Section A Flashcards
Estate
All property left by someone who has died.
Civil Law
A violation that does not directly harm the community; the person harmed sues the violator. Question of liability.
Court
The tribunal or forum where the trial occurs, as well as the judge (trier of law).
Liable
Legally responsible.
Damages
Amount of money paid to atone for injury or economic loss.
Doctrine
A legal concept generally accepted by most courts (although often not law), that offers guidance to the court.
Joint and Several Liability
When multiple defendants may be found liable as a group (jointly) or seperately (several).
Retainer
Money paid to an attorney to secure services; the contract between an attorney and client.
Appearance
An attorney acts on behalf of a client in court. Either in person in front of a judge, or the filing of a document.
Attorney-of-Record
Once an attorney has entered an appearance, they are the attorney-or-record on a case.
Venue
The physical location of the trial.
Diversity of Citizenship
A federal court hears a case based on the fact that parties are in different states and the amount of monet claimed as damages exceeds a minimum set by federal statute ($75,000).
Plaintiff
The party who initiates the action by filing a complain, claiming inhury or harm.
Statute of Limitations
The time limit for filing a suit. After the time limit, it will be dismissed. Time starts at the time the damages occur.
Summons
Document that informs the defendant that they are being sued and that they have a specific amount of time to respond.
Complaint
The pleading that initiates litigtion. Filed by the plaintiff, contains general allegations against the defendant. Served with the summons.
Parties
Individuals or groups involved in a legal action.
Cause of Action
Legally valid reason to sue (a required element of a complaint).
Information and Belief
Qualified statement as being a fact only to the best knowledge of the person making the statement. “This is what I believe happened.”
Defendant
The party against whom the complaint is filed.
Ad Damnum Clause
Element of the complaint that asks for damages (where clause; prayer for relief).
Co-Defendants
Multiple defendants in a legal action.
Pleading
Documents filed with the court asking the court to take some specific legal action.
Allegation
A fact claimed by a party.
Jury Trial
Jury: a group od citizens selected from the community to determine the outcome of a case (trier of fact). Either party has the right to demand a jury trial; if both parties agree, the judge may act in place of the jury.
Filed
Document presented to the clerk of the court. Documents and copies are date stamped at the time of filing
Service (Served)
The presentation of legal papers.
Service Process
Process: Summons and complaint. The delivery of the summons and complaint unpon the defendant in a court action. Usually done in person. In some circumstances done by mail, publishing a notice, or by a serving compant. Service of a business is often accomplished by serving a registered agent (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 permitted by law to serve legal documents (must be at least 18 and not a party to the action).
Affidavit of Service
Document attests to the fact that someone has been presented with legal documents. (Proof of Service, Return of Service).
Affidavit
Written statement of fact sworn under oath.
Affiant
One who signs an affidavit.
Attest
To swear.
Notary Public
Person authorized to administer the oath an 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
Jurisduction over property, even though the property is not the controvery.
Lis Pendens
Attachment to the title of a piece of property notifying any potential purchesers 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
Pleading filed by the defendant in response to the allegations contained in the complaint.
Affirmative Defense
Admission that a specific act did occur, arguing that the fault lies now 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 is whether the defendant is alleging damages.
A pleading.
Cross Claim
Claim by one defendant against a co-defendant.
One form: When one original defendant sues another original defendant;
Third-party complaints are also cross claims.
Third-Party Complaint
Pleading where a defendant sues someone not yet a party to the action.
A type of cross claim.
Reply
Pleading is the plaintiff’s response to the defendant’s counterclaim.
Default Judgment
Judgment by the court in favor of the plaintiff, based on the fact that the defendant failed to respond in a timely manner.
Motion
A request that the court take a specific procedural step (act as a request for an order).
Litigation
Process of asking a court of law to decide the outcome of a dispute (a lawsuit).
Contest
To challenge.
Discovery
Method whereby one party obtains relevant information on a case from the other party.
Attempts to even the playing field between parties by exposing relevent facts.
Between parties and does not directly involve the court. Certificate of Mailing for each document is often filed.
Discovery: Interrogatories
Written questions to the opposing party that must be answered under penalty of perjury.
“Describe the events leading to the accident.”
Discovery: Request for Admission
Written statements the opposing party must admit or deny under penalty of perjury.
Failure to respond within a specific period of means means that the statements are assumed to be admitted.
“Admit or deny you had been drinking alcohol shortly before the accident.”
Discovery: Request for Production
A request that documents or other physical items be provided for inspection.
