BASICS OF THE COURTROOM

                     BASICS OF THE COURTROOM


     The transactions described in this book do not require  that
you go to the courthouse except to look up information  or to
record documents so that they become part of the  official public
record.
     Some people's contacts with the courts are limited, for
years at a time, to that sort of thing and perhaps to being
called for jury duty.  Others find themselves called on to  be
witnesses in legal proceedings, while a smaller number  become
directly involved as actual parties in lawsuits.
     Divorce actions bring masses of people to the court,  while
disputes between landlords and tenants, or between  neighboring
property owners, bring in hundreds of thousands  more.  It is a
rare individual who does not have significant  contact with the
courts at one time or another, and your  interest in this book
indicates that you are a person who is  active on a level which
increases your chances of going to  court for help in resolving
conflicts related to business,  real estate, and investing in
general.  It is therefore an  obvious advantage for most people -
- and particularly for you -- to understand the courts and what
happens in them.
     In the section entitled LAWYERS AND LAWYERING we  discussed
your relations with lawyers, the way lawyers work,  and factors
touching on your ability to act as your own  lawyer.  Here we
will describe the court system and the  fundamentals of legal
proceedings.  By the time you finish  this section, you will have
a good understanding of what a  lawsuit involves, and you will
have a basis for judging how  far--if at all--you wish to travel
along such a bumpy and  winding road without a lawyer.
     We shall, for simplicity of writing, assume that the
parties referred to below are represented by lawyers, and  that
there are only two parties involved.  (It is possible  to have
multiple parties in a lawsuit.)  We shall also make  no reference
to criminal courts and their procedures.
          When to Go to Court
     Never, preferably.
     Except for situations such as probate, where laws  require
that the courts take care of certain matters, most  people end up
in court when the normal flow of human communication, compromise,
and negotiation has been  obstructed.  Only when the next step
would be irremediable  loss, unlawful force, or physical
violence, is resort to the  courts really advisable.  Even then
there is hope for a  settlement before matters have gone too far.
     Our legal system is a marvelous mechanism, within human
limitations, for resolving conflicts and seeing that  fairness
and justice prevail.  You should keep in mind,  however, that
lawsuits (there are other legal proceedings,  but we shall talk
primarily about lawsuits in order to limit  the subject) are
expensive, take a lot of time, tend to  breach one's privacy,
usually create emotional stress...and,  after all that, almost
inevitably produce one highly  dissatisfied party.
     There may be a time, however, when you or your attorney
simply can see no alternative to a legal action.  And of  course
there may be a time when you are sued, feel that  settlement on
the other party's terms is out of the  question, and have no
choice but to defend yourself in  court.
     If you do go to court, realize that everything is done  and
recorded with meticulous care by both lawyers and  judges, and
that built into the system are a vast number of  often
time-consuming devices meant to guarantee that the  outcome is
fair.  That should give you a sense of confidence  if you have a
good case.  Add to the situation the fact that  the courts are
overloaded with cases, and it is also a  warning that patience
will be necessary:  Depending on what  court you are in, even the
simplest lawsuit may take several  months, and in many cases a
year or several years may go by.
          The Price
     The cost of the attorney:  for the many hours your  lawyer
must spend working on a contingent fee basis,  according to which
he gets paid from a share of the money  you receive if you win
the case, he will probably charge you  by the hour.  He can try
to give you some estimate of the  number of hours that will be
involved, but it will be only a  rough guess.
     In addition to fees for his time, the attorney will  charge
you for any necessary expenses, such as travel fares  and hotel
bills if he has to work out of town.  You may also  find on his
bills charges for such things as photocopying  documents and the
work of paralegals (people who supplement  the lawyer's work at a
lower hourly rate, saving you some  money).
     Your own expenses:  Remember that you will lose some  time
from gainful activities.  You will have to meet with  your
lawyer.  You may have to organize records, find things  you've
lost, look up people who aren't easy to contact.   Travel may be
involved.  You will probably spend hours being  questioned under
oath by the opposing lawyer prior to trial.   And then there is
the trial itself.
     Court costs and related expenses:  These are usually not
burdensome.  Except through your taxes, you don't have to  pay
the judge's salary or rent on the courtroom.  You do  have to pay
a filing fee (usually well below a hundred  dollars) for starting
a lawsuit, and some courts charge fees  such as ten or twenty
dollars when certain other papers are  filed.  ("Filing" is
taking papers to the courthouse and  giving them to the clerk for
inclusion in the records of  your case.  More about that later.)
     If you are the plaintiff (the one who starts the suit)  you
may need to pay someone, perhaps a marshall or sheriff's  deputy,
for a few hours of work in finding the defendant and  giving him
or her notice of the lawsuit.  This can mount up  if the
defendant does not want to be found.
     Reporters and transcripts:  Almost invariably each side  in
a lawsuit wants to gather information from the other side  before
trial, and this often takes the form of oral  depositions,
questioning under oath in the presence of the  attorneys and a
reporter who takes down a complete record of  everything said,
usually stenographically.  The reporters  are generally referred
to as court reporters even though  they work for private
companies.  They charge by the page  for their work, and their
fees will frequently run into  hundreds of dollars for the
minimum depositions necessary  even for a simple case.
     Your lawyer may feel that it is also necessary to order
(at similar rates) transcripts of some of the courtroom
proceedings.  You can try to cut court reporting costs by  using
other methods of pretrial inquiry, such as written
interrogatories (see below), but often there is no  satisfactory
substitute for oral questions and answers.
     Witness fees:  If you need what are called expert
witnesses, such as doctors or engineers, to support your  case or
demolish  your adversary's, you must pay them for  their time.
They don't come cheap.  Even your everyday  garden-variety
witnesses are likely to get a mandatory  compensation of around
thirty dollars a day, plus mileage.
     Post-trial expense:  If you sue and win, you may have to
spend additional money collecting the judgment if the  defendant
doesn't voluntarily hand over the money or  property.
