Unit 1: Civil Lit (pretrial) (okrent), Unit 2: Civil Litigation ( Trial and Appeal) (okrent), Unit 3 Criminal Law and Procedure, Unit 4 Constitutional Law (okrent), Unit 5 Administrative Law (okrent), Unit 6 Torts and Personal injury (okrent), Unit 7...

Order

1. A determination made by a court; an order of court. 2. A determination made by an administrative agency. ■ v. dictate, require, rule, demand, ordain, prescribe ■ n. decree, command, mandate, demand, judgment ("order of the court")

Cross-action

1. An action brought by a defendant in a lawsuit against another named defendant based upon a cause of action arising out of the same transaction on which the plaintiff 's suit is based. See also counterclaim. 2. An independent action brought by a defendant in a lawsuit against the plaintiff

Judgment

1. In a civil action, the final determination by a court of the rights of the parties, based upon the pleadings and the evidence; a decision or decree. 2. In a criminal prosecution, a determination of guilt; a conviction.

Reply

1. In pleading, the plaintiff 's response to the defendant's setoff or counterclaim. 2. A response; an answer. ■ n. rejoinder, replication, retort, refutation, retaliation, response, answer ■ v. answer, counter, acknowledge, return

Injunction

A court order that commands or prohibits some act or course of conduct. It is preventive in nature and designed to protect a plaintiff from irreparable injury to his property or property rights by prohibiting or commanding the doing of certain acts. An injunction is a form of equitable relief. ■ n. ban, stay, order, enjoinder, interdiction, restraint, mandate, prohibition

Appearance docket

A docket kept by the clerk of court in which appearances are entered.

Adversary proceeding

A trial or other proceeding in which all sides have the opportunity to present their contentions; a proceeding involving a contested action.

Memorandum of law

A written statement submitted to a court for the purpose of persuading it of the correctness of one's position. Similar to a brief, although usually not as extensive, it cites case law and other legal authority.

Amendment of pleading

Although every jurisdiction imposes different restrictions, all jurisdictions permit pleadings to be amended for the purpose of correcting errors and omissions and to modify allegations and supply new ones. See also amend.

Order to show cause

An order of court directing a party to appear before the court and to present facts and legal arguments showing cause why the court should not take a certain action adversely affecting that party's interests. Orders to show cause are oft en granted ex parte (by one side, without notice to the other party). A party's failure to appear, or having appeared, his failure to show cause, will result in a final judgment unfavorable to him.

Primary source

An original or firsthand document or reliable works that are generally created at the time the event occurred. These are considered binding authority, or the law itself, as opposed to secondhand information or interpretation or analysis of information. One of the goals of legal research is to find primary sources.

Affidavit

Any voluntary statement reduced to writing and sworn to or affirmed before a person legally authorized to administer an oath or affirmation (EXAMPLE: a notary public). A sworn statement. See also verification. ■ n. affirmation, oath, statement, testimony, avowal, averment, declaration, sworn statement

Secondary source

As opposed to case law, which is binding authority, a secondary source is merely persuasive authority, it is not law itself, but simply commentary upon or a summary of the law. EXAMPLES of secondary sources are legal treatises, law review articles, legal encyclopedias, and dictionaries.

Request for production

During the discovery process either party may request that the other side make available for inspection relevant documents or things related to the case that are in its possession. A party is neither required to create or obtain documents it doesn't have in its possession.

Permission to enter upon land

During the discovery process, a party might request permission to enter upon the land of another. EXAMPLE: For a "slip and fall" case, the plaintiff 's attorney would want to enter on the land of another to see the scene of the accident.

Service by publication

In circumstances where permitted by statute, service of process occurs by publishing a copy of a summons, writ, complaint, or other process in a newspaper of general circulation in a particular region.

Jurisdiction in rem

The jurisdiction a court has over property situated in the state. See also and compare jurisdiction in personam; jurisdiction quasi in rem. See also in rem action.

