The Civil Process Flashcards
1
Q
estate
A
all property left by someone who has died
2
Q
civil law
A
a violation of civil law does not directly harm the community; the person harmed sues the violator
3
Q
court
A
the tribunal or forum where the trial occurs, as well as the judge himself. the judge is the trier of law at the trial
4
Q
liable
A
legally responsible
5
Q
damages
A
an amount of money paid to atone for injury or economic loss
6
Q
doctrine
A
a legal concept generally accepted by most courts which, although often not law, offers guidance to the court. legislatures will sometimes codify, or make into law, a popular doctrine
7
Q
joint and several liability
A
when multiple defendants may be found liable as a group (jointly) or separately (several)
8
Q
retainer
A
money paid to an attorney to secure her services; also refers to the contract between the attorney and the client. when an attorney has been “retained”, she works in a representative capacity on behalf of the client
9
Q
appearance
A
when an attorney acts on behalf of a client in court. this action may be either a personal appearance in front of the judge or the filing of a document (such as a complaint or motion) with the court on behalf of the client
10
Q
attorney-of-record
A
once an attorney has entered an appearance, he or she is the attorney-of-record in the case
11
Q
venue
A
the place of trial; the physical location
12
Q
diversity of citizenship
A
when a federal court hears a case based upon the fact that the parties are from different states, and that the amount of money claimed as damages exceeds a minimum set by federal statute, which is currently $75,000
13
Q
plaintiff
A
the party who initiates the action by filing a complaint, claiming injury or harm
14
Q
statute of limitations
A
the time limit for filing suit. suits filed after the time limit has run out will be dismissed. the clock generally starts to tick at the time the damages occurred
15
Q
summons
A
document that informs the defendant that he is being sued and that he has a specific amount of time to respond
16
Q
complaint
A
the pleading that initiates litigation. filed by the plaintiff, the complaint contains the general allegations against the defendant. it is served with the summons
17
Q
parties
A
individuals or groups involved in legal action
18
Q
cause of action
A
a legally valid reason to sue; one of the required elements of a complaint
19
Q
information and belief
A
a common legal phrase that qualifies a statement as being a fact only to the best knowledge of the person making the statement. equivalent to saying “this is what I believe happened”
20
Q
defendant
A
the party against whom a complaint is filed
21
Q
ad damnum clause
A
element of a complaint that asks for damages; also called “wherefore clause” or “prayer for relief”
22
Q
co-defendants
A
multiple defendants in a legal action
23
Q
pleading
A
a document filed with the court asking the court to take some specific legal action. a motion asks the court to rule on a procedural matter. a pleading states a party’s position in a legal action
24
Q
allegation
A
a fact claimed by a party
25
jury trial
a jury is a group of citizens selected from the community to determine the outcome of a case. in most cases, either party has the right to demand a jury trial, but if both parties agree, the judge may act in place of the jury. this is most common in very technical cases, such as a complex contract situation
26
filed
a document is filed when it is presented to the clerk of the court. all documents and any copies are date stamped by the clerk of the court at the time of filing
27
service/served
the presentation of legal papers
28
service of process
process is the summons and complaint. service of process is the delivery of the summons and complain upon the defendant in a court action. service is usually done in person. however, service may, in some circumstances, be made by mail, by publishing a notice in a newspaper, or by serving a company. serving a company is often accomplished by serving a registered agent (someone who accepts service on behalf of a company)
29
personal service
service of legal papers upon an individual, as opposed to a business or a registered agent
30
process server
a person who is permitted by law to serve legal documents; must be at least 18 years of age and not a party to the action
31
affidavit
a written statement of fact sworn to under oath
32
affiant
one who signs an affidavit
33
attest
to swear
34
notary public
a person authorized to administer the oath and to verify that an individual signs a legal document
35
jurisdiction
authority of a court to hear and decide a case
36
in personam jurisdiction
jurisdiction over a person
37
in rem jurisdiction
jurisdiction over the controversy, often property
38
quasi in rem jurisdiction
jurisdiction over property, even though the property is not the controversy
39
lis pendens
attachment to the title of a piece of property notifying any potential purchasers that the title is subject to the outcome of litigation
40
lien
attachment to the title of a piece of property preventing its sale until a previous financial obligation has been satisfied
41
rules of court
laws that govern the procedures of trials
42
answer
the pleading filed by the defendant in response to the allegations contained in the complaint
43
affirmative defense
an admission that a specific act did occur, arguing that the fault lies not with the defendant. intended to eliminate or reduce a plaintiff's damages
44
counterclaim
a claim by the defendant against the plaintiff. sometimes the only determining factor as to whether a claim in an affirmative defense or a counterclaim is whether the defendant is alleging damages. if this is the case, it becomes a counterclaim. a counterclaim is, in essence, a pleading presenting the defendant's complaint against the plaintiff
45
cross claim
a claim by one defendant against a co-defendant. one form of cross claim occurs when one original defendant sues another original defendant, but third-party complaints are also cross claims
46
third-party complaint
pleading where a defendant sues someone not yet a party to the action
47
reply
this pleading is the plaintiff's response to a defendant's counterclaim
48
default judgment
a judgment by the court in favor of the plaintiff, based on the fact that the defendant failed to respond in a timely fashion
49
motion
a request that the court take a specific procedural step. pleadings usually state legal positions about the matter before the court, while motions (such as a motion to extend time to respond) are procedural in nature, and act as a request for an order
50
litigation
the process of asking a court of law to decide the outcome of a dispute; a lawsuit
51
contest
to challenge
52
discovery
the methods whereby one party obtains relevant information on a case from the other party. the method that attempts to even the playing field between parties by exposing all relevant facts upon which the court will ultimately base its decision. discovery is between the parties and does not directly involve the court, although the certificate of mailing for each document is often filed.
