Материал: English for Law Students. 2 year. Part 2 - Учебное пособие(Власов Н.М.)
Предмет: Иностранные языки
Unit 1 civil procedure
A. GETTING STARTED A1. Discuss the following
1. Are you a complainer? Who do you usually complain to?
2. Have you ever complained in a restaurant, hotel, airplane or train?
3. Have you ever wanted to sue someone?
4. Have you ever been in a court case?
5. Have you ever considered hiring a lawyer to settle some form of dispute?
If so, describe the situation and talk about why legal action through a lawyer was an option you considered.
6. If a family member owed you money but refused to pay you back, would you take the person to court? Why or why not?
B1. Read the new words and try to memorize them
bring a civil action предъявлять иск;
plaintiff/ claimant истец
defendant/ respondent – ответчик, обвиняемый, подсудимый
complaint -1) жалоба; рекламация; претензия 2) иск
serve (sth on sb) вручать (судебный документ)
summonsизвещение ответчика о предъявленном ему иске; судебная повестка
constitute a wrong-составлять правонарушение; деликт; причинять вред
issue in [of] law спорный вопрос права, спор о праве; issue in [of] fact спорный вопрос факта, спор о факте; counterclaim предъявлять встречный иск
default judgementсудебное решение в пользу истца вследствие неявки ответчика
discovery procedure раскрытие, представление сведений, документов;
обнаружение (нового факта, преступления)
deposition письменные показания под присягой; снятие показаний под присягой
court reporter/ clerk судебный секретарь; докладчик в суде, в судебном заседании
burden of proof (= burden of proving) бремя доказывания preponderance of evidence (= preponderance of proof) наличие более веских доказательств, перевес доказательств (критерий доказанности по гражданским делам и по делам несовершеннолетних)
B2. Read the text and be ready to do the tasks below.
WHAT IS A CIVIL PROCEDURE?
A person injured by the wrongful conduct of another may be able to obtain
relief from the court and bring a civil action against the wrongdoer. Civil cases are usually disputes between or among private citizens, corporations, governments, government agencies, and other organizations.
A civil action involves two parties. The party who brings a civil action is the
plaintiff (or claimant); the party against whom the civil action is brought is the defendant. There may be many plaintiffs or many defendants in the same case. Most often, the party bringing the suit is asking for money damages for some wrong that has been done. For example, a tenant may sue a landlord for failure to fix a leaky roof, or a landlord may sue a tenant for failure to pay rent.
The plaintiff starts the lawsuit by filing a paper called a complaint, in which the case against a defendant is stated. This step is usually done by the attorney for the plaintiff. The complaint states the plaintiff’s claims, which allegedly justify the relief demanded.
Next, the defendant must be properly served with a copy of the complaint and
with a summons. The summons is a court order which directs the defendant to answer the complaint.
The defendant normally files an answer, where he or she may do one of the following: 1) declare that even if the facts alleged in the complaint are true, they do not constitute a wrong for which the defendant has any duty to pay or otherwise act – this is an issue of law which is decided by the judge; 2) deny the truth of the facts alleged in the complaint – this raises anissueoffact; 3) admit the facts alleged but introduce other facts that excuse the defendant from liability – the dispute can then proceed to trial.
The defendant may also feel that that there has been a wrong committed by the plaintiff, in which case a counterclaim will be filed along with the answer.
If the defendant doesn’t answer the complaint within the time allowed (generally not more than 20 days), the plaintiff may win the case by default judgement.
Both parties may engage in discovery procedures which are done under court order to obtain facts about the case and to identify the issues in dispute. A very frequently used discovery procedure is the deposition. In a deposition,
parties and witnesses are questioned under oath by the opposing attorney usually in the office of one of the attorneys, and in the presence of a court reporter, who makes a written record of what is said. Depositions and other discovery procedures, such as physical examinations of persons claiming they were injured, help the attorneys learn the facts before the trial. Often, an attempt is made to resolve the differences without trial and it leads to out-ofcourt settlement. If the attorneys cannot compromise and agree on some settlement, either party may ask the court to set a date for the trial.
