By Sam Hasler
In The Law and You - Part One, I wrote about where lawyers get the law. Knowing the laws is only half of the game - and maybe even less than half. The facts make up the most important part of the case.
Think of the law like an empty glass. Like an empty glass, the law does not have any practical use until applied to the facts.
Many years ago when I was in law school, one of my professors said that clients do not come to lawyers with a contracts case or a torts case but with a problem. The lawyer has to take the problem - the facts of a case - and fit them into a legal category.
We take the facts given by the client and then we look at the statutes (if any apply) and the case law. The cases tell us how the courts have applied the law to the same or similar facts. The hardest cases are those where the facts are just a little bit different from the other cases.
Every type of case has certain things needing proven in court. If there is a statute, then the statute sets out what has to be proven but not all cases are based on statutes. Only the criminal law requires a statute but many civil cases have no statute. Contracts, personal injury cases are what we call common law cases. What has to be proven is to be found only in the case law. Where there is a statute - such as some commercial or consumer or family law cases - then the process starts with the statute.
People think of the law as a wholesale business instead of a retail one. So long as the facts are exactly the same, it is closer to a cookie cutter operation. Finding two exact cases is a lot like finding a four-leaf clover - possible but rare.
My first personal injury case taught me the problems with people’s expectations. An elderly couple injured by in a fender bender: minor injuries, no lost wages. The case lacked good damages. I explained the law of personal injury cases: the driver had a duty, the driver breached that duty, and the breach caused damages. The husband brought in news clippings of cases of people getting large sums of money. I went over the actual losses. He still went away shaking his head in disbelief.
Some people may think the legal system did them wrong. I cannot evaluate each and every case, but I do know that the first step for evaluating a case is to look at the facts. I do know that many clients never have their lawyers explain what has to be done in a case, or that some lawyers either never explain or do a poor job of explanation.
Remember that cases rise and fall on the facts. The best lawyer in the world will lose if the facts do not support their case.
Note: This column is not legal advice. If you have a legal problem, you need to get a lawyer and talk to them in person rather than rely on anything written here.
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No one? Or, is it a
No one?
Or, is it a silent-treatment mini-thwack for perceived tardiness of the column?
p.s. we need new smileys, eh?
Nope, no thwack. Didn't see
Nope, no thwack. Didn't see it posted. Thanks for the bounce-up.
Let's talk common law, let's talk contracts. Are all contracts created equal, or can one go before a judge and have a contract declared null and void?
Let's pretend the contract was really off the beaten path, unique and unusual so that it would give one pause to consider who might want to sign it. Let's make this really crazy.....say the contract said a person had the right to, say, legally adopt your children if they didn't fulfill the terms of the contract. If the terms of the contract weren't fulfilled, and the person who held it wanted to exercise his rights under the terms of the contract, could the other party contest that on the grounds that they'd neglected to have a lawyer look at the contract and therefore didn't know what they were giving away? And what is the likelihood of success in challenging a contract based on "oops, I didn't have my lawyer look it over first"?
Disclaimer: the answer will in no way be construed as legal advice, but merely as personal experience, hearsay or case history.
Thanks, Bard. You bring up
Thanks, Bard. You bring up a good point, though. I need to create a banner or section to give the fact there's a new column out some more play on the site.
Any ideas?
I have a question, Mr.
I have a question, Mr. Hasler. If someone is from South Africa and they commit a 3rd degree felony, namely perjury, is that an automatic deportation? If so, if that person shares joint custody of a minor child, would the person being deported be able to take the child to South Africa (the child was born and has always resided in the US) or would the US citizen parent be able to get full custody and keep the child in the states?
Mr. Hasler, I know that
Mr. Hasler,
I know that many times people feel as if they have been wronged by the court system, some of the time it is true other times it is not true, that I do understand. I just feel that (at least in Madison County) it is not always who is the better parent for instance, but what attorney they have representing them, and what judge they go in front of. I know very well that one particular judge and one particular attorney make sure her clients (almost) always win, she even drops her pen and picks it up just for the judge!
Sippy wrote:I have a
Update: The South African dumbass has retracted her sworn statement, but there is proof (ie. copy of the check in the amount of $15,000 from the person she was testifying for, deposited into her account - yes, there are people who are actually that stupid residing in Mississippi!) that she was paid in exchange for testimony. If she retracted her statement, has she still committed a crime for which she could be deported?
Some responses to the
Some responses to the comments:
1. Sippy, I do not do immigration law so I do not know how to answer your question.
2. Just4fun - since I do family law and there are only so many female lawyers in the county, I think you better give us more facts instead of standing on dropped pens. Of the female lawyers in the county, I know of three who might drop a pen but I cannot think of any judge who is particularly partial to any of them. Of the others, I cannot think of any who would do this or if they did would impress any of our judges. Maybe you just did not have a good enough case.
Sam, You might want to pm
Sam,
You might want to pm just4fun on this one. You are going to find the finer details very interesting.
What the heck is "drop a
What the heck is "drop a pen"?
You know, when someone
You know, when someone drops a pen intentionally to let someone see down their top?????? Especially when the dropper just had hers fixed, not sure if they are supposed to be bigger or back in place.
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