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Monday, September 19th, 2016 | Author:

Civil Litigation – Common Law versus Statutory Law


Tom Ajava

If there is one area that confuses people more when it comes to the law, it is the differentiation between common law and statutory law as applied to civil litigation and, really, the legal world as a whole. In this article, we take a stab and explaining the difference in a manner that is actually understandable.

The first place to start is with a definition of each. Ironically, it is also the easiest way to understand the differences. Common law is a collection of legal precedents that are decided by a court. Statutory law is a collection of hard and fast laws that are created by a legislative body and signed into law by an executive branch. A couple of examples can help explain each.

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Lets say I sign a contract with another party to deliver me a certain number of products at a certain price. We get into a dispute. I sue to enforce the agreement. I am in California, the other party is in Arizona, the products are actually made in China and they are stored in a dock warehouse in Seattle, Washington. Where should the litigation be filed? The issue involves a question of jurisdiction. Im not going to get into the answer, but the ultimate decision will be based on how courts have interpreted multi-state issues through the years. This case will be interpreted using previous published opinions so that there is consistency in the law. This is common law in a nutshell.

Lets consider a statutory law example. Medical malpractice is a leading personal injury claim. Doctors are complaining about the cost of malpractice insurance, arguing that it is making it nearly impossible to practice medicine. The legislature agrees and passes a law that states any judgment in a medical malpractice case will be capped at a maximum of $750,000. When signed by an executive branch leader [Governor or President], this becomes statutory law and the courts must follow it.

Both types of law are susceptible to review by appellate courts and, eventually, state Supreme Courts or the Federal Supreme Court. If said courts find the laws unconstitutional, they will invalidate them. Of the two, statutory law is successfully challenged the most.

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Civil Litigation – Common Law versus Statutory Law