Pi And The Law

Recently it was national “Pi” day and I posted something on Facebook (see below) about how the real importance of Pi is misunderstood.  I explained that Pi’s primary importance is how it allows us to mathematically speak of “circle-ness” (or rotation or cycles) in a generic way that can be used “universally” without getting mucked up in the particular measurements of a specific circle or rotation or cycle.  Anyway, this got me thinking about how that applies to law.

When our Constitution embraces ideas like “liberty”, “due process”, or “equal protection” it does so in generic terms precisely because it would be absurdly cumbersome to attempt to specifically describe each situation in which a debate might ensue about these ideas.  The power of the idea is its universality without getting mired in the specifics of each situation.  Just like Pi.

Very often something in law will read something like “reasonable efforts,” and people always question whether that’s too vague.  The answer to that question that is this:  if there’s a way to easily attach dates and specific activities then do it; but, if there isn’t a way to attach specifics (like the Constitution’s “due process under law” clause) they you simply cannot.  That does not mean the power of the phrase is minimized.

What always amazes me is how it seems in modern law there’s an obsessive desire to find specific laws for every little thing.  There’s no law that specifically allows you to legally blow your nose — but we all know we’re allowed to.  And so on, and so on, etc., etc.  Specific laws, when they do exist, do matter because if they exist they exists for a reason.  However, in the big picture the amount of specific laws compared to general abstract laws is overwhelmingly low.  There are many, many more general non-specific “laws” than there are specific ones.  Law simply cannot codify every single nuance of human existence.  The law must necessarily then be about principles that apply to a wide range of situations.  So, just like Pi, the law needs principles that apply universally to all situations that don’t get strangled by a tangle of attempts to define every specific nuance of every single situation.

“Equity” comes to mind.  Equity in law is a principle where a judge can make a ruling based on what’s fair.  It’s as old an idea as any specific law ever created.  Equity is the glue that brings it all together for a judge — through equity a judge can soar above the often counter-productive minutiae and find the fair solution.   If there is a specific law on the topic it certainly is an object to be reckoned with, but it is simply one of the considerations … not the prime consideration.  A failure to see this is a classic “not seeing the forest for trees” situation.

I’ve noticed a strange bias against the use of equity in arguing a case … like it’s somehow a last ditch “Hail Mary” of a losing argument.  This is so unfortunate, and plain silly.  It bears repeating that the fabric of law is overwhelmingly about general abstract ideas and not specific laws.  So why are lawyers and judges so afraid of relying on equity?  I think it has to do with the illusion of certainty — I think some of us hate open-ended thinking because we’d rather just be told what to do … it feels safer, more secure … more legal.  Fine, but in law where we lawyers and judges are supposed to be somewhat developed in our thinking we should not be afraid to THINK and make use of time-tested principles such as equity or any other general legal principles.

Pi is served!

(None of this is to imply that through equity a judge should go against a specific law.  But the general space between the specific laws is immense.  I think of it like an immense cement foundation (equity) on which there is a comparatively minuscule amount of beams resting on that foundation.  There is lots of room in that acre of cement foundation before you hit a beam!).

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Below is my Facebook post:

So it’s national Pi day. Ever wanted to know what the hubbub is? Well I’m gonna tell ya.

The fact that Pi goes on forever is not the primary important part. Lots of numbers do that. (“e” is a profoundly important number and does the same thing). For the average person the endless decimal thing about Pi is TMI and irrelevant. Also, the fact that the Pi shows up in a lot of mathematical and physical phenomena is not mysterious … just like how carbon showing up everywhere is not mysterious. (It may reveal something but it’s not “mysterious”).

So here’s the skinny on Pi.

