Lawsuits

SOUTHEAST TENNESSEE LEGAL SERVICES

 

Home
Up

 

Answers from  LawBytes Logo
These matters are addressed below:

What are the differences between civil and criminal cases?

Paying Court Costs

Mediation

What is a deposition?

What You Should Know About Being a Witness

Subpoenas

Jury Service

What To Do About Wage Garnishment

What are the differences between civil and criminal cases?

Our legal system recognizes two different kinds of legal cases: civil and criminal. A civil case is one in which a person who has a complaint may bring a legal action to protect his or her interests or collect money damages. The person claiming relief is called a plaintiff, petitioner, or complainant. The person against whom relief is sought is called a defendant or respondent. In a criminal case, the federal, state, or municipal government brings the action in the name of its citizens against a defendant who has been accused of committing a crime. Thus, criminal cases are prosecuted on behalf of the people of the State of Tennessee or all U.S. citizens for example. The people are represented by a prosecuting attorney such as the local county District Attorney General, the Attorney General for the State of Tennessee, or the United States Attorney General.

In a criminal case, the defendant is charged with a crime against society such as murder, burglary, robbery, or theft. The legal action is initiated by the prosecutor who decides whether to bring charges and what charges to bring. In a criminal trial, a prosecutor must prove the defendant's guilt beyond a reasonable doubt. While this does not mean proof beyond all possible doubt, it is a heavier burden of proof than required in civil cases.

In a civil case, it is the individual who feels wronged or injured (the plaintiff) who decides whether to file a civil suit. When damages are sought, the plaintiff decides how much to demand in damages, although the judge or jury will decide whether and how much a plaintiff can recover. In a civil case, the plaintiff cannot seek to have a defendant jailed unless the defendant has violated a court order.

In a civil case, anyone with knowledge of facts relevant to the case may generally be required to testify as a witness in court, and any witness has a right to appear with an attorney. In a criminal case, the defendant is not required to testify but still has the right to legal counsel. Even if the police or sheriff merely want to question someone before any criminal charges are filed, that person has the right to consult with an attorney before speaking to the police. If he or she cannot afford an attorney, the court will appoint one free of charge except in the case of certain minor offenses such as traffic violations when the prosecutor is not seeking time in jail as punishment.

If you are involved in either a civil or criminal case, make sure you obtain legal advice. Do not hesitate to contact an attorney when you need professional help.

Paying Court Costs

You are not denied the right to use the courts simply because you cannot afford the court costs. If you cannot pay these costs, you may still sue and defend yourself in civil actions including divorces. Anyone can apply to the court to proceed "In Forma Pauperis." Although that phrase means "In The Form of a Pauper," you don't have to be completely destitute or without funds to use this procedure.

Ask the clerk at the courthouse for the form called the Petition and Order to Proceed in Forma Pauperis form. The form is one printed page. If the court doubts you are telling the truth about your finances, it can require written testimony, or hold a hearing; however, this is not usually needed. Fill the form out and return it to the clerk. If you cannot afford the required fees, the court will let you go ahead in the lawsuit without paying the court costs. The court may require you to pay part of the fees and waive the remaining fees.

If you and your spouse are together on the same case and you are both trying to have the fees waived, the petition should contain both your names and be signed by both of you.

Fees which can be waived include: filing fees, litigation tax, jury fees, witness fees, and Sheriff's Office fees for serving summons. In some cases you can also have fees waived in the appeals court. If you are not sure, ask the clerk of the court.

What has been said so far applies to civil suits. If you are charged with a crime, the government pays all court costs unless you are convicted. If you cannot pay an attorney, you will be provided with an attorney to represent you at no cost to you, in most criminal cases.

There is no exact definition of how poor you must be to have fees waived in civil suit. Courts have said that you need not be on welfare, but it must be more than just inconvenient for you to pay the fees.

If you don't have the money to pay fees now, but could save it up over a period of time, you may still proceed In Forma Pauperis.

If you have already paid some fees, and then don't have enough money to pay the rest, you can apply for waiver of the later fees. The fact that you had enough money in the past does not affect your right to proceed In Forma Pauperis in the future.

Even though you may begin your civil lawsuit without paying court costs, you may have to pay court costs later. For example, in a divorce or dissolution action, you may file for your divorce without paying court costs, but court costs may have to be paid at some point. Filing fees, litigation tax, and other costs that are usually paid up front will be charged as court costs when the case is over. These costs are usually charged to the losing party if the case is decided by the judge or jury. If the case is settled by agreement, the agreement will state who pays which fees.

