Chapter 5: Court Procedures

Business Law

Federal Rules of Civil Procedure (FRCP)

The rules controlling procedural matters in civil trials brough before the federal district courts.

Complaint

The pleading made by a plaintiff alleging wrongdoing on the part of the defendant; the document that, when filed with a court, initiates a lawsuit.

Service of Process

The delivery of the complaint and summons to a defendant.

Summons

A document informing a defendant that a legal action has been commenced against them and that the defendant must appear in court on a certain date to answer the plaintiff’s complaint. The document is delivered by a sheriff or any other person so authorized.

Default Judgment

A judgment entered by a court against a defendant who has failed to appear in court to answer or defend against the plaintiff’s claim.

Answer

Procedurally, a defendant’s response to the plaintiff’s complaint.

Affirmative Defense

A response to a plaintiff’s claim that does not deny the plaintiff’s facts but attacks the plaintiff’s legal right to bring an action. An example is the running of the statute of limitations.

Counterclaim

A claim made by a defendant in a civil lawsuit that, in effect, sues the plaintiff.

Motion

A procedural request or application presented by an attorney to the court on behalf of a client.

Pretrial Motions

A written or oral application to a court for a ruling or order, made before trial.

Motion to Dismiss

A pleading in which a defendant asserts that the plaintiff’s claim fails to state a cause of action (that is, has no basis in law) or that there are other grounds on which a suit should be dismissed.

Motion for Judgment on the Pleadings

A motion by either party to a lawsuit at the close of the pleadings requesting the court to decide the issue solely on the pleadings without proceeding to trial. The motion will be granted only if no facts are in dispute.

Motion for Summary Judgment

A motion requesting the court to enter a judgment without proceeding to trial. The motion can be based on evidence outside the pleadings and will be granted only if no facts are in dispute.

Affidavits

A written voluntary statement of facts, confirmed by the oath or affirmation of the party making it and made before a person having the authority to administer the oath or affirmation.

Discovery

A phase in the litigation process during which the opposing parties may obtain information from each other and from third parties prior to trial.

Deposition

The testimony of a party to a lawsuit or of a witness taken under oath before a trial.

Impeach

To challenge the credibility of a person’s testimony or attempt to discredit a party or witness.

Interrogatories

A series of written questions for which written answers are prepared and then signed under oath by a party to a lawsuit, usually with the assistance of the party’s attorney.

E-evidence

A type of evidence that consists of computergenerated or electronically recorded information, including e-mail, voice mail, spreadsheets, word-processing documents, and other data.

Metadata

Data that are automatically recorded by electronic devices on their hard drives and that provide information about who created a file and when, and who accessed, modified, or transmitted it. Metadata can be described as “data about data.”

“Voir Dire”

(pronounced vwahr deehr) A French phrase meaning, literally, “to see, to speak” that refers to the jury-selection process. In voir dire, the attorneys question prospective jurors to determine whether they are biased or have any connection with a party to the action or with a prospective witness.

Brief

A formal legal document submitted to an appellate court when a case is appealed. The appellant’s brief outlines the facts and issues of the case, the judge’s rulings or jury’s findings that should be reversed or modified, the applicable law, and the arguments on the client’s behalf. The appellee usually files an answering brief.

Closing Argument

An argument made at a trial after the plaintiff and defendant have rested their cases. Closing arguments are made prior to the jury charges.

Cross-examination

The questioning of an opposing witness during a trial.

Motion for a New Trial

A motion asserting that the trial was so fundamentally flawed (because of error, newly discovered evidence, prejudice, or other reason) that a new trial is necessary to prevent a miscarriage of justice.

Hearsay

An oral or written statement made out of court that is later offered in court by a witness (not the person who made the statement) to prove the truth of the matter asserted in the statement. Hearsay is generally inadmissible as evidence.

Direct examination

The examination of a witness by the attorney who calls the witness to the stand at trial to testify on behalf of the attorney’s client.

Opening Statements

A statement made to the jury at the beginning of a trial by a party’s attorney, prior to the presentation of evidence. The attorney briefly outlines the evidence that will be offered and the legal theory that will be pursued.

Pleadings

Formal statements made by the plaintiff and the defendant in a lawsuit that detail the facts, allegations, and defenses involved in the litigation; the complaint and answer are part of the pleadings.

Rebuttal

The refutation of evidence introduced by an adverse party’s attorney.

Rejoinder

The defendant’s answer to the plaintiff’s rebuttal.

Relevant Evidence

Evidence tending to make a fact at issue in the case more or less probable than it would be without the evidence. Only relevant evidence is admissible in court.

Rules of evidence

Rules governing the admissibility of evidence in trial courts.

Verdict

A formal decision made by a jury.

Writ of Execution

A court’s order, after a judgment has been entered against the debtor, directing the sheriff to seize (levy) and sell any of the debtor’s nonexempt real or personal property. The proceeds of the sale are used to pay off the judgment, accrued interest, and costs of the sale. Any surplus is paid to the debtor.

Motion for judgment n.o.v.

A motion requesting the court to grant judgment in favor of the party making the motion on the ground that the jury verdict against them was unreasonable and erroneous.

Motion for a Directed Verdict

In a state court, a party’s request that the judge enter a judgment in their favor before the case is submitted to a jury because the other party has not presented sufficient evidence to support the claim. The federal courts refer to this request as a motion for judgment as a matter of law.

Motion for a Judgment as a Matter of Law

In a federal court, a party’s request that the judge enter a judgment in their favor before the case is submitted to a jury because the other party has not presented sufficient evidence to support the claim. The state courts refer to this request as a motion for a directed verdict.