It is up to the plaintiff to prove the case against the defendant. In each civil case the judge tells the jury the extent to which the plaintiff must prove the case. This is called the plaintiff’s burdenofproof, a burden that the plaintiff must meet in order to win. In most civil cases the plaintiff’s burden is to prove the case by a preponderance of evidence, that is, that the plaintiff’s version of what happened in the case is more probably true than not true.
B3. Answer the questions to the text.
1. What are the two parties a civil action involves?
2. How does the plaintiff start the lawsuit against the defendant?
3. What is the summons?
4. What are the three answers the defendant files in case of a civil case brought against him/her?
5. Why does court sometimes order discovery procedures?
6. Who is responsible for the burden of proof and why?
B4. Find these phrases and expressions in the text.
1. денежная компенсация ущерба
2. распоряжение суда
4. дело может быть передано в суд
5. отрицать достоверность фактов
6. урегулировать противоречия вне суда
7. освобождение ответчика от ответственности
8. собственник недвижимости
9. подать встречный иск
10. допрос под присягой
11. судебный протокол
12. признавать факты
13. внесудебное урегулирование
C1. a) Match the terms with their definitions.
b) In pairs, check how many of these you can memorize. Student A reads the definition and Student B, having his/her book closed, answers. Then change roles.
trial; complaint; tort; summons; deposition; burden of proof;
counterclaim; preponderance of evidence
a) under civil law, a wrong committed by one person against another is … b) proceedings in a court, in which the judge or jury listens to the parties' presentation of evidence and then makes a decision based on the law
c) most of the evidence in a law case
d) an official order to appear in a court of law
e) a statement written or recorded for a court of law, by someone who has promised to tell the truth
f) the duty to prove in court that something is true
g) a statement in which someone complains about something
h) a claim made by a Defendant for his / her own personal injury, loss or damage where he / she seeks to blame the Claimant for the accident.
C2. Fill the gaps with the missing words from the box.
plaintiff; defendant; complaint; summons; out-of-court settlement; court order; money damages; liability; tenants
of the Lockwood housing complex are taking part
in the lawsuit against their landlord.
are suing the companies for damages from the blast.
3. The court ruled there was no
4. The court awarded him £15,000 in
to pay any refund.
5. She's under a ex-husband.
to stay at least 500 yards away from her
6. But Education Department lawyers made the and agreed to pay his £12,000 costs.
7. He had been accused of a drug offence but police had been unable to serve
a on him.
8. None the less, annual employee
filed with the
federal Equal Employment Opportunity Commission have doubled.
9. According to the
New York City area.
, the heroin was destined for the
C3. PERSONS IN COURT. Complete this diagram with the words and definitions below
2) person who is sued in a civil lawsuit
3) employee who takes records, files papers
4) person who pleads cases in courts
5) person who has specialized knowledge of a particular subject who is called to testify in court
6) person who initiates a civil lawsuit
7) officer of the court whose duties include keeping order and assisting the judge and jurors
8) person who appeals the decision to a higher court
C4. COLLOCATIONS: CASE. Study the following collocations with the word “case” and translate the sentences. Complete the table with the examples of your own.
D1. Read the article below and discuss the following questions:
1) What is the author’s main idea?
2) Do you agree that giving people the right to sue for whatever they want is “incorrect idea”?
3) Do you think it is easy to differentiate between legitimate claims and unreasonable ones?
Lawsuits are drowning America
The fear of possible lawsuits has actually changed the culture of America.
Talk to teachers. Keeping discipline is hard when students can threaten that any decision might violate their presumed rights. Forget about putting an arm around an upset second-grader someone might claim it was an unwanted sexual advance. Visit a playground and look for a seesaw*. They are rapidly disappearing, going the way of merry-go-rounds*, diving boards, and other joys of childhood. No court ever held that seesaws are too dangerous, but who will protect the school board if one youngster gets off too soon and the other child breaks an ankle*? Ministers in some churches are told not to counsel troubled parishioners*, because who knows? someone might sue if the couple gets divorced.