Jurisdiction quasi in rem

The jurisdiction a court has over the defendant's interest in property located within the jurisdiction. See also and compare jurisdiction in personam; jurisdiction in rem.

Request for physical or mental examination

Demands that can be made during the discovery process. Th e physical examination or inspection of a party is only requested when the person is claiming bodily harm or hurt (known as personal injury) and has put her physical condition at issue, typically from a car accident or slip and fall. A request for a mental examination is much less common. Again, only where a party has put her mental condition at issue, with a claim of brain damage, distress, fright, or emotional disturbance, can such a request be made. Because of privacy concerns, there are many restrictions on these forms of discovery depending on the jurisdiction.

Counterclaim

A cause of action on which a defendant in a lawsuit might have sued the plaintiff in a separate action. Such a cause of action, stated in a separate division of a defendant's answer, is a counterclaim. See also cross-action; cross-claim; cross-complaint.

Subpoena

A command in the form of written process requiring a witness to come to court to testify; short for subpoena ad testifi candum [ahd tes.te.fe.kan.dem]. Th e Latin term means "testify under penalty."

Cross-Complaint

A complaint a defendant in an action may file: (a) against the plaintiff , based upon any cause of action she has against him; or (b) against anyone (including persons not yet involved in the lawsuit) if she alleges a cause of action based upon the same transactions as those upon which the complaint against her is based.

Pretrial conference

A conference held between the judge and counsel for all parties prior to trial, for the purpose of facilitating disposition of the case by, among other actions, simplifying the pleadings, narrowing the issues, obtaining stipulations to avoid unnecessary proof, and limiting the number of witnesses. Oft en leads to resolution or settlement of case.

Lis pendens

A pending suit or pending action. Th e doctrine of lis pendens states that a pending suit is notice to all, so buying real estate subject to suit binds the purchaser.

Plaintiff

A person who brings a lawsuit. ■ n. complainant, accuser, suitor, petitioner, opponent, litigant

Amount in controversy

A term relevant to determining a court's jurisdiction, when jurisdiction is based upon either a minimum dollar amount with which the court is permitted to concern itself, or a maximum amount that represents the upper limit of its jurisdiction.

Bill of Particulars

In civil actions, a more detailed statement of the pleading. An adverse party is entitled to be informed of the precise nature of the opposite party's cause of action or defense, in order to be able to prepare for trial and to protect himself against surprise at the trial.

Claimant

One who claims or makes a claim; an applicant for justice; a plaintiff. ■ n. petitioner, challenger, plaintiff , appellant, litigant, party, pleader

Complaint

The initial pleading in a civil action, in which the plaintiff alleges a cause of action and asks that the wrong done to him be remedied by the court. ("Susan was served with a complaint.") ■ n. petition, charge, pleading. In criminal cases: indictment or accusation

Service of process

Delivery of a summons, writ, complaint, or other process to the opposite party, or other person entitled to receive it, in such manner as the law prescribes, whether by leaving a copy at her residence, by mailing a copy to her or her attorney, or by publication.

Appearance

"1. Th e action of an attorney in declaring to the court that he represents a litigant in a case before the court (also referred to as "entering an appearance"). 2. Th e act by which a party comes into court. EXAMPLES: the filing of a complaint by a plaintiff ; the filing of an answer by a defendant. ■ n. actualization, entrance, exhibition, materialization, emergence ("Th e appearance of his attorney was timely")"

Sanctions

"An action taken by a tribunal, for EXAMPLE, a court or administrative board, to enforce its judgment, decision, or order. EXAMPLES of sanctions are fi nes or a penalty, or even the suspension or revocation of a license."

Diversity jurisdiction

"The jurisdiction of a federal court arising from diversity of citizenship where parties are residents of different states and the jurisdictional amount has been met.

Amicus Curiae

(Latin) "Friend of the court." A person who is interested in the outcome of the case, but who is not a party, whom the court permits to file a brief for the purpose of providing the court with a position or a point of view that it might not otherwise have; oft en referred to simply as an amicus.

