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THE COURT SYSTEM - HOW IT WORKS - WHAT IT MEANS
The legal system in the U.S. is based on the philosophy that the true
facts of a given situation--and hence justice--will emerge if the
parties to a court action act as adversaries rather than as cooperative
participants. The theory is that if each side vigorously advances its
own version of the facts, an impartial third person or group of persons
(judge or jury) will sift out the truth. Critics point out that this
system depends on equality of representation (assuming the parties are
proceeding through advocates). If one advocate is better than the other,
or has more money to prepare the case, the truth may not emerge.
The adversary system's use has been especially criticized in family law
cases on the ground that it intensifies divisions within a family rather
than ameliorates them. Because cooperation between former spouses is
necessary if children are involved, the adversary system seems
particularly inappropriate in these instances. In response, a number of
innovative procedures are being used to help spouses and domestic
partners resolve their disputes without recourse to the traditional
adversarial approach. For instance, many states require or encourage
parents with children who can't agree on custody and visitation to meet
with a court mediator. In this meeting, the mediator helps the parties
to explore their differences and craft their own solutions. And in many
communities, private mediation services are increasingly available for
both court referrals and spouses to use before either files for a
divorce. Finally, many family law attorneys are themselves becoming
mediators and helping divorce-bound parties to resolve their differences
without the necessity of each person having an attorney.
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.
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 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 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 refers to the central point of dispute in a case.
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.
Example 1: Paul has sued Taya for divorce. Their trial is to be held in
nine months. Taya needs alimony now, however, so she files a request for
temporary alimony. The court schedules a hearing at which Paul and Taya
can appear before a judge and orally present their separate sides. After
listening to Paul and Taya, the judge will decide if Taya is entitled to
the alimony, and if so, how much.
Example 2: Paul receives sporadic royalty payments for a book he wrote
seven years ago. He claims that the income is speculative and hopes to
keep it from being considered in the upcoming divorce trial where the
amount of permanent alimony will be determined. A week before the trial,
Paul requests a hearing to determine whether the law requires that the
judge consider his royalty income in setting Taya's alimony.
======= SIDE BAR--ADMINISTRATIVE HEARING
Administrative law is the body of law governing administrative agencies-
-that is, those agencies created by Congress or state legislatures, such
as the Social Security Administration, state Unemployment Insurance
Boards, state Welfare Commissions and the Occupational Safety and Health
Administration. The authority these agencies possess is delegated to
them by the bodies which created them; the Social Security
Administration's power comes from Congress.
Administrative agencies administer law through the creation and
enforcement of regulations; most of these regulations pertain to
providing some type of benefit to applicants. Frequently, an applicant
objects to an agency's decision to deny, limit or terminate the benefits
provided and seeks to have the decision reviewed. This review is called
an administrative hearing and is held before an administrative law judge
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.
A trial may be before a judge only or before a jury. Virtually all
family law trials are held without juries.
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.
When a judge does not immediately announce a decision, the judge is said
to take the case under submission.
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.
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.
======= SIDE BAR--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
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.
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
======= SIDE BAR--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 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.
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.
======= SIDE BAR--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
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.
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.
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.
======= SIDE BAR--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
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.
The "other man" or "other woman" named in the court papers for a fault
divorce alleging adultery is called the co-respondent.
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).
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.
TYPES OF COURTS
The trial court is the court in which a lawsuit is filed, and where all
litigation up to and including the trial is held.
An appellate court is one which decides appeals of trial court decisions
or lower appellate court decisions. A state's highest court--usually
called the supreme court--is an appellate court. So is the U.S. Supreme
Family courts are special trial courts that hear only family law cases.
All papers filed with a court regarding a lawsuit are called court
papers. Court papers typically consist of pleadings (complaint or
petition and answer), motions (written requests to the court to take
some specific action) and court orders (written orders resulting from a
trial or hearing).
The term responsive pleading is used to describe any court paper filed
by a defendant in direct response to the complaint or petition filed by
the plaintiff. An answer is the typical responsive pleading. Others
include various motions, such as a motion to quash service of process or
a motion to dismiss the complaint, which is intended to get the
complaint or petition dismissed at the outset of the case.
A number of states have developed pre-printed court forms for use in
court proceedings involving such matters as divorces, guardianships and
temporary restraining orders. These forms are especially helpful to
people handling their own cases without lawyers; checking boxes and
filling in blanks is usually much easier than figuring out what needs to
go into a document that must be typed from scratch. On the other hand,
some forms are so confusing that they intimidate all but the most
knowledgeable lawyers or paralegals.
