August 1, 2007 - weight: 325 lbs.
January 30, 2008 - weight: 285 lbs.
40 lbs. down, 130 lbs. to go. Yay me.
a. ;)
Wednesday, January 30, 2008
Tuesday, January 8, 2008
I do not now, nor have I ever, had any problem with either: (1) the United States having interests overseas or (2) going overseas to defend/protect those interests.
What I *do* have a problem with is the hypocritical half-truths that are used to mask the real reasons we go in, when we *do* go overseas to defend/protect those interests.
For example: the public was "sold" on going in to Somalia because we were supposedly going in for "humanitarian" purposes...those nasty warlords were being so mean to the people, and whatnot. What a bunch of hooey. We went in to Somalia because British Petroleum and Amoco own the vast majority of the mineral rights and/or oil production leases in Somalia, and couldn't extract their oil without interference by the nasty warlords' infighting.
I have no problem with going in to protect BP and Amoco, but let's say that's what we're doing. If we were really going to go in somewhere for humanitarian reasons, we should have gone in to the Sudan, where the human rights violations then (and now) were at least 10 times worse than anything going on then in Somalia. But we didn't. Why? Simple: no oil in the Sudan, and even if there were oil there, the topography of the land would make extraction of said oil extremely difficult.
As Gordon Sinclair pointed out in his "One Canadian's View of America", America has gone in to numerous countries to help in the aftermath of disaster. I have no problem with our doing that, either. I do have a problem, however, with our charging those countries (particularly those countries in the Third World) for our help. Aren't we the richest country? Can't we afford to help out countries that aren't as well off? Isn't that how charity is supposed to work? If a country has just sustained a disaster and needs help to rebuild infrastructure afterward, doesn't it stand to reason that they can't afford to pay us back for the help we give? Why don't we just write it off? Put down the expense as part of the cost of maintaining good will?
As for America being the world's watchdog, I think that our role would be much less necessary if the United Nations were in a position to take over that role. But in order for that to happen, we'd have to let the UN take on a lot more responsibility, and we've never, as a country, been willing to do that - perhaps because if we did, we might have to face our own shortcomings. For example, we've still not paid the fines imposed upon us by the International Court of Justice for the mining of Nicaragua's harbors. Let the UN have some teeth. If we're in the wrong, we ought to admit it, and take our knocks like everyone else.
If we stopped being hypocritical and admitted when we make mistakes, the other countries of the world might actually see us in a better light. People elsewhere might very well still hate us for things done in the past, but they might at least have some respect for us going forward.
a.
(Originally written in July 2004)
What I *do* have a problem with is the hypocritical half-truths that are used to mask the real reasons we go in, when we *do* go overseas to defend/protect those interests.
For example: the public was "sold" on going in to Somalia because we were supposedly going in for "humanitarian" purposes...those nasty warlords were being so mean to the people, and whatnot. What a bunch of hooey. We went in to Somalia because British Petroleum and Amoco own the vast majority of the mineral rights and/or oil production leases in Somalia, and couldn't extract their oil without interference by the nasty warlords' infighting.
I have no problem with going in to protect BP and Amoco, but let's say that's what we're doing. If we were really going to go in somewhere for humanitarian reasons, we should have gone in to the Sudan, where the human rights violations then (and now) were at least 10 times worse than anything going on then in Somalia. But we didn't. Why? Simple: no oil in the Sudan, and even if there were oil there, the topography of the land would make extraction of said oil extremely difficult.
As Gordon Sinclair pointed out in his "One Canadian's View of America", America has gone in to numerous countries to help in the aftermath of disaster. I have no problem with our doing that, either. I do have a problem, however, with our charging those countries (particularly those countries in the Third World) for our help. Aren't we the richest country? Can't we afford to help out countries that aren't as well off? Isn't that how charity is supposed to work? If a country has just sustained a disaster and needs help to rebuild infrastructure afterward, doesn't it stand to reason that they can't afford to pay us back for the help we give? Why don't we just write it off? Put down the expense as part of the cost of maintaining good will?
