Civil Lawyers Research Articles

Trauma‐informed lawyering in the context of civil claims for sexual violence

AbstractOver the last decade, there has been an increase in civil compensation claims for sexual violence in the United Kingdom (UK). Given that trauma‐informed approaches have been called for in relation to legal responses to sexual violence, we put forward seven key principles of trauma‐informed lawyering in this context and draw on interviews with UK‐based civil lawyers who represented sexual violence survivors to explore the extent to which trauma‐informed work is taking place. While we found that our sample of lawyers typically had a very good knowledge of sexual violence and the trauma that it can cause, there was less certainty about how to accommodate the impacts in practice. Moreover, there was a tendency to prioritize individual healing and medicalize a form of social injustice. We conclude by emphasizing the need for legal training and education on a trauma‐informed approach that accounts for the social and political dimensions of sexual violence and trauma.

While English Lawyers Say No, Civil Lawyers Say Yes. The Intriguing Case of Frustration of Purpose in Comparative Law

A curiosity in comparative law is found in the doctrine of frustration of purpose, created by the English courts in 1903, which never took flight and remained a rarity of exceptional application, but at the same time, it was looked upon favorably by certain civil lawyers – especially Latin-Americans – who defended the importation of frustration of purpose with urgency. This paper explains that frustration of purpose is unnecessary and redundant for Civil Law jurisdictions.

Doctors’ Commons: the Civilians’ Influence on Equity and Trusts

Abstract The core of this article lies in its broad examination of the influence that civil law and the now defunct Doctors’ Commons may have had on equity and trusts. Doctors’ Commons was like an Inn of Court for civil lawyers based in England. Historically, these civilian practitioners had a monopoly over certain legal jurisdictions, including wills and probate. To show the civilians’ influence, this article examines Doctors’ Commons’ dominion over the proving of wills. It further looks at the civil law’s possible development of equity’s core concepts, with a specific focus on the Graeco-Roman concept of “conscience”.

Civil and arbitration proceedings in the new economic conditions

The challenges of modernity are forming new realities in the implementation of legal norms, including in the field of civil and arbitration proceedings. In this regard, the authors set a goal to analyze the features of legal relations developing in these areas in their relationship with the new economic conditions generated by recent world events. The authors analyzed the statistics of the growth in the number of court cases in recent years, as well as the studies of civil lawyers in this area, on the basis of which the conclusion was made about the need to consider the prospects of civil and arbitration proceedings. By means of a comparative analysis, the sphere of relations concerning the relevance of applying to international arbitration at the present time, as well as the practice of considering cases at this level, is investigated. The main directions that will cause difficulties in international proceedings in modern political and economic conditions are identified and a possible solution is identified — the prospect of applying to neutral international arbitration centers. The domestic practice of civil and arbitration proceedings has been studied and some ways of solving difficulties in terms of improving the judicial system and possible options for reducing the burden on the courts, taking into account the opinions of scientists and practicing lawyers, have been identified. The conclusion is made about the need for a global judicial reform with a possible partial solution of the identified problems by turning to the field of information technologies, which are successfully used by the state in the provision of public services and as an analogue could be used in conducting civil and arbitration proceedings.

Chancellors as civil lawyers—and the equitable notion of “fraud”

Abstract Professor Lupoi traces equity’s origins back to Rome’s ius commune. He explains that Chancellors were doctors in civil law. Until Henry VIII’s breach with Rome, Chancellors were also Bishops. Their cultural and spiritual anchors were very distinct from those dispensing justice in common law courts. In the course of the fourteenth century common law courts surrendered their discretionary powers and disavowed any reliance on conscience and opted for rigor juris. Equitable doctrines, enacted by Chancellors and Masters who knew only Roman and canon law, prevented unconscientious exercise of a plaintiff’s rights at law. Professor Lupoi explains the similarity between “fraus” in Roman law and “fraud” in English equity and that whilst France, Germany and other countries of continental Europe squandered the Roman law inheritance, English equity holds the torch for Roman principles.

CONCEIVED AND REAL CODIFICATIONS: ON THE COMPETITION OF COMMENTARY AND TEXTBOOK IN LATIN AMERICAN CIVILIZATION

With the “glosa” on the Siete Partidas (13th century) by G. López (16th century), Latin America possesses an excellent example of a commentary on a civil law code, actually one of the greatest of the civil law tradition. Yet, the Latin American countries did not develop, as a rule, a proper culture of commentaries, albeit they gave themselves civil codes around the middle of the 19th century. The most important of these codifications, the Chilean civil code by Andrés Bello, is even a conscious continuation of the tradition enshrined in the Siete Partidas. In most countries, authors prefer instead to write textbooks. This choice seems to be explained by the fact that this literary form gives them more freedom to distance themselves from their civil codes, which are considered rather historical monuments than living legal texts. Commentaries appear only where the civil lawyers deal with a modern codification which is the case in Argentina and Brazil.

