CHAPTER 4- LEGAL TERMS + DEFINITIONS Flashcards
PERSONAL RECOGNIZANCE
A DEFENDANT IS RELEASED WITHOUT BEING REQUIRED TO POST BAIL, ON THE PROMISE THAT HE/SHE WILL APPEAR IN COURT AT A DESIGNATED TIME.
NOTICE
TO PROVIDE OR TO GAIN , KNOWLEDGE OF LEGALLY RELEVANT INFORMATION.
NOTICE IS A CRITICAL CONCEPT APPLICABLE IN ALMOST EVERY AREA OF LAW.
(EX –> A DEFENDANT IN ANY LEGAL ACTION (CIVIL/CRIMINAL/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/HER PROPERTY)
DUE PROCESS
LEGAL PRINCIPLE THAT THE GOVERNMENT MUST SAFEGUARD THE LEGAL RIGHTS OWED TO A PERSON ACCORDING TO THE LAW. INCLUDING:
- NOTICE OF PROCEEDINGS
- A CHANCE TO BE HEARD PRIOR TO THE LOSS OF LIFE, LIBERTY OR PROPERTY.
- ALSO A CONSTITUTIONAL GUARANTEE THAT A LAW SHOULD NOT BE UNREASONABLE.
STARE DECISIS
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”
PRECEDENT
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.
FULL FAITH AND CREDIT
ARTICLE IV, SECTION 1 OF THE US 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 JUDGEMENTS OF OTHER STATES.
CHAIN OF CUSTODY
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 AND CRIMINAL CASES.
DOUBLE JEOPARDY
PROHIBITS ANYONE FROM BEING PROSECUTED TWICE FOR SUBSTANTIALLY THE SAME CRIME.
ADVERSE JUDGEMENT
A JUDGEMENT AGAINST YOUR CLIENT.
ACQUIT
TO FIND A DEFENDANT NOT GUILTY.
BEYOND A REASONABLE DOUBT
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)
ARRAIGNMENT
FORMAL HEARING IN COURT WHERE THE DEFENDANT IS INFORMED OF CHARGES BEING BROUGHT.
GENERALLY PLEADS: GUILTY, NOT GUILTY OR NOLO CONTENDERE
GRAND JURY
AN INVESTIGATORY PANEL THAT DETERMINES WHETHER PROBABLE CAUSE EXISTS TO RETURN AN INDICTMENT.
BOUND OVER
- SUBMITTED TO
- SENT
PROBABLE CAUSE
A REASONABLE BASIS TO BELIEVE THAT A CRIME HAS BEEN COMMITTED.
PRELIMINARY HEARING
A HEARING REQUIRING THE STATE TO PRODUCE SUFFICIENT EVIDENCE TO ESTABLISH THAT THERE IS PROBABLE CAUSE TO BELIEVE A CRIME HAS BEEN COMMITTED BY THE DEFENDANT.
“NOLO CONTENDERE” OR “NO CONTEST”
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.
PLEA BARGAIN
A DEFENDANT IN A CRIMINAL CASE AGREES TO PLEAD GUILTY, USUALLY TO A LESSER CHARGE, IN RETURN FOR A REDUCED SENTENCE.
PLEAD
TO DECLARE A DEFENDANT’S POSITION IN A CRIMINAL TRIAL, USUALLY EITHER “GUILTY” OR “NOT GUILTY”.
OTHER POSSIBLE PLEASE INCLUDE “NOLO CONTENDERE”
DISTRICT ATTORNEY
PROSECUTOR FOR THE STATE.
NOLLE PROSEQUI
THE DECISION OF THE PROSECUTOR NOT TO PROSECUTE, EVEN THOUGH HE/SHE BELIEVES THAT THERE IS SUFFICIENT EVIDENCE TO DO SO.
COUNSEL
- LEGAL REPRESENTATIVE
- ATTORNEY
PERSONAL RECOGNIZANCE
A DEFENDANT IS RELEASED WITHOUT BEING REQUIRED TO POST BAIL, ON THE PROMISE THAT HE/SHE WILL APPEAR IN COURT AT A DESIGNATED TIME.
ASSIGNED COUNSEL
AN ATTORNEY WHO IS ORDERED TO REPRESENT A DEFENDANT, USUALLY BECAUSE THE DEFENDANT CANNOT AFFORD AN ATTORNEY.
BAIL BOND
A WRITTEN AGREEMENT TO PAY THE FULL BAIL AMOUNT TO THE COURT IF THE DEFENDANT FAILS TO APPEAR WHEN REQUIRED.
