You and the Law

What is the law? Basically, the law is the set of rules that enables the members of a society to live and work together in reasonable harmony and to settle their disputes without violence. Some laws are in the form of written constitutions or statutes; others are legal principles that have arisen over the years from custom, experience, and common acceptance.

Law is not confined to courts and legislatures. It pervades our day-to-day relationships with our families, our neighbors, the people we deal with on our jobs, and the members of our community.

When you pick up the phone and order something from a store, you make a contract governed by the law of sales. When you drive your car, you are subject to traffic laws and the laws of negligence and liability.

Your wages and working conditions depend on your contract with your employer, perhaps a union contract, and federal and state labor laws. When a couple marries or a child is born, the law establishes the rights and duties of family members.

When a person dies, the law determines who gets his or her property and who will care for the children. Even as you sleep at night, you are protected by laws against burglary and trespass – and perhaps by zoning laws that prevent a boiler factory from being built next door.

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Most of the time we attend to our everyday affairs without running into any legal problems. Inevitably, though, conflicts arise. The goods we order fail to arrive, or they are unsatisfactory. Accidents happen and people are injured.

Disputes arise between employers and employees, or between landlords and tenants. Families break up or fight among themselves about inheritance or other rights. The person with no knowledge of the law may find that he has put himself in a weak legal position or incurred legal obligations that he never intended.

Unscrupulous persons may take advantage of him, or he may simply not know what his rights are or what to do about them.

An In-depth Look at Pleadings in a Personal Injury Case

The primary function of courts is to decide controversies. By definition, a controversy embodies the idea of a dispute or disagreement. In any given case the parties may disagree on the facts, or the law, or both. If a court is to decide the controversy it must first find out what the controversy is about.

The best way to do that is to ask the parties, but unless some orderly procedure is established both parties are likely to talk at once, at cross purposes with resulting confusion. To prevent this it would seem logical to require the parties to talk one at a time, and since the plaintiff is seeking relief he should go first.

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The courtroom.

Traditional

In the very early days of the common law this is substantially what happened. Each party explained orally to the court his version of the case. This proved to be unsatisfactory for a variety of reasons and led to establishment of the requirement that each party must reduce his contentions to writing.

This tended to pinpoint the actual areas of disagreement. These written contentions of the parties came to be known as pleadings. The plaintiff filed his written statement of his version of the facts, which was called the declaration.

It sometimes happened that the defendant did not dispute the accuracy of the plaintiff’s statement of the facts but contended that there was no rule of law under which the plaintiff could recover. In such cases the defendant would file a demurrer raising a pure issue of law which was decided by the judge.

If, on the other hand, the defendant wished to challenge the accuracy of the plaintiff’s statement of the facts but contended that there was no rule of law under which the plaintiff could recover. In such cases the defendant would file a demurrer raising a pure issue of law which was decided by the judge.

If, on the other hand, the defendant wished to challenge the accuracy of the plaintiff’s facts he would file a plea which was called the general issue. The parties were then said to be at issue and ready for trial.

It could be, however, that the defendant could not convert the facts alleged by the plaintiff but contended that there were other facts which gave him a defense. In such case, he would file a plea in confession and avoidance.

The plaintiff then had the privilege of responding to this plea by filing a replication, which might; a.) Deny the new facts alleged by the defendant, or b.) Admit them and allege new facts such as that the defendant used much more force than was necessary for mere self-defense.

In this way, the pleadings would go on and on until the parties arrived at an issue, which would then be tried.

Modern

Pleadings have today been greatly simplified and shortened but still serve the purpose of defining the issues to be tried. The plaintiff’s first pleading is called the complaint or petition and is supposed to state the facts in ordinary and concise language together with a prayer or demand for the relief to which he believes he is entitled.

The defendant may then file a demurrer or a motion to dismiss (the modern equivalent) if he wishes to raise an issue of law. Of he may file an answer in which he may deny the plaintiff’s allegations and also raise affirmative defences by alleging new matter (the modern equivalent of the plea in confession and avoidance).

The defendant may also insert in his answers claims which he has against the plaintiff, which are called counterclaims. In some jurisdictions there are limitations on the type of counterclaims which a defendant may include in his answer, but in the federal courts he may include any and all claims which he may have against the plaintiff.

If no counterclaim is filed, pleadings usually consist of merely the complaint and the answer. If a counterclaim is filed, and in some jurisdictions also when affirmative defences are pleaded, the plaintiff is permitted to respond by filing a reply or replication.