     No matter who wins, someone may appeal.  That involves
more attorney's fees and court costs and incidental  expenses;
the major item will be the attorney's fees, and he  may be
willing to quote you a fixed total for his work on  the appeal.
          The Court System
     In the United States we have a dual court system.

     THE FEDERAL SYSTEM:
     U.S. District Courts: The country is divided into
districts, each with its own United States District Court.   Some
states have more than one District Court.
     The District Courts are the trial courts, the workhorses
of the federal judicial system.  It is to them you go to sue  and
be sued...IF the case meets their requirements.  For a  beginning
the amount in controversy (that is, the money or  the value of
the property sought by the plaintiff) must be  over $10,000.00.
Additionally, because these are federal  courts, there are rules
requiring that the parties (the  persons suing and sued) not live
in the same states.
     Each of the District Courts employs a number of  different
judges, and each case is assigned to a single  judge by a blind
draw system.
     The District court is in its own, or in a shared,  federal
building.  Sometimes a judge will hold sessions in  different
places in the District.
     U.S. Courts of Appeals:  Seeing that the District Court
judges do their jobs properly, and doing a few independent  jobs
of their own, are the United States Courts of Appeals.   These
are often called Circuit Court (which can be confusing  because
many states use the same term for their trial  courts); each
presides over a geographical circuit which  frequently includes
several states.
     The U.S. Courts of Appeals consider written and oral
arguments concerning, and review the record of, cases from  the
District Court.  Normally the appellate procedure begins  after a
lawsuit has ended in a judgment for one side or the  other in the
District Court.  A dissatisfied party appeals  to the Court of
Appeals, which eventually makes a decision  which is binding on
the District Court and which, when  published, serves as guidance
on points of law for all  District Courts and Courts of Appeals.
     There are listed situations in which a party may  petition
the Court of Appeals for a decision on an important  point even
while a case is still in progress in the  District Court.  The
decision of the appellate court then  binds the District Court
judge.
     The Court of Appeals will be housed in a federal  building
in its headquarters city; appellate papers must be  filed there,
and attorneys must travel there to present  their oral arguments.
You do not have a choice of federal  Courts of Appeals.  If your
District Court is within that  Circuit, you must take your appeal
to the headquarters city  of that Circuit.
     Each Court of Appeals has a number of judges.  A panel  of
judges (usually three) is assigned to each appeal by a  chance
system.  One of those judges is usually in charge of  the appeal
and takes the lead in studying it, but the panel  makes the final
decision by discussion and vote after  reading the briefs and
hearing the oral arguments.  A person  dissatisfied with the
decision can request that all the  judges (not just the panel)
reconsider the decision, but  such "en banc" review is rarely
granted.
     Supreme Court:  The Supreme Court of the United States is
the top of the federal pyramid.  Whereas parties have a  right to
have an appeal considered by a Court of Appeals,  they have no
such right where the Supreme Court is  concerned.  With certain
exceptions, the Supreme Court picks  and chooses what it wants to
hear, and it chooses only a  small fraction of the cases it is
asked to consider.
     If you are unhappy with the decisions of a Court of
Appeals, and you believe that your case meets the  requirements
of Supreme Court jurisdiction (see  "Jurisdiction and Venue"
below), you can file a Petition for  Writ of Certiorari in the
Supreme Court.  The Petition is  simply a description of your
case and the legal problems  involved, with a request that the
Supreme Court accept the  case and read and listen to full
argument on it to determine  whether the Court of Appeals made an
erroneous decision.   The odds in favor of such acceptance are
very slim indeed.
     The Supreme Court's decisions are absolutely binding on
all the courts in the United States.
     Other U.S. Courts:  There are specialized courts, such  as
the Tax Court, which hear only certain kinds of cases.

     THE STATE SYSTEMS
     Each state of the union has its own court system which
operates independently of the federal court system.  The  name of
different levels of courts varies from state to  state, and there
is no national uniformity among the courts  themselves, but one
will generally find certain types of  courts in every state.
     At the bottom of the ladder are courts restricted to
judging matters such as traffic violations and civil  disputes
involving small claims courts, and they are  intended to function
without the help of lawyers.
     If you want a court to settle a controversy in which the
money in dispute does not reach the minimum requirements of  a
higher court, you will have to go to a small claims court. 
There you will fill out a form, notice of your complaint is
served on the opposing party, and on the appointed date you  both
show up at the courtroom with your witnesses, if any.   The judge
asks questions, listens to everyone's version of  the facts, and
then enters a judgment.  The process is  cheap, efficient, and
relatively quick.
     Next up the ladder (perhaps above or alongside other
specialized courts) come the trial courts, generally
corresponding to the federal District Courts.  The judges of
these courts oversee lawsuits and a mass of other matters  not
covered by the specialized courts.  You become very  familiar
with a court of this tier if you sue someone or are  sued.
     Above the trial courts are the courts which hear  appeals.
The appellate courts decide whether errors which  need correction
occurred in the courts below.
     Above the appellate courts is the state court of last
resort--the supreme court of the state.
          Precedent
     As you can tell from what you have just read, all  judges,
federal and state, must interpret the law and create  new legal
principles without contradicting any of the  interpretations and
legal pronouncements of the Supreme  Court of the United States.
     Furthermore, the federal District Courts may not
contradict anything laid down by the federal Court of  Appeals
for the circuit in which the District Courts are  located.
District Courts, except when announcing a rare  break with
tradition, also follow their own previous  decisions.  This is
the common law system of precedent:   Simply speaking, it means
that judges, while free to create  new legal interpretations to
fit new situations, are  essentially bound by the long line of
previous judicial  decisions, and particularly the decisions of
"higher  courts."  This enables you and your attorney to make a
rational prediction about what a judge is going to decide,
given a certain set of facts.
     Precedent operates on both state and federal levels. 
While the rules of who follows whose precedent get sticky at
times, the basic principle is a keystone of our legal  system.
          Jurisdiction and Venue
     The term "jurisdiction" can be somewhat confusing  because
of the different senses in which the word is used.   Essentially,
it means the criteria which limit the authority  of a court to
hear and try a controversy.  The limits apply  both to the kinds
of cases which the court can try and to  the geographical limits
of its power.
