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Litigation Free Definition Essays

2015 will be remembered as a year in which campus free speech issues took center stage, receiving extensive coverage in outlets like The New York Times, Wall Street Journal, The Atlantic, Slate, Vox, and Salon. Even President Obama voiced concerns about the lack of debate on college campuses.

For those of us who have been fighting campus censors for years, it’s hard notto ask: “Where has everyone been?”

My organization, the Foundation for Individual Rights in Education (FIRE), has been defending freedom of expression on campus since 1999. We can attest that free speech, open inquiry, and academic freedom have always been threatened on campus by one force or another, even long before we were founded.

Most people are familiar with the supposed heyday of political correctness of the 1980s and 90s, but there is a popular misconception that speech codes and censorship were defeated in the courts of law and public opinion by the mid-90s. In reality, the threats to campus speech never went away. Before examining what has changed to alarm the public—rightfully—about the state of open discourse in higher education, it’s important to note what hasn’t changed.

Speech Codes and Political Correctness Never Went Away

Scholars, including First Amendment expert Robert O’Neil, claim that politically correct speech codes were given a “decent burial” in the mid-90s. But despite being repeatedly defeated in court, speech codes became the rule rather than the exception on campus.

FIRE has been tracking and rating speech codes at hundreds of colleges and universities since 2006. Eight years ago, 75 percent of the institutions we surveyed maintained policies worthy of FIRE’s “red light” rating, meaning they clearly and substantially restricted freedom of speech. Since then, the percentage of schools with red light speech codes has steadily declined each year.

This good news is due, at least in part, to FIRE’s aggressive campaigning and lawsuits. Over the past few years, the number of campuses with red light policies decreased from 62.1 percent (2013) to 55.2 percent (2015). And, in FIRE’s 2016 speech code report, that figure is below 50 percent (49.3 percent) for the first time. Unfortunately, this may be only a temporary high-water mark; pressure from students and the federal government makes the resurgence of speech codes almost inevitable.

The past 15 years are rife with examples of speech-policing. There are the classic political correctness cases, such as the 2004 incident in which a University of New Hampshire student was evicted from his dorm for posting flyers joking that freshman women could lose the “Freshman 15” by walking up the dormitory stairs. In 2009, Yale University students were told they shouldn’t quote F. Scott Fitzgerald, and Bucknell University students were forbidden from handing out “Obama Stimulus Dollars.”

But many cases do not follow the “PC” mold and just involve old-fashioned abuses of power. Examples include the University of Wisconsin-Stout’s censorship of a professor’s “Firefly” poster, Central New Mexico Community College’s shutdown of a student newspaper for publishing a “Sex Issue,” and former Valdosta State University student Hayden Barnes’ unjust expulsion for protesting a parking garage (which led to an eight-year-long legal battle that finally concluded in 2015).

 

Federal Antidiscrimination Law as the Secret Engine of Campus Censorship

Some trends that long precede (and may explain) the current threats to campus free speech include the massive expansion of the bureaucratic class at universities, which officially began outnumbering the number of full-time instructors in 2005, and the rise of the “risk management” industry, which makes a fortune teaching universities how to avoid lawsuits by regulating almost every aspect of student life.

This brings us to the institution that is perhaps most responsible for exacerbating the problems of speech codes and hair-trigger censorship: the Department of Education’s Office for Civil Rights (OCR).

By the late 1980s, colleges were adopting “anti-harassment” codes that restricted protected speech. In the mid-1990s, the campus speech code phenomenon converged with the expansion of federal anti-discrimination law by the Department of Education’s Office for Civil Rights (OCR). OCR encouraged and even required harassment codes, and although its guidance tried to “balance” the need for these codes with the First Amendment, by the time FIRE was founded in 1999, universities were using the “federal government made me do it” excuse to justify even the most laughably unconstitutional speech codes.

In 2003, in perhaps its most redeeming moment, OCR issued a letter clarifying that it has no power to mandate that universities—public or private—police speech that is protected under the First Amendment. OCR explained that public universities, which are bound by the First Amendment, cannot ban merely offensive speech. And if private universities, which are not bound by the First Amendment (except in California through the Leonard Law), pass such speech codes, OCR made clear that they can in no way argue that the federal government forced their hand.

This message was never fully accepted by campus administrators, who wanted expansive speech codes, or by risk managers, who believed it was safer to discourage offensive speech than face a lawsuit. Nonetheless, the 2003 letter did help defuse an old excuse.

