EQUITY

"FAIRNESS"  

Involves making a decision in the interest of justice.

Almost any remedy except money damages

Alternate definition:  Used to describe the ownership interest which a person has in property over and above any mortgages or other liens.

EX: If you wanted an order to stop your neighbor from dumping seware on your grounds (an injunction), an order making the other side perform under contract (specific performance), or anything else besides a moneytary judgment, you would be seeking an equitable remedy.

JUDGMENT

A judgement is a final determination of a matter before the court.

Final resolution of the rights of the parties to a lawsuit.

Historically, a judgment referred to the final decision of a court of law (as opposed to a court of equity).

The judgment can apply to the entire matter before the court or to only a portion of whole.  

Resolution is final, and the parties can appeal the court's decision if they disagree.

EX:  Aaron sued Betty, and, after a lengthy trial, the Court issued a judgment ordering Betty to pay Aaron $100,000.

DECREE

Today, a decree is the same as a judgment.  

It is a final judgment of a matter before the court.

Historically, a judgment was a final judgment from a court of law, and a decree was a final judgment from a court of equity.

EX:  Aaron sued Betty and, after a lengthy trial, the court issued a decree ordering Betty to sell the house to Aaron.

WRIT

A writ is a court order directed to the SHERIFF or to another GOVERNMENT official directing that person to perform whatever is ordered in the court decree.

The writ is issued ON BEHALF OF THE STATE,

contains FULL INSTRUCTIONS on what the sheriff or designated official must do.

EX:  Aaron won his case and now wants to enforce his judgment.  The loser, Betty, refuses to satisfy the judgment.  Aaron obtains a writ that orders the sheriff to pick up ("attach") certain items of Betty's property and deliver that property to Aaron.

WRIT OF MANDAMUS

A writ of mandamus is a writ DIRECTED TO a goverment official, ORDERING that the person perform his or her goverment duty.

The writ of mandamus directs that person to do his or her job in the manner stated in the writ.  If he or she refuses to obey the writ's directions, that government person could fact court sanctions.

EX:  In the old South, the registrar of voters would often refuse to hand out voting applications to black, depriving them of their right to register to vote.  The black voters were forced to obtain a writ of mandamus. It DIRECTED and ORDERED the registrar to register these voters.

ADJUDICATION

Adjudication is a final judgment in a matter after a full and fair HEARING

An adjudication is a JUDGMENT, issued by the COURT, after hearing all the evidence.  

A FULLY INFORMED judgment based on the evidence, in CONTRAST to a mere TECHNICAL judgment, such as a judgment by default, which is automatically issued when one party fails to appear.

EX:  Gwen knew the matter would be fully adjudicated since the other side was insisting on a full trial.

PENDENTE LITE

"Litigation pending"

The outcome of that litigation affects the matter at hand.

When attorneys indicate that the issue in question will be resolved by litigation that is currently in progress, they say the matter is "pendente lite."

EX:  Betty owes Joe $15,000, and is ready to pay.  Peter tells X

COURT OPINIONS

When an appellate court renders a decision, all the judges on the court may not agree.  Depending on how many judges agree with the decision, different types of opinions might be issued.  Attorneys will sometimes argue that a decision might not be followed in the future by other courts because there was not a unanimous decision.  Typically, appellate courts have three judges, and state supreme courts have five to seven judges.  The U.S. Supreme Court has nine because President Franklin Roosevelt "packed" the court with two extra judges.

MAJORITY OPINION

A majority opinion means not all the judges agreed with the decision, but a numerical majority approved of the decision.

When there is a split decision, some judges favor one position, and one or more judges favor another.  The side that has a mathematical majority of the judges writes the majority opinion.  It becomes the controlling decision of the court.  For that reason, the majority opinion is often just called the opinion of the court.

EX:  The appellate court consists of three members:  Jerry, Dick and Mary.  Jerry and Mary believe the appellant should win, while Dick believes the respondent is correct.  Since a majority is two judges, the appellant wins, and that opinion becomes the majority opinion.

