What is the difference between applicable law and governing law? there: I have a question about what the difference is between applicable law and governing law. Are they the same (one) concept or different? In addition, what is choice of law? Does it mean the plaintiff or defendant can choose the governing law or applicable law? I am not a law student. Could you give me a brief explanation or some examples about it? Thank you.
Choice of law (also called conflict of laws) arises when a legal dispute occurs across legal boundaries. For example, suppose I live in New York, and sign a contract to buy computers from you, a company headquartered in California. If we have a dispute about the contract, we need to decide which state's law and which courts (and juries) will be used to resolve the dispute. The law that applies to our dispute is called the applicable or governing law. In many cases, it doesn’t matter which law or court we use. But in some cases, it matters a lot. For example, the California law may be friendlier to customers, or a jury in New York may be friendlier to me than to a California companies. Since we know that the choice of law and court may matter, we may specify in the contract which laws and courts will be used to resolve any disputes. (These may not be the same. The contract could say that our case will be heard in the SDNY using CA law.) The clause that says which laws apply, and which courts will apply them, is called a governing or applicable law clause. Here’s an example many of us have used, probably without realizing it: APPLICABLE LAW By using any Amazon Service, you agree that the Federal Arbitration Act, applicable federal law, and the laws of the state of Washington, without regard to principles of conflict of laws, will govern these Conditions of Use and any dispute of any sort that might arise between you and Amazon.
There are two cases to distinguish: information that the other party does not want to give without court order, and information that the other party may not give without court order. Only the former case matters, of course, since the latter by definition requires a court order. So, if the other party is legally capable of giving the information, but it's commercially not sensible for them, then you'll need to sweeten the deal. And that's business, not a legal question anymore. In other words: there's no legal instrument that's at the same time equal to a court order but also different from one. When you need a court order, there's no alternative to a court order.
Mediation is non-binding Mediation and conciliation are non-binding methods of dispute resolution. If properly conducted, a mediator does not make any suggestions as to how the parties might resolve a dispute; they simply maintain a space where such a resolution might occur. If the parties reach an agreement, that agreement might be a legally binding contract. See What is a contract and what is required for them to be valid? If it is, then it could be enforced by a court. If it isn't then compliance is voluntary. What you describe is not mediation However, the agreement facilitated by Bob &amp; Fred's mutual friend either is or is not a contract and the same circumstances follow.
Generally speaking, a decision from the Court of Appeals for the District of Columbia is binding only in the District of Columbia. Courts of other jurisdictions are not required to adhere to its decisions. If the issue came up again in Virginia or Maryland, courts there would have no obligation to follow it. Virginia tort law is different from D.C. tort law, so Virginia courts would need to determine whether their law is different on this particular point.
Let's say the trustee runs into a situation where the beneficiary demands some action, and the trustee thinks this action is a really, really bad idea. Then the trustee can either say "no". Or the trustee can say "yes" and be liable (so if the action is a really bad idea then the trustee won't do this). The trustee can NOT say "yes if you sign this paper that I'm not liable for the result of this action", because the job of the trustee is to protect the beneficiary and he wouldn't be doing that.
The words "an Act" and "a law" are often used loosely to be synonymous in an every day conversation, but "a law" is a broader term. For example, the criminal code is "a law". But, while the original version of the criminal code may have been a single "act", the criminal code has almost certainly been amended by many other acts over the years after its original enactment as a single act. An "act" is a single enacted bill proposed in a single legislative session approved in a single Presidential assent. A law, in contrast, can be the result of multiple acts approved in multiple Presidential assents at different times and then codified into a single statute. Also, the term "a law" can be used correctly to refer to a particular holding of case law that is judicially created and not enacted by the legislature. For example, someone might correctly say, "there is a law that makes it illegal to breach a contract without legal justification", even though that is a case law principle, rather than a legislatively enacted rule. Confusingly, it isn't uncommon for the short title of a statute (i.e. a law) that is the product of multiple acts amending the original one, to be the short title of the original act that has been amended over the years. For example, in the United States, the "1933 Securities Act" which was the short title of the original act giving rise to that statute, is still described by that short title, despite the fact that it has been amended scores of times since then well into the 21st century. (A careful writer would say "the 1933 Securities Act, as amended"). I suspect that this practice is also followed in India, because the American practice of naming statutes in this fashion dates back to English practice that was in place before the American revolution and has continued to be followed since then. This isn't a hard and fast rule, however. Hence, another statute has the short title, "Statute of Frauds", even though it could have been described by the short title of the original act from the reign of Queen Anne. But, in the abstract, "an act" has its more narrow technical meaning. Incidentally, to prevent confusion, "the law" is a term much broader than either "an act" or "a law". The phrase "the law" encompasses not just a particular statute, but all statutes, all regulations that have the force of law, all treaties, the constitution, and all judicially created case law, not just statutes which come into being through the passage of bills as acts by the legislature.
