Chapter 4 - Legal Proceedings Flashcards
substantive law
the set of laws that governs how members of a society are to behave; it defines rights and responsibilities in civil law, and crimes and punishments in criminal law
procedural law
the collection of laws that govern how the court system works
settlement
an agreement that avoids trial
civil procedure
the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits
criminal procedure
the body of law that sets out the rules and standards that courts follow when adjudicating criminal lawsuits
Federal Rules of Criminal Procedure (FRCrP)
the procedural rules that govern how federal criminal prosecutions are conducted in United States district courts and the general trial courts of the U.S. government.
dismissal
the act by which the court denies the claim of the party that is initiating a lawsuit or case
adjudication
the legal process by which an arbiter or judge reviews evidence and argumentation, including legal reasoning set forth by opposing parties or litigants, to come to a decision
Federal Rules of Civil Procedure (FRCP)
the procedural rules that govern how federal civil cases are conducted in United States district courts and the general trial courts of the U.S. government.
party (plural: parties)
the individual(s) or organization(s) involved in a lawsuit
class
a group of people or things defined by one or more common attributes, often used in reference to class action lawsuits
class action lawsuit
a type of lawsuit where one of the parties is a group of people who are represented collectively by a member or members of that group
pretrial
the procedures that take place from the time a lawsuit is filed until the date a trial is scheduled for
litigation
the legal proceedings that accompany a lawsuit
complaint
a legal document that states why a party is bringing a lawsuit against another party; the filing of it represents the first step in litigation
pro se
litigants or parties representing themselves in court without the assistance of an attorney
summons
an order to appear before a judge or magistrate; when given to a defendant, it will tell the defendant what the case is about
answer
in the context of law, a legal response by a defendant to a complaint
default judgment
a binding judgment in favor of either party based on some failure to take action by the other party (e.g. for not appearing in court)
counterclaim
a claim by a defendant against a plaintiff
cross-claim
a claim by one person against another when both are on the same side in a legal proceeding
joinder
the process by which one or more parties or claims are added to a lawsuit
claim
a legal demand or assertion that is provided by a person who is seeking some type of reimbursement, payment, or compensation
pleadings
documents generated by parties involved in a lawsuit, including complaints and answers
clerk of court
also called court clerk; an officer of the court whose responsibilities include maintaining the records of a court
service
in the context of law, the formal delivery of litigation documents to give the defendant notice of the suit against them
discovery
the second step in litigation; it is a time-consuming and very important process that involves both parties acquiring information held by others and judging the strength or weakness of each other’s cases
discoverability
the limits on what a party is allowed to learn during the discovery phase; laws will sometimes prohibit parties from acquiring certain information
admissibility
something that determines whether or not certain evidence is allowed to be admitted in a court of law and considered by the judge or jury in making the final decision
ESI
a legal acronym for electronically stored information; data that is created, altered, communicated and stored in digital form
e-discovery
the discoverability laws and process as they relate to ESI
Electronic Discovery Reference Model (EDRM)
a framework created by George Socha that outlines standards for the recovery and discovery of digital data
deposition
a formal proceeding during which oral testimonies of individuals are obtained
deponent
a person who testifies under oath in a deposition or in writing by signing an affidavit
affidavit
a written statement confirmed by oath or affirmation, for use as evidence in court
affirmation
an act of saying or showing that something is true
court reporter
a person employed to transcribe speech from legal proceedings, typically via stenography
stenography
the action or process of writing in shorthand or taking dictation
authentication
verification that something, such as a health record, is reliable and truthful as evidence
interrogatory
a list of questions one party sends to another as part of the discovery process
request for production of documents or things
a discovery method to gather tangible items and information, including electronic or paper health records
request for admissions
a discovery device that allows one party to request that another party admit or deny the truth of a statement under oath. If admitted, the statement is considered to be true for all purposes of the current trial.
