Written by Michael A Young, Mount Vernon, Ohio

CIVIL PROCEDURE
Lesson Plan – Part III
June Session 2010

Public v. Private - Insight:

Jurisdictionary offers a structured, easy-to-understand program to help
average people learn how to properly execute a civil lawsuit (action). In most
instances, the laws that support these actions are found within the various state
and federal statutes, which have been organized and codified into titles,
chapters and sections for easier access.

For the benefit of our students, I would like to expand our assessment of the
statutory law with a brief analysis which is overlooked by most. Understanding
the “nature” of the charges, violations or offenses affecting the case can
determine how one applies the law and protects their individual rights.

Please keep in mind that this particular assessment is my own and is not part of
the official Jurisdictionary program. However, because of the fact that I
continue to hear the wailing of those who fail to grasp many fundamental
concepts of law and unjustly shift the blame on the courts, I feel compelled to
clarify the difference between public and private law.

A particular bit of information came to me from others who have witnessed

such remarks from a judge like, “Do not bring the law into this court” or “The
constitution does not apply here”. What would cause a judge to make such a
statement, if indeed, he did.

What is “the Law”? Generally, we consider all of it – constitutions, statutes,

court rules, court decisions – as law. Well, it is, but not all of it applies in every
situation. Consider, for example, a law that states you must acquire a dog
license. Do you really have to obey this law? What if you don‟t have a dog? Is
this a constitutional issue? Who does this law operate on?

From Black’s Law Dictionary, 5th Edition, page 1106:

“Public law. A general classification of law, consisting generally of

constitutional, administrative, criminal, and international law, concerned
with the organization of the state, the relations between the state and the
people who compose it, the responsibilities of public officers to the state,
to each other, and to private persons, and the relations of states to one
another.”

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 It is interesting to note that the above definition does not include “statutes” or
“civil law”. “Administrative” law is that which is applied by and through
executive agencies. I‟ll expand more on this, later.

From Black’s Law Dictionary, 5th Edition, page 1076:

“Private law. As used in contradistinction to public law, the term means

all that part of the law which is administered between citizen and citizen,
or which is concerned with the definition, regulation, and enforcement of
rights in cases where both the person in whom the right inheres and the
person upon whom the obligation is incident are private individuals.”

From Black’s Law Dictionary, 5th Edition, page 1264:

“Statute, n. An act of the legislature declaring, commanding, or

prohibiting something; a particular law enacted and established by the will
of the legislative department of government; the written will of the
legislature, solemnly expressed according to the forms necessary to
constitute it the law of the state. Such may be public or private,
declaratory, mandatory, directory, or enabling, in nature. … This word is
used to designate the legislatively created laws in contradistinction to
court decided or unwritten laws. See Common law.
Private statute. A statute which operates only upon particular persons,
and private concerns. An act which relates to certain individuals, or to
particular classes of men. See Special law.
Public statute. A statute enacting a universal rule which regards the whole
community, as distinguished from one which concerns only particular
individuals and affects only their private rights. See also General statute,
supra.”

From the above definitions, we see that there is a distinction between public
and private law. It is important to understand how each affects you and what
law operates in each.

PUBLIC PRIVATE
Applicable law Constitutions, Contracts,
Some Statutes Some Statutes
Applies to Governments, Between Persons
People with Government,
Actions/Nature Constitutional Issues, Civil Actions,
Administrative, Private Obligations,
Criminal, Agreements
International
Authority General Licensure,
Permits,
Contracts

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 We see that ALL civil actions are “Private” in nature, meaning they are the
result of or arise from “voluntary” agreements or obligations entered into by
consent of the parties. Private obligations DO NOT usually include
constitutional issues, unless one of the parties happens to be a State acting in its
private or corporate capacity in deprivation of a person‟s rights which are
secured by the constitution or in the form of “privileges”.

Notice, the state has a dual personage – it can act in its public capacity of
government, or it can act in a private capacity as a corporation. In a state‟s
public capacity, it (including public officials and employees) enjoys the rights of
sovereign powers granted by the people on their behalf, and it may only be sued
in accordance with applicable law. In a state‟s private capacity, however, the
state takes on the persona of a private organization or corporation and may sue
or be sued in like manner as any other person.