Unfortunately, the Department of Education under the Obama administration has been much more aggressive, granting itself new powers and redefining harassment in such broad language that virtually any offensive speech could be considered a matter of federal oversight.

In May 2013, OCR and the Department of Justice (DOJ) entered into a resolution agreement with the University of Montana that the agencies deemed “a blueprint for colleges and universities throughout the country.” This “blueprint” mandates an extraordinarily broad definition of sexual harassment: “any unwelcome conduct of a sexual nature,” including “verbal conduct”—i.e., speech. The blueprint holds that this conduct need not be “objectively offensive” to constitute sexual harassment. This means that if a listener takes offense to any sex- or gender-related speech, no matter how irrationally or unreasonably, the speaker has engaged in sexual harassment. Additionally, the final UM policy reviewed and approved by OCR and DOJ as part of their resolution agreement goes beyond policing sex-related speech by also prohibiting discriminatory harassment on the basis of 17 different categories, including “political ideas.”

Treating this resolution agreement as a “blueprint” puts public universities in an impossible situation: violate the First Amendment or risk investigation and the possible loss of federal funding.

OCR backed away from its characterization of the Montana agreement as a “blueprint” in a November 2013 letter to me. But unlike the clarification it issued in 2003, OCR has never communicated this to universities. As a result, as universities revise their sexual misconduct policies, they now include the blueprint’s definition of sexual harassment. There can be little doubt that the number of institutions doing so will only increase until OCR clarifies that it cannot require universities to adopt such a definition.

OCR is unlikely to forego unconstitutional speech-policing any time soon. In October, OCR announced that it would open a Title IX investigation into the University of Mary Washington after students filed a complaint about the school’s handling of sexist and racist Yik Yak posts. If this investigation leads to new federal “guidance” on colleges’ responsibility to police students’ social media activity, even more protected campus speech could be threatened.

 

What Has Changed: Students Using Their Free Speech to Limit Free Speech

The biggest and most noticeable change in campus censorship in recent years has been the shift in student attitudes. Today, students often demand freedom from speech rather than freedom of speech.

Media coverage of the campus free speech crisis exploded in 2014 after a rash of “disinvitations”—student and faculty attempts to disinvite controversial speakers from campus, including former Secretary of State Condoleezza Rice and International Monetary Fund head Christine Lagarde.

Attention from the media has increased as more student-led efforts have gained popularity, such as demands for “trigger warnings” and “safe spaces,” and efforts to police so-called “microaggressions.” Critiquing PC culture is nothing new for conservative outlets, but even left-leaning authors at the New Republic, The Nation, New York Magazine, and The New York Times have been writing extensively about how these trends reflect very new, often alarming student attitudes about open discourse.

In my 15 years at FIRE, students have historically been the most reliably pro-free-speech constituency on campus. Students often showed more common sense than the professoriate, and certainly much more than the administrators.

But when stories about campus race-related protests inundated the news in the fall of 2015, I knew something had changed. It began when students at Wesleyan University demanded that the school’s primary student newspaper be defunded after it published a student op-ed that was critical of the Black Lives Matter movement. Shortly after, Wesleyan’s student government unanimously approved a resolution that will tentatively cut the paper’s printing budget by half.

Things escalated when I saw firsthand that Yale students were demanding the resignations of two faculty members for sending out an email that questioned whether universities should tell students what they should or shouldn’t wear as Halloween costumes. Then, just days later, student protests at the University of Missouri soured when protesters manhandled a student journalist.

These protests put First Amendment defenders and free speech advocates like me in a somewhat difficult position. Of course, I’m supportive of students exercising their free speech rights. Indeed, I find it refreshing that students have overcome their oft-diagnosed apathy towards serious social issues. However, it’s distressing that many of the protesters are using their free speech to demand limitations on others’ free speech. The irony of these demands was particularly prominent at the University of Missouri, where FIRE recently helped pass a state law making it illegal to limit free speech activities on public university campuses to tiny zones. This new law helped make the Mizzou students’ protests possible. But in a twist, the protesters created their ownfree speech exclusion zone to prevent media from covering the protest.

Now student protestors at at least 75 American colleges and universities have released lists of demands “to end systemic and structural racism on campus.” Although this is a laudable goal, a troubling number of these demands would prohibit or chill campus speech.