Pi is simply the ratio of a circle’s circumference to it’s diameter (how many times the diameter length “lays” around the circumference)… which happens to be ~3.14 for all circles — no matter how big or small the circle is. What Pi allows us to do is represent circularity/rotation/cycles in generic form for ease of use in equations. In that sense Pi is very analogous to percentages where we disregard the real numbers/ratios involved and instead speak of them in relation to 100 to standardize it … it’s a way to speak of all ratios in a way that ties them all together. Same with Pi, it enables us to speak of all circles by reference to something that ties them all together irrespective of their actual size or dimensions.  Since the ratio of circumference to diameter is the same for all circles (~3.14, i.e., Pi) this allows us to mathematically speak of all circularity/rotation generically in the language/vocabulary of math.

Think of the word “equal” in the English language … we know nothing about the items being compared as “equal” but the concept of their equality is very handy in a system/language that aims to describe things with accuracy.  Lot’s of general information with no specific information.

So with Pi there are no mysteries, just a damn clever idea.

 

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“Power Of Appointment” — a living trust trap!

In my experience as an estate litigator in the field of family trusts I have seen one clause that has caused more unwitting catastrophes than any other — that clause is called a “power of appointment.”  A “power of appointment” is the power to name who gets what after the first spouse dies.

Here’s a common situation.  Husband and Wife are in their second marriage, both have grown kids.  They do a trust which has a clause that provides that both sets of kids share equally.  But, buried somewhere else in the trust, there is a confusing and often innocuous looking clause that provides the surviving spouse with a power of appointment over all gifts after the first spouse is gone.  Let me be blunt.  Step-parents can be very cruel to the children of their deceased spouse and with the power of appointment they have authority to cut them out entirely and give it all to their own kids.

Often when I get a litigation case where step-kids are being cut out by their step-parent there is a lot I can do.  Usually there is some sort of trustee breach happening.  After all, a trustee’s job is to be fair.  But, if there is a power of appointment giving the surviving step-parent authority to direct who gets what, they can do whatever they want.

Every time I see a power of appointment I just KNOW the deceased parent was unaware of it.  Yes, it does happen that some people actually want their surviving spouse to have a power of appointment to direct the gifts, but it’s rare.  Usually the deceased person thought that since it was stated that their kids gets half, and because the surviving spouse has ethical duties to act fairly as a trustee, that the matter was bolted down — that their kids would for sure get half.  Not if there is a power of appointment lurking somewhere else in the trust!

Beware powers of appointment and make sure that there isn’t one in your trust.

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I’ve Been Slandered Online! Now What!?

Hello All!  I have learned the hard way how easy it is for crazies to slander people on the internet.  In my case it was me, an attorney, who got slandered — I was accused of being in a conspiracy against my own client in a lawsuit 5+ years ago.  That guy (a blogger) copied my keywords/metatags from my website and copy/pasted it into the metadata of his defamatory blog tricking Google into ranking it when somebody looks me up.  When people search those keywords and terms, bam, the slanderous site shows up — often prominently.  Certainly that’s against the law right?  This problem is the poster-child for something being “against the law” while at the same time having very little you can do about it.

Here’s the dilemma.  If you report them for deceptive practices (the stealing of keywords/metatags to trick search engines) or slander (complete lies and distortions) you only risk re-inspiring the psychopathy that got them started in the first place.  It’s like being screamed at by a crazy person on the street … it’s best to just put your head down and get the hell out there without a word.  But it’s the internet!  There’s no “getting out of there” … that person follows you spreading hate for all the world to see.  Filing a lawsuit creates the same dilemma, and it’s very expensive because it’ll have to be in federal court based on the person living in another state.  And even if you win your case they can start up a brand new defamatory blog completely reinvigorated and re-inspired.  What can you do!?  Your only “shut it down” solutions run the risk of re-awakening their delusions.

LUCKY FOR ME, in my situation the blog I’m referring to is OBVIOUSLY the work of a mentally unstable and hateful individual so he basically invalidates himself by his own words:  (1) He is still insisting (ranting actually) on his blog that global warming is a complete hoax … and an evil conspiracy; (2) He pretends on his blog to have specialized scientific expertise when he really has very little scientific knowledge (I’m going easy here out of respect, but suffice it to say he does not work, nor has he ever worked, as anything even remotely close to being a “scientist”); (3) The person viciously slanders/attacks many other people throughout his hateful blog, many of whom are also alleged to be plotting against him; (4) the blog is clearly just a pulpit for wide-ranging conspiratorial ramblings having little to do with what the blog pretends to be about.  So, while anyone can easily see that the slanderous blog should be seen as simply the rantings of a nut, nobody wants slanderous, false, and crazy stories even remotely connected to their name.

