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  • What is civil law?

 

In the judicial system there are two types of cases: Civil cases and Criminal cases. Civil Procedure deals with non-criminal disputes. It is one of the most oldest and prevalent surviving legal systems in the world. Civil law is the most popular system of law. Civil law is a unique type of law inspired by Roman law Corpus Juris of emperor Justinian. It is based on the historic customs that are stuck in codified and writing not determined as in the case of common law. It applies to all citizens even to all legal professionals including lawyers, attorneys and judges must also follow the same. Legal code is the primary source of civil law which is arranged in some pre-specified order according to subject matters.

 

Civil Procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits (as opposed to procedures in criminal law matters). These rules govern how a lawsuit or case may be commenced, what kind of service of process (if any) is required, the types of pleadings or statements of case, motions or applications, and orders allowed in civil cases, the timing and manner of depositions and discovery or disclosure, the conduct of trials, the process for judgment, various available remedies, and how the courts and clerks must function.

The Code of Civil Procedure, 1908 is a Procedural Law related to administration of Indian civil procedure.

 

Parties to a legal suit are the Plaintiff and the Defendant. The person who starts or files a lawsuit is called the plaintiff. The person who's sued in the lawsuit is called the defendant.

 

Some facts to remember:

 

  • If you do not wish to hire an attorney, you may file the lawsuit pro-se. – Pro se means when the plaintiff or defendant does has no lawyer but represent themselves in court.
  • If you want to file pro-se and are seeking a small amount of money, file the lawsuit in court of small causes
  • Don't wait too long to start the process – Hit the iron when it’s hot. Having a prolonged thought whether to file the dispute or not, then thinking and over thinking will not make you land anywhere or make you receive any compensation. Rather, in the long run it can be raised as an issue as per why you took such long time to file the case.
  • If you are sure you need to file a lawsuit and the lawyer agrees, estimate the size of the stake – You must know your stakes before taking the step. It will vary from case to case.

The stake in the case of child custody will differ from that of divorce case.

 

  • Courts and Tribunals :

 

 Tribunals-

First let us talk about tribunals. They are an individual or institution which helps in the adjudication of legal suits. Tribunals are independent of the executive and the legislative bodies of governance. They are open to public that can access them for redressal of their grievances. They need to cite reasons for their arguments and decisions. Also, people can appeal in higher courts against the decisions given by both courts and tribunals. One form of tribunal is the court.

Court – 

Supreme Court – It is the apex court of a country. It has original, appellate and advisory jurisdiction. It has a final word on every lawsuit. There is no other judge above the supreme court of a country. It can overrule the judgement given by any other court if the country. The judgment given by the SC is final and absolute and it cannot be reversed.

High Court – Every state has a high court which governs over the jurisdiction of that state.

District Court – These are the individual courts of each District. 

The room where court proceedings occur is known as a courtroom. The building as a courthouse; court facilities range from simple and very small facilities in rural communities to large buildings in cities.

Now you must be wondering, all these things can be done by a court too. Correct. Then how is a tribunal different from a court? The following are the differences – 

 

  • In a tribunal hearing, your case may be heard by one adjudicator sitting alone.                       If the matter is complicated a panel of several adjudicators will decide on the case. These adjudicators have special training and experience to conduct hearings, but they are not judges. 

 

  • Rules of evidence are sacred to courts while tribunals adopt a relaxed approach to these rules.

 

  • In courts, people rarely get a chance to speak and most of the talking is done by lawyers. On the other hand, tribunals encourage people to stand up and speak and lawyers have little role to play in the settlement of disputes.

 

  • Courts have the power to adjudicate in a variety of cases whereas tribunals specialize in a particular area.

 

  • Litigation in courts is very costly as one has to pay various kinds of fees apart from the fees of attorneys. On the other hand, tribunals prove to be cheaper and quicker for resolution.

 

  • The proceedings of a court are presided over by a judge or a magistrate. On the other hand there is a panel comprising a chairman and other members who are experts in the relevant field.

 

  • Tribunal has lesser powers than a court. For example, a tribunal cannot order imprisonment of a person which is common for a court.

