Term
|
Definition
Civil law differs from criminal law in two major facets. First, the entity that seeks court action in civil law is the individual that was damaged, whereas in criminal cases, the government (also called the state) pursues the court action. Second, a violation of civil law does not hold the penalty of jail time. Only a violation of criminal law may be punished by imprisonment.
|
|
|
Term
|
Definition
To a lawyer, damages means dollar signs! Think money!
|
|
|
Term
|
Definition
A doctrine is a line of legal thinking that a series of courts follows even though it is not statutory in nature. In other words, no legislature has passed a law regarding the subject matter contained in the doctrine.
For instance, for many years state legislatures did not have laws specifically relating to dog bites, or had laws that did not contemplate certain circumstances. One question that would often come up was whether a dog owner should be held liable for a bite his or her dog inflicts on a person, when there had never been an indication that the dog had an aggressive nature, and had never bitten anyone before. Courts began ruling that owners under such circumstances could not be held accountable, since they had no "notice" as to the dog's aggressive tendencies. They could, however, be held accountable for any subsequent bites.
This is often referred to as the Doctrine of First Bite Free. Many courts follow this doctrine in their opinions. Some state legislatures have codified the doctrine. |
|
|
Term
|
Definition
The venue is the physical location of the trial. It is often confused with jurisdiction, which will be discussed later. While the venue is usually within the jurisdiction of the court, in unusual cases the venue can be changed to another location, such as when too much publicity makes a fair trial impossible. In such a case, the venue may be changed, but the jurisdiction remains with the same court.
|
|
|
Term
|
Definition
If a person from Boston gets in an accident in New York with a person from New York, the Bostonian may be concerned that the court in New York would rule in the New Yorker's favor. (Probably a Yankee fan!) If the amount being sought is in excess of $75,000 the Bostonian can have the matter heard in federal court instead of the state courts in New York. The federal judges are considered to be of higher quality than state judges, and are not paid by the state, but by the federal government. One interesting aspect is that the federal court will then apply the laws of New York. |
|
|
Term
|
Definition
Also called a Claim for Relief, the Cause of Action must exist in order to sue. (To sue is to file civil litigation.) The cause of actions in a complaint are the specific facts that are going to be alleged at trial. They are not proven in the complaint. The proving of the alleged facts will occur at trial.
|
|
|
Term
|
Definition
The following are pleadings:
- Complaint
- Answer
- Affirmative Defense
- Counterclaim
- Cross Claim (Third Party Complaint)
- Reply
A pleading states a party's position in litigation. For instance,
- the Complaint says the Defendant harmed the Plaintiff.
- the Answer is the Defendant responding, "No, I didn't!"
- the Affirmative Defense is the Defendant saying, "Nobody can be blamed."
- the Counterclaim is where the Defendant says, "The Plaintiff hurt me!"
- the Cross Claim is the Defendant saying, "It wasn't my fault. It was someone else's fault!"
- the Reply is the Plaintiff responding to the Counterclaim, saying, "I didn't hurt the Defendant!" |
|
|
Term
|
Definition
This is the part of the complaint that tells the court what it is exactly that the party is asking the court to do. You will learn much more about this when you draft a complaint later in the program.
|
|
|
Term
|
Definition
When an attorney says process, he or she means "Summons and Complaint." So, when a lawyer asks whether process has been served, s/he is asking whether the summons and complaint have been delivered to the Defendant. So understand this: Process = Summons and Complaint. |
|
|
Term
|
Definition
If a Defendant is served with legal documents, such as the summons and complaint, in person, it is, obviously, personal service.
If a Defendant has a person or company that has been hired to accept service for him/her/it, that is called substitute service. The person or company that accepts service is usually called a registered agent or resident agent. Most companies have registered agents. You can find the registered agent for a company by contacting the Secretary of State's office. The company must list the registered agent on its Articles of Incorporation |
|
|
Term
|
Definition
This is the legal power a court has to determine the outcome of a legal dispute. Venue is the physical location of the trial. The address. |
|
|
Term
|
Definition
If either party lives in the authorized area of the court in question, that court could hear the case through in personam jurisdiction |
|
|
Term
|
Definition
If the property exists, or the controversy occurred within the authorized area of the court, it can hear the matter under in rem jurisdiction.
|
|
|
Term
Quasi in rem jurisdiction |
|
Definition
This kind of jurisdiction is usually invoked in order to help a party who has won a judgment obtain damages awarded by the court. For instance, if the person who lost at trial (called the judgment debtor) owes $100,000, but has no money to pay the judgment, any property owned by the judgment debtor could be attached by the court. If the property is outside the jurisdiction where the original trial took place, the winner at trial (called the judgment creditor) would have to file a motion in the county where the property was. That court would not have in personam jurisdiction since neither party lived in the county, and would not have in rem jurisdiction since the controversy occurred in a different county. The court would, however, have quasi in rem jurisdiction, which is jurisdiction over the property even though the property was not the original controversy.
|
|
|
Term
|
Definition
A paralegal may at some point be asked to file a notice with the county that a property may be the subject of a lien if a pending litigation is successful. While this does not technically prevent the sale of property, anyone buying the property is on notice that it may be seized as a result of that litigation. |
|
|
Term
|
Definition
Once a judgment is obtained, a lien may be attached to the title preventing its sale or transfer.
|
|
|
Term
|
Definition
An affirmative defense is usually found in the Answer, but is considered a separate legal entity. You will learn much more about it when you draft an Answer later. While it is being referred to here as a pleading, it is different from other pleadings in that it could never be a separate, stand-alone document. But there is no where else to classify it, so consider it a pleading.
|
|
|