Court of Law

1. A court having jurisdiction of actions at law, as distinguished from equitable actions. 2. Any court that administers the law of a state or of the United States. Compare equitable action.

Adversary

1. An opponent; an enemy. 2. Th e opposite party in a lawsuit. ■ n. opponent, enemy, competitor, foe, challenger, litigant, opposing party, adverse party

Cause of action

Circumstances that give a person the right to bring a lawsuit and to receive relief from a court. See also complaint.

Statutes of limitations

Federal and state statutes prescribing the maximum period of time during which various types of civil actions and criminal prosecutions can be brought aft er the occurrence of the injury or the offense.

Pleadings

Formal statements by the parties to an action setting forth their claims or defenses. EXAMPLES of pleadings include: a complaint; a cross-complaint; an answer; a counterclaim. Th e various kinds of pleadings, and the rules governing them, are set forth in detail in the Federal Rules of Civil Procedure and, with respect to pleading in state courts, by the rules of civil procedure of several states. See also amendment of pleading.

Court of general jurisdiction

Generally, another term for trial court; that is, a court having jurisdiction to try all classes of civil and criminal cases except those that can be heard only by a court of limited jurisdiction.

Service by mail

In circumstances where permitted by statute, service of process occurs by mailing a copy of a summons, writ, complaint, or other process to the party to be served at his last known address or by mailing it to his attorney.

Ex Parte

Means "of a side" (i.e., by one party). Th e term refers to an application made to the court by one party without notice to the other party.

Motion of dismiss

Motion requesting a case, motion, or prosecution to be terminated.

pretrial motions

Motions that may be filed prior to the commencement of a trial. EXAMPLES: a motion to suppress; a motion to dismiss.

Change of venue

Moving the trial of a case from one county or judicial district to another county or judicial district. Th e most common reasons for a court to permit a change in the venue of a civil trial are "in the interest of justice," or "for the convenience of the parties." A venue change in a criminal trial may be permitted due to the defendant's inability to receive a fair trial because of publicity. Th e issue is put before the court by means of a motion for change of venue.

Pretrial

Prior to trial. "Pretrial" is applied to any aspect of litigation that occurs before the trial begins. USAGE: "pretrial proceedings"; "pretrial motions"; "pretrial conference.

Long arm statutes

State statutes providing for substituted service of process on a nonresident corporation or individual. Long arm statutes permit a state's courts to take jurisdiction over a nonresident if she has done business in the state (provided the minimum contacts test is met), or has committed a tort or owns property within the state.

Subpoena duces tecum (Latin word meaning "bring with you under penalty"

The Latin term duces tecum means "bring with you under penalty." A subpoena duces tecum is a written command requiring a witness to come to court to testify, and at that time to produce for use as evidence the papers, documents, books, or records listed in the subpoena. Depending on the jurisdiction and the documents requested, court approval may be needed for a subpoena. Other subpoenas can be served with an attorney's signature rather than a judge's approval.

Service

The delivering of process; short for service of process. ■ n. notice, notifi cation ("service by mail" or "service by posting")

Answer

n. A pleading in response to a complaint. An answer may deny the allegations of the complaint, demur to them, admit to them, or introduce affirmative defenses intended to defeat the plaintiff 's lawsuit or delay it. One may also assert counterclaims against the plaintiff . v. 1. To reply. 2. In pleading, to respond to the plaintiff 's complaint by denying its allegations or by introducing affirmative defenses containing new matter. ■ n. defense, reply, denial, rebuttal, refutation, counterclaim ("file an answer to a complaint") ■ v. reply, respond, defend, controvert ("He answered the plaintiff 's complaint by denying the allegations")

Remand

n. Th e return of a case by an appellate court to the trial court for further hearing or proceedings for a new trial, or for entry of judgment in accordance with the order of the appellate court. v. To return or send back.

Subject matter Jurisdiction

"The jurisdiction of a court to hear and determine the type of case before it. EXAMPLE: the jurisdiction of a family court to try cases involving matters of family law."

