Advisory to the Pro Se Litigant #6: Include a Request for Reparation in Your Lawsuit

When you file a lawsuit, you should articulate your demand. A demand is your request for money as reparation for the loss or injury for which the defendant is liable. If you require the defendant to take action to make you whole, such as physically moving property intruding on your property, you should include that in your demand. Your demand should be sufficiently clear so that a defendant may know what steps it may take to immediately resolve the dispute you are raising. Determining the appropriate amount to demand can be tricky, and is different in every case. The law governing the wrongdoing you are suing about (and the case law interpreting that law) will often dictate what sorts of damages are available to a successful plaintiff. You may want to consult with a lawyer in considering the appropriate amount to demand. Here are some of the typical types of damages that courts may award. (this list is not exhaustive.) Direct damages: Damages for actual losses due to the wrongful act, such as the cost of property damaged by the harm caused. Compensatory damages: Damages deemed to compensate the injured party for losses sustained as a direct result of the injury suffered (other than those considered direct damages). Punitive damages: Damages awarded to punish the wrongdoer. Double or treble damages: In some cases, such as in cases of unpaid wages, courts may award damages in an amount of two or three times the amount for which the wrongdoer is found liable. Expectancy damages: damages recoverable for breech of contract, designed to put the injured party in the position he or she would have been in had the contract been completed. Emotional damages: damages recoverable to compensate for emotional injuries for a harm done.

A Radical Idea: The Civic Engagement and Community Service Leave Act

In 1993, Congress enacted the Family Medical Leave Act (Public Law 103-5). The objective of this article is to look at the Family Medical Leave Act and raise questions as to whether we should use it as a guide to structure a statute to advance civic engagement. I have been thinking about this idea for a while and have delayed publishing this article because of quesitons I have about the practicality of such a proposal.

The underlying problem I seek to address is that I believe many non-executives/super-professionals are subconsciously barred from playing a leadership role in addressing community-wide issues when opportunities for addressing them arise during their normal work hours. Many executives and super-professionals are given professional credit for their community service and certain other volunteer work, whereas hourly workers and other less high ranking professionals are more likely placed in the position of not being available to community-oriented organization, or other causes about which they care.

My goal here is to raise quesitons about how best to encourage civic engagement, including activism on community issues. My concerns stem from the facts that few people have the leisure to take time from work to address community matters. One way this is often addressed is by having people trade shifts. However, in the family medical leave context, and even in the religious context, there is favorabvle expectation that employers take initiative to acccomodate, although they are not required to take any unreasonable steps in accomodating. In the context of religion, an employer is not required to overcome a union-brokored legitimate seniority system in order to accomodate an employee's religious requirements that he be free from work on his sabbath, but to the exten that religious accomodation may be done consistant with other scheduling rules, effort to accomodate must be made. The Family Medical Leave Act requires that employers wtih more than 50 employees provide employees, who have worked full time for a period of approximately 1 calendar year, with the right to take unpaid leave of up to 12 weeks, provided that the employee is able to show a legitimate medical need for said leave.

There is a certain logic to using the Family Medical Leave Act as a model to address the need for employees with communal needs that must be addressed. The findings section of the Family Medical Leave Act identifies certain societal problems the statute seeks to address. Specifically, according to the statute, the societal objective is "the development of children and the family unit that fathers and mothers be able to participate in early child-rearing and the care of family members who have serious health conditions."

The Findings, thus further, identifies the problem it seeks to address as "the lack of employment policies to accommodate working parents [effectively] force individuals to choose between job security and parenting; there is inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods.

Similarly, it is crucial to the democratic nature of this nation for citizens to be able to participate as citizens in the political world and community world. As Robert Putnum illustrates in "Bowling Alone," there have been steady decreases in community and political involvement. Although it is not clear to me if he says this explicitly, it is certainly implicit in his work that true democracy does not flourish when citizens are not engaged (a) as social members of their local community; (b) as citizens of their local community; and (c) as citizen of the state and national community. In keeping with the logic of this blog, it strikes me that I should include the notion that (d) as citizens with legal rights under the law, democracy cannot flourish if citizens are unable to exercise their legal rights, both with respect to harms done to him or her from both government and other individuals or corporations.

In the "Overworked American," Juliet Schor shows how the societal and economic pressures to constantly work and focus on work creates an effect of a population of dis-involved people, thus affecting people's abilities to act as community members. Illustrative is what was recently being reported out of North Carolina. 84% of North Carolina's young adults report they don't participate in any organized groups, and 67% of North Carolinians overall are not involved in such activities either. However, similar statistics may be found throughout the United States.

