Legal Terminology

Ch. 1-6 Segmant A exam prep

Estate

All the property left by someone who has died.

Civil Law

A violation of civil law does not directly harm the community; the person harmed sues the violator.

court

The tribunal or forum where the trial occurs.

liable

Legally Responsible

Damages

An amount of money paid to atone for injury or economic loss.

doctrine

A legal concept generally accepted by most courts which, although often not law, offers guidance to the court. Legislatures will sometimes codify, or make into law, a popular doctrine.

joint and several liability

When multiple defendants may be found liable as a group (jointly) or separately (several).

retainer

Money paid to an attorney to secure her services; also refers to the contract between the attorney and the client.

appearance

When an attorney acts on behalf of a client in court. This action may be either a personal appearance in front of the judge or the filing of a document (such as a complaint or motion) with the court on behalf of the client.

Venue

Place of trial, physical location

diversity of citizenship

When a federal court hears a case based upon the fact that the parties are from different states, and that the amount of money claimed as damages exceeds a minimum set by federal statute, which is currently $75,000.

plaintiff

The party who initiates the action by filing a complaint, claiming injury or harm.

summons

Document that informs the defendant that he is being sued and that he has a specific amount of time to respond.

complaint

The pleading that initiates litigation. Filed by the plaintiff, the complaint contains the general allegations against the defendant. It is served with the summons.

parties

Individuals or groups involved in a legal action.

cause of action

A legally valid reason to sue; one of the required elements of a complaint.

Information and belief

A common legal phrase that qualifies a statement as being a fact only to the best knowledge of the person making the statement. Equivalent to saying, “This is what I believe happened.”

defendant

The party against whom a complaint is filed.

ad damnum clause

Element of a complaint that asks for damages; also called “wherefore clause” or “prayer for relief.”

co-defendants

Multiple defendants in a legal action.

pleading

A document filed with the court asking the court to take some specific legal action. A motion asks the court to rule on a procedural matter. A pleading states a party’s position in a legal action.

allegation

A fact claimed by a party.

jury trial

A jury is a group of citizens selected from the community to determine the outcome of a case.

filed

A document is filed when it is presented to the clerk of the court.

service or served

The presentation of legal papers.

service of process

Service of process is the delivery of the summons and complaint upon the defendant in a court action

personal service

Service of legal papers upon an individual, as opposed to a business or registered agent.

process server

A person who is permitted by law to serve legal documents; must be at least 18 years of age and not a party to the action.

affidavit

A written statement of fact sworn to under oath.

affiant

One who signs an affidavit.

attest

To swear

notary public

A person authorized to administer the oath and to verify that an individual signs a legal document.

jurisdiction

Authority of a court to hear and decide a case.

in personam jurisdiction

Jurisdiction over a person.

in rem jurisdiction

Jurisdiction over the controversy, often property.

quasi in rem jurisdiction

Jurisdiction over property, even though the property is not the controversy.

Lis pendens

Attachment to the title of a piece of property notifying any potential purchasers that the title is subject to the outcome of litigation.

lien

Attachment to the title of a piece of property preventing its sale until a previous financial obligation has been satisfied.

rules of court

Laws that govern the procedures of trials.

answer

The pleading filed by the defendant in response to the allegations contained in the complaint.

affirmative defense

An admission that a specific act did occur, arguing that the fault lies not with the defendant. Intended to eliminate or reduce a plaintiff’s damages

counterclaim

A claim by the defendant against the plaintiff.

cross claim

cross claim A claim by one defendant against a co-defendant. One form of cross claim occurs when one original defendant sues another original defendant. side note- third-party complaints are also cross claims.

third-party complaint

Pleading where a defendant sues someone not yet a party to the action.

reply

This pleading is the plaintiff’s response to a defendant’s counterclaim.

default judgment

A judgment by the court in favor of the plaintiff, based on the fact that the defendant failed to respond in a timely fashion.

Simple Terms- the defendant didn’t respond within 20 days forcing the judge to rule in favor of the plaintiff.

motion

A request that the court take a specific procedural step.

litigation

The process of asking a court of law to decide the outcome of a dispute, a lawsuit.

contest

To challenge.

discovery

The methods whereby one party obtains relevant information on a case from the other party.

Side note- Discovery is between the parties and does not directly involve the court

what are the 5 most common methods of discovery

1. Interrogatories

2. Request for Admissions

3. Request for production

4. Request for Mental or Physical Examination

5. Depositions

Interrogatories

Written questions to the opposing party that must be answered under penalty of perjury.

Example: Describe the events leading to the accident.

Request for Admissions

Written statements the opposing party must admit or deny under penalty of perjury.

Example: Admit or deny you had been drinking alcohol shortly before the accident.

Request for Production

A request that documents or other physical items be provided for inspection. Also referred to as Request for Inspection of Property or Production of Documents.

Example: Please produce any and all receipts for Acme Dry Cleaning between February 1 and February 14, 2021.

Request for Mental or Physical Examination

Request that the other party (usually the plaintiff) be subjected to a mental or physical examination.

Side note- This is a form of discovery that may require court approval so as not to be used as a means of intimidation.

Depositions

Oral questions that must be answered under oath.

