(02I) Chapter 7 Civil Law

Civil Law – Law that allow one person to seek monetary relief from another, not punishment of the offending party. – Varies from state to state Civil law. The body of law dealing with the rights of private citizens in a particular state or nation. Civil law is derived from English Common Law which was the law in England at the time colonies were founded. Judicial Procedure. The judicial procedure in civil cases is somewhat different from judicial procedure in criminal case.

• Participants in a Civil Proceeding

• Plaintiff. The plaintiff is the injured party who is doing the actual suing

• Defendant. The defendant is the person or group of people (organization, company, corporation, etc.) that is responsible for the injury.

• Plaintiff/defendant and defendant/plaintiff. Often in civil trails counter-suits are filed. This is often the case, especially in divorce suits.

• Proof in a Civil Proceeding

• A mere “Preponderance of evidence” in favor of the successful party will suffice for judgment. Proof for judgment in a civil proceeding is less weighty than the criminal requirement of beyond a reasonable doubt.

• Statement of Claim (Motion for judgment)

• The statement of claim is filed by the plaintiff with the court of proper jurisdiction and is the first official notice to the defendant of the proceeding. The statement of claim will contain the following information:

Facts for jurisdiction

• Facts for compensation

• Facts for counter-suit compensation

• Pleadings

• The defendant is not required to enter a formal plea. However the following conditions apply and take place after the statement of claim is filed:

• The defendant must answer to each count charged against him/her within 21days of the statement of claim.

• Request for dismissal and the grounds for a dismissal

• Discovery

• Discovery refers to the data or documents that a party to a civil proceeding disclose to another party either prior to or during the proceeding.

• Affidavit. A written declaration made under oath before a notary public or other authorized official.

• Deposition. Testimony under oath to be used in a court in his/her absence. A deposition can be either written or recorded.

• Depositions are often taken of prime witnesses whether or not they testify at trial. Attorney’s fromboth sides are present and question the defendant Interrogatories. A list of questions relating to the case that is to be answered under oath.

• Subpoena. A court order to appear before the court. The subpoena will specify all records regarding the case at-hand that should be brought to court with the witness.

Trial. The plaintiff in a civil trial may decide whether the case should be heard by a judge or jury. The trial procedure in civil proceedings goes as follows:

• Jury selection

• Opening statements. The plaintiff always has the opportunity for first opening statements.

• Presentation of plaintiff’s case

• Presentation of defendant’s case

• Closing statements (plaintiff first)

• Jury deliberation

• Judgment and settlement

• Negligence. Negligence is the omission of an act designed for the protection of the plaintiff. The negligence must be closely related to the injury or damage of property.

• Types of negligence

• Contributory. “Last clear chance” to avoid the injury even though the plaintiff is negligent

• Comparative. Comparing the plaintiff’s contributory negligence to the defendant’s share or percentage of fault

• Assumed risk. The plaintiff cannot recover if he assumed that the risk exits

• Standard of care by landowners

• Has no duty to trespassers

• Must warn individuals of dangerous conditions

• Responsible for keeping premises safe for persons who enter by invitation or with implied consent. Who has implied consent?

• Liability. Liability is the state of being legally responsible for an act. A person is liable for his own actions as well as the actions of others in some case

• Ultra-hazardous activity

• A person is strictly liable for activity that involves a substantial risk to the safety of the public no matter how much care is exercised.

• The activity is one that can be performed with complete safety

• Animal liability

• An owner is liable for damage done by the trespass of an animal

• He is liable for injuries caused by wild or dangerous animal

• He is not liable for domestic animals unless the owner knows of the animal’s vicious nature.

• Products liability

• Design flaws even though seller exercises all possible care

• Plaintiff must show casual connection between product and injury

• Defenses in a Tort Suit

• Consent

• Self defense

• Defense of others

• Defense of property

• Re-entry onto land after initial permission

• Remedies. A remedy is the legal means of preventing or correcting a wrong or enforcing a right. The intention of a remedy is to restore the injured party to the position he/she was in prior to the tort occurring.

• Normal damages.

• A small sum which is a matter of record and indicates that the plaintiff has been vindicated.

• Compensatory damages.

• An award for actual injuries, lost wages, lost to property, pain and suffering, and medical expenses

• Punitive damages

• Awarded to the plaintiff in order to punish the defendant and as a deterrent to others. Punitive damages are limited to cases in where the defendant acts recklessly or because of ill will or evil motive.

• Battery

• Assault

• False imprisonment

• Intentional psychological distress

• Process Service. Process service is the delivery and certification of delivery of any document of process, which is a writ or summons ordering a defendant, witness or evidence to appear in court. The manner set forth for the service of process can be found in Chapter 8 of Title 8.01, Code of Virginia.

• Arrest Under Civil Process.

• “Civil Arrest’” is the apprehending and detaining of a person (Section 8.01-327, Code of Virginia). Certain persons are privileged from arrest under civil process because of the position they hold.