when is it a good idea to get a lawyer? Only when you are not confident that you can put enough dedication to the matter &amp; learning curve, or when you are not confident of your ability to cope with the emotional/frustrating toll of judicial proceedings. I do not mean this in an ironic way or to challenge you. It is just important to avoid a false sense of confidence. However, if you decide to represent yourself in court, you will have much more control of your case than if you delegate it to some lawyer whose attention is split with many other unrelated cases. Also, never get intimidated by pedantic or wasted phrases such as "he who is his own lawyer has a fool for a client". In the XXI century, most urban people can read and write, Canadian laws are written in your own language, and the Internet provides many informative resources for free. Furthermore, even knowledgeable attorneys happen to be clearly wrong about the law, as I pointed out here. I feel like the bulk of the work is carefully detailing what happened which feels more like the job of a news paper editor. It involves more than that. A newspaper editor does not get entangled with subtleties of a story or of the law, and subtleties are often decisive in judicial proceedings. Litigation also involves intensive legal research so as to find case law (that is, binding court decisions) and statutes that support your position. The application of these laws to a particular case are often premised on subtleties. Hence my remark in the previous paragraph. A newspaper editor hardly ever knows what questions or evidence are required or would suffice for proving a case. This knowledge only comes through (self-)education and experience. What options exist if I don't want to pay a lawyer a bunch of money and am willing to do most of the work myself, for example would pro bono be a good option? Start by searching for "pro se" and "Canada" on the Internet. Some of the results might actually provide guidance on what procedural law(s) apply in your jurisdiction, the legislation, and so forth. As for searching case law, there should be a Canadian equivalent of http://www.leagle.com/leaglesearch (sorry I am not knowledgeable of the specifics of Canadian litigation/resources). Based on your other post, I presume you are or will be getting acquainted with the Tenancy Act. I recently addressed here a question about the Act, showcasing the combination of that legislation and contract law (interestingly, many tenants presume their issue with the landlord is strictly about landlord-tenant legislation when in fact it has to do with contract law). I am sure in a library will find plenty of useful books covering the basics of the legal system as well as the rules of civil procedure. Find out whether the public has access to case files in Canadian courts. If so, go to a courthouse and study those files. Get acquainted with the drafting and format of pleadings, motions, responses, briefs, and so forth (although in Small Claims court much of this would be unnecessary, for small claims proceedings are much more simple). This will show you the practice aspect of what you learn from books. When using a term that you consider essential to your case, be sure to consult its meaning in a legal dictionary (I do not know whether Black's Law Dictionary is applicable in Canadian litigation). The meaning of many words are much more specific in litigation compared to their common usage. Or would getting a real lawyer and spending only one hour of his time be better? I highly doubt it, especially if you have not gained any background in law. A lawyer will not explain things from scratch, let alone the intricacies you need to know. The most you could get from speaking with a lawyer for an hour would be notions which are too generic to be of any use at all. Moreover, I doubt that a lawyer in a phone interview will give you any legal references for you to verify on your own. In the very beginning of my litigation, I spoke with a law firm as assigned by a lawyer referral company. By then I already had some background in law and therefore I had specific questions. The guy from that law firm just kept babbling ambiguities very quickly. At the end of the phone call, I thought "nah, I will do this by myself". You might end up making that decision in your current or future matters.
This probably isn't a ground for an appeal. While a party arguing to reverse a trial court's decision must show that the argument that they are making on appeal was "preserved" by that party at trial by making that argument in the trial court, the converse is not true. Indeed, one of the rules of appellate practice is that a trial court's ruling will be upheld for any reason supported by the evidence even if it wasn't made by any party at trial. Generally speaking, a trial court isn't supposed to try a pro se party's case for them, but once the evidence is in, the court is free to do original legal research and come to a conclusions contrary to the arguments made by either of the parties. A judge is supposed to correctly apply the actual law to the facts notwithstanding the efforts of the parties to lead it astray. This doesn't systemically happen in favor of one party or the other in my experience, but is more common when one or both parties is relatively inexperienced in the relevant legal field. Appellate courts also come to conclusions about the law not advanced by either party on a regular basis. If anything, this is even more common in the area of administrative law, where the judge is likely to be a subject area specialist, than in ordinary civil litigation. It is also more common in administrative law because a judge in that context is more focused on the institutional implications of a bad precedent than trial court judges in ordinary courts. (PS is there a technical term for the rules concerning the "role" of the judge in a court, what they supposed to do, and not supposed to do?) Probably, but there isn't any term that comes readily to mind. If I can think of one, I will update this answer.