Term
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Definition
| All the property left by someone who has died |
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Term
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Definition
| A violation of civil law does not directly harm the community; the person harmed sues the violator. |
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Term
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Definition
| The tribunal or forum where the trial occurs, as well as the judge himself. The judge is the trier of law at the trial. |
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Term
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Definition
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Term
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Definition
| An amount of money paid to atone for injury or economic loss. |
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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. |
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Term
| joint and several liability |
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Definition
| When multiple defendants may be found liable as a group (jointly) or separately (several). |
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Term
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Definition
| Money paid to an attorney to secure her services; also refers to the contract between the attorney and the client. When an attorney has been “retained,” she works in a representative capacity on behalf of the client. |
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Term
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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. |
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Term
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Definition
| Once an attorney has entered an appearance, he or she is the attorney-ofrecord in the case. |
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Term
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Definition
| The place of trial; the physical location. |
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Term
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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. |
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Term
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Definition
| The party who initiates the action by filing a complaint, claiming injury or harm |
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Term
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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. |
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Term
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Definition
| Document that informs the defendant that he is being sued and that he has a specific amount of time to respond. |
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Term
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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. (See definition of “service” below.) |
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Term
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Definition
| Individuals or groups involved in a legal action. |
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Term
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Definition
| A legally valid reason to sue; one of the required elements of a complaint. |
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Term
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Definition
| 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.” |
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Term
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Definition
| The party against whom a complaint is filed. |
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Term
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Definition
| Element of a complaint that asks for damages; also called “wherefore clause” or “prayer for relief.” |
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Term
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Definition
| Multiple defendants in a legal action. |
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Term
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Definition
| The presentation of legal papers. |
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Term
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Definition
| 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). |
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Term
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Definition
| Service of legal papers upon an individual, as opposed to a business or registered agent. |
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Term
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Definition
| A written statement of fact sworn to under oath. |
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Term
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Definition
| A person who is permitted by law to serve legal documents; must be at least 18 years of age and not a party to the action. |
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Term
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Definition
| One who signs an affidavit. |
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Term
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Definition
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Term
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Definition
| A person authorized to administer the oath and to verify that an individual signs a legal document. |
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Term
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Definition
| Authority of a court to hear and decide a case. |
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Term
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Definition
| Jurisdiction over a person. |
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Term
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Definition
| Jurisdiction over the controversy, often property |
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Term
| quasi in rem jurisdiction |
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Definition
| Jurisdiction over property, even though the property is not the controversy |
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Term
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Definition
| Attachment to the title of a piece of property notifying any potential purchasers that the title is subject to the outcome of litigation. |
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Term
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Definition
| Attachment to the title of a piece of property preventing its sale until a previous financial obligation has been satisfied. |
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Term
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Definition
| Laws that govern the procedures of trials. |
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Term
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Definition
| The pleading filed by the defendant in response to the allegations contained in the complaint. |
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Term
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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. |
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Term
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Definition
| A claim by the defendant against the plaintiff. Sometimes the only determining factor as to whether a claim is an affirmative defense or a counterclaim is whether the defendant is alleging damages. If this is the case, it becomes a counterclaim. A counterclaim is, in essence, a pleading presenting the defendant’s complaint against the plaintiff. |
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Term
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Definition
| 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 (see below) are also cross claims. |
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Term
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Definition
| Pleading where a defendant sues someone not yet a party to the action. |
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Term
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Definition
| This pleading is the plaintiff’s response to a defendant’s counterclaim. |
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Term
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Definition
| A judgment by the court in favor of the plaintiff, based on the fact that the defendant failed to respond in a timely fashion. |
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Term
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Definition
| A request that the court take a specific procedural step. Pleadings usually state specific legal positions about the matter before the court, while motions (such as a motion to extend time to respond) are procedural in nature, and act as a request for an order. |
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Term
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Definition
| The process of asking a court of law to decide the outcome of a dispute; a lawsuit. |
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Term
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Definition
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Term
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Definition
The methods whereby one party obtains relevant information on a case from the other party. The method that attempts to even the playing field between parties by exposing all relevant facts upon which the court will ultimately base its decision. Discovery is between the parties and does not directly involve the court, although the Certificate of Mailing for each document is often filed. The five common methods of discovery are:
1. Interrogatories Written questions to the opposing party that must be answered under penalty of perjury. Example: Describe the events leading to the accident.
2. Request for Admissions Written statements the opposing party must admit or deny under penalty of perjury. Failure to respond within a specified period of time (in most cases, 30 days) means that the statements are assumed to be admitted. Example: Admit or deny you had been drinking alcohol shortly before the accident.
