Paralegal Certification- Ch. 10 Vocabulary on Litigation

Chapter 10 Vocab for Civil and Criminal Litigation breakdown.

Litigation

The formal process of resolving a legal dispute through the courts.

Civil Dispute

A legal controversy in which (a) one private person or entity sues another; (b) a private person or entity sues the government, (c ) The government sues a private person or entity for a matter other than the commission of a crime.

Criminal Dispute

A legal controversy in which the government alleges the commission of a crime.

Damages

An award of money paid by the wrongdoer to compensate the person who has been harmed.

Liable

Legally Responsible

Joint and Several Liability

Legally responsible together and individually. Each wrongdoer is individually responsible for the entire debt or judgment. The injured party can choose to collect the full debt or judgment from one wrongdoer or from all of them until the debt or judgment is satisfied.

Retain

To hire

Retainer

The act of hiring or engaging a professional’s services is usually a professional.

Contingent Fee

A fee paid only if the case is successfully resolved through litigation or settlement, regardless of the number of hours spent on the case.

Appearance

Formally coming before a tribunal as a party or as a representative of a party. An attorney usually appears by filing a notice of appearance in court which in some courts is accomplished through praecipe.

Attorney of Record

The attorney is noted in the court files as the attorney representing a particular party.

Forum

1) A court 2) The place where the parties are presently litigating their dispute

Estate

All of the assets and liabilities of a decedent at the time of his or her death. When an estate is sued, we are referring to the decedent’s representatives who are authorized to resolve claims involving the decedent’s assets and debts.

Subject-matter Jurisdiction

The court’s power to resolve a particular type of legal dispute and to grants a particular type of relief.

Diversity of Citizenship

The disputing parties are citizens of different states, and the amount in controversy exceeds $75,000.

U.S. District Court

The main trial court in the federal judicial system with subject-matter jurisdiction over civil and criminal cases.

Venue

The proper county or geographic area in which a court with jurisdiction may hear a case.

Complaint

A Plaintiff’s first pleading, stating a cause of action against the defendant. Also called a petition.

Plaintiff

The person who initiates a civil action in court.

Cause of Action

1 ) A legally acceptable reason for suing. A rule that constitutes a legal theory for bringing a suit. 2) The fact that gives a person a right to judicial relief.

Negligence

The failure to use reasonable care that an ordinary prudent person would have used in a similar situation, resulting in injury or other loss.

Stating a Cause of Action

including facts in a pleading that, if proved at trial, would entitle the party to the judicial relief sought.

Co-Defendant

Two or more defendants who are sued in the same civil case or who are prosecuted in the same criminal case.

Pleading

A formal litigation document filed by a party that states or responds to the claims and defenses the parties have against each other. The major pleadings are the complaint and answer.

Allegation

A claimed fact. A fact that a party will try to prove at trial.

Information and Belief

Good-faith belief as to the trust of an allegation, not based on firsthand knowledge. A standard legal term used to indicate that the allegation is not based on the firsthand knowledge of the person making the allegation, but that the person, nevertheless, believes in good faith that the allegation is true.

Prayer for Relief

The request in a pleading for damages or other forms of judicial relief.

Ad Damnum Clause

A clause stating the damages claimed.

Subscription

1) A signature. 2) The act of signing one’s name.

Verification

A formal declaration that a person has read a document and swears that it is true to the best of his or her knowledge

Bench Trial

A trial before a judge without a jury can also be called a nonjury trial

Jury Trial

A trial in which a group of persons resolves the issues or questions of fact. The judge decides the issues or questions of law. In a bench trial, the judge decided both the question of law and the question of fact.

File

To deliver a document to a court officer so that it can become part of the official collection of documents in a case

Civil Cover Sheet

A form filed in court in a civil case that indicates the names and addresses of the parties and their attorneys, the kind of action being filed, etc. The form is filed with the complaint.

Docket

A court’s list of its pending cases. Also called a calendar. Once all the necessary papers have been filed, the case is: docketed” by the clerk, i.e., placed on the court’s official calendar.

Service of Process

A formal delivery of notice to a defendant that a suit has been initiated to which he or she must respond. The most common method of service of process is to place the complaint and summons in the hands of the defendant. This is called personal service. If another form of service is allowed, it is called substituted service or constructive service.

