- Barbara - it is fun to tell the Judge in his or her court to please refrain from instructing the Jury as to the law for the power of determine the case is in the hands of the Jury - the Judge is just bystander.Mass. does not have the power to limit any free speech - that is outside the power of any State legislature, executive, or court - the First amendment can not be overridden by State or Judaical act - only a Article V amendment can change the Constitution. IMO Lawyers accept the LIBERAL PROGRESSIVE belief that the Constitution is just a outline and can be reinterpreted as needed by the legislature or the Courts. That premise is false and can not stand serious debate based on facts and the ACTUAL WORDS IN THE 1787 MEANINGS can set the base.Show where there is any power to alter meaning - expand clauses - create Judicial review in the following case - read all the words to alter meaning and twist clauses - but find the words in Article III or anywhere else that permits the decision?Court gave itself Judicial review powers over the legislatures and the executives.Gave the courts and the legislature the power to redefine Article I section 8 using clauses and expanding their powers outside the stated limits. The Necessary and Proper clause was expanded.The Supreme court has even gone to dicita from previous cases and imported it to a new case as a precedent - not quite correct . . This is where the Supreme court brought in Hamilton's paper on Manufacturing which was never mentioned in any case a evidence or fact.
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- Are you saying that tort reform would prevent an attorney from representing his client on a contingency fee basis? As the law stands in Nevada, the prevailing side would get fees and costs if by agreement or statute. One of the statutory provisions in awarding fees and costs is whether or not the plaintiff accepts an offer of judgment that would be equal to or greater than the jury award. The client is always apprised of this.Would the federal tort reform automatically award fees and costs to the prevailing party? That would certainly put a chill on anyone filing a lawsuit under those circumstances.
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- I was involved with a rather sizable partnership dispute and the agreement called for losing party to pay the costs of all suits and fees - well - surprise the Judge can simply FIND that both sides had a point so each should pay their won costs. That case was in Nevada.I have also had mortgages and trust deeds on property where if suit for foreclosure was required to secure payment or the property all legal costs would be added to the amount due. Well the Judge just put a prevailing [In his Opinion] limit on hourly fees that does not meet the fees paid.The moral of the story is that Judges are attorney's and they want to make sure the attorneys get paid so they divide the bills between the parties so that the attorneys are not left holding the bag for both costs and fees.
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- I can personally attest to everything Barbara has said. If a judge screws your client, refuses to follow the law, or acts in appropriately, you just have to take it. There is little oversight unless a judge ends up with drugs or a woman in his bed.Oh and all y'all posting comments about lawsuits who have no experience in being a lawyer are ignorant parrots of what you've seen on tv or read. You have no idea what it's really like to practice law, what most lawyers do on a daily basis to help people, or what rules are in place already for "frivolous" cases.
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- You make assumptions that show you to be a typical trained adversary - if you lose on the facts then insult those you debate. That is a lost premise and will fail in every basic debate class. Straw men and red herrings are but stalls and failing attempts to confuse - that method does not work well and will not serve you well in your practice.Maybe some of us have more time in the court rooms than you will have before you retire . . and maybe we are business people that have paid many millions in fee and costs. Believe me some of us have learned more than any law school can teach. Ass-u-me is always a clear and present danger."FRIVOLOUS" cases being punished is not a real effective tool - there are more soft tissue suits filed each day that are fabricated than nay Lawyer will admit. Insurance companies will pay slip and fall every time.
