Chapter 4 Legal Terminology

Dismissal without prejudice

A case is dismissed but may be filed again, because the court has not made up its mind on the matter.

Dismissal with prejudice

A case is dismissed but may not be brought back again, because the court has made up its mind about the case.

Prima facie case

A case is sufficient on its face. This means that, if all facts alleged by the plaintiff are eventually proved true at trail, the plaintiff deserves to be awarded damages. This type of case must exist at all stages of the proceedings from the filing of the complaint through the trial. If at any point during litigation, a party can establish that this type of case doesn't exist, the case should be dismissed.

Cross claim

A claim by one defendant against a co-defendant. One form of cross claim occurs when one original defendant sues another original defendant, but third party complaints are also cross claims.

Counterclaim

A claim by the defendant against the plaintiff. Sometimes the only determining factor as to wether the claim is an affirmative defense or a counterclaim is wether the defendant is alleging damages. If this is the case, it becomes a counterclaim. A counterclaim is in essense, a pleading presenting the defendant's complaint against the plaintiff.

Information and belief

A common legal phrase that qualifies a statement as being a fact only to the best knowledge of the person making the statement. Equivalent to saying, This is what i believe happened.

Bailiff

A court employee whgo keeps order in the courtroom.

Felony

A crime punishable by a sentence of a year or more in prison.

Misdemeanor

A crime punishable by a sentence of less than one year.

Plea bargain

A defendant in a criminal case agrees to plead guilty, usually to a lesser charge, in return for a reduced sentence.

Personal recognizance

A defendant is released without being required to post bail, on the promise that he or she will appear in court at designated times.

Bench conference

A discussion between the judge and the attorneys, usually conducted at the judge's bench so the jury can't hear what is said.

Pleading

A document filed with the court asking the court to take some specific legal action. A motion asks the court to rule on a procedural matter. A pleading states a party's position in a legal action.

Filed

A document is filed when it is presented to the clerk of the court. All documents and any copies are date stamped by the clerk of the court at the time of the filing.

Subpoena duces tecum

A document issued under authority of the court to compel the apperance of a witness, and ordering the witness to provide specific documents.

Allegation

A fact claimed by a party.

Objection

A formal challenge by opposing counsel to evidence or questions asked of a witness.

Jury, jurors

A group of citizens who wilol be called upon to hear the evidence and render the verdict. The trier-of-fact.

Ex parte hearing

A hearing at which only one party is present, such as a hearing on a motion or a restraining order. They are not common.

Preliminary hearing

A hearing requiring the state to produce sufficient evidence to establish that there is probable cause to belive that a crime has been committed by the defendant.

Default judgement

A judgement by the court in favor of the plaintiff, based on the fact the the defendant failed to respond in a timely fashion.

Adverse judgment

A judgment against your client.

Magistrate

A judicial officer who may preside over hearings, does not have all the powers of a judge. He or she ordinarily deals with the procedural matters.

Jury Trial

A jury is a group of citizens selected from the community to determine the outcome of a case. In most cases, either party has the right to demand a jury trial, but if both parties agree, the judge may act in place of the jury. This is most common in very technical cases, such as a complex contract situation.

Deliberations

A jury's discussion of the case, in private, following the trial, with the goal of rendering a verdit.

Doctrine

A legal concept generally accepted by most courts which, although not law, offers guidance to the court. Legislatures will sometimes codify, or make into law, a popular doctrine.

At issue or in issue

A legal question to be answered by the court.

Cause of action

A legally valid reason to sue; one of the required elements of a complaint.

Pretrial conference

A meeting between the court and the parties for clarification of procedural matters and to promote a settlement.

Challenge for cause

A method of dismissing a juror for a good cause shown. These are unlimited in number.

Peremptory challenge

A method of dismissing a juror for which no reason need be given. These challenges are limited in number, commonly 3 or 6.

Motion for judgment NOV (notwithstanding the verdict)

A motion asking the court to disregard the jury's verdict and replace it with the court's own verdict. NOV stands for non obstante verdicto.

Appeal as a matter of right

A party who loses in the trial court has the right to have his or her case heard by the next highest appellate level court in civil court. There are circumstances in which an appellate level court has no choice but to hear the appeal, such as some death penalty cases in state criminal courts.

Expert witness

A person who has been qualified by the court to have experince and knowledge in a specific area and who will be allowed to express opinions related to his area of knowledge.

Notary public

A person who is authorized to administer the oath and to verify that an individual sings a legal document.