Those who serve in public office enjoy civil immunity ONLY so long as they act
within their official capacities and in performance of their official duties, in
good faith, and not in a wanton, negligent or malicious manner.

Administrative law is a separate class to itself. Administrative law does not act
directly on persons, rather it operates on state agencies belonging to the
executive branch of government. Administrative law is actually referred to as
“regulations” and governs the normal administrative operations of government,
such as accounting, personnel, and other internal matters.

Where administrative law affects persons is in matters involving administrative

matters. For example, statutes may require that people must be licensed prior
to operating a motor vehicle on the public highways. This power of the state is a
result of the state‟s policing powers to ensure the health, safety, and welfare of
the community at large. However, the application process describing the how
licensing is to be tracked, distributed, and records keeping would be governed
by internal regulations within the Bureau of Motor Vehicles.

Each administrative agency has their own process for settling disputes with the
people. Administrative officers are appointed to hold administrative hearings
and render judgments based on the law and their internal regulations. The
parties of these disputes may be represented by attorneys, but there is not trial
by jury. The Administrative officer reviews the facts, law, and evidence and
renders their decision, accordingly, which is final and binding. However, most
agencies do have an internal appeal process to challenge decisions by the
administrative officer.

“Administrative. Connotes of or pertains to administration, especially

management, as by managing or conducting, directing, or superintending,
the execution, application or conduct of persons or things. … Particularly,
having the character of executive or ministerial action. … In this sense,
administrative functions or acts are distinguished from such as are
judicial.” -- Black’s Law Dictionary, 5th Edition, p. 42

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 “Administrative authority. The power of an agency or its head to carry
out the terms of the law creating the agency as well as to make regulations
for the conduct of business before the agency; distinguishable from
legislative authority to make laws.” -- Black’s Law Dictionary, 5th Edition,
p. 42

“Administrative officer. Politically, and as used in constitutional law,

an officer of the executive department of government, and generally one of
inferior rank; legally, a ministerial or executive officer, as distinguished
from a judicial officer.” -- Black’s Law Dictionary, 5th Edition, p. 43

“Administrative law judge. One who presides at an administrative

hearing, with power to administer oaths, take testimony, rule on questions
of evidence and make agency determinations of fact. Formerly called
„hearing officer‟ or „hearing examiner‟.” -- Black’s Law Dictionary, 5th
Edition, p. 43

“Administrative procedure. Methods and processes before

administrative agencies as distinguished from judicial procedure which
applies to courts.” (Note: See Administrative Procedures Act) -- Black’s
Law Dictionary, 5th Edition, p. 43

“Administrative remedy. Non-judicial remedy provided by agency,

board, commission, or the like. In most instances, all administrative
remedies must have been exhausted before a court will take jurisdiction of
a case; e.g. U.S. District Courts will not consider a social security case
unless all hearing, appeals, etc. remedies before the Social Security
Administration have been exhausted.” -- Black’s Law Dictionary, 5th
Edition, p. 43

“Administrative tribunal. A particular administrative agency before

which a matter may be heard or tried as distinguished from a judicial
forum.” -- Black’s Law Dictionary, 5th Edition, p. 43

Here, I over-emphasize the administrative process, because many people are

confused as to what it is and how it works. It is important to note that there is
no direct authority for administrative agencies in the Ohio constitution. All
agencies, as departments of the executive branch of government, derive from
the governor‟s inherent authority to delegate certain powers within the scope of
his own delegated powers and authorities.

Since the executive branch has not constitutional authority to make law, the
rules and regulations promulgated by the various agencies must be in support
of some constitutional or legislative authority, and are therefore, subject to the
same.

With this information, Jurisdictionary students should be able to easily

identify what environment their particular actions belong and what law applies.

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 One final comment pertaining to administrative rules and regulations: since
statues may be public or private, then it would reasonably be construed that the
rules and regulations supporting such statutes must, likewise, operate as public
or private, accordingly.

