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    International Law?-There is no such thing

         The recent events in Paris highlight the fact there is no such thing as international law.  Countries do have treaties with one another and they or may not be honored.  The United Nations passes resolutions but has no power to enforce them.  There is a World Court but it only works if all the parties agree to be bound by the decision in advance, and then actually abide by it.

         The acts committed in Paris are not crimes as such because the ones that committed them do not recognize the law.  They could be prosecuted if caught but that is highly unlikely.  There is no international organization that has the power or authority to hunt down terrorists and arrest them.  With all of the weaknesses in our legal system it is still a shining star when compared to the virtually nonexistent international order.
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    Do you need an attorney?

         I attended a seminar recently where a panel of judges discussed the biggest challenges facing the courts.  They all agreed that their biggest problem is pro se litigants, which are people who represent themselves in court without a lawyer.  This has been common for quite some time in small claims court where the amount of money involved does not justify the expense of attorney fees.  No one wants to pay an attorney $1000.00 to collect $500.00.  However, it is occurring more and more in many areas of the law where there is a significant issue at stake and judges feel uncomfortable because it is not their job to act as an attorney and they can't give litigants legal advice when they are in court.

        Over the years I have told a number of people that they should handle a legal matter on their own because of the costs involved in hiring a lawyer.  However, even then I caution them that there are many pitfalls which they may not anticipate.  This becomes even more likely when the stakes increase, from the amount of money involved to losing custody of a child to being punished through a criminal proceeding.

        The internet has made all of us experts.  We think we can look up anything and understand what needs to be done.  You can buy a will online or organize a business for a few bucks.  We go to health sites and try to diagnose the aching pain in our gut so we can skip the doctor.  However, there are times when a doctor is needed to treat you and there are times when a lawyer is needed to diagnose your problem and tell you how to address it.

        Most attorneys will provide an initial consultation free, and if not they will probably charge you an hourly rate for the amount of time they speak with you.  I would recommend that if you have a legal matter that is important to you that you take at least this first step with an attorney before proceeding.  I have had at least two people call me in the last few months who wanted me to help them with a case they already took to court and lost.  That is too late.  There is little that can be done once a judge has received evidence and made a decision.  I also spoke with a person during that time who had done their own will and had just realized that it did not cover certain assets that had a beneficiary designation.  To be safe you should talk to a lawyer.

     
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    What is Law?

         When I was in law school I took a class on jurisprudence, which is the philosophy of law.  I majored in philosophy in college so it was a natural for me.  I did a paper in that class with a good friend who writes laws for a living, suggesting different definitions for the law followed by excerpts from numerous classical known and unknown works, from chinese philosophers to Alice in Wonderland.  It is meant to be thoughtful and humorous.  I hope you enjoy.

         If jurisprudence begs a single question it must be "What is Law?"  Competing definitions of the law undeniably assert themselves in the literature of jurisprudence and in daily life but agreement upon a definition is virtually nil.  Take a stroll with me down definition lane.

         Is law a contract? 

         "The justice which arises from nature is a pledge of mutual advantage to restrain men from harassing one another and save them from being harmed.  For all living things which have not been able to make compacts not to harm one another or be harmed, nothing ever is either just or unjust: and likewise too for all tribes of men which have been unable or unwilling to make compacts not to harm or be harmed.  Justice never is anything in itself, but in the dealings of men with one another in any place whatever and at any time it is a kind of compact not to harm or be harmed."  Epicurus (300 B.C.)

         "To refrain mutually from injury, from violence, from exploitation, and put one's will on a par with that of others: this may result in a certain rough sense in good conduct among individuals when the necessary conditions are given (namely, the actual similarity of the individuals in amount of force and degree of worth, and their co-relaion within one organisation).  As soon, however, as one wished to take this principle more generally, and if possible even as the fundamental principle of society, it would immediately disclose what it really is-namely, a Will to the denial of life, a principle of dissolution and decay.  Here one must think profoundly to the very basis and resist all sentimental weakness: life itself is essentially appropriation, injury, conquest of the strange and weak, suppression, severity, obtrusion of peculiar forms, incorporation, and at the very least, putting it mildest, exploitation.  "Exploitation" does not belong to a depraved, or imperfect and primitive society; it belongs tothe nature of the living being as a primary organic function."  Nietzsche, The Transmutation of Values

         Is law morality?

