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Legal Terminology - Civil
chapter 4 - essential skills
148
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06/19/2016

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Term
estate
Definition
All the property left by someone who has died
Term
civil law
Definition
a violation of civil law does not direct harm the community; the person harmed sues the violator (unlike criminal, which the government/community initiates)
Term
court
Definition
the tribunal or forum where the trial occurs, as well as the judge him/herself; the judge is the trier of law at the trial
Term
liable
Definition
legally responsible
Term
damages
Definition
the amount of money paid to atone for injury or economic loss
Term
doctrine
Definition
a legal concept generally accepted by most courts which, although often not law, offers guidance to the court. Legislatures will sometimes codify, or make into law, a popular doctrine
Term
joint and several liability
Definition
when multiple defendants may be found liable as a group (joint) or separately (several)
Term
retainer
Definition
money paid to an attorney to secure his/her services; also refers to contract between attorney and client. when an attorney has been "retained," he/she works in a representative capacity on behalf of the client
Term
appearance
Definition
When an attorney acts on behalf of a client in court. This action may be either a personal appearance in front of the judge or the filing of a document (such as a complaint or motion) with the court on behalf of the client
Term
attorney-of-record
Definition
once an attorney has entered an appearance, he/she is the attorney-of-record in the case; is put on record in the court
Term
venue
Definition
the physical location of the trial
Term
diversity of citizenship
Definition
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 $75,000
Term
plaintiff
Definition
the party who initiates the action by filing a complaint, claiming injury or harm
Term
statute of limitations
Definition
the time limit for filing suit. Suits filed after the time limit has run out will be dismissed. The clock generally starts to tick at the time the damages occurred.
Term
summons
Definition
document that informs the defendant that he is being sued and that he has a specific amount of time to respond
Term
complaint
Definition
the pleading that initiates litigation. filed by the plaintiff, the complaint contains the general allegations against the defendant. it is served with the summons
Term
parties
Definition
individuals or groups involved in a legal action
Term
cause of action
Definition
a legally valid reason to sue; one of the required elements of a complaint
Term
information and belief
Definition
"this is what I believe happened..."; a common legal phrase that qualifies a statement as being a fact only to the best knowledge of the person making the statement
Term
defendant
Definition
the party against whom a complaint is filed
Term
ad damnum clause
Definition
element of a complaint that asks for damages or whatever the party wants to the court; also called "wherefore clause" or "prayer for relief"
Term
co-defendants
Definition
multiple defendants in a legal action
Term
pleading
Definition
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
Term
allegation
Definition
a fact claimed by a party
Term
jury trial
Definition
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. most common in very technical cases
Term
filed
Definition
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 filing
Term
service or served
Definition
the presentation of legal papers
Term
service of process
Definition
the delivery of the summons and complaint (the process) upon the defendant in a court action; can be done in person, via mail, or a newspaper notice, or serving a company
Term
personal service
Definition
service of legal papers upon an individual, as opposed to a business or registered agent
Term
process server
Definition
person who is permitted by law to serve (present) legal documents; must be at least 18 years old and not a party to the action
Term
affidavit
Definition
written statement of facts sworn to oath
Term
affiant
Definition
one who signs the affidavit
Term
attest
Definition
to swear
Term
notary public
Definition
a person authorized to administer the oath and to verify that an individual signs a legal document
Term
jurisdiction
Definition
authority of a court to hear and decide a case (not necessarily physical location/borders, just the authority)
Term
in personam jurisdiction
Definition
jurisdiction over a person (either a plaintiff's or defendant's state court if both reside in different places)
Term
in rem jurisdiction
Definition
jurisdiction over controversy in question, often property (disregards person; authority over the location of the controversy has priority in jurisdiction)
Term
quasi in rem jurisdiction
Definition
jurisdiction over property, even though the property is not the controversy
Term
lis pendens
Definition
attachment to the title of a piece of property notifying any potential purchasers that the tile is subject to the outcome of litigation
Term
lien
Definition
attachment to the title of a piece of property preventing its sale until a previous financial obligation has been satisfied
Term
rules of the court
Definition
laws the govern the procedures of the trial
Term
answer
Definition
pleading filed by defendant in response to plaintiff's complaint
Term
affirmative defense
Definition
admission that specific act did happen, but argue that fault doesn't lie with defendant; intend to reduce or eliminate plaintiff's damages
Term
counterclaim
Definition
claim by defendant against plaintiff (a counter complaint); defendant also alleging damages (in contrast to affirmative defense which eliminates use of damages)
Term
cross claim
Definition
claim by one defendant against a co-defendant
Term
third party complaint
Definition
pleading where a defendant sues someone not yet a party to the action
Term
reply
Definition
plaintiff's reply to defendant's counterclaim
Term
default judgment
Definition
