debate on McClain

[foodisgood70]

I would not write all of this if it was not the off season.

I apologize to anybody who is upset this thread degenerated this way and I hope somebody out there learned something as djh is very confused.

Civil law and civil system do not have the same meaning. The definition of a civil wrong can be anything that damages a person. Nothing says the damages can not be connected to an act that can also be criminal. Criminal acts can be violations of the law AND a basis for liability. Reckless acts are still reckless even if the conduct did not rise to the level of criminal. Tort, reckless, or negligent conduct can also damage someone. Each is an independent basis for liability in common law systems.

Anybody who knows what a Nolo Contendre plea is knows why you plead it.

I remember hearing about torts in my biz law class in college. Unfortunately my professor who was a lawyer, but was a cop previous to becoming a lawyer, was more interested in telling us crazy stories about when he was a cop than teaching us the course material The only thing I know about torts is that they sound like a dessert to me....

[Da Swami]

There are only 2 common law maxims that preclude a case from being brought.

One in civil law and one in criminal law.

The first is called double jeopardy and I don't think I have to explain it to anybody.

Everybody knows you can't be tried for the same case twice (unless you violate both federal & state law). The civil law counterpart is called res judicata. Res Juudicata says you can't be sued for the same cause of action in a civil matter. Because common law systems view civil and criminal law based on separate merits, there is no maxim in law that crosses over and precludes civil action from being taken after a criminal matter has been adjudicated to a not guilty verdict.

jlh is confused and has mangled and convoluted these two legal principles that apply both in Australia and the US as well as all common law systems.

Res judicata is an affirmative defense to a civil trial and can be introduced to get the case thrown out immediately without a court appearance.

Double jeopardy is an affirmative defense to a criminal matter that has already exhausted due process.

There are no defenses or maxims that preclude civil action when a not guilty verdict is reached.

The criminal matter only determines guilt of crime and only when a guilty verdict or plea is reached, does restitution apply. The bar is set very high for criminal allegations because freedom is involved. The standard and burden for proof in civil matters is lower and always has been. This includes Australia. The civil case is only to determine civil liability and tht can result even if a crime was not committed.

Common law negligence is defined in this example as:

1. Having as duty to drive safe
2. A breach of that duty
3. Damages
4. The damages are the DIRECT result of the breach

Negligence can still be established as a basis for damages even if the negligence does not rise to the level of criminal conduct.

All a guilty verdict says is that the state did not prove its case. In common law Scotland, they have a verdict called "not proven".

Many people think a not guilty plea is a claim by the court that a Defendant is innocent and it is not.

I have explained this in detail but I still expect those who don't like me to disagree even though they know nothing about what I just went over.

That won't stop them though.

I will keep laughing.

Yeah, I am an internet wannabe.

Sure.

[djh_raider]

There are only 2 common law maxims that preclude a case from being brought.

One in civil law and one in criminal law.

The first is called double jeopardy and I don't think I have to explain it to anybody.

Everybody knows you can't be tried for the same case twice (unless you violate both federal & state law). The civil law counterpart is called res judicata. Res Juudicata says you can't be sued for the same cause of action in a civil matter. Because common law systems view civil and criminal law based on separate merits, there is no maxim in law that crosses over and precludes civil action from being taken after a criminal matter has been adjudicated to a not guilty verdict.

jlh is confused and has mangled and convoluted these two legal principles that apply both in Australia and the US as well as all common law systems.

Res judicata is an affirmative defense to a civil trial and can be introduced to get the case thrown out immediately without a court appearance.

Double jeopardy is an affirmative defense to a criminal matter that has already exhausted due process.

There are no defenses or maxims that preclude civil action when a not guilty verdict is reached.

The criminal matter only determines guilt of crime and only when a guilty verdict or plea is reached, does restitution apply. The bar is set very high for criminal allegations because freedom is involved. The standard and burden for proof in civil matters is lower and always has been. This includes Australia. The civil case is only to determine civil liability and tht can result even if a crime was not committed.