BAIL
MONEY OR PROPERTY DEPOSITED WITH THE COURT:
- TO PROCURE THE RELEASE OF A DEFENDANT
- TO ENSURE THE APPEARANCE OF THE DEFENDANT
AT TRIAL.
FELONY
A CRIME PUNISHABLE BY A SENTENCE OF 1 YEAR OR MORE IN PRISON.
MISDEMEANOR
A CRIME PUNISHABLE BY A SENTENCE OF LESS THAN 1 YEAR.
INITIAL APPEARANCE
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
- SETS THE DATE FOR THE NEXT COURT PROCEEDING
WARRANT
AN ORDER FROM A JUDICIAL OFFICER OR THE COURT AUTHORIZING AN ARREST OR A SEARCH OR SEIZURE OF PROPERTY.
“STATE” OR “GOVERNMENT”
IN A CRIMINAL CASE, THESE TERMS MEAN THE PROSECUTION.
PROSECUTION
THE BRINGING OF CRIMINAL CHARGES AGAINST A DEFENDANT.
ALSO THE PARTY PRESENTING THE GOVERNMENT’S CASE AT A CRIMINAL TRIAL.
CRIMINAL LAW
A VIOLATION OF CRIMINAL LAW IS VIEWED AS HARMING THE COMMUNITY. THEREFORE, THE STATE ACTS AGAINST THE VIOLATOR.
PENALTIES FOR VIOLATING CRIMINAL LAW INCLUDE: - COMMUNITY SERVICE
- FINES
- IMPRISONMENT
ONE CAN BE SUED CIVILLY AND CHARGED CRIMINALLY FOR THE SAME EVENT.
“PETITION FOR WRIT OF CERTIORARI” AKA “WRIT OF CERT”
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 A US 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.
REHEARING
A SECOND CHANCE TO PRESENT ARGUMENTS TO THE COURT ON THE SAME ISSUES.
PETITION
TO MAKE A FORMAL REQUEST TO THE COURT.
SOME STATES REFER TO COMPLAINTS AS PETITIONS DEPENDING OM THE TYPE OF ACTION FILED.
(EX –> A “PETITION OF DISSOLUTION OF MARRIAGE” WOULD INVOLVE A PETITIONER AND RESPONDENT RATHER THAN A PLAINTIFF AND DEFENDANT)
MAJORITY OPINION
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.
“AFFIRM”: THE APPELLATE COURT AGREES WITH THE DECISION OF THE TRIAL COURT.
“REVERSE”: THE APPELLATE COURT DISAGREES WITH AND NULLIFIES THE DECISION OF THE TRIAL COURT.
“MODIFY”: THE APPELLATE COURT ALTERS THE DECISION OF THE TRIAL COURT.
“REMAND”: THE APPELLATE COURT SENDS THE CASE BACK TO THE TRIAL COURT FOR FURTHER DELIBERATION.
DISSENTING OPINION
OPINION THAT DISAGREES WITH THE MAJORITY OPINION.
CONCURRING OPINION
OPINION OF ONE OR MORE JUDGES THAT AGREES WITH THE RESULTS OF THE MAJORITY, BUT ARRIVES AT THE RESULT FOR DIFFERENT REASONS.
OPINION
WRITTEN DECISION OF THE COURT.
EN BANC
WHEN THE ENTIRE APPELLATE COURT SITS TO HEAR AND DECIDE A CASE, INDICATING THE CASE HAS A HIGH LEVEL OF IMPORTANCE.
PANEL OF JUSTICES (OR JUDGES)
THE PORTION OF AN APPELLATE COURT THAT HEARS A CASE.
USUALLY, A PANEL IS MADE UP OF 3 JUDGES.
ORAL ARGUMENT
AN ORAL PRESENTATION TO AN APPELLATE COURT.
THE PARTY MUST REQUEST AN ORAL ARGUMENT; THAT REQUEST IS NOT ALWAYS GRANTED.
RESPONSE BRIEF
A WRITTEN ANSWER TO THE APPELLATE BRIEF.
POINTS OF ERROR
THE QUESTIONS THAT ARE THE BASIS FOR THE APPEAL.
ALSO CALLED THE “ISSUES ON APPEAL”, THESE QUESTIONS POINT TO POTENTIAL ERRORS OF THE TRIAL COURT.
APPELLATE BRIEF
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”
TRANSCRIPT
THE WORD-FOR-WORD TYPED RECORD OF WHAT OCCURED AT TRIAL.
