Terms and definitions Flashcards
Abatement
ending of a suit. So-called “pleas in abatement” are not recognized any more, but they could ask you whether the action will “be abated” if a motion is granted for a venue defect (answer: no, it will be transferred, not ended).
Ab initio
“from the beginning,” as in a judgment entered by a court that lacks subject matter jurisdiction is void ab initio.
Ad damnum
rather, the portion of plaintiff’s pleading which specifies the amount of money the suit seeks.
Additur
a rare maneuver in which the trial judge thinks a jury verdict is too low, and tells defendant that unless defendant accepts a higher amount, the trial judge will give plaintiff a new trial.
Assignments of error
in Virginia, every appellant must write out a short summary of each of the errors made in the lower tribunal that appellant claims are grounds for reversal, called assignments of error. The appeal is limited to the exact scope of what is asserted in the assignments.
Bailiwick
the territory in which a sheriff has jurisdiction; usually, a city or county.
Bailment
the cause of action one uses when property is left with someone and is damages. Can be “gratuitous” (no payment, bailee need only use some care) or “compensated” (bailee is liable for negligence, or for departure from the terms of the owner who entrusted the property to him).
Certiorari
in Virginia parlance, certiorari is the proceeding one brings in circuit court to challenge local zoning rulings.
Bill of particulars
Civil discovery device in actions at law only
you move to have the court require the P to spell out more particularly what the motion for judgment is trying to allege (like the federal motion for a more definite statement
Chancery
the old name for the equity side of circuit court.
Chancellor
circuit court judge when hearing an equitable claim, and particularly when presiding at a bench trial.
Collateral estoppel
Issue preclusion. Arises in Virginia where the same parties who previously actively litigated a specific issue and reached a final judgment, are again facing each other in a later case where that fact/issue could have some effect.
Collateral source rule
the doctrine that even if an injured person will receive insurance recoveries he or she may still sue the tortfeasor for personal injuries and property damage plaintiff has suffered. The insurance or other payment is “collateral” to the tortfeasor’s obligation to pay.
Commissioner
usually – a lawyer appointed by the court in an equity suit to hear evidence and make a report recommending how the court should rule. This happens in domestic relations cases, real property cases such as easement disputes, and other “chancery” causes of action. Sometimes a “special commissioner” is appointed to do some act the court requires, such as to convey title, when the parties refuse but the court insists.
Committee
one form of guardian appointed for a person under a disability (e.g., mental cases and convicts). Despite the nomenclature, it’s usually an individual, as in, Mr. DeWayne Shifflett was appointed as the committee for Mr. Counts.
Confession of judgment
a contract term that allows the creditor to simply register a judgment if the debtor falls into default, without even filing a lawsuit(!). It’s constitutional.
Continuance
the case is adjourned to a later date. So it does not continue right now but. . .
Contribution
the equitable cause of action (recognized by statute in Virginia) for one tortfeasor to sue other joint tortfeasors for their share of the liability to the injured party. In Virginia, contribution is “pro rata” (equal shares) rather than proportionate to culpability (not comparative).
Decree
a word sometimes used to refer to the final order or judgment reached in an equitable suit.
Demurrer
the pleading that works in Virginia like a motion to dismiss – it challenges the face of the bill of complaint/motion for judgment and says: if we take all these averments as true, does plaintiff have a viable claim here?
Detinue
the civil action in Virginia to seek recovery of personal property. Remember: don’t use “replevin” in Virginia as the name for this cause of action.
Devisavit vel non
as in, an action devisavit vel non. This is a proceeding to determine whether there is a valid will, which may be heard by the judge, with or without an advisory jury.
Ejectment
the form of lawsuit used when you wish to assert title to real property. “An action for ejectment.”
Eminent domain
synonym for condemnation of property by a government or authorized utility.
Ex Contractu or Ex Delicto
Sorry about this. For bonus points on the exam, use these terms as general references for “all contract type actions” or “tort-type actions”. As in: “for venue purposes, actions ex contractu arise either where the agreement is made, or where it is breached”.
Execution
enforcement of judgments and liens; also, what firms do if you fail the Bar Exam three times running.
Extraordinary writs
habeas corpus (to challenge validity of incarceration), mandamus or prohibition (to order a lower court or official to do something or refrain from acting), coram nobis (asking for a new trial – good luck).
Fieri Facias
known to the bar as “fi fa.” This is the name of the writ directing the sheriff to execute on a judgment or lien.
Forum non convenient
in Virginia this can mean either dismissal of a Virginia case in contemplation that the action will proceed in another state or nation, or a simple transfer to avoid gross inconvenience when plaintiff selects a valid venue but it is terrifically inconvenient.
Garnishment
statutory procedure a creditor may use to force people or entities who owe a debtor money to pay those funds to the creditor, rather than the debtor. Examples: the creditor garnishes wages that would otherwise be paid to the debtor, or a bank account of the debtor.
Laches
there is no “statute of limitations” for equitable claims, but the doctrine of laches is a recognized defense in equity, asking the Chancellor to deem a claim barred by unjustified delay in assertion which prejudiced the defendant’s ability to defend (e.g., a witness died meantime).
Lis Pendens
as in, a notice of lis pendens, being notice that a suit is pending which may affect real property (title, liens, etc.), usually docketed with the clerk of the city or county where property is located.