Mediation

Mediation is a non-adversarial process for resolving disputes. It is an alternative to going to trial, and is particularly useful if the parties to the dispute want to carry on a relationship in the future. An impartial person, called a mediator, assists the parties in identifying common goals and interests. With the identification of common interests or concerns, the parties can begin to find areas in which they can come together. Agreement on small issues often leads to agreement on larger issues. The key to the mediation process is that the parties are communicating and making their own decisions -- there is no judge or other third party to make the decisions. The mediators are present only to help the parties communicate their ideas, and to offer options which will minimize the possibility of future disputes.

Mediation is appropriate when both parties agree to use the process to resolve their differences. A good example are parents who are divorcing and who want to discuss a parenting plan for their children. Mediation is not appropriate when there is a significant imbalance of power between the parties. This imbalance can be caused by one party having significantly more money or resources than the other, or when recent abuse has occurred in the relationship.

Almost any sort of dispute can be mediated, if both parties agree to discuss the issues. Commonly mediated disputes include divorce issues such as child custody, visitation, support and property division; landlord/tenant issues and neighborhood disputes. In recent years, major corporations and insurance companies have begun to use mediation as an alternative resolution process in all kinds of cases.

The mediation process itself is structured so that persons unfamiliar with the process will quickly be made comfortable. An explanation of the process is given, and ground rules are set forth. One of the ground rules states that each party must give the other time to speak without interruption. This guarantees that both parties will have equal time to tell their side of the story. The parties are told that the process is confidential, and that full disclosure is necessary for the parties to reach an agreement. All notes taken during the mediation are confidential and cannot be used at trial later. If the parties agree to the ground rules, an agreement to mediate is signed. Each party is asked what he/she would like to see resolved during the process. Both parties then have the opportunity to tell their side of the story, and their feelings about the situation. The parties then begin to work through those issues they want to resolve. While the parties are negotiating, the mediators take notes, and reframe statements to ensure that both parties understand each statement as it is made. The mediator's goal is to help the parties realize their mutual interests and assist them in determining ways to work together.

If it becomes apparent that the process is not working, it can be terminated by the mediators or by the parties at any time. The parties are free to return to court or to try another means of dispute resolution.

Mediation is generally less costly than going through the court process, and disputes are often resolved more quickly. Although mediators assist clients through the process, it is advised that an attorney be involved from the beginning of the case to review the proposed agreement and to file the completed agreement with the court, if necessary. Mediators cannot give legal advice, and in many cases, during the course of the process, it is necessary to request legal advice. It may become necessary for other professionals, such as financial planners, to become involved. When this situation arises, the mediator will request that the clients consult with their experts and return with the appropriate documentation so that full disclosure can be made. Disclosure of all information is necessary to develop a fair and long lasting agreement.

For more information concerning the availability of mediation services in your community, you may contact your local bar association, the Tennessee Bar Association (800-899-6993) or consult your local yellow pages under the topic of "Mediation".

What is a Deposition?

 A deposition is one of the many tools lawyers use to gather information before a trial. In fact, in many ways, a deposition is like a trial. If you are called or subpoenaed for a deposition, you are being called to testify about your personal knowledge of facts that relate to a lawsuit.

You can expect the following people to be present at a deposition: first, an officer of the court (usually a court reporter) who is authorized to give oaths; second, lawyers who represent either side of the lawsuit; and, third, the parties to the lawsuit if they choose to attend. You may also have an attorney to appear with you at your deposition.

At your deposition, you can first expect to be sworn in by the court reporter or court officer. The oath that you will be given is the same oath to tell the truth that witnesses are given in any trial. After taking the oath, the attorney who requested the deposition will then begin to ask you questions concerning your knowledge of the facts involved in the lawsuit. You are under an obligation to answer these questions truthfully and to the best of your knowledge, unless you feel that by answering a question you may be exposing yourself to criminal liability. In that case, you may refuse to answer the question on the grounds that your answer may tend to incriminate you. Speak clearly so that the court reporter can understand you and accurately record your testimony. If one of the lawyers makes an objection during your testimony, stop talking and wait for further instruction as to whether you should answer the question.

Within a week to ten days after the deposition is over, you will have the opportunity to review a written transcript of your testimony. It is important that you review your deposition carefully and make sure that there are no errors. If you are called to be a witness at trial and your testimony at trial differs from your testimony in the deposition, your credibility as a witness may be injured. Once you have read your testimony and corrected any inaccuracies, you will then be asked to sign your deposition. You are always entitled to keep a copy of your deposition for reference, if necessary.