Today Americans know that any angry person can unilaterally put you through the horror of years of litigation. Almost everyone is aware of someone who has suffered under the threat of litigation. Recently, a doorman whom I know nervously showed me a complaint in which he was being sued for $1,000,000 for a minor car accident a year ago in which no one went to the hospital. He is having trouble sleeping. Is this justice, or extortion?
The unreliability of justice is causing a meltdown in our common institutions. Something is terribly wrong here. Americans in all walks of life* no longer feel free to do what they know is right. The one thing that almost no one has questioned is that people have a right to sue. That is what they have been taught justice is. Yet, what about the right not to be sued?
We forget sometimes that law is important in a free society. Law is supposed to make us feel comfortable doing what is right and nervous doing what is wrong. Today, Americans feel nervous doing almost anything.
Giving everyone the right to sue for whatever they want, we have been told, is our protection, but that idea is incorrect. Lawsuits turn into a weapon for extortion if the law doesn't draw the boundaries of who can sue for what.
Lawsuits themselves can constitute an abuse if the judge doesn't define what is a legitimate claim and what is not. Judges have to make sure that claims are reasonable. If someone sues over an ordinary event, like a child falling off a seesaw, the judge should throw it out. Otherwise, all the seesaws will disappear because school boards won't take the risk of a lawsuit. Today we, Americans, realize that we can get sued for almost anything. That is why legal fear has infected our culture.
(From the USA Today, March 2003)
-------------------------------------------------------------------------------seesaw – качели
merry-go-round – карусель ankle – лодыжка parishioner – прихожанин
all walks of life – все слои населения
D2. Discuss in pairs or in small groups the following cases to decide whether the claim in each case is legitimate or not. What do you think the court ruling would be? Check with the key to see if your view coincides with that of the judge’s.
In 2004, Timothy Dumouchel, from Fond du Lac, Wisconsin sued a
television company for making his wife fat and transforming his children into “lazy channel surfers”. He said: “I believe the reason I smoke and drink every day and my wife is overweight is because we watched the TV everyday for the last four years”.
In 2001 Cathy McGowan, 26, was overjoyed when a DJ on Radio Buxton
told her that she had correctly answered a quiz question and had won the competition prize: a car by Renault. Ecstasy collapsed into despair, however, when she arrived at the radio station and was presented with a 4-inch model of the car. She sued the radio station.
Giran Jobe, a 36-year-old bodybuilder, was doing regular two-hour weight
lifting sessions - and the noise when his power weights came crashing down on the floor of his top-floor flat - was so bad that it reached as much as 100 decibels, according to monitors installed by the local council. In other words, as loud as the noise on the platform of a Tube station as a train arrives. After
his workouts became intolerable to his neighbours, they sued him for the breach of a noise abatement order*.
-------------------------------------------------noise abatment order – распоряжение о борьбе с шумом
The Supreme Court of Austria was asked to rule that Matthew Hiasl Pan, a
chimpanzee, is a person. An animal-rights group launched the unusual legal bid in order to legally adopt Matthew after the shelter he had lived in for 25 years closed. The group argued he should legally be considered a person on the grounds that chimpanzees share 99.4 per cent of human DNA.
A court in Macedonia heard a case in which a brown bear was accused of
stealing honey. Zoran Kiseloski, a beekeeper, tried numerous attempts to stop the bear getting into his hives, including flooding the area with generatordriven light and blaring out music from a stereo system. Kiseloski's choice of "turbo-folk" should have been enough to drive any creature away but the bear kept coming back. Eventually, Kiseloski took legal action.
E1. Write a short opinion on one of the cases above. Remember to provide arguments to prove your view.
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