Therefore, just as the Family Medical Leave Act was enacted premised on the fact that too many Americans were unable to take the necessary time to be available to their sick family members, so too too many Americans are not available to their community.

Could one fashion a Civic Engagement and Community Service Leave Act modeled off of the Family Medical Leave Act? To address the above-described challenges of workers caring for their family members, employees who work for employers with 50 or more employees in that employee's work site, or within a 75 mile radius of that work site, are entitled to a total of 12 workweeks of leave during a 1 year period. No employer is required to pay for this leave. However, if the employer already provides paid sick personal or vacation leave that would cover all or part of the leave to which the employee is entitled, use of that leave may be counted against the 12 weeks to which an employee is entitled.

Could or should a similar leave protocol be established for members of community and political associations to have leave to handle their needs? Fashioning a fair statute could be very difficult. Employees often use FMLA to address their personal illnesses, which is totally inapplicable to a community, or to help family members address discrete life or death illnesses. Documentation of their immediate need is usually documented by written statements of medical professionals. Communities don't have similarly discrete life or death issues for which a particular sort of professional might be universally recognized to diagnose. In other words, one can rarely report "if I don't assist my community today rather than tomorrow, it will die. Furthermore, people use FMLA for health crises, not for routine care. Our communities needs routine care, not merely involvement in crises.

Thus, I am somewhat at a standstill, but publish this article anyway in hopes that public contemplation of the issues might lead to a legislative fix of some kind.

It is worth noting how the religious accomodations laws are interpreted. To the extent that accomodation or switching shifts is possible for any other reason, it must be acceptable to accomodate religious needs. Thus, one could institute a statute that is broad based, requiring employers to make legitimate efforts to accomodate a certain amount of civic obligations per year, but broadly permits an employer to avoid going through "extra efforts" to accomodate its employees.

As a lawyer, I am well aware that a statute whose language is too vague cannot be enforced. In other words, the statutory provisions must be reasonable clear enough so that a reasonable person can appreciate what actions are made illegal under the statute. If the statute is so vague that a reasonable employer could have had no way of knowing what actions violate the statute, the emplloyer can't be held liable.

Thus, policy thinkers interested in such a staute must think through by what standard an employer might be required to consider accomodating an employee's proclaimed community emergency. Would a community meeting qualify? What about a meeting with the mayor? What about a boy scout trip?

Again, I have no interest in creating a new legal maze that simply requires countless lawyers to negotiate over every twist and turn. Instead, I write to raise the question whether the framework of the Family Medical Leave Act should be used as a model to create a statute to advance civic engagement, which often suffers from the same lack of community care, a problem somewhat analogous to the problems that lead to the Family Medical Leave Act.

Advisory to the Pro Se Litigant #5: File in the Correct Court

Maryland’s Court System includes District Courts, Circuit Courts, and Orphan’s Courts. It is important to File Your Case in the correct court. Most disputes in Maryland are presented to one of the following Maryland state courts: (1) District Courts: Each county has District Courts (not to be confused with the United States District Courts) which hear cases concerning disputes in which the amount claimed is less than $25,000, landlord-tenant claims, and a few other similar type of claims. Cases brought here are heard before judges and not juries. (2) Circuit Courts: Circuit Courts hear disputes in which the amount claimed is more than $2,500, adoption, case, protective proceedings for disabled persons, and a few other matters. Cases brought here may be heard before juries. (3) Orphans’ Courts: Orphans’ Courts have jurisdiction over wills, estates, and other probate matters, along with aspects of guardianship. There are several types of disputes, primarily those with claims between $2,500 and $25,000, which may fall under the jurisdiction of both the Circuit Court and the District Court. In those cases, the plaintiff decides which court to bring his or her case. The factors involved in making that decision is beyond the scope of this page.

Advisory to the Pro Se Litigant #4: If I Have a Lawsuit, How Do I Bring it?

