Many people, at some point in their lives, encounter some form of wrong brought about by the actions of another. While virtually everybody understands that the law provides a remedy for legal wrongs, many people have little comprehension of what comprises a legal wrong or what is actually involved in a lawsuit. A civil lawsuit has three main parts: pleading, discovery, and trial.
The pleading phase, as well as the lawsuit, itself, begins when the plaintiff files a legal complaint in the court of appropriate jurisdiction. What actually happens here is that a lawyer interviews the plaintiff, hears his story, and then drafts a complaint citing the relevant information. The complaint identifies both the plaintiff parties and defendant parties, describes events in contention, and states the laws alleged to have been violated.
To be properly formed, the complaint must relate the events to actual laws that have been broken. If the complaint fails to properly identify breaches of law, the case will not be allowed to continue. For example, a citizen cannot sue his neighbor because the neighbor paints his house pink with purple polka dots, and the citizen believes this to be in bad taste. However, if this color scheme does not comply with the rules of a governing homeowner’s association (which constitute a contract between each resident and other members of the association), and the citizen can prove harm as a result (for example, in the form of a lost sale of his own home to a potential buyer who stated that he would not live next to a house painted pink with purple polka dots, but otherwise would have bought the citizen’s house), then the contentious paint can be contested in court.
Discovery, as the name implies, is the phase in which both sides of the case reveal the evidence that will be used to prove their case. Usually, discovery begins with written interrogatories issued by each side to the opposing side, which is answered in writing. Later phases of discovery involve depositions in which witnesses are questioned under oath and statements made are documented by a court reporter.
At the conclusion of discovery, each side will usually file a motion requesting an automatic decision made by the judge, called summary judgment. If the plaintiff has failed to disclose sufficient evidence that will be used in court to prove the case, the judge might respond to the motion by dismissing the case. On the other hand, if the opposing side demonstrates no defense against well-founded allegations, the plaintiff can win before trial via summary judgment.
The third and final phase of a lawsuit is the trial, which begins with jury selection. Jurors are selected from a pool of prospects and each side attempts to assemble jurors who have the traits most amenable to their own cause. For example, in a criminal case, police officers and close family members are usually not chosen by the defendant to serve on the jury. Trial begins with the opening statements made by each side followed by the presentation of evidence, most often in the form of live witness testimony. After being questioned, the opposing side is afforded the opportunity to cross-examine, meaning to ask questions or ask about clarification for statements already made. Finally, closing statements are made by each side.
Prior to making a decision, the judge will deliver instructions to the jury. These instructions dictate how the jury will rule upon reaching certain conclusions. Instructions might dictate certain presumptions in the law. For example, if the jury believes that the plaintiff proved fact X, then the jury must accept that fact Y is true as a result. They might also forbid the jury from factoring certain portions of evidence into the ultimate decision.
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Lawyers who argue legal cases must utilize a wide variety of skills, including written skill, knowledge of the law, and oratory skills. Cases are not merely argued, they are presented. Many facets of the legal process must be negotiated by lawyers and many stumbling blocks can occupy the path to a favorable decision. Successful navigation of the court process is best handled by an attorney who has been seasoned with experience. Contact or call the attorneys at The Kamerow Law Firm, PLLC, in Alexandria, for a free and confidential consultation of your case by calling 703-370-8088. Let them hear your story.
In decades past, it was legal for a two-year-old son to drink a beer at a restaurant while in the company of his father, but the 20-year-old father was not allowed to drink because he was underage.
Laws are usually spelled out with clear, unambiguous, and readily comprehensible language. Laws are also enacted for a specific purpose. In other words, statutes are created either to protect against a specific harm or to maintain a specific aspect of order within society. At times, however, there can be a discrepancy between the words and sentences expressing a law, and the intended purpose for that law.
A loophole arises when the language of a law, or of a series of laws, somehow diverges with the intended purpose of the law. To understand this concept, consider the following theoretical scenario:
A statute in a southeastern state provides that “alligators, being endangered in this state, shall not be hunted.” Meanwhile, another statute allows that “for the safety of humans, any residential property owner may shoot and kill an alligator that enters onto property and presents a danger to the occupants of the land.” In an effort to utilize the spoils of the animals rather than let it go to waste, the law allows that “any animal not illegally killed can be processed and sold . . .”