Pleadings – Presenting Your Case:

Generally, many associate the term “pleading” with asking or begging. That is
not the case in a legal proceeding.

Pleadings are the formal manner in which one places statements or arguments
on the record to support their own position in a case. There are four (4)
primary formal pleadings in a civil case:

1) Complaint
2) Answer
3) Affirmative Defenses
4) Reply

These formal pleadings constitute the minimal formal process necessary to

ensure due process of law is rendered to each party to the action. They are
documentary, in nature, and do not invoke any action to be taking by the court.
Collectively, they constitute the foundation and basis for the lawsuit.

In a civil case, a plaintiff issues a formal proclamation or “complaint”

comprising certain allegations or charges against someone whose actions are
claimed to have caused the plaintiff some manner of harm, injury or suffering.
As a result of said actions, the plaintiff is seeking relief or remedy in the form of
restitution or damages.

Once a formal complaint has been filed, the defending party (defendant), upon
being noticed of the charges against him, is obligated to respond or “answer”
the allegations presented. Answering is an important step, and if the defendant
fails to answer in a timely manner, the court may interpret the defendant‟s
silence as his acknowledgement, acceptance and complete agreement, without
objection, to the alleged facts (allegations) stated in the complaint.

When the defendant has a “lawful” defense for his actions, he may present all
said defenses on the record within his answer. Such defenses, which are
specifically acknowledged in law, are called “affirmative defenses”. I like to call
affirmative defenses your “yeah buts”, meaning, YEAH the allegation is true,
BUT there is a lawfully legitimate reason that takes precedence over the
plaintiff‟s complaint.

After the defendant has answered the allegations in the complaint, the plaintiff
is offered an opportunity to respond or “reply” to the statements and arguments
of the defendant.

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 The pleadings get everything (facts and relevant law) on the record so that all of
the facts can be weighed and a proper decision rendered. The pleadings may be
sufficient all by themselves for the court to arrive at a decision, but most of the
time, a controversy will exist between the way the plaintiff and defendant each
sees the situation. In such a situation, the pleadings will require the production
of evidence in order to prove which facts are found to be true and which
conclusions of law are applicable to the facts presented.

Simple Sentences:
The purpose of one‟s pleadings is to simply, concisely and efficiently convey
one‟s statements and arguments before the court with proper interpretation
and accuracy. For this reason, one should ALWAYS write in a manner that is
easy for their audience to comprehend and reach a proper conclusion. This is
no time to get fancy or convoluted. As stated in the previous lesson regarding
“Communication”, it is more important how the message is received than how it
is delivered. Accuracy in the transmission of your thoughts is paramount.

For example, each sentence should contain only one (1) noun and one (verb),
i.e., “Tom runs fast”; “The defendant ran his car into my fence”; “The defendant
failed to perform item 6 of the contract”.

Complex sentences contain the word “and”, resulting in multiple thoughts

within a single sentence. This is BAD!!! For one reason, if you make a
statement such as, “The defendant ran his car into my fence and drove away”,
then when the defendant is called on the answer the allegation, he may properly
deny the entire sentence if either statement in the sentence is false. Then, you
wouldn‟t know which statement was being denied. Actually, in the Ohio Rules
of Civil Procedure, pursuant to Civ.R. 8(B), the party answering the allegation
“should” separate the statements and answer accordingly. However, it is better
to separate your thoughts and not risk confusion.

If each statement were structured in a separate sentence, then the defendant

would be required to answer each one individually, and the plaintiff could easily
and accurately interpret the defendant‟s answers.

Simple sentences should also be numbered, individually, to provide an easy

method of identification, later. This makes the whole process much easier to
follow, understand and get the points across with minimal misinterpretation.

I have read people‟s pleadings containing a single sentence which filled nearly a
whole page. By the time I got to the end of the sentence, I had forgotten how it
started and what the point was that he was trying to make.

Remember – numbered simple sentences with one noun, one verb, one thought
or idea.

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The Complaint – Giving Rise to an Action:
Every civil action begins with a “complaint”. The complaint is a summary of
statements of fact formally presented to the court for the purposes of gaining
some form of remedy. The person issuing the complaint is called the “plaintiff”
or “complaintant”.