For example, many of the demands try to make the expression of racial bias, which is generally protected speech, a punishable offense. At Johns Hopkins University, protesters demand “impactful repercussions” for anyone who makes “Black students uncomfortable or unsafe for racial reasons.” Similarly, protesters at Georgia’s Kennesaw State University demand “strong repercussions and sanctions” for those who commit “racist actions and racial bias on campus.” And Emory University protestors want a bias response reporting system and sanctions for even “unintentional” acts or behaviors, including “gestures.”

Others go as far as to mandate that universities forbid “hate speech.” At Missouri StateUniversity, protesters demand that administrators announce a “commitment to differentiating ‘hate speech’ from ‘freedom of speech.’” Protesters at Dartmouth College want “a policy with serious consequences against hate speech/crimes (e.g. Greek house expelled for racist parties).” Similarly, student protesters at the University of Wyoming demand that the code of conduct be revised to hold students accountable for hate speech, complete with “a detailed reporting structure.”

The evidence that today’s students value freedom of speech less than their elders is not just anecdotal. In October, Yale University’s William F. Buckley, Jr. Program released a survey that found that 51 percent of U.S. college students favor campus speech codes, and that 72 percent support disciplinary action against “any student or faculty member on campus who uses language that is considered racist, sexist, homophobic or otherwise offensive.” These troubling results were echoed by a November 2015 global survey from Pew Research Center finding that a whopping 40 percent of U.S. millennials [ages 18–34] believe the government should be able to punish speech offensive to minority groups (as compared to only 12 percent of the Silent generation [70–87 year-olds], 24 percent of the Boomer generation [51–69 year-olds], and 27 percent of Gen Xers [35–50 year-olds]).

 

Conclusion

Thankfully, through old strategies and new ones, we can improve the climate for free speech on campus. Just one student or professor can protect free expression for thousands, or even hundreds of thousands, by filing a lawsuit against his or her school with the help of FIRE’s Stand Up For Speech Litigation Project. SUFS is undefeated so far and has resulted in seven settlements that send the clear message to institutions that it will be expensive to ignore their obligations under the First Amendment. What’s more, with every speech-protective judgment, it becomes harder for administrators to defend themselves with “qualified immunity,” which shields individuals from personal liability where the law isn’t clear.

Litigation might also be our best shot at forcing OCR to step back from its efforts to coerce institutions into adopting unconstitutional policies. Clearer and narrower policies than OCR’s May 2013 definition of “sexual harassment” have been struck down in court on numerous occasions. But until institutions see a real threat of an expensive judgment against them for overbroad harassment policies, they’ll continue to be motivated by the threat of OCR pulling their funding for what it seems to consider underbroad policies—i.e., colleges will err on the side of prohibiting protected expression.

And because money talks, alumni should withhold donations to institutions that break the law or renege on promises to respect students’ and professors’ rights. And of course, anyone can contact his or her legislators and ask them to support bills—like the ones FIRE helped enact in Missouri and Virginia—that ensure students may fully exercise their free speech rights on public campuses statewide.

These strategies may motivate schools to make quick changes, but free speech advocates know that long-lasting progress comes through cultural change. How do we teach a generation about the value of free expression when speech is too often presented as a problem to be overcome, rather than part of the solution to many social ills? This is our great challenge, and it must be faced with both determination and creativity if the always-fragile right of freedom of speech is to endure.

Also from this issue

Lead Essay

  • Campus Free Speech Has Been in Trouble for a Long Time by Greg Lukianoff

    Greg Lukianoff reviews the recent media attention to cases of speech suppression on college campuses. He agrees that they are troubling, but notes that they aren’t all that new: Political correctness and expansive speech codes were widespread in the 90s, and most of those codes never disappeared. Lukianoff traces their origins to the federal Department of Education’s Office for Civil Rights, which has significantly confused administrators and students about the prevailing law in these matters. Administrators in particular want expansive speech codes because such codes shield them from legal liability. Lately, though, students have begun to demand them too, in the hope of suppressing hate speech and so-called microaggressions.

Response Essays

  • Campus Free Speech Problems Are Less Than Meets the Eye by Eric Posner

    Speech codes may sound menacing, but they are actually designed to enhance speech, writes Eric Posner. No classroom instructor tolerates rudeness or disruption of the learning environment, and speech codes are an outgrowth of this laudable practice. Administrators, too, are less guilty than it may seem by relying on Greg Lukianoff’s anecdotes: They have not been punishing students merely for their speech. Universities face a difficult task, in that they must accommodate highly diverse student cohorts with wildly divergent ideas, all while preserving an atmosphere of collegiality and of learning. It is inevitable that mistakes will arise. These mistakes, though, do not indicate any sinister trend about American education or public life. Would an absolutist free-speech policy do better at educating college students? That’s an empirical claim, and one that Lukianoff does not even try to substantiate.

