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Legal Terminology - Book
Legal terms
194
Law
Graduate
09/21/2020

Additional Law Flashcards

 


 

Cards

Term

ESTATE

Definition

All the property left by someone who has died. 

Term
Civil Law
Definition

A violation of civil law does not directly harm the community; the person harmed sues the violator. 

Term

COURT

Definition

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

Term
LIABLE
Definition

Legally responsible

Term
Damages
Definition

An 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 the court.  Legislatures will sometimes codify, or make into law, a popular doctrine.  

Term
Joint and Several Liability
Definition

When multiple DEF'S may be found liable as a group (jointly) or separately (several). 

Term

RETAINER

Definition

money paid to an attorney to secure his/her services.  Also refers to the contract between attorney & client.  An Attorney has been "retained" when 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.  It may be either an appearance in court in front of the judge or the filing of a document with the court on behalf of the client. 

Term
ATTORNEY-OF-RECORD
Definition

Once an attorney has entered an appearance, they are the atty-of-record in the case. 

Term
VENUE
Definition

The place of the trial, the physical location. 

Term
DIVERSITY OF CITZENSHIP
Definition

When a federal judge hears a case based on the fact both parties are from different states AND the amount of money claimed as damages exceeds the minimum set by federal statute is $75K. 

Term
PLAINTIFF
Definition

The party that 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 click at the time the damaged occurred (but not always - sometimes its when the person find out about the harm). 
Term
COMPLAINT
Definition
  • The pleading that initiates litigation filed by the Plaintiff.
  • it contains the general allegations against the Def
  • it is served with the summons
Term
CAUSE OF ACTION
Definition
  • A legally valid reason to sue
  • One of the required elements of a complaint
Term
information and belief
Definition
  • Equivalent to "This is what i believe happened"
  • 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
  • also called "wherefore clause" or "prayer for relief"
  • Element of a complaint that askes for damages
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 in 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 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 a jury. this is most common in very technical issues i.e. complex contract situation
Term
filed
Definition
  • a document is filed when it is presented to the clerk of the court.
  • all documents and copies are date stamped by the clerk of the court at the time of the filing. 
Term
service or served
Definition
the presentation of legal papers
Term
service of  process
Definition
  • process is the summons & complaint
  • service of process is the delivery of the summons & complaint upon the DEF in a court action
  • service is usually done in person
  • service may be made by mail, by publishing a notice in a newspaper or by serving a company
  • serving a company is often done by serving a registered agent (someone who accepts service on behalf of 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
  • a person who is permitted by law to serve legal documents 
  • must be 18 years of age or older & not a party to the action
Term
affidavit
Definition
a written statement of fact sworn to under oath
Term
affiant
Definition
one who signs an 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


 

Term
in personam jurisdiction
Definition
jurisdiction over a person
Term
in rem jurisdiction
Definition

 

 

jurisdiction over the controversy - often property


 

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 title 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 court
Definition
  • laws that govern the procedures of trials
Term
answer
Definition
  • pleading filed by the defendant in response to the allegations contained in the complaint

 

Term
affirmative defense
Definition
  • 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

 

Term
counterclaim
Definition
  • a claim by the DEF against the PL
  • sometimes the only determining factor whether a claim is an affirmative defense or a counterclaim is whether the DEF is alleging damages
  • a pleading presenting the Def's claim against the Plaintiff
Term
cross claim
Definition
  • a claim by one defendant against a co-defendant
  • when an original defendant sues another original defendant
  • third-party claims are also cross claims
  • a third-party claim is a pleading where a def sues someone not yet a party to the action
Term
third-party complaint
Definition
  • pleading where a DEF sues someone not yet a party to the action
Term
reply
Definition
  • this pleading is the plaintiff's response to a defendant's counterclaim
Term
default judgment
Definition

a judgment by the court in the plaintiff's favor based on the fact that the defendant failed to respond in a timely fashion


 

Term
motion
Definition
  • a request that the court take a specific procedural step
  • pleadings usually state legal positions about the matter before the court
  • motions are procedural in nature and act as a request for an order
Term
litigation
Definition
  • the process of asking a court of law to decide the outcome of a dispute
  • a lawsuit
Term
contest
Definition
to challenge
Term
discovery
Definition
  • the methods whereby one party obtains relevant information on a case from the other party
  • attempts to even the playing field by exposing all relevant facts upon which the court will ultimately base its decision
Term
interrogatories
Definition
  • written questions to the opposing party that must be answered under penalty of perjury
  • one form of discovery
  • i.e. describe the events leading to the accident

