Legal Terms Chapter 4 - Defensive Pleadings in Civil Trials

Question 1

Fraud

Answer 1

A misrepresentation of a material, existing fact, knowingly made, that causes someone reasonably relying on it to suffer damages; also called deceit.

Question 2

Demurrer

Answer 2

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.

Question 3

Nonsuit

Answer 3

The termination of an action that did not adjudicate issues on the merits.

Question 4

Adjudicating

Answer 4

Determining finally by a court.

Question 5

Sustains

Answer 5

Supports.

Question 6

Overruled

Answer 6

Annulled, made void, or not sustained.

Question 7

Motion

Answer 7

A written or oral request to the court for a certain action to be taken.

Question 8

Recuse

Answer 8

Disqualify.

Question 9

Motion for recusal

Answer 9

A request that a judge disqualify himself or herself from a case because of bias or prejudice.

Question 10

Party to a suit

Answer 10

A person or organization participating or having a direct interest in a legal proceeding.

Question 11

Motion to dismiss

Answer 11

A motion made by the defendant asking the court to dismiss the case.

Question 12

Motion for a more definite statement

Answer 12

A motion by a party, when a pleading is vague. asking the court to order the other party to make a more definite statement.

Question 13

Motion to strike

Answer 13

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.

Question 14

Motion for judgment on the pleadings

Answer 14

A motion by either party for a judgment in that party’s favor based solely on information based in the pleadings.

Question 15

Motion for summary judgment

Answer 15

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.

Question 16

Dismissal

Answer 16

An order disposing of an action without a trial of the issues.

Question 17

Dismissal without prejudice

Answer 17

A dismissal where the plaintiff is allowed to correct the error and bring another action on the same claim.

Question 18

Dismissal with prejudice

Answer 18

A dismissal in which the plaintiff is barred from bringing another action on the same claim.

Question 19

Misnomer

Answer 19

Mistake in name.

Question 20

Summary judgment

Answer 20

Immediate decision by the court, without going to trial, based on the papers filed by the parties.

Question 21

Avoid

Answer 21

Annul, cancel or make void. To get out of a voidable contract or repudiate; also called disaffirm.

Question 22

Default judgment

Answer 22

This judgment is entered on failure of a party to appear or plead at the proper time.

Question 23

Breach of contract

Answer 23

The failure of a party to a contract to carry out the terms of the agreement.

Question 23

Deposition

Answer 23

The transcribed testimony of a witness, given under oath and in anticipation of an eventual trial, but not in open court.

Question 23

Affirmative defense

Answer 23

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.

Question 24

Waiver

Answer 24

Voluntary relinquishment of a known privilege or right.

Question 25

Counterclaim

Answer 25

A claim that the defendant has against the plaintiff.

Question 26

Negligence

Answer 26

The failure to use that amount of care and skill that a reasonably prudent person would have used under the same circumstances and conditions.

Question 27

Reply

Answer 27

The plaintiff’s answer to the defendant’s counterclaim.

Question 28

Compulsory counterclaim

Answer 28

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.

Question 29

Permissive counterclaim

Answer 29

If the defendant’s counterclaim is not related to the event that caused the original suit.

Question 30

Cross-claim

Answer 30

A claim brought by one defendant against another defendant in the same suit.

Question 31

Cross-complaint

Answer 31

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.