Anyway, getting back to cyber slander generally, what about when it happens to kids?  You often hear stories about cyberbullying and the dissemination of private or false material by hateful people.  Same problem!  I cannot believe there is not a better way to address these things.  This is scary stuff.

If anyone has any comments, ideas, stories, or information please jump in and contribute.

P.S.  How did my slander situation get started in the first place?  About 5+ years ago  I determined that there was insufficient facts/evidence to pursue his case.  As a favor to him, however, I stuck with it for a while to give him time to get a second opinion or find another attorney.  To my knowledge all second opinions supported mine.  No other attorney ever took the case over.  Oh, and for the record, there was no conspiracy against this man (that should go without saying).

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A Big Problem In Trusts for Blended Families

The biggest problem I see with family trusts is when they allow one spouse to completely amend the trust after the death of the other spouse.  Often it’s for the purpose of disinheriting the deceased spouse’s kids from a prior marriage.  Ouch.

Here is how it usually happens.  Husband and Wife each have kids by a prior marriage.  They do a trust in which all their kids will share equally in whatever the couple has after they both are gone.  The couple thinks they have a deal.   But, when the first spouse dies the survivor often sees a lawyer and realizes that the trust provides for the surviving spouse to completely change the beneficiary designations to cut out the kids of their deceased spouse!  

Most trusts are drafted to allow the survivor that ability.  Such provisions are so common that it usually is not even an explicit conversation the clients have with their attorney.  It just sorta slides in there as a function of how things are generally done.  The ability for the other spouse to unilaterally change the beneficiaries is NOT what people generally want.

The point is this: if you are in a blended family and do a trust be sure that you consider and understand the revocability/amendability of the beneficiary provisions once the first spouse has died.  One simple sentence would do the trick: “the beneficiary distributions to all our children equally under this paragraph are irrevocable after the death of the first spouse to die; no spouse shall have the right to unilaterally amend or revoke to favor some beneficiaries over others.”  As long as there are no other provisions to confuse that statement all will go according to plan.  Be careful, a lot of trust language designed to give the surviving spouse needed financial flexibility also has the effect of muddying the waters about how and when the surviving spouse can amend/revoke after the death of the first spouse.  

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Lament on a Few Bad Lawyers

I’ve been trying to succinctly nail a description of what I despise about some (SOME) lawyers for years.  I finally have it.  It’s like playing every possible musical note on every single beat … nothing is left out, but nothing is accomplished, except annoying the hell out of anyone with an ear (and wasting a lot of time/money).  Avoid at all cost.

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A Heartbreaking Custody Case

Up before the Supreme Court right now is a case where parents were forced to give up their adopted two-year old girl that they’ve had since birth.  It’s a crazy and sad story.

The Birth Mother gave the child up for adoption after the Biological Father refused to take any part in the child’s life, waived any parenthood, and contributed nothing financially at any time to the mother or child.  Faced with these circumstances the Birth Mother, who had three other children, gave the baby up for adoption because she could barely afford to support her existing children.  The baby was adopted by the Adoptive Parents who lived together for 27 months.

The Biological Father is 1/100th Native American.  A relevant fact for reasons to follow.

When the Biological Father learned that the baby was adopted, he filed a lawsuit asking for custody.  The kicker of the case is that his claim was based on a federal law whereby Native American children cannot be adopted out without some kind of permission from the appropriate Native American authority.  The state court sided with the Biological Father and held that federal law trumped state law and that since there was no permission given by any Native American authority they ordered the child returned to the Biological Father.

The federal law in question was designed to stem an insidious adoption scheme where Native American children were being taken from their native families for little or no reason and adopted out to non-Native Americans.

