Last Updated on May 11, 2022 by Fair Punishment Team
In this episode, Blaine Clooten invites Andrew McGuire to discuss some of the top questions coming up around civil cases.
The top 5 types of civil cases are:
1. Contract disputes 2. Property disputes 3. Torts 4. Class action cases 5. Complaints against a citySome of the highlights they hit on are: 1. What would be considered a civil case?2. How can a case be both civil and criminal? If you’re interested in listening to this episode, you can do so by heading over here and listening or the transcript is below for your reading pleasure. Enjoy the listen (or read) and we’ll see you next time!
Transcript
Blaine Clooten
This is Blaine Clooten with Andrew McGuire for Ask a Lawyer in conjunction with the Fair Punishment podcast and fairpunishment.org. We are getting questions on Ask a Lawyer from our Twitter handle. Andrew, where should the people go to ask questions?
Andrew McGuire
Twitter @mylegalcenter. That’s where you can find us.
Blaine Clooten
All right. And I’m an attorney. Andrew is not. I’m answering legal questions. Andrew is not but he is helping me along. If you have questions at the end of this, which you probably will, please talk to an attorney. This is not legal advice. This is general legal information to get you pointed in the right direction. That being said, Andrew, what’s our topic for today?
Andrew McGuire
Yeah, well today I went on to Google and I typed in, “What would be considered a civil case.” Today we’re going to be talking about civil cases and all sorts of the different types of civil cases but really I’d like to start with just understanding how you define a civil case. What would be considered a civil case?
Blaine Clooten
Okay, so a civil case is where we have private parties on either side. This would be different from a criminal case where we have the government bringing an action against an individual and threatening a criminal punishment, such as imprisonment, fines or both. In a civil case we have private entities or private persons that are bringing actions against one another.
Andrew McGuire
Got it. Okay.
Blaine Clooten
Is that good enough? Or did you want me to talk a little bit more about that?
Andrew McGuire
No, that’s great. And I’m curious about this and one of the other questions that came up or has come up quite a bit is, what are the five most common types of civil cases? And then I double clicked into that and I don’t know where you want to go with this but the list I came up with was contract disputes, property disputes, torts. I don’t know what that means. Class action cases and the last one of complaints against a city. And that last one was a little confusing. Am I really going to complain to the city? I’m not going to tell you where I am or what city I’m in but those are the five, contract disputes, property, torts, class action and then complaining against your city. My question to you is, are those the five most common types of civil cases? And if so, can you help me understand each one a little bit?
Blaine Clooten
Sure. In my experience, those fit into the top five that I see most frequently but they’re not the most frequent cases and we’re talking only civil cases because obviously the most typical type of legal case is a criminal case. If you just look at any register in any state, most states have a register or you can go on to the docket for that day and look at what types of cases they are and then you can click into them and find out what cases are on the docket. Most typically what you’re going to see are family law cases. Custody, divorce, adoptions, guardianships, things like that. You’re going to see property disputes in the sense that there’s evictions happening. Eviction type cases, those are technically property cases, I suppose.
Blaine Clooten
You may see contract disputes. Those are more typical in larger areas so you’re thinking, New York, LA, bigger cities are a lot of times, I’m not saying that contract disputes can’t happen anywhere but what I tell people a lot when they come into my office is if a person is not going to honor a agreement with a handshake deal, there’s no amount of a contract that’s going to help you in a case. This is not true for a multinational type of a case where they have really big contract disputes. But in general, if we’re talking about our smaller tier contracts, then that’s still good advice to follow. Torts though, let’s talk about that, because that’s a whole category.
Andrew McGuire
That one’s confusing to me. It sounds like a food to me or it’s some Thanksgiving.
Blaine Clooten
A torta.
Andrew McGuire
A torta. A tortilla, maybe some Mexican tacos but what is a tort? And why is it even called that? What is that?
Blaine Clooten
Tort is short for tortious act and a tortious act is an act that you do against another person that’s unwanted or unlawful.
Andrew McGuire
Is this more Latin? These lawyers like?
Blaine Clooten
Well, I think tortious act, I think is a English word. I’ve never looked it up in a definition. That’s a good question. When we were taking it in law school, they were always referred to as torts and that was short for tortious act. Torts are more of your everyday common personal injury type cases. Car accidents, that’s a tort, that’s a negligence tort. Usually in torts, what you have is you have a plaintiff and a defendant, causation, where there is an act that happened where it caused injury and then the injury has to cause damages. And then you have to be able to prove that the other person was the cause in fact, the but for causation and then the proximate cause. Once you establish all those things, that’s in a negligence case, then you can prove that the other party is at fault and you should be able to recover damages.
Blaine Clooten
There’s other types of torts. There’s intentional torts like assault, where you actually hit somebody. There are the regular old torts that I was talking about. Defamation is also a tort. Most every other thing that you think of in a personal injury kind of context, those are going to be your torts.