A. Draft a Complaint That Articulates How You’ve Been Harmed, and What Law Has Been Violated If you want the court to hear your dispute, you must file a “complaint.” A complaint sets forth (in numbered paragraphs) the allegations and your demand for relief (payment or other remedy to put you where you would have been but for the dispute). Accordingly, it should have three primary parts to it: (1) On the first page of the Complaint, place a caption that states the court, the names of the parties, the docket number (once one is assigned), the title of the document, such as “Complaint”, and if you know it, the name of the judge (2) Identify the facts that set forth why the court in which you are filing your suit is the proper court to hear such a claim. See below under “Choosing the Proper Court.” (3) Draft a section of “Facts”—stating in numbered paragraphs those facts which illustrate that one or more laws were violated and that resulting harm has occurred. (4) Identify each legal violation for which you are seeking relief. (5) Identify what relief you are seeking. B. The Complaint Must Have Sufficient Details For A Court To Understand What Facts You are Alleging – and What Law You are Alleging was Violated The purpose of the complaint is to inform the court and the opposing party of your claims. You want to make sure it clearly articulates: (1) the infraction committed, (2) the law providing a remedy, and (3) the remedy you seek. Your complaint need not be so thorough as to convince the court of the merits of your case. It need only say enough to show the court that you are complaining about something for which the law provides a remedy. As long as the judge understands what you are complaining about, and the court where you have filed is a correct court in which to file you complaint, it will probably not be thrown out—and you will be permitted to proceed. However, please read the information under “Motion to Dismiss” for further information about how detailed your complaint should be. The purpose of the complaint is to notify the court and the other party of your claims. For the Defendant and court to understand what those claims are, you should identify them adequately. This means identifying the laws under which you are filing suit, and consequently, using as a basis to argue that you are entitled to damages. As you are only putting the defendant and court “on notice” of your claims, you do not need to cite case law to prove the merits of your case at this point. Be advised that many courts have “form complaints” for certain common issues, such as domestic violence, contract claims, auto accidents, and certain types of personal injury, thus avoiding the need for you to research the applicable statutes. “Form complaints” are pre-writen complaints with blank spaces for you to insert the particular facts of your case. Thus, if you are curious if the court has a form complaint for the issue that concerns you, please contact the relevant court clerk’s office.

Advisory to the Pro Se Litigant #3: How Do I Locate the Law that Applies in My Case?

Federal Statutory Law Is In The United States Code 

Organized By Subject Matter Once a federal law is instituted (usually enacted by Congress and signed by the President), it is recorded in the United States Code. There are presently 50 sections (referred to as Titles) of the Code, each dealing with a different broad subject matter. For instance, Title 42 is titled “Public Health and Welfare,” including laws as diverse as disaster relief and civil rights in education and employment. To give another example, title 26 is titled “Internal Revenue Code” and contains laws related to taxation.

Cornell University and The Government Printing Office each have each put the Code on their websites.

 These websites, along with several others, have search functions you can use to locate federal laws that address the topic that interests you.

Maryland has its own Code  

Maryland similarly has its Code divided by subject matter. Lexis and Westlaw, the two most popular legal research websites for lawyers

Past Court Decisions

Referred to as case law or precedent, past court decisions may bind a judge on a given matter. In the American legal tradition (and in other systems that follow the "common law," judges are expected to issue decisions consistent with prior decisions on similar legal issues, namely “precedent.” They are specifically expected to issue decisions consistent with those of higher-ranking courts.

When a party believes that a court has issued a decision that is inconsistent with precedent, he, she, or it may appeal to a higher-ranking court to overturn the decision of the lower court. Because past decisions of appellate courts have an authoritative nature, they are given the expression “case law.”

Because of its authoritative and persuasive effect, attorneys and other skilled advocates rely heavily on case law in arguing for favorable rulings.

 You can find the United States Supreme Court’s past decisions on its website, the Fourth Circuit Court of Appeals’ decisions on its website,  The Court of Appeals of Maryland’s decisions on its website,  and the Court of Special Appeals of Maryland on its website.

 Other public oriented legal websites, such as www.findlaw.com include many of these decisions on their web pages, and have functions which make searching easier. You can also locate various court decisions through legal search engines such as lexis.com or westlaw.com. Many law libraries provide access to one or both of these search engines. Law libraries have other resources with which to search past decisions.