Process server

A person who is permitted by law to serve legal documents, must be at least 18 years old and not a party to the action.

Alternate juror

A person who sits to hear the entire case with the jury, but who will not deliberate or vote on the verdict unless one of the jurors is dismissed. Civil cases in many jurisdictions have no alternates. Instead, the parties and judge agree on the number of original jurors and on how many may be dismissed.

Exhibit

A physical item presented to support an argument.

Motion for summary judgment

A pretrial motion asking the court to determine the outcome of a case based on the pleadings and motions rather than going to trial with a jury. The argument is that there are no material facts in dispute, only law, and since the jury is the trier-of-fact, there is no need for a jury trial. May also refer to a motion to limit issues that will be dealt with at trail, referred to as a partial summary judgment. A successful partial summary judgment determines the outcome of some, but not all of the issues before the court.

Precedent

A prior case (usually a written court opinion) that a subsequent court may rely upon when deciding a matter with similar facts and or issues.

Hearing

A proceeding in court where the judge and both parties are present.

Probable cause

A reasonable basis to believe that a crime has been committed.

Request for production

A request that documents or other physical items be provided for inspection. Also referred to as Inspection of documents or property. Example - Please produce any and all receipts for Acme dry cleaning between Feb. 1 - Feb. 14, 2011.

Motion

A request that the court take a specific procedural step. They usually state specific legal positions about the matter before the court, while motions are procedural in nature, and act as a request for an order.

Motion for a new trial

A request that the judge order a new trial because of procedural errors. A party must generally file this motion in order to later appeal, fulfilling the obligation to exhaust all available remedies.

Rule on witnesses

A rule that states that a witness in a case may not be in the courtroom during the testimony of other witnesses. Mostly used in criminal cases, it may be used in civil cases at the judge's discretion.

Rehearing

A second chance to present arguments to the court on the same issues.

Bond on appeal

A sum of money held by the court to ensure that the funds from the award will be available after the appellate process.

Civil law

A violation of civil law doesn't directly harm the community, the person harmed sues the violator. `

Criminal law

A violation of criminal law is viewed as harming the community. Therefore, the state acts against the violator. Penalties for violating criminal law includes fines, community service, and imprisonment. One can be sued civilly and then charged criminally for the same event.

Bail bond

A written agreement to pay the full bail amount to the court if the defendant fails to appear when required.

Response brief

A written answer to the appellate brief.

Appellate brief

A written argument by a party covering the issues, called "points of error," on appeal. The brief by the appellant is usually referred to as the "appellate brief." The brief filed by the respondent is usually referred to as the "response brief."

Affidavit

A written statement of fact sworn to under oath.

Cross examination

After direct examination, the other party may cross-examine the witness, but is limited to the topics brought up under direct questioning (within the "scope").

Estate

All the property left by someone who has died.

Trial brief

Also called a trial memorandum or points and authorities, this document is filed with the court to argue a legal issue, relying on law to support the party's position. Often filed in support of a motion, it attempts to convinve the reader and only argues points favorable to the client.

Affirmative defense

An admission that a specific act did occur, arguing that the fault lies not with the defendant. Intended to eliminate or reduce a plaintiff's damages.

Stipulation

An agreement between counsel for the parties regarding fact, issue, or point that will not be disputed at trial.

Settlement agreement

An agreement to end the litigation for an agreed upon consideration, usually money.

Damages

An amount of money paid to atone for injury or economic loss.

Preserving the record

An attorney making statements, or repeating a previously overruled motion, to protect any right to appeal at a later point.

Assigned counsel

An attorney who is ordered to represent a defendant, usually because the defendant cannot afford an attorney.

Grand jury

An investigatory panel that determines wether probable cause exists to return an idictment.

Order

An official command by the court, usually demanding that one or both of the parties perform an act.

Oral argument

An oral presentation to an appellate court. The party must request an this; that request isnt always granted.

Warrant

An order from the judicial officer or the court authorizing an arrest or a seach or seizure of property.

Full faith and credit

Article IV, section 1 of the Constitution establishes that individual states within the US must respect the public acts, records, and judicial proceedings of every other state. In short, any state must give full faith and credit to the laws and judgments of other states.

Motion to dismiss

Asking the court to end a case without going to trial.

Lis pendens

Attachment to the title of a piece of property notifying any potential purchasers that the title is subject to the outcome of litigation.

Lien

Attachment to the title of a piece of property preventing its sale until a previous financial obligation has been satisfied.