Common law negligence is defined in this example as:

1. Having as duty to drive safe
2. A breach of that duty
3. Damages
4. The damages are the DIRECT result of the breach

Negligence can still be established as a basis for damages even if the negligence does not rise to the level of criminal conduct.

All a guilty verdict says is that the state did not prove its case. In common law Scotland, they have a verdict called "not proven".

Many people think a not guilty plea is a claim by the court that a Defendant is innocent and it is not.

I have explained this in detail but I still expect those who don't like me to disagree even though they know nothing about what I just went over.

That won't stop them though.

I will keep laughing.

Yeah, I am an internet wannabe.

Sure.

You are blowing a lot of hot air saying things that no one is disagreeing with you on.

Australia is a Common Law country. I never said it was not.

You have given examples of negligence for civil law cases. No disagreement there. The Australian website I provided a link to says the same. No where does it state that you can sue someone in a civil case for a matter that has to be heard in a criminal case.

No where have you addressed the issue of a civil law case that results from a not guilty verdict in a criminal trial or even a guilty verdict in a criminal trial in Australia. It does not happen and for reasons I have stated previously.

I am not confused. It is absolutely clear in Australia.

Even in the case where a traffic accident occurs, I am convicted of a "crime" (say DUI) in relation to the accident, and you are hurt, you still cannot make a claim for damages to the civil court as damages will be awarded as part of the criminal trial or your will be referred to the Vitims of Crime compensation for that particular state.

As for the "Double Jeopardy" maxim, it has already been repealed in certain countries. You make it sound like it is the same the world over. It is not. The UK abolished it in 2005 and the Stephen Lawrence case was re-tried this year and the perpetrators were found guilty.

Currently, in the New South Wales and Queensland, Australia, the state govenments are looking to repeal the Double Jeopardy law. Two states, South Australia and Tasmania, have already repealed the law. There is also debate ongoing at the Federal level.

While there is commonality between Common Law countries, the interpretation and application of the law often differs. The USA is more "rights oriented" where in Australia there is more "official centric".

You are looking at everything from a US, perspective. What you fail to recognise is that, from the Constitution of the countries through the law, there are differences, sometimes major, even though both countries are "Common Law" countries in principle.

[Da Swami]

You are blowing a lot of hot air saying things that no one is disagreeing with you on.

Australia is a Common Law country. I never said it was not.

You have given examples of negligence for civil law cases. No disagreement there. The Australian website I provided a link to says the same. No where does it state that you can sue someone in a civil case for a matter that has to be heard in a criminal case.

No where have you addressed the issue of a civil law case that results from a not guilty verdict in a criminal trial or even a guilty verdict in a criminal trial in Australia. It does not happen and for reasons I have stated previously.

I am not confused. It is absolutely clear in Australia.

Even in the case where a traffic accident occurs, I am convicted of a "crime" (say DUI) in relation to the accident, and you are hurt, you still cannot make a claim for damages to the civil court as damages will be awarded as part of the criminal trial or your will be referred to the Vitims of Crime compensation for that particular state.

As for the "Double Jeopardy" maxim, it has already been repealed in certain countries. You make it sound like it is the same the world over. It is not. The UK abolished it in 2005 and the Stephen Lawrence case was re-tried this year and the perpetrators were found guilty.

Currently, in the New South Wales and Queensland, Australia, the state govenments are looking to repeal the Double Jeopardy law. Two states, South Australia and Tasmania, have already repealed the law. There is also debate ongoing at the Federal level.

While there is commonality between Common Law countries, the interpretation and application of the law often differs. The USA is more "rights oriented" where in Australia there is more "official centric".

You are looking at everything from a US, perspective. What you fail to recognise is that, from the Constitution of the countries through the law, there are differences, sometimes major, even though both countries are "Common Law" countries in principle.

Name ONE MAJOR difference.

Just ONE!

By that, I assume you mean substantive doctrines of law right?

Nothing else is major.

