Bill of Rights
n. the first ten amendments to the federal Constitution demanded by
several states in return for ratifying the Constitution, since the
failure to protect these rights was a glaring omission in the
Constitution as adopted in convention in 1787. Adopted and ratified
in 1791, the Bill of Rights are: First: Prohibits laws establishing a
religion (separation of church and state), and bans laws which would
restrict freedom of religion, speech, press (now interpreted as
covering all media), right to peaceably assemble and petition the
government. Second: A "well regulated Militia, being necessary to the
security of a free state, the right of the people to keep and bear
Arms, shall not be infringed." This is often claimed as giving the
unfettered right of individuals to own guns, but is actually limited
to the right of "the" people, meaning the body politic or the public
as a group, to bear arms as militiamen Third: No quartering of
soldiers in private homes without the owner's consent. Fourth: No
unreasonable search and seizures, no warrants without probable cause,
and such warrants must be upon "oath or affirmation" and describe the
place to be searched or the person or things to be taken. Fifth:
Prohibits criminal charges for death penalty ("capital punishment")
or any other "infamous" crime (felony) without indictment by a Grand
Jury except under martial law in the time of war or "public danger";
no person may be tried twice for the same offense; no one may be
compelled to be a witness against himself ("taking the Fifth"), no
one can be deprived of life, liberty or property without "due process
of law"; no taking of property for public use (eminent domain)
without just compensation. These rights have become applicable to
states through the 14th Amendment as well as state constitutions.
Sixth: Rights of criminal defendants to a speedy and public trial,
impartial local jury, information on the nature and cause of
accusation, confront witnesses against him, right to subpena
witnesses, and have counsel. Seventh: Juries may be demanded in civil
cases (over $20) and the jury shall be trier of the fact in such
cases as required by Common Law. Eighth: No excessive bail, excessive
fines or "cruel and unusual punishment." Note that denial of bail in
murder cases or when the accused may flee is not "excessive," and
capital punishment (like the gas chamber) may be cruel but not
necessarily unusual. inth: Stating these rights shall not be
construed to deny that other rights are retained by the people.
Tenth: Powers given to the United States (central government) and not
prohibited to the states, are reserved to the states or to the people.
n. a lawsuit filed by one or more people on behalf of themselves and
a larger group of people "who are similarly situated." Examples might
include: all women who have suffered from defective contraceptive
devices or breast implants, all those overcharged by a public utility
during a particular period, or all those who were underpaid by an
employer in violation of the Fair Labor Standards Act. If a class
action is successful, a period of time is given for those who can
prove they fit the class to file claims to participate in the
judgment amount. Class actions are difficult and expensive to file
and follow through, but the results can be helpful to people who
could not afford to carry a suit alone. They can force businesses
that have caused broad damage or have a "public be damned" attitude
to change their practices and/or pay for damages. They often result
in high fees for the winning attorneys, although often attorneys do
not collect a fee at the beginning of a class action suit but might
charge a contingent fee (such as one-third of the final judgment),
which, occasionally, can be millions of dollars. Such fees usually
require court approval.
n. a legal action to challenge a ruling in another case. For example,
Joe Parenti has been ordered to pay child support in a divorce case,
but he then files another lawsuit trying to prove a claim that he is
not the father of the child. A "direct attack" would have been to
raise the issue of paternity in the divorce action.
n. where two persons (or business entities through their officers or
other employees) enter into a deceitful agreement, usually secret, to
defraud and/or gain an unfair advantage over a third party,
competitors, consumers or those with whom they are negotiating.
Collusion can include secret price or wage fixing, secret rebates, or
pretending to be independent of each other when actually conspiring
together for their joint ends. It can range from small-town
shopkeepers or heirs to a grandma's estate, to gigantic electronics
companies or big league baseball team owners.
color of law
n. the appearance of an act being performed based upon legal right or
enforcement of statute, when in reality no such right exists. An
outstanding example is found in the civil rights acts which penalize
law enforcement officers for violating civil rights by making
arrests "under color of law" of peaceful protesters or to disrupt
voter registration. It could apply to phony traffic arrests in order
to raise revenue from fines or extort payoffs to forget the ticket.
conclusion of fact
n. in a trial, the final result of an analysis of the facts presented
in evidence, made by the trier of fact (a jury or by the judge if
there is no jury). When a judge is the trier of fact he/she will
present orally in open court or in a written judgment his/her
findings of fact to support his/her decision. In most cases either
party is entitled to written conclusion of facts if requested.
See also: finding judgment
conclusion of law
n. a judge's final decision on a question of law which has been
raised in a trial or a court hearing, particularly those issues which
are vital to reaching a statement. These may be presented orally by
the judge in open court, but are often contained in a written
judgment in support of his/her judgment such as an award of damages
or denial of a petition. In most cases either party is entitled to
written conclusions of law if requested.
n. the requirement that an attorney may not reveal communications,
conversations and letters between himself/ herself and his/her
client, under the theory that a person should be able to speak freely
and honestly with his/her attorney without fear of future revelation.
In a trial, deposition, and written questions (interrogatories), the
attorney is required and the client is entitled to refuse to answer
any question or produce any document which was part of the attorney-
client contact. The problem sometimes arises as to whether the
conversation was in an attorney-client relationship. If a man tells
his neighbor who happens to be an attorney that he embezzled funds,
is he doing so while seeking legal advice or just chatting over the
fence (which is the test)? If a document was prepared as part of the
legal preparation for a client, it usually is a "work product" and is
also privileged. Similar privileges exist between pastor and
parishioner and doctor and patient.
attorney's work product
n. written materials, charts, notes of conversations and
investigations, and other materials directed toward preparation of a
case or other legal representation. Their importance is that they
cannot be required to be introduced in court or otherwise revealed to
the other side. Sometimes there is a question as to whether documents
were prepared by the attorney and/or the client for their use in the
case preparation or are documents which are independent and legitimate evidence.
n. the writings, notes, memoranda, reports on conversations with the
client or witness, research and confidential materials which an
attorney has developed while representing a client, particularly in
preparation for trial. A "work product" may not be demanded or
subpenaed by the opposing party, as are documents, letters by and
from third parties and other evidence, since the work product
reflects the confidential strategy, tactics and theories to be
employed by the attorney.
n. damages claimed and/or awarded in a lawsuit which were caused as a
direct foreseeable result of wrongdoing.
n. where a court will not grant a judgment or other legal relief to a
party who has not acted fairly; for example, by having made false
representations or concealing material facts from the other party.
This illustrates the legal maxim: "he who seeks equity, must do
equity." Example: Larry Landlord rents space to Dora Dressmaker in
his shopping center but falsely tells her a Sears store will be a
tenant and will draw customers to the project. He does not tell her a
new freeway is going to divert traffic from the center. When she
fails to pay her rent due to lack of business, Landlord sues her for
breach of lease. Dressmaker may claim he is equitably estopped.