     The geographical jurisdiction of a court is limited to a
given area such as a county, state, or federal district.   The
circumstances which result in a civil suit (the "cause  of
action") need not have occurred within that area in order  for
the court to try the case, but the court's ability to  force
people to become parties in the lawsuit will be  limited by the
geographical boundaries.
     For example, unless the controversy is over property
located within the geographical boundaries of the court
(creating in rem jurisdiction over that property), a person  must
be served with a summons and complaint (see below)  while he is
within the geographical area of the court's  jurisdiction before
he can be sued there.  Such service  creates in personam
jurisdiction--jurisdiction over the  person.  The person need not
reside within the area; he  might be served while passing through
on a trip.
     An exception to what was said in the preceding paragraph
has been fashioned by so-called "long arm" statutes.  These  laws
have been passed by states in order to enable their  courts to
gain jurisdiction over defendants by serving them  outside the
state.  The original idea was what if someone  caused harm while
within the state (say while operating his  car on the highways)
and then left it, there should be a  means for his victims to sue
him in the same state.  The  principle has now been expanded, and
the United States  Supreme Court has approved the concept as long
as the  defendant has "minimal contacts" within the state and as
long as "traditional notions of fair play and substantial
justice" are not offended.
     So far we have been talking about the geographical
jurisdiction of courts, but each category of court, state or
federal, also operates under laws which put limits on the  kinds
of cases which that category of court may hear.  These  limits
enter into defining the jurisdiction of all courts of  that
category.  A United States District Court, for example,  may not
accept a lawsuit which asks for a judgment of a  value less than
$10,000.00 (unless it satisfies certain  other criteria); this is
one of several rules limiting the  jurisdiction of all federal
courts.
          District Courts
     The jurisdictional rules of courts are too diverse for
discussion here, but the point is that you should be sure  that
you bring your case to the right court.  If you are in  doubt, a
lawyer can solve the problem for you, or you can  just telephone
the nearest courthouse, ask for the clerk's  office, and start
asking questions.
     Remember that the term "jurisdiction" applies to a whole
class of courts.  "Venue" is something different:  It has to  do
with the relations between a specific lawsuit and the  physical
location of a particular court within a class.
     A case meeting all jurisdictional requirements may be
brought to a court, and in personam jurisdiction may have  been
gained over the defendant, and yet the location of the  court, in
relation to the location of the persons and events  involved in
the case, may prevent the court's hearing the  case.  Venue is
said to be improper.  The basic idea is  that the parties,
witnesses, and records in a case should,  to a reasonable extent,
be located in the vicinity of the  court.
     Even in borderline cases, where venue is technically
correct, a court may declare itself a "forum nonconveniens"  (an
inconvenient forum) because too many persons or things  essential
to trying the case are in another location.  The  case will
normally be moved to a court of the same category  in another
place.
     Soon after the beginning of a legal action the defendant
may complain to the judge that the court lacks jurisdiction  or
that venue is improper or inconvenient.  If the objection  is
well-founded, the case will be rejected.  Nothing,  however,
prevents the plaintiff from trying again in another  court.
          Starting a Lawsuit
     First, you must start it in time.  There are "statutes  of
limitation" which provide that you must initiate a  lawsuit
within a certain period after the occurrence of the  event over
which you are suing.  Otherwise you completely  lose your right
to sue.
     Your lawyer begins the lawsuit by filing a Complaint in
the clerk's office of the proper court.  (Throughout this
section we shall be using terminology that is quite  widespread,
yet different areas and courts use differing  terms.  In some
states, for example, the Complaint is called  the Petition.)
     The Complaint sets out the facts which give you a right  to
a legal remedy and includes a demand for judgment -- usually a
certain amount of money to be paid to you by the  defendant.
(The  person suing is the plaintiff; the person  being sued is
the defendant.  Plaintiffs and defendants are  "parties" in a
case.)
     Service:  A copy of the Complaint; accompanied by a
summons, must be given to the defendant after your lawyer  has
filed the Complaint.  (As stated elsewhere, "filing"  means that
a party has the clerk of the court place a  document in the
court's file of a case.)  This is called  "service of process"
and while rules of such service vary,  they are all designed to
guarantee that the summons and  Complaint reach the defendant
personally.  If a defendant is  not personally served, he is not
within the court's  jurisdiction.
     (Whenever an attorney files something later in the case,
he is responsible to see that a copy is promptly given to  the
other party's attorney.  This is called serving the  document,
and the lawyer attaches a short "certificate of  service" to all
copies of the document, stating when and how  it was sent to the
other party's lawyer.)
     The summons tells the defendant that he is being sued  and
that he is required to file a response within a certain  number
of days (usually less than a month).  The wise  defendant then
goes immediately to a lawyer.
          Default
     If a defendant does not respond to a Complaint within  the
prescribed period, the plaintiff may have him declared  in
default and ask the judge to enter a default judgment  against
him.  Don't be too elated if your defendant  defaults:  The
courts try to give the defaulting party every  benefit of the
doubt.
          Responses to the Complaint
     The Answer:  The standard response to a Complaint is the
Answer.  The Answer denies the truth of any disputed facts  which
appear in the Complaint and states that the  plaintiff's claim
should be denied.  It may say that there  are defenses which
thwart the plaintiffs claim even if all  the facts alleged in the
Complaint are true.
     The Answer cannot get the case thrown out of court  because
it, like the Complaint, contains only allegations,  not proofs.
It does, where it disputes the fact alleged in  the Complaint,
set up issues which must be resolved in the  case.
     In addition to disputing the Complaint, the Answer may
also set out one or more counterclaims.  These are any  legally
enforceable claims which the defendant may have  against the
plaintiff.  In effect, the counterclaims are  each defendant's
Complaint.  If there are counterclaims,  each party is suing the
other.