• President of the United States while in office

• Governor of state while in office

• Lt Governor of state while legislation is in session, or during travel to and from

• Members of either house of the U.S. Congress during session, or 15 days before and after session, or while performing a service on a committee

• Judge, grand jury, or witness during attendance at court, or travel to or from the court. Purpose of Service

• The purpose of the private services of civil private process is to provide timely notice to a person or legal entity (business, organization) of pending legal action in which they are somehow involved. The notice may be a served form of a variety of legal documents, and must be served in accordance with the law as it pertains to the particular service.

• Service of Process.

• A process may be served by any sheriff or deputy sheriff. Also, a person 18 years of years of age or older, who is not a party to, nor has an interest in the controversy, may serve process, except original process in divorce or annulment actions (Section 8.01293, Code of Virginia).

• Service of process outside the state.

• Personal service of process may be made on a non-resident out of the Commonwealth by any person qualified to serve process under process under Section 8.01-293, Code of Virginia

• Process may be legally served on Saturdays and holidays. However no civil process shall be served on Sunday unless otherwise expressly provided by law.

• Service of Process on Natural Persons.

• When no specific mode of service is prescribed (by law or the court), service of process upon a natural person may be accomplished in 3 ways:

• Personal Service. Actually handing a copy of the process to the person named therein. If the person refuses to take the process, it may be dropped at his feet and noted on the return.

• There are instances in which personal service is required by the court, e.g. initial notice of divorce.

• Substitute Service. When the person named in the process is not available, the process may be served on one of the following :

• A family member who is still living in the household and is a member of the persons immediate family (spouse, parent, child, brother or sister). The person being served must be advised of the nature of the process. (MUST be 18 years of age or older)

• Posting on the front door.

• This should only be done when all effects to serve the process personally have failed.

• Publication. Under certain circumstances notice of process may be accomplished through publication. However, publication is not normally used and is reserved as a “last resort” method.

• NOTE: Every effort should be made to serve the process personally. If a personal service cannot be reasonably effected, then the service should be a family member. If that fails then the process may be placed on the front door.

• Sole proprietorship. A process that is to be served to the proprietorship must be served to the proprietor of the business.

• Partnership. A process that is to be served on a partnership may be served to any general partner of the business, provided the partner served is not a plaintiff

• Corporation. A process that is to be served on a corporation may be served personally upon any officer, director, or the registered agents

• Return

• When a process has been served, a return (affidavit) must be made to the appropriate court (usually the court which issues the process) to provide certain information.

• That the process was served

• That the service was in accord with the law and court procedure

• The return must be executed by the person who served the process. The following information should be on the return, without exception:

• Date and time of service

• Manner of service

• Location of service

• If service is substituted, why it is substituted and the name of person served and relationship.

• If the process is placed on the front door the date and time the process was posted should be notified on the return. Proof of service (affidavit).

• When service of process is made by a sheriff or deputy sheriff, the return is considered to “prima fascia” proof of service and the facts contained in the return, but is subject to challenge in court. When service of process is made by any other qualified person the return is considered merely evidence of service.

• Garnishments. When a creditor has obtained a judgment against a debtor, and knows of money in the possession of some third party to which the debtor is entitled (usually an employer), the creditor may seek to obtain such money (in accordance with the Homestead Act) through an action called garnishment. In such proceedings the third party (garnishee) becomes a codefendant in the action.

Homestead Act. The Homestead Act is set forth in title 34 of the Code of Virginia. The purpose of the Act is to prevent a creditor from stripping a judgment debtor of everything he owns. The act exempts certain items from seizure by the creditor- essentially those items necessary for the reasonable existence of a person. The Act is available to everyone, unless they have waived that right with respect to the creditor.

• Homestead Act

• 34-4. Exemption created.

• Every householder shall be entitled in addition to the property or estate exempt under 23-38.81, 3426,27,29 and 64.1-151.3 to hold exempt from creditor process arising out of a debt, real and personal property, or either, to be selected by the householder, including money and debts due the householder not exceeding $5,000.00 in value. Investigating Civil Cases.

• The best sources of information when investigating civil cases are the people involved and bystanders who may have witnessed the incident. Again, interview techniques will play an important part in a successful investigation. Utilize every possible source of information for your investigation. Rules of Evidence.

• The rules of evidence for civil proceedings are the same as those for criminal proceedings, with one major difference:

• Degree of proof

• Criminal. Beyond a reasonable doubt

• Civil. A mere preponderance in favor Refer to Chapter 6, Criminal Law and Procedure and Rules of Evidence, Section 9, Rules of Evidence for more information on rules of evidence

Rules of Evidence.

• Rules of evidence have been established so that the truth of the matter will be known and justice prevail. In criminal cases the burden of proof lies with the state to establish the high degree of proof “beyond a reasonable doubt”. While the rules of evidence are primarily seen to apply in a criminal trial, it should be remembered that they apply in a civil trial as well.

• Definition of Evidence. Evidence is the means by which facts are proven. Proof and evidence are not synonymous terms. Evidence is the means of attaining proof.

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