Most of what you wrote is not even relevant to this discussion. So they are considering repealing double jeopardy? So what? What does that have to do with anything I wrote? I only brought it up to provide an example of a doctrine that supports claim preclusion. Double Jeopardy originated in America and is not part of the British Common Law system anyway. There are minor differences and they are procedural with some being philosophy differences as you pointed out. That is not substantive law.

Your response reads like you researched Wikipedia and aren't sure how to connect it to the concepts I am talking about.

However, since you like Wiki:

Civil law (common law) - Wikipedia, the free encyclopedia

This link says the same thing too and is not ambiguous.

The site EXPLICITLY MENTIONS IT down where it talks about civil law.

Do I need to re post the other one too?

Well I will as it also mentions O.J. Simpson.

Criminal law and civil law, Areas of law, Law and society, Commerce Year 9, NSW | Online Education Home Schooling Skwirk Australia

ALL COMMON LAW COUNTRIES ALLOW THIS BECAUSE IT IS A PILLAR OF THE VERY DEFINITION OF THE TERM. I can't cite a case because legal cases are judged separately as I am saying so there are no cross references. Unless it hit the media, nobody will know the two are connected.

Where did you study law?

Again, you are confusing restitution with civil remedies. Should a court award restitution in America, you cant double dip either. However, negligence can arise from a traffic accident that does not rise to criminal behavior. You are judging them on the same standard and that is flawed. Claim preclusion is limited to double jeopardy & Res Judicata in common law systems. Fact preclusion prevents a litigant from denying facts. (collateral estoppel) That is it! You are confused! I produced the two legal doctrines that preclude action in civil and criminal law. All preclusion must be based on a substantive doctrine of law. What is it? Civil law systems are the only legal systems that do what you say.

Napoleanic law does not base civil and criminal law on separate merits.

Therefore, you are denying Australia is a common law state. There would be a doctrine of law to preclude it and there is not. You are in way over your head here and have confused procedural law with substantive law. The Doctrines of law that the US uses are EXACTLY the same ones all former colonies of the British Empire use. Doctrines are substantive law and the substantive issues are all the same with procedural policies being the ONLY DIFFERENCES.

I taught international law also so arguing with me is amusing.

You are mangling terms and definitions.

The sites I linked both explain the common law system and both reference the O.J. case in the same context we are debating.

I have more than proven my case Oh confused one.

[OklahomaRaider]

Rolando mcclain!!!!!!!!!!!

[SLVR and Black]

Rolando mcclain!!!!!!!!!!!

Sounds more like the name of someone who would be selling fine jewelry than an NFL linebacker. Am I wrong?

[raiderArt]

Rolando mcclain!!!!!!!!!!!

You sir are out of order!!!! Now sit down this instant before you are held in contempt of this message board court!!!!

[Da Swami]

Rolando mcclain!!!!!!!!!!!

Order in the court! LOL

[djh_raider]

Name ONE MAJOR difference.

Just ONE!

By that, I assume you mean substantive doctrines of law right?

Nothing else is major.

Most of what you wrote is not even relevant to this discussion. So they are considering repealing double jeopardy? So what? What does that have to do with anything I wrote? I only brought it up to provide an example of a doctrine that supports claim preclusion. Double Jeopardy originated in America and is not part of the British Common Law system anyway. There are minor differences and they are procedural with some being philosophy differences as you pointed out. That is not substantive law.

Your response reads like you researched Wikipedia and aren't sure how to connect it to the concepts I am talking about.

However, since you like Wiki:

Civil law (common law) - Wikipedia, the free encyclopedia

This link says the same thing too and is not ambiguous.

The site EXPLICITLY MENTIONS IT down where it talks about civil law.

Do I need to re post the other one too?

Well I will as it also mentions O.J. Simpson.

