ESTATE

All the property left by someone who has died. 

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, as well as the Judge.  The judge is the trier of law at the trial.  

Legally responsible

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

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

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

RETAINER

money paid to an attorney to secure his/her services.  Also refers to the contract between attorney & client.  An Attorney has been "retained" when he/she works in a representative capacity on behalf of the client. 

$$$$$$$$$$$$$$$$$$$$$$$$$$

APPEARANCE

When an attorney acts on behalf of a client in court.  It may be either an appearance in court in front of the judge or the filing of a document with the court on behalf of the client. 

Once an attorney has entered an appearance, they are the atty-of-record in the case. 

The place of the trial, the physical location. 

When a federal judge hears a case based on the fact both parties are from different states AND the amount of money claimed as damages exceeds the minimum set by federal statute is $75K. 

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

• The time limit for filing suit.  
• Suits filed after the time limit has run out will be dismissed.
• The clock generally starts to click at the time the damaged occurred (but not always - sometimes its when the person find out about the harm). 

• The pleading that initiates litigation filed by the Plaintiff.
• it contains the general allegations against the Def
• it is served with the summons

• A legally valid reason to sue
• One of the required elements of a complaint

• Equivalent to "This is what i believe happened"
• common legal phrase that qualifies a statement as being a fact only to the best knowledge of the person making the statement

ad damnum clause

• also called "wherefore clause" or "prayer for relief"
• Element of a complaint that askes for damages

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

• a group of citizens selected from the community to determine the outcome of a case.
• in most cases, either party has the right to demand a jury trial, but if both parties agree, the judge may act in place of a jury. this is most common in very technical issues i.e. complex contract situation

• a document is filed when it is presented to the clerk of the court.
• all documents and copies are date stamped by the clerk of the court at the time of the filing. 

• process is the summons & complaint
• service of process is the delivery of the summons & complaint upon the DEF in a court action
• service is usually done in person
• service may be made by mail, by publishing a notice in a newspaper or by serving a company
• serving a company is often done by serving a registered agent (someone who accepts service on behalf of a company)

• service of legal papers upon an individual
• as opposed to a business or registered agent 

• a person who is permitted by law to serve legal documents 

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• must be 18 years of age or older & not a party to the action

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

authority of a court to hear and decide a case

jurisdiction over the controversy - often property

• jurisdiction over property even though the property is not the controversy

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

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

• laws that govern the procedures of trials

• pleading filed by the defendant in response to the allegations contained in the complaint

• 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

• a claim by the DEF against the PL

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• sometimes the only determining factor whether a claim is an affirmative defense or a counterclaim is whether the DEF is alleging damages

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• a pleading presenting the Def's claim against the Plaintiff

• a claim by one defendant against a co-defendant

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• when an original defendant sues another original defendant

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• third-party claims are also cross claims

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• a third-party claim is a pleading where a def sues someone not yet a party to the action

• pleading where a DEF sues someone not yet a party to the action

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• this pleading is the plaintiff's response to a defendant's counterclaim

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a judgment by the court in the plaintiff's favor based on the fact that the defendant failed to respond in a timely fashion

• a request that the court take a specific procedural step

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• pleadings usually state legal positions about the matter before the court

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• motions are procedural in nature and act as a request for an order

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• the process of asking a court of law to decide the outcome of a dispute

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• a lawsuit

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

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• attempts to even the playing field by exposing all relevant facts upon which the court will ultimately base its decision

• written questions to the opposing party that must be answered under penalty of perjury

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• one form of discovery

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• i.e. describe the events leading to the accident

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

• failure to respond within a specified time period (usually 30 days) means the statements are assumed to be admitted

Discovery

• a request that documents or other physical items be provided for inspection

• This is a form of discovery that may require court approval so that it cannot be used to intimidate
• request that the other party, usually the PL, be subjected to a mental or physical examination

• questions that must be answered under oath

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• take place out of court in an atty's office with a court reporter transcribing the testimony

certificate of mailing 

or 

certificate of service 

(mean the same thing)

• When a document is filed with the court or when discovery is sent to a party a certificate of mailing is usually attached. 