Federal law trumping state law is a huge deal … under the state’s “best interest” standard the adoption would have stayed in tact because the child was already established and happy with her adoptive parents making the status quo in the best interest of the child.

The Adoptive Parents were devastated, as anyone can imagine.  They filed suit seeking to get their daughter back.

As it stands it is a three way case.  The Adoptive Parents want their daughter back.  The Biological Father wants his new found custody confirmed.  And the Biological Mother wants her child back arguing that if the child is going anywhere other than back to the Adoptive Parents it should be to her (i.e., that she has superior rights to the Biological Father based on his waiver of parentage).

So now what!?  If the Adoptive Parents win the child gets displaced again.  If the Biological Father wins it’s a great unfairness to the Adoptive Parents AND the Biological Mother.  If the Biological Mother wins she might very well relinquish the child to the Adoptive Parents sparking a new round of confusion and controversy.

This is a mess of the worst kind.  Most lawsuits involve only money were it certainly stings to lose, but it’s only money.  Where a child is involved it is as serious as it gets.

One has to wonder about the fathering capabilities of the Biological Father who now has custody … this is the same guy who didn’t contribute anything financially or paternally during the pregnancy or infancy of the girl.  It was that very failure that probably was the tipping point of the mother’s inability to support the child and thus her decision to put the child up for adoption.  And he “wins” here?!  A tragedy.

As I type I’m wondering what my point is.  I suppose it’s that rules are only approximations … they can’t be confused with the real thing.  Application of law needs a wise hand to make sure that the inherent flaws in all laws are weeded-out and that a fair and just result occurs.

If it were me I’d have ruled that the adoption was invalid under federal law … but that since so much time had passed between the baby and her Adoptive Parents things should be left alone.  Very often in law we find situations where a court basically finds a “technical” winner but then gives somebody else the “practical” victory for reasons that supersede the technical side of it.   Here, the baby and Adoptive Parents developed deep bonds and equity demands that federal law be trumped by basic human rights (embodied in many, many state and federal laws).  I would further argue that State Law never loses its jurisdiction over what happens to its child citizens and that while the federal law in this case is relevant it is not the sole operative law on the matter.   To further support my reasoning I would note that the issue of a fraudulent adoption scheme that justifiably inspired the federal law in the first place is not present here at all.

Isn’t if funny how much clearer things are when the whole world isn’t watching your decision?

 

 

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Come on now Pennsylvania!

I just read an article where a recently widowed mother and her now fatherless two kids moved to Pennsylvania to start over.  They bought a house only to find out there’d been a recent murder/suicide there.  The mother knew before the kids — the kids eventually found out from visiting friends on Halloween.  Yikes.

The woman sued the real estate agent and the sellers.  The trial court ruled in favor of the seller & agent saying that Pennsylvania law does not require the disclosure of such things.  The decision was appealed and a full panel of the appeals court upheld the decision, barely — it was nearly a split decision.  The women appealed to the Pennsylvania Supreme Court and it’s pending.

The lower courts in that case have blown it.  Admittedly, the text of the law makes some sense for physical defects (dry-rot, plumbing, etc.) that you can discover beforehand by inspection.  However, it makes absolutely no sense for defects a buyer has no way of discovering.

The Pennsylvania law in question presumes that defects can be discovered with due diligence by the buyer.  It certainly wouldn’t have been enacted had there been no reasonable way for buyers to learn of such defects.  Also, further support for why the law makes general sense is that the things that can really hurt a buyer are things they’re not likely to miss (hole in roof, water 1 foot high, etc.).   Conversely, the small things that might get missed are the things that are the least devastating to a home’s value.  In other words, if it’s important a buyer is likely find out easily on their own (hence the burden is on the buyer), and, if they don’t discover the defect it probably wasn’t that important or the buyer simply failed to reasonably investigate.  While this is not a perfect law it makes some rational sense as a way to resolve the disclosure issue … generally.

