Good day all. Let us discuss the US litigation legal system. This topic may not be interesting to some folks but it may be to others. First, the litigation system in this country is divided into two separate parts: Jury versus non-jury litigation. A further distinction must be made: An action at law and an action in equity. Some may not have heard of the two types of litigation actions. In an action in equity (such as a divorce or guardianship) the parties are not entitled to a jury trial. The case is heard only by a judge acting both as the finder of fact and finder of the law. In other words, the judge acts as the judge and jury. In an action in equity the judge has much more power than in an action at law. In an action in equity the judge can order the parties to do things such as transfer property to the other, require the parties to turn children over to the other (child custody case, including divorce) and take other affirmative action, etc.
In an action at law, such as a civil lawsuit, you are generally entitled to a jury trial and the court is somewhat limited in what it can do. Usually, the limit includes granting a civil money judgment against a losing party to the lawsuit. The court can’t order a party to actually pay the other party the money, but can only issue an order (piece of paper) granting a judgment against a party for a certain sum of money. It’s up to the party holding the judgment to actually collect on the money (if possible). Consequently, before pursuing a lawsuit against another party, one would be wise to first determine if the judgment is collectable (that is, that the sued party actually has assets enough to make the judgment collectable). If not, it may be throwing good money after bad.
Now let’s explore the nature of a trial either jury or non-jury. There are two parts to any trial. There must be a finding of the law and a finding of fact. In an action at law, the judge determines what law applies to the case and a jury determines the facts of the case. The law can either be statutory or common law. Statutory law is made by a legislative body such as Congress in federal cases and a state Legislature in state cases. Common law is law that may have come from England or is judge made that is not set forth in legislative law. To determine what is the statutory law one must read the written codes or statutes. To determine the common law one must read court opinions that have been decided by courts of higher authority such as appellate courts. Consequently, a legislative body creates statutory law and judges create common law. Both statutory and common laws are used as the law in any trial.
Now let’s explore how a trial actually works. An individual can sit on a jury and never fully understand just how a trial works. In a jury trial setting, the jury determines the disputed facts in the case. The judge determines the law to be used in the case. The only purpose of a jury is to determine the disputed facts of a case and the amount of any monetary award that is also considered a disputed fact of the case. If the facts in a case are undisputed there is no need for a jury. A technique used by lawyers to argue that there are no disputed facts is summary judgment. A motion for summary judgment is used by the defense to attempt to persuade the court that there are no disputed facts and the court should determine the case based upon the law considering the undisputed facts of the case. An example would be in a negligence case where one party is suing the other for money damages because of the negligence of the other. Let’s say there is an intersection collision where the suing party is injured in the crash. If the intersection had a traffic signal, one issue of fact could be, who had the green light and who had the red light. The suing party (plaintiff) would take the position that he/she had the green light. The defending party (defendant) would take the opposite position that he/she had the green light. Thus, there are disputed facts in the case, i.e., who had the green light. Unless, there is an agreement of the facts it will take a jury to determine the actual facts (who had the green light). Conversely, let’s say that both parties agree on the fact that the defendant had the green light (very, very uncommon). Now, there are no disputed facts in the case and the judge can decide the case on a motion for summary judgment. The judge would take the undisputed fact that the defendant had the green light and dismiss the case based upon the theory that the defendant cannot be guilty of negligence because the defendant had the green light and did nothing wrong. Because there are no disputed facts in the case there is no need for a jury to determine the facts and the judge can decide the case based upon the law. If the undisputed facts are in favor of the plaintiff, the case may still need a jury for the sole purpose of determining the damages suffered by the plaintiff and how much money, if any, the plaintiff should receive.
In a non-jury trial setting, such as a divorce, the judge determines the facts and the law. Consequently, the judge acts as the jury and also determines what law applies to the case. If there are no undisputed facts in the case the judge still has the burden of determining what actions should be taken in the case (i.e., the custody arrangements of the children). A non-jury trial is much more streamlined because there are no jury instructions, there is no jury selection and the trial is usually less costly to the parties. Now, it should be noted that even in a jury trial setting if both parties waive a “trial by jury”, the case can be heard by the judge the same as a divorce case, etc. In a civil case the burden of proof is the greater weight of the evidence or stated another way by a preponderance of the evidence. This means that the jury as fact finder only has to be more than fifty percent convinced one way or the other. This burden is relatively low compared to the burden of proof in a criminal case.