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• The certificate attests that a true & correct copy of the document was sent to all parties

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• the certificate should be signed the person who puts it in the mail unless the state requires the atty's signature

• an official command by the court

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• usually demanding that one or both parties perform an act

• a proceeding in court where the judge and both parties are present

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the right to refuse to testify 

OR

to prevent someone else from testifying

• a hearing where only one party is present

• i.e. a hearing on a motion for a restraining order

• 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"

• asking the court to dismiss a case without going to trial

• a case is dismissed and may not be brought up again because the court has made its mind up about the case

• case is dismissed but may be filed again b/c the court has not made up its mind about the matter

• i.e. dismissed without prejudice to re-file

• also called trial memorandum or points of authorities

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• this document is filed with the court to argue a legal issue

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• it relies on law to support the party's position

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• often filed in support of a motion

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• it attempts to convince the reader

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• only argues points favorable to the client

• 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

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• the argument is that there are no material facts in dispute - only law - & since the jury is the trier-of-fact there is no need for a jury or trial

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• may also be referred to as a motion to limit the issues  that will be dealt with at trial or partial summary judgment 

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• a successful partial summary judgment determines the outcome of some, but not all the issues, before the court

• a judicial officer who may preside over hearings

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• a magistrate does not have all the powers of a judge

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• a magistrate ordinarily deals with procedural issues

• meeting b/w the court & the parties for clarification of procedural matters & to promote settlement

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• an agreement b/w counsel for the parties regarding a fact, issue or point that will not be disputed at trial

• an agreement to end the litigation for an agreed-upon consideration -- usually money $$$

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at issue 

or

in issue

a legal question to be answered by the court

that which tends to establish or disprove a fact

• evidence from direct observation that tends to establish a fact w/o the need for an inference

• i.e. a witness who sees a gun fired can give direct testimony as to a shooting

• evidence of one fact that requires inference to establish another fact

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• i.e. a witness hears a shot, turns around and see a man holding a gun, can give circumstantial evidence as to the shooting

• evidence given orally

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• also called testimonial evidence

• evidence that can be touched

• also called tangible or demonstrative evidence

• the evidence that will be allowed to be considered by the jury

• the jury will decide whether or not to believe the evidence

• the court's official calendar for trials and hearings to take place in that courtroom

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• to set a date for a trial in which the attorneys, parties, and court agree

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jury 

jurors

• a group of citizens who will be called upon to hear the evidence and render a verdict

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• the jury is the trier of fact

to question potential jurors

• in voir dire, a method of dismissing a juror for good cause shown

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• are unlimited in number

• in voir dire, a method of dismissing a juror for which no reason need be given  

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• these challenges are limited in number - commonly 3 or 6

court employee who keeps order in the courtroom

• 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

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• civil cases in many jurisdictions have no alternates - instead - the parties & judge agree on the # of original jurors & how many may be dismissed

• presentations made by the attorneys at the beginning of trial stating the facts they intend to prove at trial

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• the degree to which something must be proved at trial

• the party making the allegation or claim generally bears the burden of proof 

• the burden of proof in civil cases means it is more likely than not that a fact is as a party alleges to be

• the burden of proof in criminal matters is beyond a reasonable doubt - a higher standard

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

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• used mostly in criminal cases

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• may be used in civil cases at the judge's discretion

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

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• a document issued under the authority of the court to compel the appearance of a witness & ordering the witness to provide specific documents

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

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• a discussion b/w the judge & attorneys

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• usually conducted at the judge's bench so the jury cannot hear what is said

• the tendency to cause bias even where no bias has existed previously

• the value of pursuing an investigative or probing line of questioning

an attorney making statements or repeating a previously overruled objection to protect any right to appeal at a later point

legal capacity to testify 

The elements of competency are:

• understanding the obligation to tell the truth
• knowledge of the topic of the testimony
• ability to communicate

questions directed at a witness

• who is under oath in court
• or at a deposition

questioning the witness first

• the party calling the witness to the stand conducts the direct examination

after direct examination,

• the other party may cross-examine the witness

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• but is limited to the topics brought up under direct questioning (the "scope")

• the party conducting direct examination conducts the redirect examination to clarify matters brought up during cross

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• The party conducting redirect cannot introduce a new line of questioning, but is limited to matters during cross

• the party conducting cross examination conducts the recross examination, but is limited to matters brought up during redirect 

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Many courts do not typically allow recross examination

• the event or point at which a series of incidents begins ultimately resulting in an event with damages

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• establishment of a duty 
• followed by a breach of that duty
• resulting in damages

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in order to be actionable, the negligence must have been the proximate cause of the damages

negligence generally means an act is accidental,

not intentional

• the judge instructs the jury to leave the courtroom temporarily

• tending to prove or disprove a fact at issue

• to have certain testimony removed from the record of the trial

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• usually accompanied by an admonition to the jury that when deliberating they are not to consider the testimony they just heard

the person or persons responsible

for the court files and exhibits

a physical item presented to support an argument

• an attorney must "move" for a piece of evidence to be admitted into evidence

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• If the motion is granted, the evidence will be assigned a number, or a letter, & labeled

when a party is finished presenting evidence - it rests

to present a motion to the court 

• The court is asked to decide the outcome of a case b/c the PL has failed to establish a prima facie case

a case that is sufficient on its face

• if all facts alleged by the PL are eventually proved true at trial, the PL deserves to be awarded damages