3. Request for Production A request that documents or other physical items be provided for inspection. Also referred to as a Request for Production or Inspection of Documents or Property. Example: Please produce any and all receipts for Acme Dry Cleaning between February 1 and February 14, 2011.
4. Request for Mental or Physical Examination Request that the other party (usually the plaintiff) be subjected to a mental or physical examination. This is a form of discovery that may require court approval so that it cannot be used to intimidate.
5. Depositions Oral questions that must be answered under oath. Depositions take place out of court, most often in an attorney’s office, with a court reporter transcribing the testimony. A court reporter is 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 the opportunity to ask questions. Depositions can take place for the purpose of questioning the opposing party or for questioning witnesses. Depositions are sometimes videotaped and audiotaped. |
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Term
| certificate of mailing or certificate of service |
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Definition
| When a document is filed with the court or when discovery 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 places it in the mail, unless the state requires an attorney’s signature. This is often replaced with a Receipt of Copy (ROC). |
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Term
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Definition
| An official command by the court, usually demanding that one or both of the parties perform an act. |
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Term
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Definition
| A proceeding in court, where the judge and both parties are present. |
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Term
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Definition
| The right to refuse to testify or to prevent someone else from testifying. |
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Term
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Definition
| A hearing at which only one party is present, such as a hearing on a motion for a restraining order. These hearings are not common. |
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Term
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Definition
| The party against whom the third-party complaint was filed. The defendant in the original complaint becomes the “third-party plaintiff.” |
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Term
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Definition
| Asking the court to end a case without going to trial. dismissal with prejudice A case is dismissed and may not be brought again, because the court has made up its mind about the case. dismissal without prejudice A case is dismissed but may be filed again, because the court has not made up its mind about the matter (i.e., “dismissed without prejudice to re-file”). |
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Term
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Definition
| 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 convince the reader and only argues points favorable to the client. |
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Term
| motion for summary judgment |
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Definition
| A 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, and since the jury is the trier-of-fact (as we will see later), there is no need for a jury or trial. A motion for summary judgment may also refer to a motion to limit the issues that will be dealt with at trial, 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. |
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Term
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Definition
| A judicial officer who may preside over hearings, a magistrate does not have all the powers of a judge. He or she ordinarily deals with procedural matters. |
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Term
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Definition
| A meeting between the court and the parties for clarification of procedural matters and to promote settlement. |
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Term
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Definition
| An agreement between counsel for the parties regarding a fact, issue, or point that will not be disputed at trial. |
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Term
| settlement agreement (settlement) |
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Definition
| An agreement to end the litigation for an agreed-upon consideration, usually money. |
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Term
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Definition
| A legal question to be answered by the court. |
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Term
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Definition
That which tends to establish or disprove a fact.
1. 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 direct testimony as to a shooting.
2. circumstantial evidence Evidence of one fact that requires an inference to establish another fact. Example: A witness who hears a shot, turns around and sees a man holding a gun can give circumstantial evidence as to a shooting.
3. oral evidence Evidence given orally, also called testimonial evidence.
4. physical evidence Evidence that can be touched, also called tangible or demonstrative evidence |
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Term
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Definition
| The evidence that will be allowed to be considered by the jury. The jury will decide whether or not to believe the evidence. |
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Term
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Definition
| The court’s official calendar for trials and hearings to take place in that courtroom. |
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Term
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Definition
| To set a date for trial upon which the attorneys, parties, and court agree. |
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Term
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Definition
| A group of citizens who will be called upon to hear the evidence and render a verdict. They are the trier of fact. |
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Term
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Definition
| The group from which a jury will be selected. |
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Term
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Definition
To question prospective jurors. challenge for cause A method of dismissing a juror for good cause shown. Challenges for cause 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 three or six. |
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Term
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Definition
| Court employee who keeps order in the courtroom. |
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Term
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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 and judge agree on the number of original jurors and on how many may be dismissed. |
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Term
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Definition
| Presentations made by the attorneys at the beginning of a trial, stating the facts they intend to prove during the trial. |
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Term
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Definition
| The degree to which something must be proved at trial. The party making an allegation or claim generally bears the burden of proof. |
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Term
| preponderance of the evidence |
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Definition
| 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. |
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Term
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Definition
| 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. |
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Term
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Definition
| The document issued under authority of the court to compel the appearance of a witness. |
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Term
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Definition
| A document issued under authority of the court to compel the appearance of a witness, and ordering the witness to provide specific documents |
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Term
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Definition
| A formal challenge by opposing counsel to evidence or questions asked of a witness. |
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Term
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Definition
| A discussion between the judge and attorneys, usually conducted at the judge’s bench so the jury cannot hear what is said. |
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Term
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Definition
| The tendency to cause bias even where no bias has existed previously. |
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Term
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Definition
| The value of pursuing an investigative or probing line of questioning |
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Term
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Definition
| An attorney making statements, or repeating a previously overruled motion, to protect any right to appeal at a later point. |
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Term
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Definition
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Term
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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. |
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Term
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Definition
Questions directed at a witness who is under oath in court or at a deposition. direct examination Questioning the witness first.
