Chapter 9 - Civil Procedure, Evidence, and the Appellate Process - Terminology Flashcards
To uphold, ratify or approve
affirm
the defendant’s response to the allegations of the plaintiff’s complaint or petition
answer
appellee’s written response to the appellant’s law brief filed in an appellate court
answer brief
a person who takes an appeal to a higher court
appellant
the rules of procedure follow by the appellate courts in deciding appeals
appellate procedure
the party against whom a case is appealed to a higher court
appellee
right of a person (client) not to testify about matters discussed in confidence with an attorney in the course of the attorney’s representation of the client
attorney-client procedure
trial held before a judge without a jury present
bench trial
the requirement that the original document or best facsimile must be produced in the court to prove the content of a writing
best evidence rule
records kept in the ordinary course of business and records required the be kept by governments
business and public records
a meeting between a judge and counsel to review the status of a case before the court and to plan necessary steps to conclude the case
case management conference
a right to bring suit based on someone’s breach of a legal duty
cause of action
objection to prospective jurors on some specified ground (close relationship to case)
challenge for cause
indirect evidence from which the existence of certain facts may be inferred
circumstantial evidence
a reference to a statute or court decision, often designating a publication where the law or decision appears
citations
rules of court followed by courts in adjudicating civil cases
civil procedure
a lawsuit brought by one or more parties on behalf of themselves and others similarly situated
class action
the exemption of a clergyperson and a penitent from disclosing communications made in confidence by the penitent
clergy privilege
arguments presented at trial by counsel at the conclusion of the presentation of evidence
closing arguments
English common law system of filing various written documents in litigation to arrive at the issues toe be resolved by the court
common law pleading
legally qualified
competent
an initial document filed in court to inform the defendant of the nature and extent of the plaintiff’s claim against the defendant
complaint
an opinion by a judge or justice agreeing with the judgment of an appellate court without agreeing with the court’s reasoning process
concurring in the judgment
opinion by a judge or justice agreeing with the decision of the court. May or may not agree with the rationale adopted by the court in reaching its decision
concurring opinion
a form of service of court process other than by personal delivery to the intended recipient. Sometimes accomplished by a notice published in the newspaper with a copy sent to the last known address of the intended recipient
constructive service
a request by the defendant for relief against the plaintiff
counterclaim
a claim asserted in a lawsuit by one party against a co-party
cross-claim
process of interrogating a witness who has testified on direct examination by asking the witness questions concerning testimony given
cross-examination
monetary compensation awarded by a court to a person who has suffered injuries or losses to person or property as a a result of someone else’s conduct
damages
a court decision establishing rights of parties
declaratory relief
failure to do some act required by contract or by law
default
a judgment entered by a court due to a defendant’s failure to respond to legal process or to appear in court t o contest the plaintiff’s claim
default judgment
a person charged with a crime or against whom a civil action has been initiated
defendant
the recorded sworn testimony of a witness; not given in open court
deposition
evidence that applies directly to proof of a fact or proposition. For example, an eyewitness
direct evidence
interrogation by an attorney of a party or a witness called to testify
direct examination
a verdict rendered by a jury upon direction of the presiding judge
directed verdict
a process whereby counsel seek to obtain information from parties in a lawsuit through interrogatories and depositions
discovery
a written opinion by a judge or justice setting forth reasons for disagreeing with a particular decision of the court
dissenting opinion
the authority of federal courts to hear lawsuits in which the parties are citizens of different states and the amount in controversy exceeds $75,000.
diversity jurisdiction
statement made by a person who believes that his or her death is imminent. generally considered an exception to the hearsay rule of evidence.
dying declarations
a rehearing in an appellate court in which all or a majority of the judges participate
en banc rehearing
the function of appellate courts in correcting errors committed by lower tribunals in their interpretation and application of law, evidence and procedure
error correction
establishment of one fact allow inference of another fact or circumstance
evidentiary presumption
a witness with specialized knowledge or training called to testify in his or her field of expertise
expert witness
testimony given by a person based on personal observation of an event
eyewitness testimony
persons qualified in the application of scientific knowledge to legal principles, usually applied to those who participate in discourse or who testify in court
forensic experts
a challenge to a prospective juror’s competency to serve based solely on the prospective juror’s gender
gender-based peremptory challenges
damages that have accrued to the plaintiff due to a particular injury or loss
general damages
an objection raised against a witness’s testimony or introduction of evidence when the objecting party does not recite a specific ground for the objection
general objection
ordinary form of jury verdict in civil case that finds for the plaintiff or defendant in general terms; in criminal case, finds the defendant not guilty or guilty of specified crime
general verdict
statements made by someone other than a witness offered in evidence at a trial or hearing to prove the truth of the matter asserted
hearsay evidence
a trial jury unable to reach a verdict
hung jury
a question based on an assumed set of facts. May be asked of expert witnesses in criminal trials.
hypothetical question
“In the manner of a pauper.” Waiver of filing costs and other fees associated with judicial proceedings to allow an indigent person to proceed
in forma pauperis
inferences and presumptions that tend to establish a fact or issue
indirect evidence
appellant’s brief filed in support of issues raised in appellate court
initial brief
petition or complain filed to initiate a proceeding in a judicial tribunal
initial pleading
a court order prohibiting someone from doing some specified act or commanding someone to undo some wrong or injury
injunction
written questions put to a witness
interrogatories
dismissal of a law action based on legal grounds
involuntary dismissal
a meeting of judges to deliberate on disposition of a case
judicial conference
the act of a court recognizing, without proof, the existence of certain facts that are commonly known. Such facts are often brought to the court’s attention through the use of a calendar or almanac.