a judgment by court in favor of plaintiff, based on fact that defendant failed to respond fast enough
Term
motion
Definition
request that the court take a specific procedural step (i.e motion to extend time to respond)
Term
litigation
Definition
process of asking a court of law to decide the outcome of a dispute; a lawsuit
Term
contest
Definition
to challenge
Term
discovery
Definition
methods whereby one party obtains relevant information on a case from another party. Doesn't involve the court but between parties, meant to even the playing field
Term
interrogatories
Definition
written questions to the opposing party that must be answered under penalty of perjury
Term
request for admissions
Definition
written statements the opposing party must admit or deny under penalty of perjury. failure to respond within a specific amount of time means that the statements are assumed to be admitted
Term
request for production
Definition
request that documents or other physical items be provided for inspection
Term
request for mental or physical examination
Definition
request that subject be put under mental or physical examination. requires court approval
Term
depositions
Definition
oral questions that must be answered under oath
Term
certificate of mailing/service
Definition
When a document is filed with the court or when discovery is sent to a party. It attests that a true and correct copy of the document was sent to all parties involved, and signed by the one who sent it
Term
order
Definition
an official command by the court
Term
hearing
Definition
a proceeding in court, where judge and both parties are present
Term
privilege
Definition
the right to refuse or testify or to prevent someone else from testifying
Term
ex parte hearing
Definition
a hearing which only one party is present
Term
third party defendant
Definition
party against whom the third party complain was filed; original defendant of original complaint = "third party plaintiff"
Term
motion to dismiss
Definition
asking court to end a case without going into trial; used when other party violates some procedure or lacks substantial evidence to proceed into trial
Term
dismissal with prejudice
Definition
case dismissed cannot be brought up again because the court has already made its mind about the case
Term
dismissal without prejudice
Definition
case dismissed can be filed to court again
Term
trial brief (trial memorandum; points and authorities)
Definition
filed with court in support of a motion; argues a legal issue, relying on the law to support the party's position and convincing the reader
Term
motion for summary judgment
Definition
pretrial motion asking court to determine outcome of the case based on the pleading and motions and other evidences rather then go to trial. argument states that there are no material facts in dispute, only law. Some issues can be decided as partial summary judgment
Term
magistrate
Definition
judicial officer who may preside over hearings, a magistrate does not have all the powers of a judge; mainly deals with procedural matters
Term
pretrial conference
Definition
meeting between the court and the parties for clarification of procedural matters and to promote settlement
Term
stipulation
Definition
an agreement between counsel for the parties regarding a fact, issue, or point that will not be disputed at trial
Term
settlement agreement
Definition
an agreement to end the litigation for an agreed-upon consideration, usually money
Term
at issue/in issue
Definition
a legal question to be answered in court
Term
evidence
Definition
used to establish or disprove a fact
Term
direct evidence
Definition
evidence (from personal observation) that tends to establish a fact without a need for an inference (no interference between Scene A and Scene B)
Term
circumstantial evidence
Definition
evidence of one fact that requires an inference to establish another fact
Term
admissible
Definition
evidence that will be allowed to be considered by the jury to believe it or not
Term
docket
Definition
court's official calendar for trials and hearings to take place
Term
voir dire (for the jury)
Definition
to question prospective jurors via challenge for cause (dismissal of juror for good cause shown; unlimited usage) and peremptory challenge (no reason given to dismiss juror; 3-6 use)
Term
alternate juror
Definition
sits in courtroom and listens but doesn't deliberate or vote on a verdict unless one juror is dismissed
Term
opening statement
Definition
opening presentation by attorneys stating facts they intend to prove during the trial
Term
burden of proof
Definition
degree to which something must be proved at trial
Term
preponderance of the evidence
Definition
in civil case: burden of proof must be more likely than not that a fact is as a party alleges it to be
in criminal: beyond a reasonable amount
Term
rule on witnesses
Definition
rule that states that a witness in the case may not be in the courtroom during the testimony of other witnesses
Term
subpoena
Definition
document issued by attorneys under authority of the court to compel appearance of a witness
Term
subpoena duces tecum
Definition
document issued under authority of court to compel appearance of witness as well as specific documents
Term
objection
Definition
formal challenge by opposing counsel to evidence or questions asked of a witness
Term
bench conference
Definition
discussion between judge and attorneys, usually conducted at judge bench so the jury cannot hear what is said
Term
prejudicial
Definition
tendency to cause bias even where no bias has existed previously
Term
probative value
Definition
value of pursuing an investigative or probing line of questioning
Term
preserving the record
Definition
attorney making statements, or repeating a previously overruled motion, to protect any right to appeal at a later point
Term
sustain
Definition
to affirm an objection
Term
competency
Definition
legal capacity to testify. elements include
- understanding obligation to tell the truth
- knowledge of the topic of testimony
- ability to communicate
Term
examination
Definition
questions directed at a witness who is under oath in court or at deposition
Term
direct examination