         "Well, a just law is a law that squares with a moral law.  It is a law that squares with that which is right, so that any law that uplifts human personality is a just law.  Whereas, that law which is out of harmony with the moral is a law which does not square with the moral law of the universe.  It does not square with the law of God, so for that reason it is unjust and any law that degrades the human personality is an unjust law."  Martin Luther King,  Love, Law and Civil Disobedience

         Is law convention?

              "After one person or group decided to use this to stand for that, other people decided to do the same thing, and the practice spread; that is, these symbols were adopted by common convention.  A symbol, such as a word, designates a referent by agreement or convention.  Human decisions are thus required in order to establish the meaning of symbols and such decisions are arbitrary ones.  Names arise as a result of human agreements, or stipulations."----"I think these passages are typical of the less guarded remarks on this subject to be found in the literature.  But on reflection, we can see that language, as such, could not have originated by having decisions adopted by "common convention."  As Russell has said, "We can hardly suppose a parliament of hitherto speechless elders meeting together and agreeing to call a cow a cow and a wolf a wolf."  By the nature of the case, making agreements and conventions presupposes that people already have a language in which to carry on these activities.  No one knows how language originated, but at least we can be certain that it was in  no such way as this."  Alston,  The Philosopy of Language

         Is law duty?

         "Another finds himself forced by necessity to borrow money.  He knows that he will not be able to repay it, but sees also that nothing will be lent to him, unless he promises stoutly to repay it in a definite time.  He desires to make this promise, but he has still so much conscience as to ask himself:  Is it not unlawful and inconsistent with duty to get out of a difficulty in this way?  Suppose, however, that he resolves to do so, then the maxim of his action would be expressed thus:  When I think myself in want of money, I will borrow money and promise to repay it, although I know that I never can do so.  Now this principle of self-love or of one's own advantage may perhaps be consistent with my whole future welfare: but the question now is, Is it right?  I change then the suggestion of self-love into a universal law, and state the question thus:  How would it be if my maxim were a universal law?  Then I see at once that it could never hold as a universal law of nature, but would necessarily contradict itself.  For supposing it to be a universal law that everyone when he thinks himself in a difficulty should be able to promise whatever he pleases, with the purpose of not keeping his promise, the promise itself would become impossible, as well as the end that one might have in view in it, since no one would consider that anything was promised to him, but would ridicule all such statements as vain pretenses."  Immanuel Kant, Fundamental Principles of the Metaphysics of Morals

         Is law natural?

         "More than anything else," wrote Roscoe Pound in 1923, "the theory of natural rights and its consequence, the nineteenth century theory of legal rights, served to cover up what the legal order really was and what court and judge and lawmaker were really doing."  But it was a fictitious cover, and as with the Emperor's new clothes, the fiction was transparent to the eye of the realist.  For law could not permanently lag behind the other social sciences, nor could it be allowed indefinitely to short-circuit the powerhouse of governmental operations."  Henry Commager,  The American Mind

         Is law rational?

         "Just as water flows down slopes, settles in hollows and is confined to riverbeds, so vertical thinking flows along the most probable paths and by its very flow increases the probability of those paths for the future.  If vertical thinking is high-probability thinking, then lateral thinking is low-probability thinking.  New channels are deliberately cut to alter the flow of the water.  The old channels are dammed up in the hope that the water will seek out and take to new and better patterns of flow.  Sometimes the water is even sucked upwards in an unnatural fashion.  When the low-probability line of thought leads to an effective new idea there is a 'eureka moment', and at once the low-probability approach acquires the highest probability.  It is the moment when the water sucked upward with difficulty forms a siphon and at once flows freely.  This moment is always the aim of lateral thinking."  De Bono,  New Think

         Is law emotion?

         "So those who have denied that there are "objective moral characteristics" have not wanted to deny that Brown's action was wrong or that keeping promises is right.  They have wanted to point out that rightness and wrongness are a matter of what is felt in the heart, not of what is seen with the eyes or heard with the ears.  They have wanted to emphasize the way in which "Promise-keeping is right" resembles "Going abroad is exciting," "Stories about mothers-in-law are comic," "Bombs are terrifying", and differs from "Roses are red" and Sea-water is salt."  This does not prevent you from talking about the moral order, or the moral world, if you want to: but it warns you not to forget that the only access to to the moral world is through remorse and approval and so on: just as the only access to the world of comedy is through laughter, and the only access to the coward's world is through fear."  P.F. Strawson,  Ethical Intuitionism

         Is law a command?