As for America being the world's watchdog, I think that our role would be much less necessary if the United Nations were in a position to take over that role. But in order for that to happen, we'd have to let the UN take on a lot more responsibility, and we've never, as a country, been willing to do that - perhaps because if we did, we might have to face our own shortcomings. For example, we've still not paid the fines imposed upon us by the International Court of Justice for the mining of Nicaragua's harbors. Let the UN have some teeth. If we're in the wrong, we ought to admit it, and take our knocks like everyone else.
If we stopped being hypocritical and admitted when we make mistakes, the other countries of the world might actually see us in a better light. People elsewhere might very well still hate us for things done in the past, but they might at least have some respect for us going forward.
a.
(Originally written in July 2004)
Friday, January 4, 2008
Civil Procedure 101 - Part 3
Continuing series in an effort to live up to the blog's name. Feel free to use any information contained herein at will.
Disclaimer: for informational purposes only; not to be construed as actual legal advice pertaining to any particular situation.
Subpoenas
A subpoena is a written order issued by an attorney to a witness to appear to give testimony, and/or bring documents to trial or produce documents to the attorney issuing the subpoena. If documents are obtained from a non-party witness, the attorney who obtained them typically will produce them to the other parties in the case.
Costs
In a civil matter, the parties bear the cost of their own witnesses and discovery. As a practical matter, this usually means that the attorney (or, on the defense side, the defendant's insurance company) fronts the cost.
For example, in a motor vehicle accident case, the plaintiff (the person who was injured and filed the complaint) is usually represented by an attorney (but not always - you can always represent yourself). The attorney typically fronts the costs of the litigation, and either bills the plaintiff on a monthly or quarterly basis, or takes the costs out of the settlement at the end.
The defendant, on the other hand, will almost always have car insurance. The insurance company will arrange for representation of the defendant as part of his insurance coverage (the defendant can also arrange to have outside counsel, at his own expense). The insurance company is usually billed by the attorney they retain (many insurance defense attorneys are in-house, or work in "captive" law firms, owned by the insurer) for the costs as they go, and usually an insurance defense attorney will get approval of any costs they need to incur, beyond every-day items like photocopies and postage.
Pre-trial and Scheduling Conferences
A pre-trial conference in a civil matter is a meeting of the parties, their attorneys, and the judge. It takes place in the courtroom, and usually the attorneys and the judge work out a trial schedule, and discuss any pre-trial motions (such as motions in limine) that have to be decided before trial can go forward. The parties are usually present in the event that settlement is discussed, so that if the case can be settled, they can agree to the settlement's terms; then the court can approve the settlement, and the case doesn't have to go forward to trial (or can go forward, but with fewer issues to be decided). An attorney always has to have his client's approval of a settlement offer, before the attorney can accept it, so having the client present saves time.
A pre-trial conference differs from a scheduling conference. A scheduling conference happens soon after all parties have filed their initial documents (complaint and answer, etc), and sets certain deadlines and dates for the progress of the case as it goes forward. After the conference, the court usually issues a scheduling order to document those dates. Once that has been done, a scheduling order can be amended, but usually that requires a motion. A pre-trial conference, on the other hand, usually happens about 2-4 weeks before the trial date.
a. ;)
Disclaimer: for informational purposes only; not to be construed as actual legal advice pertaining to any particular situation.
Subpoenas
A subpoena is a written order issued by an attorney to a witness to appear to give testimony, and/or bring documents to trial or produce documents to the attorney issuing the subpoena. If documents are obtained from a non-party witness, the attorney who obtained them typically will produce them to the other parties in the case.
Costs
In a civil matter, the parties bear the cost of their own witnesses and discovery. As a practical matter, this usually means that the attorney (or, on the defense side, the defendant's insurance company) fronts the cost.