 

  • Tribunals are informal in the sense that there are no special dress codes for different people. On the other hand, courts have a strict code of procedure.

 

  • Whereas a solicitor is necessary in case of courts, they are rarely needed in case of tribunal.

         

            Trial-

 

You visit a store. Select a couple of clothes. Give a trial and decide which one to buy. That is the trial common people speak of. What is the trial we are speaking of in the legal world? In law, a trial is a coming together of parties to a dispute, to present information like witnesses or legal documents. In a tribunal, a formal setting with the authority to adjudicate claims or disputes.

 

The Bench Trial-

 

The trial while sitting on a bench? Hmm, they do sit on a bench, but that is not exactly what we are talking about here. A bench trial is another term for a trial before a judge only without a jury. 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. Bench trial is prevalent in India.

 

Court cases, whether civil or criminal, are designed to resolve disputes by each side offering evidence to support their arguments or undermine the other side’s arguments.  This evidence is then weighed by the jury, in a jury trial, or by the judge in a bench trial, and the law that governs the case is applied to the evidence to determine what the case’s outcome should be.

 

Objection –

 

Heard about this term, “Objection your honour!”. I’m sure you have, in movie, TV series or some other source. This is like a cult phrase inside the courtroom. So, if you can recall those scenes a bit, what do you recall? A man wearing a black cloak questioning a witness or establishing an issue when the advocate of the other counsel has an “Objection!” That’s right. You got it.

 

An “objection” is a formal protest against some piece of evidence, such as witness testimony or another item, because introducing it into the court record would violate the rules of evidence, the rules of procedure, or another applicable law or regulation.

 

Objections may be made whenever evidence is being introduced into a court record, either during discovery processes like the giving of a deposition or during a trial or hearing. Even though a judge is not present during a deposition, objections to deposition testimony are often raised in order to create a clear record on which to base a motion for summary judgment or similar pre-trial motion.

 

When does the opposition’s counsel say objection? How is it done?

  • timely, following quickly after the objectionable testimony or evidence appears,
  • grounded, stating a specific rule that makes the testimony or evidence valid,
  • clear, identifying both the party against whom the objection is made and the part of the testimony or other evidence that is objectionable.

 

So there you go, “Objection overruled!”

 

 

 

 

Cause of action-

 

The backdrop; the story behind the scene; the ground, on which a legal suit is developed- that is the cause of action.

 

In the law, a cause of action is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. It is the matter for which an action may be brought. The ground on which an action may be sustained. The right to bring an action against a wrongdoer. Cause of action is properly the ground on which an action can be maintained.

 

The cause of action is the heart of the complaint, which is the pleading that initiates a lawsuit. Without an adequately stated cause of action the plaintiff's case can be dismissed at the outset. It is not sufficient merely to state that certain events occurred that entitle the plaintiff to relief. All the elements of each cause of action must be detailed in the complaint. The claims must be supported by the facts, the law, and a conclusion that flows from the application of the law to those facts.


 For example, tackling a shoplifting suspect who is brandishing a gun is a legitimate action by a security guard and probably would not support a claim for relief if the suspect were injured in the fracas. On the other hand, tackling a shopper who merely acts in a suspicious manner while carrying a shopping bag is a questionable exercise of a guard's duty and may well give rise to justifiable causes of action.
 

 

Jurisdiction & Venue

 

Choosing the right court for any lawsuit can be tricky—so tricky, in fact, that many law schools devote an entire class to this one subject. Which court is the “right court” depends on two major factors: jurisdiction and venue.

 

What is Jurisdiction?

You go out for a party, come back home very late- much after the deadline stated by your parents. Hence, you are grounded by them unless you have valid reason for being late. So why is it so that only your parents can do this and not any other neighbour? Because they have the authority to do so. 

