BLS 342 Ch 5-6

Affidavits: a written voluntary statement of fact, 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

Affirmative defence: a response to a plaintiff’s claim that does not deny the plaintiff’s facts but attacks the plaintiff’s legal right to bring the action. An example is the running of the statue of limitations

Answer: a defendant’s response to the plaintiff’s complaint 

Brief: 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, judges rulings or jury’s findings that should be reversed or modified

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

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

Counterclaim: a claim made by a defendant in a civil lawsuit that, in effect, sues the plaintiff

Cross-examination: the questioning of an opposing witness during a trial

Default judgement: a judgement entered by a court against a defendant who has failed to appear in court to answer or defend against the plantiff’s claim

Deposition: the testimony of a party to a lawsuit or of a witness taken under oath before a trial

Direct examination: the examination of a witness by the attorney who calls the witness to stand at trial to testify on behalf of the attorney's client

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

E-evidence: a type of evidence that consists of computer generated or electronically recorded information

Federal Rules of Civil Procedure (FRCP): the rules controlling procedural matters in civil trials brought before the federal district courts

Hearsay: oral or written statement made out of court that is later offered in court by a witness to prove the truth of the matter asserted in the statement

Impeach: 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

Metadata: data that’s automatically recorded by electronic devices on their hard drives and that provide information about who created a file and who accessed, modified, etc.

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

Motion for a directed verdict: a party’s request that the judge enter a judgement in their favor before the case is submitted to a jury because the other party has not presented sufficient evidence to support the claim.

Motion for a judgement as a matter of law: In a federal court, a party’s request that the judge enter a judgement in their favor before the case is submitted to a jury because the other party has not presented sufficient evidence to support the claim 

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

Motion for judgement: a motion requesting the court to grant judgement in favor of the party making the motion on the ground that the jury verdict against them was unreasonable and erroneous

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

Motion for summary judgement: a motion requesting the court to enter judgement 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 

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.

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.

Pretrial motions: a written or oral application to a court for a ruling or order, made before trial

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 admissible evidence in trial courts

Service of process: delivery of the complaint and summon to a defendant

Summons: 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 plantiff’s complaint

Verdict: formal decision made by a jury

Voir dire: “to see, to speak” jury selection process, attorneys determine biases

Writ of execution: court’s order, after a judgement has been entered against the debtor, directing the sheriff to seize and sell any of the debtor’s nonexempt real or personal property

Actionable: Capable of serving as the basis of a lawsuit.

Actual malice: A condition that exists when a person makes a statement with either knowledge of its falsity or reckless disregard for the truth. In a defamation suit, a statement made about a public figure normally must be made with actual malice for liability to be incurred.

Assault: Any word or action intended to make another person fearful of immediate physical harm; a reasonably believable threat.

Assumption of risk: A defense against negligence that can be used when the plaintiff was aware of a danger and voluntarily assumed the risk of injury from that danger.

Battery: The unprivileged, intentional touching of another.

causation in fact: an act or omission without (“but for”) which an event would not have occurred.

Comparative negligence: A theory in tort law under which the liability for injuries resulting from negligent acts is shared by all parties who were negligent (including the injured party) on the basis of each person’s proportionate negligence.

Compensatory damages: a money award equivalent to the actual value of injuries or damages sustained by the aggrieved party

contributory negligence: A theory in tort law under which a complaining party’s own negligence contributed to or caused their injuries. Contributory negligence is an absolute bar to recovery in a minority of jurisdictions.

Conversion: wrongful taking, using, or retaining possession of personal property that belongs to another

Disparagement of property: economically injurious false statement made about another’s product or property. A general term for torts that are most specifically referred to as slander of quality or slander of title

Duty of care: duty of all persons, as established by tort law, to exercise a reasonable amount of care in their dealings with others. 

Intentional tort: wrongful act knowingly committed

Libel: defamation in writing or in some other form having the quality of permanence

Licensee: one who received a license to use, or enter onto, another’s property

Malpractice: professional misconduct or the failure to exercise the requisite degree of skill as a professional

Negligence: failure to exercise the standard of care that a reasonable person would exercise in similar circumstances

Privilege: ability to act contrary to another person’s right without that person’s having legal redress for such acts. Privilege may be raised as a defense to defamation.

Proximate cause: Legal cause; exists when the connection between an act and an injury is strong enough to justify imposing liability.

Puffery: salesperson’s exaggerated claims concerning the quality of goods offered for sale. Such claims involve opinions rather than facts and are not considered to be legally binding promise or warranties

Punitive damages: money damages that may be awarded to a plaintiff to punish the defendant and deter future similar conduct

Reasonable person standard: The standard of behavior expected of a hypothetical “reasonable person.” The standard against which negligence is measured and that must be observed to avoid liability for negligence.

Slander: deformation in oral form

Slander of quality: publication of false information about another’s product, alleging that is not what its seller claims

Slander of title: The publication of a statement that falsely denies or casts doubt on another’s legal ownership of property, causing financial loss to that property’s owner.

Special damages: amount awarded to compensate the plaintiff for quantifiable monetary losses, such as medical expenses, property damage

Superseding cause: an intervening force or event that breaks the connection between a wrongful act and an injury to another

Tort: A civil wrong not arising from a breach of contract. A breach of a legal duty that proximately causes harm or injury to another

trade libel: The publication of false information about another’s product, alleging that it is not what its seller claims; also referred to as slander of quality

Transferred intent: A legal principle under which a person who intends to harm one individual, but unintentionally harms a different individual, can be liable to the second victim for an intentional tort.