         "We must now raise the question of whether our explanations really explain facts.  For example, we have said that the falling of a book is explained by the fact that it is heavier than air and the theory that objects heavier than air fall when not supported.  Does this really explain anything?  We could explain this theory in turn by referring to the Law of Gravitation.  But why does the Law of Gravitation hold?  Clearly there is no end to these questions.  This phenomenon is a common one in experience with children.  No matter what answer we give them they will come back with a new "Why.'  For three or four stages the parents will be patient and will answer the children's questions, but soon the children will exhaust a parent's knowledge of theories and the parent will then have to come back with "Children should be seen and not heard."  If the child persists in coming back with an additonal why, the time has come for the parent to demonstrate his superior physical strength."  Kemeny,  A Philosopher Looks at Science

         Is law precedent?

         "There was once a man of Sung who tilled his field.  In the middle of the field stood a stem of a tree, and one day a hare in full course rushed against that stem, broke its neck, and died.  Thereupon the man left his plough and stood waiting at that tree in the hope that he would catch another hare.  But he never caught another hare and was ridiculed by the people of Sung.  If, however, you wish to rule the people of today by the methods of government of the early kings, you do exactly the same thing as the man who waited by the tree.  Therefore affairs go according to their time, and preparations are made in accordance with affairs."  Han Fei Tzu

         Is law ethics?

         "But if our opponent happens to have undergone a different process of moral "conditioning" from ourselves, so that, even when he acknowledges all the facts, he still disagrees with us about the moral value of the actions under duscussion, then we abandon the attempt to convince him by argument.  We say that it is impossible to argue with him because he has a distorted or undeveloped moral sense; which signifies merely that he employs a different set of values from our own.  We feel that our own system of values is superior, and therefore speak in such derogatory terms of his.  But we cannot bring forward any arguments to show that our system is superior.  For our judgment that it is so is itself a judgment of value, and accordingly outside the scope of argument.  It is because argument fails us when we come to deal with pure questions of value, as distinct from questions of fact, that we finally resort to mere abuse."  Ayer,  Ethics as Emotive Expression

         Is law of the people and for the people?

         "Before the Law stands a doorkeeper on guard.  To this doorkeeper there comes a man from the country who begs for admittance to the Law.  But the doorkeeper says that he cannot admit the man at the moment.  The man, on reflection, asks if he will be allowed, then, to enter later.  'It is possible,' answers the doorkeeper, 'but not at this moment.'  Since the door leading into the Law stands open as usual and the doorkeeper stands to one side, the man bends down to peer through the entrance.  When the doorkeeper sees that, he laughs and says: 'If you are so strongly tempted, try to get in without my permission.  But note that I am powerful.  And I am only the lowest doorkeeper.  From hall to hall keepers stand at every door, one more powerful than the other.  Even the third of these has an aspect that even I cannot bear to look at.'  These are difficulties which the man from the country has not expected to meet; the Law, he thinks should be accessible to every man and at all times, but when he looks more closely at the doorkeeper in his furred robe, with his huge pointed nose and long, thin, Tartar beard, he decides that he had better wait until he gets permission to enter.  The doorkeeper gives him a stool and lets him sit down at the side of the door.  There he sits waiting for days and years.
         Before he dies, all that he has experienced during the whole time of his sojourn condenses in his mind into one question, which he has never yet put to the doorkeeper.  He beckons the doorkeeper, since he can no longer raise his stiffening body.  The doorkeeper has to bend far down to hear him, for the difference in size between them has increased very much to the man's disadvantage.  'What do you want to know now?' asks the doorkeeper, 'you are insatiable.'  'Everyone strives to attain the Law,' answers the man, 'how does it come about then, that in all these years no one has come seeking admittance but me?'  The doorkeeper perceives that the man is at the end of his strength and that his hearing is failing, so he bellows in his ear: "No one but you could gain admission through this door, since this door was intended only for you.  I am now going to shut it.' "  Kafka, The Three Parables

         Is law simply the work of lawyers? 

