LESSON 6

 Civil Law

 

    Introduction: Some principles of civil law that are not easy to understand

 

When talking about civil law cases, it can be said that the United States has the most lawsuits of any country in the world. There are about ninety million cases filed every year. This Lesson will introduce civil litigation procedures, and then we shall have a detailed analysis and discussion about some common principles and characteristics of civil action that are not easily understood by most people. These features include:

 

First, in a capitalist society like the United States, legal fees are high, and on the surface, the rich seem to have more advantages in litigations. But actually, the poorest people with absolutely zero assets are often “invincible”. 

 

Second, when employees are in trouble, the employer also suffers.

 

Third, business partners who only hold 1% of the company have to bear 100% of the liability.

 

Fourth, the United States civil action and insurance systems are symbiotic. From a certain perspective, the insurance company is the lawyer’s “bread and butter."

 

Fifth, while the American and British legal systems have the same origin, their system for fees is different. The method in which lawyers in the United States collect fees affects the proliferation of lawsuits.

 

In the previous Lesson we already discussed the differences between civil and criminal cases. Civil lawsuit rulings have two outcomes: monetary compensation or injunctions, but mostly monetary compensation. If the litigant violates the injunction after the ruling, the case can turn into a criminal case. Otherwise, civil cases do not involve imprisonment. 

 

The scope of civil law is much broader than criminal law. As an example, I will cite a case I dealt with in the past. A young seaman had a heart attack and died on a ferry, leaving his wife and daughter behind. I was entrusted with handling his affairs after his death. Although he was only an average person with little property, after his death, there were numerous aspects to deal with such as his will, life insurance, pensions, social security insurance, union insurance, maritime law, labor law, insurance law, and also a death investigation which studied whether the employer had been careless. The actions at every stage mentioned above all involve some sort of law or regulation that in the end cannot avoid dealing with money.

 

Civil lawsuits can be described as ever-changing and all-encompassing. We cannot introduce all of them, but we can familiarize ourselves with the most common and important civil lawsuits. 

 

Section 1.  Criminal Cases have Priority 

 

Even though the range of criminal cases is more narrow compared to civil cases, they occupy a priority in court. If two cases are scheduled on the same day, but there is only one trial judge, the civil case will be continued so the criminal trial can proceed first.

 

Criminal cases are a priority because criminal cases determine a person’s freedom.  Civil cases only determine the allocation of money, so of course, the former is more important. In addition, according to the Constitution, the accused in a criminal case has the right to a speedy trial, so a criminal case in court is scheduled first. 

 

In the past two to three decades, drug use and drug related crimes have increased causing the number of criminal trials in the United States to increase sharply. As a result, civil cases are often crowded out. In big cities with numerous lawsuits and a lack of judges, such as New York City and Los Angeles, a civil lawsuit could wait three to five years before its trial takes place. This is a very common.

 

Section 2. The Scope of Civil Law—Differences between State and Federal Cases

 

In American law, aside from criminal law, the rest belongs to the scope of civil law. 

 

The United States government adopted the federal system. The judiciary is also divided between the the federal government and the fifty state governments. All the federal judges are nominated by the president. After Senate confirms the appointments, they serve for life. Although individual states have a similar system when appointing judges, most judges are chosen by the people and also do not serve for life. 

 

Cases are split between federal cases and non-federal cases. The same can be said for civil cases. The types of civil cases that the federal government handles have some unique characteristics:

 

First, federal and state court powers and responsibilities are divided according to the nature of the case and not because some are more superior than others. In some kinds of civil cases, regardless of the state they occur in, they exclusively belong to the federal government’s authority. For examples state courts have no say in bankruptcy law, copyright law, patent law, maritime law, immigration law and some other areas.

 

Second, the federal government’s power is under strict legal provisions that are technically very complex and are skipped over here. In cases beyond the federal scope, including divorce, landlord evictions, etc., the federal court has no right to intervene. However, if the tenant involved is a federal agency, such as the Post Office, the federal court can then be involved.

 

Third, the federal court system has a unified criminal and civil case procedure. For example, whether its a criminal case or a civil cases, the federal jury is composed of twelve members and they have to reach a consensus before they can make a decision. In contrast, states may have different procedures and requirements when it comes to civil cases.

 

In order to unify the data in this book and avoid making matters overly complicated, unless specifically stated that it is within the scope of federal law, the examples in this book are from the California judicial system. California is the largest and richest state in the United States (accounting for 15% of the population) that has a sound justice system and is quite representative. However, it is worth emphasizing again that although the legal principles and philosophy of the 50 states are roughly the same, their specific legal systems are very different.

 

Section 3.  Civil Litigation Procedure and the Court

 

Subsection 3.1.  Litigation Procedures

 

All civil actions, regardless of the size of the case, are initiated by the plaintiff putting forward an accusation. Depending on the nature of the case, the complaint is submitted to the court where it happened such as the Federal District Court, a state’s Supreme Court, the District Court, or the Small Claims Court. 

 

After the plaintiff files the complaint with the court, the appropriate procedures must be followed and the complaint must be handed to the defendant. This procedure is called the “service of process”.

 

After the defendant receives the complaint,  he must reply to the same court within the specified time (aside from exceptions, usually it is thirty days). Otherwise, his silence will be seen as a waiving of his right to reply. This is also known as “default” in law. After confirming the defendant’s absence, the plaintiff can unilaterally ask the judge to accept his or her demands. In the absence of objections, the judge will approve all of the plaintiff’s demands. Therefore, in civil cases, unless there are special reasons, the defendant should never give up his or her right to reply or be absent.

 

After the defendant responds, both sides will begin investigating and negotiation while they prepare for trial. The investigations, negotiations and preparation work are the “key" to the whole case.