For example, in a motor vehicle accident case, the plaintiff (the person who was injured and filed the complaint) is usually represented by an attorney (but not always - you can always represent yourself). The attorney typically fronts the costs of the litigation, and either bills the plaintiff on a monthly or quarterly basis, or takes the costs out of the settlement at the end.
The defendant, on the other hand, will almost always have car insurance. The insurance company will arrange for representation of the defendant as part of his insurance coverage (the defendant can also arrange to have outside counsel, at his own expense). The insurance company is usually billed by the attorney they retain (many insurance defense attorneys are in-house, or work in "captive" law firms, owned by the insurer) for the costs as they go, and usually an insurance defense attorney will get approval of any costs they need to incur, beyond every-day items like photocopies and postage.
Pre-trial and Scheduling Conferences
A pre-trial conference in a civil matter is a meeting of the parties, their attorneys, and the judge. It takes place in the courtroom, and usually the attorneys and the judge work out a trial schedule, and discuss any pre-trial motions (such as motions in limine) that have to be decided before trial can go forward. The parties are usually present in the event that settlement is discussed, so that if the case can be settled, they can agree to the settlement's terms; then the court can approve the settlement, and the case doesn't have to go forward to trial (or can go forward, but with fewer issues to be decided). An attorney always has to have his client's approval of a settlement offer, before the attorney can accept it, so having the client present saves time.
A pre-trial conference differs from a scheduling conference. A scheduling conference happens soon after all parties have filed their initial documents (complaint and answer, etc), and sets certain deadlines and dates for the progress of the case as it goes forward. After the conference, the court usually issues a scheduling order to document those dates. Once that has been done, a scheduling order can be amended, but usually that requires a motion. A pre-trial conference, on the other hand, usually happens about 2-4 weeks before the trial date.
a. ;)
Civil Procedure 101 - Part 2
In my continuing efforts to live up to the name of the blog. Feel free to use the information provided.
Disclaimer: should not be taken as actual legal advice in any particular situation.
Motions
Motions to Dismiss
In addition to the motion to dismiss for failure to state a claim, there are other motions to dismiss: for lack of jurisdiction, for improper venue, for failure to implead all necessary parties, etc.
In any motion to dismiss, you assume the allegations in the Complaint are true, and you have to demonstrate that there is some other factor that the plaintiff failed to include that impacts the court's ability to hear the case.
Motion for Summary Judgment
Similar to, but completely different from, a motion to dismiss, the motion for summary judgment can also end the case. Where a motion to dismiss has no impact on the defendant, however, a motion for summary judgment is a "win" for the party that succeeds. A motion for summary judgment can be brought by any party. It is usually not filed until after the Defenadnt has filed an Answer, but can be brought at any time.
In a MfSJ, the party filing the motion (the "moving party") sets out the "undisputed facts" and tries to demonstrate that there are no facts still in dispute that need resolution, the only issues are issues of law. If that is the case, the judge can decide the case, or a specific portion of the case, without a trial by jury.
A MfSJ can be filed seeking resolution of just the defendant's liability, and there can then be a jury trial on the amount of damages (this happens a lot, especially in negligence cases where the fact that the defendant caused the plaintiff's injuries is clear, but where facts regarding the medical treatment and actual damages are not).
Motions in Limine
Motions in Limine are filed to ask the court to set a limit, usually as to what sort of evidence can and cannot be introduced at trial.
Motion to Intervene
A person who is not a party, but who has an interest in a case that they want resolved or protected by the court, can file a motion to intervene. If granted, they become an intervening plaintiff. An example would be: in an motor vehicle accident case, a medical insurer who pays benefits for the plaintiff's accident-related injuries is entitled to recover the amount paid out if the plaintiff's claim against the defendant is successful; this is called a "subrogation lien". If the subrogated insurer is not named as a party (they're supposed to be, but mistakes happen), they can file a motion to intervene in the case in order to protect their lien.