RECORD (P.E.M.O.T)
THE OFFICIAL COLLECTION OF ALL PLEADINGS, EXHIBITS, MOTIONS, ORDERS, AND TRANSCRIPT OF THE TRIAL.
“APPELLEE” OR “RESPONDENT “
THE PARTY RESPONDING TO AN APPEAL.
“APPELLANT” OR “PETITIONER “
THE PARTY INITIATING AN APPEAL.
TO BAR
TO PREVENT OR STOP.
RES JUDICATA
DOCTRINE STATING THAT A CASE THAT HAS BEEN DECIDED ON ITS MERITS MAY NOT BE RE-LITIGATED.
BOND ON APPEAL
A SUM OF MONEY HELD BY THE COURT TO ENSURE THAT THE FUNDS FROM THE AWARD WITH BE AVAILABLE AFTER THE APPELLATE PROCESS.
NOTICE OF APPEAL
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 PARTIES INVOLVED IN THE ACTION.
A PARTY HAS THE AUTOMATIC RIGHT TO ONE APPEAL TO THE NEXT HIGHEST COURT.
STAY
TO DELAY THE IMPLEMENTATION OF A COURT’S ORDER.
WAIVE
TO GIVE UP A RIGHT.
A WAIVER MAY BE EITHER VOLUNTARY OR THE RESULT OF AN ACTION OR INACTION, BY THE PARTY.
APPEAL
TO ASK THE COURT AT THE NEXT HIGHER LEVEL TO DETERMINE WHETHER THE TRIAL COURT ERRED.
MOTION FOR A NEW TRIAL
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, FULLFILLING THE OBLIGATION TO EXHAUST ALL AVAILABLE REMEDIES.
REMITTITUR
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.
ADDITUR
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.
JUDGEMENT
THE FINAL CONCLUSION OF THE COURT.
IN CIVIL CASES THE JUDGE USUALLY ENTERS THE JURY’S VERDICT INTO JUDGEMENT. 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.
MOTION FOR JUDGEMENT NOV (NOTWITHSTANDING THE VERDICT)
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”
FOREPERSON (FOREMAN OR FOREWOMAN)
THE MEMBER ELECTED BY THE JURY TO LEAD THE DELIBERATIONS AND SPEAK FOR THE JURY.
VERDICT
THE FINAL CONCLUSION OF THE JURY.
DELIBERATIONS
A JURY’S DISCUSSION OF THE CASE, IN PRIVATE, FOLLOWING THE TRIAL, WITH THE GOAL OF RENDERING A VERDICT.
JURY INSTRUCTIONS
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”
CLOSING ARGUMENT
EACH ATTORNEY ADDRESSING THE JURY OR THE COURT AT THE END OF THE TRIAL, ATTEMPTING TO PERSUADE PRIOR TO DELIBERATIONS.
VOIR DIRE (OF WITNESSES)
TO QUESTION A POTENTIAL WITNESS TO DETERMINE HIS OR HER COMPETENCY OR THE APPROPRIATENESS OF HIS OR HER TESTIMONY.
QUALIFY
TO ESTABLISH A WITNESS’S EXPERTISE IN A SPECIFIC AREA.
EXPERT WITNESS
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.
TAKE UNDER ADVISEMENT
THE COURT DELAYS A RULING ON A MOTION SO THAT THE MOTION MAY BE CONSIDERED.
PRIMA FACIA CASE
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 ALL OF THE PROCEEDINGS FROM THE FILING OF THE COMPLAINT THROUGH TRIAL. IF AT ANY POINT DURING THE LITIGATION , A PARTY CAN ESTABLISH THAT A PRIMA FACIE CASE DOES NOT EXIST, THE CASE SHOULD BE DISMISSED.
ADJOURN
TO HALT TEMPORARILY, BUT NOT END, THE TRIAL.
MOTION FOR DIRECTED VERDICT
THE COURT IS ASKED TO DECIDE THE OUTCOME OF A CASE BECAUSE THE PLAINTIFF HAS FAILED TO ESTABLISH A PRIMA FACIE CASE.
MOVE
TO PRESENT A MOTION TO THE COURT.
RESTING A CASE
WHEN A PARTY IS FINISHED PRESENTING EVIDENCE, IT RESTS.
INTRODUCTION OF EVIDENCE
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.
EXHIBIT
A PHYSICAL ITEM PRESENTED TO SUPPORT AN ARGUMENT.