The party calling the witness to the stand conducts the direct examination.
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”).
redirect examination 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 discussed during cross. recross examination
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). |
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Term
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Definition
| The event or point at which a series of incidents begins ultimately resulting in an event with damages. |
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Term
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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. |
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Term
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Definition
| The judge instructs the jury to leave the courtroom temporarily. |
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Term
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Definition
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Term
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Definition
| Tending to prove or disprove a fact in issue. |
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Term
| to strike from the record |
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Definition
| 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. |
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Term
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Definition
| The person or persons responsible for the court files and exhibits. |
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Term
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Definition
| A physical item presented to support an argument. |
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Term
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Definition
| Attorneys 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 letter and labeled. |
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Term
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Definition
| When a party is finished presenting evidence, it rests. |
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Term
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Definition
| To present a motion to the court. |
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Term
| motion for directed verdict |
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Definition
| The court is asked to decide the outcome of a case because the plaintiff has failed to establish a prima facie case. |
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Term
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Definition
| To halt temporarily, but not end, the trial. |
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Term
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Definition
| A case that is sufficient on its face. This means that, if all facts alleged by the plaintiff are eventually proved true at trial, the plaintiff 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. |
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Term
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Definition
| The court delays a ruling on a motion so that the motion may be considered |
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Term
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Definition
| A person who has been qualified by the court to have experience and knowledge in a specific area and who will be allowed to express opinions related to his area of knowledge. |
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Term
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Definition
| To establish a witness’s expertise in a specific area |
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Term
| voir dire (of witnesses) To question a potential witness to determine his or her competency or the appropriateness of his or her testimony. |
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Definition
| To question a potential witness to determine his or her competency or the appropriateness of his or her testimony. |
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Term
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Definition
| Each attorney addressing the jury or the court at the end of the trial, attempting to persuade prior to deliberations. |
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Term
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Definition
| 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. |
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Term
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Definition
| A jury’s discussion of the case, in private, following the trial, with the goal of rendering a verdict |
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Term
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Definition
| The final conclusion of the jury. |
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Term
| foreperson (foreman or forewoman) |
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Definition
| The member elected by the jury to lead the deliberations and speak for the jury. |
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Term
| motion for judgment NOV (notwithstanding the verdict) |
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Definition
| 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. |
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Term
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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 in the interest of justice. |
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Term
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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. |
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Term
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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.) |
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Term
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Definition
| 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. |
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Term
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Definition
| To ask the court at the next higher level to determine whether the trial court erred. |
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Term
| appeal as a matter of right |
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Definition
| 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. |
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Term
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Definition
| To give up a right. May be either voluntary or the result of an action, or inaction, by the party. |
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Term
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Definition
| To delay the implementation of a court’s order. |
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Term
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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. |
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Term
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Definition
| A sum of money held by the court to ensure that the funds from the award will be available after the appellate process. |
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Term
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Definition
| Doctrine stating that a case that has been decided on its merits may not be re-litigated. |
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Term
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Definition
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Term
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Definition
| The party initiating an appeal. |
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Term
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Definition
| The party responding to an appeal. |
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Term
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Definition
| The official collection of all pleadings, exhibits, motions, orders, and transcript of the trial. |
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Term
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Definition
| The word-for-word typed record of what occurred at trial. |
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Term
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Definition
| 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.” |
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Term
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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. |
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Term
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Definition
| A written answer to the appellate brief. |
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Term
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Definition
| An oral presentation to an appellate court. The party must request the presentation; that request is not always granted. |
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Term
| panel of justices (or judges) |
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Definition
| The portion of an appellate-level court that hears a case. Usually, a panel is made up of three judges. |
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Term
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Definition
| When the entire appellate level court sits to hear and decide a case, indicating the case has a high level of importance. |
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Term
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Definition
| Written decision of the court. |
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Term
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Definition
The strongest form of opinion. When more than fifty percent of the court agrees on a decision. A majority opinion is law until it is superseded or overturned.
1. affirm The appellate court agrees with the decision of the trial court.
