Saturday, September 1, 2012

Word of the Month for September 2012: Demurrer

legal definitionsA question I get from people who have recently been sued (or want to file suit) is, "Why can't I just talk to the judge like a "normal" person?!" I suspect at some point in our nation's history there was a time when, if you had a dispute, you could just walk into a courtroom and start talking to the judge like they were your next-door neighbor. I suspect this is the case because that's how many people treat the legal system - they expect to be able to just walk in and explain their story.  Because people don't understand how the legal system works, many issues go unresolved and hurt feelings ensue.

It's important, therefore, to understand the basics.  The initial steps of a civil process (in California, anyway) are: first you (the "plaintiff") file a complaint.  After you file the complaint, the other party (called the "defendant") can answer, deny parts of the complaint, or file a demurrer to the complaint.  What's a demurrer?  According to Black's Law Dictionary, a DEMURRER is a legal document allowing a person to object to the legal sufficiency of a claim alleged in a pleading without admitting or denying the truth of the fact stated.  So that we're clear - we're talking about "demurrer" as in a legal document - not "demure" like how you might describe Marlene Dietrich.

Broken down, a demurrer basically says the complaint is full  of baloney and should be
phony baloneydismissed. Now, let's say that the judge grants the demurrer and dismisses your complaint.   Even if that's the case, the judge usually gives you a chance to fix the errors (called "leave to amend" or "dismissed without prejudice"). If you are unable to fix the errors in your complaint in the time allotted (usually 30 days), your case will be dismissed.

The word of the month for September actually came to me in the form of two doe-eyed people who came into our law library begging for help.  Seems they had filed two (2) complaints, been demurred to twice and were just short of having their complaint dismissed forever. In the first complaint, they just made up a bunch of accusations and hoped it'd fly.  It didn't.  On their second cluless attorneyattempt, they went to an attorney who practices Bankruptcy Law to fill out the forms for them.  The problem with that is that just because a person is an attorney, it doesn't mean they know how to practice every area of law - which is why their 2nd complaint was demurred to, too. 

It was at about this point that these two people bumped into me at my law library.  In less time than it took to write this blog, I handed them what they needed to fix their complaint (complete with correct format and causes of action).  This time when they file their 3rd complaint, they should have an easier time in court.

Bottom line, there are few short cuts in law.  If you want to go about things the hard way, stick with Goggle-ing everything and try to figure out things on your own.  If you want to reduce the migraine of going it alone, go to your local county law library and let the Law Librarian help guide you through the morass that is the legal arena.