Andrew McGuire
Okay. And the next one was class action. The tort I understand, the word I don’t but I understand what you’re saying and it makes sense to me but the other category, the last one’s the best. I want to talk about that. The class action cases, can you help me with that. For some reason, here’s what I think of it as. I think of it as any service I’ve ever signed up for, somehow I always end up in one of these class actions. I literally have things coming into my mailbox from 20, almost 25 years ago even of just random things that I had subscribed to. And I have this, I don’t know if it’s a personal problem but I seem to subscribe to all sorts of things and then I cancel it. But somehow I end up in a class action lawsuit and a check shows up in my mailbox randomly and for 28 cents.
Andrew McGuire
What is a class action lawsuit? Because I don’t actually read the thing that comes into the mailbox. And I think most of us, if I’m like anyone else that that gets into these things, I’m not going to start the class action lawsuit. I’m just somehow weaved into the big bucket of people. But I don’t even really know what it is other than I got a 48 cent check from VoiceStream, which was acquired by T-Mobile 30 years ago for something to happen. Anyway, I’ll stop talking now.
Blaine Clooten
I was letting you go because you’re giving good examples and you don’t ask me any of these questions beforehand so I’m going off the top of my head with all of these things and that’s been true. We’ve talked about in general, some of the topic categories.
Andrew McGuire
That’s a good point. I’m coming up with the question. Blaine’s not prepped with any of this. I’m literally just throwing out questions and trying to figure out the answers to these things. And again, it’s not legal advice. It’s really just me trying to be better educated around these topics and helping you really do the same, which is think of us as the legal Google machine and Blaine’s just answering these questions as best he can without preparing.
Blaine Clooten
The class action, I haven’t looked this up in a long time and this is something that’s a specialized area of the law that’s saved for people that practice in it primarily. I think it’s important to take a step back in any of these legal explanations so that you have a general understanding. I’m going to make an analogy. You made a good ducks analogy last episode and you’re wearing a duck shirt today. But I want to make an analogy, which is similar to doctors when it comes to lawyers. And I know that lawyers wish they were doctors.
Blaine Clooten
I know that’s going to be the joke but if you go and you see a general practitioner doctor and you’re going there and you have a knee ache, they may be able to treat you. Or if you have an earache or you have throat pain or something, you may go to your generalist first. But if it’s too hard for them to figure out or it’s too specialized, they send you to a specialist. There’s neurosurgeons, there’s heart surgeons, there are ear nose and throat doctors. There’s orthopedics. I can keep going with the list but you get the point. There’s generalists and then there’s specialists.
Blaine Clooten
When you’re in a rural area or a less populated area, you have attorneys that are practicing, they’re general practitioners. They’re doing a little bit of everything. They’re doing family law, they’re doing evictions, they’re doing personal injury, they’re doing estate planning, they’re doing bankruptcies, they’re doing a lot of different areas. If you get into the bigger cities, what you have is more specialization. You have an attorney that’s only doing bankruptcy or they’re only doing family law. And so when I’m saying that class action lawsuits are a specialty area, that’s especially true in this case because you are not going to find a class action lawyer in a remote area. If they are, then they were in a big city and then they moved to a remote area. But in general, so if you have have a class action lawsuit and I just saw an alert the other day, I wear an Apple watch and I just saw something that’s coming up where Apple watches are going to be in a class action lawsuit or they’re threatening to do it because of a battery issue.
Andrew McGuire
Great. I’m going to get another one from Apple for this watch.
Blaine Clooten
Right. Maybe. If it’s proven or they settle or whatever, but anyway, generally what happens is first they’re going to file the case and they have to have certain threshold requirements in order to be qualified and to be certified as a class action. They have to have numerosity, there have to be enough claimants. There has to be typicality of claims. And now I’m going to forget the other four, which my civil procedure professor from law school’s going to kill me but it’s been 10 years. Give me a break.
Blaine Clooten
If you get to enough of those threshold requirements, then you have what’s necessary in order to certify the class. Once you have the class certified, then the attorney’s going to go out and look for other claimants in that class, make sure that they have included everybody in the lawsuit. And then you can either opt in or opt out of the class action lawsuit. If you opt in, you’re going to get that 28 cent check a couple years down the line. If you opt out, that just means you’re going to have to bring your own claim yourself. You can still bring the claim. You’re not waving the claim.
Andrew McGuire
Yeah. I had this thought when you were going through the rural versus city, where that Michael Scott episode, where he declares bankruptcy, you can’t just open up your office door and just yell, “I declare bankruptcy.” I need to actually get a lawyer to help me with that. And related to that, if I’m not responding in any way, am I opting in then? Basically I’m not sending it back saying, “I opt out of this,” so therefore I’m just in the pool, is that what you’re saying?
Blaine Clooten
I’m fairly confident that you have to opt in and if you send no response, you’ve opt it out. And I know this because I did not respond in a couple of lawsuits and other people got money and I did not. And I should have opted in because it could have been $230 for me which I didn’t get.