Now that I more than likely bored you to death, let’s review a criminal case. The rules differ greatly. We all know that one is considered innocent until the government proves beyond a reasonable doubt that the defendant committed the crime. But what is “beyond a reasonable doubt”. When I have picked a jury in a criminal case I try to get the prospective jurors to provide me with their opinion on the definition of this burden of proof. You would be surprised with the answers I have received. Some say it means you must be 100% convinced of the criminal liability. Others opine that beyond a reasonable doubt is somewhere between 75% and 100%. Beyond a reasonable doubt is hard to quantify. Clearly, the burden is much more than 50% convinced but less that 100%. If I had to put percentages on it, I would say that the burden would be between 80% and 100%. Some jurors may be convinced 100% percent but the law does not require this high of a standard. Lastly, everyone knows that one is presumed innocent until the government proves guilt beyond a reasonable doubt. What is the difference between innocent and not guilty? Are they the same? No they are not the same. Innocence, in theory, indicates that the defendant did not commit any acts that are criminal. Guilty or not guilty is the standard that a jury must decide. A jury does not find a defendant innocent but only guilty or not guilty. You may ask the question, “isn’t innocence and not guilty the same? The answer is, no they are not the same. Not guilty may be a lower standard than innocent.
When a jury finds a defendant “not guilty” this could have two different meanings. A verdict of “not guilty” may only mean that in the opinion of the jury the government has failed to prove the case against the defendant. It may mean that the jury is convinced that the defendant is innocent or may only mean that there has not been enough evidence presented by the government to prove guilt beyond a reasonable doubt. A jury may actually believe that the defendant committed offense but the government has not proven the case. In this scenario a jury must find the defendant not guilty. As a practical matter, juries may find a defendant guilty just because they believe the defendant committed the offense regardless of whether the government has actually provided enough evidence to establish guilt beyond a reasonable doubt. This is highly improper, but folks, this is reality.
The foregoing is by no means is an exhaustive discussion of the US litigation system but provides general information for the layperson. I hope this information is informative to all my readers. Any comments would be appreciated.
Best Regards Until Next Time,
Andrew Moler, Esq.
Hi All, Andrew here. It’s been a while since my last blog post. Today I want to talk about food. I happen to be a foodie among other things. I want to talk about a few of my favorite foods. Let’s start with oysters. Now some of you may not like them. It’s a love/hate experience. Usually no in-between. Now, there is an oyster bar close to my house. I mean a real oyster bar. Not a side item that most restaurants can’t get right. I don’t eat them raw. There are health issues with eating oysters raw and bacteria. I eat them lightly steamed. Approximately 4 minutes per bucket. If they are cooked longer they will be rubbery and not very tasty. This allows them to remain soft with juice and still cooked. Eat them with a cracker, melted butter, cocktail sauce and garlic (if you like it). From a nutritional standpoint, oysters are one of the best foods you can eat. They have most all the vitamins and minerals that you can find in one food group. If you go to a “seafood restaurant” and order oysters you will probably be disappointed. I am not turning this blog into a food blog but food is something that we all need. Some restaurants also grill oysters on the grill. I have found that this cooking method usually over cooks the oyster. More to come later.
Start with cooked white rice such as jasmine. Then place the rice on a flat top grill (can use a pan is necessary) continue to cook the rice using soy sauce to cook with olive oil to keep the rice from sticking to the pan or flat grill. Add a little real butter to the mix. Once the rice is hot add raw eggs to be cooked in the rice. Add carrot strips, canned peas along with some broccoli and last some cooked bacon strips. Allow the mix to cook completely. You may also add some sesame seeds to taste at the end of the rice cooking. Remove, let cool and enjoy. Yummy!!!
Andrew Moler, Esq.
Before I address these issues in a future article, I feel compelled to address where we are in today’s society and the world. I am talking about the “End of Days” and the future of our world society. Now, there will be a presumption that most of you have some belief in the Holy Bible. Even if not, certain current events cannot be denied. There has been a drastic increase in US and world calamities such as an increase in volcanic activity, hurricanes, floods and other world disasters that are a menace in the world even as we speak. I recently watched a show on the History Channel when several experts discussed the future of the US and the world with regard to present issues involving the possibility of nuclear threats, the shortage of clean water, the collapse of the current economic system, world depression and as stated previously, volcanic activity. We are also witnessing an unprecedented drought in the world.