  • Common Sense about the Chilling of Campus Speech by Catherine J. Ross

    Catherine J. Ross argues that the issue of free speech on college campuses is far more nuanced than either side seems willing to admit. We have become much more aware of the problem than previously, thanks in part to social media and the efforts of advocates like Greg Lukianoff, who rightly points out some troubling examples here. And yet there is room for exaggeration: Eric Posner is certainly onto something, she writes, that Lukianoff exaggerates the severity of the problem. Ross searches for evidence in both directions and concludes that a chilling effect has clearly been at work in recent years. Professors should never feel as though their students scare them; students should not be scared of one another. The crux of the matter, as she puts it, is that liberals have recently been divided: Some have kept to their traditional First Amendment commitments, while others have come to prefer equality in many instances where equality and freedom of expression appear to conflict.

For other uses, see Lawsuit (disambiguation).

"Civil action" redirects here. For the book of the same name, see A Civil Action. For the film of the same name, see A Civil Action (film).

"Litigators" redirects here. For the novel by John Grisham, see The Litigators.

"Suing" redirects here. For other uses, see Sue (disambiguation).

A lawsuit (or suit in law[a]) is "a vernacular term for a suit, action, or cause instituted or depending between two private persons in the courts of law."[1] A lawsuit is any proceeding by a party or parties against another in a court of law.[2]

Sometimes, the term "lawsuit" is in reference to a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint. If the plaintiff is successful, judgment is in the plaintiff's favor, and a variety of court orders may be issued to enforce a right, award damages, or impose a temporary or permanent injunction to prevent an act or compel an act. A declaratory judgment may be issued to prevent future legal disputes.

A lawsuit may involve dispute resolution of private law issues between individuals, business entities or non-profit organizations. A lawsuit may also enable the state to be treated as if it were a private party in a civil case, as plaintiff, or defendant regarding an injury, or may provide the state with a civil cause of action to enforce certain laws.

The conduct of a lawsuit is called litigation. The plaintiffs and defendants are called litigants and the attorneys representing them are called litigators.[3] The term litigation may also refer to criminal trial.

Rules of procedure and complications[edit]

Rules of criminal or civil procedure govern the conduct of a lawsuit in the common lawadversarial system of dispute resolution. Procedural rules are constrained and informed by separate statutory laws, case laws, and constitutional provisions that define the rights of the parties to a lawsuit (see especially due process), though the rules generally reflect this legal context on their face. The details of the procedure differ greatly from jurisdiction to jurisdiction, and often from court to court even within the same jurisdiction. These rules of the particular procedures are very important for litigants to know, because the litigants are the ones who dictate the timing and progression of the lawsuit. Litigants are responsible to obtain the suited result and the timing of reaching this result. Failure to comply with the procedural rules may result in serious limitations that can affect the ability of one to present claims or defenses at any subsequent trial, or even promote the dismissal of the lawsuit altogether.

Though the majority of lawsuits are settled before ever reaching a state of trial,[4] they can still be very complicated to litigate. This is particularly true in federal systems, where a federal court may be applying state law (e.g. the Erie doctrine, for example in the United States), or vice-versa. It is also possible for one state to apply the law of another in cases where additionally it may not be clear which level (or location) of court actually has jurisdiction over the claim or personal jurisdiction over the defendant, or whether the plaintiff has standing to participate in a lawsuit. About 98 percent of civil cases in the United States federal courts are resolved without a trial. Domestic courts are also often called upon to apply foreign law, or to act upon foreign defendants, over whom they may not even have the ability to even enforce a judgment if the defendant's assets are theoretically outside their reach.

Lawsuits can become additionally complicated as more parties become involved (see joinder). Within a "single" lawsuit, there can be any number of claims and defenses (all based on numerous laws) between any number of plaintiffs or defendants. Each of these participants can bring any number of cross claims and counterclaims against each other, and even bring additional parties into the suit on either side after it progresses. In reality however, courts typically have some power to sever claims and parties into separate actions if it is more efficient to do so. A court can do this if there is not a sufficient overlap of factual issues between the various associates, separating the issues into different lawsuits.