 MINORITY OPINION

In an appellate decision, when the judges are split, the judges that are not in the majority are in the minority and write the minority opinions.  The minority opinion is not binding on anyone nor does it carry any weight as a precedent under the rules of stare decisis.  

However, the minority opinion does has value since attorneys can argue that the law is not so settled and absolute that it convinced the entire court.  Further, attorneys sometimes urge and hope that if a similar case arises, the minority view may ultimately form the majority position.

EX:  Referring to the majority decision, where Jerry and Mary wrote the majority opinion, Dick's opinion would be the minority opinion.

DISSENTING OPINION

A dissenting opinion is an opinion which disagrees with the majority opinion.

Usually, the dissenting opinion is the minority opinion.  However, it is possible for a judge to dissent from only PART of a majority opinion and to uphold the rest of the decision.

EX:  In the majority opinion example, where Jerry and Mary wrote the majority opinion, Dick's opinion would be the dissenting opinion.

CONCURRING OPINION

A concurring opinion is one in which the judge AGREES with the RESULT of the majority opinion but expresses a slightly different reason or emphasis for doing so.

EX:  The majority opinion in a contract case found there was no contract because there was no acceptance.  Jerry wrote a concurring opinion in which he agreed with the majority that there was no contract.  However, Jerry argued there was no contract because there was no consideration.

PER CURIAM OPINION

A per curiam opinion is an opinion by the court as a whole

Normally, the opinion of the court is written by one person and contains the signatures of the author and the judges that agree with that decision.  Sometimes the court hands down a decision that merely states it is the opinion of the court without stating who drafted the opinion.  Per curiam opinions occur most frequently in HIGH PUBLICIZED, POLITICAL CASES, WHERE NO JUDGE IS PARTICULARLY ANXIOUS TO BE KNOWN AS THE AUTHOR OF THE OPINION.

EX:  The court issues an opinion, with no signatures, stating it represents the opinion of the court.

HISTORY OF A DECISION

Even after a court renders a decision, several things can happen to that decision.  It can be appealed, and the higher court may throw out the lower court judgment, or perhaps the same court that issued the judgment can change its mind and try the whole case over.  Generally, nothing happends to a court decision, but when it does, the most common options are listed below.

AFFIRM

Part of the history of a decision, 

To AFFIRM a decision means the trial court decision was appealed and the appellate court agreed with the lower court ruling.

The appellate court ratifies the lower court opinion.  Trial court opinions can't be used as precedents.  When an appellate court rules on a case, if the case represents an important legal principal, the opinion will probably be published in the law books.  

ONLY PUBLISHED OPINIONS CAN BE CITED BY ATTORNEYS AS PRECEDENTS

Ex:  Tim lost his trial in the trial court when it found in favor of the plaintiff, Mildred.  Tim appealed, and the appellate court agreed with the trial court's decision.  It AFFIRMED the lower court's ruling.

REVERSE

To reverse a decision means the trial court decision was appealed and the appellate court DISAGREED with the loewr court ruling.

When an appellate court reviews a lower court decision and finds the trial court in error, it reverses the lower court's opinion.  The appellate court throws out the trial court's decision and replaces it with the appellate court's opinion.

EX:  Tim lost his trial in the trial court when it found in favor of the plaintiff, Mildred.  Time appealed, and the appellate court reversed the trial court's decision.  The appellate court discarded the trial court decision, and issued a new decision in favor of Tim, whom it found was the winning party.

REMAND

A remanded decision is a trial court decision that is appealed and sent back by the appellate court to the lower court for further proceedings.

The appellate courts only decide issues of law.  They do not decide factual questions.  So the appellate courts make their decisions based on law, and if further factual questions or legal remedies are needed, it sends the case back to the trial court.

EX:  In an automobile accident, both the P and the D were injured.  The TC found for the D.  If the appellate courts reversed the trial court decision, the trial court would have to decide what award would go to the P.

OVERRULE

A case is overruled when the same court or a higher court overturns a previous decision.

Only a court of equal or higher authority can change a decision.  Here the court decides that an existing decision is incorrect, claims it can no longer be used as a precedent, and issues its new decision.

