When does silence imply consent? Does the saying qui tacet consentire videtur (silence implies consent) carry any weight in civil litigation? For example, suppose that Alice emails Bob, &quot;When I began work we agreed that the rate was $100/hour.&quot; Another email from Alice to Bob says, &quot;I worked all weekend to fix that!&quot; Years later these emails are admitted as evidence in civil litigation pertaining to money owed for work Alice did for Bob. Bob testifies that he did not agree with either assertion, but he can't produce any contemporaneous objection (e.g., a reply Email saying, &quot;I disagree.&quot;) Can a trier of fact (judge or jury) consider the lack of a contemporaneous objection as evidence of contemporaneous consent? Is there any law suggesting that such an inference should or should not be made? (Interested in common law jurisdictions; U.S. in particular.)
Silence itself does not generally imply consent, but in the context of a history of transacting, silence in the face of continued actions by the other side can indicate consent. Here's a fun little example (Saint John Tug Boat Co. Ltd. v. Irving Refining Ltd., [1964] S.C.R. 614). The plaintiff was a tug boat company who was providing tug services for the defendant who operated an oil refinery. The large crude oil tankers coming into the refinery needed tug guidance and the plaintiff provided this. There was an undisputed verbal acceptance of a written offer for services from June 13, 1961 to July 13, 1961. The agreement was expressly extended twice, each for two weeks, into August 1961. No further authorization for extension was made. However, the plaintiff continued to provide tug service for the incoming tankers and continued sending monthly invoices to the defendant until February 1962. The defendant did not pay and denied liability for all charges after the middle of August 1961. The trial judge said: I find that the defendant knew that the Ocean Rockswift continued after August 1, 1961, in commission on call to assist and did assist the large tankers during the period in question, and that the plaintiff expected payment on a rental basis for its being kept in commission. The defendant had ample opportunity to notify the plaintiff that it did not accept any liability on that basis, but did not do so. The defendant acquiesced in the tug being so employed. The Supreme Court of Canada quoted from Anson on Contracts: So if A allows B to work for him under such circumstances that no reasonable man would suppose that B meant to do the work for nothing, A will be liable to pay for it. The doing of the work is the offer; the permission to do it, or the acquiescence in its being done, constitutes the acceptance. And from Williston on Contracts: Silence may be so deceptive that it may become necessary for one who receives beneficial services to speak in order to escape the inference of a promise to pay for them. But the Supreme Court of Canada clarified: ... mere failure to disown responsibility to pay compensation for services rendered is not of itself always enough to bind the person who has the benefit of those services. The circumstances must be such as to give rise to an inference that the alleged acceptor has consented to the work being done on the terms upon which it was offered before a binding contract will be implied. This answer shows how silence can play a role from a pure common law contract perspective, without considering equitable principles. sjy's answer correctly adds that silence can be relevant to various equitable doctrines.
It seems to be violating IPC §375 Having sex is only the first half of the check. The other is the enumerated list 1-7 that describes pretty much circumstances of no consent. Among them are (1) Against her will. (2) Without her consent. (3) With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. There are two prongs here: You can argue that the consent wasn't properly given because it was given out of fear of coming injury (IPC §90), or it was given but for a fear of hurt coming from the eviction. In either case, the description demanded can be fulfilled: no-consent theory Being homeless directly leads to physical harm of the body, destruction or loss of property and reputation, and as such is an injury as defined in the IPC. As such, the threat of eviction is a threat of injury. Consent isn't present if the reason for a person to comply with a demand is fear of such an injury. As such, there is no consent as required by IPC §375 (2), and so it is rape. In the alternative, it is forced against the will, and thus violates IPC §375 (1). harm theory Being made homeless is directly harming any person in body and mind. Having obtained consent from a threat of harm to the person or close person, it is violating IPC §375 (3), and as a result is rape.
If the question asks, "did you do X" where X is or includes a crime that you could be criminally prosecuted for, you can invoke the 5th amendment in refusing to answer that. I have seen that done and seen that objection to the question sustained in court. However, if admitting to X would provide only civil liability, then the 5th would not apply. At trial, you may also have to take care not to give direct testimony on things that are so closely related that you "open the door" to being required to answer that question. For example, you can't say "I don't owe because I did X" and then expect to not have to answer "So just to be clear, did you do X?" Also, depending on context, invoking the 5th might cause a jury to view your testimony more skeptically (cpast points out that "For civil cases, adverse inferences based on pleading the fifth are totally okay"), and if that's going to come up you should ask your attorney about whether or not it'd be a good idea strategically.
