GMU - Paralegal Studies 1.BG SU26II

Legal Terms

Natural Law

God-made Law

Secular Law

Nonreligious Law

Stare Decisis

Precedent largely determine the outcome of future cases.

Precedent

Past court decisions.

Rendered

Made

Case Precedent

Case Law

Memorandum of Law

A brief.

A Case of First Impression

One where there is no prior precedent or stare decisis to guide the court in its decision-making.

Comparative Negligence

Partially negligent.

Legislative Branch (Federal: Congress) (State: State Legislatures) (Local: City Council, county council, county commission, etc.)

Makes the laws.

Executive Branch (Federal: President and the federal administrative agencies) (State: Governor and state administrative agencies) (Local: Mayor or county commissioner and local administrative agencies)

Enforced the laws.

Judicial Branch (Federal: U.S. Supreme Court, the court of appeals, the district courts, and other federal courts) (State: State Courts) (Local: Local Courts (some local courts, however, are considered part of the state judiciary))

Interprets the laws.

Federalism

Dividing power between the federal government and the state governments.

Sovereignty

Power

Congress

Senate (100 seats) and the House of Representatives (435 seats)

Bicameral

“Two Chamber”

Statutory Law

The rules and regulations we all have to follow to avoid liability or arrest.

Statute/Act

A law that is written by the legislative branch of government.

Supermajority

Votes to override the executive branch’s veto.

Bureaucracy

Administrative agencies on the federal, state, and local levels of government.

Quasijudicial/Adjudicatory Hearings

Administrative agencies proceedings.

Types of Cases in the Federal Judicial System

(1) Controversies that involve the U.S. government, the U.S. Constitution, or federal laws, (2) Disputes between two different states or between the United States and a foreign government, (3) Cases that involve a diversity of citizenship of the litigants, and (4) Matters that involve bankruptcy.

Federal Judicial System

U.S. Federal District Court → U.S. Courts of Appeals (13 Circuits) → U.S. Supreme Court

U.S. Federal Circuit Court

Appeals from the U.S. Court of Claims or the U.S. Court of International Trade are appealed here instead of the U.S. Court of Appeals (13 Circuits).

Appeal

Review

Petition for Review/Petition for Certiorari

An appeal to the U.S. Supreme Court.

Writ of Certiorari/Granting Cert

Order issued by the U.S. Supreme Court to review the decision of a lower court.

State Judicial System (Virginia)

District Court (General District Court and Juvenile and Domestic Relations Court) → Circuit Court → Court of Appeals → Supreme Court. Note(s): (1) State Judicial System is bolded and (2) 90% of litigation occurs in state courts.

State Trial Courts are Two-Tiered

(1) Tier II: Courts of Limited Jurisdiction/People’s Court/Inferior Courts and (2) Tier I: Courts of General Jurisdiction.

Courts of Limited Jurisdiction/People’s Court/Inferior Courts/District Courts

The lower-level state trial courts often decide civil cases involving money below a certain dollar amount as well as lower-grade criminal cases known as misdemeanors.

Courts of General Jurisdiction/Superior Courts/Circuit Courts

The upper-level state trial courts involve anything from criminal felony prosecutions to civil matters where unlimited amounts of money are at issue.

Appellant

Losing party.

Two Types of Appeals from Lower Court to High Court

(1) Appeal as a Matter of Right and (2) Discretionary Review.

Appeal as a Matter of Right

The party is always entitled to at least one level of review by a higher court.

Discretionary Review

The appellant must seek permission from the higher court to hear the appeal.

Error of Law

Mistake on the admissibility of evidence. Note: The appellate court can overturn the lower court usually only if the inferior court made an error of the law.

Trial de Novo

The trial can be heard all over again at the appellate level. Note: In VA, cases that go from district court to circuit court are trial de novo.

Local Judicial Systems (Virginia)

District Court (General District Court and Juvenile and Domestic Relations Court) → Circuit Court → Court of Appeals → Supreme Court. Note: Local judicial systems are bolded.

Ordinances

Local government laws.

U.S. Jury System

(1) Judge OR (2) Judge and Jury, where Jury makes decision.

U.S. Jury System - Judge

Decides issues of law.

U.S. Jury System - Jury

Applies the law as given by the judge to the facts in a particular case.

Jury Nullification

When jurors feel that a law is unjust or is being applied unfairly in the particular circumstance of the current case.