     Motion to dismiss for failure to state a claim for which
legal relief may be granted:  Instead of filing an Answer,  the
defendant may file a document arguing that even if  everything
the Complaint says is true, the plaintiff has not  stated a claim
for which a legal remedy is available.  This  would be the
situation, for example, if a Complaint stated  simply that the
defendant stuck out his tongue at the  plaintiff.  The defendant
asks the judge to dismiss the case  immediately.  Such a response
is sometimes called a  demurrer.
     Other reasons to kick out the case may also be raised in
an initial motion to dismiss.
     If the court (the terms "judge" and "court" are used
interchangeably so that when a judge does something it is  often
said that "the court" did it) decides at the outset  that the
Complaint is hopelessly defective or that the court  lacks
jurisdiction, then the case will be terminated.   Unless he
simply has no viable claim, the plaintiff can  generally remedy
the defect and try again in the same or  another court, depending
on the reason for dismissal.
     If a Complaint is dismissed "without prejudice" the  judge
is leaving open the possibility for the plaintiff to  correct the
defect(s) and try again.  If dismissal is "with  prejudice," the
plaintiff is prohibited from another chance.
     Even if the defendant files a motion to dismiss, if the
judge decides that the case will go forward, an Answer must  be
filed.
          Motions and Orders
     The Complaint and Answer are called "pleadings".  They  are
essentially communications between plaintiff and  defendant.
Written communications to a judge by attorneys  during a case are
almost always in the form of "motions".  A  motion asks the court
to enter an order commanding that  something or other be done.
     A motion consists of a concise statement of what the
moving party wants the judge to do; the motion is usually
accompanied by a review of pertinent facts, along with  arguments
as to why the judge should grant the motion.   There are usually
citations to laws and decisions of other  courts.
     A motion is normally countered with an "opposition"
calculated to persuade the judge that he shouldn't grant the
motion.
     Motions and oppositions must be filed in court and  served
on the opposing attorney(s).  Each is usually  accompanied by a
proposed order for the judge's use.
     The judge may use one of the proposed orders, or he may
write his own, but sooner or later his order will be sent  out to
the attorneys and placed in the court file of the  case.
Everyone must obey the order or else undertake some  legally
approved method of contesting it--otherwise the  disobedient
party can be found in contempt of court and be  punished with
fines, imprisonment, or with sanctions  fashioned to harm his
ability to win his case.
          Rules of Procedure, and Local Rules
     A great number of rules governing the conduct of a  lawsuit
in a particular court will be available in printed  form.  The
federal District Courts have their Rules of Civil  Procedure.
Each state publishes rules applicable to its  courts.
     Additionally, each individual court has its own set of
local rules--which must not, of course, conflict with the  rules
governing all such courts.
     The rules set out, among many other things, the time
limits within which things must be done.  Frequently the  time
provisions are modified by mutual agreement of the  parties, with
approval of the judge.  For example, attorneys  often ask for
extra time to respond to the Complaint or to a  motion, or to
prepare answers to interrogatories (see  below).
     You should be aware that in addition to the rules of
procedure, there are likely to be some statutes passed by
legislators which sound as if they should be part of the  rules
of procedure but are not included among them.  They  must be
found separately.

          Discovery
     Between the time a lawsuit is initiated and the time it
goes to trial (unless it is disposed of by the judge before
trial), the major activity is "discovery".
     Discovery includes all the things which the parties do  to
collect information from witnesses (including one  another) and
other sources in order to prepare their cases  and, hopefully,
win the lawsuit.  Modern rules of procedure  tend to allow almost
unrestricted discovery; at least a few  months are usually
consumed before it is completed.  In most  jurisdictions the
discovery process operates with no  participation of the judge
except when disagreements arise.
     Here are the most important forms of discovery:
     Inspection:  Each side must allow the other to look at  and
copy documents and other things which may help the  inspecting
party prepare his case.  The word "documents" is  used broadly,
including letters, calendars, notes, minutes,  financial records,
audio and video recordings, computer  files, and any other means
by which information is  preserved.
     Inspection of land, buildings, and the like is also
allowed where pertinent.
     Oral depositions:  A deposition occurs when one of the
parties wants to question someone under oath.  Notice of the
deposition, its time and place, is served.  (Courtesy  normally
dictates that the arrangements are agreed upon by  telephone
first.)  Parties are obligated to be deposed.   Non-parties are
usually served with a subpoena, which is a  piece of paper issued
by the court commanding them to appear  at a certain place at a
certain time for a certain purpose.   The subpoena is generally
to be accompanied by a statutory  witness fee (about $30 per day)
and mileage expenses.
     If a person who is served with a subpoena believes there
is  some valid reason for his not obeying it, he must take  his
objection to the judge as quickly as possible.  The  subpoena may
then be quashed (cancelled).
     The deposition may be conducted at any reasonable place
but usually takes place at the office of an attorney.   Because
courts are subject to laws geographically  restricting their
jurisdiction over people, and because  there are rules protecting
people from being forced to  travel long distances to have their
depositions taken, if  the deponent (the person answering
questions at the  deposition) lives sufficiently far from the
court he will  have to be subpoenaed through a roundabout method
involving  a court closer to him, and the deposition will be
conducted  at a place in his vicinity.
     At the deposition, a court reporter whose services are
arranged by the deposing party places the deponent under  oath
and then takes down, usually stenographically,  everything that
is said.  The lawyer who called the  deposition asks questions,
the witness responds, and the  other lawyer(s) have a turn at
asking questions.  Depending  on the court, videotaping of
depositions is sometimes  allowed.
     Having one's deposition taken should be no cause for
uneasiness.  Its sole purpose is to gather facts.   Preparation
and truthful answers make it a painless process.   If you are
deposed, listen carefully to every word of each  question, be
sure you understand it (if you don't, say no),  and answer it --
and only it -- as briefly as you can.  Say  just "yes or "no"  if
possible.  Do not volunteer  information not specifically
requested.  Do not give your  opinion or your guess about
anything; give only facts.
     And remember that there is a rule against "hearsay,"  which
means, oversimplified, that you should not try to tell  about
facts or events that were reported to you by someone  else:  You
can be a witness only to facts that you  personally observed.