Those are the most common types of motions. More later!
a. ;)
Disclaimer: should not be taken as actual legal advice in any particular situation.
Motions
Motions to Dismiss
In addition to the motion to dismiss for failure to state a claim, there are other motions to dismiss: for lack of jurisdiction, for improper venue, for failure to implead all necessary parties, etc.
In any motion to dismiss, you assume the allegations in the Complaint are true, and you have to demonstrate that there is some other factor that the plaintiff failed to include that impacts the court's ability to hear the case.
Motion for Summary Judgment
Similar to, but completely different from, a motion to dismiss, the motion for summary judgment can also end the case. Where a motion to dismiss has no impact on the defendant, however, a motion for summary judgment is a "win" for the party that succeeds. A motion for summary judgment can be brought by any party. It is usually not filed until after the Defenadnt has filed an Answer, but can be brought at any time.
In a MfSJ, the party filing the motion (the "moving party") sets out the "undisputed facts" and tries to demonstrate that there are no facts still in dispute that need resolution, the only issues are issues of law. If that is the case, the judge can decide the case, or a specific portion of the case, without a trial by jury.
A MfSJ can be filed seeking resolution of just the defendant's liability, and there can then be a jury trial on the amount of damages (this happens a lot, especially in negligence cases where the fact that the defendant caused the plaintiff's injuries is clear, but where facts regarding the medical treatment and actual damages are not).
Motions in Limine
Motions in Limine are filed to ask the court to set a limit, usually as to what sort of evidence can and cannot be introduced at trial.
Motion to Intervene
A person who is not a party, but who has an interest in a case that they want resolved or protected by the court, can file a motion to intervene. If granted, they become an intervening plaintiff. An example would be: in an motor vehicle accident case, a medical insurer who pays benefits for the plaintiff's accident-related injuries is entitled to recover the amount paid out if the plaintiff's claim against the defendant is successful; this is called a "subrogation lien". If the subrogated insurer is not named as a party (they're supposed to be, but mistakes happen), they can file a motion to intervene in the case in order to protect their lien.
Those are the most common types of motions. More later!
a. ;)
Civil Procedure 101 - Part 1
In the interests of living up to the name of the blog. Feel free to borrow liberally.
Disclaimer: For informational purposes only. Should not be construed as legal advice for any particular situation.
Complaint
Litigation is started by the filing of the complaint. In most cases, settlement negotiations have preceeded the filing, and the other side is aware that it may be coming, but this is not always true. The Complaint sets out who the parties are, why the court has jurisdiction over the case, what the basic facts are, what rules/laws were violated, and what kind of relief the plaintiff is seeking. The Complaint is accompanied by a Summons, a document which formally orders the defendant to respond within a certain time frame.
Motions
There are a lot of different types of motions. In the beginning of the case, the motion you're most likely to see is a "motion to dismiss for failure to state a claim" (in Federal court, this is based on Federal Rule of Civil Procedure 12(b)(6), in state courts, the rule numbers vary). In this type of motion, the defendant asserts that even if you assume that everything in the Complaint is true, there is still no claim made upon which the plaintiff can obtain relief from the court.
The example that I've heard most often is kind of silly, but it illustrates the point: Let's say I have a cat that I have named Eliza Doolittle. If I sue you for the wrongful death by murder of Eliza Doolittle, you could file a motion to dismiss the lawsuit, on the grounds that even if you take everything in the Complaint as true, the wrongful death by murder of a cat is not a claim for which the court can give me any sort of relief.
Answer
The Answer to the Complaint usually comes after the motion to dismiss (especially in federal court; in state courts, the motion and answer are sometimes in the same document). In the answer, the defendant responds to the allegations of the complaint, and sets out any affirmative defenses that may be available. For example, if the claim was filed after the deadline set by the statute of limitations, the case can be dismissed, but it's an affirmative defense that must be raised by the defendant.