Summons

A notice directing the defendant to appear in court and answer the plaintiff’s complaint or face a default judgment.

Default Judgment

A judgment against a party for failure to file a required pleading or otherwise respond to an opponent’s claim.

Process Server

Someone who serves or delivers process.

Proof of Service

A sworn statement that a summons or other process has been served on a party in an action. Also called certification of service or return of service.

Statute of Limitations

A law stating that civil or criminal actions are barred if not brought within a specified time. The action is time-barred of not brought within that time.

Personal Jurisdiction

A court’s power over a person to determine (adjudicate) his or her personal rights. Also called in personam jurisdiction. More limited kinds of jurisdiction include the court’s power over a person’s interest in specific property over the property itself, or over a status such as marriage.

Adjudicate

To resolve or decide by judicial process; to judge.

Litigation Hold

A notice that a legal dispute has occurred and that the information pertinent to the dispute must be preserved by the person or organization in possession or custody of such information. Failure may result in a sanction for spoliation.

Spoliation

Intentionally destroying, altering, or concealing evidence.

Motion

An application or request made to a court or other decision-making body seeking to obtain a favorable action or ruling. The party making the motion is called the movant. The verb is move as in “I move that the court permit the demonstration”.

Movant

A party masking a motion or request.

Motion to Dismiss

A request, often made before the trial begins, that the judge dismiss the case because the parties have settled or because of a serious procedural deficiency.

Failure to State a Cause of Action

Failure of a party to allege enough facts that, if proved, would entitle the party to judicial relief. Even if the party proved every fact he or she alleged, the facts would not establish a cause of action entitling the party to recover against the opponent. The motion to dismiss failure to state a cause of action is sometimes referred to as a) Demurrer or b) A failure to state a claim upon which relief can be granted.

Ruling

The conclusion or outcome of a decision made by a court or administrative agency.

Procedural Law

The rules that govern the mechanics of resolving a dispute in court or in an administrative agency.

Federal Rules of Civil Procedure (FRCP)

The rules that govern the mechanics of resolving a dispute by a U.S. District Court, which is the main federal trial court.

Substantive Law

Nonprocedural laws that define or govern rights and duties.

Defense

An Allegation of fact or a legal theory offered to offset or defeat a claim or demand. The word defense also means the defendant and his or her attorney.

Affirmative Defense

A defense raising facts or arguments that will defeat the opponent’s claim even if the opponent’s allegations in the claim are proven.

Contributory Negligence

The failure of the plaintiff to use such reasonable care for their own protection as an ordinary prudent person would have used in a similar situation, thereby helping to cause their own injury or other loss.

Cross-Claim

A claim brought by one defendant against another defendant or by one plaintiff against another plaintiff in the same action. Also called a cross-action.

Counter-Claim

A claim made by one side in a case (usually the defendant) that is filed in response to a claim asserted by an opponent (usually the plaintiff).

Reply

A plaintiff’s response to the defendant’s counterclaim, plea, or answer.

Third-Party Complaint

A defendant’s complaint against someone who is not now a party on the basis that the latter may be liable for all or part of what the plaintiff might recover from the defendant.

Contest

1) To challenge, 2) To raise a defense against a claim

Adverse Judgment

A judgment or decision against you.

Pre-Trial Conference

A meeting of the attorneys and the judge before the trial to attempt to narrow the issues, to secure stipulations, and to make efforts to settle the case without a trial. Also called a trial management conference

Stipulation

An agreement between opposing parties about a particular matter. Once the parties have reached a stipulation about a fact, neither side is required to offer evidence as to the existence or nonexistence of the fact at trial.

Magistrate

A judicial officer having some but not all of the power if a judge. In federal trial courts (U.S. District Courts), the magistrate may conduct many of the preliminary or pretrial proceedings in both civil and criminal cases.

Discovery

Methods used by parties to force information from each other before trial to aid in trial preparation. Examples of such methods include interrogatories and depositions. The methods can also be used to aid in the enforcement of a judgment.

Settlement

An agreement resolving a dispute without full litigation.

Scheduling Order

A pretrial order of a magistrate or judge that sets time limits for discovery, filings, further pretrial conferences, and other related pretrial matters.