Hope you have a good prosecutor and a sympathetic judge "They asked repeatedly how much she had to drink ..." Objection: Asked and answered "how she could claim not to remember certain details" Objection: Calls for a conclusion/speculation. The witness is not a brain scientist, she cannot speculate as to why people remember some details and not others. She is testifying as to what she does remember, not as to why she doesn't remember things. "asking if she had not been flirting with him in the days before the incident" Objection: Relevance. Is the defense seriously suggesting that flirtation, if it happened, in the preceding days amounts to consent at the time of the incident? "asked her why she had not chosen a more modest one" Objection: Relevance. Is the defense now suggesting that what the witness wore amounts to consent?
There are basically two kinds of conduct that you identify. One is backing away from what you believe were oral promises made by the employer and lawyer regarding payment. Whatever the status of the promises made by the employer, the oral statements made by the lawyer would probably be viewed by a court or ethics board as settlement offers or proposals rather than actual binding agreements, and this is unlikely to be considered an ethical lapse. For purposes of ethics questions and fraud lawsuits, lies about what kind of deal you are willing to make with an adversary don't count as lies. This isn't a terribly logical rule, but is is a well established one. Given that: I was told (by employer), verbally and in text/email messages that I "would be paid when the deals closed." It is going to be very hard for the employer to take back those written statements and text and email messages are usually given the effect of signed writings in a court of law. This is going to be taken as a confession of the employer regarding the probably unwritten agreement of the parties regarding your right to be paid on these deals, so you would be well advised to stick to your guns on this issue. The percentages will be another point that is hard for the employer to fight if there is a course of dealings between the parties in which you receive a consistent percentage or there was a written agreement concerning your commission percentage. Also, even if the lawyer did make a promise and breached it, this would still only be a breach by the employer of a contract made on the employer's behalf by his lawyer. It is not an ethical lapse to breach a contract about future conduct, and a lawyer is not personally responsible for contracts he makes as a disclosed agent of your former employer. The second is making a false statement of fact about whom the lawyer has discussed the matter with. Lawyers do have an ethical duty to be truthful and failing to do so is an ethical lapse. But, this duty is generally interpreted to apply only to statements of fact which are material. If a lawyer lies to you about how old he is, or whether he's ever had an affair, in the context of a pre-litigation negotiation like this one, the ethical officials won't care. If a lawyer lies to you about something material to the transaction (e.g. claiming that the employer has money in the bank to pay a settlement when in fact it is overdrawn on all of its accounts and has no money coming in and the lawyer knows those facts), this is a serious ethical breach. It is hard to see how this information would be material, even though it casts doubt on his credibility. Ethically, he owes any duty of confidentiality to his client and not to you, so it isn't your complaint to make from a confidentiality point of view. Also, unless he discusses confidential advice that he provided to his client when no one else was present to you, he has not waived the attorney-client privilege, contrary to the answer by @IñakiViggers on that issue. Of course, proving that the lawyer said anything in an oral conversation at which no one else was present comes down to a credibility fight between your sworn statement and his if the lawyer testifies inaccurately about the discussion. A sworn statement from you is proof and would meet the "burden of production" to provide proof in support of your case at a trial, but wouldn't necessarily prevail easily at trial since the judge might not be convinced regarding who is accurate in their account of the discussion (I have avoided the word "lying" because there are a variety of reasons that people inaccurately recall discussions). What would be the sensible way to use this information to my advantage while trying to resolve these matters with having to bring suit and go to court? Is there anything that this lawyer should fear, if his unethical behavior was brought to light, either in court or to a bar association? The conduct you describe on the part of the lawyer will provide you with little or no leverage in your negotiations and is likely to not even be considered admissible evidence in court since it may be considered a form of settlement negotiations. Your strongest leverage will be the written statements from the employer. But, depending upon the amount in dispute, it may still make sense to compromise given the time and expense and uncertainty of going to court. Even in the clearest case, you probably only have a 90% chance of winning a contested case, and you wouldn't cross the street if you knew you had a 10% chance of being hit by a car as you crossed, even if you knew that the collision wouldn't be fatal. Unless your state has a wage claims act that covers you, you may have little or not prospect of an attorneys' fee award if you prevail, and representing yourself when the employer has a lawyer will always put you at a disadvantage in a court setting. If the amount in dispute is great (e.g. $50,000+), hiring a lawyer is probably worth it. If the amount in dispute is small (e.g. $5,000) you may want to file a suit in small claims court and only hire a lawyer for a couple hours of pre-hearing coaching.