“Please produce any and all receipts for xx on xx date.”
Discovery: Request for Mental or Physical Examination
Request that the other party be subjected to an examination. May require court approval to avoid intimidation.
Discovery: Deposition
Oral questions that must be answered under oath.
Take place out of court, with a court reporter transcribing the testimony.
Attorneys from both sides must be present with the opportunity to ask questions.
Can take place for the purpose of questioning the opposing party for witnesses.
Certificate of Mailing; Certificate of Service.
When a document is filed with the court of when discovery is sent to a party, a certificate of mailing is usually attached.
Attests that the true and correct copy of the document was sent to all parties in the litigation.
Should be signed by the person who places it in the mail.
Often returned with a receipt of copy (ROC).
Order
Official command by the court, usually demanding that one or both parties perform an act.
Hearing
A proceeding in court, where the judge and both parties are present.
Privilege
Right to refuse to testify or to prevent someone else from testifying.
Ex Parte Hearing
Hearing at which only one party is present. Not common.
I.e. Mortion for a restraining order.
Third-Party Defendant
Party against whom the third-party complaint was filed. Defendant of the original complaint becomes the third-party plaintiff.
Motion to Dismiss
Asking the court to end a case without going to trial.
Motion to Dismiss: Dismissal With Prejudice
Case is dismissed and may not be brought again because the court has made up its mind about the case.
Motion to Dismiss: Dismissal without Prejudice
Case is dismissed but may be filed again because the court has not made up its mind.
Trial Brief
Trial Memorandum or Points and Anthorities: Document filed with the court to argue a legal issue, relying on law to support the party’s position. Argues only in favor of the client; often filed in support of a motion.
Motion for Summary Judgment
Pretrial motion asking the court to determine the outcome of the case based on pleadings and motions.
Argument: No materials facts in dispute (only law), no need for a jury or trial.
Partual Summary Judgment: a motion to limit the issues that will be dealt with at trial.
Magistrate
Judicial officer who may preside over hearings but does not have all the powers of a judge.
Usually deals with procedural matters.
Pretrial Conference
Meeting between the court and the parties for clarification of procedural matters and to promote settlement.
Stipulation
Agreement between counsel for the parties regarding a fact, issue, or point that will not be disputed at trial.
Settlement Agreement
Agreement to end the litigation for an agreed-upon consideration, usually money.
At Issue, In Issue
Legal question to be answered by the court.
Evidence
That which tends to establish or disprove a fact.
Evidence: Direct Evidence
Tends to establish a fact without the need for inference.
Personal observation.
i.e. Witness who sees a gun fired.
Evidence: Circumstantial Evidence
Requires an inference to establish another fact.
i.e. Witness hears a shot, turns around and sees a man holding a gun.
Evidence: Oral Evidence
Evidence given orally (testimonial evidence).
Evidence: Physical Evidence
Can be touched (Tangible or Demonstrative Evidence).
Admissible
Evidence that will be allowed to be considered by the jury.
Docket
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 attorneys, parties, and court agrees.
Jury, Jurors
A group of citizens selected from the community to determine the outcome of a case (trier of fact).
Jury Panel
Group from which a jury will be selected.
Voir Dire (Jury)
To question prospective jurors.
Challenge for Cause
Method for dismissing a juror for good cause.
Unlimited in number.
Peremptory Challenge
Method of dismissing a juror for which no reason need be given.
Limited in number, commonly three or six.
Bailiff
Keeps order in the courtroom.
Alternate Juror
Sits to hear the entire case with the jury but will not deliberate or vote on a verdict unless a juror is dismissed.
Civil cases in many jurisdictions have no alternate jurors; judge and parties agree on the number of original jurors and how many may be dismissed.
Opening Statement
Presentations made by attorneys at the beginning of the trial, stating the facts they intend to prove during the trial.
Burden of Proof
The degree to which something must be proven at trial.
Generally the party making the allegation.
Preponderance of the Evidence
Burden of proof in a civil case means it is most likely than not a fact is as the party alleges it to be.
Lower standard then “Beyond a Reasonable Doubt.”
Rule on Witnesses
A witness in a case may or may not be in the courtroom during testimony of other witnesses. Mostly in criminal cases, may be used in civil cases at the judge’s discretion.
Subpoena
Document issued under authority of the court to compel the appearence of a witness.
Subpoena Duces Tecum
Document issued under authority of the court to compel the appearence of a witness and ordering the witness to provide specific douments.
Objection
Formal challenge by opposing counsel to evidence or questions asked of a witness.