Petition

1. A formal request in writing, addressed to a person or body in a position of authority (EXAMPLES: a city council; an administrative agency), signed by a number of persons or by one person. 2. The name given in some jurisdictions to a complaint or other pleading that alleges a cause of action. 3. An application made to a court ex parte. ■ n. appeal, request, plea, motion, application ■ v. plead, seek, solicit, ask, urge, entreat, apply for ("We petitioned the court for mercy.")

Civil Law

1. Body of law that determines private rights and liabilities, as distinguished from criminal law. 2. Th e entire body of law adopted in a country or a state, as distinguished from natural law (sometimes called moral law) and from international law (the law governing relationships between countries). 3. Th e law of the Roman Empire, or modern law that has been handed down from Roman Law. 4. Th e name of the body of law by which the State of Louisiana is governed.

Proceeding

1. In one sense, every procedural aspect of a lawsuit, from beginning to end, including all means or process by which a party is able to cause a court to act; a suit; an action. 2. In another sense, any procedural aspect of a lawsuit undertaken to enforce rights or achieve redress. EXAMPLE: a hearing on a motion. 3. A specific course of action. ■ n. undertaking, course, happening ("Th e divorce proceeding took longer than I thought."); records, minutes, report, account, transactions ("Th e proceedings from GALA are kept in a file.")

Acknowledgment

1. Th e signing of a document, under oath, where the signer certifies that he is, in fact, the person who is named in the document as the signer. 2. Th e certificate of the per- son who administered the oath, for EXAMPLE, a clerk of court, justice of the peace, or notary. ■ n. confirmation, admission, ratification, declaration, endorsement ("acknowledgment of paternity")

Deposition

1. The transcript of a witness's testimony given under oath outside of the courtroom, usually in advance of the trial or hearing, upon oral examination or in response to written interrogatories. See also discovery. 2. In a more general sense, an affidavit, a statement under oath. ■ n. testimony, sworn testimony, testimony under oath, affidavit, declaration

Demur

1. To make a demurrer. 2. To object to; take exceptions to; to disagree. When a demurrer is used, it is a method of raising objection to the sufficiency of a pleading and asking that the case be dismissed. In most jurisdictions, demurrers have been replaced by the use of motions or answers, which can perform the same function.

Cross-claim

A counterclaim against a coplaintiff or a codefendant.

Court of equity

A court having jurisdiction of non-money or equitable actions; a court that administers remedies that are equitable in nature, such as an injunction. Compare court of law.

Court of inferior jurisdiction

A court of original or limited jurisdiction, as opposed to an appellate court, or a court that has jurisdiction to hear many kinds of cases. See court of limited jurisdiction.

Court of limited jurisdiction

A court whose jurisdiction is limited to civil cases of a certain type (EXAMPLE: probate court) or that involve a limited amount of money (EXAMPLE: small claims court), or whose jurisdiction in criminal cases is confi ned to petty off enses and preliminary hearings.

Affirmative defense

A defense that amounts to more than simply a denial of the allegations in the plaintiff 's complaint. It sets up a new matter that, if proven, could result in a judgment against the plaintiff even if all the allegations of the complaint are true. EXAMPLES of affirmative defenses in civil cases include accord and satisfaction, act of God, estoppel, release, and statute of limitations.

Clear and convincing evidence

A degree of proof required in some civil cases, higher than the usual standard of preponderance of the evidence.

Affirmation

A formal statement or declaration, made as a substitute for a sworn statement, by a person whose religious or other beliefs will not permit him to swear. ■ n. statement, oath, declaration, assertion, avowal, confi rmation ("out-of-court affi rmation")

Diversity of citizenship

A ground for invoking the original jurisdiction of a federal district court, the basis of jurisdiction being the existence of a controversy between citizens of different states.

