Legal Terms (Part 2) Flashcards
- A court-issued writ that commands a person to appear at a certain time and place to do something demanded in the writ, or to show cause for not doing so. 2. A reference to a legal precedent or authority (such as a case, statute, or treatise) to support a given position. Also termed cite.
citation
A judicial proceeding brought to enforce, redress, or protect a private or civil right; a noncriminal case.
civil action
- One of the two prominent legal systems in the Western World, originally administered in the Roman Empire and still in effect in continental Europe, Latin America, Scotland, and Louisiana, among other parts of the world. Cf. common law. 2. The body of law imposed by the state, as opposed to moral law. 3. The law of civil or private rights, as opposed to criminal law or administrative law.
civil law
The body of law that governs the methods and practices used in civil litigation, such as the Federal Rules of Civil Procedure.
civil procedure
(usu. pl.) The individual rights of personal liberty guaranteed, e.g., in the U.S., by the Bill of Rights and by the 13th, 14th, 15th and 19th Amendments to the United States Constitution, as well as by legislation such as the Voting Rights Act. X include esp. the right to vote, the right of due process, and the right of equal protection under the law.
civil right
- The aggregate of operative facts giving rise to a right enforceable by a court. 2. The assertion of an existing right; any right to payment or to an equitable remedy, even if contingent or provisional. 3. A demand for money or property to which one asserts a right.
claim
A lawsuit in which a single person or a small group of people represent by their litigation the interests of a larger group. Federal procedure has several requirements for maintaining a X: (1) the class must be so large that individual suits would be impracticable, (2) there must be legal or factual questions common to the class, (3) the claims or defenses of the representative parties must be typical of those of the class, and (4) the representative parties must adequately protect the interests of the class.
class action
The principle that a party cannot take advantage of its own wrong by seeking equitable relief or asserting an equitable defense if that party has violated an equitable principle, such as good faith.
clean-hands doctrine
Such a party is described as having “unclean hands.” Also termed unclean-hands doctrine.
Evidence indicating that the thing to be proved is highly probable or reasonably certain. This is a greater burden than preponderance of the evidence, the standard applied in most civil cases, but less than evidence beyond a reasonable doubt, the norm for criminal trials. X is usu. the standard in cases involving the termination of parental rights.
clear and convincing evidence
- A public official whose duties include keeping records or accounts. 2. A court officer responsible for filing papers, issuing process, and keeping records of court proceedings as generally specified by rule or statute. Also termed clerk of court. 3. A law student or recent law school graduate who assists a lawyer or judge with legal research, writing and other tasks.
clerk
A corporation whose stock is not freely traded and is held by only a few shareholders (often within the same family). The requirements and privileges of close corporations vary by jurisdiction. Also termed closely held corporation.
close corporation
In the sale of real estate, the final transaction between the buyer and the seller, during which the conveyancing documents are concluded and the money and property transferred.
closing
In a trial, a lawyer’s final statement to the judge or jury before deliberation begins, in which the lawyer requests the judge or jury to consider the evidence and to apply the law in her or his client’s favor. Also termed closing statement; summation.
closing argument
A defect or potential defect in the owner’s title to a piece of land arising from some claim or encumbrance, such as a lien, an easement, or a court order.
cloud on title
A complete system of positive law, carefully arranged and officially promulgated; a systematic collection or revision of laws, rules, or regulations. Strictly, a X is a compilation not just of existing statutes, but also of much of the unwritten law on a subject, which is newly enacted as a complete system of law.
code
A supplement or addition to a will, not necessarily disposing of the entire estate but modifying, explaining, or otherwise qualifying the will in some way. When admitted to probate, the X becomes a part of the will.
codicil
Property pledged by a borrower as security for the debt.
collateral
An attack on a judgment entered in an earlier proceeding. A petition for a writ of habeas corpus is one type of X. Cf. direct attack.
collateral attack
An affirmative defense barring a party from relitigating an issue determined against that party in an earlier action, even if the second action differs significantly from the earlier one. Cf. res judicata.
collateral estoppel
Negotiations between an employer and the representatives of organized employees for the purpose of determining the conditions of employment, such as wages, hours, and fringe benefits.
collective bargaining
An agreement between two or more persons to defraud another or to obtain something forbidden by law.
collusion
Courtesy among political entities (such as nations, states, or courts of different jurisdictions), involving esp. mutual recognition of legislative, executive, and judicial acts.
comity
Negotiable instruments collectively, esp. in the form of drafts or notes. Often shortened to paper.
commercial paper
Communication (such as advertising and marketing) that involves only the commercial interests of the speaker and the audience, and is therefore afforded lesser First Amendment protection than social, political, or religious speech.
commercial speech
The act of confining a person in a prison, mental hospital, or other institution.