Andrew McGuire
Right. The thing I find most hilarious about all this, top five civil cases, I think about you said earlier, a tort about personal injury or an accident case, is that how complaints against the city happen? Because the first thought that went in my mind was if that’s one of the top civil cases and there’s a massive pothole and my car drops into it in the middle of Los Angeles, San Francisco or New York, whatever it is. Or another version of that would be, someone pops out my back window of my vehicle and stole all my stuff, can I have a complaint against the city and make it the city’s fault for my stuff getting stolen out of the car? Is that what you mean is what the definition around complaints against the city? Or are we talking about there’s a sprinkler broken, you’re wasting water and now Earth’s going to die because San Francisco has sprinklers going off everywhere. What’s the complaint against the city?
Blaine Clooten
That’s a good question. I don’t know exactly. I can hypothesize though. And what I would think, so the first question you had about suing the city because your window was smashed in, the city has immunities and they’re almost always going to be immune from any action of a third party against you. The only exception generally is if they knew of a risk and then after being warned of it several times, in the face of that warning did nothing. But I think even then I think it still requires a wrongful act by another person and then they still didn’t remedy it and then something else went wrong a second time. I think they kind of get a first bite at the wrongdoing. But I think that where most of these complaints are coming in are in the context of property. And I think that it has to do with, they are feeling like their land is being encroached or there’s an easement dispute and there’s some sort of land use issue that’s going on.
Blaine Clooten
That’s probably most of the disputes that are going on because if you have a barking dog, you call the police. That’s not really a city issue. I guess you could raise it if it’s an ordinance issue with there’s a park next to me and everybody’s going off leash with their dogs and there’s an ordinance in the city that says that nobody can have off leash dogs. Maybe you’d take that complaint to the city. But I also do agree that probably a lot of the complaints are going to be road related or utilities related. But again, those are going to be directed to those specific departments. I don’t think they generally rise to the level of filing a civil complaint. Otherwise you’re looking at not a class action lawsuit but a lawsuit for some person that’s been individually wronged like if you’ve been hurt when you’re being arrested and it was a false imprisonment or they were being too rough when they were taking you into custody then you might have a claim against the city if it was the city’s police officers.
Andrew McGuire
Okay. Interesting. I don’t know either, which is why I was asking but I think you answered it well, which is most likely it’s going to be property because you’re right. I could imagine the power lines going across your house or whatever it is. It’s not going to be someone smashing your window. We got one last question on this topic that could lead us to a different episode but can a civil lawsuit turn into a criminal one?
Blaine Clooten
That’s a good question.
Andrew McGuire
Is that a simple answer?
Blaine Clooten
I can do this in the time that we have remaining. I could also make it a longer conversation but I think that we can answer it fairly simply. And we were talking in the second episode about false accusations. And let’s take the example of a restraining order, which can start out civilly. The restraining order generally or a protection order where let’s just take the typical scenario where a female is getting a restraining order against a male for let’s keep it really simple, let’s say he hit her and they were in an intimate relationship, qualifying relationship. And now she’s bringing a protection order against him. That case is civil at that point when she files the restraining order and if he starts responding and making declarations or making statements or appears in court to defend himself and the police are there or a district attorney is there or something like that and hears what he’s saying. He says, “Yeah, I hit her but she had a coming,” or something like that then a civil case could turn into a criminal case.
Blaine Clooten
The same would be true in a false accusations where police come to your door for some sort of civil complaint or you call the police to your door because somebody’s making false accusations against you and you say, “All I did was took toothpaste and put it on their back windshield and now they’re turning it into this federal offense. It was just a prank.” Well now you’ve admitted potentially to a crime and you’ve admitted potentially to some wrongdoing so now your civil case is turning into a criminal case.
Blaine Clooten
I think at a fundamental level, what the question’s really asking is, if I have an assault case where we’re both at the bar and you punch me in the face and I bring a tort action against you for I have damages. I have to go to the hospital and get my face reconstructive surgery. And I just started out as a regular old, intentional tort for you hitting me. It could potentially turn into a criminal case if you start admitting to what was going on and more evidence comes out, maybe we get the surveillance camera from the bar or more people say, “Yeah, he had been threatening him all night and then finally just hauled off and punched the guy.” At some point, that civil case could turn criminal. That’s the type of case that could turn criminal. But it wouldn’t convert that specific civil case into a criminal case so it would have to be a new criminal action brought by the government.
Andrew McGuire
Okay. Got it. That’s helpful. Thank you. And that’s all I have on what’s considered a civil case? And it’s been good talking with you, Blaine. Appreciate you bringing me on.
Blaine Clooten
All right. Where are we going to send the folks that have questions?
Andrew McGuire
Twitter. Everybody needs to go Twitter and post a question @mylegalcenter.
Blaine Clooten
Okay. This is Blaine Clooten for Andrew McGuire and fairpunishment.org and @mylegalcenter. We thank you for joining us on Ask a Lawyer. Until next time.