Criminal law and civil law, Areas of law, Law and society, Commerce Year 9, NSW | Online Education Home Schooling Skwirk Australia

ALL COMMON LAW COUNTRIES ALLOW THIS BECAUSE IT IS A PILLAR OF THE VERY DEFINITION OF THE TERM. I can't cite a case because legal cases are judged separately as I am saying so there are no cross references. Unless it hit the media, nobody will know the two are connected.

Where did you study law?

Again, you are confusing restitution with civil remedies. Should a court award restitution in America, you cant double dip either. However, negligence can arise from a traffic accident that does not rise to criminal behavior. You are judging them on the same standard and that is flawed. Claim preclusion is limited to double jeopardy & Res Judicata in common law systems. Fact preclusion prevents a litigant from denying facts. (collateral estoppel) That is it! You are confused! I produced the two legal doctrines that preclude action in civil and criminal law. All preclusion must be based on a substantive doctrine of law. What is it? Civil law systems are the only legal systems that do what you say.

Napoleanic law does not base civil and criminal law on separate merits.

Therefore, you are denying Australia is a common law state. There would be a doctrine of law to preclude it and there is not. You are in way over your head here and have confused procedural law with substantive law. The Doctrines of law that the US uses are EXACTLY the same ones all former colonies of the British Empire use. Doctrines are substantive law and the substantive issues are all the same with procedural policies being the ONLY DIFFERENCES.

I taught international law also so arguing with me is amusing.

You are mangling terms and definitions.

The sites I linked both explain the common law system and both reference the O.J. case in the same context we are debating.

I have more than proven my case Oh confused one.

Still with the name calling and no you have proven nothing. And no, I haved not used Wikipedia as a source.

To clarify a couple of things. I am not denying Australia is a Common Law state. You are saying I am.

If Double Jeopardy "originated in America and is not part of the British Common Law system", how come it is part of the British Common Law system of every country that the British colonised (except where it has already been repealed)? Are you saying the the US came up with Double Jeopardy and then all these countries (including Britain) decided to include it? If so, care to explain this (seeing you used Wiki, so can I):

The doctrines of autrefois acquit and autrefois convict persisted as part of the common law from the time of the Norman conquest of England; they were regarded as essential elements of protection of the liberty of the subject and respect for due process of law in that there should be finality of proceedings.

For your information, the Norman conquest of England was in 1066 when America was not even known of.

You are still providing a link to a school reference site for 15 years olds, and now you are throwing in Wikipedia as a source. I would have thought that someone with the law experience you would be able to provide better references than these and the message board sites you gave earlier.

If you really want to start to find out the differences between US and Australian law, you can start with The Tulane Journal of International and Comparative Law. I am not going to bore people with the detail. Look it up if you care to. There are PDF's only there totalling over 500 pages detailing the differences between US and Australian law with references. I already know that your response will be that they are wrong and you are right. I would think that when these documents start at the top that the difference starts with the Constitutional differences between the 2 countries and the different scenarios surrounding the drawing up of their constitutions (US after revolution, Australia not) that differences between Common Law in the 2 coutries would be found.

I asked you to provide evidence of 1 case in Australia where someone found not guilty of a crime in a criminal court that has been successfully sued in civil court. All you came back with was some BS about rulings not being published, etc., etc. You are incorrect in this regard as well. There are rulings and judgement pages for the Federal Court of Australia, High Court of Australia, as well as the State courts, etc.

Please do not bother us all with responding as everyone on here gets your drift that you are right on all Australia law and someone who was born and grew up there, living there for over 35 years, knows nothing. Ironic seeing that after the OJ civil case everyone in Australia was saying "only in America".

[Rainman56]

[Da Swami]

Still with the name calling and no you have proven nothing. And no, I haved not used Wikipedia as a source.

To clarify a couple of things. I am not denying Australia is a Common Law state. You are saying I am.

If Double Jeopardy "originated in America and is not part of the British Common Law system", how come it is part of the British Common Law system of every country that the British colonised (except where it has already been repealed)? Are you saying the the US came up with Double Jeopardy and then all these countries (including Britain) decided to include it? If so, care to explain this (seeing you used Wiki, so can I):


For your information, the Norman conquest of England was in 1066 when America was not even known of.