EX:  In 1896, the U.S. Supreme Court issued a decision entitled Plessy vs Furguson, which held that segregation was acceptable as long as there was separate but equal facilities.  In 1954, the U.S. SC no longer found segregation to be acceptable, and in the case of Brown vs Board of Education, it overruled its earlier decision.

RETRIAL

A retrial takes place when a court, finding it has made a serious error in the original trial, has an entirely new trial on the very same case.

Explanation:  The original trial is thrown out, and there is an entirely new trial as if the case had never been heard before.  It is the same trial court that holds a retrial, not an appellate court. 

Example:  Sam Sheppard murder case.  Trial court acted unfairly, and there was excessive pretrial publicity - preventing a fair trial.  Attorney F.L. Baily retried the case, and this time the jury acquitted SS of murdering his wife.

WITNESSES

Anyone who is competent can be a witness, even a young child.  The person only has to be able to tell the truth and be able to express himself or herself so as to be understood.  Expert witnesses can offer opinions about the matter, while everyone else must have personal knowledge of the matter in question.

WITNESS

A witness is a person who offers evidence while under oath.

Explanation:  Generally, a witness testifies to what he or she has observed, heard, or otherwise perceived.  However, expert witnesses can also offer their opinions.  CC of Civil Procedures definition:  "A witness is a person whose declaration under oath is received as evidence for any purpose, whether such declaration be made on oral examination or by deposition or affidavit."

Example:  Josh is a five-year-old boy who observed a murder.  Once the judge is convinced that Josh knows the difference between truth and lies and knows the importance of telling the truth, Josh can testify.

COMPETENCY

The competency of a witness is determined by those qualifications which allow a person to legally testify.

Explanation:  Not everyone can testify.  People with no relevant knowledge or those who are mentally unsound may be deemed incompetent.  Competency is a person's legal qualifications to be a witness.  (Competency can also be used to describe documents and other written evidence.  In this case you speak of a document's ability to be used as evidence.)

Example:  In the example of Josh, he must convince the court that he is able to distinguish lies from reality.  He must also satisfy the court that he is capable of telling the truth.  If Josh can't prove this to the court, he will be unable to testify.  Josh would then be an incompetent witness.

CREDIBILITY

The credibility of a witness is how well he or she is believed.

Explanation:  A witness must first be competent to testify.  if the witness is considered competent, then the jury is allowed to hear and decide his or her credibility.  Credibility is the weight given to the witness's testimony - how worthy or believable is the witness's testimony.  Some of the items that make up the credibility of the witness:  demeanor and manner in which the W testifies, capacity to perceive, to recollect, or to communicate, character for honesty or veracity...

EXPERT WITNESS

An expert witness is someone who has specialized knowledge or training not available to the ordinary witness.

Explanation:  Generally, ordinary witnesses can only testify about facts that they know or have observed.  An expert witness can answer hypothetical questions and offer opinions to the jury.  Typical expert witnesses include doctors, engineers, real estate brokers, and others who have special knowledge in their field of expertise.

Example:  Fred is the P in an automobile injury case.  His doctor is familiar with Fred's medical condition and can testify as an expert.  The doctor can offer medical opinions about Fred's health condition and future medical prognosis, even though he did not witness the accident.  He can only offer expert testimony in his area of expertise.

LAY WITNESS

A lay witness is a person who is not testifying as an expert.  It is a person who does not possess a special expertise in the area in which he or she will be testifying.

Explanation:  Most witnesses are lay witnesses.  They testify about facts and events they observed through their senses.  Lay witnesses provide first-hand observation or knowledge.  They are not allowed to offer any opinions about what they observed, or about that of which he or she has first-hand knowledge.

Example:  Peter observed an automobile accident.  He can testify about what he observed:  how fast the cars were going, who was driving, if the signal was red, etc.  He cannot testify to who he thinks was at fault or what caused the accident.

HOSTILE WITNESS

A hostile witness is a person who is called up for direct examination but who has such strong feelings for or close relationship to the other side that the witness is biased towards the other side.