Introduction of evidence

Attorneys must "move" for a piece of evidence to be admitted into evidence. If the motion is grante4d, the evidence will be assigned a number or letter and labeled.

Jurisdiction

Authority of a court to hear and decide a case.

Res judicata

Doctrine stating that a case that has been decided on its merits may not be re-litigated.

Summons

Document that informs the defendant that he is being sued and that he has a specific amount of time to respond.

Closing argument

Each attorney addressing the jury or the court at the end of the trial, attempting to persudae prior to deliberation.

Ad damnum clause

Element of a complaint that asks for damages; also called wherefore clause od prayer for relief.

Negligence

Establishment of a duty, followed by a breach of that duty, resulting in damages. In order ti be actionable, the negligence must have been the proximate cause of the damages. It generally means an act is accidental, not intentional.

Direct evidence

Evidence (from personal observation) that tends to establish a fact without the need for an inference. Example - a witness who sees a gun fired can give a direct testimony as to a shooting.

Oral evidence

Evidence given orally, also called testimonial evidence.

Circumstantial evidence

Evidence of one fact that requires an inference to establish another fact. Example - a witness whoi hears a shot, turns around and sees a man holding a gun can give circumstantial evidence as to a shooting.

Physical evidence

Evidence that can be touched, also called tangible or demonstrative evidence.

Chain of custody

For evidence to maintain its integrity, there must be chronological documentation of each person having possession of the evidence (custody) from the point of collection (seizure) until admission at trial, including how it has been controlled, transfered, analyzed or otherwise handled. Applies to physical and electronic evidence and may be relevant in civil or criminal cases.

Arraignment

Formal hearing in court where the defendant is informed of charges being brought and generally pleads guilty, not guilty or nolo contendre.

Jury instructions

Guidelines to the jury about how the law is to be applied, and the facts that may be considered during its deliberations. May also be referred to as a charge to the jury.

Double jeopardy

In a criminal case, the state cannot rety a defendant on the same charges once a not guilty verdict is rendered by a jury or a judge.

State or government

In a criminal case, these terms mean the prosecution.

Parties

Individuals or groups involved in a legal action.

In personam jurisdiction

Jurisdicition over a person.

Quasi in rem jurisdiciton

Jurisdiction over property, even though the property is not the controversy.

In rem jurisdiction

Jurisdiction over the controversy, often property.

Rules of court

Laws that govern the procedures of trial.

Competency

Legal capacity to testify. The elements involved are : -Understanding the obligation to tell the truth. -Knowledge of the topic of the testimony. -Ability to communicate.

Due process

Legal principle that the government must safeguard the legal right owned to a person according to the law, including notice of proceedings and a chance to be heard prior to the loss of life, liberty or property. Also, a constitutional guarantee that a law shall not be unreasonable.

Counsel

Legal representative. Attorney.

Liable

Legally responsible.

Bail

Money or property deposited with the court to procure the release of a defendant and to ensure the apperance of a defendant at trial.

Retainer

Money paid to an attorney to secure their services; also refers to the contract between the client and attorney. When an attorney has been retained, they work in a representative capacity on behalf of the client.

Co defendants

Multiple defendants in a legal action.

Attorney of record

Once an attorney has entered an apperance, they are the attorney of record in the case.

Affiant

One who signs the affidavit.

Dissenting opinion

Opinion that disagrees with the majority opinion.

Depositions

Oral questions that must be answred under oath. They take place out of court usually in an attorneys office, with a court reporter transcribing the testimony. A court reporter i a person trained to use a stenography machine to take testimony, verbatim, in court, or at a deposition. Attorneys from both sides must be present and will have opportunities to ask questions. They can take place for questioning the opposing party or witnesses. They are sometimes video or audiotaped.

Third party complaint

Pleading here defendant sues someone not yet a party to the action.

Opening statement

Presentations made by the attorneys at the beginning of a trial, stating the facts they intend to prove during the trial.

Service of process

Process is the summons and complaint. Service of process is the delivery of the summons and complaint upon the defendant in a court action. Service is usually done in person. However, service may, in some circumstances, be made by mail, by publishing a notice in a newspaper or by serving a company. Serving a company is often accomplished by serving a registered agent (someone who accepts service on behalf of a company).

District attorney

Prosecutor for the state.

Direct examination

Questioning the witness first. The party calling the witness to the stand conducts the examination.

Examination

Questions directed at a witness who is under oath in a court or at a deposition.

Grounds

Reason or reasons.

Personal service

Service of a legl papers upon an individual, as opposed to a business or registered agent.

Bound over

Submitted to, sent.