What You Should Know About Being a Witness

If you are called to be a witness in a trial, there are several things you should know. The most important thing is to remember that you are sworn to tell the truth. Even if the truth is not to the advantage of the person you're testifying for, tell the truth anyway. Don't try to stop and figure out if your answer is going to help or hurt one side or the other. Just answer the questions to the best of your ability.

Don't memorize your story. Juries may not believe a witness whose story seems memorized or rehearsed. Again, just tell things the way you remember them. Don't exaggerate. Stop instantly if the judge interrupts you, or if the other attorney objects. Don't try to sneak in an answer.

Think carefully about the questions you're asked. Listen carefully. The other attorney may be very polite as he cross-examines you, but his job is to question your testimony or your reliability as a witness. So make certain you understand what he asks before your answer. Have it repeated if you need to. Then give a thoughtful answer. Don't permit yourself to be rushed into answering but on the other hand don't take so long that it seems as if you are trying to make up an answer.

When you are being questioned, explain your answers if necessary. This is better than a simple "yes" or "no", you have a right to explain the answer. Answer simply and directly only the question asked, then stop. Don't volunteer any information that isn't asked. There are trick questions you may be asked. If you answer them the way the other attorney hopes you will, he can make your answer sound bad to the jury. "Have you talked to anybody about this case." If you say "no", the jury knows you are not telling the truth because good lawyers always talk to a witness before going to court. If you say "yes", the lawyer may try to imply that you were told what to say. This is one of those questions that won't take a simple "yes" or "no". The best thing is to tell the truth--that you've talked to the lawyer, the person involved in the suit, the police or whoever--and that you were asked to tell what the facts of the case were.

Don't lose your temper under cross-examination. Testifying for any length of time is tiring. You may begin to experience fatigue--feeling tired, cross, nervous or angry. You may start to give careless answers and feel yourself willing to say anything just to get off the witness stand. If you feel any symptoms of fatigue just recognize that they're there and work at being as alert and attentive as possible.

Your appearance and the way you act in court are important. The judge will tell the jury (and will follow this advice himself) that they can judge your honesty based on your actions and attitude while you testify. You are expected to show respect for the court and for the legal process you are participating in. Wear clean clothes and dress conservatively. Don't chew gum. Stand up straight while you take the oath. Pay attention and say "I Do" clearly. Sit up straight in the witness chair, and always speak loudly enough so that everyone in the room can hear you.

Be serious about what you are doing and don't joke or talk about the case anywhere in the courthouse. Look at the members of the jury when you talk and try to speak to them just as you would to any friend or neighbor.

Remember to keep calm and tell the truth to best of your ability. Be as open and as serious as you can about what you are doing.

Subpoenas

A subpoena is a written court order requiring the attendance of the person named in the subpoena at a specified time and place for the purpose of being questioned under oath concerning a particular matter which is the subject of an investigation, proceeding, or lawsuit. A subpoena is issued by someone authorized by law, usually by the attorney for a party to a lawsuit, but very often issued by someone authorized to conduct an investigation such as the State Attorney General or local District Attorney.

In addition to requiring the attendance of a person, a subpoena may also require the production of a paper, document, or other object relevant to the particular investigation, proceeding, or lawsuit. Usually a subpoena directs that the person named appear and give testimony in open court. However, certain subpoenas require the person to appear before a person or tribunal other than a court, such as a grand jury.

A subpoena will identify the person who issued the subpoena as well as the general nature of the proceeding to which it relates, although not necessarily the precise subject matter of the proceeding. If you are served with a subpoena, you cannot ignore it. If you do, you risk being held in contempt of court, even if the subpoena was not signed by a judge.

When you are served with a subpoena, you must do one of two things. You must either comply with the subpoena or, if you have an objection, you must apply to the proper court for permission to vacate or modify the subpoena. Such an application would ordinarily require the services of an attorney.

In considering what to do if you are served with a subpoena, you should keep two things in mind. First, if you feel that you may be target of a criminal investigation or that your testimony may implicate you in criminal activity, however remote, you should immediately consult an attorney. Second, if there is any question in your mind about the validity of the subpoena, you should consider challenging the subpoena by applying to the proper court before you appear at the time and place designated by the subpoena.

If your only objection to the subpoena is that it may be difficult or impossible for you to appear at the time and place indicated, you should contact the attorney or person who issued the subpoena. Usually that person's name, address, and telephone number will appear at the bottom of the subpoena. It may be possible to postpone your appearance or to arrange a more convenient time for you to appear. If other arrangements cannot be made, or your appearance will jeopardize your health or your employment, you should seek the services of an attorney.

Jury Service

You may receive in the mail a jury summons from the court indicating that you are being called to serve as a prospective juror. This means that your name was drawn from the current list of registered voters or licensed drivers in the county.