The official ruling of a lawsuit can be somewhat misleading because post-ruling outcomes are often not listed on the internet. For example, in the case of William J. Ralph Jr. v. Lind-Waldock & Company[5] (September 1999), one would assume that Mr. Ralph lost the case when in fact, upon review of the evidence, it as found that Mr. Ralph was correct in his assertion that improper activity took place on the part of Lind-Waldock, and Mr. Ralph settled with Lind-Waldock.[6]

Cases such as this illustrate the need for more comprehensive information than mere internet searches when researching legal decisions. While online searches are appropriate for many legal situations, they are not appropriate for all.

Procedure[edit]

The following is a generalized description of how a lawsuit may proceed in a common law jurisdiction:

Pleading[edit]

Main article: Pleading

A lawsuit begins when a complaint or petition is filed with the court. This complaint should explicitly state that one or more plaintiffs seek(s) damages or equitable relief from one or more stated defendants, and also should identify the legal and factual bases for doing so. It is important that the "plaintiff selects the proper venue with the proper jurisdiction to bring his lawsuit." The clerk of a court signs or stamps the court seal upon a summons or citation, which is then served by the plaintiff upon the defendant, together with a copy of the complaint. This service notifies the defendants that they are being sued and that they are limited in the amount of time of a reply. The service provides a copy of the complaint in order to notify the defendants of the nature of the claims. Once the defendants are served with the summons and complaint, they are subject to a time limit to file an answer stating their defenses to the plaintiff's claims, which includes any challenges to the court's jurisdiction, and any counterclaims they wish to assert against the plaintiff.

In a handful of jurisdictions (notably, the U.S. state of New York) a lawsuit begins when one or more plaintiffs properly serve a summons and complaint upon the defendant(s). In such jurisdictions, nothing must be filed with the court until a dispute develops requiring actual judicial intervention. A complaint can be considered one of the more important steps in pleading during a civil case. This document states the actions that the plaintiff intends to take and also the factual and reasonable basis for the actions. This essentially sets the framework for the entire case and the claim that will be held noteworthy throughout the entire lawsuit.

If the defendant chooses to file an answer within the time permitted, the answer must address each of the plaintiffs' allegations. The defendant has three choices to make, which include either admitting to the allegation, denying it, or pleading a lack of sufficient information to admit or deny the allegation. Some jurisdictions, like California, still authorize general denials of each and every allegation in the complaint. At the time the defendant files an answer, the defendant also raises all "affirmative" defenses. The defendant may also assert counterclaims for damages or equitable relief against the plaintiff. For example, in the case of "compulsory counterclaims," the defendant must assert some form of counterclaim or risk having the counterclaim barred in any subsequent proceeding. In the case of making a counterclaim, the defendant is making a motion directed towards the plaintiff claiming that he/she was injured in some way or would like to sue the plaintiff. The plaintiff in this example would then receive some amount of time to make a reply to this counterclaim. The defendant may also file a "third party complaint", which is the defendant's privilege to join another party or parties in the action with the belief that those parties may be liable for some or all of the plaintiff's claimed damages. An answer from the defendant in response to the claims made against him/her, can also include additional facts or a so-called "excuse" for the plead. Filing an answer "joins the cause" and moves the case into the pre-trial phase.

Instead of filing an answer within the time specified in the summons, the defendant can choose to dispute the validity of the complaint by filing a demurrer (in the handful of jurisdictions where that is still allowed) or one or more "pre-answer motions," such as a motion to dismiss. It is important that the motion be filed within the time period specified in the summons for an answer. If all of the above motions are denied by the trial court, and the defendant loses on all appeals from such denials (if that option is available), and finally the defendant must file an answer.

Usually the pleadings are drafted by a lawyer, but in many courts persons can file papers and represent themselves, which is called appearing pro se. Many courts have a pro se clerk to assist people without lawyers.

Pretrial discovery[edit]

Main article: Discovery (law)

A pretrial discovery can be defined as "the formal process of exchanging information between the parties about the witnesses and evidence they’ll present at trial" and allows for the evidence of the trial to be presented to the parties before the initial trial begins.[7] The early stages of the lawsuit may involve initial disclosures of evidence by each party and discovery, which is the structured exchange of evidence and statements between the parties. Discovery is meant to eliminate surprises, clarify what the lawsuit is about, and also to make the parties decide if they should settle or drop frivolous claims and/or defenses. At this point the parties may also engage in pretrial motions to exclude or include particular legal or factual issues before trial.