A paper issued by a court informing a person that a complaint has been
filed against her (that is, that she has been sued) is called a summons.
The summons tells her that she is being sued, by whom, for what, and
that she must file a response with the court within a certain time or
The complaint is the first court paper filed in a lawsuit. It briefly
states the plaintiff's view of the crux of the legal dispute and asks
the court to resolve the dispute. In some types of cases and in certain
states, a complaint is called a petition or a libel. Items that
typically appear in a complaint include:
Caption. The caption is the heading which appears on all court papers.
The caption contains the names of the parties to the lawsuit (for
example, Susan Roe, Plaintiff, v. Robert Roe, Defendant), the name of
the court (for example, Federal District Court for the Eastern District
of Pennsylvania), the case number which has been assigned by the court
clerk, and the title of the court paper (for example, Complaint for
Allegations. An allegation is a statement made in court papers that sets
forth a party's belief as to what the facts are in a given case.
Referring to statements made in court papers as allegations serves as a
reminder that they may or may not be true. Thus, when a party has
alleged something, she has made charges which remain to be proven.
Prayer. The prayer is the part of a complaint which requests the court
to grant some specific judicial relief (for example, a divorce,
possession of the family home, child support or custody).
An answer is a formal response to allegations made in a complaint (or
petition). Normally, the answer either admits or denies the allegations,
although some states allow an answer to state a lack of knowledge as to
whether a particular allegation is true or false. If the defendant fails
to file an answer, the plaintiff usually wins by default. In a divorce,
failure to file an answer may result in a default divorce.
Example: Martin is sued for paternity by his former lover, Rhoda. Martin
will be served with a complaint (or petition) containing the allegation
that Rhoda believes he is the father of her child. He must answer within
a certain period of time (usually about 30 days) or lose by default. In
his answer, he must either admit or deny each of the complaint's
allegations. In some states, Martin may respond that he doesn't know
whether or not an allegation is true.
When a party (either through her lawyer or in pro per) submits a written
legal argument to a court--usually to support a motion or a position
asserted at a trial--the document is often called a brief. It typically
consists of a statement of the facts relevant to the case and arguments
supported by references to legal authority (statutes, regulations or
earlier court decisions). Many briefs are quite lengthy; the label
"brief" is an infamous misnomer celebrated by the writer Franz Kafka who
described a lawyer as "a person who writes a 10,000 word document and
calls it a brief."
Points and authorities. A brief usually contains a memorandum of points
and authorities. Points and authorities explain why the law authorizes
the judge to take the requested action. The term points and authorities
comes from the fact that the legal discussion makes certain points
followed by citations to legal authority (usually a court decision or
statute) supporting each point.
Citations. The proper reference (as established by the legal profession)
to a case, constitution, statute, legal encyclopedia or legal treatise
is called a citation. A citation contains the name of the case or other
authority, the name of the book in which it is found, the volume in
which it appears, its page or section number and the year decided or
enacted. Citations allow any reader to find the source and read it.
Example: The proper citation for the case allowing women to have an
abortion is Roe v. Wade, 410 U.S. 133 (1973). The name of the case
includes the name of the plaintiff (Roe) followed by a v. (meaning
versus) followed by the defendant's name (Wade). 410 is the volume
number where the case is found in the series called United States
Reports (abbreviated by U.S.) at page 133. The case was decided in 1973.
AMICUS CURIAE BRIEF
Amicus curiae is a Latin term meaning "friend of the court." It is a
legal argument filed in a lawsuit by a person or organization not a
party to the case, but who has an interest in the outcome. For example,
in the Supreme Court abortion case, Webster v. Reproductive Services,
amicus curiae briefs were filed by hundreds of pro-choice and anti-
abortion organizations. The court may give the arguments in the amicus
curiae brief as much or as little weight as it chooses.
An affidavit is a written statement made by a person who signs the
statement in front of a notary public and swears to its truth.
Affidavits are used in place of live testimony in many circumstances
(for example, when a motion is filed, a supporting affidavit may be
filed with it).
A declaration is a written statement submitted to a court in which the
writer swears "under penalty of perjury" that the contents are true.
That is, the writer acknowledges that if he is lying, he may be
prosecuted for perjury. Declarations are normally used in place of live
testimony when the court is asked to order temporary provisions for
alimony, child support, custody, visitation and property division.