Bench Conference
Discussion between the judge and attorneys, usually conducted at the judge’s bench so the jury cannot hear what is said.
Prejudicial
Tendency to cause bias even where no bias has existed previously.
Probative Value
Value of pursing an investigative or probing line of questioning.
Preserving the Record
Attorney making statements, or repeating a previously overruled motion to protect any right to appeal at a later point.
Sustain
To affirm an objection.
Competency
Legal capacity to testify. Elements: - Understanding the obligation to tell the truth. - Knowledge of the topic of testimony. - Ability to communicate.
Examination
Questions directed at a witness who is under oath in court or at a deposition.
Direct Examination
The party who called the witness, questioning the witness first.
Cross examination
After direct examination.
The other party’s questioning. Limited to the topics under scope (brought up during direct).
Redirect Examination
Party conducting direct. Questioning to claify matters brought up during cross examination.
Cannot introduce a new line of questioning, limited to matters dicussed during cross.
Recross Examination
Party conducting cross. It limited to matters brought up during redirect examination.
Many courts do not allow recross.
Proximate Cause
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, must have been the proximate cause other damages.
Generally means the act is accidental, not intentional.
Excuse the Jury
Judge instructs the jury to leave the courtroom temporarily.
Grounds
Reasons
Relevant
Tending to prove or disprove a fact in issue.
To Strike from the Record
Have certian testimony removed from the record of the trial. Usually accompanied by an admonition to the jury that, when deliberating, they are not to consider the testimony they just heard.
Clerk of the Court
Person(s) 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 granted, the evidence will be assigned a number or letter and labeled.
Resting a Case
When a party is finished presenting evidence.
Move
Present a motion to the court.
Motion for Directed Verdict
Court is asked to decide the outcome of a case because the plaintiff has failed to establish a prima facie case.
Adjorn
Halt temporarily, but not end, a trial.
Prima Facie Case
As case that is “sufficient on its face.” All facts alleged by the plaintiff are eventually proved true at trial; the plaintiff deserved to be awarded damages. Must exist at all stages of the proceedings from the filing of the complaing through trial. If, at any point, a party can establish a prime facie case does not exist, the case should be dismissed.
Take Under Advisement
Court delays a ruling on a motion so the the motion may be considered.
Expert Witness
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’ expertise in a specific area.
Voir Dire (of witnesses)
Question potential witness to determine competency or the appropriateness of their testimony.
Closing Argument
Each attorney addressing the jury or 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 the deliberations.
“Charge to the Jury.”
Deliberations
Jury’s discussion of the case, in private, following the trial, with the goal of rendering a verdict.
Verdict
Final conclusion of the jury.
Foreperson
Member elected by the jury to lead the deliberations and speak for the jury.
Motion for Judgment NOV
Not Withstanding the Judgment
Motion asking the sourt to disregard the jury’s verdict and replace it with the court’s own verdict.
“Non Obstante Verdicto”
Judgment
The final conclusion of the court.
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 may overturn a guilty verdict in the interest of justice.
Additur
Judge adds to the amount of the award.
The party awarded damages will have the choice between the increased award, or a new trial will be granted to the other side.
Remittur
Judge subtracts from the amount awarded.
Party awarded damages chooses between accpeting a lessor amount or a new trial will be granted to the other side.
Motion for a New Trial
Request that the judge order a new trial because of procedrual errors.
The party must generally file this motion in order to later appeal, fulfilling the obligation to exhaust all availible remedies.
Appeal
To ask the court at the next highest 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 their case heard by the next highest appellate level court in civil court.
Waive
To give up a right. May be voluntary or the result of an action, or inaction, by the party.
Stay
To delay the implemention of a court’s order.
Notice of Appeal
Written notification (motion form) that a party intends to appeal, filed with the trial court. A party has the automatic right to one appeal to the next highest court.
Bond on Appeal
Sum of money held by the court to ensure the funds from the award will be aviliable 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
Party initiating an appeal.
Appellee or Respondent
Party responding to an appeal.
Record
The official collection of all pleadings, exhibits, motions, orders, and transcript of the trial.
Transcript
Word-for-word typed record of what occured at trial.
Appellate Brief
Written argument by a party covering the issues (points of error) on appeal.
By the appellant, is usuually referred to as the “response brief.”
Points of Error
Questions that are the basis for the appeal (issues on appeal), which point to pontential errors of the trial court.
Response Brief
Written answer to the appellate brief.
Oral Argument
Oral presentation to an appellate court.
Party must request an oral argument (not always granted).