A property owner in the swamplands of that state regularly leaves large pieces of meat on his land near the water. No laws forbids this activity. The meat effectively acts as bait. The landowner receives a regular stream of alligators on his land and proceeds to harvest them as they appear, selling the skins online to the highest bidder, the meat to local restaurants, and the skulls and teeth to local gift shops. The purpose of the anti-poaching law is to protect limited populations of the animals, but the vague statute protecting human life and limb leaves the possibility that the landowner can create his own jeopardy by enticing the animals to appear on his land. Here, the landowner is acting within a loophole and overtly hunting alligators, but he does so in such a fashion that he violates no poaching laws. Simply put, he gets away with breaking the law in a practical sense.
Loopholes can snare you
Lawmakers continually enact new statutes and amend existing ones to prevent situations like the above. The words and sentences constituting the law are aimed at specific goals, either by prohibiting or mandating certain behaviors and when loopholes such as the fictitious one above are exposed, lawmakers amend statutes to prevent future violations of the intended purpose.
Do it yourself legal patterns
Because the law constantly changes, the undertaking of do-it-yourself legal tasks such as writing a will or executing a contract can be risky. Practices that were once legal might become prohibited at any time.
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If you or a loved one undertook a legal task like the creation of a will or suffered some damage from mistakes while doing so, you need competent legal assistance. Licensed attorneys keep up to date on all changes in the law and can advise and act accordingly on your behalf. Contact the Kamerow Law Firm, PLLC, in Alexandria, at (703) 370-8088 for a free and confidential initial consultation.
Inevitably, unwitting consumers will sometimes purchase products that perform in a manner inconsistent with the intentions of both the manufacturer and the consumer. Such products are said to be defective. Defects can range from a simple inoperability to one that causes property damage and personal injury.
A warranty covering a product can be either express or implied.
An express warranty is one that uses the written word to inform the purchaser of guarantees, if any, made by the manufacturer regarding the functionality of the product. If the product does not function according to promises made in the express warranty, any person rightfully owning and using the product can make a cause of action arising out of the failure of the product. This will usually allow the consumer to have the product repaired or replaced. Any party forming a link in the chain of manufacture and marketing will incur liability for the product failure.
An implied warranty of merchantability is a doctrine of law providing that a product must be fit for its intended use. The intended use of a product might include any reasonable and foreseeable ways in which a product is used by the consumer. For example, a person might reasonably use a fence post as a leaning post. If a failure arises from regular use or such a reasonable and foreseeable use, it will breach the implied warranty. An example of an unreasonable or unforeseeable use is a pistol that discharges while being used as a hammer.
Implied warranties do not extend to individuals past the purchaser of the good, and can be limited or voided by disclaimers.
Scope of harm
If a product harms itself, and no other property or persons, the only claim available will be a warranty cause of action. Under such a claim, repair or replacement of the product will be the remedy, but nothing beyond that. This is true even under circumstances in which the consumer reasonably and foreseeably relies on the product and suffers economic loss from the product’s defect. But when the product causes damage or injury beyond itself, a cause of action in negligence or strict liability is possible. To understand the distinction, consider the following scenarios:
A warehouse owner purchases a large conveyor belt system with an electric motor for moving freight back and forth from trucks to forklift and other warehouse personnel. The electric motor fails while the conveyor is under both implied warranty and express warranty. The engine overheats and burns out, rendering it inoperable. The conveyor itself is damaged, but nothing and nobody else is harmed. The warehouse owner, meanwhile, suffers economic loss because the business of moving, loading, and storing freight cannot be conducted. Still, the only cause of action here is a warranty claim.
Contrast the above scenario with circumstances in which the motor overheats and causes merchandise boxed in corrugated cardboard to catch fire, which quickly spreads causing both property damage and injury to workers. Here, the warehouse owner can sue the manufacturer of the conveyor for personal injury and property damage. Injured warehouse workers, also, can sue and recover for injuries.
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If you or a loved one has suffered property damage or personal injury arising caused by a defective product, you will need legal representation to prove breaches of warranty and to recover money for harm caused. Contact the attorneys at the Kamerow Law Firm, PLLC,in Alexandria, for a free and confidential consultation by calling 703-370-8088.