The first distinction is between public law and private law. Violation of public laws are criminal matters, and the plaintiff in all violations of public law is the state. A prime example of the violation of a public law is the act of murder. Murder is illegal in all jurisdictions, and when a person is charged with murder, a capital offense, the prosecution is carried out by the state Attorney General's office, as deputized on the county level by the District Attorney's office. The principal difference between a criminal case (a public offense) versus a civil case (a private offense) is the burden of proof. In a criminal case the burden of proof is BEYOND A REASONABLE DOUBT (the definition of reasonable being based on the premise of the "Rational Man," which could be characterized, in the terms used by the current post-war German civil code, as the "autonomous moral person.") The burden of proof in a civil case is decided by the PREPONDERANCE OF EVIDENCE.

THE VENUE

The first selection that is made in the construction of a lawsuit is the decision as to the appropriate court for the filing of the COMPLAINT. The complaint is the document that lays out the case of the plaintiff. The plaintiff is the person who feels wronged, who lays out in the complaint the CAUSES OF ACTION. The lawsuit itself is called a LEGAL ACTION, or ACTION AT LAW. The decision as to which court is the right court for filing the action is based on the amount of DAMAGES. Damages for all ostensive purposes are monetary costs that are associated with the CAUSE OF ACTION.

For example, a man contracts with a second party to provide a service at a set price at a set time and place; if that man fails to perform, and as a result, the second party incurs costs that he otherwise would not have incurred, those costs are called DAMAGES in the law. Another example of damages is illustrated in cases in which persons ingest food from a restaurant, which is tainted with food poisoning. Not only are the costs of medical treatment associated with treating the food poisoning DAMAGES, but the PAIN AND SUFFERING underwent, the emotional and physical discomfort, pain and the emotional trauma experienced by the experience of being poisoned constitutes DAMAGES that are recoverable by law. The determination of which court system any lawsuit should be filed with is based, ultimately, upon the quantification of the damages that are due by the responsible party, to make restitution to the victim. The idea of restitution is at the core of contract law, which has its roots in equity legal principles (as distinguished from common law legal principles). The appropriate court is the VENUE the lawsuit will be tried in. In California Small Claims Court has jurisdiction for all cases involving sums up to $5,000.00; cases for sums between $5,000.00 and $25,000.00 are tried in Municipal Courts; and all cases for sums in excess of $25,000.00 are tried in the Superior Courts. In states other than California the sums might be different, and the names of the courts might be different, but the basic set up of venues being based on the dollar amounts involved, probably is practiced in the majority of American states. (The only state in the U.S. that does not acknowledge the British legal system is Louisianna, where the Code Napoleon is still the basic customary law).

THE LAWSUIT

Every lawsuit begins its life with three essential documents: the COMPLAINT, the SUMMONS, and the PROOF OF SERVICE. No lawsuit will see the light of day until these three legal documents have been properly composed and filed with the clerk of the court. (In criminal cases, and in civil cases for torts [private offenses between private individuals], the main document laying out the causes of action is called a COMPLAINT. In legal actions under Family Law the main document laying out the causes of action, such as for a dissolution of marriage, is called a PETITION; but for all practical purposes the COMPLAINT and the PETITION serve the same purpose, and the PLAINTIFF and the PETITIONER play the same role in a lawsuit).

In criminal and civil cases for torts the person the COMPLAINT is directed at is called the DEFENDANT. (In actions under Family Law, the person the PETITION is directed at is called the RESPONDENT). In all lawsuits the TITLE is based on the names of the parties to the lawsuit. Thus a lawsuit in which the PLAINTIFF'S name is John Smith, and the DEFENDANT'S name is Jerry Kent, the TITLE would read: John Smith VS. Jerry Kent. (The SHORT TITLE would read: Smith V. Kent).