Panel of Justices/Judges
Portion of the appellate-level court that hears a case. Usually made up of three judges.
En Banc
When the entire appellate level court sits to hear and decide a case, indicating a high level of importance.
Opinion
Written decision of the court.
Majority Opinion
More than 50% of the court agrees on a decision.
Becomes law until superseded or overturned.
Strongest form of opinion.
Majority Opinion: Affirm
Appellete court agrees with the decision of the trial court.
Majority Opinion: Reverse
Appellate court disagrees with and nullifies the trial court.
Majority Opinion: Modify
Appellate court alters the decision of the trial court.
Majority Opinion: Remand
Appellate court sends the case back to the trial court for further deliberation.
Concurring Opinion
One or more judges agree with the results of the majority but arrive at the result for different reasons.
Dissenting Opinion
Judge(s) disagree with the majority opinion.
Petition
Make a formal request to the court.
Rehearing
A second chance to present arguments to the court on the same issue.
Petition for Writ of Certiorari
Petition for Writ of Cert.
The vehicle by which a case is taken from the court of appeals (state or federal) to the supreme court (state or federal). Is issued by the higher court; if approved will review the case. If denied, the lower court decision stands.
Criminal Law
A violation viewed as harming the community. Penalties include fines, community service, imprisonment.
A question of guilt or innocence.
Prosecution
Briefing of criminal charges against a defendant.
The party presenting the Government’s case at trial.
State/Government
The prosecution.
Warrant
Order from a judicial officer or court authorizing an arrest or a search and seizure of property.
Initial Appearance
First court appearance by the defendant to a criminal charge; informed of the charged, decides bail, sets date for the next court proceeding.
Misdemeanor
Crime punishable by a sentance of less than one year.
Felony
Crime punishable by a sentence of a year or more in prison.
Bail
Money or property deposited with the court to procure the release of a defendant and ensure the appearance of the defendant at trial.
Bail Bond
Written agreement to pay full bail amount to the court if the defendant fails to appear when required.
Personal Recognizance
Defendant is realsed without being required to post bail, on the promise that they will appear in court at designated times.
Assigned Counsel
Attorney who is ordered to represent a defenant, usually because the defendant cannot afford an attorney.
Counsel
Legal representative, attorney.
Nolle Prosequi
Decision of the prosecutor not to prosecute, even though they bleieve there is sufficient evidence to do so.
District Attorney
Prosecutor for the state.
Plead
Delcare a defendant’s position in a criminal trial.
Plea Bargain
Defendant agrees to plead guilty, in return for a reduced sentence.
Nolo Contendere
No contest.
Defendant decides not to contest the charges but does not admit guilt.
May be sentenced as thought he had pleaded guilty.
Preliminary Hearing
Requiring the state to produce sufficient evidence to establish that there is probable cause to believe a crime has been committed by the defendant.
Probable Cause
Reasonable basis to believe that a crime has been committed.
Bound Over
Submitted to, sent.
Grand Jury
Investigatory panel that determines whether probable cause exists to return an indictment.
Indictment
Formal charge by a grand jury alleging a criminal act.
Arraignment
Formal court hearing where the defendant is informed of charges brought and pleads guilty, not guilty, or nolo contendere.
Beyond a Reasonable Doubt
The degree of proof required in a criminal trial, usually requiring unanimous agreement of the jury. Doubt cannot be reasonable; if so, the verdict must be “not guilty.”
Acquit
Find a defendant not guilty.
Adverse Judgment
A judgment against one’s client.
Double Jeopardy
The state cannot re-try a defendant on the same charges once a not-guilty verdict is rendered.
Chain of Custody
Chronological documentation of each person having possession of the evidence (custody) from the point of collection until admission at tial.
Includes controlled transfer, analysis, or otherwise handling. Applies to physical and electronic evidence.
Relevant to both civil and criminal cases.
Full Faith and Credit
(Article IV, Section 1 of the U.S. Consitition) individual states within the U.S. must respect the public acts, records, and judicial proceedings of every other state.
Precedent
A prior case (usually written in court opinion) that a subsequent court may reply upon when deciding a matter with cimilar facts and/or issues.
Stare Decisis
Principle that a court should follow previous court decisions unless there is compelling reason not to.
“Let the decision stand.”
Due Process
Principle that government must safeguard the legal rights owed to a person according to the law, inlcuding notice of proceedings and a chance to he heard prior to the loss of life, liberty, and property.
A constitutional guatantee that a law shall not be unreasonable.
Notice
To provide or gain knowledge of legally relevant information.