Counterclaims, cross-claims, and third-party claims
A defendant may also have related claims that he or she wants to raise as well. If the defendant's claims are against the plaintiff, they're called "counterclaims", and usually involve some sort of set-off (but not always). If one defendant has claims against another defendant, it's called a "cross-claim". This is usually something along the lines of a claim for contribution. If a defendant has a claim that's related to the plaintiff's claim, but it's against a person who is not yet a party to the action, the defendant can file a third-party complaint against the person to bring them in.
Discovery
Despite what you may have seen on television, there are not supposed to be any surprises at trial. In the discovery process, each side is supposed to turn over to the other side the evidence they intend to use at trial. There are certain discovery tools that are used to do this: Requests for Admissions, Depositions, Interrogatories, Requests for Production of Documents, and Subpoenas. The responses to discovery requests are generally treated as testimony, even though the jury may not get to hear it; for example, interrogatory answers are given under oath, but the jury may never hear the answers read aloud in court.
Affidavits
These are documents in which an individual swears under oath before a notary to certain facts set out in the document. Usually these are attached to a motion.
a. ;)
Disclaimer: For informational purposes only. Should not be construed as legal advice for any particular situation.
Complaint
Litigation is started by the filing of the complaint. In most cases, settlement negotiations have preceeded the filing, and the other side is aware that it may be coming, but this is not always true. The Complaint sets out who the parties are, why the court has jurisdiction over the case, what the basic facts are, what rules/laws were violated, and what kind of relief the plaintiff is seeking. The Complaint is accompanied by a Summons, a document which formally orders the defendant to respond within a certain time frame.
Motions
There are a lot of different types of motions. In the beginning of the case, the motion you're most likely to see is a "motion to dismiss for failure to state a claim" (in Federal court, this is based on Federal Rule of Civil Procedure 12(b)(6), in state courts, the rule numbers vary). In this type of motion, the defendant asserts that even if you assume that everything in the Complaint is true, there is still no claim made upon which the plaintiff can obtain relief from the court.
The example that I've heard most often is kind of silly, but it illustrates the point: Let's say I have a cat that I have named Eliza Doolittle. If I sue you for the wrongful death by murder of Eliza Doolittle, you could file a motion to dismiss the lawsuit, on the grounds that even if you take everything in the Complaint as true, the wrongful death by murder of a cat is not a claim for which the court can give me any sort of relief.
Answer
The Answer to the Complaint usually comes after the motion to dismiss (especially in federal court; in state courts, the motion and answer are sometimes in the same document). In the answer, the defendant responds to the allegations of the complaint, and sets out any affirmative defenses that may be available. For example, if the claim was filed after the deadline set by the statute of limitations, the case can be dismissed, but it's an affirmative defense that must be raised by the defendant.
Counterclaims, cross-claims, and third-party claims
A defendant may also have related claims that he or she wants to raise as well. If the defendant's claims are against the plaintiff, they're called "counterclaims", and usually involve some sort of set-off (but not always). If one defendant has claims against another defendant, it's called a "cross-claim". This is usually something along the lines of a claim for contribution. If a defendant has a claim that's related to the plaintiff's claim, but it's against a person who is not yet a party to the action, the defendant can file a third-party complaint against the person to bring them in.
Discovery
Despite what you may have seen on television, there are not supposed to be any surprises at trial. In the discovery process, each side is supposed to turn over to the other side the evidence they intend to use at trial. There are certain discovery tools that are used to do this: Requests for Admissions, Depositions, Interrogatories, Requests for Production of Documents, and Subpoenas. The responses to discovery requests are generally treated as testimony, even though the jury may not get to hear it; for example, interrogatory answers are given under oath, but the jury may never hear the answers read aloud in court.
Affidavits
These are documents in which an individual swears under oath before a notary to certain facts set out in the document. Usually these are attached to a motion.
a. ;)
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