Caption

A heading. As applied in legal practice, when "caption" is used to mean "heading," it generally refers to the heading of a court paper. EXAMPLE: Miriam Brown In the Court of Common Plaintiff Pleas of Bucks County, v. Stanley Brown, Scott Lang, Pennsylvania Defendants Civil Action No. 1234 September Term, 2011 ■ n. heading, title, inscription ("the caption of the case")

Action

A judicial or administrative proceeding for the enforcement or protection of a right; a lawsuit. It is important to distinguish a civil action from a criminal action. ■ n. legal proceeding, lawsuit, dispute, litigation ("an action for divorce")

Action at law

A lawsuit brought in a court of law as opposed to a court of equity. Compare equitable action.

Action at common law

A lawsuit governed by the common law rather than by statutes.

in rem action

A legal action brought against property (EXAMPLES: an action to quiet title; a civil forfeiture), as opposed to an action brought against the person.

In personam action

A legal action whose purpose is to obtain a judgment against a person, as opposed to a judgment against property. Most lawsuits are in personam actions. See also jurisdiction in personam. Compare in rem action; quasi in rem action.

Litigation

A legal action; a lawsuit. ■ n. judicial contest, prosecution, action, lawsuit, case, cause ("Massive amounts of litigation have backlogged the courts.")

Discovery

A means for providing a party, in advance of trial, with access to facts that are within the knowledge of the other side, to enable the party to better try her case. A motion to compel discovery is the procedural means for compelling the adverse party to reveal such facts or to produce documents, books, and other things within his possession or control. See also deposition; interrogatories. ■ n. exposure, uncovering, disclosure, investigation, finding, breakthrough, pretrial device

Motion of summary judgement

A method of disposing of an action without further proceedings. Under the Federal Rules of Civil Procedure, and the rules of civil procedure of many states, a party against whom a claim, counterclaim, or cross-claim is asserted, or against whom a declaratory judgment is sought, may file a motion for summary judgment seeking judgment in her favor if there is no genuine issue as to any material fact. See also motion.

Interpleader

A remedy that requires rival claimants to property held by a disinterested third party (EXAMPLES: a stakeholder; a person who is in debt to the claimants) to litigate their demands without entangling him in their lawsuits.

Digest

A series of volumes containing summaries of cases organized by legal topics, subject areas, and so on. Digests are essential for legal research. Some digests are limited to certain regions. Digests are updated continually to ensure they are current.

Allegation

A statement in a pleading of a fact that the party filing the pleading intends to prove. ■ n. assertion, accusation, avowal, claim, charge

Jurisdiction

A term used in several senses: 1. In a general sense, the power and authority of a court to decide lawsuits and bind the parties. EXAMPLES: the right of juvenile courts to hear cases involving juvenile off enders; the power of federal courts to adjudicate federal questions. 2. In a specifi c sense, the right of a court to determine a particular case; in other words, the power of the court over the subject matter of, or the property involved. 3. Th e power of a court to hear cases only within a specifi c territorial area (EXAMPLES: a state; a county; a federal judicial district). See also venue. 4. Authority; control; power. 5. District; area; locality. See also diversity jurisdiction; subject matter jurisdiction. ■ n. capacity, authority, authorization, right, charter, judicature, license, sovereignty; territory, region, domain, district, circuit, state, quarter, fi eld, province ("Th e matter has not been decided in this jurisdiction.")

Equitable action

Although the distinction between a suit in equity and an action at law has been abolished in most states, all actions now being simply civil actions, the concept of an equitable action still exists with respect to the remedy sought, as historically certain types of relief were available only in a court of equity (EXAMPLES: an injunction; specific performance). Equitable actions are designed to remedy injuries that cannot adequately be redressed by an action at law.

Class Action

An action brought by one or several plaintiff s on behalf of a class of persons. A class action may be appropriate when there has been injury to so many people that their voluntarily and unanimously joining in a lawsuit is improbable and impracticable. In such a situation, injured parties who wish to do so may, with the court's permission, sue on behalf of all. A class action is sometimes referred to as a representative action.

Quasi in rem action

An action that adjudicates only the rights of the parties with respect to property, not the rights of all persons who might have an interest in the property. See also and compare in personam action; in rem action.

