Gilbert Law Summaries ~ Best Way to Get Overview of Law

The Gilbert Law Summaries Series as been popular for Years with Law Students seeking an overview of certain law subjects...
They are still available on Amazon at this Link:
 
http://www.amazon.com/s/ref=nb_sb_noss_2?url=search-alias%3Daps&field-keywords=gilbert+law+summaries&rh=i%3Aaps%2Ck%3Agilbert+law+summaries

Consider a Life Estate to Transfer Property Outside of Probate

The use of a Life Estate for Real Estate~Transfers the Property outside of Probate and Protects Heirs in case a Widowed Parent Remarries in Later Life... Act of Remarrying can seriously change how an estate is distributed...Much to the dismay of adult children from prior marriages.

There are no Dower Rights in the Life Estate So the "New Wife" has no claim to the Property...which is really only a "Life Lease" on the Property ending at Death...

A Life Estate has to be established before Death or Any Remarriage and there are several scenarios where it can be a disadvantage, For Example if your child Goes Bankrupt before you Die...So Consult your Attorney or Accountant for these situations...

Some states allow a "Lady Bird Deed" which gives even more freedoms to transfer property before death to Grantor

But be advised that Attorneys Love to Set Up Wills and Trusts because they pay bigger fees... 

Whereas a Life Estate is set up with a simple & cheap warranty deed... So Don't Be Talked into a Will or Trust if you don't need one...

State Laws differ so some research or advice is recommended...

What is the Hearsay Rule?

The Hearsay Rule is a rule of Evidence in a Trial Court that says you can not admit the statement of someone who is not subject to cross examination as to FACTS of the Case...

For Example: The Classic "John Said:  'It was Green'..." If John is not testifying there is no way to examine him about truth of that statement...So that testimony is Hearsay and not admitted as evidence to prove the case...

There are many "Exceptions" to the Hearsay Rule that Developed under Common Law...Click Here for Link giving a List of Exceptions.

There are so many exceptions that the Rule has been said to be like a Swiss Cheese..!

Most of the Exceptions involve situations where the fact admitted is so obvious or important that not admitting it would be unfair...

Nowadays Hearsay is defined by the State Rules of Evidence... Each State may be different and the old Common Law Rules may not apply.

What is difference between Federal and State Courts...

Federal Courts are limited to issues involving Federal Laws passed by the US Congress under the Constitution... 
Also cases where State Courts violated Federal Laws or the US Constitution.

State Courts deal with the old style Common Law. 

State Courts are courts that deal with recognizable crimes like Murder, Robbery, Assault, and other Crimes that you might read about in Mystery Novels.

State Courts are also charged with hearing Civil Cases arising between individuals in their state...involving Contracts, Torts, which are cases about injury or damage to persons or property...

State Courts also handle  Suits concerning Real and Personal Property.... 

Crimes in Federal Court usually involve "Federal Questions" or "Crossing State Lines"... so they are very limited in scope

Federal Crimes have Odd  Names that you probably won't find in old Mystery Stories... 

Therefore, Federal Crimes are NOT the place average street criminals end up...except in very rare cases... 

For Example Stealing from the Mail, Assaulting a mail delivery person... or violating Federal Liquor or Drug Laws...passed under authority of the US Commerce Clause

The Interstate Commerce Clause has been used to greatly expand Federal Crimes into areas that in the old days would have been handled in the State Common Law Courts...

For example Civil Rights under the US Constitution...are Federal issues...not necessarily State Issues.

Federal Courts have jurisdiction over cases where parties are from different states and the value of the case exceeds a certain amount... 

Federal Courts also have jurisdiction over "Navigable Waters"...which can be a small Creek at times... Navigable often being liberally defined

State Courts have Concurrent Jurisdiction over Federal Law where the case does not qualify for a Federal Court filing...which usually requires parties from Different States and a Dollar amount in excess of a set amount...or a serious "Federal Law Question"...

So State Courts are Common Law Courts...for old style Criminal and Civil Law

And Federal Courts are specialized courts to handle only issues that Congress has Constitutional Authority to regulate...Either expressly under the Constitution or Bill of Rights... Or from the decades long expansion of the Interstate Commerce Clause...

What does "Common Law" Mean...?