At the time that a lawsuit is filed with the clerk of the court, a CASE NUMBER is issued, which must be faithfully used on all subsequent legal documents pertaining to that case; the case number is an administrative device that makes it possible for the correct documents to find their ways into the correct dockets when filed with the court, so that the public record of every lawsuit is accurate and complete. Therefore, it is essential that parties to any lawsuit memorize the correct CASE NUMBER when it is assigned, and that they use it correctly on all legal documents, so that every relevant piece of evidence and documentation is properly referenced in the docket on file with the court, making the record true and complete.

Once a COMPLAINT/PETITION is filed with the court, a SUMMONS is applied for at the same time, which is an ORDER OF THE COURT to the DEFENDANT/RESPONDENT to answer for the charges made against him or her, in a duly constituted court of law. This SUMMONS, however, does not take effect until copies of both the COMPLAINT/PETITION and the SUMMONS have been SERVED on the DEFENDANT/RESPONDENT. What this means is that the Defendant is entitled to SERVICE OF PROCESS. Service is constituted by the legal notification of the Defendant of the fact that charges have been made against him or her in a court of law, and of the fact that the Defendant is entitled to meet his or her accusers, and defend him or her self. Once the Defendant has been served, the court establishes JURISDICTION over the case, which is the legal authority to decide the case. (Once a case has been filed, the plaintiff has about 2-3 years to serve the Defendant, based on local rules).

In criminal cases, the individual is charged with committing a crime by the District Attorney, and there is a preliminary hearing called an ARRAIGNMENT. It is at that time that a judge hears the case, to see if there is sufficient evidence to hold the defendant (such as in jail, or to allow bail) over for trial. In most criminal cases the NOTICE is made by the process of arrest, such as by the reading to the Defendant of his Miranda Rights ("You are under arrest, you have the right to keep silent, but if you do decide to talk, what you say can be held against you in a court of law...")

SERVICE OF PROCESS always must be performed by a person who is not a party to the case, a third party who is not a plaintiff or defendant. SERVICE can be accomplished by ACKNOWLEDGEMENT AND RECEIPT, whereby the defendant voluntarily signs documents accepting delivery of the COMPLAINT AND SUMMONS; or SERVICE can be accomplished by the mere identification of the defendant by the person performing service, and the unilateral deposit of the documents WITHIN THE REACH OF THE DEFENDANT, without any response on the Defendant's part whatsoever (i.e., the Defendant does not have to "ACCEPT" the documents in order for the service to be valid). After the physical act of delivery of the documents to the Defendant, the party who makes the service must sign and fill out the PROOF OF SERVICE, which must be filed with the court, in order for the case to proceed. Any party can perform service of process, including a registered process server; a Marshal; or a friend or family member. (The only strict rule is that no party to a suit may serve process, except for certain circumstances in which the court clerk has specifically made allowances, such as the service of documents by mail that constitute follow-up documents, such as Answers, Responses, or Disclosures).

DISCOVERY

The next phase of every lawsuit is what is called DISCOVERY. Discovery takes place as both sides to the lawsuit begin accumulating evidence to substantiate their case in court. DISCOVERY includes depositions, whereby the attorneys interview each other's witnesses, and ask them questions that are recorded, along with the answers, at neutral locations, such as the attorneys' law offices. The records of these depositions then are shared with the counsel of the opposing party, and in theory, the DEFENDANT is entitled to any evidence the PLAINTIFF'S counsel digs up; and the PLAINTIFF'S entitled to any evidence the DEFENDANT'S counsel digs up. In practice, surprise tactics often take place on the courtroom floor, because if an opposing counsel cannot respond to hard evidence, and explain it away, the hard evidence can cause the case to prevail in that parties' favor.

Another feature of the DISCOVERY process is in the SUBPEONA. The SUBPEONA is an order of the court, under penalty of contempt of court (which is a far-reaching penalty that can range from fines and sanctions, to actual jail time). SUBPEONAs can demand that documents be produced, such as bank records, transaction records (such as sales, leases, etc.), and they can also command that witnesses appear and give testimony in court, under penalty of perjury. The penalties for perjury (for lying under oath) can range from 6 months to 3 years in state prison.