CLERK OF COURT
THE PERSON OR PERSONS RESPONSIBLE FOR THE COURT FILES AND EXHIBITS.
TO STRIKE FROM THE RECORD
TO HAVE CERTAIN TESTIMONY REMOVED FROM THE RECORD OF TRIAL. THIS IS USUALLY ACCOMPANIED BY AN ADMONITION TO THE JURY THAT, WHEN DELIBERATING THEY ARE NOT TO CONSIDER THE TESTIMONY THEY JUST HEARD.
RELEVANT
TENDING TO PROVE OR DISPROVE A FACT IN ISSUE.
GROUNDS
REASON OR REASONS.
EXCUSE THE JURY
THE JUDGE INSTRUCTS THE JURY TO LEAVE THE COURTROOM TEMPORARILY.
NEGLIGENCE
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 CLAUSE OF THE DAMAGES.
NEGLIGENCE GENERALLY MEANS AN ACT IS ACCIDENTAL, NOT INTENTIONAL.
PROXIMATE CAUSE
THE EVENT OR POINT AT WHICH A SERIES OF INCIDENTS BEGINS ULTIMATELY RESULTING IN AN EVENT WITH DAMAGES.
PROXIMATE CAUSE
THE EVENT OR POINT AT WHICH A SERIES OF INCIDENTS BEGINS ULTIMATELY RESULTING IN AN EVENT WITH DAMAGES.
EXAMINATION
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 CAN NOT 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)
COMPETENCY
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
SUSTAIN
TO AFFIRM AN OBJECTION.
PRESERVING THE RECORD
AN ATTORNEY MAKING STATEMENTS, OR REPEATING A PREVIOUSLY OVERRULED MOTION, TO PROTECT ANY RIGHT TO APPEAL AT A LATER POINT.
PROBATIVE VALUE
THE VALUE OF PURSUING AN INVESTIGATIVE OR PROBING THE LINE OF QUESTIONING.
PREJUDICIAL
THE TENDENCY TO CAUSE BIAS EVEN WHERE NO BIAS HAS EXISTED PREVIOUSLY.
BENCH CONFERENCE
A DISCUSSION BETWEEN THE JUDGE AND ATTORNEYS, USUALLY CONDUCTED AT THE JUDGE’S BENCH SO THE JURY CANNOT HEAR WHAT IS SAID.
OBJECTION
A FORMAL CHALLENGE BY OPPOSING COUNSEL TO EVIDENCE OR QUESTIONS ASKED OF A WITNESS.
SUBPOENA DUCES TECUM
A DOCUMENT ISSUED UNDER THE AUTHORITY OF THE COURT TO COMPEL :
- THE APPEARANCE OF A WITNESS.
- ORDERING THE WITNESS TO PROVIDE SPECIFIC DOCUMENTS.
SUBPOENA
THE DOCUMENT ISSUED UNDER AUTHORITY OF THE COURT TO COMPEL THE APPEARANCE OF A WITNESS.
RULE OF WITNESSES
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.
PREPONDERANCE OF THE EVIDENCE
A PREPONDERANCE OF EVIDENCE IS ENOUGH EVIDENCE TO MAKE IT MORE LIKELY THAT AN ARGUMENT IS TRUE THAN THAT IT IS FALSE.
IN CIVIL TRIAL, THE PLAINTIFF NEEDS TO PROVIDE A PREPONDERANCE OF EVIDENCE IN ORDER TO WIN HER CASE.
BURDEN OF PROOF
THE DEGREE TO WHICH SOMETHING MUST BE PROVED AT TRIAL.
THE PARTY MAKING AN ALLEGATION OR CLAIM GENERALLY BEARS THE BURDEN OF PROOF.
OPENING STATEMENT
PRESENTATIONS MADE BY THE ATTORNEYS AT THE BEGINNING OF A TRIAL, STATING THE FACTS THEY INTEND TO PROVE DURING THE TRIAL.
ALTERNATE JUROR
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 ALTERNATIVES. INSTEAD, THE PARTIES AND JUDGES AGREE ON THE NUMBER OF ORIGINAL JURUROS AND ON HOW MANY MAY BE DISMISSED.
BAILIFF
COURT EMPLOYEE WHO KEEPS ORDER IN THE COURTROOM.
VOIR DIRE
TO QUESTION PROSPECTIVE JURORS.
“CHALLENGE FOR A CAUSE” : A METHOD OF DISMISSING A JUROR FOR A 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 3 OR 6.