There is also the ability of one to make an under oath statement during the pretrial, also known as a deposition. The deposition can be used in the trial or just in the pretrial, but this allows for both parties to be aware of the arguments or claims that are going to be made by the other party in the trial. It is notable that the depositions can be written or oral.[8]

At the close of discovery, the parties may either pick a jury and then have a trial by jury or the case may proceed as a bench trial. A bench trial is only heard by the judge if the parties waive a jury trial or if the right to a jury trial is not guaranteed for their particular claim (such as those under equity in the U.S.) or for any lawsuits within their jurisdiction.

Resolution[edit]

Main articles: Trial, Judgment (law), and Settlement (litigation)

Usually, lawsuits end in a settlement, with an empirical analysis finding that less than 2% of cases end with a trial.[9] It is sometimes said that 95% of cases end in settlement; few jurisdictions report settlements, but empirical analysis suggests that the settlement rate varies by type of lawsuit, with torts settling around 90% of the time and overall civil cases settling 50% of the time; other cases end due to default judgment, lack of a valid claim, and other reasons.[9]

At trial, each person presents witnesses and the evidence collected is recorded. After this occurs, the judge or jury renders their decision. Generally speaking, the plaintiff has the burden of proof in making his claims, however, the defendant may have the burden of proof on other issues, such as affirmative defenses. The attorneys are held responsible in devising a trial strategy that ensures they meet the necessary elements of their case or (when the opposing party has the burden of proof) to ensure the opponent will not be able to meet his or her burden.

There are numerous motions that either party can file throughout the lawsuit to terminate it "prematurely"—before submission to the judge or jury for final consideration. These motions attempt to persuade the judge, through legal argument and sometimes accompanying evidence, that there is no reasonable way that the other party could legally win and therefore there is no sense in continuing with the trial. Motions for summary judgment, for example, can usually be brought before, after, or during the actual presentation of the case. Motions can also be brought after the close of a trial to undo a jury verdict contrary to law or against the weight of the evidence, or to convince the judge to change the decision or grant a new trial.

Also, at any time during this process from the filing of the complaint to the final judgment, the plaintiff may withdraw the complaint and end the whole matter, or the defendant may agree to a settlement. If the case settles, the parties might choose to enter into a stipulated judgment with the settlement agreement attached, or the plaintiff may simply file a voluntary dismissal, so that the settlement agreement is never entered into the court record.

The decisions that the jury makes are not put into effect until the judge makes a judgment, which is the approval to have this trial information be filed in public records. In a civil case, the judge is allowed at this time to make changes to the verdict that the jury came up with by either adding on or reducing the punishment. In criminal cases the situation is a little different, because in this case the judge does not have the authority to change the jury decision.

Appeal[edit]

Main article: Appeal

After a final decision has been made, either party or both may appeal from the judgment if they believe there had been a procedural error made by the trial court. It isn't necessarily an automatic appeal after every judgment has been made, however, if there is a legal basis for the appeal, then one has the right to do so. The prevailing party may appeal, for example, if they wanted a larger award than was granted. The appellate court (which may be structured as an intermediate appellate court) and/or a higher court then affirms the judgment, declines to hear it (which effectively affirms it), reverses—or vacates and remands. This process would then involve sending the lawsuit back to the lower trial court to address an unresolved issue, or possibly request for a whole new trial. Some lawsuits go up and down the appeals ladder repeatedly before final resolution.

The appeal is a review for errors rather than a new trial, so the appellate court will defer to the discretion of the original trial court if an error is not clear. The initial step in making an appeal consists of the petitioner filing a notice of appeal and then sending in a brief, a written document stating reason for appeal, to the court. Decisions of the court can be made immediately after just reading the written brief, or there can also be oral arguments made by both parties involved in the appeal. The appellate court then makes the decision about what errors were made when the law was looked at more closely in the lower court. There were no errors made, the case would then end, but if the decision was reversed, the appellate court would then send the case back down to the lower court level. There, a new trial will be held and new information taken into account.

Some jurisdictions, notably the United States, but prevalent in many other countries, prevent parties from relitigating the facts on appeal, due to a history of unscrupulous lawyers deliberately reserving such issues in order to ambush each other in the appellate courts (the "invited error" problem). The idea is that it is more efficient to force all parties to fully litigate all relevant issues of fact before the trial court. Thus, a party who does not raise an issue of fact at the trial court level generally cannot raise it on appeal.