You are still providing a link to a school reference site for 15 years olds, and now you are throwing in Wikipedia as a source. I would have thought that someone with the law experience you would be able to provide better references than these and the message board sites you gave earlier.

If you really want to start to find out the differences between US and Australian law, you can start with The Tulane Journal of International and Comparative Law. I am not going to bore people with the detail. Look it up if you care to. There are PDF's only there totalling over 500 pages detailing the differences between US and Australian law with references. I already know that your response will be that they are wrong and you are right. I would think that when these documents start at the top that the difference starts with the Constitutional differences between the 2 countries and the different scenarios surrounding the drawing up of their constitutions (US after revolution, Australia not) that differences between Common Law in the 2 coutries would be found.

I asked you to provide evidence of 1 case in Australia where someone found not guilty of a crime in a criminal court that has been successfully sued in civil court. All you came back with was some BS about rulings not being published, etc., etc. You are incorrect in this regard as well. There are rulings and judgement pages for the Federal Court of Australia, High Court of Australia, as well as the State courts, etc.

Please do not bother us all with responding as everyone on here gets your drift that you are right on all Australia law and someone who was born and grew up there, living there for over 35 years, knows nothing. Ironic seeing that after the OJ civil case everyone in Australia was saying "only in America".

I went to wiki because a forum that explains common law is the only place you will find that answer the way you are demanding it.

That's why I also found the other site.,

The answer lies in the VERY DEFINITION of a common law system and you are mangling it with contradictory claims.

Rulings that cross reference other cases other than citations to support the civil theory in the case?

Find me one.

I didn't say that rulings weren't published, I said they don't reference cases to allow one to connect them like that. Twisting my words to save face huh? Nowhere in a civil law judgment does the court reference whether the case also spawned a criminal conviction. Cases are not cited that way. I never said cases weren't recorded in law journals. Are you paying or just looking to argue? The merits are exclusively independent of each other as I have stated. The Tulane Journal lists procedural and legal philosophy differences and not substantive doctrines. I am well aware of it Son. They are 100% right. However, nowhere in the journal does it say what you are claiming. There are differences but not outright contradictions of common law maxims like this. That would be codified in a legal doctrine ONLY such as double jeopardy and res judicata. I showed you the AIDS case where the guy was found not guilty but was sued anyway.The aids case proved that the merits are separate and all I would have to do to get around a preclusion is file the civil action first. You responded by saying the order was reversed and asked for one where the Defendant was found not guilty BEFORE SUING.

That's weak.

You are claiming Australia administers civil law legal concepts and that's a claim it is a civil law society.

Where is the proof Australia is a civil law system?

You can't have it both ways.

You are claiming Australia is a civil law society otherwise.

First, how does a clerk know that the case a person just filed is connected to another criminal matter? Give this some thought. Unless the person tells them? That is not how law is administered anywhere. The case gets filed and the defense is introduced in a demurrer or the answer. Claim preclusion is a defense and I showed you the only two that exist. You attempted to claim that only CIVIL WRONGS can be sued in civil court. You fail to realize that only in civil law systems does a crime get initiated as a crime against an individual. Common law states define the state as the victim therefore discrediting your claim there are criminal wrongs and civil wrongs against individuals in a common law society.

Only civil wrongs are acts that violate the individual.

Criminal acts violate the state with the victim being a witness.

That is a common law system.

I am not disputing that damages awarded in restitution can't be sued for. That would negate the damages if the person was awarded them and was made whole.That is a defense against a civil matter if it works that way. Once a person has been made whole, they no longer have damages unless the restitution did not address all damages. However, restitution is not a preclusion to civil matters not covered under the restitution. As long as there are more damages, a civil option is available.

Besides, do you realize how you are representing your country with your claims? Australia is not that ****ed up of a country that would preclude damaged parties from seeking equitable relief on matters that are collateral to the criminal act. Criminal trials have a higher burden of proof and are not ruling on civil damages. Restitution is very narrowly defined.