JURY PANEL
THE GROUP FROM WHICH A JURY WILL BE SELECTED.
JURY OR JURORS
A GROUP OF CITIZENS WHO WILL BE CALLED UP ON TO HEAR THE EVIDENCE AND RENDER A VERDICT.
THE JURY IS THE TRIER OF FACT.
SET FOR TRIAL
TO SET A DATE FOR TRIAL UPON WHICH THE ATTORNEYS, PARTIES AND COURT AGREE.
DOCKET
THE COURT’S OFFICIAL CALENDAR FOR TRIALS AND HEARINGS TO TAKE PLACE IN THAT COURTROOM.
ADMISSIBLE
THE EVIDENCE THAT WILL BE ALLOWED TO BE CONSIDERED BY THE JURY.
THE JURY WILL DECIDE WHETHER OR NOT TO BELIEVE THE EVIDENCE.
EVIDENCE
THAT WHICH TENDS TO ESTABLISH OR DISPROVE A FACT.
“DIRECT EVIDENCE” : EVIDENCE (FROM PERSONAL OBSERVATION) THAT TENDS TO ESTABLISH A FACT WITHOUT THE NEED FOR AN INFERENCE. (EX –> A WITNESS WHO SEES A GUN FIRED CAN GIVE DIRECT TESTIMONY AS TO A SHOOTING)
“CIRCUMSTANTIAL EVIDENCE” : EVIDENCE OF ONE FACT THAT REQUIRES AN INFERENCE TO ESTABLISH ANOTHER FACT. (EX –> A WITNESS WHO HEARS A SHOT, TURNS AROUND AND SEES A MAN HOLDING A GUN CAN GIVE CIRCUMSTANTIAL EVIDENCE AS TO A SHOOTING)
“ORAL EVIDENCE” : EVIDENCE GIVEN ORALLY, ALSO CALLED “TESTIMONIAL EVIDENCE”
“PHYSICAL EVIDENCE” : EVIDENCE THAT CAN BE TOUCHED , ALSO CALLED “TANGIBLE EVIDENCE” OR “DEMONSTRATIVE EVIDENCE”
“AT ISSUE” OR “AN ISSUE “
A LEGAL QUESTION TO BE ANSWERED BY THE COURT.
SETTLEMENT AGREEMENT
AN AGREEMENT TO END THE LITIGATION FOR AN AGREED-UPON CONSIDERATION, USUALLY MONEY.
STIPULATION
AN AGREEMENT BETWEEN COUNSEL FOR THE PARTIES REGARDING A FACT, ISSUE, OR POINT THAT WILL NOT BE DISPUTED AT TRIAL.
PRETRIAL CONFERENCE
A MEETING BETWEEN THE COURT AND THE PARTIES FOR CLARIFICATION OF PROCEDURAL MATTERS AND TO PROMOTE SETTLEMENT.
MAGISTRATE
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.
MOTION FOR SUMMARY JUDGEMENT
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 , THERE IS NO NEED FOR A JURY OR TRIAL.
A MOTION FOR SUMMARY JUDGEMENT MAY ALSO REFER TO A MOTION TO LIMIT THE ISSUES THAT WILL BE DEALT WITH AT THE TRIAL , REFERRED TO AS A PARTIAL SUMMARY JUDGEMENT.
A SUCCESSFUL PARTIAL SUMMARY JUDGEMENT DETERMINES THE OUTCOME OF SOME, BUT NOT ALL, ALL OF THE ISSUES BEFORE THE COURT.
TRIAL BRIEF
ALSO CALLED “TRIAL MEMORANDUM” OR “POINTS OF AUTHORITY”.
THIS DOCUMENT IS FILED WITH THE COURT TO ARGUE A LEGAL ISSUE, RELYING ON THE LAW TO SUPPORT THE PARTY’S POSITION.
OFTEN FILED IN SUPPORT OF MOTION, ITS ATTEMPTS TO CONVINCE THE READER AND ONLY ARGUES POINTS FAVORABLE TO THE CLIENT.
MOTION TO DISMISS
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 IT’S MIND ABOUT THE MATTER. ( –> “ TO RE-FILE”)
THIRD-PARTY DEFENDANT
THE PARTY AGAINST WHOM THE THIRD-PARTY COMPLAINT WAS FILED.
THE DEFENDANT IN THE ORIGINAL COMPLAINT BECOMES THE “THIRD PARTY DEFENDANT”.