 

Similar principle is associated with jurisdiction. Jurisdiction determines whether the court has the power to hear a particular case. For a particular court to be an appropriate place to file a case, two types of jurisdiction must exist: personal jurisdiction and subject-matter jurisdiction. Personal jurisdiction asks, “Does this court have the power to make and enforce a judgment over the people involved in this case?” Subject-matter jurisdiction asks, “Does this court have the power to make a decision on the topic this case covers?” For a particular court to have jurisdiction over a particular case, the answer to both these questions must be “yes.” Of the two, subject-matter jurisdiction is usually easier to determine. A state’s constitution usually gives broad powers to the state’s general courts to hear a wide range of legal cases. The majority of personal injury cases fall into this category and may be heard by state courts, especially if the court obviously has personal jurisdiction over both the plaintiff and the defendant. Some cases, like bankruptcy cases, can only be heard in special courts designed to hear those cases.

 

Once a court determines that it has jurisdiction, it must also determine whether the case has been filed in the proper venue, or the proper court among all the courts that have jurisdiction. Often, venue is not an issue, but a party who has difficulty travelling to a particular court, has worked in a particular court, or who does not feel that she will get a fair trial in a particular court may ask for a change of venue.

Choosing the right jurisdiction and venue is important, because if any of the two is incorrect, the case may be dismissed or “thrown out,” and the plaintiff will have to start over again in the court that does have the proper jurisdiction and venue.

 

 

 

  • Concept of Appeal

 

An appeal is a request/petition made to a higher authority to further review the judgement given by a lower court. In-other words, it is a complaint made to a superior court against the decision of an inferior court with the object of getting such order set-aside or reversed. Appeal is the continuation of the original proceedings before a superior court. The statutory right of appeal confers the right of re-hearing the whole dispute. Constitutional provision for civil appeals.The parties in a appellate court are the appellant and appelle. Appellant is the one who goes to a higher court for the reversal of the judgement of the lower court. Appellee is the respondent (defendant) in a case appealed to a higher court.

 


Who can appeal in an appellate court?
As an appeal is a continuation of the suit only such persons who were parties to the suit and who are adversely affected by the decree may appeal. A person who was not a party to the suit cannot appeal against the decree, unless such person is adversely affected, and is permitted by the Appellate Court to file an appeal, that is, directly or indirectly, the decree of the original jurisdiction must affect the party filing a suit in the appellate court.

Forum of Appeal:
The right of appeal is a substantive right, forum of appeal is a matter of governed by procedural law. Every person has a right to appeal to a higher court if she feels the decision made by the lower court is unsatisfactory.


Powers of Appellate Court:
An appellate court may either confirm, vary, or reverse the decree or pass the order of remand of the case. The appellate court may agree with the original decree, may disagree or change the direction of the judgement altogether.

If either party to the case is dissatisfied after the trial court renders a judgment, that party can file an appeal in an appellate court. The party who files the appeal is called the appellant, and the other party is called the appellee. Both the winning party and the losing party have a right to appeal in a civil case. For example, the winning party might think he/she did not receive as much money in damages as the case warranted. The losing party might think a judgment should not have been entered against him/her. The party who files the appeal has the burden of convincing the appellate court that the trial court committed a procedural error or an error in its interpretation of the law. Appellate procedure refers to the rules and practices used by the appellate court in reviewing a trial court's judgment.

What judgments can be appealed?

As a general rule, a judgment has to be a final judgment in order for a litigant to file an appeal. This final judgment rule means that the appellate court has authority over a case only after there is a decision that ends the lawsuit on the merits and leaves nothing for the trial court to do but execute the judgment. There are several exceptions to the final judgment rule. Certain interlocutory or non-final orders or decisions are appealable. Interlocutory orders or decisions can be appealed if they raise the issue of whether the trial court has subject matter judgment, if they involve a constitutional question, or if they assert that the trial court has committed a plain error.

 What are the standards of review?

Standards of review refer to what the appellant must show in order for the appellate court to reverse or overturn the trial court's judgment. The appellate court reviews a judgment to determine if substantial evidence supported the trial court's decision. If not, the judgment will be reversed. Abuse of discretion is another standard of review. Under this standard, the appellate court looks at whether the trial judge properly exercised his/her judicial discretion in making a ruling in the case. The harmless error standard means that a judgment may not be set aside for insignificant errors that do not influence the outcome of the trial. Under the clearly erroneous standard, the appellate court has authority to review the trial court's factual findings. 