Definition
questioning the witness first; conducted by party calling up the witness
Term
direct examination
Definition
questioning the witness first; conducted by party calling up the witness
Term
cross examination
Definition
after direct examination, other party may cross examine the witness, but is limited to the topics brought up during direct questioning
Term
redirect examination
Definition
party conducting direct examination goes up again to clarify matters brought up during cross examination
Term
recross examination
Definition
party conducting cross examination goes up again to bring up matters discussed in redirect examination
Term
proximate cause
Definition
the event or point at which a series of incidents begins ultimately resulting in an event with damages
Term
negligence
Definition
establishment of duty, followed by a breach of that duty, resulting in damages; accidental
Term
excuse the jury
Definition
judge instructs jury to leave courtroom temporarily
Term
grounds
Definition
reasons
Term
relevant
Definition
tending to prove or disprove a fact in issue
Term
to strike from the record
Definition
to have certain testimony removed from the record of the trial
Term
exhibit
Definition
a physical item presented to support an argument
Term
instruction of evidence
Definition
attorneys must "move" for a piece of evidence to be admitted into evidence with a number or letter as a label
Term
resting a case
Definition
when party finishes presenting evidences, it rests
Term
move
Definition
to present a motion in court
Term
motion for directed verdict
Definition
court asked to decide the outcome of a case because the plaintiff has failed to establish a prima facie case
Term
adjourn
Definition
to halt temporarily, but not end, trial
Term
prima facie case
Definition
a case that is sufficient on its face; if al facts alleged by plaintiff are eventually proved true, then plaintiff deserves to be awarded damages; must exist at all stages of proceedings
Term
take under advisement
Definition
court delays a ruling on a motion so that the motion may be considered
Term
qualify
Definition
to establish a witness's expertise in a specific area
Term
voir dire (of witnesses)
Definition
to question a potential witness to determine his or her competency or appropriateness of his/her testimony
Term
closing argument
Definition
attorney addressing to jury at the end of the trial, attempting to persuade prior to deliberations
Term
jury instructions
Definition
guidelines to jury about how the law is to be applied and the facts that may be considered during its deliberations
Term
deliberations
Definition
jury's discussion of the case in private to reach a verdict
Term
verdict
Definition
final conclusion of the jury
Term
foreperson
Definition
member of the jury selected to be the spokesperson for the jury panel
Term
motion for judgment NOV (notwithstanding the verdict)
Definition
motion asking the court to disregard the jury's verdict and replace it with the court's own verdict
Term
judgment
Definition
final conclusion of the court
Term
additur
Definition
when the judge adds to the amount a jury has awarded
Term
remittitur
Definition
process whereby a judge subtracts from the amount of damages a jury has awarded. in effect the judge gives the party awarded damages the choice of accepting a lesser amount, or anew trial will be granted to the other side
Term
motion for new trial
Definition
a request that the judge order a new trial due to procedural errors; filed to later appeal
Term
appeal
Definition
to ask the court at the next higher level to determine whether the trial court erred
Term
appeal as a matter of right
Definition
a party who loses in the trial court has the right to have his other heard by the next highest appellate level court in civil court
Term
waive
Definition
to give up a right; be voluntary or a result of an action/inaction by the party
Term
stay
Definition
to delay implementation of court's order
Term
notice of appeal
Definition
written notification in motion form that a party intends to appeal; court rules require that motion be filed with the trial court, the appellate court and sent to any parties involved in action
Term
bond on appeal
Definition
sum of money held by the court to ensure that the funds from the award be available after the appellate process
Term
res judicata
Definition
doctrine stating that a case that has been decided on its merits may not be re-litigated
Term
appellant/petitioner
Definition
the party initiating an appeal
Term
appellee/respondant
Definition
party that responds to appeal
Term
record
Definition
official collection of all pleadings, exhibits, motions, orders, and transcript of the trial
Term
appellate brief
Definition
a written argument by a party covering the issues, called 'points of error,' on appeal
Term
points of error
Definition
the questions that are the basis for the appeal; points to potential errors of the trial court
Term
response brief
Definition
written answer to appellate brief
Term
oral argument
Definition
oral presentation to an appellate court; must request to do so
Term
panel of justices (or judges)
Definition
portion of an appellate court that hears a case; made up of three judges
Term
en banc
Definition
when the entire appellate level court sits to hear and decide a case, indicating the case has a high level of importance
Term
opinion
Definition
written decision of the court
Term
majority opinion
Definition
the strongest form of opinion; when more then half of the court agrees on a decision
Term
concurring opinon
Definition
opinion of one or more judges that agrees with the results of the majority, but arrives to the result for different reasons
Term
dissenting opinon
Definition
opinion that disagrees with the majority
Term
petition
Definition
to make a formal request to the court
Term
rehearing
Definition
a second chance to present arguments to the court on the same issues
Term
petition for writ of certiorari
Definition
vehicle by which the case is taken from court of appeals to the supreme court. writ of certiorari issued by higher court
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