 

 

 

Term
request for admissions
Definition
  • Written statements the opposing party must admit or deny under penalty of perjury

  • failure to respond within a specified time period (usually 30 days) means the statements are assumed to be admitted

 

Term
Request for Production
Definition

Discovery

  • a request that documents or other physical items be provided for inspection

 

Term
Request for Mental or Physical Examination
Definition
  • This is a form of discovery that may require court approval so that it cannot be used to intimidate
  • request that the other party, usually the PL, be subjected to a mental or physical examination
Term
depositions
Definition
  • questions that must be answered under oath
  • take place out of court in an atty's office with a court reporter transcribing the testimony
Term

certificate of mailing 

or 

certificate of service 

(mean the same thing)

Definition
  • When a document is filed with the court or when discovery is sent to a party a certificate of mailing is usually attached. 
  • The certificate attests that a true & correct copy of the document was sent to all parties
  • the certificate should be signed the person who puts it in the mail unless the state requires the atty's signature
Term
ORDER
Definition
  • an official command by the court
  • usually demanding that one or both parties perform an act
Term
hearing
Definition
  • a proceeding in court where the judge and both parties are present
Term
privilege
Definition

the right to refuse to testify 

OR

to prevent someone else from testifying

Term
ex parte hearing
Definition
  • a hearing where only one party is present

 

  • i.e. a hearing on a motion for a restraining order

 

  • ex parte hearings are not common
Term

third-party defendant

 

Definition
  • the party against whom the third-party complaint was filed
  • the defendant in the original complaint becomes the "third-party plaintiff"
Term
MOTION TO DISMISS
Definition
  • asking the court to dismiss a case without going to trial

 

Term
Dismissal with Prejudice
Definition
  • a case is dismissed and may not be brought up again because the court has made its mind up about the case
Term
DISMISSED WITHOUT PREJUDICE
Definition
  • case is dismissed but may be filed again b/c the court has not made up its mind about the matter

  • i.e. dismissed without prejudice to re-file
Term
trial brief
Definition
  • also called trial memorandum or points of authorities
  • this document is filed with the court to argue a legal issue
  • it relies on law to support the party's position
  • often filed in support of a motion
  • it attempts to convince the reader
  • only argues points favorable to the client
Term
motion for summary judgment
Definition
  • pretrial motion asking the court to determine the outcome of the 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 - & since the jury is the trier-of-fact there is no need for a jury or trial
  • may also be referred to as a motion to limit the issues  that will be dealt with at trial or partial summary judgment 
  • a successful partial summary judgment determines the outcome of some, but not all the issues, before the court
Term
magistrate
Definition
  • a judicial officer who may preside over hearings
  • a magistrate does not have all the powers of a judge
  • a magistrate ordinarily deals with procedural issues
Term
pretrial conference
Definition
  • meeting b/w the court & the parties for clarification of procedural matters & to promote settlement
Term
stipulation
Definition
  • an agreement b/w 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 

or

in issue

Definition

a legal question to be answered by the court


 

Term
evidence
Definition

that which tends to establish or disprove a fact


 

Term
direct evidence
Definition
  • evidence from direct observation that tends to establish a fact w/o the need for an inference

  • i.e. a witness who sees a gun fired can give direct testimony as to a shooting
Term
circumstantial evidence
Definition
  • evidence of one fact that requires inference to establish another fact

 

  • i.e. a witness hears a shot, turns around and see a man holding a gun, can give circumstantial evidence as to the shooting
Term
oral evidence
Definition
  • evidence given orally
  • also called testimonial evidence
Term
physical evidence
Definition
  • evidence that can be touched

  • also called tangible or demonstrative evidence
Term
admissible
Definition
  • the evidence that will be allowed to be considered by the jury