However, what if the defect (murder/suicide) is something that a buyer can’t reasonably know about?  What if that hidden defect greatly affects value?  What if the seller knew and the buyer didn’t?  What if it wasn’t just an innocent mistake by the seller … what if they (and their agent) took deliberate acts to hide the murder/suicide?  Isn’t that unfair in ANYONE’S book?

The current Pennsylvania law clearly does not contemplate this type of outside-the-box type of “defect.”  It is a court’s constitutional job per Marbury v. Madison to interpret this Pennsylvania law as inapplicable to this case because the defect was not within the type for which the law makes sense, and, since we presume laws and lawmakers make sense, the law simply cannot have been meant to apply to this situation.  Simple, precise … and fair.  Is there really any other principled and fair way to see it?  Isn’t fair what it’s all about?  Come on now Pennsylvania!

 

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RESPECT … and lack of…

I had to go to the Sacramento County Court the other day – what a nightmare.  I got a lesson in abuse and disrespect.  I was there to clear up a fix-it ticket that had gone to warrant — the ticket was for not handwriting my new address on the back of my license.  I had originally corrected it directly with the DMV within days of the ticket and sent in proof but it apparently didn’t make it through the mail so a bench warrant was issued for failure to correct.  Typical.

Anyway, I stood in line for about an hour.  I watched fellow tax-payers explode at the service windows where after a long wait they were told to go somewhere else to wait in another long line or some other thing.  I’m keeping my cool reading my book, thinking “it’ll all work out fine”.  A sign said, “expect delays due to government cutbacks.”  Finally they have the decency to post a reason why we’ve always been treated like cattle.

I finally get in to see the judge and he arrogantly hits me with a barrage of questions that splits my tightly woven chronology into a million disjointed and fragmented bits that make no sense on the whole.  I tried to interject to bring some sense to the matter but he cuts me off — “I’M talking“, he says.  He acted as though I was so stupid that I couldn’t explain myself without his help.  He continued to ask questions that only served his purpose of establishing his foregone conclusions.  He had no idea what I was trying to say, he was simply fulfilling his superficial notions of “due process” before he would decide as he was prejudicially inclined.  Maddening.

His staff was equally rude — I felt the palpable sting of being presumed “guilty”.  I could feel it from the look on their faces as they arrogantly whispered bits of information from the computer screen to the judge.  I was beginning to feel violated.  Angry.  Frustrated.

Finally, after a few screw-ups on their part and my responses to the judge’s nonsensical questions (that I wasn’t allowed to qualify), he points to the door and mutters half incomprehensible and equally dispassionate, “blah blah blah, civil fine of blah imposed blah blah”.   I stood there for a fraction of a second as if to say, “what the hell!” before my feet began walking to the door with my mind kicking and screaming at every step.

As I’m turning the knob of the “loser door”, I turn briskly and say, “may I be heard again your honor?!”  At this point I’m feeling like the Red-Rider BB gun kid (“Ralphie”) in A Christmas Story.  The judge says, “what do you want?”  Standing at the door I explain,  “your honor, what I was trying to convey came out very disjointed because I wasn’t allowed a chance to cohesively explain the situation and if given a chance in that regard I’m sure it would all make more sense.”  (Or something equally out of place for such a subjugated environment).  I might have stuttered in there somewhere too.  That utterance of mine was probably the MOST unusual and rogue thing to ever happen in that court room.  How DARE I!  Thoughts of disbarment ran through my head — not that I did anything wrong at all … it was just how they were making me feel.  (They were probably thinking, “who is this poser acting all lawyer-like!?”).

I began to explain my story to an obviously angry judge and incredulous staff.  They printed a few documents, tried to correct me, I corrected them, it went back and forth, etc.  The disrespect got worse.  I was boiling on the inside.  The judge was a little more permissive in what he let me say but made a face like “ok hotshot, I’ll just let you make no sense so that I can show you why I wasn’t letting you talk.”  (Me on the inside: “I am a lawyer damnit, if you’d only listen it’ll make sense you arrogant jerk”).