What procedures must the parties follow in an appeal?

 

State appellate courts are governed by their state's rules of appellate procedure. In general, the appellant files a notice of appeal. The appellant must submit a trial court record, which includes a transcript of the trial. Both sides prepare written briefs that state the questions raised on appeal. Briefs contain arguments to support each party's position. They include citations to legal authorities that support the arguments made by each side. Most appeals are decided on the briefs submitted by the parties, but a few states permit oral argument in every appeal. If an oral argument is held, the appellate court questions the attorneys for both sides in order to clarify the legal issues presented in the briefs

 

  • How to file a civil case

 

Just because you are whining about an issue, does not mean you have run for litigation. This is serious business. Filing a lawsuit is not something to do just because you need money, or because you want revenge on someone who hurt you. The only good reason to file a lawsuit is if you have a legitimate problem that cannot be solved by other means. Every system has its pros and cons, and so does litigation. Litigation is a serious situation that can be time consuming and costly to both parties.

You may be thinking of filing a lawsuit because you were injured in a car accident or someone owes you money and won't repay you. Or, maybe you're on the other end of a lawsuit and are being sued because you may have caused the accident or owe the money.

Either way, you need to know how to protect yourself and rights, and that means knowing the basic steps of how a lawsuit works. The steps are fairly straightforward, but they need to be followed to the letter or else you may not like how the case turns out.

1.       Complaint and Summons

 

A lawsuit begins when the plaintiff files a complaint against a defendant and requests that a summon be sent to the defendant. The complaint explains why the plaintiff is suing the defendant and what remedy (for example, money damages, the return of certain property, or an injunction to stop the defendant from taking certain actions) the plaintiff wants.

The summons tells the defendant that a lawsuit has been filed and when and where the defendant must appear for court. Also, a copy of the complaint is attached to the summons so the defendant knows why the suit was filed.

 

2.       Defendant's Answer

 

The defendant has a limited number of days (usually 20 to 30) to file an answer to the complaint. In the answer, the defendant sets out any defenses against the plaintiff's claim. For example, a defense might be that:

  • The defendant has already paid back the money owed to the plaintiff
  • The plaintiff's suit is barred by the statute of limitations, meaning the suit wasn't filed within the time period allowed by law.
  • The defendant was under mistake of fact when he did such an act
  • The damage done by the defendant was too remote.
  • The plaintiff voluntarily accepted harm upon himself.

 

Usually, the court will give the plaintiff a default judgment if the defendant doesn't file an answer. This means the plaintiff wins automatically, usually without having to prove the defendant did anything wrong. The plaintiff usually has to prove the amount of damages, though - how much was owed, the plaintiff's medical bills, etc.

  1. 3.       Counterclaim

Sometimes, the defendant has a claim against the plaintiff, in which case the defendant would file a counterclaim. For example, say the plaintiff sued the defendant because of a car accident, and the defendant thought that the plaintiff actually caused the accident. The defendant would file a counterclaim against the plaintiff.

 

4.        Discovery

 

After a lawsuit is filed, both parties can use discovery to gather information about the case. There are all sorts of tools they can use, such as:

  • Interrogatories or written questions to find out more details about the incident.
  • Depositions where oral questions are answered under oath
  • Requesting the other party to turn over documents relevant to the case, like medical records, police reports and car repair bills and estimates.

 

5.        The Trial

 

Both sides have the right to a jury trial in many types of civil actions. When a jury trial isn't requested, the trial is held before a judge. This is called a bench trial. The basic process goes like this:

  • Both parties present their evidence and call witnesses to testify. The plaintiff goes first
  • In a bench trial, the judge considers all the evidence and makes a decision

 

6.       Judgment

 

The judgment is the court's official announcement of the decision - who won and who lost. It spells out what relief, if any, the plaintiff is given.

7.        Motions after the Trial & Appeals

 

The losing party can ask for a new trial and make other motions trying to convince the judge to change the judgment. Both parties have a right to appeal to a higher court if they think there was a legal error in the trial.

 

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