  • the jury will decide whether or not to believe the evidence
Term
docket
Definition
  • the court's official calendar for trials and hearings to take place in that courtroom
Term
set for trial
Definition
  • to set a date for a trial in which the attorneys, parties, and court agree
Term

jury 

jurors

Definition
  • a group of citizens who will be called upon to hear the evidence and render a verdict
  • the jury is the trier of fact
Term
jury panel
Definition
a group from which a jury will be selected
Term
voir dire
Definition

to question potential jurors


 

Term
challenge for a cause
Definition
  • in voir dire, a method of dismissing a juror for good cause shown
  • are unlimited in number
Term
peremptory challenge
Definition
  • in voir dire, a method of dismissing a juror for which no reason need be given  
  • these challenges are limited in number - commonly 3 or 6
Term
bailiff
Definition

court employee who keeps order in the courtroom


 

Term
alternate juror
Definition
  • a person who sits to hear the entire case with the jury, but who will not deliberate or vote on a verdict unless one of the jurors is dismissed
  • civil cases in many jurisdictions have no alternates - instead - the parties & judge agree on the # of original jurors & how many may be dismissed

 

Term
opening statement
Definition
  • presentations made by the attorneys at the beginning of trial stating the facts they intend to prove at trial
Term
burden of proof
Definition
  • the degree to which something must be proved at trial

  • the party making the allegation or claim generally bears the burden of proof 
Term
preponderance of the evidence
Definition
  • the burden of proof in civil cases means it is more likely than not that a fact is as a party alleges to be

  • the burden of proof in criminal matters is beyond a reasonable doubt - a higher standard

 

Term
rule on witnesses
Definition
  •  a rule that states a witness in a case may not be in the courtroom during the testimony of other witnesses
  • used mostly in criminal cases
  • may be used in civil cases at the judge's discretion
Term
subpoena
Definition
  • the document issued under authority of the court to compel the appearance of a witness
Term
subpoena duces tecum
Definition
  • a document issued under the authority of the court to compel the appearance of a witness & ordering the witness to provide specific documents
Term
objection
Definition
  • a formal challenge by opposing counsel to evidence or questions asked of a witness
Term
bench conference
Definition
  • a discussion b/w the judge & attorneys
  • usually conducted at the judge's bench so the jury cannot hear what is said
Term
prejudicial
Definition
  • the tendency to cause bias even where no bias has existed previously

 

Term
probative value
Definition
  • the value of pursuing an investigative or probing line of questioning
Term
preserving the record
Definition

an attorney making statements or repeating a previously overruled objection to protect any right to appeal at a later point

Term
sustain
Definition
to affirm an objection
Term
competency
Definition

legal capacity to testify 


The elements of competency are:

  • understanding the obligation to tell the truth
  • knowledge of the topic of the testimony
  • ability to communicate
Term
examination
Definition

questions directed at a witness

  • who is under oath in court
  • or at a deposition
Term
direct examination
Definition

questioning the witness first


  • the party calling the witness to the stand conducts the direct examination
Term
cross examination
Definition

after direct examination,

  • the other party may cross-examine the witness
  • but is limited to the topics brought up under direct questioning (the "scope")
Term
redirect examination
Definition
  • the party conducting direct examination conducts the redirect examination to clarify matters brought up during cross
  • The party conducting redirect cannot introduce a new line of questioning, but is limited to matters during cross
Term
recross examination
Definition
  • the party conducting cross examination conducts the recross examination, but is limited to matters brought up during redirect 

Many courts do not typically allow recross 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 a duty 
  • followed by a breach of that duty
  • resulting in damages

in order to be actionable, the negligence must have been the proximate cause of the damages


negligence generally means an act is accidental,

not intentional

 

 

Term
excuse the jury
Definition
  • the judge instructs the jury to leave the courtroom temporarily
Term
grounds
Definition
reason or reasons
Term
relevant
Definition
  • tending to prove or disprove a fact at issue
Term
to strike from the record
Definition
  • to have certain testimony removed from the record of the trial
  • usually accompanied by an admonition to the jury that when deliberating they are not to consider the testimony they just heard

 

Term
clerk of court
Definition

the person or persons responsible

for the court files and exhibits

Term
exhibit
Definition

a physical item presented to support an argument


 

Term
introduction of evidence
Definition
  • an attorney must "move" for a piece of evidence to be admitted into evidence
  • If the motion is granted, the evidence will be assigned a number, or a letter, & labeled
Term
resting a case
Definition

when a party is finished presenting evidence - it rests


 