     A deposition may last for only a few minutes or for a
number of days.  When it is over, the reporter prepares  written
transcripts for those who want to pay for them.  The  deponent is
given an opportunity to read the transcript,  make any
corrections, and sign it.  If he does not sign  within a certain
length of time, the general rule is that  the deposition is valid
without his signature.
     Attorneys may read from depositions at trial, for  example
to show that a witness is contradicting himself.
     Interrogatories:  Interrogatories are written questions  to
be answered in writing under oath.  They are another  important
means of gathering information from opposing  parties before
trial.
     What if someone refuses to supply information during
legitimate discovery?  The rules provide for motions asking  the
judge to compel cooperation.  The recalcitrant party may  be
ordered to pay money to the other side or to suffer other
sanctions.
     Finally, there are measures built into the discovery
system  for protection against harassment and against  demands
and inquiries which go beyond proper bounds.   Parties not
infrequently refuse to answer a question or to  produce certain
documents and then file a motion for a  protective order.
          Motion for Summary Judgment
     Any party may submit to the judge, before trial, a  motion
for final judgment without trial.  This motion for  summary
judgment usually follows a good deal of discovery,  and it is
generally backed up by documents, affidavits  (voluntary sworn
statements), quotations from depositions  and interrogatories,
and the like.
     In most cases one of the parties has requested, in
Complaint or Answer, a jury trial.  (If not, the judge acts  as
both judge and jury at the trial.)  The jury is the  "finder of
fact", which is to say that the jury is to  decide, whenever the
parties give conflicting versions of  what happened to create
their problem ("issues of fact"),  who is telling the truth.  The
jury must then decide, based  on what they believe to be the
facts, which party the  applicable law requires should win.
     The motion for summary judgment says to the judge:   "There
is no need for a trial in this case because there is  no
important facts in dispute.  Based on the undisputed  facts, the
law demands that you enter judgment in my favor  and end the
lawsuit now."
     Summary judgment is properly granted only in cases where
the factual background is clearcut and the law leaves no  doubt
about which party should win.
          Evidence
     At bottom, a lawsuit involves (1) proof of facts, and  (2)
application of law to those facts, resulting in a  determination
of what happened and what, if anything, the  judge should do
about it.
     Evidence is the name for those things which prove facts. 
The testimony of a witness may be evidence; something in  writing
may be evidence; a photograph may be evidence; a  broken cable or
a roof tile may be evidence.  The pretrial  discovery process is
primarily a search for evidence.
     But not just anything a party wishes to bring to the
attention of a judge or jury can be evidence.  There are  rules
for the "admission" of evidence.  Unless an attempted  proof is
"admitted" as evidence by the judge, it must be  ignored even if
it has been heard or seen by the trier of  fact -- most often the
jury.
     (It is one of the frustrations of lawyers that a jury
which has heard some damning but inadmissible statement from  a
witness is expected to put it out of their minds and  forget it
when the judge tells them to.  Everyone realizes  that once a
juror has been exposed to something, he or she  is unlikely to be
as concerned about the subtleties of the  rules of evidence as is
the court.  Often evidence is  "proffered" before the judge, with
the jury out of the  courtroom, so that the judge can pass on its
admissibility  before the jury becomes aware of it.)
     To be admitted into evidence, something must tend to  prove
a fact and must be relevant to the issues in the case. 
Testimony that the plaintiff has an obnoxious personality is
irrelevant to the issue whether the defendant refused to pay  him
for a truckload of pigs.  The condition of the pigs,  however,
would no doubt be relevant to the issue whether the  defendant
had a right to refuse payment.  Many arguments  arise in the
course of a lawsuit as to what is relevant and  irrelevant.
     "Circumstantial evidence" is what might be called  indirect
evidence.  It is apparent fact which is not known  directly but
which must be true in the light of facts which  are known
directly.
     If Mrs. Smith finds her living room window broken and a
baseball on the floor, and it is known that children were
playing baseball next door a few minutes before, there is
circumstantial evidence that one of the children broke Mrs.
Smith's window with a baseball, even though no available  witness
saw the event.  A jury is allowed to draw such  inferences from
evidence...and attorneys at closing argument  will argue
vehemently for and against the weight which  jurors should give
to such inferences.
     There are rules for the exclusion of possible evidence
even though it seems relevant. The "hearsay" rule, mentioned
earlier, is such, and it is designed to guarantee as much as
possible that only people who have personally been witnesses  to
something can put accounts of it into evidence.  An  individual
is not allowed to prove a fact by showing that  someone else said
or wrote it.
     Before documents can be admitted into evidence, they  must
be "authenticated" in some way...either by testimony of  a
competent witness or under various other guidelines.
     Sometimes a judge will "take judicial notice" of some
indisputable fact such as the time the sun rose in Toledo on  May
21st.  The judge simply announces that such and such is  a fact.
Judicial notice is intended to save parties the  time and expense
of proving what is universally recognized  to be true.
     Another time-saving device is a pretrial conference
attended by the attorneys and the judge, at which a list of
witnesses and proposed evidence are presented, and problems
relating to evidence and other aspects of the upcoming trial  are
discussed and put to rest.  Objections will still come  up at
trial, but there should be fewer disputes than without  the
pretrial conference.
     At the end of a trial, when a jury is ready to consider
all the evidence that has been admitted, the jurors are told  by
the judge what standard to use in determining whether the
evidence is sufficient to support a verdict.
     This brings into play the concept of the "weight" of
evidence.  A fact may be perfectly admissible because  relevant,
and yet it may have flimsy evidentiary value.  The  jury must
decide how much importance (weight) to give the  evidence that it
has heard, and then it must go on to decide  which party's
evidence has greater weight than the other's.
     The judge will instruct the civil trial jury in most
situations that the party who has supported his case with  the
"greater weight of the evidence" or the "preponderance  of the
evidence" should win.  This is an easier standard of  proof than
that of criminal trials, in which the prosecution  must prove its
case "beyond a shadow of a doubt".