53
interrogatories
written questions to the opposing party that must be answered under penalty of perjury
54
request for admissions
written statements the opposing party must admit or deny under penalty of perjury. failure to respond within a specified period of time (in most cases, 30 days) means that the statements are assumed to be admitted
55
request for production
a request that documents or other physical items be provided for inspection. also referred to as an inspection of documents or property
56
request for mental or physical examination
request that the other party (usually the plaintiff) be subjected to a mental or physical examination. this is a form of discovery that may require court approval so that it cannot be used to intimidate
57
depositions
oral questions that must be answered under oath. depositions take place out of court, most often in an attorney's office, with a court reporter transcribing the testimony. a court reporter is a person trained to use a stenography machine to take testimony, verbatim, in court or at a deposition. attorneys from both sides must be present and will have the opportunity to ask questions. depositions can take place for the purpose of questioning the opposing party or for questioning witnesses. depositions are sometimes videotaped and audiotaped
58
certificate of mailing/certificate of service
when a document is filed with the court or when discovery is sent to a party, a certificate of mailing is usually attached. this certificate attests that a true and correct copy of the document was sent to all parties involved in the litigation. the certificate should be signed by the person who places it in the mail, unless the state requires an attorney's signature. this is often replaced with a receipt of copy (ROC)
59
order
an official command by the court, usually demanding that one or both of the parties perform an act
60
hearing
a proceeding in court, where the judge and both parties are present
61
privilege
the right to refuse to testify or to prevent someone else from testifying
62
ex parte hearing
a hearing at which only one party is present, such as a hearing on a motion for a restraining order. ex parte hearings are not common
63
third-party defendant
the party against whom the third-party complaint was filed. the defendant in the original complaint becomes the "third-party plaintiff"
64
motion to dismiss
asking the court to end a case without going to trial
65
dismissal with prejudice
a case is dismissed and may not be brought again, because the court has made up its mind about the case
66
dismissal without prejudice
a case is dismissed but may be filed again, because the court has not made up its mind about the matter (i.e., "dismissed without prejudice to re-file"
67
trial brief
also called a "trial memorandum" or "points and authorities", this document is filed with the court to argue a legal issue, relying on law to support the party's position. often filed in support of a motion, it attempts to convince the reader and only argues points favorable to the client
68
motion for summary judgment
a pretrial motion asking the court to determine the outcome of the case based on the pleadings and motions rather than going to trial with a jury. the argument is that there are no material facts in dispute, only law, and since the jury is the trier-of-fact, there is no need for a jury or trial. a motion for summary judgment may also refer to a motion to limit the issues that will be dealt with at trial, referred to as a partial summary judgment. a successful partial summary judgment determines the outcome of some, but not all, of the issues before the court
69
magistrate
a judicial officer who may preside over hearings, a magistrate does not have all the powers of a judge. he or she ordinarily deals with procedural matters
70
pretrial conference
a meeting between the court and the parties for clarification of procedural matters and to promote settlement
71
stipulation
an agreement between counsel for the parties regarding a fact, issue, or point that will not be disputed at trial
72
settlement agreement (settlement)
an agreement to end the litigation for an agreed-upon consideration, usually money
73
at issue/in issue
a legal question to be answered by the court
74
evidence
that which tends to establish or disprove a fact
75
direct evidence
evidence (from personal observation) that tends to establish a fact without the need for an inference. example: a witness who sees a gun fired can give direct testimony as to a shooting
76
circumstantial evidence
evidence of one fact that requires an inference to establish another fact. example: a witness who hears a shot, turns around, and sees a man holding a gun can give circumstantial evidence as to a shooting
77
oral evidence
evidence given orally, also called "testimonial evidence"
78
physical evidence
evidence that can be touched, also called "tangible" or "demonstrative" evidence
79
admissible
the evidence that will be allowed to be considered by the jury. the jury will decide whether or not to believe the evidence
80
docket
the court's official calendar for trials and hearings to take place in that courtroom
81
set for trial
to set a date for trial upon which the attorneys, parties, and courts agree
82
jury, jurors
a group of citizens who will be called upon to hear the evidence and render a verdict. the jury is the trier of fact
83
jury panel
the group from which a jury will be selected
84
voir dire (for the jury)
to question prospective jurors
85
challenge for cause
a method of dismissing a juror for good cause shown. challenges for cause are unlimited in number
86