A typical declaration sets forth the factual assertions of the person
signing it (called the declarant) and ends with a statement worded like
this one: "I declare under penalty of perjury that the foregoing is true
and correct, and would be my testimony if I were in a court of law." The
date and place of signing are usually included.
Some states allow declarations to be used in the place of affidavits,
thus avoiding a trip to the notary public.
An assertion is a statement that a thing is true in the mind of the
person making the statement, whether or not it has been proven to be
A financial statement (sometimes called an income and expense
declaration) is a court paper which requires a party to specify her
monthly income and expenses. The court often requires each divorcing
spouse to fill out a financial statement so that the court has a
complete picture of the parties' financial situations before making a
decision on alimony, child support, payment of attorneys' fees or other
HABEAS CORPUS PETITION
Habeas corpus is Latin for "you should have the body." In legal terms,
it is a petition filed with a court by a person who objects to his own
or another's detention or imprisonment. The petition must show that the
court ordering the detention or imprisonment made a legal or factual
error. Habeas corpus petitions are usually filed by persons serving
prison sentences. In family law, a parent who has been denied custody of
his child by a trial court may file a habeas corpus petition. Also, a
party may file a habeas corpus petition if a judge declares her in
contempt of court and jails or threatens to jail her.
======= SIDE BAR--TERMS SOMETIMES FOUND IN COURT PAPERS
Above captioned cause. The above captioned cause is a phrase used in
court papers meaning the particular case. It allows the writer to refer
to the case without restating its name. It is not necessary, however, to
use this phrase.
Example: Assume Fred Johnson is representing himself in his divorce and
files a request for a modification of child support. In court papers, he
may refer to his own case of Johnson v. Johnson as "the above captioned
Incorporate by reference. The method of including the contents of a
document--such as a letter--in court papers or a contract without
actually retyping it is called incorporating by reference. This is done
by attaching the document to the back of the court papers or contract
and referring to it with convoluted language such as, "the letter is
attached to this document as Exhibit A and incorporated by reference as
if fully set out within this document."
Within our judicial system, there are many types of clerks. Court clerks
(frequently called county clerks) keep track of documents filed with
courts; these clerks may also be called civil or criminal clerks,
depending on the court in which they work. Courtroom clerks are assigned
to particular judges to handle the paper flow in the courtroom; law
clerks (usually law students or lawyers) assist judges (and sometimes
attorneys) in legal research and writing. Calendar clerks handle the
scheduling of trials and hearings.
A bailiff is a law enforcement officer, usually a sheriff, marshal or
constable, assigned to a courtroom to keep peace and assist the judge,
courtroom clerks, witnesses and jury.
JUDGE PRO TEM
A judge pro tem is not a regular judge, but someone (usually a lawyer)
who is brought in to serve temporarily as a judge with the consent of
the parties. Many courts use pro tem judges because there are too many
cases for the regular judges to handle. Although every party has the
right to have his case heard by a real judge, judges pro tem are often
practitioners in the field in which they are asked to hear cases and
have as much, if not more, knowledge than a real judge. Pro tem judges
are used often in family law cases, especially in default divorces.
A master (sometimes called a special master) is a court-appointed
official who helps the court carry out a variety of special tasks in a
specified case. For example, the master may take testimony or permit
discovery of evidence. She then prepares a report for the judge. In many
family law proceedings, some routine matters, such as uncontested
divorces, are conducted by a master.
A court commissioner is a person appointed by a judge to assist her in
finding facts, hearing testimony from witnesses and resolving issues.
Court commissioners are frequently lawyers or retired judges. In many
states, court commissioners commonly hear testimony concerning the
validity of wills, preside over default divorces and other default
hearings, decide alimony and child support modifications, and decide
A court reporter is a person trained to take down a verbatim account of
all proceedings in the courtroom (but usually not in the judge's
chambers unless a party requests it). Most court reporters today use
special machines that enable them to get down every word. Later, they
prepare typed transcripts for use by the parties and the judge on
appeal. Court reporters also record and transcribe depositions.
Until recently, court reporters had to manually type out the transcript
from their shorthand notes. Now, however, many reporters have machines
that read the recording machine tape and create a text file that can be
printed out on a standard computer printer.
A notary public is a public official who, depending on the state, has
the power to acknowledge signatures, administer oaths and affirmations,
take depositions and issue subpoenas in lawsuits. Notaries public are
most commonly used to acknowledge signatures, especially on court papers
such as affidavits.