     As regards some specific issues, the party must meet a
higher standard of proof in order to prevail.  The jury may  be
told that the claimant must present "clear and  convincing" proof
of his version of the facts concerning  that issue, rather than
merely tipping the scales ever so  slightly in his favor with
greater weight of evidence.
     The whole process of weighing evidence is of course
subjective, often leading to astonishment among parties and
attorneys when the verdict is announced.
          The Trial
     If the case survives motions to dismiss, motions for
summary judgment, and settlement negotiations, the trial  begins
on a date which has been set in advance by the court.
     The judge takes the bench, and after he greets everyone
and says a few words, the first business is the choosing of  a
jury.  In a process known as voir dire, prospective jurors  are
questioned in order to determine if they can be  unprejudiced
about the case.  In some courts the judge does  all questioning,
in some the lawyers do most of it.
     Rules vary, but both parties have the right to reject  some
potential jurors they suspect of possible bias.  A  juror should
be excused by the judge "for cause" if there is  an obvious
problem such as the juror being a cousin of the  defendant.  Some
law firms dealing with major cases go so  far as to employ
phsychologists and sociologists to advise  them on choice of
jurors.
     Traditionally, a jury consists of twelve people;  sometimes
a six person jury is used.  An extra juror, the  alternate, is
also selected, and hears the entire case just  as the other
jurors do, but unless one of the other jurors  has fallen by the
wayside due to illness or some other  problem, the alternate
takes no part in the jury's  deliberations when they retire to
decide on their verdict.
     The jurors will be told to elect a foreman when they  meet
outside the courtroom.  The foreman can provide some
organizational direction to the jury's discussions, and it  is
the foreman who announces the verdict.
     The judge tells the jurors that they must not discuss  the
case with anyone, even among themselves, until they  retire to
reach a verdict...and then they will be completely  alone.
Normally jurors go home at the end of each day of  trial.  In
exceptional cases they are sequestered and put up  in hotel
rooms, shepherded by law enforcement officials,  through the
entire trial.
     After the jury has been chosen, attorneys for the  parties
make opening statements in which they tell the jury  their
versions of the story of the case and what they expect  to prove.
Argument is not allowed at this stage, but the  lawyers fashion
their words to persuade indirectly as well  as to inform.  What
the lawyers say is not evidence and  cannot be considered to
prove anything, but studies have  shown that most jurors have
made up their minds about who  should win a case by the time
opening statements are  completed.
     At the beginning of a trial you may hear someone "invoke
the rule".  That means that witnesses who are going to  testify
at the trial may not be in the courtroom while other  witnesses
are testifying.
     Finally, the actual effort of the parties to prove their
version of the facts begins.  The plaintiff has the first
opportunity to "present his case".
     He calls witnesses to testify, and may also present
documentary and other evidence.  First a witness is called,  then
sworn and questioned on "direct examination" by the  plaintiff's
lawyer. The defendant's lawyer may then  cross-examine the
witness, and there can be redirect  examination by the
plaintiff's counsel.
     One rarely, in real life, sees an attorney attempting
loudly and emotionally to cross-examine a witness into one  of
those hysterical breakdowns beloved of movie  scriptwriters.  The
judge sees to it that the procedure  takes place on a rational
level  with as few dramatics as  possible.  The client who
expects his  courteous and  soft-spoken lawyer to rant and rage
at witnesses does not  understand the necessities of courtroom
behavior.
     Answers which a witness has given in depositions and
interrogatories may be read aloud during examination,  usually
for the purpose of showing that there is something  wrong with
his story.  In situations where a witness cannot  be brought to
the courtroom, his deposition will be read  aloud to the jury,
who are to give it the same significance  as testimony of a live
witness.
     Objections to the manner of questioning witnesses and to
the admissions of evidence will frequently be heard along  the
line, and the jury may be sent out of the courtroom from  time to
time while the attorneys argue before the judge.
     When the plaintiff "rests", it is likely that both sides
will make oral motions (in the jury's absence) asking the  judge
to decide the case in their favor immediately.  Such a  motion by
the defendant, for example, may argue that the  plaintiff has
presented no evidence at all that could  possibly support a
verdict in his favor.  It is an atypical  trial in which the
court decides the case at that point.
     Now the defendant has a turn at presenting his case
through the same procedures that the plaintiff did:  There  is
direct examination of witnesses, cross-examinations, and  so
forth.  The entire purpose is to present facts to the  jury.
Remember, if there were no disputed facts, there  would have been
a summary  judgment instead of a trial.  So  the jury will hear
witnesses absolutely contradict one  another, or at the very
least give subtle variations in  their accounts of events.
     In the course of the trial there may be a motion for
mistrial, in which the judge is asked to abort the trial
immediately, usually because a witness or attorney has said
something improper which will hopelessly prejudice the jury. 
Mistrials are quite rare.  The judge will usually try to  repair
the damage by talking to the jury.  Of course if the  party who
asked the judge to declare a mistrial turns out to  be the loser,
the point will surely be raised on appeal.
     If the judge lets the trial continue to its end, the
attorneys then present closing arguments to the jury.  This  is
the only time in the course of the trial that the jury is
supposed to hear persuasion rather than facts.  This is each
attorney's big chance to depict the opposition and its  witnesses
as scoundrels and liars, and to show the jury that  by deciding
for the proper party they will preserve the  United States and
enshrine themselves forever in the  pantheon of justice.
     Then the judge instructs the jury about the law they  must
apply to the facts.  These instructions, based on  statutes and
previous judicial decisions, have been worked  out after
consultation with the lawyers, who compete to  include
instructions which favor their own cases.  In a  libel suit by a
famous person against a newspaper, for  example, the jury will be
told that the plaintiff cannot win  if he has merely proved that
the newspaper's story about  him was false; he must also have
proved that the newspaper  knew or strongly suspected that the
story was false.
     At a jury trial, the jury is the finder of fact and the
judge is the authority on law, but it is up to the jury to
understand the law which applies to the facts in the light  of
the plaintiff's claims; only in that way can they know  whether
the law allows the plaintiff to win.