peremptory challenge
a method of dismissing a juror for which no reason need be given. these challenges are limited in number, commonly three or six
87
bailiff
court employee who keeps order in the courtroom
88
alternate juror
a person who sits to hear the entire case with the jury, but who will not deliberate or vote on a verdict unless one of the jurors is dismissed. civil cases in many jurisdictions have no alternates. instead, the parties and judges agree on the number of original jurors and on how many may be dismissed
89
opening statement
presentations made by the attorneys at the beginning of a trial, stating the facts they intend to prove during the trial
90
burden of proof
the degree to which something must be proved at trial. the party making an allegation or claim generally bears the burden of proof
91
preponderance of the evidence
the burden of proof in civil cases means that it is more likely than not that a fact is as a party alleges it to be. the burden of proof in criminal matters is beyond a reasonable doubt, a higher standard
92
rule on witnesses
a rule that states that a witness in a case may not be in the courtroom during the testimony of other witnesses. mostly used in criminal cases, it may be used in civil cases at the judge's discretion
93
subpoena
the document issued under authority of the court to compel the appearance of a witness
94
subpoena duces tecum
a document issued under the authority of the court to compel the appearance of a witness, and ordering the witness to provide specific documents
95
objection
a formal challenge by opposing counsel to evidence or questions asked of a witness
96
bench conference
a discussion between the judge and attorneys, usually conducted at the judge's bench so the jury cannot hear what is said
97
prejudicial
the tendency to cause bias even where no bias has existed previously
98
probative value
the value of pursuing an investigative or probing line of questioning
99
preserving the record
an attorney making statements, or repeating a previously overruled motion, to protect any right to appeal at a later point
100
sustain
to affirm an objection
101
competency
legal capacity to testify. the elements of competency are: 1. understanding the obligation to tell the truth; 2. knowledge of the topic of the testimony; 3. ability to communicate
102
examination
questions directed at a witness who is under oath in court or at a deposition
103
direct examination
questioning the witness first. the party calling the witness to the stand conducts the direct examination
104
cross examination
after direct examination, the other party may cross-examine the witness, but is limited to the topics brought up under direct questioning (within the "scope")
105
redirect examination
the party conducting direct examination conducts the redirect examination to clarify matters brought up during cross. the party conducting redirect cannot introduce a new line of questioning, but is limited to matters discussed during cross
106
recross examination
the party conducting cross examination conducts the recross examination, but is limited to matters brought up during redirect (many courts do not typically allow recross examination)
107
proximate cause
the event or point at which a series of incidents begins ultimately resulting in an event with damages
108
negligence
establishment of a duty, followed by a breach of that duty, resulting in damages. in order to be actionable, the negligence must have been the proximate cause of the damages. negligence generally means an act is accidental, not intentional
109
excuse the jury
the judge instructs the jury to leave the courtroom temporarily
110
grounds
reason or reasons
111
relevant
tending to prove or disprove a fact in issue
112
to strike from the record
to have certain testimony removed from the record of the trial. this is usually accompanied by an admonition to the jury that, when deliberating, they are not to consider the testimony they just heard
113
clerk of court
the person or persons responsible for the court files and exhibits
114
exhibit
a physical item presented to support an argument
115
introduction of evidence
attorneys must "move" for a piece of evidence to be admitted into evidence. if the motion is granted, the evidence will be assigned a number of letter and labeled
116
resting a case
when a party is finished presenting evidence, it rests
117
move
to present a motion to the court
118
motion for directed verdict
the court is asked to decide the outcome of a case because the plaintiff has failed to establish a prima facie case
119
adjourn
to halt temporarily, but not end, the trial
120
prima facie case
a case that is sufficient on its face. this means that, if all facts alleged by the plaintiff are eventually proved at trial, the plaintiff deserves to be awarded damages. a prima facie case must exist at all stages of the proceedings from the filing of the complaint through trial. if, at any point during litigation, a party can establish that a prima facie case does not exist, the case should be dismissed
121
take under advisement
the court delays a ruling on a motion so that the motion may be considered
122
expert witness
a person who has been qualified by the court to have experiences and knowledge in a specific area and who will be allowed to express opinions related to his area of knowledge
123
qualify
to establish a witness's expertise in a specific area
124
voir dire (of witnesses)
to question a potential witness to determine his or her competency or the appropriateness of his or her testimony
125
closing argument
