4.19.2012

Court Systems – Dispute Resolving - “Civilly”

Old Court House, Eyrecourt, Co. Galway - geogr...
Old Court House, Eyrecourt, Co. Galway - geograph.org.uk - 895866 (Photo credit: Wikipedia)

            The court system in the United States has many functions which include not just handling criminal cases but also civil disputes.  Disputes between persons or parties are not uncommon and many citizens may not know they are a function of law, known as dispute resolution.  Disputing facts, facets or situations can often be handled without the involvement of a court system, for instance a disagreement between a child and its parent certainly would not warrant an appearance in a court if the situation were over whether or not a cookie was an appropriate substitute for dinner, however a car crash into a fence or harassing actions by someone may certainly be a 
Uncyclopedia dispute resolution
Uncyclopedia dispute resolution (Photo credit: Wikipedia)
platform for dispute resolution.  In order for us to better understand these items in our court systems, we will look into the evolution, development and application of dispute mediation and why it is such a vital function in our society as well as our justice system.
            
            Historically, disputes in colonial times were resolved by the community elders in an attempt to have the wisdom of their leaders solve problems and as regions expanded so did the need for a more organized approach in governing those needs.  In the 1980’s it became clear that a platform to help mandate civil disputes in communities was in great need and professor Frank Sanders of Harvard University, acting as the architect of the National Justice Centers effort to organize and substantially handle the demand for civilian matters to be held outside of courts, stated “a meditative process seems far more apt than a coercive one” (Primm, 1992-1993).  Cities that were included in the earliest stages of this important development were the cities of Los Angeles, Atlanta and Kansas City.  In order to help handle the many diverse situations that would be included, these centers hired volunteers and began to model programs that would work best in their own communities (mit.edu). 
kansas city
kansas city (Photo credit: wgdavis)
            Whether tied to courts, communities or governments, the effectiveness of these programs gained momentum and grew in popularity, which helped to shape these disputes into 3 basic stages (Criminal Courts “Structures, Processes and Issues, Pearson 3rd Edition, Chapter 1 pgs 4-6).  Felstiner, Abel and Sarat (1980) identify these stages in the evolution of disputing as: (1) naming, (2) blaming and (3) claiming.  The research involved focused on developing a framework to understand those disputes that could be kept out of the courts unless a final resolution was warranted of an authoritative nature.  This began by reviewing injuries and classifying them into either being perceived or unperceived.  As an example, sometimes we can receive injury and may not be aware that we are being victimized.  It is this absence of recognition that may prevent us from filing for resolution expeditiously or at all.
            If one is able to recognize that they are a victim, they can “name” what occurred, which will help to formulate “blaming”, which is a literal translation as to what the specifics and parameters of your dispute cover.  As an example, a neighbor may point out that an animal continues to trespass onto their property causing damage and then the owner of the animal either resists or disputes as accurate in claim.  The injury to the person is not one of a physical nature, however they have incurred a loss which has directly affected them and they seek a resolution to their problem.  In some cases, it may be more of a financial burden to pursue than to let fall by the way side, these situations are sometimes referred to as “not being economically advantageous”, or too much to invest to justify the result or recovery.
            Claiming is where it all comes together, the final stage of attempting to resolve the matter.  The victim files a formal grievance that lists those whom are involved in the dispute, the parameters of the dispute and what outcome they seek, which, in a few cases this is reflected by the victim seeking monetary compensation.  There is little surprise that the majority of these types of cases do not escalate into formal lawsuits where large monetary amounts are at stake, due primarily to the injury not being perceived or one having a difficult time in defining what victimization actually took place in the eyes and context of the laws that apply, in these cases it is best to seek advice from qualified legal counsel.  In these cases, civil law is applied in the resolution of matters, meaning that while the situation may be a bit precarious in nature, no criminal behaviors apply.
Federal Court House and First Tennessee Bank
Federal Court House and First Tennessee Bank (Photo credit: Frank Kehren)
            Unlike criminal law, in this area of civil law, private parties generate cases that seek final resolution against another party and not necessarily to prosecute for crimes, but rather to seek closure or some monetary compensation.  In particular in the matter of civil cases the standard of proof required is different in that the plaintiff in the case must prove the defense negligent by a preponderance of the evidence being used, which is typically more than 50% (percent).  This is much different than criminal systems of procedure in that “beyond reasonable doubt” is not applied.  For example, O.J. Simpson in his criminal trial was acquitted of the crime due to jurors having doubt as to the credibility of the case parameters, however, Mr. Simpson was found to be responsible in his civil trial as the preponderance of the evidence was sufficient to show negligence, some may see this as a double standard of law application, when in reality the standards are for two different procedures for the victim, person or class of people.
            Classical applications of the law left little room for tolerance, the word of law was considered concise and its applications were at the time fitting for an era bereft of digitized televisions and media that allows us to “view the world” with a point, click and look platform.  Sociological jurisprudence, or the interaction of society and law, was emphasized by Roscoe Pound as well as others, citing that classical jurisprudence was not allowing the courts to effect changes in social policies or allowing parts of law to be concerned with public policy itself.  The first person to use social science in litigation was Louis Brandeis (Muller vs. Oregon, 1908), a case involving the level of working hours on women exceeding 60 hours or more per week, a task that proved challenging and rewarding in that he had to show that increased hours would adversely affect women’s health and could thereby be harmful.  This matter affected change in part of a statute that alleviated strain in the industrial working world for women everywhere, as a result of allowing the courts freedom to affect social policies and acceptable practices.
            Social jurisprudence paved the way into legal realism a perspective that is described in greater detail in a publication by Karl Llewellyn (1931). The argument he presented was that law was inconsistent and quite often dynamic in nature (note: it is widely accepted that the National Reporter system published by West Publishing Company may have contributed to this view). With a vast history to reflect upon, our criminal justice system has evolved and is changing to adapt to our digitized world, just like those who argued for fair practices in 1908, 1931, 1964, 1980 and 2012.  Perhaps Mr. Llewellyn and others were on to something that we should utilize today, the dynamics of law, applying what is just and right by the people and accepted practice against the known’s of the civility or criminal brevity and embrace change with standards that reflect current occurrences. 
            Laws written have various functions and depending upon one’s own circumstance or event, those laws may lead us into either a criminal or civil set of courts where each has their own set of procedures and laws that govern them. Civil laws, developed as early as ancient Roman law, are codified, written, documented and judges often reference written law when presiding over cases of a civil nature. Part of civil law is dispute resolution where private parties may have their sides presented and resolved without ever entering a court room. A preponderance of the evidence by 50% or more is needed to successfully “prosecute” a civil matter where a criminal procedure must not contain a reasonable doubt in order to prosecute its merits.
            When entering into a civil matter, if the circumstances warrant the need, it is advisable to retain a qualified person to assist your matter to avert it becoming, “economically disadvantageous” or as some others would refer to it “no justice for the poor”. In law, there are no double standards, only correct applications and sometimes it requires a court of higher authority to decide its final outcome.  The U.S. Supreme court may be the top of the mountain, but there are many other avenues to explore long before we begin our climb.
References and further readings:
Criminal Courts 3rd Edition, Structure, Process and Issues Copyright 2002, 2008 and 2012, Pearson Educational Materials
http://www.law.cornell.edu/rules/frcp/ (civil court procedures)
http://web.mit.edu/publicdisputes/pdr/evolution.pdf (evolution of dispute resolution)
https://www.ncjrs.gov/ (National Criminal Justice Reference Service)
http://www.ncjj.org/ (National Center for Juvenile Justice)
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