All names are selected at random from these sources, which provide the jury system with a fair cross-section of the communities that it represents. At all stages of selection, the jury commissioner must insure that the selection process represents a random cross-section of qualified persons residing within the county. As a necessary part of this requirement, no person or persons can be selectively included or excluded from the list of qualified jurors.

The Tennessee Code spells out the minimum requirements for a person competent to act as a juror. One of the primary requirements is that you must be a citizen of the United States, of the age of 18 or older, and you must reside in your electoral district for a period of at least 12 months prior to service on a jury.

A second requirement is that you be mentally competent, of ordinary intelligence, and not incapacitated or an habitual drunkard. You are not automatically excluded solely because of imperfect loss of sight or partial loss of hearing. If you believe there is a medical reason you should not serve as a juror, it may be necessary to submit a supporting statement in writing from your doctor.

The final requirement for jury duty is that you be able to read and speak simple English.

You will be summoned to serve on either civil or criminal cases depending on the court issuing the summons. Circuit court and criminal court handle the method jurors serve differently, and you will be instructed as to the procedure for your court on the day you are summoned to appear. Each time you come in as a prospective juror, you can expect to go into the courtroom and go through the jury selection process. If you are not selected as a juror on the date summoned, you are excused and given instructions on when you need to return, if at all.

If you cannot serve during the scheduled impanelment period, it may be possible to excuse you to be summoned at a later date. It is expected that if your obligation is deferred, you will make appropriate arrangements so that you can serve during a later impanelment period. Only the judges may excuse a prospective juror. Do not call anyone, please appear on the date summoned.

For each appearance as a trial juror, you are entitled to the nominal fee of $11.00 per day plus $3.00 for parking.

Remember, jury service is your right and duty as a citizen. Failure to respond to a jury summons could result in sanctions against you by the court. Your assistance and participation is needed in order that the courts may operate in the most efficient manner possible.

What To Do About Wage Garnishment

If you have been sued for money and you lose, the person who sued you is given a judgment. If you do not pay a judgment, you will not go to jail. The most common action used by creditors to collect a judgment is to "execute on a judgment". This means that the creditor tries to have the judgment paid out of the property or wages of the debtor, the person who owes the money. Garnishment is another term used to describe this procedure. Garnishment almost always follows a judgment.

Before wages are taken from the debtor, the creditor will have already filed a lawsuit, the creditor will have already given notice to the debtor, and the debtor will have had an opportunity to answer the lawsuit and, of course, if the debtor does not agree with the creditor, the debtor has an opportunity for a trial.

A judgment is a court decision that there is something owed by the debtor to the creditor. The creditor then must try to collect the judgment. One of the most common ways to collect the judgment is to obtain from the court a Writ of Execution. This document is issued by the court and directs some public officer like the marshal or sheriff to take possession of some asset or property of the debtor. The Writ of Execution can also authorize the officer to tell an employer to take part of an employee's salary from each paycheck until the amount of the judgment has been paid to the creditor. There are limitations on how much of the paycheck may be taken. In Tennessee, no more that 25% of a debtor's take-home pay may be turned over to the creditor. Even this amount is subject to being reduced. In Tennessee, a debtor is entitled to an absolute exemption of 30 times the federal minimum wage plus an additional $2.50 per week for each child under 16 who is a resident of the state. If this is not a sufficient amount of the debtor and his family to live on, the debtor may apply to the court for an order suspending the garnishment, or to reduce the amount being taken out of each check. The necessary forms may be obtained from the court clerk.

A writ of execution may also be issued against other payments or monies owed to you by other companies or persons.

Some payments are automatically exempt from garnishment. These include amounts received for Aid to Families with Dependent Children, disability insurance benefits, SSI payments, social security payments, and VA disability payments.

Once a judge has entered a judgment, the best course of action for the debtor to follow is to pay the amount of the judgment to the creditor or to make satisfactory arrangements with the creditor for regular payments.

In Tennessee, a garnishment is good for three months unless the court notifies your employer that the garnishment has been released. The court will only do this if you have made arrangements to pay your creditor. If you make arrangements and fail to keep up your payments, the creditor may start the garnishment again. There is also the possibility that the debtor may consider filing bankruptcy to relieve himself of certain obligations.

Home • Up • Divorce • Consumers • Leases • Property • Employment • Unemployment • Families First • Rights to Benefits • Lawsuits • Bankruptcy • Powers of Atty • Conservatorships • Nursing Homes • Social Security • Medicare • Seniors • Trusts • Wills • Estates