judicial notice
geographical area within which, subject matter with respect to which, and the persons over whom a court can properly exercise its power
jurisdiction
a judge’s explanation of the law applicable to a case being heard by a jury
jury instructions
a judicial proceeding to determine a defendant’s guilt or innocence conducted before a body of persons sworn to render a verdict based on the law and the evidence presented
jury trial
appellate court makes law by interpreting or reinterpreting a constitutional or statutory provision
lawmaking
a state law authorizing service of process on a nonresident defendant as a basis for the court’s jurisdiction. To be constitutional applied, the defendant must have had minimal contacts within the state where the court is to acquire jurisdiction
long-arm statutes
“We command.” A judicial order or writ commanding a public official or an organization to perform a specified non-discretionary duty
mandamus
privilege of married persons not to be compelled to testify against one another
marital privilege
trial terminated due to misconduct, procedural error or a “hung jury”
mistrial
formal request made to a court of law to convene another hearing in a case in which the court has already ruled
motion for rehearing
formal application to courts to obtain an order or grant some relief to the movant
motions
a token amount awarded to a plaintiff who proves the defendant liable but fails to prove actual damages
nominal damages
document filed notifying an appellate court of an appeal from a judgment of a lower court
notice of appeal
a prosecutor’s or defense lawyer’s initial statement to the judge or jury in a trial
opening statement
the opinion expressing the views of the majority of judges participating in a judicial decision
opinion of the court
verbal presentation made to an appellate court in an attempt to persuade the court to affirm, reverse, or modify a lower court decision
oral argument
writs issued by a court in an original, as opposed to an appellate, proceeding. Include mandamus, prohibition, quo warranto, and habeas corpus
original writs
compromises arrived at between parties that result in dismissal of cases before formal trials occur
out-of-court settlements
persons involved in court actions; persons who enter contracts
parties
opinion rendered “by the court” as distinct from on attributed to one or more judges
per curiam opinion
objection to the selection of a prospective juror in which the attorney making the challenge is not required to state the reason for the objection
peremptory challenges
service of legal process by delivery to the named person
personal service
person who brings a petition before a court of law
petitioner
party initiating legal action; complaining party
plaintiff
results of lie detector tests (generally inadmissible)
polygraph evidence
evidence that has greater weight that countervailing evidence
preponderance of the evidence
meeting of attorneys and the trial judge in advance of a jury trial to define issues, stipulate as to evidentiary exhibits, estimate the time required for trial and discuss other details concerning the trial
pretrial conference
confidential communications that persona are not required to disclose in court proceedings
privileged communication
provision of law forbidding a particular form of conduct
prohibition
a court order protecting a person from whom discovery is sought prior to trial from annoyance, oppression, or undue expense in complying with demands of a party seeking discovery
protective order
a sum of money awarded to the plaintiff in a civil case as a means of punishing the defendant for wrongful conduct
punitive damages
peremptory challenges to prospective jurors that are based solely on racial animus or racial stereotypes
racially based peremptory challenges
refers to maps, blood samples, x-rays, photos, stolen goods, fingerprints, knives, guns and other tangible items introduced into evidence.
real evidence
a legal presumption that may be refuted by evidence
rebuttal presumption
refutation by an attorney of the opposing attorney’s argument
rebuttal
evidence tending to prove or disprove an alleged fact
relevant evidence
to send back, as from a higher court to a lower court for the latter to take specified action in a case or to follow proceedings designated by the higher court
remand
a brief submitted in response to an appellee’s answer brief
reply brief
books that are a party of the National Reporter Series that contain judicial decision and accompanying opinions, for example, the Supreme Court Reporter Series that includes Supreme Court decisions; other regional reporters contain decisions of federal and state decisions
reporters
set aside a decision on appeal
reverse
US Supreme Court rule whereby the Court grants certiorari only on the agreement of at least four justices
rule of four
rules that govern the introduction of evidence in courts
rules of evidence
isolation of jurors (usually in a high-profile criminal case) from contact with the general public until a trial jury has reached a verdict
sequestration of the jury
compensation awarded by a court to reimburse a plaintiff four out-of-pocket losses sustained as a result of a defendant’s actions. In a typical tort action, include compensation for medical expenses and loss of wages
special damages
A jury verdict with the jury answering specific questions as to its findings on issues posed by the court
special verdict
counsel’s objection to a question posed to a witness by opposing counsel where a specific reason is given for the objection, for example, calls for hearsay
specific objection
a court-imposed requirement that a party perform obligations incurred under a contract
specific performance
exceptions to the hearsay rule of evidence. Statements made describing or explaining an event while the declarant is perceiving the event or immediately after; or a statement relating to a startling event made while the declarant was under stress caused by the event
spontaneous or excited utterance
a significant legal question pertaining to the US Constitution, a federal statute, treaty, regulation, or judicial interpretation of any of the foregoing
substantial federal question
any form of service of process other than by personal service, such as service by mail or by publication in a newspaper
substituted service
a decision rendered by a trial court without extended argument where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law
summary judgment
a court order requiring a person to appeal in court to answer a criminal charge
summons
evidence received by a court from witnesses who have testified under oath
testimonial evidence
where a defendant in a civil suit makes a third party an additional defendant in the litigation. Basis is the allegation that such party is or may be liable to the defendant for all or part of the plaintiff’s claim against the defendant
third-party practice
group of citizens from whom a jury is chosen in a given case
venire
location of a trial or hearing
venue
“To speak the truth.” The process by which prospective jurors are questioned by the counsel and/or the court before being selected to serve on a jury
voir dire
order from a higher court directing a lower court to send up the record of a case for appellate review
writ of certiorari
