Chapter 13: Civil Procedure Before Trial

Arbitration

An out-of-court hearing before a neutral third party who listens to two or more parties and renders a decision resolving the case.

Mediation

An informal out-of-court process; a mediator, or neutral person, assists in reaching an agreement.

Local Rules of a Court

Procedural rules adopted by an individual court for practice in that specific court. 

Cause of Action

The basis upon which a lawsuit may be brought to the court. 

Subject Matter Jurisdiction

The power of a court to resolve the kind of dispute in question.

Federal Question

A case that involves a federal law, either in statutes, in the Constitution, or in treaties.

Diversity of Citizenship 

A basis for federal court jurisdiction where the plaintiff and defendant are residents of different states and the amount in controversy exceeds $75,000. 

Executive Jurisdiction

The sole power or authority to act in a certain situation.

Concurrent Jurisdiction

A term that describes situations where more than one entity has the power to regulate or act.

Supplemental Jurisdiction

The power of the federal court to hear an issue which would normally belong in state court, if that issue is related to the adjudication of a federal question.

Personal Jurisdiction

Authority over the person of a defendant in a case. 

Long-Arm Statues

State laws that describe the circumstances in which the state may exercise jurisdiction over nonresident defendants.

in rem jurisdiction

Jurisdiction conferred on a court that may lack personal jurisdiction because the "thing" that is the subject of the dispute is located within the state.

quasi in rem jurisdiction

Jurisdiction based on personal property located within the state; any judgment is limited to an amount equal to the value of the property.

venue

The proper geographical court in which to file an action.

pleadings

The formal written allegations filed with the court by both sides to a lawsuit; claims and defenses are clearly set out so that both parties are placed on notice of the position of the opposing party.

complaint

A document filed in a civil or criminal lawsuit that describes the allegations of the plaintiff and the basis for the lawsuit.

answer

The pleading used by the defendant to respond to the plaintiff's complaint.

counterclaim

A pleading in which the defendant asks for damages or other relief from a plaintiff.

cross-claim

A pleading in which the defendant asks for damages or other relief trom a co-defendant.

third-party action

A pleading in which the defendant asks for damages or other relief from a new party to the action.

file

To turn a document over to the court clerk, along with any required filing fee.

docket number

The court’s numerical designation for a case; used by the court to organize files.

e-file

Filing court documents electronically. 

summons

One of the documents used to begin a legal action; it is served on the defendant and tells the defendant to appear in court and respond to the charge or risk a default.

appear

As used in a summons, to appear means to file appropriate documents in the action.

default

Failure to appear. 

service of process

The actual process of giving the defendant a copy of the plaintiff’s pleading.

serve

To deliver documents to another party in accordance with legal requirements. 

proof of service

The document details when and how the papers were served; it is signed under penalty of perjury by the person serving the papers.

affirmative defenses

Defenses raised by the defendant in the answer; reasons why the plaintiff should not recover even if all of the allegations of the complaint are true.

general denial

A responsive pleading that denies each and every allegation contained in the complaint.

specific denial

A detailed or specific responsive pleading; it addresses each allegation by number.

demurrer

A pleading used in some states to challenge the legal sufficiency of the complaint.

discovery

A pretrial process of acquiring information; the most common discovery tools are written interrogatories, depositions, and requests for production of documents and things.

interrogatories

Written requests for answers to questions, this discovery tool is used by the parties; written responses are required. 

request for admissions

A written request by one party to admit or deny the truth of a statement or the genuineness of a document.

request to produce or inspect

A written request by one party to another to allow one side to see and copy documents or to physically inspect real or personal property that is relevant to the lawsuit.

deposition

The testimony of a witness, given under oath, outside the courtroom and taken before a court reporter; the deponent (the person whose deposition is being taken) will be asked questions by the attorney who requested the deposition.

pretrial conference

A meeting between the attorneys and the judge that takes place before trial.

settlement

A settlement occurs when the parties reach an agreement on some or all of the issues without actually going to trial; if settlement is on some issues, the remaining issues are litigated or tried.

compromise and release

A settlement agreement that ends a case.