Although notaries public are public officials, most are people who work
in private industry and take a state-administered test to become
notaries public. Often, one or more employees of large institutions
which process much paperwork (such as banks, insurance companies and
real estate brokers) and large law offices are notaries public. Also,
many people who work at courthouses are notaries public.
The number given by the court clerk to a lawsuit when it is filed is
called the case number. Each case in a county has a unique number so
that it may be distinguished from all other cases in that county.
All papers filed with the court during a lawsuit and the transcripts of
all hearings and trials (made by a court reporter) become part of the
official case record. If a party appeals from a trial court judgment,
the appellate court normally considers only information contained in the
case record. It is therefore important for a party during the trial to
get all of her evidence and objections into the case record in the event
she later decides to appeal.
A docket sheet is a document kept in a case file at the courthouse. It
lists all papers filed and actions taken in a case. The judge may also
note on it any action taken during a hearing or trial. Except for
juvenile court and certain other types of confidential matters (such as
adoptions), case files and docket sheets are public records and can be
inspected by anyone.
When used as a verb, the word "calendar" is slang for scheduling a
trial. (For example, "The Murphy divorce case is calendared for
September 3rd.") When used as a noun, it refers to a master list kept by
a court, called the civil calendar, which shows cases that are ready for
or in trial. Some states do not allow cases to be placed on a court
calendar until all preliminary procedures, such as discovery and
motions, have been completed. Unless the plaintiff or defendant (or one
of their lawyers) requests that a case be placed on this calendar, it
will never be scheduled for trial. In fact, many cases are dismissed
every year because attorneys fail to take this vitally important step.
Example: Estelle and Ira Green are ordered to return to court in six
months for the judge to decide whether Estelle will need alimony any
longer. In the courthouse case file for the Marriage of Green (the title
of the case), Judge Garcia will place a sheet of paper (often a form) on
which she has written "Husband to pay wife $250 per month for six
months. Parties to return to court in six months for further order."
Every court has rules (often called local rules) governing the
procedures specific to that court. Details such as the size and length
of the court papers, time limits for filing certain documents, the cost
of filing and when a case may be placed on a calendar are dictated by
these rules. In most states, statewide court rules govern the amount of
alimony and child support to be paid based on the incomes of the spouses
and the number of children. Court rules are usually formulated by
legislative and administrative judicial bodies, or by the courts
Any mental condition that would prevent a judge or juror from being fair
and impartial is called bias. It may be ground for disqualification of
the judge or juror in question.
Most states allow the parties to a case to dismiss the judge assigned to
the case without having to prove actual bias. Called a peremptory
challenge, this right may usually only be exercised once by a party in
any given case.
The furniture on which the judge sits is called the bench. When
something is done from the bench, it means it was done by a trial judge.
A judge's office is referred to as her chambers. Settlement conferences
and adoptions are usually held in her chambers. During a trial, when the
judge wants to examine documents, speak with witnesses or speak with the
attorneys outside the jury's presence, the judge presides in camera, the
Latin term for "in chambers," and holds a conference either in the
chambers or at the bench (where the attorneys and judge whisper so the
jury can't hear).
Recusal is the process by which a judge voluntarily removes himself from
hearing a particular case because of bias, conflict of interest,
relation to a party, attorney or witness, or for any other reason.
When a court postpones a hearing, trial or other scheduled appointment
(such as a settlement conference), it is called a continuance. If one
party is not prepared for a hearing or trial, the court may grant a
continuance to allow the party to get a lawyer or otherwise prepare so
as not to be at a disadvantage. While continuances are often called for
on the ground of fairness, they also are commonly sought by attorneys
solely for the purpose of delaying the proceeding or harassing the other
SERVICE OF CASE DOCUMENTS
A party to a lawsuit has the right to receive written notice that he is
being sued or that a hearing will be held which might affect him in some
way. Many rules have been developed to govern what notice needs to be
given, and how and when it must be delivered. These are usually
contained in court rules and rules of civil procedure.
Service of court papers (also referred to as service of process or
service) is the delivery of court papers to a party, witness or other
person who has a stake in the case. Every state has detailed laws
spelling out just how the papers may be delivered, and by whom. When a
person has been provided with formal notice of the filing of a lawsuit
(that is, that he has been sued), of a court hearing or trial, or
ordering him to attend a hearing, trial or deposition, he is said to
have been served.