Bench Trial

Trial by a judge alone. The right to a jury is waived, and the judge decides both the issues of law and the issues of fact. Note: An attorney requests a bench trial in cases where the parties need a judge to interpret complex law and determine whether someone breached the law.

“The Bench”

Refer to judges collectively.

“The Bar”

Refer to attorneys collectively.

Beyond a Reasonable Doubt (Used in Criminal Trials)

The legal standard of proof required in criminal trials, where the prosecution must prove the defendant's guilt to such a level that there is no reasonable doubt in the mind of a reasonable person.

Preponderance of Evidence (Used in Death Penalty Cases)

The legal standard of proof in civil cases, where the party must show that their claim is more likely true than not, meaning there is more than 50% likelihood.

Probable Cause

A reasonable belief based on all the facts available to the officer given the officer’s special training and experience that a crime has been committed.

Charging Documents

(1) Indictments handed down by grand juries OR (2) Complaints (also known as information), charged by the prosecutor.

Indictment (Used for Felonies)

Charges a defendant with a felony.

Grand Jury

A group of citizens who make a decision (i.e. Indictment OR No Indictment) based on its review of prosector’s case.

Prosecutor

An attorney representing the state in criminal cases.

Complaint/Information (Used for Misdemeanors)

Informs defendant about the criminal charges against them.

Infractions

Traffic violations, etc. Note: From least severe to most severe is Infractions → Misdemeanors → Felonies.

Preliminary Hearing

A pre-trial proceeding where a judge determines if there is enough evidence to proceed with a trial. Note: The defendant does not put on a case at this stage.

Witness Impeachment

Impugning credibility.

Plea Bargain

Reducing or dismissing some of the charges against the defendant or reducing the severity of the punishment in exchange for a no contest or guilty plea from the defendant.

Defendant

An individual accused of a crime in a court of law.

No Contest/Nolo Contendere

A defendant neither admits to not denies guilt for the charges.

Arraignment

Where the court advises the defendant of the charges and the defendant of the charges and the defendant enters a plea.

Post-Trial Motions

(1) Motion for a new trial OR (2) Motion to set aside the jury verdict.

Appelant/Petitioner

Party that appeals the decision of the lower court.

Appellee/Respondent

The party who defends the case on appeal.

Double Jeporady

A legal doctrine that forbids trying a defendant for the same crime twice.

Hung Jury

Jury could not agree on verdict (i.e., Guilty OR Not Guilty).

Brief of the Appellant

A written document submitted by the appellant outlining the legal arguments and evidence in support of their appeal.

Brief of the Appellee

A written response submitted by the appellee addressing the appellant's arguments and providing legal justification for affirming the lower court's decision.

Panels

Groups consisting of 3 or more of judges to hear appeals.

En Banc

The entire body of the higher court hears and decides the appeal.

Mandate

A written order of the court that terminates all review in matter.

Retainer Agreement

A contract that says the attorney represents the client.

Jurisdiction

Determines which type of court has the authority to hear a case.

3 Types of Jurisdictions

(1) In personam, (2) In rem, and (3) Quasi in rem.

In Personam

Jurisdiction over a person.

In Rem

Jurisdiction over property.

Quasi in Rem

Combines a little of both. Example: If a property owner in Arlington, VA defaults on their loan, the lender can file a Quasi in Rem lawsuit in VA to seize and sell the home. This resolves rights to the specific property without needing personal jurisdiction over the absent owner.

In Personam Jurisdiction Qualifications

(1) The defendant resides in the country in which the court has jurisdiction, (2) the defendant is present in the country in which the court has jurisdiction. The defendant must be personally served with proper process while in the confines of the country, OR (3) the defendant and the plaintiff consent to a specific jurisdiction. The defendant’s consent is key in this qualification.

Categories of In Personam Actions

(1) Local OR (2) Transitory.

In Personam - Local

The action can be brought only where the subject of the matter of the litigation is located.

In Personam - Transitory

The action can be brought in any location where the defendant can be found, regardless of where the cause of action arose.

Venue

Location

Determining the Venue

(1) Residence of one of the parties, (2) defendant’s place of doing business, (3) site of the subject matter (i.e., property), OR (4) site of the cause of action.

Motion to Recuse

A request to disqualify a judge from hearing a case due to potential bias.