• a prima facie case must exist at all stages of the proceedings from the filing of the complaint through trial

• if at any point during litigation a party can establish that a prima facie case does not exist -- the case should be dismissed

• the court delays a ruling on a motion so that the motion may be considered 

• a person who has been qualified by the court to have experience and knowledge in a specific area &

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• who will be allowed to express opinions related to his/her area of knowledge

• To establish an expert witness's expertise in a specific area

• to question a potential witness to determine his or her competency or the appropriateness of his/her testimony

• each atty addressing the jury or the court at the end of trial attempting to persuade prior to deliberations

• guidelines to the jury about how the law is to be applied & the facts that may be considered during its deliberations

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• May also be referred to as a charge to the jury

• a jury's discussion of the case, in private, following the trial, with the goal of rendering a verdict

the final conclusion of the jury

foreperson

(foreman or forewoman)

• the member elected by the jury to lead the deliberations and speak for the jury

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Motion for Judgment NOV

(notwithstanding the verdict)

• a motion asking the court to disregard the jury's verdict & replace it with the court's own verdict

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• NOV stands for Non Obstante Verdicto

the final conclusion of the court

• in civil cases, the judge usually enters the jury's verdict into judgment
• However, the judge has the power to alter or overturn the jury's verdict

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• in criminal cases, the judge cannot overturn a jury's finding of not guilty, but the court may overturn a guilty verdict 

When the judge adds to the amount a jury has awarded

Typically, the judge will give the party who must pay the award

• the choice of an increased award OR
• a new trial will be granted to the other side

• the process whereby a judge subtracts from the amount of damages a jury has awarded

• In effect, the judge gives the party awarded damages the choice of either accepting a lesser amount, or a new trial will be granted to the other side 

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the inverse of an additur

• a request that a judge order a new trial because of procedural errors. 

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• A party must file this motion in order to later appeal--fulfilling the obligation to exhaust all available remedies. 

• to ask the court at the next higher level to determine whether the trial court erred

• a party who loses in the trial court has the right to have their case heard by the next highest appellate level court in civil court

• There are circumstances in which an appellate level court has no choice but to hear the appeal, such as some death penalty cases in state criminal courts. 

• to give up a right

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• a waiver may be either voluntary or involuntary or the result of an action, or inaction, by the party.  

• to delay the implementation of a court's order

• written notification in motion form that a party intends to appeal

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• most court rules require that the motion be filed with the trial court, the appellate court, and sent to any other parties involved in the action.

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• a party has the automatic right to one appeal to the next highest court

• a sum of money held by the court to ensure that the funds from the award will be available after the appellate process

• doctrine stating that a case decided on its merits may not be re-litigated

• to prevent or stop

• the party responding to an appeal

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• the official collection of all pleadings, exhibits, motions, orders, and transcripts of the trial

• a written argument by a party covering the issues on appeal

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• called points of error

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• the brief by the appellate is usually referred to as the appellate brief

• the brief filed by the respondent is usually referred to as the response brief

• the questions that are the basis for the appeal

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• also called issues on appeal

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• these questions point to potential errors of the trial court

• a written answer to the appellate brief

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• an oral presentation to an appellate court

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• the party must request an oral argument & that request is not always granted

• the portion of an appellate-level court that hears a case

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• usually a panel is made up of three judges

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• when the entire appellate level court sits to hear and decide a case indicating the case has a high level of importance

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• written decision of the court

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• the strongest form of opinion

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• when more than 50% of the court agrees on a decision

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• a majority opinion is law until it is superseded or overturned

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• the appellate court agrees with the decision of the trial court

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• the appellate court disagrees with and nullifies the decision of the trial court

• the appellate court alters the decision of the trial court

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• the appellate court sends the case back to the trial court for further deliberation

• opinion of 1 or more judges that agrees with the results of the majority, but arrives at that result for different reasons

• opinion that disagrees with the majority opinion

• to make a formal request to the court.

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• some states refer to complaints as petitions depending on the action filed

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• a petition for the dissolution of a marriage would involve a petitioner and respondent rather than a plaintiff and defendant.

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• a second chance to present arguments to the court on the same issues

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• to make a formal request to the court

• a 2nd chance to present arguments to the court on the same issues

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• the vehicle by which the case is taken from the court of appeals (state or federal) to the supreme court (state or federal)

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• also how a state supreme court is heard by the U.S. Supreme Court

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• If the higher court approves the petition, the higher court hears the case.  If denied, the decision of the lower court stands

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• also referred to as the writ of cert

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