Legal Terminology - Civil Process Flashcards
Estate
All the property left by someone who has died.
Civil Law
A violation of civil law does not directly harm the community; the person harmed sues the violator
Court
The tribunal or forum where the trial occurs, as well as the judge himself. The judge is the trier of law at the trial
Liable
Legally responsible.
Damages
An amount of money paid to atone for injury or economic loss.
Doctrine
A legal concept generally accepted by most courts which, although not often law, offers guidance to the court. Legislatures will sometimes codify, or make into law, a popular doctrine.
Joint and Several Liability
When multiple defendants may be found liable as a group (jointly) or separately (several).
Retainer
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.
Appearance
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.
Attorney-of-record
Once an attorney has entered an appearance, he or she is the attorney-of-record in the case.
Venue
The place of trial; the physical location.
Diversity of Citizenship
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.
Plaintiff
The party who initiates the action by filing a complaint, claiming injury or harm.
Statute of Limitations
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.
Summons
Document that informs the defendant that he is being sued and that he has a specific amount of time to respond.
Complaint
The pleading that initiates litigation. Filed by the plaintiff, the complaint contains the general allegations against the defendant. It is served with the summons.
Parties
Individuals or groups involved in a legal action
Cause of Action
A legally valid reason to sue; one of the required elements of a complaint.
Information and Belief
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.”
Defendant
The party against whom a complaint is filed.
Ad Damnum Clause
Element of a complaint that asks for damages; also called “wherefore clause” or “prayer for relief.”
Co-defendants
Multiple defendants in a legal action.
Pleading
A document filed with the court asking the court to take some specific legal action. A motion asks the court to rule on a procedural matter. A pleading states a party’s position in a legal action.
Allegation
A fact claimed by a party.
Jury Trial
A jury is a group of citizens selected from the community to determine the outcome of a case. In most cases, either party has the right to demand a jury trial, but if both parties agree, the judge may act in place of the jury. This is most common in very technical cases, such as complex contract situations.
Filed
A document is filed when it is presented to the clerk of the court. All documents and any copies are date stamped by the clerk of the court at the time of filing.
Service or Served
The presentation of legal papers.
Service of Process
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).
Personal Service
Service of legal papers upon an individual, as opposed to a business or registered agent.
Process Server
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.
Affidavit
A written statement of fact sworn to under oath.
Affiant
One who signs an affidavit.
Attest
To swear.
Notary Public
A person authorized to administer the oath and to verify that an individual signs a legal document.
Jurisdiction
Authority of a court to hear and decide a case.
In Personam Jurisdiction
Jurisdiction over a person.
In Rem Jurisdiction
Jurisdiction over the controversy, often property.
Quasi In Rem Jurisdiction
Jurisdiction over property, even though the property is not the controversy.
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.
Lien
Attachment to the title of a piece of property preventing its sale until a previous financial obligation has been satisfied.
Rules of Court
Laws that govern the procedures of trials.
Answer
The pleading filed by the defendant in response to the allegations contained in the complaint.
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.
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.
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.
Third-party Complaint
Pleading where a defendant sues someone not yet a party to the action.
Reply
This pleading is the plaintiff’s response to a defendant’s counterclaim.
Default Judgment
A judgment by the court in favor of the plaintiff, based on the fact that the defendant failed to respond in a timely fashion.
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.
Litigation
The process of asking a court of law to decide the outcome of a dispute, a lawsuit.
Contest
To challenge.
Discovery
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.
Interrogatories
Written questions to the opposing party that must be answered under penalty of perjury.
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.
Request for Production
A request that documents or other physical items be provided for inspection. Also referred to as Request for Inspection of Property or Production of Documents.
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 as not to be used as a means of intimidation.
Depositions
Oral requests 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.
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) if the document is delivered in person.
Order
An official command by the court, usually demanding that one or both of the parties perform an act.
Hearing
A proceeding in court, where the judge and both parties are present.
Privilege
The right to refuse to testify or to prevent someone else from testifying.
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.
Third-party Defendant
The party against whom the third-party complaint was filed. The defendant in the original complaint becomes the “third-party plaintiff.”
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 made up its mind about the case.
Dismissal without Prejudice
A case is dismissed but may be field again, because the court has not made up its mind about the matter (i.e. “dismissed without prejudice to re-file”).
Trial Brief
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.
Motion for Summary Judgment
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 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.
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.
Pretrial Conference
A meeting between the court and the parties for clarification of procedural matters and to promote settlement.
Stipulation
An agreement between counsel for the parties regarding a fact, issue, or point that will not be disputed at trial.
Settlement Agreement
An agreement to end the litigation for an agreed-upon consideration, usually money.
At Issue or In Issue
A legal question to be answered by the court.
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 and 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 to a shooting.
Oral Evidence
Evidence given orally, also called testimonial evidence.
Physical Evidence
Evidence that can be touched, also called tangible or demonstrative evidence.
Admissible
The evidence that will be allowed to be considered by the jury. The jury will decide whether to believe the evidence.
Docket
The court’s official calendar for trials and hearings to take place in that courtroom.
Set for Trial
To set a date for trial upon which the attorneys, parties, and court agree.
Jury, Jurors
A group of citizens who will be called upon to hear the evidence and render a verdict. The jury is the trier of fact.
Jury Panel
The group from which a jury will be selected.
Voir Dire (Jury)
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.
Bailiff
Court employee who keeps order in the courtroom.
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 alternates. Instead, the parties and judge agree on the number of original jurors and on how many may be dismissed.