Relevant

Tending to prove or disprove a fact in issue.

Evidence

That which tends to establish or disprove a fact.

Affirm

The appellate court agrees with the decision of the trial court.

Modify

The appellate court alters the decision of the trial court.

Reverse

The appellate court disagrees with and nullifies the decision of the trial court.

Remand

The appellate court sends the case back to the trial court for further deliberation.

Prosecution

The bringing of criminal charges against a defendant; also the party presenting the Government's case at a criminal trial.

Preponderance of the evidence

The burden of proof in civil cases means that it is more likely than not that a fact is as a party alleges it to be. The burden of proof in criminal matters is beyond a reasonable doubt, a higher standard.

Take under advisement

The court delays a ruling on a motion so that the motion may be considered.

Motion for directed verdict

The court is asked to decide the outcome of a case because the plaintiff has faqiled to establish a prima facie case.

Docket

The court's official calendar for trials and hearings to take place in that courtroom.

Nolle prosequi

The decision of the prosecutor not to prosecute, even though he or she believes that there is sufficient evidence to do so.

Beyong a reasonable doubt

The degree of proof required in a criminal prosecution usually requiring unanimous agreement of the jury. The jury may have some doubt and still find the person guilty, but the doubt cannot be reasonable. If the doubt is reasonable, the verdict must be not guilty.

Burden of proof

The degree to which something must be proved at trial. The party making the allegation or claim generally bears the burden of proof. (Plaintiff)

Subpoena

The document issued under authority of the court to compel the apperance of a witness.

Proximate cause

The event or point at which a series of incidents begins ultimately resulting in an event with damages.

Admissible

The evidence that will be allowed to be considered by the jury. The jury will decide wether or not to believe the evidence.

Verdict

The final conclusion of a jury.

Judgment

The final conclusion of the court. In civil cases, the judge usually enters the jury's verdict into judgment. However, the judge has the power to alter or overturn the jury's verdict. In criminal cases the judge can't overturn the jury's finding of not guilty, but the court may overturn a guilty verdict in the interest of justice.

Initial appearance

The first court appearance by a defendant to a criminal charge, during which the court informs him or her of the charges, decides wether bail is approproate, and sets the date for the next court proceeding.

Jury panel

The group from which the jury will be selected.

Excuse the jury

The judge instructs the jury to leave the courtroom temporarily.

Foreperson (foreman or forewoman)

The member selected by the jury to lead the deliberations and speak for the jury.

Discovery

The methods whereby one party obtains relevant information on a case from the other party. The method tht attempts to even the playing field between parties by exposing all relevant facts upon which the court will ultimately base its decision. It i between the parties and does not directly involve the court, although the certificate of mailing for each document is often filed.

Record

The official collection of all pleadings, exhibits, motions, orders, and transcript of the trial.

Concurring opinion

The opinion of one or more judges that agrees with the results of the majority, but arrives at that result for different reasons.

Defendant

The party against whom a complaint is filed.

Third party defendant

The party against whom the third party complaint was filed. The defendant in the original complaint becomes the third party plaintiff.

Redirect examination

The party conducting direct examination conducts redirect examination to clarify matters brought up during cross. The party conducting the redirect can't introduce a new line of questioning, but is limited to the matters discussed during cross.

Appellant or petitioner

The party initiating an appeal.

Appelle or respondent

The party responding to an appeal.

Plaintiff

The party who initiates the action by filing a complaint, claiming injury or harm.

Clerk of court

The person or persons responsible for the court files and exhibits.

Venue

The place of trial; the physical location.

Answer

The pleading filed by the defendant in response to the allegations contained in the complaint.

Complaint

The pleading that initiates litigation. Filed by the plaintiff, the complaint contains the general allegations, against the defendant. It is served with the summons.

Panel of justices (or judges)

The portion of an appellate-level court that hears a case. Usually a panel is made up of three judges.

Service or served

The presentation of legal papers.

Stare decisis

The principle that a court must follow previous court decisions unless there exists a compelling reasoin not to. Related to the concept of precedence. It means let the decision stand.

Litigation

The process of asking a court of law to decide the outcome of a dispute; a lawsuit.

Remittitur

The process whereby the judge subtracts from the amount of damages the jury has awarded. In effect, the judge gives the party awarded damages the choice of either accepting a lesser amount, or a new trial will be granted to the other side.

Points of error

The questions that are the basis for the appeal. Also called "issues on appeal," these questions point to the potential errors of the trial court.

Privilege

The right to refuse to testify or to prevent someone else from testifying.

