Lawyering Skills Vocab

Primary authority/primary sources

any law created and published by a governing entity within a jurisdiction

Jurisdiction

The area of authority over which a governing body has authority

Precedent

A prior judicial decision that establishes a basis for a similar case or similar question of law.

___________ precedent must be followed; ___________ precedent need not be

Binding; persuasive

Common Law

A subset of case law referring to decisions created solely by the judicial branch without reference to statute, regulation, or any other law from the legislative branch

Secondary authority

Commentary about the law from sources like legal encyclopedias, law review articles, or treatises. Can be persuasive authority, but not binding.

Stare decisis

To stand by things decided and not disturb settled points

Statute

A law enacted by the legislature

Regulation

A law created by an executive branch agency that implements or expounds upon a statute

Executive Order

a directive from the executive branch that implements or interprets a statute, constitutional provision, or treaty

Headnote

a short summary from each point of law presented in a case, found at the beginning of a judicial opinion. Because headnotesa re publishing tools and not legal authority, they should not be cited.

Dicta

Assertions or statements in a judicial opinion on points that are not necessary to address an issue presented by a party

Holding

The court’s answer to a particular legal question in a case that includes both the controlling rule of law and the specific facts of the case pertinent to the legal question

Persuasive authority

Non-binding law or commentary that a court may consider when deciding a case. Can be primary or secondary.

Binding authority

Legal authority from a governing body within a jurisdiction that the court must follow.

Case of first impression

When case law is sparse or non-existent about a particular legal question

Writ of certiorari

The higher court uses this order to check if the lower court made a major legal error or acted outside its power.

Appellant

The party who asks a higher court to review and reverse a decision made by a lower court.

Appellee

The party in a legal case against whom an appeal is filed, usually the one who won in the lower court and wants that decision to stay the same

per curiam

"By the court” — a court opinion issued by a group of judges or justices as a whole, without naming a single specific author

En banc

Meaning “on the bench” or “in full court” — a court session with the entire appellate court hearing it, not just a panel of three (the usual)

id.

citing the same thing as before

Finds (another word for)

Facts

Motion

A request of the court

Complaint

Notifies the opposing party that some individual has initiated a legal action in court. It outlines the plaintiff’s legal claims and the factual basis.

Motion to dismiss

A request for the judge to throw out a specific claim or case

Answer

If a motion to dismiss is not granted, the defendant must file an answer to the plaintiff’s complaint. Can set out affirmative defenses and counterclaims.

Affirmative defense

Assertion of claims that, if true, will defeat one or more plaintiff’s claims.

Counterclaim

A claim brought by the defendant that, if later proved true, would entitle defendant to some relief.

Reply

if the defendant’s answer includes counterclaims, the plaintiff may be able to file a reply. In a reply, the plaintiff admits or denies the allegations that support the counterclaim and may assert counterclaims or move to dismiss.

Discovery

Provides relevant information to both parties in terms of facts, expected testimony, and exhibits. Includes interrogatories, request to produce documents, request of opposing party to admit certain facts, and depositions

Interrogatories

A list of questions that one party is asking the other party to answer

Depositions

An attorney questions witnesses under oath

Summary Judgment Motion

Asks the court to dismiss the case based on the known facts. The moving party argues that, based on the undisputed facts, the party is entitled to judgment as a matter of law.

Appeal

After a final judgment is entered, the losing party has the right to one appeal.

Disposition

The appellate court’s final determination of the matter. Can be affirm, reverse, remand, and vacate.

Writ of certiorari

To have a decision heard by the highest appellate court, the parties must file a writ to provide reasons why the court should exercise its discretion and review the case.

Reverse

The appellate court disagrees with the trial court’s judgment and overturns it.

Remand

The appellate court sends the case back to the trial court with instructions for further action.

Vacate

The appellate court makes the trial court’s judgment legally void.

Judicial Review

The power of the court to declare a statute unconstitutional

Threshold issue

The power to resove the whole issue. E.g., statute of limitations.

Standards of review

De novo, clearly erroneous, abuse of discretion