        ' Here arises a new question, Theodorus, which threatens to be more serious than the last.
         Theod.  Well, Socrates, we have plenty of leisure.
         Soc. That is true, and your remark recalls to my mind an observation which I have often made, that those who have passed their days in the pursuit of philosophy are ridiculously at fault when they have to appear and speak in court.   How natural is this! 
         Theod.  What do you mean?
         Soc.  I mean to say, that those who have been trained in philosophy and liberal pursuits are as unlike those who from their youth upwards have been knocking about in the courts and such places, as a freeeman is in breeding unlike a slave.
         Theod. In what is the difference seen?
         Soc.  In the leisure spoken of by you, which a freeman can always command:  he has his talk out in peace, and, like ourselves, he wanders at will from one subject to another, and from a second to a third, --if the fancy takes him, he begins again, as we are doing now, caring not whether his words are many or few; his only aim is to attain the truth.  But the lawyer is always in a hurry; there is the water of the clepsydra driving him on, and not allowing him to expatiate at will:  and there is his adversary standing over him, enforcing his rights:  the indictment, which in their phraseology is termed the affidavit, is recited at the time:  and from this he must not deviate.  He is a servant, and is continually disputing about a fellow-servant before his master, who is seated, and has the cause in his hands:  the trial is never about some indifferent matter, but always concerns himself:  and often the race is for his life.  The consequence has been, that he has become keen and shrewd; he has learned how to flatter his master in word and indulge him in deed; but his soul is small and unrighteous.  His condition, which has been that of a slave from his youth upwards, has deprived him of growth and uprightness and independence; dangers and fears, which were too much for his truth and honesty,  came upon him in early years, when the tenderness of youth was unequal to them, and he has been driven into crooked ways; from the first he has practised deception and retaliation, and has become stunted and warped.  And so he has passed out of youth into manhood, having no soundness in him; and is now, as he thinks, a master in wisdom.  Such is the lawyer, Theodorus.'      Plato

         Is law merely a word?

         "That's a great deal to make one word mean," Alice said in a thoughtful tone.  "When I make a word do a lot of work like that," said Humpty Dumpty, "I always pay it extra."  Lewis Carroll

        
         




         

         

                        
        

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    Is Bankruptcy Wrong?

         When I was a kid my folks managed a Firestone store.  In those days Firestone stores were like Sears stores that sold in addition to tires almost everything including large appliances and electronics.  The store financed everything in house.  Credit cards, for all practical purposes, didn't exist.

         All too often, from my parents' perspective, someone owing a significant balance on a refrigerator, for example, would file bankruptcy.  The fridge would stay with the customer and the bad debt would stay with us.  I know now that if mom and dad could have afforded an attorney, which they couldn't, they might have been able to get the merchandise back at least.  As a result of that experience I felt that bankruptcy was wrong.

         After practicing law for a few years in a very competitive legal community I decided to include bankruptcy in my practice because potential clients had to go out of town to find a bankruptcy attorney.  I have now been practicing in the area for 30 years and have learned that at least 95% of my bankruptcy clients were financially responsible people who had bad things happen in their lives such as loss of employment, medical issues, divorce and business failures.  Most often my clients had spent months or years trying to climb out of their financial hole.  Many had experienced physical problems, psychological problems and family problems from the strain of not being able to survive on a month to month basis.  They didn't want to file bankruptcy and felt ashamed that they were in that position.

         History is replete with stories about the persecution of debtors.  In ancient Rome debtors could be enslaved or executed.  If executed their body parts might be distributed among their creditors.  Nice thought.  England had debtors' prisons where you were held until your death unless your friends or relatives would stepped forward and paid off your debts.

         The first reference to something akin to bankruptcy may have been in the Bible in Deuteronomy where it states that creditors should forgive the debts owed to them every 7 years.  In 1705 Queen Anne of England may have passed the first bankruptcy law     providing debtors a release from their debts.  Although debtors could be flogged under American colonial laws, our Constitution provided that the federal government had the authority to pass uniform laws governing bankruptcy.  During the 1800's bankruptcy laws slowly evolved toward what the are today.