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- Again you call names . . lot of luck . . actually I know CEO s of Insurance companies, and in fact one company I was an Executive owned several Insurance companies. Now as to your personal attack and just plain opinion - I have not attacked individual Attorneys , I have pointed out the issues with the system . .What do law schools teach? The answer to this question is up for grabs, in this post-formalist, post-realist, interdisciplinary era. And the answer to the questions of what law schools should teach is intimately connected to a much bigger question, “What should the law become?” Some believe that the courts have been and should continue to be the battleground on which the great political issues of the day are resolved. Ultimately, the aim of legal education then would be to produce lawyers who will plan the litigation strategies that will transform society and produce the rhetoric that will empower sympathetic judges and confuse those who are not. And what about judges and academics? They too are warriors, who wage the war with the opinion or the article, rather than the brief or the motion. This is a frightening future—because law that is a battleground is unlikely to achieve the rule of law—the very great goods of predictability, certainty, and protection from arbitrary power that only formally constrained legal decision making can provide.Many of the top law schools teach the principle of SOCIAL JUSTICE and how the law can be used to correct even the unequal distribution of wealth in the society. If you research enough you will find many article on that particular issue.The System is flawed just as was the Star Chambers of old. As you said above - Judges do all kinds of bad things but no one takes them on . . Where does a citizen go for Justice after being mistreated by a bad Judge and a bad decision - to the appeals court where other Judges will review the work of an associate . . Yes I have won in this instance but my did it take years and a lot of money. The Judge was sanctioned by the appellant panel but he is still on the bench harming society with bad law.I am not a Lawyer hater - except maybe when they become Politicians . . for the vast majority as you know are redistribution supporting far left LIBERALS. Just look at the trial lawyers political donations. Tort reform is a must and at the State level - all civil courts should be run like small claims courts - present the evidence from both sides - take witness testimony - the Judge or the Jury then renders a decision on the merits and the facts on hand.No - precedent cases are required . . for all they do is increase costs and bring confusion to the real issues being questioned . . Case theory is just that theory and can not represent 100% of the issues of the day so dismiss it as immaterial. The law is in statues and cases do not have the power to change the Constitution at the State or Federal level; nor do they have the power to change statutes. They are therefor just OPINIONS and as you know OPINIONS are never findings of facts.
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Principles of Liberty
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- "It may not be amiss, here, Gentlemen, to remind you of the good old rule that on questions of fact, it is the province of the jury; on questions of law it is the province of the court to decide. But it must be observed that by the same law which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this and on every other occasion, however, we have no doubt you will pay that respect which is due to the opinion of the court: for, as on the one hand, it is presumed, that juries are the best judges of facts, it is, on the other hand, presumable that the court is the best judge of law. But still both objects are lawfully, within your power of decision." Chief Justice John JayU.S. Supreme Court
Georgia v. Brailsford, Powell & Hopton, 3 U.S. 3 Dall. 1 1 (1794)
http://supreme.justia.com/cases/federal/us/3/1/case.html
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- For more than six hundred years – that is, since Magna Carta, in 1215 – there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws.
Unless such be the right and duty of jurors, it is plain that, instead of juries being a “palladium of liberty” – a barrier against the tyranny and oppression of the government – they are really mere tools in its hands, for carrying into execution any injustice and oppression it may desire to have executed.
But for their right to judge the law, and the justice of the law, juries would be no protection to an accused person, even as to matters of fact; for, if the government can dictate to a jury any law whatever, in a criminal case, it can certainly dictate to them the laws of evidence. That is, it can dictate what evidence is admissible, and what inadmissible, and also what force or weight is to be given to the evidence admitted. And if the government can thus dictate to a jury the laws of evidence, it can not only make it necessary for them to convict on a partial exhibition of the evidence rightfully pertaining to the case, but it can even require them to convict on any evidence whatever that it pleases to offer them.
That the rights and duties of jurors must necessarily be such as are here claimed for them, will be evident when it is considered what the trial by jury is, and what is its object.
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- "Colonial rebellions throughout the modern world have been acts of shared political imagination. Unless unhappy people develop the capacity to trust other unhappy people, protest remains a local affair easily silenced by traditional authority. Usually, however, a moment arrives when large numbers of men and women realize for the first time that they enjoy the support of strangers, ordinary people much like themselves who happen to live in distant places and whom under normal circumstances they would never meet. It is an intoxicating discovery. A common language of resistance suddenly opens to those who are most vulnerable to painful retribution the possibility of creating a new community. As the conviction of solidarity grows, parochial issues and aspirations merge imperceptibly with a compelling national agenda which only a short time before may have been the dream of only a few. For many American colonists this moment occurred late in the spring of 1774." T.H. Breen (don't remember which one of his books this comes from)"It is never to be expected in a revolution that every man is to change his opinion at the same moment. There never yet was any truth or any principle so irresistibly obvious that all men believed it at once. Time and reason must cooperate with each other to the final establishment of any principle; and therefore those who may happen to be first convinced have not a right to persecute others, on whom conviction operates more slowly. The moral principle of revolutions is to instruct, not to destroy." – Thomas Paine, First Principles of Government - July, 1795
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