Language of the Law

Primary Source of Law

Law created and published by any branch of government (e.x U.S Constitution, statutes, regulations, cases)

Secondary Source of Law:

Publications that interpret, discuss, categorize, or provide notations to those primary sources of law (ex: casebooks, treatises, legal scholarship, hornbooks, and study supplements are secondary sources).

Mandatory Authority

Law that must be followed by courts and others within a particular jurisdiction. For example, trial courts must follow the decisions of appellate courts within their own system (ex: U.S District Court for the E.D. of Missouri must follow decisions by the 8th Circuit Court of Appeals and the U.S Supreme court because those cases would be mandatory authority.)

Persuasive Authority

Law from outside of the relevant jurisdiction or commentary from a secondary source is persuasive. Courts need not follow the decisions of other courts that are not appellate courts within their own system (ex: U.S district court for the E.D of Missouri need not follow decisions by the Ninth Circuit Court of Appeals because those decisions would be merely persuasive [not mandatory] authority).

Rules

Any standard guide, or regulation established by a rule making authority (court, legislature or executive agency); a discrete item of “the law.” Rules can be made up of elements, factors, or it may be a balancing test.

Factors Test

A test where the court considers many different components that are relevant to reach a decision (ex: to determine whether X results, consider A, B, C, and D).

Elements

Items that are defined by the law as being necessary to reach a decision.

Conjunctive Elements Test

Several elements must all be established for a rule to apply (ex: X results if either A, B, and C are met)

Disjunctive Elements Test

A rule will apply when either one or another element is met (ex: X results if either A or B is met)

Balancing Test

Test where the court weighs two or more factors to reach a decision (ex: X results where A outweighs B)

Preponderance of the Evidence

The party with the burden of proof must be more convincing than the other party- conceptually, by at least 51%

Clear and convincing

A higher standard than preponderance of the evidence, but lower than beyond a reasonable doubt.

Beyond a Reasonable Doubt

The highest standard, applied in criminal cases

Precedent and Inherited Authority

The principle that a case needs to be decided in line with the previous cases on a similar point with similar facts

Procedural Facts

The logistical steps that happened within the lifespan of the case itself, from the point of filling to the point of the court’s decision.

Legally Relevant Facts

Facts that are important to the judge in making his or her decision. Legally relevant (or legally significant) facts, if changed, would alter the court’s reasoning or change the court’s holding.

Reasoning of the Court

The thought process of the court; the “how and “why” the court reached its decision is referred to as the court’s reasoning

Holding/ Ruling/ Outcome

These terms are often used interchangeably to refer generally to the answer to the central question of the case (the issue)

Disposition

The specific outcome of the case for the current litigants (ex: reversed and remanded for new trial on the merits)

Dicta

Any part of a court opinion that is unnecessary to the resolution of the dispute before the court is called dicta and it is not binding on later courts.

Dissent

A separate opinion issued when a justice disagrees with the majority opinion and presents his or her opinion on the issue at dispute.

Concurrence

A separate opinion issued by a justice who ultimately voted with the majority but disagreed with some or all of the reasons supporting the majority’s legal conclusion.

Plaintiff (or peritioner)

The party who brings a civil suit in a court of law is the plaintiff. In a criminal suit, the government prosecutes and there is no plaintiff.

Defendant

The person sued in a civil proceeding or prosecuted in a criminal proceeding.

Appellant (or peritioner)

The party who appeals the case (usually the party who lost in the lower court)

Appellee (or respondent)

The party who must respond to appellant/ petitioner’s appeal (usually the party who won in the lower court)

Summons

A notice indicating that the plaintiff has filed a lawsuit and the defendant is required to answer the complaint

Complaint/ Petition

A document filed by the plaintiff that initiates a lawsuit and sets forth facts and legal claims

Answer

A response from the defendant to claims made in the complaint

Motion to Dismiss/ Demurrer

A request to the judge from the defendant to end the case because the complaint does not state a legal claim.

Discovery

The process by which parties obtain facts and evidence from each other by asking for documents and questioning witnesses

Interrogatories

Written discovery questions

Depositions

Questioning parties or witnesses under oath

Request for Documents

Written requests for documents as part of discovery (including medical records, emails, text messages, other communications, etc)

Motion for Summary Judgment

A request to end the lawsuit without trial because there are no legally relevant factual disputes, and one side is entitled to prevail

Trial

The judge or jury hears testimony/ reviews evidence and issues a verdict

Motion for Directed Verdict

A request by the defense to dismiss the lawsuit after the plaintiff has presented testimony

Jury Instructions

Directions for the jury on whether and how to consider evidence, what law to apply to the facts, etc

Verdict

The jury’s decision at the close of evidence

JNOV (judgment notwithstanding the verdict)

A request to set aside the jury’s verdict

Opinion and Judgement

The decision of the court

Appeal

A party applies to a higher court for a different decision

Court of Appeals/ Supreme Court

Typically intermediate and highest appellate court in a jurisdiction

Briefs

Documents filed by the parties setting forth the legal basis for the appeal

Complain/ Warrant or Summons

Statement charging an individual or entity with “counts” or specific violations of the law

Indictment

A grand jury’s written accusation charging a person or entity with a crime, after the grand jury has considered evidence and found probably cause to try the person or entity

Preliminary Hearing

Alternative to a grand jury, where a judge considers evidence and decides whether there is probably cause to try the defendant.

Information

The “charging” document filed after a judge has found probably cause at a preliminary hearing.

Arraignment

A court appearance by the accused to hear the charges and enter a plea (guilty or not guilty)

Motion to suppress

A request that the court refuse to allow a particular piece of evidence to be admitted

Analogize A Case

To take the facts, rationale, or argument of a written decision and explain how they are similar to your case

Distinguish a Case

To take the facts, rationale or argument of a written decision and explain how there is a significant factual, procedural, or legal difference between that written decision and the facts of your case.