2. reverse The appellate court disagrees with and nullifies the decision of the trial court.
3. modify The appellate court alters the decision of the trial court.
4. remand The appellate court sends the case back to the trial court for further deliberation. |
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Term
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Definition
| Opinion of one or more judges that agrees with the results of the majority, but arrives at that result for different reasons. |
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Term
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Definition
| dissenting opinion Opinion that disagrees with the majority opinion. |
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Term
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Definition
| 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 defendant. |
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Term
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Definition
| A second chance to present arguments to the court on the same issues. |
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Term
| petition for writ of certiorari |
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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, the means by which a case is taken from a state supreme court to the U.S. Supreme Court. The writ of certiorari is issued by the higher court. If the higher court approves the petition, the higher court will review the case. If the higher court denies the petition, the decision of the lower court stands. This is frequently referred to as a petition for writ of cert. |
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Term
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Definition
| A violation of criminal law is viewed as harming the community. Therefore, the state acts against the violator. Penalties for violating criminal law include fines, community service, and imprisonment. One can be sued civilly and charged criminally for the same event. |
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Term
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Definition
| The bringing of criminal charges against a defendant; also the party presenting the Government’s case at a criminal trial. |
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Term
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Definition
| In a criminal case, these terms mean the prosecution. |
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Term
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Definition
| An order from a judicial officer or the court authorizing an arrest or a search or seizure of property. |
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Term
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Definition
| The first court appearance by a defendant to a criminal charge, during which the court informs him or her of the charges, decides whether bail is appropriate, and sets the date for the next court proceeding. |
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Term
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Definition
| A crime punishable by a sentence of less than one year |
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Term
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Definition
| A crime punishable by a sentence of a year or more in prison. |
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Term
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Definition
| Money or property deposited with the court to procure the release of a defendant and to ensure the appearance of the defendant at trial. |
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Term
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Definition
| A written agreement to pay the full bail amount to the court if the defendant fails to appear when required. |
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Term
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Definition
| A defendant is released without being required to post bail, on the promise that he or she will appear in court at designated times. |
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Term
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Definition
| An attorney who is ordered to represent a defendant, usually because the defendant cannot afford an attorney |
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Term
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Definition
| Legal representative. Attorney. |
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Term
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Definition
| The decision of the prosecutor not to prosecute, even though he or she believes that there is sufficient evidence to do so. |
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Term
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Definition
| district attorney Prosecutor for the state. |
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Term
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Definition
| To declare a defendant’s position in a criminal trial, usually either “guilty” or “not guilty.” Other possible pleas include “nolo contendere” (See definition below). |
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Term
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Definition
| A defendant in a criminal case agrees to plead guilty, usually to a lesser charge, in return for a reduced sentence. |
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Term
| nolo contendere (or no contest) |
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Definition
| When a defendant decides not to contest the charges, but does not admit guilt. The defendant may be sentenced as though he had pleaded guilty. |
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Term
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Definition
| A hearing requiring the State to produce sufficient evidence to establish that there is probable cause to believe that a crime has been committed by the defendant |
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Term
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Definition
| A reasonable basis to believe that a crime has been committed |
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Term
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Definition
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Term
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Definition
| An investigatory panel that determines whether probable cause exists to return an indictment. |
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Term
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Definition
| A formal charge by a grand jury alleging a criminal act. |
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Term
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Definition
| Formal hearing in court where the defendant is informed of charges being brought and generally pleads guilty, not guilty, or nolo contendere. |
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Term
| beyond a reasonable doubt |
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Definition
| 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 |
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Term
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Definition
| To find a defendant not guilty. |
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Term
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Definition
| A judgment against your client. |
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Term
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Definition
| In a criminal case, the state cannot retry a defendant on the same charges once a not-guilty verdict is rendered by a judge or jury. |
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Term
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Definition
| 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 (or seizure) until admission at trial, including how it has been controlled, transferred, analyzed, or otherwise handled. Applies to physical and electronic evidence and may be relevant in civil or criminal cases. |
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| Article IV, Section 1 of the U.S. Constitution establishes that individual states within the United States 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. |
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| 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. |
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| The principle that a court should follow previous court decisions unless there exists a compelling reason not to. Related to the concept of precedence. Stare decisis means “let the decision stand.” |
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| Legal principle that the government must safeguard the legal rights owed 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 |
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| To provide, or to 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, whether civil, criminal, or administrative, has a right to be “noticed” as to that matter. In civil law, having “notice” of certain facts can indicate or increase a person’s liability (such as when a person is aware of a dangerous condition on his or her property). |
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