When it’s done he again mutters something unintelligible and points to the door.  I’m fuming and want to … (we’ll leave it at that).  So I go through the loser door and see another long line.  My blood pressure is up, I’m angry, I feel abused, disrespected, etc., etc.  Finally, I get to the window to pay my fine that I was anticipating being about $500 (they don’t mess around with perceived failure to cure traffic infractions).  “Twenty-Five dollars” she says.  What, twenty-five dollars?  “Yup,” she says.

HA!  The judge finally heard me.  But, boy, did he make me pay.  I felt like I paid the equivalent of $1,000 in damage to my psyche and self worth after only one brief encounter with him.  (What must the average citizen feel like!!??).  The judge hadn’t even shown me the respect of indicating that he heard me and that I’d “won” – like he was doing me a favor because I wouldn’t understand anyway.  I had to fight for the right to speak and I only BARELY mustered the wherewithal because I am familiar with courts and talking to judges.  I can only imagine how the average Joe feels … that sting must stick with them for months, years, a lifetime.  No wonder courts have metal detectors …  I felt why!   A little civility and respect will go a long way.  P.S., Next time I’m wearing a suit!

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Do It Yourself: Practical Advice To Find The Law You Need

Lately I’ve been posting a bit on the philosophical side, so, in this post I’m going to get very practical with tips for non-lawyers on legal research and how the system basically works.  Finding the law you need is not just about finding a snippet of law that supports your position; rather, it is about finding all the law relevant to a topic, knowing how it all fits together, and making a cogent argument that weaves it all together in a legitimate way to support your position.  Often “all the relevant law” is a bit of an art so don’t think that it is purely a black & white matter (see my prior post, “Stepping Outside the Box and Into Fairness Through Equity”).

This short article will not address or examine everything fully.   However, a good overview of the entire law landscape is critical to understanding the details you’ll eventually need to handle your own case or speak intelligently with your lawyer.

Criminal or Civil Law?

There is “criminal” law and there is “civil” law.  Civil law is the most prevalent in the daily affairs between people.  Unless you are charged with a crime civil law is what you are concerned with  (e.g., divorce, contracts, real estate, wills/trusts, probate, landlord-tenant, etc.).  Many of the concepts for researching criminal laws are the same as in civil law, but just know that they are two very different systems.

Whose Laws/Courts Apply?

The federal government has it own distinct laws & courts as does each of the fifty states.  Generally, the particular laws involved determine what court system you are in (e.g. Federal laws  = Federal courts, California laws = California courts, etc.).  The State laws are administered by county courts throughout the state.  Federal courts are divided into 13 Circuits which are then subdivided into districts.  The question of what county (in a state system) or district (in the federal system) you need to bring your case to is a question of “venue” and basically involves geographic fairness.

All court systems are organized in a hierarchy starting with the trial court.  If a case doesn’t settle early or get thrown out a trial is held where a judge or jury makes a decision.  If the losing party doesn’t like the decision they can appeal to the first level appellate court.  If anyone doesn’t like the appellate court’s decision they can appeal to the highest appeals court in that system.  It’s even possible (but rare) to jump from the highest appellate court in a state system right over to the highest federal appeals court (US Supreme Court) as happened in Bush v. Gore.  Appeals are generally not a complete rehearing of the entire case; rather, appellate courts presume that the trial court got it right and will reverse only for substantial and detrimental mistakes (they can disagree with a decision but will not reverse if it was plausibly correct).  Only about 10% of appeals are successful.

Is it a Procedural Law or a Substantive Law?

Procedural law deals with the rules of how matters proceed, i.e., “the rules of the game”.  Procedural law involves things like when and where you must file a case, when and how you can serve discovery, how you must file a cross-complaint, when the statute of limitations expires, etc.  A specific subset of procedural laws are “local rules” which involve things like how to staple your papers, how to request a hearing after a tentative ruling, how to address the judge, etc. (local rules vary but generally each courthouse has its own set of local rules).