What Thomas Paine's Common Sense Has To Teach Us Today

text: http://www.earlyamerica.com/earlyamerica/milestones/commonsense/text.html Thomas Paine's Common Sense should be read by all Americans for three reasons. For one, as the passing of time has allowed our separation from England to feel inevitable and obviously just, Paine's text provides the reader an opportunity to better appreciate how revolutionary and controversial such advocacy was. Second, Paine's resort to a careful analysis of history and public opinion should educate us as to the importance of scholarship to our country's founding. Third, the similarities in Paine's use of social contract theory to Jefferson's in our Declaration of Independence is a sign of how serious our founder's were in basing their new country's structure on logical principles available in social contract theory. Paine's arguments against the continuation of the British monarchy's rule on our shores is now considered so obvious that readers must read Paine's arguments very closely to appreciate the existence of a pro-monarchy side. In fact, it is only through studying Paine's text closely that one can one fully appreciate the extent to which "Common Sense" was revolutionary, and--although quite possibly -- not necessarily representing the majority opinion of the Colonialists, at least prior to its publication.The text reminds us that our separation from England at that time was not inevitable, even if (at least from our vantage point) eventually inevitable. Thus, Paine critiques and overcomes several arguments in favor of monarchy, such as status quo, natural rights of monarchs, religious rights of monarchs, obligations by virtue of being of English descent, and other "ancient prejudices." Paine's resort to historical analysis leads me to believe that logic and historical analysis played a huge role in the founder's view of why to separate from England and how to form a new nation. Thus, I conclude that in public deliberations, if and when we resort to taking positions that are not based in a good faith analysis of history and human nature, we run the risk of acting contrary to our founder's view of how this republic should be governed. Additionally, if we fail to resort to investigate relevant historical facts to determine our most adviseable course of action, we run the risk of only literally applying the Declaration, yet failing to engage in the serious contemplative arts envisioned by Paine and Jefferson. This point is made even clearer to me when I examine Algernon Sideney's "Discourses Concerning Government." In Discourses, Sidney incorporates both logic and historical analysis to challenge those who advocate for absolute monarchy. Much of his text is devoted to showing why those who argue for the divine rights of kings are misreading Scripture, human nature, and what we can learn from the facts of history. Although he lived a century before the founding of this nation, Presidents Jefferson and Adams considered themselves greatly influenced by the Discourses, and thus the distance in time between the publishing of Discourses and the founding of this county should not be a barrier for our appreciating the role of Sidney's ideas in shaping this county. More importantly, we must appreciate what Sidney does to make his case, and how this is similar to Paine and other writers who influenced the founders. First, as the monarchists rest on Scripture to argue for their eternal rights to power, Sidney shows how this is a misreading of Scripture. In explaining a more proper reading of Scriptural stories and statements that appear to endorse monarchy, Sidney often employs similar techniques that Talmudists utilize by looking carefully at context and language of Scripture to decipher meaning and possible mis-reading. He then addresses what he believes to be common mis-impressions about history. In both the Biblical and historical analysis, he explains what he believes to be the sources of common mis-impressions, and articulates what he sees as a more logical explanation. My point here is not merely to be impressed by thoughtful men. Although there are reasons why Paine and Sidney's texts deserve "great books" status, they also teach us a great deal of how we as citizens should employ contemplation, reasoning and thoughful analysis when considering the issues of the day. It is clear to me that American politics in the 21st century can sometimes resort to a type of language correcness that gives no way for complicated analysis. For instance, various potential political leaders have been publicly attacked for exploring communist though or other disrespected ideologies. Most recently a Senate candidate has been laughed at for having an isolated or a few experiences examining the Wiccan tradition, and thus convinced that her only hope to address the perception was to pronounce "I am not a witch" as if being a member of the Wiccan faith tradition were a barrier for US Senate. Our current President felt compelled to pronounce "I am a Christian, not a Muslim," and was made to answer for unpopular views of his pastor. I think it is fair to say that Sidney or Paine might intensely explore the political views of Ms. O'Donnell and President Obama, but I doubt either would evaluate their political views by drawing vast conclusions from their non-political and casual associations. Another point must not be lost in exploring Thomas Paine's work. As suggested above, Paine and Sidney's extensive analysis indicates that their views were not necessarily in the majority at the time of their writings. Sidney was executed by the State for his views. Thus, it must be telling that the 1776 Revolution was not merely a physical revolution, but a psychological one. It altered the way people saw citizenship. Specifically, it meant that the founders of this country were not scared to advocate rebellious notions. Thus it would only be true to the character of Paine and Jefferson for a thinker to engage in honest examinations and to risk humiliation for articulating one's thoughts. On this last point, I find it a sad state of affairs when individuals are ridiculed for their honest beliefs. Before ridiculing others for their minority views, we need to remember that many ideas we consider mainstream and "obvious" were once ridiculed and considered grossly offensive. Instead, in keeping with Paine and Sidney, those views should be analyzed for their logical consistency with our understanding of human nature and history.