Pre-trial Tasks

(1) Summons, AND (2) Complaint, AND/OR (3) Answer, AND/OR (4) Counterclaim, AND/OR (5) Cross-Claim, AND/OR (6) Motion to quash service of summons, AND/OR (7) Motion to Strike, AND/OR (8) Motion for a more definite statement, AND/OR (9) Motion to dismiss, AND/OR (10) Reply.

Service of Process

Serving a Summons and a Complaint.

Summons

A legal document issued by a court to notify a defendant of a lawsuit and require their appearance before the court.

Complaint/Petition

A pleading that states the facts of the plaintiff’s action against the defendant and sets forth the damages, judgement, or other relief sought. The complaint must contain enough information to state a claim upon which relief may be granted for the plaintiff. The defendant may begin their defense by filing one or more pleadings or motions: (1) Answer, (2) Counterclaim, (3) Cross-Claim, (4) Motion to quash service of summons, (5) Motion to Strike, (6) Motion for a more definite statement, (7) Motion to dismiss, AND/OR (8) Reply.

Answer

In response to a complaint, the defendant usually files a pleading called an answer that either admits or denies each of the allegations in the plaintiff’s complaint or admits all and pleads an excuse. The defendant’s answer may also contain affirmative defenses that the defendant argues will serve to diminish or mitigate their liabilities to the plaintiff. A defendant may also include in their answer a cross-claim against a codefendant or a counter-claim against the plaintiff, or both.

Counterclaim

The defendant often files a counterclaim as part of their answer to the complaint. The counterclaim consists of a cause of action in its own right that requests relief or damages that the defendant suffered at the hand of the plaintiff. A Plaintiff usually files an answer to the new allegations raised in the counterclaim in the same manner that a defendant files an answer to a complaint.

Cross-claim

A defendant may allege a cross-claim against a codefendant concerning matters raised by the plaintiff in the complaint. The primary purpose of a cross-claim is to establish affirmative relief against the codefendant or plaintiff (or both) on the part of the defendant who submits the cross-claim.

Motion to quash service of summons

A motion to quash service of summons questions whether he defendant has been properly served with process.

Motion to Strike

A motion to strike asks the court to eliminate allegations in the plaintiff’s complaint or petition that the defendant deems to be irrelevant, prejudicial, or otherwise improper. If the court agrees with the defendant, the court may order the matter to be deleted from the complaint.

Motion for a more definite statement

A motion for a more definite statement requests that the court require the plaintiff to set forth the facts of the complaint more specifically, or to describe the injury or damages in greater detail so that the defendant can answer the complaint more precisely. This motion is similar to a motion for a bill of particulars, which is also designed to assist the defendant in preparing an answer to the complaint by providing more detailed information regarding the plaintiff’s cause of action.

Motion to dismiss

A motion to dismiss requests that a plaintiff’s complaint be dismissed on the ground that it does not state a prima facie case against the defendant. This means that even if, for the sake of argument, the defendant admits that all the facts alleged by the plaintiff are true, the plaintiff has not alleged sufficient facts to obtain relief from the court, (In some states, a motion to dismiss is termed a demurrer). Generally, a defendant asks the court to dismiss the plaintiff’s complaint with prejudice so that they can’t file it again in the same court. The plaintiff can only appeal this dismissal to a higher court, The plaintiff, on the other hand, doesn’t want the complaint to be dismissed, but if there’s a defect with the pleading, the plaintiff will more readily accept a dismissal without prejudice because the plaintiff need only amend the error noted by the defendant and refile the complaint with same court.

Reply

The plaintiff may file a reply in response to new assertations raised in the defendant’s answer to the defendant’s complaint.

Discovery Forms

(1) Oral and (2) Written.

Oral Discovery

Depositions.

Depositions

Formal question-and-answer sessions conducted orally in person or remotely and under oath. Note: No judge is present, but parties are present. Parties can make objections to certain questions and stop the deposition to make motions.

Written Discovery

(1) Interrogatories (Federal rules limit each party to 25 interrogatories and state rules normally allow for many more questions), (2) Requests for Admissions: Requires the adverse party to admit to or deny the genuineness of statements and documents, (3) Requests for Production of Documents: Requires adverse parties to produce books, records, and documents for inspection, and (4) Requests for Mental and Physical Examinations: Requires the adverse party to submit to a physical or mental examination.