In our last post we talked about identifying causes of action as part of the lawsuit planning process. Since we anticipated that your next question will be, “yeah, that’s great, causes of action, but where do I find causes of action and what they include?”, we’re going to talk a little bit about the causes of action and how to find them.
While legal research for writing legal stuff is a separate topic, to be dealt with later, we want to take a moment here to show you how to research causes of action and their requisite elements.
Relax!!
This isn’t a legal writing course. We just want to show you how to get started.
Without doing a dissertation on the American legal system, one basic thing that you need to understand is the difference between statutory and common law. Why? Because causes of action and what makes them up come from both kinds of law.
Again, this isn’t law school or a class on legal research, so we’;; keep it simple for now.
Statutory law = enacted by the legislative process. Legislature introduces a bill, they vote on it, if it passes it goes to the governor, or president or other head honcho and viola – you have a law.
Common Law – or judge made law = a legal question is presented in the context of a court case to a state or country’s appellate courts. The court issues an opinion on the legal question. That opinion is binding on all lower courts. Because it is binding, the effect is that a law has been created.
To see how this plays out when you’re trying to identify and set forth causes of action, let’s look at a couple.
We talked about breach of contract as a cause of action. Let’s look at it. We said that the elements of a cause iof action for breach of contract were:
– The existence of a contract;
– Performance by the plaintiff or some justification for nonperformance;
– Failure to perform the contract by the defendant; and,
– Resulting damages to the plaintiff.
But where did that come from? Who wrote that down to begin with?
Look at the case of Western Distributing Co. v. Diodosio, 841 P. 2d 1053 – Colo: Supreme Court 1992.
We’ll be talking more about this later, but as a brief, the name of the case is based on the parties. Western Distributing Co =plaintiff; Diodosio = defendant. The citation (841 P. 2d 1053) refers to volume 841 of the Pacific Reporter (set of law books), 2nd series, and the case appears at page 1053.
But fear not – google scholar is a lot easier and cheaper than buying the Pacific Reporter set from Westlaw.
If you open that case you will first see a discussion of the facts and prior history, followed by the legal analysis. In that section you will see the following language:
“It has long been the law in Colorado that a party attempting to recover on a claim for breach of contract must prove the following elements…..”
And then the elements listed above are recited.
And there you have it. The law in Colorado has been established with respect to what you need to do to show breach of contract.
And it’s easy! Just do a search on: “elements cause of action breach of contract” and these cases will pop up.
There are also causes of action that are created by statute and with respect to those, the elements can often be found within the statute itself.
Here’s an example – unfair or deceptive trade or business practices. Originally a part of the Federal Trade Commission Act, almost all states have a statute in one form or another that makes engaging in unfair or deceptive business practices actionable. Let’s look at one:
Colorado – Revised Statutes §6-1-105 makes unfair or deceptive trade practices illegal. It goes on to spell out what constitutes a violation of the code section. Here your cause of action elements are what is set forth in the statute.
Again, very easy to find. A search on Colorado, unfair deceptive trade acts or practices will bring up this statute.
So there you have it. While exhaustive legal research is not required, you should delve into it enough to be able to know what your cause of action is going to be, and what the elements are. Without that you will never be able to put together a decent complaint, or, when the time comes, know what you have to prove in order to win.