The only reason OJ was found liable is because he didn't have the protection against self incrimination in the civil trial like he did the criminal trial. He couldn't answer the questions that he could not be asked in the criminal trial and his freedom was not in jeopardy. Civil liability is a whole separate issue from criminal liability and the questions before the court are different using different standards and burdens.

Name the doctrine of law that forbids it then.

Show me a statute?

Something?

Anything?

Do you really think the average American is capable of understanding all aspect of American law?

Why do law professors bother going to college if the average man on the street knows this stuff just because he lives there?

You ought to be able to show a legal doctrine that precludes legal action if that's the case.

These are universal legal concepts and Australia is not that unique.

Are you saying the Aussie site I showed you is misleading HS kids?

A site like that is the only form of evidence you will see that way. This is known as substantive law and it is implied. This is not statutory. Law is proactive and not reactive and nothing precludes anybody anywhere from filing. The case gets tossed and is determined to be precluded in an affirmative defense when the Defendant answers the complaint.

Otherwise, how does the clerk know?

Does the clerk reject the complaint summarily?

If there are cross references, then show me an example.

You can't because it wouldn't be a common law system otherwise.

I believe you know speed limits and other laws but you want me to believe you know what they teach students in post graduate law school?

You must be pissed mate and like I said, that barking spider is giving off a real stench.

You are full of ****!

The answer lies in the definition of a common law system and not a statute or case. I would find numerous cases if they were referenced that way.

How does the clerk know?

Does the clerk reject the case?

Tell me how it works and how the clerk knows that the case was connected to a criminal matter?

But please don't tell me Australia is a common law state that administers civil law procedure.

That is a claim Australia is a civil law society whether you know it or not.

You cant answer any of these questions despite the claim you know law.

Dude, you are reaching joke status to me.

Finally, the idea of double jeopardy had been tried but it only applied to Barons and Aristocrats. The USA was the first country to apply it to commons. I am not sure how that matters just like your reference to the Norman conquest is completely irrelevant to this discussion.

You went to WIKI and its obvious.

Besides, given the injustices your claim would lead to, it sounds as if Americans should be saying "only in Australia".

You would have to go to law school for 8 years to fully comprehend this stuff.

What school did you attend?

Why are you claiming Australia administers civil law concepts when it is a common law society?

You should have quit a long time ago Son.

[cheapshotartist]

Damn a mfer needs to go to law school to talk sh!t around here.

[Da Swami]

Damn a mfer needs to go to law school to talk sh!t around here.

No they need to go to be able to talk coherently about such a topic should they weigh in.

One can talk all the **** they want and I support the free speech rights of those who choose to make fools of themselves like this clown did.

I guess the man on the street can teach law if he lives somewhere long enough.

Good grief!

[djh_raider]

I should have found this earlier.

In the OJ Simpson case, the 'Civil' trial sought damages through a verdict of "wrongful death". As per the document on the link underneath, this is not allowed under Australian law:

http://www.google.co.za/url?sa=t&rct...9Nfh4DHVAhavkQ
To quote the Introduction on Page 16:

At common law, the family of a person whose death was caused by the wrongful act of another person was unable to bring an action against the wrongdoer for damages for the loss suffered as a result of the wrongful death. The common law rule, which was formulated in the early nineteenth century, was probably based on a misconstruction of previous English authority. Nonetheless, the rule became firmly established in the United Kingdom and in Australia, with the effect that it was:
… impossible for a plaintiff to sue a defendant for a wrong committed by the defendant to the plaintiff, when that wrong consists in damage causing the death of a person in the continuance of whose life the plaintiff had an interest.

The document was produced by the Queensland Law Reform Commission. The recommendations from this report have not been enacted by the Queensland parliament. Similar reviews have been held in other states with similar results.

[cheapshotartist]

I though the title of this thread was debate on McClain? What happened?