Good question, Mr. Foreman. The defendant hasn’t told you his side because be doesn’t have a side.
He’s guilty. The law doesn’t allow the defendant’s attorney in here because he’s guilty too.

My last blog post talked about criminal law. This week we’ll be discussing civil law.

Civil law is the other side of the legal spectrum. Civil cases usually involve a money dispute. However, you can still end up in jail in civil court—although it’s rare, by making a judge mad and getting charged with contempt of court. You can end up in jail without ever facing a jury. This might occur if you refuse to obey a judge’s orders or were obnoxious beyond the limits of the law. A group of citizens in east Texas gained a modicum of fame as the “Sitting Seven” in 1985 when they were sentenced to 30 days in jail on contempt of court for their refusal, based on religious grounds, to rise when a county court judge entered to preside over his courtroom. They believed it was similar to bowing to an idol. They served 15 days and were released after the Texas Court of Criminal Appeals agreed to hear their case. The appeals court upheld the judge’s ruling, and the U.S. Supreme Court has refused to review the case.

This conduct was considered criminal contempt. However, there is also a charge called civil contempt which can land you in jail. Pastor Everett Sileven of Louisville, Nebraska, was jailed for 12 days on a civil contempt charge for refusing to apply for a license for his church school. And, although debtors’ prisons are illegal in this country, fathers are put in jail every day for not paying child support. In the majority of jurisdictions, failure to pay child support is a civil offense, although some localities consider it a criminal matter.

A civil court can grant injunctions, which is an order not to do something, against an individual or entity. If you disobey the order you can be held in contempt of court and sent to jail. This is an extreme type of remedy which is rarely granted, but it does exist and is sometimes exercised.

As a general rule, a civil lawsuit consists of one party suing another party for money. In the judicial arena, a party can be a human being, a corporation, a trust or a partnership.

Sometimes a suit demands specific performance, in which the plaintiff is asking the court to order the defendant to do something. Specific performance demands, under some circumstances, may be a violation of the Thirteenth Amendment of the U.S. Constitution prohibiting slavery. Example: actress Gloria Glamour agrees to act in a role. She later changes her mind. She violates her written contract. She cannot be forced to act in the movie. This would be slavery. She can, however, be ordered to financially compensate the studio who owned her acting contract. The sum of money in question is called damages. Damages are the amount of money necessary to soothe the feelings or to repair the harm done by the bad guy to the good guy.

There are two main categories of civil litigation (if we preclude family law). One arises from contracts. The other is based on torts.

1. Contracts. A contract is a binding agreement to do something. Our Constitution specifically protects contractual rights, although they have been extensively modified during the last 100 years. If you do not perform according to your contract, you may be sued. In order to be enforceable, the contract has to fit certain rules. A mere agreement is not enforceable unless it fulfills the requirements of a contract. Generally, a contract must have five elements:

1. Consideration – this means that someone had to agree to give up something in exchange for something else. If I give you $100 that’s not a consideration, but if I give it to you in exchange for your promise to work for me a week, then it’s a consideration.
2. Specificity – a contract must state clearly what the consideration is and what it’s being exchanged for.
3. An agreement by two or more parties.
4. Be in writing and signed by both of the parties. However, there are some jurisdictions and situations that allow oral, non-written contracts to be enforced. In some jurisdictions, the contract must be in writing and be signed as evidence that both parties were committed to fulfill the contract.
5. Legality – A contract must be legal. As a general rule, a minor cannot enter into a contract. Therefore, any such contract signed by a minor would not be enforceable. In most states, prostitution is illegal. Therefore, a contract for prostitution services would be illegal.

2. Torts. A tort is an act performed which damages another individual or entity which gives rise to a cause of action. The English legal system, which most states have adopted, held that it was illegal to do certain things because the court said so. An example of this would be battery. Battery is a rude or offensive touching of one human being by another human being. If you hit someone in the face, even though there was no statute forbidding it, you would be liable for damages that occurred to the person you struck. If you merely approach and menacingly threatened to hit someone in the face, you have committed the tort of assault. Often, assault is followed by battery as sure as night follows day. The victim could sue you for assault and for battery. A jury would decide if damages should be awarded to the victim for suffering this indignity.

There are many different types of tort actions: personal injury claims arising from negligence (such as carelessly striking another driver’s car with your vehicle), intentional infliction of mental distress (unsolicited, obscene phone calls), interference with right to contract, slander and libel (telling or writing damaging lies about someone). Some torts have been incorporated into statutes. The trend is to put all torts into statutes to control them by legislation.

In Texas and in the federal court system, there is the Deceptive Trade Practice Act. This allows consumers who have been deceived by retailers or service industries to file a lawsuit for damages arising from the alleged deception. Prior to the Deceptive Trade Practice Act, you had to prove that the people knowingly and intentionally deceived you. That was the tort called misrepresentation or fraud. The plaintiff in a deceptive trade practices suit alleges that the defendant knowingly represented his goods or services to be of a different quality than they were; that the plaintiff was induced to rely on these representations; and that the plaintiff actually relied on them and was damaged thereby. A successful deceptive trade practice suit can result in triple damages being awarded to the plaintiff. Unfortunately, in the few years since the DTPA was passed, it has been legislatively diluted through successive changes.

A tort created by common law becomes more political as the political body codifies it and redefines it.

Automobile accidents are torts if caused by someone’s negligence. As a general rule, any legal action in which someone has been personally injured or damaged due to the carelessness of another person/business or from a faulty product is a tort, providing it did not arise as a result of a contract dispute Sometimes elements of tort and contractual disputes are mixed in a single cause of action.

Michael Louis Minns is a Houston-based attorney who handles complex tax matters and professional malpractice cases, with a concentration in criminal tax defense. He is the author of two popular books on his trial work, The Underground Lawyer and How to Survive the IRS. If you have questions about a complex tax matter or a professional malpractice case please contact Minns & Arnett for a consultation.