Civil Procedure Vocab Flashcards
Acknowledgment of service
Acknowledgment of service: in the United Kingdom the defendant should file this document to show he intends to defend. If he does not do this, he has less time in which to serve his defence on the claimant
Administrative agencies
Administrative agencies: public bodies to which certain administrative powers have been delegated.
Admissible
Admissible: evidence is admissible if it is allowed to be brought before the court
Adversarial proceedings
Adversarial proceedings: this is an accusatorial procedure, as the opposing parties are responsible for finding and presenting evidence.
Affidavit
Affidavit: a written, sworn statement of evidence. They have a form almost identical to that of witness statements. However, they must be sworn before someone authorised to take oaths and fees are payable, which distinguishes these from the more informal witness statements. There are a limited number of situations in which affidavits must be used
Affirmative defence
Affirmative defence: term used in the United States where the defendant does not deny the allegations but argues that there is some reason why the plaintiff’s claim should fail, for example, the claim is barred by the statute of limitations.
American rule
American rule: is that the parties pay their own costs, whether they win or lose. There are only a few statutory exceptions
Answer
Answer: document filed by the defendant in the United States in response to the plaintiff’s complaint
Appeal
Appeal: the losing party appeals to a higher court for a review of the decision reached by the lower court
Appellant
Appellant: the party bringing an appeal is known as the appellant
Appellate court
Appellate court: an appellate court acts as a court of second instance, hearing the issues afresh, whether of fact or law or both. It may substitute its decision for that of the court of first instance. Note, however, that although reference is made to the term appeal in the United States, the function of the American appellate courts more often resembles that of the civil law courts of cassation
Assessment of costs
Assessment of costs: formerly called taxation of costs in England. There are specific rules for evaluating the costs of an action
Attachment
Attachment: in the American sense of the word, it is a writ authorising a pre-judgment lien on money or other personal property, which will be held until the final
decision in the case at issue
Attachment of earnings
Attachment of earnings: English court order requiring an employer to pay the judgment creditor from the earnings of the judgment debtor. In the United States, this is referred to as garnishment, although garnishment can be pre-judgment.
Bailiff
Bailiff: a bailiff is a person with the legal authority to collect certain debts
Balance of probabilities
Balance of probabilities: concept in the law of evidence relating to the standard of proof in civil cases in England. The claimant must establish some reponderance of probability in his favour
Briefs
Briefs: the term used in the United States for documents that may be drawn up by the plaintiff and defendant for use during a trial is trial briefs. Briefs used by the appellant and the appellee for the purposes of an appeal are called appellate briefs. In England, the word brief refers to instructions given by a solicitor to a barrister concerning the details of a client’s case.
Burden of proof
Burden of proof: in general, it is the claimant who must prove all of the elements required for his claim against the defendant. If he cannot do so, then the court must
find for the defendant. There are certain circumstances in which the burden of proof may shift to the defendant, for example, where the presumption of res ipsa loquitur arises in negligence claims
Case management
Case management: the judge makes sure that the claim is clear, the issues in dispute have been identified and that all agreements that can be reached between the parties about the issues involved have been reached. At the case management conference, the judge gives directions and fixes a date for the trial
Cassation
Cassation: a court of cassation is only competent to make a decision upon a point of law. In the English system there are no courts of cassation as such, as the appellate courts have the right to hear issues of fact and law
Charging order
Charging order: this order can be granted over the judgment debtor’s land, as the writ of control or warrant of control is only for goods owned by the judgment debtor.
Claimant
Claimant: the one bringing an action is now referred to as a claimant in English proceedings and the term plaintiff is no longer in use under the new civil procedure rules.
Claim form
Claim form: the usual way of commencing proceedings in England, replacing the former use of writs in the High Court.
Class action
Class action: is used in the United States to bring a lawsuit on behalf of a whole group of individuals who have been affected. Instead of a multitude of individual lawsuits arising from the same issues, the matter is resolved by combining the class. One or several named plaintiffs sue on behalf of a large group who are not formally named in the suit. Class actions can be brought for either money damages or an injunction or both. Individual class members must be notified that a case is pending and have the right to ‘opt out’ and bring their own action. A class action cannot be settled by the parties without the approval of the court.
Complainant
Complainant: term used in the United States for one bringing an action, although the term plaintiff is often used synonymously and is the more usual term
Complaint
Complaint: in the United States proceedings are commenced by the plaintiff filing a document called a complaint.