The role of Legal Aid NSW in addressing the civil legal needs of participants in High Intensity Units (HIPUs) in prisons

ABSTRACT Legal Aid NSW civil lawyers provide community outreach clinics and civil legal assistance to address the civil legal needs of participants in High Intensity Program Units (HIPUs) in prisons in New South Wales (NSW), Australia. Semi-structured interviews were conducted with Legal Aid NSW staff to explore their work in HIPUs. Interviews focused on the types of civil legal issues faced by HIPU participants, the value of providing such services in the HIPUs and the challenges and barriers associated with this work. The findings indicated that HIPU participants have a range of civil legal needs including issues relating to housing and tenancy, outstanding debts, welfare payments, victims’ compensation, driver disqualification, tort claims and family law matters. Successful resolution of these matters can be critical for ensuring the best chance of post-release desistance from crime. However, provision of civil legal services in prisons can be adversely impacted by practical and operational issues attributable to the time- and resource-intensive nature of this work. Some of these barriers include considerable travel times to prison, delays upon arrival at the prison and unexpected lockdown procedures.

Trust registries, discretionary trusts and beneficial owners: a dubious gift from civil lawyers?

Abstract Registries have lately been introduced in several jurisdictions for the purpose of identifying the beneficial owners of trust property. This article examines the design of the UK registry from an Australian perspective. Problems of coherence and over-inclusion are identified in the way that the registry applies to discretionary trusts. “Control over the trust” senses of “beneficial owner” are examined in the light of good drafting criteria and authoritative statements of trusts law. Whether legislation enacting the registry will withstand future judicial scrutiny is questioned.

Presuit Lawyer Information Duties Relevant to Civil Litigation

Presuit Lawyer Information Duties Relevant to Civil Litigation Emeritus Professor Jeffrey A. Parness Northern Illinois University College of Law 105 Marquette University Law Review ___ (forthcoming 2022) In both federal and state courts in the United States, there are significant civil procedure, professional responsibility, and substantive laws addressing presuit lawyer duties on creating, preserving, producing, and protecting information relevant to later civil litigation. These laws speak to lawyer conduct both in personally handling information and in overseeing the information acts of others. To date, the challenges these laws pose to lawyers have not been well examined, or even largely perceived. And, to date, lawyers have been left unaccountable for their personal violations of these duties. This article is the first to survey presuit lawyer information duties. It reviews more general laws that sometimes distinguish between certain types of information (as between esi and nonesi); vary between states; differ in federal and state settings; and, appear in several sources simultaneously (including statutes, court rules, and precedents). It also reviews some very special laws that are applicable to very particular information (like x-rays) or to limited types of lawsuits (like medical malpractice). The challenges posed by these laws are magnified when later civil litigation might involve several possible forums, with multistate lawyer or lawyer-related conduct. The article utilizes the 2001 federal circuit decision in Silvestri v. GMC, a prominent ruling on the federal procedural common law duty to preserve information, to explore presuit lawyer information duties. The paper suggests possible new written laws and common law precedents to serve better the goal of just, speedy and inexpensive determination of every action and proceeding, as well as to guide civil lawyers on their obligations and civil judges on their enforcement powers. In particular, the article urges that lawyers (and their law firms), rather than or together with their clients, be held more personally accountable for presuit information duty violations, not unlike the accountability demanded of lawyers for their presuit pleading violations and for some of their presuit discovery violations. The article encourages greater employment of professional responsibility mechanisms when presuit lawyer information duties are breached, with use prompted by more disciplinary referrals by judges and lawyers that are expressly referenced in civil procedure discovery laws, as in some civil procedure pleading and motion practice laws. Finally, the article demonstrates the opportunities for substantive law claims on behalf of those harmed by presuit lawyer information failures, including claims in spoliation and/or malpractice.