The complaint consists of the following structural components:

1) Caption
a) Identity of the Court
b) Identity of the Plaintiff (the person suing)
c) Identity of the Defendant (the person being sued)
d) The Case Number
e) The Judge presiding over the case (if known)
f) Separation Bar
2) Title
3) Preamble (Introductory Statement)
4) Allegations
a) Jurisdiction
b) General Facts
c) Specific Facts (for each “count”)
5) Remedy Sought (“WHEREFORE” clause for each count)
6) Verification Signature (Authority, affidavit)
7) Contact Information

It is important that the complaint be properly verified. Pursuant to Civ.R. 11, it

must be signed either by the plaintiff‟s attorney or the plaintiff, himself,
acknowledging that all of the allegations in the complaint are true.

When representing oneself (pro se), it may be recommended or necessary to file

with the complaint an affidavit attesting to the truthfulness of the allegations in
the complaint. This is not required of an attorney, simply because the attorney
is compelled as an officer of the court to adhere to a standard of professional
conduct, and as such, can be sanctioned or disciplined by the court for any
statements he knows to be false. For the individual, no such standard exists,
and the affidavit represents the individual‟s solemn oath to the truth of the
complaint, usually under penalties of perjury.

Within the complaint is the proper place for establishing the jurisdiction of the
court. By doing so, you not only confirm you are in the proper court, but it sets
upon the record that jurisdiction has been invoked and verified, making it more
difficult for the defendant to challenge jurisdiction in his defense.

Following is a simple template that represents a proper complaint structure.

Civil Law Procedure – Lesson Plan III Page 7 of 9

 IN THE COMMON PLEAS COURT
In and For Knox County, Ohio

Peter Piper,
Plaintiff, (pro se) Case No. 08CVF00028
v.
Judge: Bob Benchpounder
Danny Dork,
Defendant.
_________________________/

COMPLAINT

PLAINTIFF Peter Piper hereby sued defendant Danny Dork for money damages
and states:

JURISDICTIONAL ALLEGATIONS

1. This is an action for money damages in excess of $15,000

2. At all times material to this lawsuit, Peter Piper was a resident of Knox County,
Ohio.
3. At all times material to this lawsuit, Danny Dork was a resident of Knox County,
Ohio.
4. All acts necessary or precedent to the bringing of this lawsuit occurred or accrued
in Knox County, Ohio
5. This court has jurisdiction.

GENERAL FACTUAL ALLEGATIONS

6. General factual allegation number 1

7. General factual allegation number 2

COUNT ONE: BREACH OF CONTRACT

8. Plaintiff alleges and restates the foregoing jurisdictional allegations and general
factual allegations.
9. Specific factual allegation number 1 Allege all required elements relating
10. Specific factual allegation number 2 to the specific cause of action.

WHEREFORE, Plaintiff demands judgment for money damages against defendant,

together with other and further relief as the Court may deem reasonable and just under
the circumstances.

COUNT TWO: “WHATEVER”

11. Plaintiff alleges and restates the foregoing jurisdictional allegations and general
factual allegations.

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12. Specific factual allegation number 1 Allege all required elements relating
13. Specific factual allegation number 2 to the specific cause of action.

WHEREFORE, Plaintiff demands judgment for money damages against defendant,

together with other and further relief as the Court may deem reasonable and just under
the circumstances.

Peter Piper – Plaintiff

Street Address
City, State, Zip
Phone Number
Email Address

End of Lesson Plan, Part III

Disclaimer:

The information presented herein is not to be construed as rendering legal advice. Its sole purpose is to
provide free educational information to the general public to utilized on their own behalf as they see fit.
The intent is to provide accurate information applicable in Ohio’s court environment. The author offers
this information without obligation or guarantee, and he shall not be liable in any way for the use thereof.
Author is not an attorney nor does he hold himself out as such. The reader has a personal duty to study
the law and exercise their best judgment and seek professional legal advice, as applicable.

For more information, go to the following link.

Learn how to win in court without an attorney!!!

Go to: www.jurisdictionary.com/index.asp?refercode=YM0001

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