Compulsory counterclaim
Compulsory counterclaim: term used in the United States for a counterclaim that arises from the plaintiff’s original claim against the defendant, in other words, from the same transaction. A permissive counterclaim is one that does not arise directly from the present claim. This may have to be re-filed, for example, in the appropriate state court.
Conditional fee
Conditional fee: the English version of the American contingency fee, which is based on a no win, no fee approach to litigation. The conditional fee agreement usually provides for a ‘success fee’ in addition to the basic charge
Contempt of court
Contempt of court: this may take various forms, such as failing to pay proper respect to the court or not carrying out a court order
Contingency fee
Contingency fee: American term where the attorney has entered into an agreement with his client that he will only receive his fee if he wins
Cost-shifting rule
Cost-shifting rule: English rule stipulating that whoever loses the case has to pay not only his own costs, but also the costs of the other side
Counterclaim
Counterclaim: a claim brought by a defendant in response to the claimant’s claim in the same proceedings.
Cross-claim
Cross-claim: document filed in American courts where a claim is brought by one joint party against another joint party
Cross-examination
Cross-examination: questioning of a witness by a party that has not called the witness, with respect to the witness’s testimony during the examination-in-chief.
Damages
Damages: financial compensation awarded to a claimant by the court.
Defence
Defence: in the United Kingdom, a document produced by the defendant in response to the claim form
Defendant
Defendant: the one against whom the claim is brought
De novo
De novo: Latin term used in the United States to describe the process by which a case is heard afresh. The findings and judgment of the trial court need not be taken into account by the appeal court, as the case is heard as if it has not been heard before.
Deposition
Deposition: prior to the trial itself, the witness gives evidence before an examiner and he may be cross-examined as if it were the trial itself. The evidence so given is then reduced to writing, or recorded in an audio-visual form, and is put into evidence at
the trial. This is called a deposition and the one giving evidence in this way is referred to as the deponent. In the United States it is not usually the case that an examiner will be present, just the party being examined and the lawyers
Disclosure
Disclosure: in English procedural law disclosure is defined as ‘stating that a document exists or has existed’. The court can impose a duty on all parties to disclose documents relevant to the issues in dispute. Standard disclosure requires the disclosure of any document that a party intends to make use of at trial: documents that adversely affect the party’s own case or another party’s case; documents that support another party’s case; or documents that must be disclosed because of a practice order. Standard disclosure is achieved by making a list of said documents available to the other party. This process was formerly referred to as discovery. There is, in general, a right to inspect a disclosed document.
Discovery
Discovery: the American term for a pre-trial procedure by which one party gains information held by another party. The term discovery is quite broad as used in federal civil procedure and covers varying sorts of material, such as facts, deeds and documents.
Document
Document: defined in English proceedings as anything in which information of any description is recorded.
Endorse
Endorse: where the particulars of claim are written on the claim form itself, rather than served as a separate legal document, the claim form is said to be endorsed.
Equitable receivership
Equitable receivership: will only be ordered if the other methods of enforcement are not possible or are unsuitable. The receiver has the right to demand payment from rent due to the judgment debtor from his tenants, income from a trust fund, a legacy or payment from the sale of land.
Evidence
Evidence: there are four main types of evidence: oral evidence given by witnesses during the trial; real evidence of a physical nature; documentary evidence and circumstantial evidence, the latter being evidence that can be inferred from the facts.
Evidence-in-chief
Evidence-in-chief: the evidence given by a witness for the party who called him.
Examination-in-chief
Examination-in-chief: is the term given in England to direct examination (US term), where counsel calls a witness to support his client’s version of events.
Expert opinion
Expert opinion: evidence given by a witness who is a specialist in a certain subject.
Fast track
Fast track: this is the track used for claims for a value above that for small claims but less than that for multi-track claims. It will usually be heard in the County Court.
File
File: a document is filed if it is delivered, by post or otherwise, to the court office. It may have to be re-filed if it was not submitted to the appropriate court.
Freezing injunction
Freezing injunction: order of an English court to stop a party removing or disposing of assets before trial.
Garnishment
Garnishment: term still used in the United States where a writ of garnishment allows the judgment creditor to seize the property of the judgment debtor which is in the possession of a third party. In certain cases there may be pre-judgment garnishment.