each attorney addressing the jury or the court at the end of the trial, attempting to persuade prior to deliberations
126
jury instructions
guidelines to the jury about how the law is to be applied, and the facts that may be considered during its deliberations. may also be referred to as a "charge to the jury"
127
deliberations
a jury's discussion of the case, in private, following the trial, with the goal of rendering a verdict
128
verdict
the final conclusion of the jury
129
foreperson
the member elected by the jury to lead the deliberations and speak for the jury
130
motion for judgment NOV (notwithstanding the verdict)
a motion asking the court to disregard the jury's verdict and replace it with the court's own verdict. NOV stands for Non Obstante Verdicto
131
judgment
the final conclusion of the court. in civil cases, the judge usually enters the jury's verdict into judgment. however, the 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 the court may overturn a guilty verdict in the interest of justice
132
additur
when the judge adds to the amount a jury has awarded. typically, the judge will give the party who must pay the award the choice of an increased award, or a new trial will be granted to the other side
133
remittitur
the process whereby a judge subtracts from the amount of damages a jury has awarded. in effect, the judge gives the party awarded damages the choice of either accepting a lesser amount, or a new trial will be granted to the other side. (the inverse of an additur)
134
motion for new trial
a request that the judge order a new trial because of procedural errors. a party must generally file this motion in order to later appeal, fulfilling the obligation to exhaust all available remedies
135
appeal
to ask the court at the next highest level to determine whether the trial court erred
136
appeal as a matter of right
a party who loses in the trial court has the right to have his or her case heard by the next highest appellate level court in civil court. there are circumstances in which an appellate level court has no choice but to hear the appeal, such as some death penalty cases in state criminal courts
137
waive
to give up a right. a waiver may be either voluntary or the result of an action, or inaction, by the party
138
stay
to delay the implementation of a court's order
139
notice of appeal
written notification in motion form that a party intends to appeal. most court rules require that the motion be filed with the trial court, the appellate court, and sent to any other parties involved in the action. a party has the automatic right to one appeal to the next highest court
140
bond on appeal
a sum of money held by the court to ensure that the funds from the award will be available after the appellate process
141
res judicata
doctrine stating that a case that has been decided on its merits may not be re-litigated
142
to bar
to prevent or stop
143
appellant or petitioner
the party initiating an appeal
144
record
the official collection of all pleadings, exhibits, motions, orders, and transcript of the trial
145
transcript
the word-for-word typed record of what occurred at trial
146
appellate brief
a written argument by a party covering the issues, called "points of error", on appeal. the brief by the appellant is usually referred to as the "appellate brief". the brief filed by the respondent is usually referred to as the "response brief"
147
points of error
the questions that are the basis for the appeal. also called "issues on appeal", these questions point to potential errors of the trial court
148
response brief
a written answer to the appellate brief
149
oral argument
an oral presentation to an appellate court. the party must request an oral argument; that request is not always granted
150
panel of justices (or judges)
the portion of an appellate-level court that hears a case. usually, a panel is made up of three judges
151
en banc
when the entire appellate level court sits to hear and decide a case, indicating the case has a high level of importance
152
opinion
written decision of the court
153
majority opinion
the strongest form of opinion. when more than fifty percent of the court agrees on a decision. a majority opinion is law until it is superseded or overturned
154
affirm
the appellate court agrees with the decision of the trial court
155
reverse
the appellate court disagrees with and nullifies the decision of the trial court
156
modify
the appellate court alters the decision of the trial court
157
remand
the appellate court sends the case back to the trial court for further deliberation
158
concurring opinion
opinion of one or more judges that agrees with the results of the majority, but arrives at that result for different reasons
159
dissenting opinion
opinion that disagrees with the majority opinion
160
petition
to make a formal request to the court. some states refer to complaints as petitions depending on the type of action filed. for example, a "Petition for Dissolution of Marriage" would involve a petitioner and respondent rather than a plaintiff and defendant
161
rehearing
a second chance to present arguments to the court on the same issues
162
petition for writ of certiorari
the vehicle by which the case is taken from the court of appeals (state or federal) to the supreme court (state or federal). also, the means by which a case is taken from a state supreme court to the US Supreme Court. the writ of certiorari is issued by the higher court. if the higher court approves the petition, the higher court will review the case. if the higher court denies the petition, the decision of the lower court stands. this is frequently referred to as a "petition for writ of cert".
