Legal Terms Chapter 4 - Defensive Pleadings in Civil Trials Flashcards
Fraud
A misrepresentation of a material, existing fact, knowingly made, that causes someone reasonably relying on it to suffer damages; also called deceit.
Demurrer
A pleading available to the defendant to attack the plaintiff’s complaint by raising a point of law, such as the failure of the complaint to state a cause of action on which relief can be granted; infrequently used.
Nonsuit
The termination of an action that did not adjudicate issues on the merits.
Adjudicating
Determining finally by a court.
Sustains
Supports.
Overruled
Annulled, made void, or not sustained.
Motion
A written or oral request to the court for a certain action to be taken.
Recuse
Disqualify.
Motion for recusal
A request that a judge disqualify himself or herself from a case because of bias or prejudice.
Party to a suit
A person or organization participating or having a direct interest in a legal proceeding.
Motion to dismiss
A motion made by the defendant asking the court to dismiss the case.
Motion for a more definite statement
A motion by a party, when a pleading is vague. asking the court to order the other party to make a more definite statement.
Motion to strike
A motion asking the court to order the other party to remove from a pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.
Motion for judgment on the pleadings
A motion by either party for a judgment in that party’s favor based solely on information based in the pleadings.
Motion for summary judgment
A motion that may be made when all of the papers filed in a case show that there is no genuine issue of fact and that the party making the motion will win the case as a matter of law.
Dismissal
An order disposing of an action without a trial of the issues.
Dismissal without prejudice
A dismissal where the plaintiff is allowed to correct the error and bring another action on the same claim.
Dismissal with prejudice
A dismissal in which the plaintiff is barred from bringing another action on the same claim.
Misnomer
Mistake in name.
Summary judgment
Immediate decision by the court, without going to trial, based on the papers filed by the parties.
Avoid
Annul, cancel or make void. To get out of a voidable contract or repudiate; also called disaffirm.
Default judgment
This judgment is entered on failure of a party to appear or plead at the proper time.
Breach of contract
The failure of a party to a contract to carry out the terms of the agreement.
Deposition
The transcribed testimony of a witness, given under oath and in anticipation of an eventual trial, but not in open court.
Affirmative defense
A defense in criminal and civil litigation that admits the plaintiff’s allegations, but introduces another fact that avoids liability; also called confession and avoidance.
Waiver
Voluntary relinquishment of a known privilege or right.
Counterclaim
A claim that the defendant has against the plaintiff.
Negligence
The failure to use that amount of care and skill that a reasonably prudent person would have used under the same circumstances and conditions.
Reply
The plaintiff’s answer to the defendant’s counterclaim.
Compulsory counterclaim
The the defendant wishes to bring a claim that arises out of the same transaction or occurrence as that of the plaintiff’s suit, the venue is correct, and the court has jurisdiction.
Permissive counterclaim
If the defendant’s counterclaim is not related to the event that caused the original suit.
Cross-claim
A claim brought by one defendant against another defendant in the same suit.
Cross-complaint
In the State of California, this pleading is used in place of counterclaim and cross-claim; it can be used by a defendant against another defendant, a third party, or the plaintiff in the same action.