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Law books inside the library’s law section.

Amendments

It sometimes happens that mistakes are made in drawing the original pleadings, or that new and pertinent facts come to light. In such cases, a party may ask the court’s permission to file an amendment to his pleading.

Code in 1848, such permission was very grudgingly given and often was denied. Today courts are quite liberal in allowing amendments, even during the course of the trial, unless the opposing party would be taken by surprise and his interest thus prejudiced.

Functions

The two principal functions of pleadings are to inform the court of the nature of the controversy (to serve as blueprints for the trial) and to give notice to the parties and thus enable them to prepare for the issues which are to be tried.

They also perform a third function by serving as a permanent record of the disposition of the controversy. There is a rule of law, based on the sound principle of repose, that a case once tried and adjudicated can never be tried again. Otherwise, litigation might be endless.

A Quick View on Elder Law

During the 1990s, a new term increasingly became fashionable within the ranks of legal practitioners. The term is elder law, and it refers to the legal representation of individuals who are older members of society.

Although there is no fixed date at which a person becomes “old” (retirement age in many companies is sixty-five or seventy; membership in the American Association of Retired Persons – AARP – is available to individuals at fifty-five), there is a rough sense that sometime during this period people cross the threshold from being middle-aged to elderly.

People reach a time in life where their children have grown up and moved away (the so-called “empty-nesters”) and they can think about more leisure time, retirement, and babysitting grandchildren. They are likely to contemplate the necessity of disposing of their worldly possessions after they die.

It should not be surprising, then, that the legal concerns of older citizens would be different from those of younger people.

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Three specific factors contribute to the rise of elder law issues today. First, actuarially, people are living longer now than ever before. Advances in medical science, changes in eating habits and lifestyles, and economic prosperity have all combined to push life expectancies in the United States well into the seventies.

In fact, someone who has survived the mortality risks of childhood and youth can expect to live well beyond eighty. Second, the baby boomers are getting old.

The same post-World War II bulge in population that swelled the elementary schools in the 1950s, graduate schools in the 1970s, and the workforce through the 1950s will swell the ranks of older citizens for the first part of the twenty-first century.

Third, these relatively healthy aging baby boomers are predicted to lead lifestyles very different from those of their grandparents. They will have leisure time and money to spend. When they have problems, whether medical or political, they will be proactive in forging solutions.

They will, as they always have, turn to the law as a vehicle for establishing and protecting their rights.

Elder law is a field that is defined by the clientele rather than the substantive legal problems. In fact, the field is more of an umbrella for many types of substantive practice that are commonly provided for older clients.

It is a buzzword to describe the legal services that elder citizens are likely to require in the areas of estate planning, health law, real estate, Social Security, pensions and retirement, and others.

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Estate Planning. Older individuals contemplating the end of life often seek legal assistance in developing a plan for disposing of their estates. This can be done through a will during the life of the individual.

Health Law. The fact that older people are statistically more likely to experience health problems means that more of them will have contact with the health care system. As that system changes, and to the extent that lawyers are involved in representing people with health care problems, health law issues will be a major component of elder law.

Real Estate. Many retired people at some point sell the homes they have lived in and move to retirement communities, small homes, condos, or health-care facilities. Thus, there is a high probability that older people will have one or more experiences with real estate law.

Social Security. At age sixty-five, most individuals become eligible for Social Security, Medicare, and other government benefits. As with any government system, many people encounter problems getting the right benefits in a timely fashion. Frequently, they require legal assistance.

Pensions and Retirement. A variety of legal problems are associated with the process of retirement itself. The terms of companies’ retirement policies are not always clear. The timing of retirement is not always agreed upon by employees and their employers. The value of a departing business owner’s equity in the business or succession to leadership is not always clear. The right to manage and control pension-plan assets and benefits may be ambiguous or confusing. These and other issues frequently end up in the hands of lawyers or the courts..

Other Issues. The elderly also face all of the other legal problems that can be found in society. Sometimes age is a factor in the way those problems are handled. Often the personality of the lawyer – being able to communicate with and relate to older people – is significant. The old as well as the young need to feel that they can trust their lawyers.

In one sense, the denomination elder law is shorthand for saying that a firm or individual lawyer concentrates in or is particularly sensitive to older people and their specific legal needs. Anyone practicing law over the next two decades is likely to encounter elderly clients.

Regardless of whether it is a minor or major aspect of a person’s practice, elder law issues will continue to be an important part of law practice in the United States.