Pursuing claims in Polish civil process

This article presents an outline of the basic issues of pursuing claims in Polish civil process and, more broadly, in Polish civil proceedings. It contains a short introduction to the history of the Polish Code of Civil Procedure, taking into account the period before World War II, the post-war period, and the period after the political transformation of 1989–1990. The article indicates a characteristic change in the leading principles of civil procedure in Poland over the last 30 years and the influence of foreign legislation and foreign doctrine on the position of Polish science in the civil process. The article explains the basic concepts of Polish civil procedural law, taking into account the last major amendment to the Code of Civil Procedure of July 4, 2019. It discusses the way to obtaining judicial legal protection in civil and non-litigious proceedings. When discussing specific issues of consideration of claims in civil proceedings, it should be kept in mind that every year Polish courts consider about 20 million civil cases (including arbitration cases), while criminal cases in Poland are considered 10 times less. This shows the leading role of civil law and judicial proceedings in the Polish justice system and public relations in Poland. This also means that a much larger number of civil lawyers are required in the legal field than lawyers specializing in criminal cases. In the general courts, we have much more judicial boards that apply the provisions of civil proceedings than the boards dealing with criminal cases. Some lawyers are engaged exclusively in the application of civil law and civil proceedings, for example, bailiffs, judicial assistants, judges of collegiums in civil cases, notaries. Also, the vast majority of legal advisers provide legal services in civil cases, although they are also allowed to act as defenders in criminal cases.

Łukasz Jan Korporowicz. Prawo rzymskie w Anglii w XVIII wieku. Nauczanie, studia, nauka. Łódź: Wydawnictwo Uniwersytetu Łódzkiego, 2019, stron 237

Łukasz Jan Korporowicz. Roman Law in Eighteenth-Century England. Teaching, Studying, Scholarship. Łódź: Lodz University Press, 2019, 237 Pages This review presents a book recently authored by Łukasz Jan Korporowicz on the presence of Roman law in eighteenth century England. The book is divided into five chapters that deal with following issues: 1) teaching of ius civile in Oxbridge, 2) teaching of ius civile outside the universities, 3) the study of Roman law and obtaining formal degrees, 4) the impact of civil lawyers on the socio-political environment of England, and finally, 5) literature on Roman law.

A COMPARISON OF THE COMMON LAW BASED DUTY WITH ITS CIVIL LAW EQUIVALENT

The article discusses the features of civil law in different countries. The authors studied the origins of the modern tradition of civil law, comparing the legal systems of two European countries. One of the traditional classifications of duties in civil law is analyzed, the conclusion is made about the inappropriateness of the allocation of personal and universal duties. In comparative law, there are many situations where the same legal term has different meanings, or where different legal terms have same legal effect. This confusion most often occurs when civil lawyers have to deal with common law, or vice versa, when common law lawyers deal with civil law issues. While there are many issues which are dealt with in the same way by the civil law and common law systems, there remain also significant differences between these two legal systems related to legal structure, classification, fundamental concepts, terminology, etc. As lawyers know, legal systems in countries around the world generally fall into one of two main categories: common law systems and civil law systems. There are roughly 150 countries that have what can be described as primarily civil law systems, whereas there are about 80 common law countries. The main difference between the two systems is that in common law countries, case law – in the form of published judicial opinions – is of primary importance, whereas in civil law systems, codified statutes predominate.

The Binding Force of Unilateral Promises in the Ius Commune before Grotius

The idea that a simple unilateral promise, until it is accepted, is not binding according to natural law is defended by Grotius in his major work with an argumentation drawn directly from Lessius, an important source of inspiration for the Dutch jurist, who in turn solves the dispute rooted in the tradition of ius commune. This article aims to reconstruct, in its essential stages, an itinerary through the main positions of medieval and early modern civil and canon lawyers about this controversial issue. These sources constitute the background of early modern scholastics and Grotius as well. The paper analyses some of the principal texts of both bodies of law, highlighting arguments and adding new findings. Notably it is shown that Lessius’s and Grotius’s statements represent a turning point, as far as they react against the resumption of the theory of the binding force of simple unilateral promises in the sixteenth century. With Lessius and Grotius, on the other hand, acceptance became a necessary requirement for every transfer of rights and duties to be enforceable.

Fundamentos de las sentencias casatorias sobre tercería de propiedad y sus implicancias frente a las pretensiones de la parte demandante.

El problema radica en que muchas veces el tercerista no obtiene una sentencia favorable a sus pretensiones, e incluso en sede casatoria pocas veces se le reconoce su derecho. A pesar que el tercerista acredita con documento público o privado la propiedad del bien, otras circunstancias jurídicas procesales impiden que su derecho sea reconocido judicialmente. Precisamente, son las sentencias casatorias quienes nos proporcionan los fundamentos principales por el cual, el tercerista muchas veces no logra su pretensión. Se presenta el caso, de las sentencias casatorias correspondientes a procesos de tercerías de los años 2015-2016 nos han permitido conocer a cabalidad los fundamentos que inciden directamente en el fallo de la sentencia; asimismo, se puede conocer los aspectos principales que se dan en el debate judicial por la prevalencia del derecho real (propiedad) sobre el derecho personal (crédito) a pesar de que este último pueda estar debidamente inscrito. Investigación descriptiva, correlacional y explicativo. La investigación se ha desarrollado en una población de abogados civilistas de la jurisdicción de Tacna. Asimismo, se ha tenido en cuenta el análisis documental representado por las sentencias casatorias. Los instrumentos de medición han sido los cuestionarios y la guía de análisis documental. Se concluye que los principales fundamentos de las sentencias casatorias analizados sobre tercería de propiedad están referidos a la inscripción registral, la prevalencia del derecho real de la propiedad sobre el derecho personal y requisitos de procedibilidad del recurso de casación, denotando un favorecimiento regular a los demandantes.

