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Vail Daily column: Law is elemental

In another life, I was in the sciences. I studied genetics, human physiology, and, for a short time, medicine. A thread that ran between them is—and remains—the chemistry of life.

All of our biology — from the way we each metabolize the air we breathe to our digestion, to the thoughts that rip through our brains like internal strikes of lightening — is based on chemistry. And what is most elemental to chemistry are the elements themselves; from hydrogen, through vanadium, xenon and gold, to Lawrencium. The 118 natural elements constitute the very matter of our being.

But this column is about law, right?



Of course. And in law, elements—though of a different stripe—are equally essential.

In chemistry, the elements are the basic structures that are made of atoms of only one kind and cannot be broken down by ordinary means into simpler substances. They are—in effect—the building blocks.The same is true in law. The elements that comprise a charge or claim are the basic building blocks from which the allegation is constructed.

Two hemispheres



The two major hemispheres of law are criminal and civil law. Not shockingly, criminal law deals with crimes and their punishment and is administered by the state. When a criminal action is brought, it is brought by the people of the state or federal government against the accused.

Civil law, instead, concerns itself with disputes between individuals, although what may be described as an “individual” is broadly applied. At law, a person may be the flesh-and-blood sort of being we usually conceive of in such context or it may be Coca Cola, Lowe’s, Amazon or any other legal entity. A person, so far as civil law is concerned, may also be the government.

Unlike criminal law, in which the result of a successful prosecution is, at its essence, retribution, civil law is generally based on the concept of making an aggrieved party whole for his or her loss. If you bash me in the choppers in a bar fight and knock out a tooth, the State will likely prosecute you for assault but I may also sue you civilly to reimburse me for the cost of a new implant plus time lost from work and my pain and suffering. The goal of the State’s criminal prosecution will be to punish you for the violence committed upon me and the insult to the peace and welfare of the community. The goal of the civil litigation will put dollars from your pocket into mine to make me whole or, in legal language, to return me to the status quo ante.



The foregoing is, by necessity, simplistic. The criminal system intends to punish and rehabilitate. Sometimes what is sought in civil litigation is not money, but instead, the court’s interpretation or declaration of a particular thing or injunctive orders commanding one party or the other to do — or restrain from doing — a particular thing.

So it seems we have gone far afield from the periodic table of law.

But not so fast.

Just as in the world of chemistry and the swirling hormones and activating agencies of biology, at its core, the engine of the law is comprised of elements.

Both criminal and civil law are constructed on elemental building blocks.

Say I am accused of the crime of first degree burglary in Colorado. In order to convict me for my alleged offense, the State must prove—beyond a reasonable doubt—each and every element of the charged offense.

The elements of first degree burglary in this state consist of: 1) the specific person charged; 2) in the state of Colorado at or about the date and place charged; 3) knowingly; 4) unlawfully entered a building or occupied structure; 5) with intent to commit a specific crime against persons or property other than trespass; and 6) while effecting entry into the building or occupied structure (or in fleeing from it); 7) the defendant menaced or assaulted another person.

Similarly, if I wish to sue another party for, say, knocking out my choppers in a bar fight, I will have to prove his civil assault by the lower standard of a preponderance of the evidence, by showing that the defendant: 1) intended to cause an offensive or harmful physical contact (or intended to place me in apprehension of such contact); 2) the plaintiff (in this case, me) was, in fact, placed in apprehension of an imminent contact with his person by the defendant’s conduct; and 3) the contact was, or appeared to be, harmful or offensive.

In both criminal and civil prosecutions, unless each element is proved, the accused cannot be found guilty or liable for the offense.

In chemistry, the elements are the basic structures that are made of atoms of only one kind and cannot be broken down by ordinary means into simpler substances. They are—in effect—the building blocks.

The same is true in law. The elements that comprise a charge or claim are the basic building blocks from which the allegation is constructed.

You see, law—like life itself—is elemental.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 and at his email addresses, robbins@slblaw.com and robbins@colorado.net.


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