Courts of Equity- The Probate Paradigm

This article helps explain the craziness in Probate Court and how Predators can make their fraudulent narratives stick:

Court of Law vs. Court of Equity: Why it Matters to You
There are two types of courts in America, and it makes a big difference whether your case is being heard in one or the other.
Temple Terrace, FL
By Jeremy T. Simons, Esq.

Believe it or not, there are two different court systems in Florida.

Have you ever seen those business cards where the lawyer says “Attorney at Law” and wondered how he or she could be an attorney of otherwise? Attorney at “non-law” or attorney at “something like the law, but not really the law?” Before I thought about being an attorney, I used to make fun of such commercials because I could not imagine that an attorney could be an “attorney at play” or “attorney at jokes” (though we all know a lot of attorney jokes).

In fact, the distinction between an attorney who practices in a court of law is different than the other type of attorney: one who practices in equity. The distinction can sometimes be significant.

Specifically, a court of law must follow the black letter rules, while a court of equity has the ability to do what is fair and equal.

Anyone who reads my column knows that I write about two major subject matters: Family law issues and contract issues. Family law is very much a court of equity subject matter, while contracts are very much a court of law issue.

The very unofficial (told to me by a former professor) and brief history of the progression of American courts is that the “common law” started with the “King’s law,” which had to be followed exactly. The King said, “though shall not steal bread,” and it did not matter whether you stole bread to be spiteful or whether you stole bread to feed a family of four children. It was the King’s law, the Court’s law, and therefore no deviation.

The Church of England saw that there were some cases that were not easily resolved by the King’s law and opened up its doors to solve cases based on the equal merits of the parties’ claims. Was it fair to steal the bread considering that the King took all of your bread yesterday? According to legend, there were literally two different courts in England depending on the nature of your issue.

We know that the English common-law courts traveled the Atlantic Ocean and appeared in the early American colonies. We also know that the church and the court of equity rode the same ships. Apparently there used to be two different courthouses: One of the court of law (the King’s court), and one of equity (the church’s court).

Eventually, the courthouses were combined, and a single judge could hear each type of case. Yet, the issues of law and equity still exist to this day.

The easiest example is a painter for your house. If you sign a contract for someone to paint your house and it does not work out well, you have an “action” based on a court of law issue. Either the painter painted according the contract or not.

However, if a painter thought you had a contract, but you did not, and yet it improved your house, then the painter has an action in equity.

In my experience, contract, landlord/tenant, foreclosure and other written document cases are court of law cases. It doesn’t matter whether you could pay or not pay, the matter is “black letter law” that you should have paid. It is a matter of “you did or did not do” something, regardless of the social circumstances.

Your equity cases are family law cases, bankruptcy cases, and sometimes cases like my painting situation above. The court will hear what is fair, and the outcome is based on factors rather than contract terms.

In the court of law cases, the facts are what they are, and you win or lose; in equity cases, the court will fashion almost any remedy it seems fit so that both parties win or both parties lose.

If you are in a legal battle, the difference between whether a judge is sitting in a court of equity or law makes a huge difference.  Specifically, a judge in a court of law MUST follow the law even if you were justified stealing the bread. In a court of equity, the court can use its own discretion to determine whether you were justified in stealing the bread (with exceptions on the criminal nature of this, as always).

Make sure you figure out your burden of proof in your case, and hopefully this column will help you figure out whether it is black or white or shades of gray.

To read this post on the differences between Courts of Law vs. Courts of Equity on the Temple Terrace Patch website, please click here.