         Bankruptcy relief is a recognition that society as a whole suffers when people can't escape debt that they are unable to pay despite their best efforts.  As previously mentioned this sometimes desperate state can lead to health problems, mental problems, disintegration of the family, lethargy and a lack of productivity, all of which can cost all of us more money than releasing people from their debts.

         The law doesn't require people to loan money to others, so bankruptcy puts the onus on creditors to lend money responsibly. If they choose to make a loan they know that they may not get their money back and should run their business accordingly.  When I graduated from law school I wanted to get a credit card because it was necessary to rent a room or obtain some forms of transportation.  I had to meet with a loan officer at a bank and even then had to have a cosigner to be approved.  Contrast that with a few years ago when my teenage children would receive credit card offers in the mail for a $10,000 line of credit if they simply signed an enclosed card and returned it.

         For years major credit card companies continued this practice knowing that a large amount of the debt would not be repaid because the amount of money they earned from interest more than offset the loss.

         I know bankruptcy would feel wrong to you as an individual if you loaned a friend or relative money and they dissed you by filing bankruptcy.  I know the feeling is the same when a small business owner struggling to survive gets hit with a significant bankruptcy loss.  However, the greatest impact from bankruptcy is on companies that have weighed the risk and decided they can still make a profit on their loans.

         Bankruptcy also feels wrong to most of the people that have to endure it.  However, if it is the only way you can continue to survive or support your loved ones it is better than the alternative.  Heart surgery, chemotherapy and radiation treatments aren't pleasant either but you may need them to survive.  I have seen so many lives changed for the better as a result of bankrutpcy that I know it is not wrong most of the time.  May the fates be with you and your budget always remain in the black.  

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    You and Juries

         When I was younger I practiced a fair amount of criminal law and did some personal injury work and so faced a number of juries.  Since I now practice primarily in areas of business, real estate, bankruptcy and related litigation juries are not often a factor in my practice.  As you probably know the right to jury trial is guaranteed by our Constitution in criminal cases.  It is also guaranteed in civil cases " when the value in controversy shall exceed twenty dollars."  However, that right only applies in federal courts.  Why?  Who knows.  The Constitution doesn't say that but someone has since decided that that is what it really means.                              
                                                                                                                                                                                                                                                                   
        
         The vast majority of jury trials are held in criminal cases.  The other most popular use of juries is in accident and other injury cases.  It is my opinion that juries were guaranteed for criminal cases to protect citizens from their government should it attempt to prosecute them for political crimes or prosecute them just because it didn't care for them.  Given our experience with and separation from England our founders drafted our Constitution primarily to protect us from the government.  I doubt that our founders were overly concerned about violent offenders.
                                                                                                                                                                                                                                                                                                  
          It is unclear where juries came from or why they are traditionally made up of 12 people.  Our US Supreme Court said many years ago that a 12 person jury is an "historical accident."  Some attribute the number to the disciples and others to King Henry II who selected a group of 12 landowners to resolve boundary disputes among other things.  The bottom line is that over time different cultures decided that a group of people might be better at resolving certain conflicts than an individual.                              

         Juries are very unpredictable, which is why they are used mostly in criminal cases and personal injury cases where plaintiffs are seeking huge amounts of money.  In criminal cases a defendant can "win" when the jury can't reach an agreement because the case will have to be tried again, which could lead to a better plea bargain at least.  A second mistrial could even cause a prosecutor not to try a third time because of the time and expense involved.  Attorneys also hope in criminal cases that the jury will find the defendant not guilty because it likes the defendant or dislikes the law involved or the government's behavior.  Juries are told they can't do this but will do it anyway.  I'm sure you can remember a case where the defendant was clearly guilty but still was found not guilty by the jury.                                                                                                                                                                                                           
          
          In personal injury cases involving serious injuries and death attorneys hope the jury will award amounts that a judge would not even consider.  This is especially true when the defendant is a high profile company with deep pockets.  It is hoped that the jury, out of sadness, concern, or dislike for the defendant, will base its decision on emotion rather than reason and award the plaintiff an astronomical sum.  Admittedly, it is difficult to place a dollar amount on not being able to walk again because of an accident, or losing a loved one, but there is a general belief in the legal community that juries will award more money and that that possibility encourages defendants to offer a larger settlement.