court order
a document or verbal mandate issued by a judge that compels a certain action; refusal to obey the order can result in legal penalties
subpoena
a writ ordering a person to attend a court
writ
a form of written command in the name of a court or other legal authority to act, or abstain from acting, in some way
subpoena ad testificandum
a subpoena that requires an individual’s testimony in court
subpoena duces tecum
a writ ordering a person to attend a court and bring relevant documents
motion to quash
a document filed with the court that asks the judge to nullify a subpoena
in camera inspection
a term that refers to what happens when a judge personally and privately reviews evidence to determine whether it should be provided to other parties. This usually occurs when both sides in a case disagree about whether a certain, usually crucial, piece of evidence should be admitted
shadow chart
also called shadow record; paper or digital copies of original records retained apart from the primary source
pretrial conference
a meeting of the parties to a case conducted prior to trial
judge
the person who presides over the trial and the courtroom; he or she makes critical decisions regarding the admissibility of evidence; he or she also instructs the jury regarding the law of that jurisdiction; in a bench trial, the judge also serves as the fact finder
bench trial
a trial without a jury, where the judge makes all the decisions
jury
a fact-finding body that hears evidence given by the parties in a legal case and that decides innocence or guilt, but cannot decide the sentence
lay witness
a person called to the witness stand to testify based on their own personal observations
expert witness
a person called to the witness stand to testify about subject matter that they have expertise in (such as a doctor testifying about an autopsy)
proffer
to offer evidence in support of an argument
bailiff
a court official that is responsible for maintaining order, security, and decorum in the court as well as managing the schedule of the judge
decorum
behavior in keeping with good taste and propriety
propriety
the state or quality of conforming to conventionally accepted standards of behavior or morals
voir dire
the process by which prospective jurors are questioned about their backgrounds and potential biases before being chosen to sit on a jury
peremptory challenges
a defendant’s or lawyer’s objection to a proposed juror, made without needing to give a reason; attorneys are given a limited number of these to use in removing jurors; they are not supposed to use this resource to discriminate against people based on race, gender, religion, and ethnicity, but it is difficult to prove it if they do
opening statement
a statement to the jury by an attorney before the presentation of evidence, given at the beginning of the trial phase; it usually explains the nature of the case, the factual matters to be proven, the evidence to be presented, and it summarizes the arguments to be made
directed verdict
an order from the presiding judge to the jury to return a particular verdict. Typically, the judge orders a directed verdict after finding that no reasonable jury could reach a decision to the contrary. After a directed verdict, there is no longer any need for the jury to decide the case
closing argument
a statement, presented by each attorney, urging the jury to decide in their favor
preponderance of evidence
a standard used only in civil cases; it requires that the plaintiff provide evidence proving it is “more likely than not” that the defendant committed the alleged wrongdoing; this is a lower burden of proof than what is used in criminal cases
beyond a reasonable doubt
a standard used only in criminal cases; this means that in order for a defendant to be found guilty the case presented by the prosecution must be enough to remove any reasonable doubt in the mind of the jury that the defendant is guilty of the crime with which they are charged
burden of proof
a standard that determines which party is responsible for putting forth evidence and the level of evidence they must provide in order to prevail on their claim. In most cases, the plaintiff (the party bringing the claim) has the responsibility
jury instructions
rules that a jury must follow when they are deciding on a case
deliberation
a process of group discussion and thoughtful weighing of options, usually prior to voting or making a decision on a case
verdict
a decision on a disputed issue in a civil or criminal case or an inquest
inquest
a judicial inquiry to ascertain the facts relating to an incident, such as a death
hung jury
a situation where a jury can not decide on a conclusion and neither conviction nor an acquittal is achieved
sentence
the final phase of a trial, where a judge decides on the punishment that a guilty defendant receives
determination of damages
the final phase of a trial, where a judge or jury will decide what kind of damages will be imposed on a defendant found guilty
appeal
a stage that is part of the post-trial process; it is the process in which cases are reviewed by a higher authority, where a party requests a formal change to an official decision
appellant
the party that files an appeal; if the appeal process is started, they are called the petitioner
appellee
the party against whom an appeal is filed; this person usually seeks to prevent the appeal from being granted; if the appeal process is started, they are called the respondent
cross appeal
an appeal taken by an appellee against the appellant
equitable relief
a court-granted remedy that requires a party to act or refrain from performing a particular act in cases where legal remedies are not considered to provide sufficient restitution
garnishment
a legal process for collecting a monetary judgment on behalf of a plaintiff from a defendant
writ of execution
a court order that directs law enforcement to seize a defendant’s property to satisfy a debt owned to the plaintiff
judgment lien
a court order that prevents the debtor from selling or mortgaging real property until the judgment is paid or expires
lien
the legal claim of one person upon the property of another person to secure the payment of a debt or the satisfaction of an obligation