EX PARTE HEARING
A HEARING AT WHICH ONLY ONE PARTY IS PRESENT, SUCH AS A HEARING ON A MOTION FOR A RESTRAINING ORDER.
EX PARTE HEARINGS ARE NOT COMMON.
PRIVILEGE
THE RIGHT TO REFUSE TO TESTIFY OR TO PREVENT SOMEONE ELSE FROM TESTIFYING.
HEARING
A PROCEEDING IN COURT, WHERE THE JUDGE AND BOTH PARTIES ARE PRESENT.
ORDER
AN OFFICIAL COMMAND BY THE COURT, USUALLY DEMANDING THAT ONE OR BOTH OF THE PARTIES PERFORM AN ACT.
“CERTIFICATE OF MAILING” OR “CERTIFICATE OF SERVICE “
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)
DEPOSITIONS
ORAL QUESTIONS THAT MUST BE ANSWERED UNDER OATH.
DEPOSITIONS USUALLY 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 THE 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 OFTEN VIDEOTAPED AND AUDIOTAPED.
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.
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”
EX –> “ PLEASE PRODUCE ANY AND ALL RECEIPTS FOR ACME DRY CLEANING BETWEEN FEB 1ST AND FEB 14TH , 2011 “
REQUEST FOR ADMISSIONS
WRITTEN STATEMENTS THE OPPOSING PARTY MUST ADMIT OR DENY UNDER PENALTY OR PERJURY.
FAILURE TO RESPOND WITHIN A SPECIFIED PERIOD OF TIME (IN MOST CASES 30 DAYS) MEANS THAT THE STATEMENTS ARE ASSERTED TO BE ADMITTED.
EX –> “ ADMIT OR DENY YOU HAD BEEN DRINKING ALCOHOL SHORTLY BEFORE THE ACCIDENT. “
INTERROGATORIES
WRITTEN QUESTIONS TO THE OPPOSING PARTY THAT MUST BE ANSWERED UNDER PENALTY OF PERJURY.
EX–> “DESCRIBE THE EVENTS LEADING UP TO THE ACCIDENT. “
5 COMMON METHODS OF DISCOVERY ARE (I.R.R.R.D)
INTERROGATORIES, REQUEST FOR ADMISSIONS, REQUEST FOR PRODUCTION, REQUEST FOR MENTAL OR PHYSICAL EXAMINATION, DEPOSITIONS.
DISCOVERY
THE METHODS WHEREBY A 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 IT’S DECISION.
DISCOVERY IS BETWEEN THE PARTIES AND DOES NOT DIRECTLY INVOLVE THE COURT, ALTHOUGH THE CERTIFICATE OF MAILING FOR EACH DOCUMENT IS OFTEN FILED.
CONTEST
TO CHALLENGE.
LITIGATION
THE PROCESS OF ASKING A COURT OF LAW TO DECIDE THE OUTCOME OF A DISPUTE. (A LAWSUIT)
MOTION
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.
DEFAULT JUDGEMENT
A JUDGEMENT BY THE COURT IN FAVOR OF THE PLAINTIFF, BASED ON THE FACT THAT THE DEFENDANT FAILED TO RESPOND IN A TIMELY FASHION.
REPLY
THIS PLEADING IS THE PLAINTIFF’S RESPONSE TO A DEFENDANT’S COUNTERCLAIM.
THIRD-PARTY COMPLAINT
PLEADING WHERE A DEFENDANT SUES SOMEONE NOT YET A PARTY TO THE ACTION.
CROSS CLAIM
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 ARE ALSO CROSS CLAIMS.
COUNTERCLAIM
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.
AFFIRMATIVE DEFENSE
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.
ANSWER
THE PLEADING FILED BY THE DEFENDANT IN RESPONSE TO THE ALLEGATIONS CONTAINED IN THEIR COMPLAINT.
RULES OF COURT
LAWS THAT GOVERN THE PROCEDURES OF TRIALS.
LIEN
ATTACHMENT TO THE TITLE OF A PIECE OF PROPERTY PREVENTING ITS SALE UNTIL A PREVIOUS FINANCIAL OBLIGATION HAS BEEN SATISFIED.
LIS PENDENS
ATTACHMENT TO THE TITLE OF A PIECE OF PROPERTY NOTIFYING ANY POTENTIAL PURCHASERS THAT THE TITLE IS SUBJECT TO THE OUTCOME OF LITIGATION.
QUASI IN REM JURISDICTION
JURISDICTION OVER PROPERTY, EVEN THOUGH THE PROPERTY IS NOT THE CONTROVERSY.