commitment
- The body of law derived from judicial decisions and opinions, rather than from statutes or constitutions. See case law. 2. The body of law based on the English legal system, as distinct from a civil law system. All states in the United States except Louisiana have the X as their legal system. Cf. civil law.
common law
A marriage that takes legal effect, without license or ceremony, when a couple live together as spouses, intend to be married, and hold themselves out to others as a married couple. X s are permitted in 15 states and in the District of Columbia in the United States.
common-law marriage
Stock that gives the holders the right to vote and to receive dividends after other claims and dividends have been paid (esp. to preferred shareholders). Cf. preferred stock.
common stock
In some states in the United States, property owned in common by spouses as a result of its having been acquired during the marriage by means other than gift or inheritance, each spouse holding a one-half interest in the property. Only nine states in the United States have X systems: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Cf. separate property.
community property
A plaintiff’s own negligence that proportionally reduces the damages recoverable from a defendant. Cf. contributory negligence.
comparative negligence
See actual damages.
compensatory damages
- A basic or minimal ability to do something, qualification, esp. to testify. 2. The capacity of an official body to do something. 3. Admissibility.
competence
The mental ability to understand problems and make decisions. In the context of a criminal defendant’s ability to stand trial, competency includes the capacity to understand the proceedings, to consult meaningfully with counsel, and to assist in the defense.
competency
- The initial pleading that starts a civil action and states the grounds for the court’s jurisdiction, the plaintiff’s claim, and the demand for relief. In some states in the United States, this pleading is called a petition. Cf. answer. 2. In criminal law, a formal charge accusing a person of an offense. Cf. indictment; information.
complaint
A judicial deduction made on a showing of certain facts, no further evidence being required; a legal inference mandated by the evidence. Cf. finding of fact.
conclusion of law
A presumption that cannot be overcome by any additional evidence or argument. Also termed irrebuttable presumption. Cf. rebuttable presumption.
conclusive presumption
- A vote cast by a judge in favor of the judgment reached, often on grounds differing from those expressed in the majority opinion explaining the judgment. 2. A separate written opinion explaining such a vote. Also termed concurring opinion.
concurrence
Two or more overlapping periods of jail time to be served simultaneously. For example, if a defendant receives X of 5 years and 15 years, the total amount of jail time is 15 years. Cf. consecutive sentences.
concurrent sentences
The determination and declaration that certain property (esp. land) is taken for public use, subject to reasonable compensation; the exercise of eminent domain by a governmental entity. See eminent domain.
condemnation
- A stipulation or prerequisite in a contract, will, or other instrument. 2. A future and uncertain event on which the existence or extent of an obligation or liability depends; an uncertain act or event that triggers or negates a duty to render a promised performance. For example, if A promises to pay B $500 for repairing a car, B’s failure to repair the car relieves A of the promise to pay. 3. A qualification attached to the conveyance of property providing that, if a particular event does or does not take place, the estate will be created, enlarged, defeated, or transferred.
condition
An act or event, other than a lapse of time, that must exist or occur before a duty to perform a promised performance arises. If the condition does not occur and is not excused, the promised performance need not be rendered. The most common condition contemplated by this term is the immediate or unconditional duty of performance by a promisor.
condition precedent
A condition that, if it occurs, will bring something else to an end; an event the existence of which, by agreement of the parties, operates to discharge a duty of performance that has arisen.
condition subsequent
A criminal suspect’s admission of guilt, usu. in writing and often including a disclosure of details about the crime.
confession
- A real or apparent incompatibility between one’s private interests and one’s public or fiduciary duties. 2. A real or apparent incompatibility between the interests of two of a lawyer’s clients, such that the lawyer is disqualified from representing both clients if the dual representation adversely affects either client or if the clients do not consent.
conflict of interest
- A difference between the laws of different states or countries in a case in which a party has acquired rights within two or more jurisdictions. 2. The body of jurisprudence that undertakes to reconcile such differences or to decide what law is to govern in those situations; the principles of choice of law.
conflict of laws
The Sixth Amendment provision of the U.S. Constitution guaranteeing a criminal defendant’s right to cross-examine any witness.
Confrontation Clause
Two or more periods of jail time to be served in sequence. For example, if a defendant receives X of 20 years and 5 years, the total amount of the jail time is 25 years. Also termed cumulative sentences. Cf. concurrent sentences.
consecutive sentences
A person appointed by the court to manage the estate or affairs of someone who is legally incapable of doing so.
conservator
Something of value (such as an act, a forbearance, or a return promise) received by one party to a contract from the other party. X, or a substitute such as promissory estoppel, is necessary for a contract to be enforceable.
consideration
An agreement by two or more persons to commit an unlawful act; a combination for an unlawful purpose. In criminal law, X is a separate offense from the crime that is the object of the X.
conspiracy
The body of law deriving from the constitution of a nation or a state (e.g., the United States Constitution or a state constitution) and dealing primarily with governmental powers and civil rights and liberties.
constitutional law