When the lawsuit is finally resolved, or the allotted time to appeal has expired, the matter is res judicata, meaning the plaintiff may not bring another action based on the same claim again. In addition, other parties who later attempt to re-litigate a matter already ruled on in a previous lawsuit will be estopped from doing so.

Enforcement[edit]

When a final judgment is entered, the plaintiff is usually barred under the doctrine of res judicata from relitigating any of the issues, even under different legal theories. Judgments are typically a monetary award. If the defendant fails to pay, the court has various powers to seize any of the defendant's assets located within its jurisdiction, such as:

If all assets are located elsewhere, the plaintiff must file another suit in the appropriate court to seek enforcement of the other court's previous judgment. This can be a difficult task when crossing from a court in one state or nation to another, however, courts tend to grant each other respect when there is not a clear legal rule to the contrary. A defendant who has no assets in any jurisdiction is said to be "judgment-proof."[10] The term is generally a colloquialism to describe an impecunious defendant.

Indigent judgment-proof defendants are no longer imprisoned; debtor's prisons have been outlawed by statute, constitutional amendment, or international human rights treaties in the vast majority of common law jurisdictions.

Etymology[edit]

During the 18th and 19th centuries, it was common for lawyers to speak of bringing an "action" at law and a "suit" in equity. An example of that distinction survives today in the text of the Civil Rights Act of 1871. The fusion of common law and equity in England in the Judicature Acts of 1873 and 1875 led to the collapse of that distinction, so it became possible to speak of a "lawsuit." In the United States, the Federal Rules of Civil Procedure (1938) abolished the distinction between actions at law and suits in equity in federal practice, in favor of a single form referred to as a "civil action."

In England and Wales the term "claim" is far more common; the person initiating proceedings is called the claimant.

American terminology is slightly different, in that the term "claim" refers only to a particular count (or cause of action) in a lawsuit. Americans also use "claim" to describe a demand filed with an insurer or administrative agency. If the claim is denied, then the claimant (or policyholder or applicant) files a lawsuit with the courts and later participates in the lawsuit.

In medieval times, both "action" and "suit" had the approximate meaning of some kind of legal proceeding, but an action terminated when a judgment was rendered, while a suit also included the execution of the judgment.

Financing[edit]

Particularly in the United States, plaintiffs and defendants who lack financial resources for litigation or other attorney's fees may be able to obtain legal financing. Legal financing companies can provide a cash advance to litigants in return for a share of the ultimate settlement or award. If the case ultimately loses, the litigant does not have to pay any of the money funded back. Legal financing is different from a typical bank loan in that the legal financing company does not look at credit history or employment history. Litigants do not have to repay the cash advance with monthly payments, but do have to fill out an application so that the legal financing company can review the merits of the case.

Legal financing can be a practical means for litigants to obtain financing while they wait for a monetary settlement or an award in their personal injury, workers' compensation, or civil rights lawsuit. Often, plaintiffs who were injured or forced to leave their jobs still have mortgages, rent, medical expenses, or other bills to pay. Other times, litigants may simply need money to pay for the costs of litigation and attorneys' fees, and for this reason, many litigants turn to reputable legal financing companies to apply for a cash advance to help pay for bills.

Defendants, civil rights organizations, public interest organizations, and government public officials can all set up an account to pay for litigation costs and legal expenses. These legal defense funds can have large membership counts where the members contribute to the fund. Unlike legal financing from legal financing companies, legal defense funds provide a separate account for litigation rather than a one-time cash advancement, nevertheless, both are used for purposes of financing litigation and legal costs.

There was a study conducted in the Supreme Court Economic Review that shows why litigation financing can be practical and beneficial to the overall court system and lawsuits within the court. This study concluded that the new rules that were set for litigation financing actually did produce more settlements. Under conservative rules, there tended to be fewer settlements, however under the older rules they tended to be larger on average.[11]

Legal financing can become an issue in some cases, varying from case to case and person to person. It can be beneficial in many situations, however also detrimental in others.

See also[edit]

Wikiquote has quotations related to: Lawsuit

Notes[edit]

References[edit]

  1. ^"What is LAWSUIT?". Thelawdictionary.org. Retrieved June 23, 2015. 
  2. ^Brian A. Garner, ed. (2014). ""Suit"". Black's Law Dictionary (10th ed.). West. 
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