     The jury instructions on the law are apt to be long and
difficult for the jurors to comprehend, a factor adding to  the
parties' suspense as they await the verdict after the  jury has
been sent from the courtroom to debate in  isolation.
     Finally, after a period that can vary from less than  half
an hour to several days, the jury files back into the  courtroom
and announces its verdict...unless it has not been  able to agree
on one, in which instance it is called a "hung  jury" and the
trial will have to be held all over again in  front of a new jury
at a later date.
     Judges have various powers to alter or even nullify jury
verdicts which they feel are extreme or irrational, and
dissatisfied attorneys make post-trial motions asking the  judge
to order a new trial or to change the present trial's  outcome in
some way.  Most likely, however, the exact  decision of the jury
will be incorporated into the written  "final judgment" by which
the judge ends the lawsuit.
     If the verdict simply says that the defendant is not
guilty, and if the judge refuses to intervene, then everyone
just gets up and goes home.
     If the verdict says that a plaintiff's claim or a
defendant's counterclaim was proved, the jury usually awards
money damages, and those damages are incorporated into the  final
judgment, which will say, for example, that the  defendant is to
pay to the plaintiff the sum of $20,000.
     If a jury awards a very small sum of money, such as one
dollar,  for the purpose of showing that the plaintiff was  right
even though he failed to prove financial damages, it  is called
an award of "nominal damages".
          Execution of Judgments
     By historical evolution which some may feel has led to a
rather illogical situation, once a judge enters a final  judgment
in a lawsuit, ordering one party to pay the other  party some
money, or to hand over a house, he concerns  himself no further
with the matter.  If the losing party  does not pay the money, or
whatever, he is not automatically  held in contempt of court and
punished as he would be for  refusing to obey other orders of
court.  The  responsibilities of the trial judge (as the judge
presiding  over a lawsuit is called) end after he has produced
his  final judgment.
     All that the winning party has is an impressive piece of
paper with some nice writing on it.  He has no payment of  money,
no house, unless the losing party volunteers to give  them to
him, or unless he takes further legal action.  This  is as true
in a small claims court as it is in a federal  District Court or
a state trial court.
     Of course it often happens that the loser, unless he
appeals the judgment (see below), is sick of the whole  business
and goes ahead and does whatever the judgment  requires.  But if
he does not, then the winning party must  go through legal
procedures to "execute" the judgment.
     Traditionally, execution of a judgment involves
demonstrating to the sheriff that your judgment is valid and
that it has not been satisfied.
     Now the force of muscle and gun and lock that in final
analysis gives the legal system its authority comes on the
scene.  If the tenant will not leave the house, the sheriff  and
his deputies carry him and his possessions out into the  street.
If the judgment debtor will not pay, the sheriff  will levy on
his property, perhaps putting his house and car  and business
inventory up for public sale and then giving  the proceeds to the
judgment creditor.
     You will find, incidentally, that a number of inquiries
made during the pretrial discovery process may relate to the
assets of a defendant.  The plaintiff's lawyer is trying to  find
out as early as possible just what resources the  defendant has
to satisfy a future judgment, and where they  are.  Additional
formal discovery may take place during the  execution process.
     The methods and problems of execution vary so much from
place to place and situation to situation that more detail  would
be pointless here.
          Appeals and Similar Procedures
     When a court enters a final judgment, there is generally  a
right of appeal to a different court.  The right of appeal  is
triggered not only at the end of a trial, but also if  summary
judgment is entered before the trial, or if a case  is dismissed
on a motion to dismiss...that is, whenever the  case is
definitely brought to an end.
     Most often it is the loser (the plaintiff who is awarded
nothing by the jury, or the defendant who is ordered to pay  or
do something) who appeals, but sometimes the winning  plaintiff
will appeal because, for example, he feels that he  was not
awarded large enough money damages.
     Rules will specify how many days after entry of final
judgment a party has to file a notice of appeal.
     The notice of appeal lets everyone know that an appeal
from the judgment is going to take place, but it does not  say
much else.  The account of what happened in the lawsuit,  and the
arguments for and against changing what happened,  will be found
in the "briefs" which lawyers will write and  send to the appeals
court.
     An appeal is not a retrial of the case.  It is a review  by
judges of as much of the record of the lawsuit (the  pleadings,
transcripts of testimony, documents, and so  forth) as is
necessary to enable them to decide on the  issues raised in the
appeal.  The appellate court does not  hear witnesses or look at
new evidence:  It considers only  what was known to the trial
judge.
     An appeal must state that specific errors were made by  the
trial judge in the course of the lawsuit.  Those  mistakes must
be grave enough to warrant overturning  something that was done
by the lower court.  The concept of  "harmless error" allows
minor mistakes to be overlooked.
     The appellant (the party bringing the appeal) will file  a
brief stating what the issues on appeal are, giving the  history
of the case, and then arguing--with the references  to the record
and with discussions of law--that the  appellate judges should
reverse the lower court judge and  order him to conduct a new
trial or otherwise to correct his  error.
     The appellee will almost always file a brief disagreeing
with the appellant.
     The appellant, for example, may say that the judge
conducted an unfair trial by admitting inadmissible  evidence, or
that the judge committed reversible error by  refusing to alter a
jury verdict for outrageously excessive  money damages.
     After the panel of appeals judges have received the  briefs
and read them, they will usually hear oral arguments  by counsel
(lawyers) for both sides.  The oral argument is a  generally
unemotional affair held in a courtroom in which  there is no jury
and no participants except for judges and  lawyers.
     The term "oral argument" is a little misleading.  The 
attorneys do prepare well-organized arguments calculated to  fill
their alloted time periods (often something like 20 or  30
minutes per side, with some additional rebuttal minutes  for the
appellant), but in practice each lawyer is soon  interrupted by
questions from judges...starting a question  and answer session
which can be expected to take up most of  the time.  Because the
real benefit to the judges of oral  argument is not to sit and
listen to a recitation of briefs  they have already read, but to
ask questions and to probe  the weak points in the attorneys'
reasoning.