DISCOVERY in Family Law cases also includes disclosures, as in financial disclosures. Divorce petitions in most jurisdictions now include "Standard Restraining Orders," which prohibit spouses from cashing in bank accounts, transferring their assets where the other spouse will not know their whereabouts, cashing in life insurance policies, etc., all of which are designed to "cheat" the other spouse of a claim in what might otherwise be community property; or as a means to appear unable to pay child or spousal support. Disclosures require an open and honest accounting of community assets, and they enable divorcing couples to share the costs equally associated with the raising of their children after the dissolution of their marriage is finalized.

Witnesses are part of the constitution of any case, and the list of witnesses is supposed to be shared with the counsel of the opposing party. This is so that the opposing party may scrutinize them, and attempt to defend against their testimony. Witnesses' testimony is colored by their social standing, reputation, and backgrounds; as an example, the testimony of a pillar of the community will account for more than the testimony of the "town drunk."

PUTTING THE CASE ON CALENDAR

The Calendar of the Court is the schedule of the court for hearing lawsuits. Once the parties to any lawsuit feel that there are no more facts to be ascertained by witnesses, and that there is no more evidence to accumulate, and the case is ready to be heard at trial, motions are made for the case to be put on CALENDAR. This is done by the filing of a MEMO TO SET HEARING FOR TRIAL. Sometimes the parties to a case have a change of heart, and they decide to put the case off calendar, at which time they ask for a CONTINUANCE. Once the case is on CALENDAR, all the parties assemble at the time and place they are notified of, in the proper courtroom, where a magistrate, and possibly a jury, decide the facts and the law of the case.

THE JUDGMENT AND NOTICE OF ENTRY

At the time of arraignment, in criminal cases, the defendant is asked how he pleads, GUILTY, NOT GUILTY or NO CONTEST, and if the defendant wants to proceed with defending himself, a trial is set, and the defendant has the choice of whether or not his case will be heard by a judge, or a judge and jury. In criminal cases the costs of the jury are absorbed by the state; but in many jurisdictions, in civil cases the request for a jury trial includes the cost of the jury, and in some jurisdictions, there is a requirement that a bond be posted.

Once a trial has taken place, and a judgment has been rendered, the judgment is ENTERED in the lawbooks of the jurisdiction, finalizing the case. In divorce cases under FAMILY LAW, the divorce isn't final until a judgment has been entered, but also not before a six month and one day waiting period has elapsed, starting upon the date the original Petition and Summons are served on the Respondent. In most other cases, the judgment takes effect at the time the judgment is entered in the books.

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"Everybody's Guide to Small Claims Court in California" California Edition (13th Ed) by Ralph E. Warner. Availability: This title usually ships within 2-3 days. (Paperback - 368 pages, 13th edition) (May 1998) Nolo Press. Dimensions (in inches): 0.81 x 9.09 x 7.07 ISBN: 0873374401 "How to Sue for Up to $25,000...and Win! Suing and Defending a Case in Municipal Court Without a Lawyer" California Edition (2nd Ed) by Roderic Duncan, Robin Leonard (Editor), Steve Elias (Editor) Availability: This title usually ships within 2-3 days. (Paperback - 336 pages, 2nd edition) (November 1996) Nolo Press. Dimensions (in inches): 0.73 x 10.96 x 8.51 ISBN: 0873373448 "Collect Your Court Judgement" California Edition (3rd Ed) by Gini Graham Scott, Stephen Elias, Lisa S. Goldoftas. Availability: This title usually ships within 2-3 days. (Paperback - 312 pages, 3rd edition) (April 1997) Nolo Press. Dimensions (in inches): 0.72 x 10.89 x 8.42 ISBN: 0873373758

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