Majority opinion

The strongest form of opinion. When more than 50 percent of the court agrees on a decision. This opinion is law until it is superseded or overturned.

Prejudicial

The tendency to cause bias even where no bias has existed previously.

Statute of limitatons

The time limit for filing a suit. Suits filed after the time limit has run out will be dismissed. The clock generally starts to tick at the time the damages occured.

Court

The tribunal or forum where the trial occurs, as well as the judge himself. The judge is the trier of the law at the trial.

Probative value

The value of pursuing an investigative or probing line of questioning.

Petition for writ of certiorari

The vehicle by which the case is taken from the court of appeals (state or federal) to the supreme court ( state or federal). Also, the means by which the case is taken from a state supreme court to the US supreme court. This is issued by the higher court. If the higher court approves the petition, they will review the case. If the higher court denies the petition, the decision of the lower court stands. Commonly referred to as a petition for writ of cert.

Transcript

The word-for-word typed record of what occured at the trial.

Reply

This pleading is the plaintiff's response to a defendant's counterclaim.

Sustain

To affirm an objection.

Appeal

To ask the court at the next higher level to determine wether the trial court erred.

Contest

To challenge

Plead

To declare a defendants position in a criminal trial, usually either guilty or not guilty. Other possible pleas include nolo contendre.

Stay

To delay the implementation of a court's order.

Qualify

To establish a witness's expertise in a specific area.

Acquit

To find the defendant not guilty.

Waive

To give up a right. A waiver may be either voluntary or the result of an action, or inaction, by the party.

Adjourn

To halt temporarily, but not end the trial.

To strike from the record

To have certain testimony removed from the record of the trial. This is usually accompanied by an admonition to the jury that, when deliberating, they are not to consider the testimony they just heard.

Petition

To make a formal request to the court. Some states refer to complaints as petitions depending on the type of action filed. For example - a petition for Dissolution of Marriage would involve a petitioner and respondent rather than a plaintiff and a defendant.

Move

To present a motion to the court.

To bar

To prevent or stop.

Notice

To provide, or gain, knowledge of legally relevant information. Notice is a critical concept applicable in almost every area of law. For instance, a defendant in any legal action, civil, criminal, or administrative, has the right to be noticed as to that matter. In civial law having notice of certain facts can indicate or increase a persons liability (such as when a person is aware of a dangerous condition on their property).

Voir dire (of witnesses)

To question a potential witness to determine his or her competency or the appropriatness of his or her testimony.

Voir dire (for the jury)

To question prospective jurors.

Set for trial

To set a date for trial upon which the attorneys, parties, and courts agree.

Attest

To swear.

Nolo contendre (no contest)

When a defendant decides not to contest the charges, but does not admit guilt. The defendant may be sentenced as though they have pleaded guilty.

Certificate of mailing or certificate of service

When a document is filed with the court or when descovery is sent to a party, a certificate of mailing is usually attached. This certificate attests that a true and correct copy of the document was sent to all parties involved in the litigation. The certificate should be signed by the person who plces it in the mail, unless the state requires an attorney's signature. This is often replaced with a reciept of copy.

Diversity of citizenship

When a federal court hears a case based upon the fact that the parties are from different states, and that the amount of money claimed as damages exceeds a minimum set by federal statute, which is currently 75k.

Resting a case

When a party is finished presenting evidence, it rests.

Apperance

When an attorney acts on behlaf of a client in court. This action may be either a personal apperance in front of a judge or the filing of a document (such as a motion or complaint) with the court on behalf of the client.

Joint and several liability

When multiple defendants may be found liable as a group (jointly) or seperately (several).

En banc

When the entire appellate level court sits to hear and decide a case, indicating that the case has a high level of importance.

Additur

When the judge adds to the amount a jury has awarded. Typically, the judge will give the party who must pay the award the choice of an increased award, or a new trial will be granted to the other side.

Opinion

Written decision of the court.

Notice of appeal

Written notification in motion form that a party intends to appeal. Most court rules require that the motion be filed with the trial court, the appellate court, and sent to any other parties involved in the action. A party has the automatic right to one appeal to the next highest court.

Interrogatories

Written questions to the opposing partiy that must be answered under penalty of perjury. Example - Describe the events leading to the accident.

Request for admissions

Written statements the opposing party must admit or deny under penalty of perjury. Failure to respond within a specific amount of time (mostly 30 days) means that the statements are assumed to be admitted. Example - Admit or deny you had been drinking alcohol shortly before the accident.