Affidavit of service

An affidavit that certifies that process (EXAMPLES: a summons; a writ) has been served upon the parties to the action in a manner prescribed by law.

Motion

An application made to a court for the purpose of obtaining an order or rule directing something to be done in favor of the applicant. (EXAMPLE: a defendant's motion to dismiss is a formal request to the court that the plaintiff 's lawsuit be termi- nated without further consideration.) Th e types of motions available to litigants, as well as their form and the matters they appropriately address, are set forth in detail in the Federal Rules of Civil Procedure and the rules of civil procedure of the various states. Motions may be written or oral, depending on the type of relief sought and on the court in which they are made. Some common motions are motion to produce, motion for summary judgment, motion for entry upon land, and motion to dismiss. ■ n. request, petition, proposition, plan, demand, offering

Preponderance of the evidence

The degree of proof required in most civil actions. It means that the greater weight and value of the credible evidence, taken as a whole, belongs to one side in a lawsuit rather than to the other side. In other words, the party whose evidence is more convincing has a "preponderance of the evidence" on its side and must, as a matter of law, prevail in the lawsuit because she has met her burden of proof. Th e expression "preponderance of the evidence" has nothing to do with the number of witnesses a party presents, only with the credibility and value of their testimony.

Jurisdiction in personam

The jurisdiction a court has over the person of a defendant. It is acquired by service of process upon the defendant or by her voluntary submission to jurisdiction. Voluntary submission may be implied from a defendant's conduct within the jurisdiction, for "EXAMPLE, by doing business in a state or by operating a motor vehicle within a state. Jurisdiction in personam is also referred to as personal jurisdiction. See also and compare jurisdiction in rem; jurisdiction quasi in rem.

Procedural law

The means or method by which a court adjudicates cases (EXAMPLES: the Federal Rules of Civil Procedure; the Federal Rules of Criminal Procedure; rules of court), as distinguished from the substantive law by which it determines legal rights. ■ n. process, system, method, policy, routine, action, operation ("Federal Rules of Civil Procedure")

Defendant

The person against whom an action is brought. ■ n. accused, respondent, responding litigant, the party charged ■ ant. plaintiff

Civil procedure

The rules by which private rights are enforced by the courts and agencies. Th er e are both Federal Rules of Civil Procedure, followed in the federal courts, and rules of civil procedure for each of the states.

Jurisprudence

The science of law; legal philosophy. ■ n. philosophy, theory, legal foundation, philosophy of law, system of laws

Legal research

The science of law; legal philosophy. ■ n. philosophy, theory, legal foundation, philosophy of law, system of laws

Adversary system

The system of justice in the United States. Under the adversary system, the court hears the evidence presented by the adverse parties and decides the case.

Appear

To enter an appearance in a case. ■ v. surface, attend, arrive, come in, materialize ("appear in court")

Interplead

To file an interpleader in a lawsuit.

Motion to compel discovery

To force a response; to force a response to discovery. A person who fails to answer interrogatories or to respond appropriately to an attempt to take his deposition may be forced to comply by a motion to compel discovery.

Amend

To improve; to make better by change or modification; to correct; to adjust. Th us, a motion to amend is a motion by which a party seeks the court's permission to correct an error or omission in a pleading or to modify allegations and supply new ones. See also amendment of pleading. ■ v. correct, remedy, adjust, change, revise, alter, modify

Dismiss

To order a case, motion, or prosecution to be terminated. A party requests such an order by means of a motion to dismiss.

Concurrent jurisdiction

Two or more courts having the power to adjudicate the same class of cases or the same matter. See also jurisdiction.

Interrogatories

Written questions put by one party to another, or, in limited situations, to a witness in advance of trial. Interrogatories are a form of discovery and are governed by the rules of civil procedure. Th ey must be answered in writing. Compare deposition. ■ n. questions, inquiries

Request of admission

Written statements concerning a case, directed to an adverse party, that must be admitted or denied. All will be treated by the court as having been established and need not be proven at trial.