The word argumentative can mean a number of things. However, when defined as in the passage quoted from Wikipedia, it is not the opposite of 'conciliatory.' It has nothing to do with whether the witness is cooperating with the lawyer examining them. In this context, an argumentative witness is one who gives evidence about a legal conclusion (that is, the answer to a legal 'argument'). This is not allowed, because witnesses must give evidence of fact and not opinion. Sometimes, the distinction is murky. The example given is 'was the driver negligent?' The answer could well be seen as 'conciliatory' if it is consistent with the case being advanced by the advocate. It is still an impermissible argumentative question, because it is a question of law for the court to decide, not a question of fact. Suppose the lawyer wants to prove that a driver was negligent. An eyewitness could give evidence about what he or she saw and heard. A qualified professional could give expert evidence about what can be inferred from the physical evidence or agreed facts (eg. whether anybody was speeding). In the unlikely event that the driver admitted fault but a trial was still necessary, the driver could give evidence that they were drunk or not paying attention. None of these witnesses can express an opinion as to whether or not the driver was negligent, because that is the argument that the court has to decide by drawing inferences from the witnesses' factual evidence. In this context, the opposite of argumentative could be admissible, factual, direct or non-opinion.
No, this is not an acknowledgement of guilt or liability. It offers a &quot;discount&quot; some sort of reduction in price. This could be an offer of settlement without admission of liability, or even just advertising for repeat business (unlikely as that may seem). Without the rest of the communication, there is no way to tell. Unless there are specific admissions, this statement alone is not likely to have much significance in such a case. Edit: There is still not enough context to tell exactly what the sender of this communication wanted to accomplish with the offer of the discount, but since the OP now says &quot;the party does not take the responsibility&quot; this is not an admission of guilt, whatever else it is. It sounds like some sort of backdoor form of settlement offer without admission, but that is far from clear to me. My original answer is not significantly hanged here.
This is a question of civil procedure more so than law. The customs and practices of civil procedure are established by legal precedent, not laws made by legislatures. In general, a witness can answer a question however they want as long as it is responsive to the question. Litigators will attempt to bully a witness into certain types of answers, but this is not "illegal" nor is it "illegal" for witnesses to craft their answers as they like. As for yes-no bullying there are two general cases: (1) The question is factual. If the questioner asks a purely factual question, like "Did you go to the factory on that Tuesday?" then a yes-no answer can be compelled. If the witness tries to explain why he went to the factory, or something, then he can be cut off, because he is being unresponsive. (2) The question is hypothetical. If the question is hypothetical or suppositional, then the witness can reject the question. For example, if the question, "You told your boss that you hated your wife, isn't that right?" In this case the witness can answer, "I reject the question, the prosecutor is putting words in my mouth." or can say "I resent the implication." or "That does not accurately reflect what happened." or whatever. Any time a question "paints a picture" or establishes something hypothetical and simply asks the witness to agree with the fantasy scenario, the witness can refuse to answer, or can answer with a counter scenario which they consider to be more accurate. I would add that in case (2) where a questioner tries to paint a false scenario, it is a risky move, because it opens the door for the witness to say whatever they want. For example, imagine this exchange in the courtroom: Prosecutor: "You told your boss that you hate your wife, isn't that right?" Witness: "What actually happened is..." Prosecutor: "That is a yes or no question, answer yes or no." Witness (to judge): "Your honor, the question mischaracterizes the conversation I had with my boss, I want to explain what actually was said." Judge: "The witness may proceed with his answer." Prosecutor: "I withdraw the question." Defender: "The prosecution has opened the door, let the witness answer." Judge: "The witness will answer the question." So, now the witness has permission to answer however he likes, and the prosecutor has blundered by making a vague question that created the situation where that was possible. The main thing a witness has to do is not try to say irrelevant things or try to add information beyond what was asked for, in that case the questioner can cut them off.