Lawyers can be frustrating. A good lawyer answers almost every legal question with the response, "It depends." Why? Because law is not black and white, as many people believe, because of two constantly changing variables to every case: the facts and the law.
What are "the facts?" The "facts" are every little detail about what happened in each individual situation. It is extremely important to have a lawyer who wants to listen and get all of the facts. A fact can make or break a case. In life, no two situations are exactly the same. They involve different people with different backgrounds, different places, different times, different behaviors, and different circumstances. The outcome of a lawsuit hinges on all of these facts. One tiny little fact could result in a completely different outcome from a very similar-seeming case.
What is "the law?" It depends on what type of law, where you live, and where the facts of the case are situated. We have lots of different "laws" in the United States. We have federal laws, which apply to the entire United States. We have state laws, which are different from state to state (and are the bulk of what most lawyers practice). And we have local laws, which are different depending on what county, city, or town has jurisdiction. Within those categories, there are statutes (state) or codes (federal or local), passed by the legislature (or county, city, or town council) that set forth "the law." But, often times the legislature has not been clear in its drafting of the law. What then? This is where the courts come in. The courts (federal and state) are tasked with interpreting and enforcing that law. Whenever there is an ambiguity, the courts get to decide what the legislature meant. And even if there is no ambiguity, the courts apply the law to the facts. In each factual situation, the facts require an individual outcome.
What if the legislature has failed to address an issue? This is where "common law" comes in. Common law is the law, as decided by courts, before a legislature decided to make a law. Many people have heard of "common-law" marriage. In some jurisdictions, courts established what it took to be qualified as "married." Later, legislatures issued specific laws about how to get married, and people had to follow those rules. In a few states, Colorado included, both the legislative procedure and the common law procedure are still valid. Thus, Colorado recognizes "common law marriage."
We also have "administrative law." What's that, you ask? It's law made by the executive, derived by a grant from the Constitution or conveyed by a legislature. The most famous type of executive is the U.S. President. Other examples include state governors and city mayors. Examples of administrative law include the Department of Motor Vehicles, the Department of Health Human Services (including Social Services and CPS), or the Environmental Protection Agency. Again, administrative laws may not be written clearly. When they are not, the courts interpret the meaning. And even if they are, the courts decide how the law applies to each individual set of facts.
The fact-finding process is the biggest variable in any lawsuit. Who decides what the facts and the law are in each situation? In a legal disputes, a judge decides what the law is (the judge’s decision about the law can be appealed to higher courts). A “fact-finder” decides the facts. This may be a judge or a jury. A criminal defendant has the right to a jury in almost every case (except for cases that carry no possibility of jail).