         I had a trial professor in law school that specialized in criminal jury trials.  When discussing juries he told us about a trial where an attractive young female juror in the front row hung on his every word and smiled at everything he said.  In the back row was an older gentleman that scowled at him the entire time.  He lost the trial and learned afterwards that the scowler was his greatest supporter and that the cutie sank him.  Such is the personality of the jury.

         You can't even request a jury in civil suits when you are seeking something other than money, such as in a divorce or mortgage foreclosure.  In most civil actions where you can request a jury it is my opinion that the judge will do a better job.  Also, a judge trial is generally less time consuming and less expensive.  However, if your case is assigned to a judge with a known bias or prejudice that may affect your case then opting for a jury makes sense.

         When I taught trial law I didn't spend much time on jury selection other than to tell my students that if your client was an X you wanted X's on the jury and if your client was an O you wanted O's on the jury.  Trial lawyers have all kinds of ideas about what type of jurors are best such as young people are more tolerant of crime and poor people will award larger verdicts against rich folks.  If we learn anything as we grow older it is that you don't really know people or what they will do based upon the external categories they fall into.  The personality of every jury is different just like the personalities of its members.  You have heard about cases where jury consultants have been paid extraordinary amounts of money to help attorneys select jurors.  You could spend millions of dollars and still not know if the jury you are facing is the Lady or the Tiger.

                 
                                                                                                                                                                                                                                   
                     


        


        
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    You and The People's Court

         The People's Court was the first reality based TV show about people fighting out their cases in court.  If you are older than 25 you probably remember Judge Wapner and his biggest fan, Dustin Hoffman, the autistic savant known as Raymond in the hit movie Rain Man.  Although The People's Court is still on TV Judge Judy is probably the best known show continuing that tradition.  These shows do reflect what happens in courts across the country every day but they are significantly different in that the judgments against the losers are paid by the show and not the person.  If you lose it costs you nothing.

         The people's court for those not appearing on a TV show is small claims court and is the closest thing we have to courts by and for the people.  I don't pretend to know about small claims courts across the country but their intent is to offer a forum where people can present their cases without attorneys and have them resolved quickly and inexpensively.  The amount you can sue for in these courts is limited.  In Indiana, for example, the current limit is $6,000.00.  You can have an attorney represent you but in most cases it is not worth the expense.  You don't want to pay an attorney $2,000.00 to collect $1,000.00.

         What happens in small claims court is similar to what you see on TV.  The judge attempts to conduct the hearing informally, asking each party what happened and then asking follow up questions to reach a decision.  If you face a judge in this situation be respectful but otherwise be yourself and speak with the judge the same way you would speak with a friend or family member.

         Small Claims court is also different from regular court in that it is easier to present your evidence.  There are rules of evidence in regular courts that are relaxed in small claims cases.  Everyone has heard the term hearsay, which means hearing something outside of court and then testifying about what you heard in court.  For example, assume you had your car repaired but then experienced the same problem you thought you had fixed.  You take your car to another mechanic and he or she tells you the first mechanic screwed up.  In regular court you would have to call that mechanic as a witness.  In small claims court you could give the judge a copy of a letter from the mechanic or just testify as to what the mechanic said.  Having said that, you still might want to call the mechanic as a witness since live testimony is usually more persuasive.

         If you decide you want to sue in small claims court you can contact your county court clerk's office for the information and forms needed.  You can write out why you are suing and what you are asking for in a paragraph or two.  You also pay a filing fee of less than $100.00 which you may get back from the other party if you win the case.  If you do sue make sure you have a good address for the person you are suing to make sure the suit papers reach that person.

         Another thing you need to consider before you sue is whether the person being sued has any money or assets to pay off a judgment.  If you win in court and get a judgment it doesn't mean the judgment will be paid.  If the defendant doesn't voluntarily pay you will have to return to court to ask the judge to enforce the judgment by ordering the defendant to make scheduled payments or by garnishing the defendant's wages, for example.

         There is no reason to fear small claims court.  Normal people, as well as some abnormal ones, use small claims courts all  the time.  Small claims hearings are open to the public so you can go watch some beforehand if you would like.  You might find a judge who is even more entertaining than your TV favorite.  Good luck and may the court be with you.