to the defendant by very specific procedures referred to as "service of process." There are professional process servers who are trained to deliver complaints and other documents in accordance with the rules and procedures established in the particular court where the complaint is filed. Once the defendant has been served with the complaint, they have a certain amount of time to answer or respond. The defendant can file a motion or an answer. The defendant's motion may allege that the complaint is somehow legally defective and should be dismissed. The name of this type of document has changed over the years. Originally this motion was called a demurrer. Now it is more commonly called a motion to dismiss. The motion to dismiss asks the court (judge) to dismiss the complaint because even if the facts alleged are true, the plaintiff has not stated a claim upon which relief can be granted.

Assuming the motion to dismiss is denied after all of the subsequent responsive pleadings have been filed and considered, the defendant has to file and answer to the complaint. Obviously, if there is no motion to dismiss, the defendant has to file the answer. If the defendant fails to answer, the plaintiff may eventually be granted a judgement against the defendant by default. In fact, if either party fails to file the appropriate documents or pleadings with the court as set forth in the rules of procedure, in some cases, the court can dismiss the entire action.

Once an answer has been filed, the parties conduct discovery. This is a formal way of determining the differences between the claims made by the plaintiff and the defenses raised by the defendant. Discovery may include written interrogatories or lists of formal questions or oral testimony in the form of sworn oral questions and answers similar to those that are done in a trial. The discovery process can be short and simple or very long and detailed.

Once the parties have been given the time to do their discovery, one or both of the parties requests that the matter be set for trial and the court orders the case to trial and sets a date. There are a lot of other motions that can be filed. One commonly filed motion is a Motion for Summary Judgement. This motion outlines the law and argues that even if the plaintiff's views of the facts are considered to be true, the plaintiff is not entitled to recover any money because of some legal arguments. Many cases end with the decision of a court on a motion for summary judgement.

Before a trial is set, both parties need to decide whether or not they want a trial by jury or one to the court where the judge alone decides the issues of the case. In the United States some cases require a jury and some do not. In most cases, except for cases involving very small amounts of money, the parties have a right to a trial by jury. In reality, very few cases go to a jury trial because of the time and costs associated.

The trial is then conducted either to the court or to the jury and a decision is made called a ruling by the judge or verdict by the jury. This ruling or verdict is then incorporated into a formal written judgement and that is the end of the trial. At this point the plaintiff is left to try and get the defendant to pay the judgment amount. The court can also determine if one party or the other is entitled to have the other party pay the attorneys' fees incurred. This may be part of the trial or a separate request from either party. If the judgment is in favor of the defendant, in some cases, the defendant may be entitled to the payment of attorneys' fees from the plaintiff.

As you can probably see, conducting a trial can be a very complex matter. During my long years of legal practice, I was in court thousands of times and even after years of law practice the procedures and rules of the courts were difficult and complex.

The Criminal Lawsuit

Compared to the complexity and variable nature of the civil lawsuit, criminal lawsuits filed by the state or federal government are procedurally much less complicated and repetitious. There are a limited number of variations in vast majority of criminal actions except when the criminals are very notorious or the crimes particularly newsworthy. In addition, everything that happens in a criminal case is subject to time limits imposed by the laws and procedures of the United States. Even then, the actions follow a very specific set of procedures and rules. Bear in mind, just as with a civil action, the number and type of pleadings that can be filed are only limited by the imagination of the attorneys involved. But with criminal cases the options available to the attorneys are more limited.

For purposes of simplicity, I will assume that a crime has been committed. The first step, of course, is that some law enforcement agency must investigate the crime. If it is possible to determine who committed the crime, the suspect (or suspects, but I will use the singular for simplicity) is then arrested and either detained in a jail or released upon the payment of a bond called a bail bond.

The prosecutor, usually a county attorney or district attorney or other official, has a specific time period to file a complaint or indictment. In some cases, the allegations of criminal activity are presented to a "grand jury." This is specified group of people who are selected to hear and decide whether or not a crime has been committed and whether or not there is sufficient evidence to arrest someone for the crime. If the grand jury makes that determination then an indictment is issued. If the prosecuting attorney makes that determination, then there is an information (or complaint) filed with the court and in either case an arrest warrant is issued by a judge. Then we are back to the accused sitting in jail or out on bond.

Within a specified time after arrest, the defendant or accused is entitled to an initial appearance. The judge must make an initial determination that crime has been committed and that there is probable cause that the defendant or accused committed the crime. If there is no probable cause, then the defendant is released and charges are dropped. If the judge finds probably cause, then the accused is bound over for trial. While the case is waiting to be heard in a trial, the attorneys involved can conduct discovery to see what they other side has as evidence or defenses. The court may set a series of status hearings on the case to make sure the case is proceeding according to the time limits set by the rules of criminal procedure and the laws.

Once the case is set for trial, in most serious criminal cases, the defendant is entitled to a trial by jury. Most of the time, the defendants routinely waive or release their right to a jury trial. At any time, the prosecuting authority (always the state or federal government) can negotiate a settlement usually called a plea agreement. This usually cuts the action short and resolves the case either with or without a trial. At the trial evidence is presented by the prosecutor to convince the judge or jury that the accused committed the crime. In the Unites States the accused my present evidence from documents or witnesses but does not have to personally testify if they do not deem it advisable. The burden is always on the prosecutor to prove the case at a level of proof according to the severity of the accusations. The highest level of proof is that of proving the accused committed the crime beyond a reasonable doubt.

If the accused is convicted and is guilty at trial, the court imposes a sentence at a subsequent hearing. If the accused enters into a plea agreement, the court still holds a sentencing hearing. If the accused is adjudged guilty then the accused pays the fine or go to jail or prison. If the verdict is not guilty, then the accused is set free.

These are the general patterns of civil and criminal actions in the United States. Of course, my explanation is highly simplified. Every type of court and every type of action has its own peculiar rules and law. For example, domestic relations cases are vastly different than personal injury cases and so forth. Genealogists are faced with task of understanding the proceedings at least to the point that they can accurately determine what happened in the court and how much of the information is useful for genealogical research.

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