Opening Statement
Presentations made by the attorneys at the beginning of a trial, stating the facts they intend to prove during the trial.
Burden of Proof
The degree to which something must be proved at trial. The party making the allegation for claim generally bears the burden of proof.
Preponderance of the Evidence
The burden of proof in civil cases means that it is more likely than not that the party making the claims is believed. The burden of proof in criminal matters is beyond a reasonable doubt, a higher standard.
Rule on 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.
Subpoena
The document issued under authority of the court to compel the appearance of a witness.
Subpoena Duces Tecum
A document issued under authority of the court to compel the appearance of a witness and ordering the witness to provide specific documents.
Objection
A formal challenge by opposing counsel to evidence or questions asked of a witness.
Bench Conference
A discussion between the judge and attorneys, usually conducted at the judge’s bench so the jury cannot hear what is said.
Prejudicial
The tendency to cause bias even where no bias has existed previously.
Probative Value
The value of pursuing an investigative or probing line of questioning.
Preserving the Record
An attorney making statements, or repeating a previous overruled motion, to protect any right to appeal the judge’s ruling at a later point.
Sustain
To affirm an objection.
Competency
Legal capacity to testify. The elements of competency are: 1. Understanding the obligation to tell the truth. 2. Knowledge of the topic of the testimony. 3. Ability to communicate.
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 conducts 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 (some courts do not allow recross examination).
Proximate Cause
The event or point at which a series of incidents begins ultimately resulting in an event with damages.
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 cause of the damages. Negligence generally means an act is accidental, not intentional.
Excuse the Jury
The judge instructs the jury to leave the courtroom temporarily.
Grounds
Reason or reasons.
Relevant
Tending to prove or disprove a fact in issue.
To Strike from the Record
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.
Clerk of Court
The person or persons responsible for the court files and exhibits.
Exhibit
A physical item presented to support an argument.
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.
Resting a Case
When a party is finished presenting evidence, it rests.
Move
To present a motion to the court.
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.
Adjourn
To halt temporarily, but not end, the trial.
Prima Facie 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 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.
Take Under Advisement
The court delays a ruling on a motion so that the motion may be considered.
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.
Qualify
To establish a witness’s expertise in a specific area.
Voir Dire (Witness)
To question a potential witness to determine his or her competency or the appropriateness of his or her testimony.
Closing Argument
Each attorney addressing the jury or the court at the end of the trial, attempting to persuade prior to deliberations.
Jury Instructions
Guidelines to the jury about how the law is to be applied, and the facts that may be considered, during its deliberations
Deliberations
A jury’s discussion of the case, in private, following the trial, with the goal of rendering a verdict.
Verdict
The final conclusion of the jury.
Foreperson
The member elected by the jury to lead the deliberations and speak for the jury.
Motion for Judgment NOV
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.
Judgment
The final decision 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.
Additur
When the judge adds to the amount a jury has awarded. 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.
Remittitur
The process whereby a judge subtracts from the amount of damages a jury has awarded. In effect, the judge gives the party awarded the damages the choice of either accepting a lesser amount, or a new trial will be granted to the other side. (The inverse of additur.)
Motion for 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, fulfilling the obligation to exhaust all available remedies.
Appeal
To ask the court at the next higher level to determine whether the trial court erred.
Appeal as a Matter of Right
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.
Waive
To give up a right. A waiver may be either voluntary or the result of an action, or inaction, by the party.
Stay
To delay the implementation of a court’s order.
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 other parties involved in the action. A party has the automatic right to one appeal to the next highest court.
Bond on Appeal
A sum of money held by the court to ensure that the funds from the award will be available after the appellate process.
Res Judicata
Doctrine stating that a case that has been decided on its merits may not be re-litigated.
To Bar
To prevent or stop.
Appellant or Petitioner
The party initiating an appeal.
Appellee or Respondent
The party responding to an appeal.
Record
The official collection of all pleadings, exhibits, motions, orders, and transcript of the trial.
Transcript
The word-for-word typed record of what occurred at trial.
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.”
Points of Error
The questions that are the basis for the appeal. Also called “issues on appeal,” these questions point to potential errors of the trial court.
Response Brief
A written answer to the appellate brief.
Oral Argument
An oral presentation to an appellate court. The party must request an oral argument; that request is not always granted.
Panel of Justices (or Judges)
The portion of an appellate-level court that hears a case. Usually, a panel is made up of three judges.
En Banc
When the entire appellate level court sits to hear and decide a case, indicating the case has a high level of importance.
Opinion
Written decision of the court.
Majority opinion
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.
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.
Concurring Opinion
Opinion of one or more judges that agrees with the results of the majority but arrives at that result for different reasons.
Dissenting Opinion
Opinion that disagrees with the majority opinion.
Petition
To make a formal request to the court. Alternate meaning: Some states refer to complaints as petitions depending on the type of action filed.
Rehearing
A second chance to present arguments to the court on the same issues.
Petition for Writ of Certiorari
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 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. This is frequently referred to as a petition for writ of cert.
Interlocutory Appeal
An appeal during or before trial. While a regular appeal asks the court to review the final decision of the court, an interlocutory appeal asks the court to rule on a single procedural issue, usually a ruling by the trial court regarding the admission of evidence. The party wanting to engage in an interlocutory appeal must ask the trial court’s permission to do so.
Impeach
When an attorney asks questions of a witness aimed at discrediting that witness’s earlier given testimony. Note that an attorney is usually prevented from attempting to impeach his or her own witness.
Motion in Limine
This is a motion requesting that information which might be prejudicial not be allowed to be heard in a case.
