Chapter 5 Civil Litigation 8th Edition Kerley Definitions

Allegation

A contention or claim made within a pleading, regarding a fact that the party intends to prove at trial.

Capacity

Having the legal ability to do something such as initiating a lawsuit

Caption

The heading found in all pleadings, usually identifying the court, the parties, the nature of the pleading, and the docket number.

Class Action

A lawsuit brought by a limited number of parties on behalf of themselves and other persons with the same or similar issues.

Compensatory Damages

An award of money damages that compensates the plaintiff for actual loss, including pain and suffering,

Compulsory Joinder

A party who should be included or named in a lawsuit; in federal court, Federal Rule of Procedure 19 sets out the criteria for compulsory joinder of parties.

Count

Separate claims stated in one complaint.

Declaratory Relief

A court order defining or explaining the rights and obligations of parties under some contract or other document.

Docket Number

A number assigned to a lawsuit by the court; each pleading or document filed in the action must bear this number.

Equitable Relief

A judicial remedy other than money, such as specific performance of a contract or an injunction.

Fictitiously Named Defendants

Defendants in a lawsuit who are not identified by their correct names; usually refers to the practice in some state courts of including several “Does” as defendants to provide for discovery of additional defendants after the statute of limitations has run.

Filing

Presenting a paper to the court clerk to be included in the court file for the case.

Guardian ad litem

A person who is appointed by the court to represent a party in a lawsuit, where the party lacks the capacity to file the action; guardians as litem are usually appointed for minors or those who are mentally incapacitated.

Indispensable Parties

A person who must be joined in the lawsuit and whose absence makes it impossible for a court to render a judgment.

Injunction

A court order requiring a party to take some action or to stop some conduct,

Interpleader

A type of action in which a party deposits money or property in the court because, although the party clearly owes money or the return of property, the parties to whom it is owed is unclear; after the property is deposited, the court determines its proper distribution.

Permissive Joinder

A concept allowing multiple parties to be joined in on lawsuit as plaintiffs or defendants as long as there is some common question of fact or law.

Personal service of process

Notice of a lawsuit or other proceeding that is given to a party by personally delivering a copy of the papers to that party.

Pleadings

Documents that describe the claims and defenses of a lawsuit, including the complaint and the answer to the complaint.

Prayer

The part of the pleading (usually at the end) where the party asks the court to either grant or deny some relief.

Preliminary Junction

A court order made prior to final judgment in the case but after all parties have had the opportunity to present evidence, directing that a party take or refrain from some action until the trial in the case takes place.

Proof of Service

Verification that a copy of a pleading, a motion, or other document has been served to another party or attorney.

Punitive or Exemplary Damages

Damages that punish a defendant for intentional or malicious conduct that causes injury.

Quiet Title Action

A legal proceeding to determine ownership of real property.

Resicission

To “undo” or abrogate a contract.

Restitution

Returning property to the original owner where fairness requires that it be done.

Specific Preformance

A court order requiring a person to fulfill his or her promises in a contract.

Stipulation

An agreement between the parties in a lawsuit that certain facts are not in dispute.

Subscription

A signature at the end of a document.

Summons

A form served with a complaint informing a person of a lawsuit against him or her, the time limit for responding to the lawsuit, and the consequences of failing to respond.

Temporary Restraining Order

An order from the court requiring a person to act or refrain from acting in a certain way, issued for limited time until a full hearing on the matter can be scheduled.

Verification

Statement at the end of document and under penalty of perjury that the contents of the document are true.