PETRARCA GHIBELLINO? ROMA E L’IMPERO NEI RERUM FAMILIARIUM LIBRI

A few, but very meaningful pieces from Petrarch’s Familiari deal with the Holy Roman Empire and its institutions, especially because of the role they played in italian politics. Although Petrarch is not a systematic political thinker, the imperial idea of Rome plays a pivotal role. It seems possible to demonstrare that Petrarch has been influenced by official documents by Henry VII, eventually Manfred of Suabia, and mostly by civil lawyers and the sources of Roman law. These last item belongs to Petrarch’s commitment towards a recovery for his present days of Roman classical heritage. All this said, political issues still play only an instrumental role, connected with the immediate needs of those powers, the Visconti household first and most but also emperor Charles IV himself, Petrarch was intimately connected to. Though Petrarch sincerely advocates Roman classical tradition, he is a ghibellino only for a matter of opportunity, or rather of the opportunity of those powers he decided to serve, and their immediate political needs.

PETRARCA GHIBELLINO? ROMA E L’IMPERO NEI RERUM FAMILIARIUM LIBRI

A few, but very meaningful pieces from Petrarch’s Familiari deal with the Holy Roman Empire and its institutions, especially because of the role they played in italian politics. Although Petrarch is not a systematic political thinker, the imperial idea of Rome plays a pivotal role. It seems possible to demonstrare that Petrarch has been influenced by official documents by Henry VII, eventually Manfred of Suabia, and mostly by civil lawyers and the sources of Roman law. These last item belongs to Petrarch’s commitment towards a recovery for his present days of Roman classical heritage. All this said, political issues still play only an instrumental role, connected with the immediate needs of those powers, the Visconti household first and most but also emperor Charles IV himself, Petrarch was intimately connected to. Though Petrarch sincerely advocates Roman classical tradition, he is a ghibellino only for a matter of opportunity, or rather of the opportunity of those powers he decided to serve, and their immediate political needs.

The Sentencing Provisions of the International Criminal Court: Common Law, Civil Law, or Both?

The sentencing provisions of the Rome Statute of the International Criminal Court combine features of both common law and civil law systems. This paper compares the sentencing provisions of representative common law and civil law jurisdictions with those of the International Criminal Court ('ICC') as a means of determining how the as yet untested ICC sentencing provisions will operate and determining what potential dejiciencies they may have. This article also considers how the ICC sentencing provisions will be perceived by participants in the process (common and civil lawyers sitting as judges or acting for prosecuting or defence) and by the wider public. Some recommendations are made in the conclusion of this article in respect of addressing shortcomings in the ICC sentencing provisions.

The barratry of the shipmaster in early modern law: polysemy and mos Italicus

Summary ‘Barratry’ is a polysemic term: it means deceit, bribe, simony, and fraud of the shipmaster. This article seeks to trace the origins of the word and to explore its different meanings, focusing especially on the influence that older meanings had on the development of more recent ones. This operation is of particular importance to understand the meaning of barratry that would appear for last – that of fraud of the shipmaster. By the time civil lawyers started dealing with maritime barratry, they were already well familiar with the other meanings of the term. This probably favoured the adaptation process, but it also left a deep mark on its outcome: the weight of those other meanings of the same term had a significant influence on the qualification of maritime barratry, an influence otherwise difficult to explain.

RESENHA DO ARTIGO "OS ADVOGADOS CÍVEIS SABEM UTILIZAR A CRASE"?

This is a review of the article entitled Do civil lawyers know how to use crase?. This article is authored by: Jonas Rodrigo Goncalves; Leila Rodrigues da Silva Meneses. The article reviewed here was published in the journal “Revista JRG de Studs Academics”, in Year 18, Vol.01, n.01, Jan.-Jun., 2018.

Shakespeare in the Marketplace of Words. Jonathan P. Lamb. Cambridge: Cambridge University Press, 2017. Pp. v+243.

<i>Shakespeare in the Marketplace of Words</i>. Jonathan P. Lamb. Cambridge: Cambridge University Press, 2017. Pp. v+243.