Interrogatories

A method of discovery by which one party sends written questions to another party.

Deposition

A method of discovery by which parties and their prospective witnesses are questioned by the opposing party before trial at a location other than the courtroom. The person who is questioned (deposed) is called a deponent. A recording or transcript is made of the deposition.

Deponent

A person who is questioned in deposition

Transcript

A word-for-word account of what was said. A written copy of what was said. The court reporter prepares this transcription, which is paid for by the parties requesting it. In many courts, real-time transcription is also available, whereby a draft of the typed testimony is made available on computer screens while the witness is testifying in court.

Court Reporter

The person who takes down and transcribes proceedings.

Real Time

Occurring now; happening as you are watching; able to respond or otherwise interact immediately or within seconds.

Request for Admission (RFA)

A method of discovery by which one party sends a request to another party that the latter agrees that a certain fact or legal conclusion is true or valid so that there will be no need to present proof or arguments about that matter during the trial.

Subpoena Duces Tecum

A command to appear at a certain time and place and bring specified things, such as documents

Order

An official command by a court requiring, allowing, or forbidding something.

Request for Production (RFP)

A method of discovery by which one party requests that another party provide access to electronically stored data, paper documents, or other tangible things for copying or inspection. The method can also include a request to enter the party’s land for inspection.

Hearing

A proceeding designed to resolve issues of fact or law. An impartial officer presided at the hearing, the parties presented evidence, etc. The hearing is ex parte if only one party is present; it is adversarial if both parties are allowed to be present, even if only one side is before the hearing officer.

Ex Parte

With only one side present (usually plaintiff or petitioner) when court action is requested.

Adversarial

Involving Conflict and an adversary.

Summary Judgment

A judgment of the court that is rendered without a full trial because of the absence of conflict on any of the material facts. A motion for summary judgment is a request by a party that a decision be reached on the basis of the submitted documents and already agreed-upon facts without going through a full trial. A summary judgment is normally allowed only when there is no dispute between the parties as to any of the material or significant facts. Summary Judgment can be granted on the entire case or on individual claims or defenses within the case.

Issue

1) A question to be resolved; 2) A question of law. A question of what the law is, what the law means, or how the law applies to the facts. Also called a legal issue, an issue of law. The judge will resolve such issues; 3) A question of fact.

Tangible Evidence

Physical evidence; evidence that has a physical form

Introduce Evidence

To place evidence formally before a court or other tribunal so that it will become part of the record for consideration by the judge.

Set for Trial

To schedule a date when the trial is to begin

Bailiff

A court employee who keeps order in the courtroom and renders general administrative assistance to the judge.

Jury Panel

A group of citizens who have been called for jury duty. From this group, juries for particular trials are selected. Also called the venire, the jury pool

Vore Dire

A preliminary examination of a) prospective jurors for the purpose of selecting persons qualified to sit on a jury or b) prospective witnesses to determine their competence to testify

Challenge for Cause

A request from a party to a judge that a prospective juror not be allowed to become a member of this jury because of specific causes or reasons

Bias

An inclination, tendency, or predisposition to think or act in a certain way

Peremptory Challenge

A request from a party to the judge asking that a prospective juror not be allowed to become a member of this jury without stating a reason for this request. Each side is allowed a limited number of such challenges. The request will be granted unless it is used to discriminate based on race, sex, or ethnicity.

Alternate

An extra juror who will take the place of a regular juror if one is removed or becomes incapacitated during the trial.

Empanel

Select and Swear in

Motion in Limine

A request raised preliminarily, such as asking the court for a ruling on the admissibility of evidence before or during trial, but before the evidence has been offered

Rule on witnesses

A rule that requires certain witnesses to be removed from the courtroom until it is time for their individual testimony so that they will not be able to hear each other’s testimony

Sequester

1) To separate or isolate a jury or witness. 2) To seize and hold funds or other property

Opening Statement

An attorney’s statement to the jury made before presenting evidence. The statement summarizes or previews the case that the attorney intends to try to establish during the trial.

Burden of Proof

The responsibility of proving a fact at the trial. Generally, the party making the factual allegation has the burden of proof as to that allegation

Sidebar Conference

A discussion between the judge and the attorneys takes place at the judge’s bench so that the jury cannot hear what is being said