Term
move
Definition

to present a motion to the court 


 

Term
motion for directed verdict
Definition
  • The court is asked to decide the outcome of a case b/c the PL has failed to establish a prima facie case
Term
adjourn
Definition
to halt temporarily, but not end, the trial
Term
prima facie case
Definition

a case that is sufficient on its face


  • if all facts alleged by the PL are eventually proved true at trial, the PL deserves to be awarded damages

  • a prima facie case must exist at all stages of the proceedings from the filing of the complaint through trial

  • if at any point during litigation a party can establish that a prima facie case does not exist -- the case should be dismissed
Term
take under advisement
Definition
  • the court delays a ruling on a motion so that the motion may be considered 
Term
expert witness
Definition
  • a person who has been qualified by the court to have experience and knowledge in a specific area &
  • who will be allowed to express opinions related to his/her area of knowledge
Term
qualify
Definition
  • To establish an expert 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 the appropriateness of his/her testimony

 

Term
closing argument
Definition
  • each atty addressing the jury or the court at the end of trial attempting to persuade prior to deliberations
Term
jury instructions
Definition
  • guidelines to the jury about how the law is to be applied & the facts that may be considered during its deliberations
  • May also be referred to as a charge to the jury
Term
deliberations
Definition
  • a jury's discussion of the case, in private, following the trial, with the goal of rendering a verdict
Term
verdict
Definition

the final conclusion of the jury


 

Term

foreperson

(foreman or forewoman)

 

Definition
  • the member elected by the jury to lead the deliberations and speak for the jury
Term

Motion for Judgment NOV

(notwithstanding the verdict)

Definition
  • a motion asking the court to disregard the jury's verdict & replace it with the court's own verdict
  • NOV stands for Non Obstante Verdicto
Term
judgement
Definition

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 cannot overturn a jury's finding of not guilty, but the court may overturn a guilty verdict 
Term
additur
Definition

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
Term
remittitur
Definition
  • the 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 either accepting a lesser amount, or a new trial will be granted to the other side 

the inverse of an additur

Term
motion for new trial
Definition
  • a request that a judge order a new trial because of procedural errors. 
  • A party must file this motion in order to later appeal--fulfilling the obligation to exhaust all available remedies. 
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 their 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. 
Term
waive
Definition
  • to give up a right
  • a waiver may be either voluntary or involuntary or the result of an action, or inaction, by the party.  
Term
stay
Definition
  • to delay the implementation of a court's order
Term
notice of appeal
Definition
  • 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
Term
bond on appeal
Definition
  • a sum of money held by the court to ensure that the funds from the award will be available after the appellate process
Term
res judicata
Definition
  • doctrine stating that a case decided on its merits may not be re-litigated
Term
to bar
Definition
  • to prevent or stop
Term
appellant or petitioner
Definition
the party initiating an appeal
Term
appellee or respondent
Definition
  • the party responding to an appeal
Term
record
Definition
  • the official collection of all pleadings, exhibits, motions, orders, and transcripts of the trial
Term
appellant brief
Definition
  • a written argument by a party covering the issues on appeal
  • called points of error
  • the brief by the appellate is usually referred to as the appellate brief

  • the brief filed by the respondent is usually referred to as the response brief

 

Term
points of error
Definition
  • the questions that are the basis for the appeal
  • also called issues on appeal
  • these questions point to potential errors of the trial court
Term
response brief
Definition
  • a written answer to the appellate brief
Term
oral argument
Definition
  • an oral presentation to an appellate court
  • the party must request an oral argument & that request is not always granted
Term
panel of justices (or judges)
Definition
  • the portion of an appellate-level court that hears a case
  • usually a panel is 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 than 50% of the court agrees on a decision
  • a majority opinion is law until it is superseded or overturned
Term
affirm
Definition
  • the appellate court agrees with the decision of the trial court
Term
reverse
Definition
  • the appellate court disagrees with and nullifies the decision of the trial court
Term
modify
Definition
  • the appellate court alters the decision of the trial court
Term
remand
Definition
  • the appellate court sends the case back to the trial court for further deliberation
Term
concurring opinion
Definition
  • opinion of 1 or more judges that agrees with the results of the majority, but arrives at that result for different reasons
Term
dissenting opinion
Definition
  • opinion that disagrees with the majority opinion
Term
petition
Definition
  • to make a formal request to the court.
  • some states refer to complaints as petitions depending on the action filed
  • a petition for the dissolution of a marriage would involve a petitioner and respondent rather than a plaintiff and defendant.