In most cases, including divorces, the first papers that must be served
are the summons and complaint. These documents give the defendant notice
that the lawsuit has been filed and what the plaintiff is seeking (for
example, a divorce). The court cannot proceed unless the plaintiff
properly serves the defendant with these papers. There are five major
types of service:
* Personal service--When the person served is physically handed court
papers notifying her that she has been sued, she is said to have been
personally served. With almost all lawsuits, the complaint and summons
must be personally served unless the defendant agrees to accept service.
(See below.) If the defendant does not agree to accept service and is
not personally served, the court cannot take any action in the case,
unless the plaintiff can show that personal service was impossible.
======= SIDE BAR--ACCEPTING SERVICE OF COURT PAPERS
The least expensive and most convenient way to satisfy the service
requirement is for someone on behalf of the plaintiff to mail the
summons and complaint to the defendant and ask her to sign, date and
return a form acknowledging that she received them. This voluntary
acceptance of court papers is called accepting service or acknowledgment
of service, and saves the plaintiff from having to pay someone to locate
and hand deliver the papers, which is otherwise required if the
defendant doesn't cooperate. In some states, the failure to accept
service voluntarily makes the defendant responsible for the cost of
service even if he otherwise wins the case.
* Service by mail--Once a party has been properly served with the
complaint and summons, most future court papers in the lawsuit may be
served on the parties by first-class mail. Most states require that
someone other than a party to the action do the actual mailing and file
proof of the service with the court.
* Service by publication--When the whereabouts of a defendant are
unknown, or personal service within the state is impossible, a court may
allow the defendant to be served with notice of the lawsuit by
publishing the notice in a newspaper of general circulation. As a
general matter, this type of service is only allowed in cases involving
property and status (personal relationships affected by the law). Thus
divorces and certain adoptions (status) and partition suits (property)
may be allowed to proceed after service by publication. But issues such
as child custody and support cannot be decided until and unless personal
======= SIDE BAR--BIFURCATION
In situations where the plaintiff is unable to personally serve the
defendant, the parties don't necessarily have to stay married. The court
can bifurcate the case--that is, divide it--in two. The divorce itself
is determined. Only when the defendant is personally served can the
court then decide the related issues of custody and visitation, child
support, alimony, and property division.
* Nail and mail--Nail and mail service is the posting of the notice on
the person's home and then mailing him a copy (hence nailing and
* Substituted or alternate service--In some states, such as New York,
substituted or alternate service is any method of service a court allows
when personal service is impossible or impracticable. In other states,
such as California, substituted service is leaving the court papers with
a responsible person at the defendant's home or business and then
mailing the defendant a copy.
In most divorce cases, if a divorce is all that is being sought, service
often can be made by mail or publication. If, however, alimony, child
support, custody, visitation or a division of property is being sought
in addition to the divorce itself, most states require personal service
on the defendant. In either case, if the defendant's whereabouts are
unknown, service by publication is often the only available method.
Once the defendant has been served with the summons and complaint,
service of most subsequent court papers may be done by mailing them,
without the need for an acknowledgment of service form. Some papers,
however, such as contempt of court hearing notices and temporary
restraining orders must still be formally served. The party being
served, however, may voluntarily accept these papers.
After the defendant has been served, she usually files an answer or
other response. She must serve this on the plaintiff, and usually can
serve it by mail because the plaintiff, by initiating the lawsuit, has
already appeared in the case and consented to the court's power to hear
Service of court papers on a witness (for example, service of a notice
telling the witness that his deposition has been scheduled), must
usually be done personally; service by mail or publication is almost
PROCESS AND PROCESS SERVER
Any court document carrying the court seal or clerk's signature, that
must be properly served on (that is, given to) the party or witness
named in the document, is called a process document or process. A
subpoena--a document requiring the appearance of a person or the
production of documents at a hearing--and a summons are examples of
court process. Rules as to who can serve process and how it must be done
vary. Some states allow only sheriffs, marshals and constables to serve
process. Other states also authorize registered process servers (often
private investigators), and a few states allow service by anyone 18 or
over who is not a party to the case.
PROOF OF SERVICE
A proof of service is a court paper filed by a process server as
evidence that she served the witness or party to the lawsuit with the
court papers she was instructed to serve.
When a court has the authority to decide a case, it is said to have
jurisdiction over it. In all states, certain types of courts (often
called, depending on the state, superior, circuit, county, district or
family courts) are given specific and exclusive jurisdiction to handle
family law cases. A family law court cannot, however, hear bankruptcies
or criminal cases.
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