Misnomer
suing and describing the correct defendant but making a relatively minor (clerical) error in spelling the name of the party. If the correct person gets served and has notice, and the error is minor, plaintiff can amend and the filing date of the original action will be used for statute of limitations purposes rather than the later date when the naming is corrected.
Next Friend
From the French, le prochein ami. Meaning: a competent adult who files suit on behalf of a minor or disabled person (no appointment by the court is necessary).
Nonsuit
the only acceptable term in Virginia to describe plaintiff’s voluntary discontinuance of a lawsuit.
Nuisance
tort action for anything that interferes with an owner/occupier of land’s enjoyment of the premises; see also, the bar exam.
Nunc pro tunc
do it now, as though it was done before. As in, retroactively modifying a payment schedule, or correcting a judgment which had clerical problems expressing the court’s rulings.
Ore tenus
taken orally. As in, the court heard the evidence ore tenus, meaning it heard live witnesses as opposed to receiving affidavits or depositions.
partition
the equitable cause of action where two co-owners or inheritors of property cannot agree on its disposition. If it’s in their best interests, the court should “divide it in kind” if that’s feasible, or require a sale and simply divide the proceeds.
petition for appeal
make sure answer is updated:
after you make a timely notice of appeal within 30 days after the judgment, the “petition for appeal” is a written application within three calendar months after a trial court judgment, seeking to have the Supreme Court of Virginia allow you to appeal a civil case, or the Court of Appeals to hear your criminal conviction appeal. Not needed in domestic relations or workers compensation cases going to the Court of Appeals because (rare in Virginia) those are appeals “of right.”
plea in equity
a single, dispositive factual proposition asserted as a plea in bar in an equity proceeding (that is, as a defense that obviates the claim), as to which there is a right by statute in Virginia for empanelling a jury even though the case is in equity, and the jury’s verdict on a plea in equity is binding.
Praecipe
a notice document in Virginia procedure, served on adversaries and filed, to announce readiness for a proceeding, or notify adversaries of a court date. It’s really a noun, “file a praecipe.” But the in-crowd could make it a verb: “let’s praecipe it for a hearing next Tuesday” (meaning: let’s serve a praecipe notifying them that the motion/trial, etc. will be next Tuesday).
Principal
the main one
principle
the doctrine or tenet or rule
Privity
a case-law doctrine that where two or more people share a joint right, or where one obtains a property interest from another person, the present party can for some purposes be treated as being bound by notice to or legal actions against the other person with whom the party is in privity.
Prohibition
as in, a writ of. This is the writ one seeks if the goal is to order a lower ranking judge to stop doing something that is beyond statutory powers.
Receiver
a person appointed by the circuit court in an equitable proceeding with power to run a business involved in the litigation until the court can sort out whether the owners or managers are acting improperly. It is a “drastic” remedy to give such power.
Reformation
equitable relief which “rewrites” the contract so that it matches the intentions that the parties had at the outset.
Remitittur
reduction of a jury award by the judge where there is no adequate factual basis for the amount of award given by the jury. Plaintiff may accept this amount, or demand a new trial.
Rescission
cancelling a contract for such things as mutual mistake or misrepresentation.
Res judicata
claim preclusion. Under Rule 1:6 this is codified in Virginia, and governs all claims arising from the same conduct, transaction or occurrence.
satisfaction
paying off the loan or judgment amount.
Special appearance
appearing (in person or by filing papers) for the sole purpose of arguing that the court lacks personal jurisdiction over the defendant. Used to contest service of process and “minimum contacts” Due Process limits on personal jurisdiction. See also: Bar Exam Dress Code.
Setoff
where the defendant asserts that plaintiff owes money relating to the same transaction.
Sovereign immunity
see local government section
Statute of frauds
really a statute – §11-2 of the Code of Virginia. It embodies the rule that contracts involving ownership of real estate, or contracts involving more than $25,000 or performance duties lasting more than one year, must be in writing (although multiple writings can be pieced together and some conduct can be considered).
Subpoena duces tecum
the subpoena to call for production of records by a third party (not subject to discovery rules). In general district court, where discovery is not generally available, one can still seek a subpoena duces tecum.
Quo warranto
This is a kind of claim, an action for a legal writ, which challenges the power of a public officer (e.g., sheriff) to do whatever is being done.
unclean hands
a defense available in contract cases and all equitable claims, which applies anytime the plaintiff has acted improperly (not necessarily illegally or actionably) in the same transaction from which he now seeks equitable relief. If unclean hand is found, it bars all remedies.
Unlawful detainer
the civil action to oust a tenant of possession of leased premises (e.g., for non- payment of rent or expiration of the lease).
Vested rights
the concept that Due Process prevents another person or the government from taking away an established ownership interest or right, such as the right to subdivide property.
voir dire
questioning of potential jurors (sometimes called the venire) to see whether they should be “excused for cause” (because they have some bias or interest or relationship.)
warrant in debt
a pre-printed one-page pleading used to start most cases in general district court. A complaint can be used, but in GDC usually plaintiffs just sign the form, check the box to indicate that defendant owes money, and the case is begun when the form is filed. These “warrants in debt” are used for personal injury or property damage, or contract matters, not just “debts.”
writ of possession
the order authorizing a landlord to retake possession of the premises.
writ tax
one of the fees collected when you commence a lawsuit in Virginia. The other is a (yes)
filing fee.
wrongful death
the statutory cause of action at law for negligence torts resulting in death of the victim, maintained on behalf of prescribed beneficiaries.