Substantive law, on the other hand is getting at the meat of the matter, i.e., whether the underlying behavior at issue is lawful.  Typically, at the beginning when filing a lawsuit has not yet happened, substantive law is what you are most interested in (e.g., whether certain behavior is allowed or not).  Once the actual filing of a case looms the focus will shift to procedural rules (e.g., how and when you must bring your case).  It will stay that way until a trial becomes imminent in which case the laws of evidence will grow in importance.

Distinguish Actual Law From Books Merely About Law

Typically there is a code or statute that specifies the rules for a particular matter.   That code or statute is the primary law.  Appellate courts often make rulings about the parameters of a code or statute; such appellate rulings are also primary law.  A simple example would be if a code said that there’s no parking vehicles in red zones; a court might interpret that to mean that a bike is a vehicle; the net result being that both the code and case law are primary law.

A secondary source is any book that attempts to summarize the law of a topic.  So, following the example just given, there might be a “treatise” or “practice guide” on the law of public parking in which the author would tell you all about the code prohibiting parking in red zones and then inform you that that applies to bikes too.  Such treatises cite to the applicable codes and cases so that you can turn around and cite them yourself.  It’s a good idea to verify the author’s assertions about what a case or code says by reading the cited authority for yourself.  Realize that such a book is a secondary source merely explaining the primary law of a topic.  Courts are only bound by primary law, i.e., what other courts and lawmakers say in their respective cases and codes.  However, it is very common for lawyers and judges alike to rely on secondary sources to get a handle on the primary law.   That said, generally stick to citing only primary law in making an argument before a court unless the secondary source is highly respected and authoritative.

How to Find What You’re After

The books that contain the codes are organized by topic, such as the Civil Code, the Evidence Code, the Code of Civil Procedure, and the Family Code.  Electronic copies of these codes are usually available on the internet.  The books that have appellate case decisions are called “reporters”.  These are also available online to some extent.  The best way to research cases online is through a service like Westlaw which allows you to use key words to search with.   Often Westlaw is free at law libraries.   If you know the exact citation of a case (from a secondary source, for example) there are free online ways to look that case up; however, these free sites don’t give page numbers of the case opinions so they’re tricky to cite in your own papers (proper citation to authority must provide a “pinpoint” cite to a specific page within the published opinion).

The general public will be well served by beginning their research with secondary sources.  They do a lot of the legal analysis for you.  One of the easiest and most “friendly” resource out there is from Nolo Press (nolo.com); next I would seek out a general treatise applicable exclusively to your particular state law on a topic (Witkin, etc.); lastly, I would get the practical “how to” from a “practice guide” on particular topics (Rutter, CEB, Matthew Bender, etc.).

Get Help

Most county courts have a legal resources center where somebody is there to help you along (these are often located in either the county law library or courthouse); in areas like Family Law there is often a dedicated office that gives really targeted and specific help.

The Life-Cycle of a Court Dispute/Lawsuit

The first stage of a case is the pre-lawsuit phase where hopefully the parties are trying to work it out.  If nothing can be worked out then somebody typically files a lawsuit.  (Be very sure you have not already somehow bound yourself to arbitration or mediation; most real estate purchase contracts do just that).

Filing a lawsuit involves drafting a complaint that specifies exactly what you allege somebody did wrong and what law they violated.  Often states have freely available check-box type forms that make drafting a complaint much easier (California Judicial Council forms).

Once a complaint is filed it needs to be personally served on a defendant (sometimes you can serve it by publication in a newspaper but it’s a hassle).  They have 30 days to answer.  After that the defendant answers the complaint either denying or admitting what you alleged.  If the answering party has sufficient grounds they can turn around and sue you back (a cross-complaint) saying that it’s you who is at fault; then you have to answer the cross-complaint within 30 days.

Often courts try to arrange for the parties to mediate or arbitrate early on to avoid the time and expense of continuing the case (courts do it for selfish reasons, but, as it happens, it is worthwhile IF both parties are reasonable).