 

Basically, most of the lawsuits in the United States, whether criminal or civil, are settled by negotiations. Even after the negotiations break down, the two sides will usually agree on mediation or arbitration. The case will only go to court for a judge or jury decision if there is no other choice. If the case really does end up in a trial, the law gives both parties the right to have a trial by jury. The court’s conclusion is called a decision (called judgment in civil cases and verdict in criminal cases).

 

With the proliferation of lawsuits in recent years, the time needed to deal with cases is delayed. Legal fees (especially the cost for the trial) are expensive. In a typical lawsuit, both the plaintiff and the defendant want to settle without going to court. Therefore, mediation, arbitration, and even renting a private courtroom and a judge have become increasingly popular as ways to solve disputes. Moreover, before a trial, the judge will encourage the parties to try and negotiate a settlement to reduce the court’s burden. 

 

Under the American system, any of the parties winning the lawsuit does not necessarily mean that he “wins” money. The reason is the amount of compensation or damages won by the party may not even be enough to cover the costs spent in court. Another very important point is that even if the plaintiff wins the lawsuit and gets the court's judgment papers, he still has to see whether the other party has the ability to pay the compensation money. If the losing party is very poor, or has declared bankruptcy, or uses a variety of legal loopholes to evade responsibility, the plaintiff still has to continue to spend money (on lawyers' fees and other expenses), time, and energy to recover. In some countries, after a judgment, the court is responsible to execute the judge’s orders. However in the United States, after a judgment has been issued, the court is not responsible for the execution of the judgment.  So even if a party wins the case, it could turn out to be another nightmare. Therefore, a good lawyer must take into account the party’s stakes and give analysis and recommendations on whether to pursue the litigation. 

 

The above is only a brief introduction of the civil litigation procedures. There are two reasons: First, American civil procedures are not uniform. An overly detailed discussion may actually mislead the readers. Second, civil action is very complicated. Only lawyers have the ability to deal with such procedures. Ordinary people should not believe that knowing the procedures means having the ability to litigate. According to my own and many lawyers’ experiences, lawyers have the most difficult time “serving” college professors, doctors, and other intellectuals. They often think that their own high intellectual level, social status, and work ethic mean that they can be opinionated and not listen to the lawyer’s advice. This often can determine a victory or defeat in a lawsuit.

 

Subsection 3. 2. The Organization of the California Courts 

 

We will use the state of California, where there are a lot of Chinese people, to discuss the organization of state courts. 

 

The United States courts are roughly divided into two types: trial court and the court of appeal. In California, the size of the damages claimed is the standard used in determining which civil cases are handled by which court. 

 

The lowest level of court is the small claims courts. The maximum amount a plaintiff can claim in this level of court is $5,000. Civil cases involving more than $5,000 but less than $25,000 in compensation are under the municipal courts. For civil cases involving compensation exceeding $25,000, they are sent to the county superior court for trial (The American concept of county is different than China. The United States is divided into several states that have numerous counties. The counties all have several cities within them. California has a population of thirty-two million (now 35 million) people. They are divided into fifty-four counties. Each county is then divided into several cities).

 

Above the County Superior Court is the State Court of Appeal. Because the land and population are large in California, the state is divided into five appeal districts. Each district has a Court of Appeal. The next level above the Court of Appeal is the state Supreme Court. It is composed of seven justices and they are responsible for civil, criminal, and constitution appeals and rulings. Under state jurisdiction cases, the ruling of the state Supreme Court is final. In 1995, Ming Chin became one of the the seven California Supreme Court justices. He was also the first Chinese American to hold such a position.

 

Subsection 3.3. The Rise of Arbitration

 

A Western saying goes, “Justice delayed is justice denied”. The sentence is often used in criminal law. If a convict is waiting in prison for a fair trial but it is being delayed , even if he ends up being acquitted, he would have already suffered an unfair punishment. 

 

In the past years, this sentence mentioned in the previous paragraph has developed a new meaning in the American legal profession. Because of the explosive growth in Unites States criminal cases and lawsuits, the court cannot meet the demand of manpower and resources needed, so even the most ordinary civil cases become “Justice delayed is justice denied” situations. In court, criminal cases have priority. Criminal defendants also have the constitutional right to a speedy trial (usually within 60 days for a trial). Civil cases do not receive such provisions. With inadequate courts, situations where there are too many cases in populous regions such as Los Angeles, a civil action can wait four or five years before reaching court resolutions. This is not surprising. Inexperienced people are unable understand the difficulty lawyers face when they try to schedule civil cases. 

 

The worst aspect of losing in a long awaited trial is not necessarily the money spent, but actually the mental burden and the extended waiting period of not knowing the impact of the case. Preparing a case for court is not easy. A lot of energy is spent in every aspect including using all your ability to find a witness, persuading the witness to testify, and so on. The witness may come but there is not trial. Perhaps the next time, the witness is not free, or changes his mind about appearing in court. Theses are all unknown variables.

 

If a case is delayed for too long, the court will strongly encourage the parties to negotiate a settlement, if not reconciliation. Then, they are encouraged to go to arbitration. If both sides agree on arbitration, they will generally find a senior lawyer. Then they will set a time to meet outside of court to have arbitration at a law firm. A formal trial is conducted that is similar but a slightly simpler form of hearings and debate from both sides. The final ruling is given by the arbitrator. However, unless both parties have agreed to comply with the agreement of the arbitrator in advance, if any party is not satisfied with the arbitration, the case can still be continued In some cases, such as with some minor cases, the court will require the parties to solve the case through arbitration. If the court scheduled time is too far in the future, the most important aspect is the aforementioned uncertainties. Both parties are usually willing to seek arbitration. Therefore in recent years, arbitration has become increasingly popular in civil litigations.