Explanation:  Generally, a person only calls witnesses who are favorable to his or her side.  Sometimes a party is forced to call a witness who overtly or potentially favors the other side.  When this happens, the attorney asks the court to declare the person a hostile witness.  The advantage is that once so labeled, the attorney can ask leading questions.

Example:  Matt is the defendant in an automobile case.  His mother was a passenger in the car and, therefore, is a witness.  Because of her relationship, Matt's mother is naturally prejudiced in favor of Matt.  If the P calls the mother as a witness, she would be a hostile witness for the plaintiff.

PROOF OF INSTRUMENTS

It is customary for many documents to have the signature verified in such a way that its authenticity is beyond question, and certain documents must be proved before they can be recorded or used in other capacities. 

Most common proof of instruments:

Acknowledgement

Afficavit or Declaration

Verification

Jurat

ACKNOWLEDGEMENT

An acknowledgement is a written declaration signed by someone authorized to take acknowledgments certifying that the person signing the instrument is, in fact, that person.

Explanation:  Just because a signature says "Jone Jones," how do you know that it was John Jones who actually signed the document?  The law solves this problem by authorizing certain people to verify that the signature is genuine:  A person comes before an acknowledger and provides proper proof as to who he or she is.  The person then signs the document in the acknowledger's presence.  Each state sets its own requirements as to who may provide acknowledgements.  In California:  Judges, retired judges, certain county clerks, district attorneys, city attorneys, coutny counsels, and notaries may take acknowledgements.

Example:  Sam wishes to record a deed to the property he just purchased.  In California, before he can record the deed, the seller's signature on the deed needs to be acknowledged.  When the seller signed the deed, he did so before a proper acknowledger, proving his identity.

NOTARY PUBLIC

A notary is a person licensed by the state to take acknowledgements and administer oaths.

Explanation:  In most states, court reporters must also be notaries.  Depending on the state, the notary may be authorized to perform other functions as well.  The requirements for a notary vary from state to state.

Example:  Dustin needs to have his signature to a document verified.  He goes to a notary, who will acknowledge his signature.  His signature will be notarized.

OATH (Sworn Statement) and AFFIRMATION

An oath is a statement sworn under penalty of perjury, with reference to God, that what the person says is the truth.  An affirmation is exactly the same, except the statement agreeing to be under penalty of perjury contains no reference to God.

Explanation:  Oaths are also called "sworn statements."  You will administer an oath or affirmation during depositions and sometimes in court.  Once a person has sworn an oath they can be convicted of perjury if they provide false statements.  In theory, the swearing of an oath should keep a person honest.

Example:  Before testifying in court, Kipp must be sworn in and take an oath to tell the truth

AFFIDAVIT

An affidavit is a written statement made under oath without any notice to the other parties to a lawsuit.

Explanation:  An affidavit is a written statement given under penalty of perjury, in which the person takes an oath that the statement just made is true and correct.  To be sworn in, the person must take the oath in front of a notary or someone else authorized to administer oaths.  After the person's statement, there is a jurat.  There is no notice to the other side that the statement is being made.  The person makes the statement on his or her own.  An affidavit can be used to verify a court document as well as to prepare documents that can later be used, if necessary, in a court proceeding.  The person who makes an affidavit is called the affiant.

Ex:  Karen Jones is a witness to an automobile accident.  The plaintiff's attorney, without notice to the defendants, has Karen sworn in and signs an affidavit which contains her observations of the automobile accident.

DECLARATION

A declaration is a written statement made under penalty of perjury, but not under oath, and without any notice to the other parties to a lawsuit.

Explanation:  A declaration is the same as an affidavit, except it is not under oath, and, consequently, it is not made before a notary or other authorized individual.  In all other respects, it is exactly the same as an affidavit.  The person signs the statement under penalty of perjury certifying that the information is true and correct (or based on what the person has been informed or believes to be true and correct).  There is no notice to adverse parties.  Many states, like California, use declarations almost exclusively.

JURAT

The jurat is a separate section at the end of the affidavit form where the officer, before whom the affidavit is taken, signs.