     Before and after oral argument, the judges assigned to  the
appeal add their own (and their aides') legal research  to that
of the attorneys.  There are discussions within the  panel, and
the judge in primary charge of the appeal  normally sends around
a memorandum setting out his reasoning  as to the proper outcome
of the appeal.  If the other judges  agree, he writes the opinion
in which the court announces  its decision.
     If there is disagreement among the judges, the majority
rules as to what the lower court is instructed to do.  But  the
appellate judge who disagrees may write a dissenting  opinion.
Even a judge who votes with the majority may write  a concurring
opinion of his own, or an opinion concurring in  part and
dissenting in part.
     The parties to the original suit, meanwhile, have no  role
in the entire process but to wait for the result.   Then,
finally, the decision of the appeals court is  announced.
     It may be nothing more than the single line, "Per curiam
affirmed," which means that no error has been found with the
trial court...and that no judge felt that the questions  raised
on the appeal were unusual enough to justify the work  of writing
an opinion. On the other hand, the appellate judges may produce a
decision many pages in length which will be quoted for years  to
come by lawyers trying to persuade other judges that they  must
take a similar view.  The decision is normally  published and
circulated to law libraries all over the  country within a few
days, where it becomes part of the  ever-expanding collection of
legal precedent.
     In addition to the opinion, the appeals court issues a
mandate to the lower court.  This is the actual command that  the
judge of the lower court carry out the decision of the  appeals
court.  Typically, if the appeals court finds  reversible error,
it orders a new trial, but many variations  are possible.
     A party dissatisfied with the outcome may ask that all  the
judges of the appeals court reconsider the decision of  the
panel.  It is rare for such a petition to bring about  any
changes in the result of the appeal.
     The appellate process is a comforting safeguard against
abuses by trial judges or juries, sometimes a party feels  that
he would be severely harmed if he had to wait until  after the
entire lawsuit had run its course before he could  bring a
problem to a higher court.  The rules allow only  very limited
rights to interlocutory appeals...that is,  appeals which take
place during rather than after a lawsuit.
     On the other hand, if a party has no right of
interlocutory appeal but thinks that he will be irreparably
damaged if he cannot quickly remedy a situation at the trial
court level, he may petition the appeals court to issue a  writ
of mandamus or some other writ to the trial judge  ordering him
to correct his error immediately.
     The writ of mandamus and the writ of certiorari, for
example, are extraordinary remedies, ancient in origin, by  which
a higher court can make the judge of a lower court  behave
himself properly.  The writ of mandamus commands the  judge of
the lower court to do or not to do something.  It  is used if the
judge is failing in his duties or is  completely departing from
the requirements of law.   Obviously, such a writ should be
sought only in extreme and  urgent circumstances.
     A petition for the writ is filed in the higher court
(normally the same court in which one would appeal after  trial),
explaining that the situation is such that the  petitioner would
be irreparably harmed if forced to wait  until regular appeal of
the alleged judicial error became  possible.  The facts are set
out, legal arguments are  included, the adverary side will
generally file an  opposition, and the lower court judge will
generally become  irritated.
     The petition for a writ will not succeed unless it is
truly well-founded, but sometimes it is the only way for a  party
to escape jurisdiction.
          Injunctions
     The injunction is another extraordinary remedy used only
in emergencies when the normal procedures of a lawsuit would  be
inadequate.  An injunction is often issued when there is  no
lawsuit involved in the situation at all.
     One day at lunch you learn that your next door neighbor  is
paying a crew to come out the next morning and cut down  all the
trees on the property line -- trees that you say are  a part of
your property.
     Well, trees take a long time to grow, and shade and  beauty
and privacy are not easily compensable by monetary  damages.  By
the time you call your lawyer, and he writes a  complaint and
serves it on your neighbor, the trees will be  long gone.
     An injunction is your remedy.  It is meant for quick
action.  It orders someone not to do something (or in some  cases
to do something) in circumstances where, in the  absence of the
injunction, irreparable harm would be done  and there would be no
adequate relief and compensation from  a regular lawsuit.
     Where time is short, the complaining party may first ask
the judge to issue a temporary restraining order.  The  temporary
restraining order can be issued very quickly  because it relies
pretty much on the word of the complainant  and is meant merely
to freeze things for a few hours until  everyone concerned can
participate in a hearing on the  issuance of an injunction.
     The injunction is usually not lifted until normal legal
procedures have been given time to solve the problem.
          Conclusion
     You have now learned the fundamentals of our court  systems
and how they work.  You have learned something about  lawsuit and
trials, appeals and extraordinary remedies.  You  are far better
equipped than most people to understand what  you are getting
into if you become involved in a court  contest, and you have
some further standards for judging the  extent to which you want
to serve as your own lawyer.
     Here are some guidelines for dealing with problems in  the
light of what you have learned:
     1.   First, try to determine if it is a legal problem at 
          all. Do not assume that everything you don't like in 
          the  world has a legal remedy.  Many an unhappy person
          has  gone to a lawyer and said that he wants to sue an
          employer or a neighbor for "harassment".  There may be
          a  legal remedy for what is happening, but there is no
          legal remedy for "harassment".  Sexual harassment, yes,
          or extreme and intentional infliction of mental
          distress, perhaps, but not for what most people mean by
          "harassment".
     2.   Next, try to solve the problem by negotiation, perhaps
          adding the arbitration of someone respected by both   
          sides.  You might want to seek expert advice about your
          rights, but a satisfactory settlement without legal   
          action is efficient and inexpensive.  Self-help should
          always have first priority.
     3.   If your rights or property are threatened with       
          immediate  harm, and you cannot stop things yourself, 
          ask a lawyer  to try for a temporary restraining order
          and an  injunction.
     4.   If the damage is already done, or a court will not   
          issue an injunction, your only route to relief may be 
          a  lawsuit.  Most likely you will receive money to   
          compensate for the damage done by the other side.  In 
          very limited circumstances where someone has failed to
          do something under a contract, the court may order   
          "specific performance" of the contract rather than   
          payment of monetary compensation.