The Common Law was the Law of Old England... It became the basis for the Law in America

Common Law is sometimes contrasted with the Civil Law which was the basis for the Laws in Europe...

Under Common Law the courts would hear cases and decide them...and that Ruling would be used in future cases to determine the outcomes...

The idea was if a court ruled one way in the past...future courts should follow that ruling... 

This is sometimes called Stare Decisis ...  Or "Let the Ruling Stand"...

Eventually, a large body of decided cases developed which were published as "Court Reports" for various jurisdictions... 

Lawyers and Judges would consult these "old rulings" to decide how the current case before them would be decided... This was called "Case Law"...

Of course sometimes there would be conflicting rulings...

These would be resolved at the Appeals Court level.  And to this day the US Supreme Court often decides cases where one court ruled one way and another court another way...

But Common Law is not the only way Law is made... There is also the Legislature ...

Congress or the State Legislature can OVERRULE Common Law Precedents by passing a STATUTE...  

A Statute is a Law passed by the legislative body that may over rule Common Law...or it could "Codify" these old case law rulings...as Statutes

Legislation is often said to be like a Bull Dozer...going through a Wild Flower Garden...which is the old Common Law...

So Hundreds of Years of Common Law decisions can be overturned by one legislative act...!

Of course, every case is different...so lawyers and judges STILL "look back" at Common Law Precedents to "interpret" legislative statutes...to determine "Intent" of the Legislature...

The Common Law is not dead~ But it is seriously limited as more and more legislation goes on the Books...

Both Common Law case law and Legislation are subject to review for Constitutionality...This is the job of the higher courts with the US Supreme Court being the Court of Last Resort...

In Europe the Civil Law is basically ALL legislative...

Huge "Codes" are passed by the King or Ruling Bodies...  And these have to force of Law until they are revised by another Code of Laws...

So think of Common Law as an Old Wild Flower Garden...with the Legislature having the power to Tear Up that Garden by Legislation...

But the old Common Law is still foundational in our Legal Thinking...Even Today...

What does it mean to "Lead the Witness"

Leading the witness is a form of question where the answer is implied. 

The witness merely says Yes or No...So in effect the Attorney is testifying NOT the witness...

You can not say:  Isn't it true that you were at X at 8pm?

Better to say: Where were you at 8pm...?

The best way NOT to lead the witness is use questions starting with Who, What, When, Where, Why or How... These words let the witness testify in his own words...

Now...you can NOT  lead your own witness...But amazingly you CAN lead the other attorney's witness on cross-examination. 

These are called Hostile Witnesses...   It is perfectly OK to lead the other attorney's witness on Cross Examination. 

This is why you hear leading questions in court...  Its not that the attorney is being more aggressive...Rather that attorney is cross examining someone else's witness...

Its important that your witnesses realize that you can't drag testimony out of them. Many witnesses expect that you will lead them and they become very confused on the witness stand when you don't...

So its important to tell witnesses that they have to "carry the ball" and you can't drag testimony out of them. 

Of course, then,  some witnesses will over do it and rush into a long narrative story...

They should be warned against this too.  Tell them to let you say : Then what happen?  ~ Occasionally to break up a long narrative. 
 
Long narratives are sometimes objected to by the court or other attorney. 

Sometimes you will see leading questions being allowed where obvious facts are being put in evidence and the other attorney doesn't bother objecting... 

If the other attorney does not object you can lead a witness until they object...

Divorce & Reconciliation ...

If a women hires an Attorney to file a Divorce case...And she is crying as papers are prepared?  

The couple will probably reconcile before Divorce is completed...

Divorce is only completed when BOTH parties are COLD about continuing the relationship. 

Divorces tend to run in the family...So if parents where divorced likely child will end up getting a divorce... 

Oddly the age at which the divorce is filed tends to be same between generations... Of course this is a generalization...But for what its worth...

Husband usually ends up paying more than he expected (unless wife is a total loser)...So Men have to be realistic about Outcome which may be financially problematic.

Wife gets the furniture and furnishings...And husband gets his Toys in the garage... 

Judges tend to be more generous with the party having custody of children...  There is a trend toward "joint custody" which makes parties feel that they are not the bad guy in the eyes of kids...

A working wife can cut down a husband's alimony and child support considerably.