Term
rehearing
Definition
  • a second chance to present arguments to the court on the same issues
Term
petition
Definition
  • to make a formal request to the court
Term
rehearing
Definition
  • a 2nd chance to present arguments to the court on the same issues
Term
petition for writ of certiorari
Definition
  • the vehicle by which the case is taken from the court of appeals (state or federal) to the supreme court (state or federal)
  • also how a state supreme court is heard by the U.S. Supreme Court
  • If the higher court approves the petition, the higher court hears the case.  If denied, the decision of the lower court stands
  • also referred to as the writ of cert
Term
criminal law
Definition
harming the community.
Term
prosecution
Definition
the bringing of criminal charges against a DEF.

Also the party presenting the govts case at trial
Term
state or government
Definition
the prosecution in a criminal case
Term
warrant
Definition
an order from a judicial officer or the court authorizing an arrest or a search or seizure of property
Term
initial appearance
Definition
the first court appearance by a DEF to a criminal charge

the courts informs of his/her charges, whether bail is appropriate, sets the date for next court proceeding
Term
misdemeanor
Definition
crime punishable by a sentence of less than a year
Term
felony
Definition
crime punishable by a sentence of a year or more
Term
bail
Definition
money or property deposited with the court to procure the release of a DEF and to ensure the appearance of the DEF at trial
Term
bail bond
Definition
a written agreement to pay the full bail amount to the court if the DEF fails to appear when required.
Term
personal recognizance
Definition
DEF is released w/o being required to post bail, on the promise that thy wil appear at court at designated times
Term
assigned counsel
Definition
atty who is ordered to represent a DEF usually b/c they can't afford one
Term
counsel
Definition
legal representative --- attorney
Term
nolle prosequi
Definition
the decision of the prosecutor not to prosecute, even though they believe there is sufficient evidence to do so.
Term
district attorney
Definition
prosecutor for the state
Term
plead
Definition
to declare a DEFs position in a criminal trial, usually either guilty or not guilty, or nolo contendere
Term
plea bargain
Definition
DEF in a criminal case agrees to plead guilty usually to a lesser charge in return for a reduced sentence.
Term
nolo contendere
Definition
DEF decides not to contest the charges, but does not admit guilt. DEF may be sentenced as though they pleaded guilty.
Term
preliminary hearing
Definition
a hearing requiring the state to produce sufficient evidence to establish there is probable cause to believe a crime has been committed by DEF.
Term
probable cause
Definition
a reasonable basis to believe a crime has been committed.
Term
bound over
Definition
submitted to - sent
Term
indictment
Definition
formal charge by a grand jury alleging a criminal act
Term
arraignment
Definition
formal court hearing where DEF is informed of charges & pleads guilty, not guilty, or nolo contendere
Term
beyond a reasonable doubt
Definition
degree of proof in a criminal prosecution usually requiring unanimous agreement of the jury.
Term
acquit
Definition
to find a DEF not guilty
Term
adverse judgment
Definition
a judgment against your client
Term
double jeopardy
Definition
criminal case - the state cannot retry a DEF on the same charges once a not guilty verdict is rendered by judge or jury
Term
chain of custody
Definition
for evidence to maintain its integrity, there must be chronological documentation of each person having possession of the evidence from the point of collection or seizure until admission at trial.
Term
full faith and credit
Definition
all states must respect the public acts, records, and judicial proceedings of every other state.
Term
precedent
Definition
a prior case, usually a court written opinion, that a subsequent court may rely upon when deciding a matter with similar facts and/or issues
Term
stare decisis
Definition
let the decision stand

principle that a court should follow previous court decisions UNLESS theres a compelling reason not to.
Term
due process
Definition
legal principle that the government must safeguard the legal rights owed to a person according to the law. a constitutional guarantee a law shall not be unreasonable.
Term
notice
Definition
to provide or gain knowledge of legally relevant information. a DEF in ANY action has a legal right to be noticed as to the matter.
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