|
Civil Litigation
|
|
|
Overview
The court process that seeks to correct a private wrongful act is referred to as civil litigation. This contrasts with a public wrongful act which is a crime and is prosecuted by local, state or federal authorities. Successful civil litigation depends on three elements. They are damages, liability and deep pockets.
|
|
|
Damages
Damages must be proved to the Court. The plaintiff, who brings the action, must have suffered harm that is legally compensable. This includes out of pocket expenses, pain and suffering, lost wages, medical expenses, loss of value to property etc. These are referred to as compensatory damages. Sometimes, although rarely, a plaintiff may receive punitive damages.
|
|
|
Liability
Liability of the defendant must be proved to the Court. By liability we mean responsibility. The defendant must be responsible for the damages caused. And if the defendant is only partially responsible he/she may have to pay only part of the damages.
|
|
Deep Pockets
Deep pockets is a slang expression which means the defendant has the resources or wealth to pay for the damages. It is a hollow victory to win a judgment but you are unable to collect because the defendant does not have the assets to pay the judgment.
|
|
Types of Actions
Civil Litigation may seek either money damages, which is referred to as a ‘remedy in law’ or non money damages, such as an injunction, which is referred to as a ‘remedy in equity’. Some lower courts like small claims courts do not have equity jurisdiction and they may only award money damages.
Generally speaking money damages are awarded for a breach of contract or a tort case. A breach of contract case arises when there is an agreement between two parties and one of the parties violates or fails to live up to the agreement. The agreement may be in a written contract or an oral agreement. Sometimes, because of the nature of the agreement, it must be in writing. There are other contractual requirements like consideration, competency of the parties and lawful purpose that Courts may insist upon. Tort cases include negligence, which is unintentional wrongs. Some wrongful acts may be a tort and a crime. For example, the crime of assault may also be the tort of battery.
|
|
Small Claims Courts
Local courts have small claims jurisdiction. The amount of recovery is limited to $3,000.00 for Town and Village Courts and up to $5,000.00 for New York City Civil Court. The rules of evidence are relaxed in Small Claims Court and the Judge attempts to do ‘substantial justice’ and in doing so may relax some of the procedural rules as pointed out above. Small Claims Court can award only ‘remedies in law’ i.e. money damages and only to the extent of their monetary jurisdiction..
To prove your case in small claims court you should try to have more than just your word. A witness may be helpful, so too would documents or photographs. To prove your damages you may use a bill of sale, a receipt, an itemized paid bill for repairs or two itemized estimates for repairs. Your damages do not include your inconvenience but may include Court costs and sometimes interest.
|
|
Resources for Small Claims Cases
A Guide to Small Claims Court
Published by New York State Unified Court System
Small Claims Guide for Town & Village Court
Published by Matthew Bender & Co.
And Justice for All
Published by Looseleaf Law Publications
|
|
Additional Notes
There are a number of Consumer Protection Laws which have been enacted by local, state and the federal government. They offer the consumer special protection in the purchase of new and used automobiles, funeral home services, door to door sales, home improvement contracting, the purchase of furniture or major household appliances etc. etc. Some of these laws may offer triple damages and/or attorney fees.
In the sale of goods warranties may be expressed or implied. The damages you can receive may be limited by your contract and may be a firm amount, which is referred to as liquidated damages.
Negligence is not considered intentional but accidental. Statutes sometimes presumes negligence as in cases involving dog bites, where there is knowledge of a dog’s propensity or bailee cases such as dry cleaners or valet parking. Negligence can be found where landowners fail to remove ice or snow or fail to repair hazards. Sometimes negligence is inferred or implied. Parties may limit their liability by contract but generally they cannot disclaim any liability.
The law is comprised of statutes and cases. It is very complex and difficult for lay persons to research. There are general rules and many exceptions. An individual can handle his own case without an attorney but it’s very difficult and it is almost assured that the same outcome will not be achieved. There is an analogy that anyone can do his/her own engine work on his/her car. But can you imagine the time and effort required for you to learn and do a valve job on your car. You would agree it would be foolhardy and so would handling your own lawsuit. Nevertheless there are times, because of the amount of money in controversy; you may want to consider representing yourself as in small claims court.
|
The materials contained in this Web site do not constitute legal advice and contact with this Web sitedoes not establish an attorney-client
relationship. We provide these materials for information purposes only. The links to other publicly available Web sites (if any) are
providedas a convenience;we make no claims, promises or guarantees about theaccuracy, completeness, or adequacy of the information.
|