Once the initial pleadings are out of the way there is the possibility of having the other side’s case (or part of it) thrown out by a “demurrer” or “motion to strike”.  Very technical stuff, and even among lawyers this is often a waste of time.  Once the time for all that is done discovery starts.

Discovery is where information, documents, and potential evidence is exchanged through the various means (interrogatories, depositions, document requests, requests for admissions, etc.).

After months of discovery when each side has a better idea of the facts there is the possibility to again end the case by a “motion for summary judgment” or a “motion for judgment on the pleadings.”  Tricky stuff, rarely successful.

If the case makes it through discovery and isn’t ended by a motion for summary judgment, etc., it’s pretty much in the pipeline to trial (settlement is still possible and encouraged).  If the case is “unlimited jurisdiction” (controversy above a certain dollar amount) then the whole process can take about a year or two.  If the case is “limited jurisdiction” (controversy below a certain dollar amount) it can take up to a year.  Small claims cases (those with the lowest dollar amount in controversy) usually happen within a few months.

Be Smart

Do you know why big cases most often settle?  Because the best and brightest lawyers know that it’s very often the smartest thing to do.  That said, often you have to sue somebody just to wake them up and get them on the court’s radar screen.  Sometimes without filing suit the offending party just keeps on doing what they’re doing.  Lawsuits have a way of getting people to wake up and consider things a little more realistically.

GOOD LUCK!

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Stepping Outside The Legal Box and Into Fairness Through Equity

The idea of equity as a legal doctrine is designed to prevent injustice that might occur by a strict application of a particular rule of law.  Basically, a court can override the strict textual confines of a particular piece of law and make a ruling that is fairer under the circumstances.  While this doctrine is firmly established and of no lesser standing than other means of judicial decision making, I’ve noticed that some courts strongly disfavor it.  Some lawyers & judges view equitable arguments as a specious “hail Mary” indicative of an inherently losing position.  I could not disagree more.

No particular law can specifically cover every set of circumstances that might arise.  Equity, by design, is a way to conform the law to human events that are often more nuanced than mere words of legal text.

Consider two friends one of whom owns 40 acres, twenty of which he’s going to sell the other.   The twenty acres being sold to Friend has the only access road to both parcels.  Original Owner and Friend agree that Original Owner has an easement over the road on Friend’s 20 acres.  Time passes and friends have a falling out; Friend revokes Original Owner’s use of the easement.

Assume that they end up in court.  Friend asserts that he had the right to change his mind about the easement because any agreement they had was merely verbal, i.e., that for it to be binding it had to be in writing pursuant to Civil Code 1624 (among others).  Assume Friend is correct in his assertion that per the code the agreement was supposed to be in writing.  What is the correct ruling?  Is Original Owner out of luck?  Does Original Owner now have no way on to his property?

The law contemplates this kind of situation by the equitable doctrine of “estoppel”.  Estoppel says that while Friend is correct in his assertion the agreement needing to be in writing, he is “estopped” from asserting that defense because it would lead to an unfairness caused by Friend’s own acts.  Thus, by estoppel the easement would be valid and Friend would be stuck with his oral promises.   Despite the fact that most people would think this is the correct result, it is amazing how many courts shy away from equity and rely strictly on the black & white text of the code indicating that the agreement should have been in writing.

Why the gun-shyness about employing equity?  My opinion is that some judges and lawyers cannot think outside the box into more subtle areas.  Observe that the writing requirement of Civil Code 1624 has the benefit of being concrete, identifiable, numbered, codified, quotable, and called a “code”.   Conversely, the law of estoppel has the disadvantage of being un-codified, un-numbered, not quotable as a single statement of law, and called “a doctrine.”  It’s easy to see how the differences in ostensive tangibility lead a certain type to disfavor the nuanced ideas of equity and gravitate toward the apparent clarity of black & white text.

Case law and even many codes are perfectly clear that if facts warrant equity should be employed to avoid unjust results.  The resistance of some lawyers/judges in applying the doctrine of equity is a mystery to me.

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