Additional information- Depositions take place out of court, most often in an attorney’s office, with a court reporter transcribing the testimony. A court reporter is a person trained to use a stenography machine to take testimony, verbatim, in court or at a deposition. Attorneys from both sides must be present and will have the opportunity to ask questions. Depositions can take place for the purpose of questioning the opposing party or for questioning witnesses. Depositions are sometimes videotaped and audiotaped.

certificate of mailing or certificate of service

When a document is filed with the court or when discovery is sent to a party, a certificate of mailing is usually attached. This certificate attests that a true and correct copy of the document was sent to all parties involved in the litigation.

hearing

A proceeding in court, where the judge and both parties are present.

privilege

The right to refuse to testify or to prevent someone else from testifying.

ex parte hearing

A hearing at which only one party is present.

Example- a hearing on a motion for a restraining order.

Side note- Ex parte hearings are not common

third-party defendant

The party against whom the third-party complaint was filed. The defendant in the original complaint becomes the “third-party plaintiff.”

motion to dismiss

Asking the court to end the case without going to trial.

dismissal with prejudice

A case is dismissed and may not be brought again because the court made up its mind about the case.

dismissal without prejudice

A case is dismissed but may be filed again, because the court has not made up its mind about the matter (i.e., “dismissed without prejudice to re-file”).

trial brief

Also called a trial memorandum or points and authorities, this document is filed with the court to argue a legal issue, relying on law to support the party’s position. Often filed in support of a motion, it attempts to convince the reader and only argues points favorable to the client.

Motion for summary judgement

A pretrial motion asking the court to determine the outcome of the case based on the pleadings and motions rather than going to trial with a jury.

The argument- there are no material facts in dispute, only law.

A motion for summary judgment may also refer to a motion to limit the issues that will be dealt with at trial, referred to as a partial summary judgment. A successful partial summary judgment determines the outcome of some, but not all, of the issues before the court.

magistrate

A judicial officer who may preside over hearings, but does not have all the power of a judge.

Example- they ordinarily deal with procedural matters.

pretrial conference

A meeting between the court and the parties for clarification of procedural matters and to promote settlement.

stipulation

An agreement between counsel for the parties regarding a fact, issue, or point that will not be disputed at trial.

settlement agreement (settlement)

An agreement to end the litigation for an agreed-upon consideration, usually money.

at issue or in issue

A legal question to be answered by the court.

evidence

That which tends to establish or disprove a fact.

direct evidence

Evidence (from personal observation) that tends to establish a fact without the need for an inference.

Example: A witness who sees a gun fired can give direct testimony as to a shooting.

circumstantial evidence

Evidence of one fact that requires an inference to establish another fact.

Example: A witness who hears a shot, turns around and sees a man holding a gun can give circumstantial evidence as to a shooting.

oral evidence

Evidence given orally, also called testimonial evidence.

physical evidence

Evidence that can be touched, also called tangible or demonstrative evidence

admissible

The evidence that will be allowed to be considered by the jury.

docket

The court’s official calendar for trials and hearings to take place in that courtroom

set for trial

To set a date for trial upon which the attorneys, parties, and court agree.

jury, jurors

A group of citizens who will be called upon to hear the evidence and render a verdict. The jury is the trier of fact.

jury panel

The group from which a jury will be selected.

voir dire (for the jury)

To question prospective jurors.

challenge for cause

A method of dismissing a juror for good cause shown. Challenges for cause are unlimited in number.

peremptory challenge

A method of dismissing a juror for which no reason need be given. These challenges are limited in number, commonly three or six.

bailiff

Court employee who keeps order in the courtroom.

alternate juror

A person who sits to hear the entire case with the jury, but who will not deliberate or vote on a verdict unless one of the jurors is dismissed

opening statement

Presentations made by the attorneys at the beginning of a trial, stating the facts they intend to prove during the trial.

burden of proof

The degree to which something must be proved at trial. The party making an allegation or claim generally bears the burden of proof

preponderance of the evidence

The burden of proof in civil cases means that it is more likely than not that the party making the claims is believed.

rule on witnesses

A rule that states that a witness in a case may not be in the courtroom during the testimony of other witnesses.

Side note- Mostly used in criminal cases, it may be used in civil cases at the judge’s discretion.

Subpoena

The document issued under authority of the court to compel the appearance of a witness.

subpoena duces tecum

A document issued under authority of the court to compel the appearance of a witness and ordering the witness to provide specific documents.

objection

A formal challenge by opposing counsel to evidence or questions asked of a witness.

bench conference

A discussion between the judge and attorneys, usually conducted at the judge’s bench so the jury cannot hear what is said.

prejudicial

The tendency to cause bias even where no bias has existed previously.

Side Note- you'll often see it when talking about evidence.

probative value

The value of pursuing an investigative or probing line of questioning.

Simple Terms- evidence that helps prove a relevant fact.

preserving the record

An attorney making statements, or repeating a previously overruled motion, to protect any right to appeal the judge’s ruling at a later point.

sustain

To affirm an objection.

competency

Legal capacity to testify.

what are the elements of competency

• Understanding the obligation to tell the truth

• Knowledge of the topic of the testimony

• Ability to communicate.