We humans have destroyed the earth with nuclear waste, contamination of the farming soil and mountains of garbage in our oceans. I recently watched a show that discussed the present status of our water supply. According to the article, our aquifers are receding and are being contaminated with all kinds of poisons such as run-off fertilizer and even nuclear waste. Cancer is on the rise partly due to all the chemicals that are used in our food and in the air.
From the sky, we are at risk from falling meteors and the constant threat of volcanic activity that could actually make the human race extinct. From a political standpoint, our US economy is close to collapse due to our rising debt that we are experiencing in the US and the world at large. If all of this is not enough to scare the heck out of us, look at the recent event where the country of Cyprus went bankrupt and the government actually went into the citizens’ bank accounts and “stole” a percentage of their money for the government to use with no recourse to the citizens. Can you believe that the government actually stole their money? Folks, don’t think this could not happen in the US. Our US government is so big and powerful it’s out of control. Last but not least, there are diseases in the world today that could turn a world wide pandemic.
We better wake up and take action to reduce the size and power of the government before we citizens are the victims similar to the citizens of Cyprus.
Andrew C. Moler, Esq., M.S.C.J., J.D., LL.M.-Tax, M.Tax
Good day everyone. It’s been a while since my last post. I will be posting my next article regarding the identity of aliens. I have an interesting position on this subject. Are they really ETs? Yes, but from where and from what? Please tune in.
Well good day folks. It’s been a while since my last post. I apologize for being busy. Let’s look at the Iran deal involved in the nuclear deal that will be before Congress shortly (maybe already). For those that don’t know much about the agreement, it calls for the Iranians to slow down its nuclear program for 10 years and then will allow Iran to have a nuclear weapon(s). This is a crazy idea. In essence, this agreement only puts off the ability for Iran to make nuclear weapons and use them again Israel and the “great Satan” the US. Make no mistake about it; Iran is out to destroy Israel and the US. Iran hates everything about Israel and the US.
It seems that Obama wants the agreement with Iran at any cost. Obama’s administration is either totally ignorant, totally blinded or delusional, or just does not care about our country and the world. Giving Iran any ability to have a nuclear weapon at any time is a prescription for the death of Israel and possibly the US. We don’t even know the contents of the agreement because the administration says it confidential. Allowing Iran to obtain nuclear capabilities is an open door to world war III!
Folks, we need a new US administration. We need a president that will say what he/she means and will act accordingly. Our country is a disgrace to the world community. We are no longer respected as a super power on the world stage. We need major change before the US is reduced to nothing more than a third world country and bankrupt.
More to come later on the status of the middle east problems. Merry Christmas!!
Andrew Moler, Esq.
Good day folks. Well, the modern topic in current world events is the proposed nuclear weapons deal with Iran. The deal is all familiar, “Peace at any cost”. This seems to be motto of the countries (including the US) that are trying to broker a deal with Iran and its pursuit of nukes.
Iran (formerly Persia) has indicated that it primary goal is to “wipe Israel off the face of the earth. Secondary goal is to do the same with the USA. What the world does not “get” is that Iran wants to start world war III with the nukes and wipe out Israel and the USA.
The current proposed agreement between Iran and the world is that Iran will agree to stop its pursuit of nukes for 10 years and then the nukes are available to Iran on a “silver platter.” What is blinding the eyes of the world to even consider making a deal with Iran. Iran can’t be trusted. If Iran obtains nukes it will use them against Israel and the US, by its own admission.
As I keep repeating, this world has gone crazy. Christians are being killed in the Middle East at alarming numbers. Of course, you won’t hear about this from mainstream liberal media. If you were fortunate enough to hear Prime Minister Netanyahu’s presentation before Congress you will note that Israel with do what ever it takes to keep Iran from obtaining nukes. There are several world political theories about the role that the US should take in world affairs. One being isolationism. The theory dictates that the US should stay out of world affairs. This position in today’s world is pure suicide for the US. The US MUST help keep the world stable and do what ever it takes to protect our interests (and possibly our own existence) now. We can’t wait until the 11th hour to take action. We need leadership in this country in the worst kin of way. Obama is a lame duck do nothing. With regard to Iran obtaining a nuke to use on Israel and the US, for those of you that are Bible believing Christians the Bible predicts that there will be a third world war that will kill one third of the world’s population during the end times. Could the Iran issue be the beginning?? Give me your thoughts.
Andrew C. Moler, Esq.