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Civil Law Definitions

Lawsuit Definitions Volk Law Offices, P.A. © 2011

Admissible evidence – Evidence that can be considered by the Judge or Jury in reaching a decision in a  trial.

Affidavit – A written statement of facts made under oath. In civil cases, affidavits of witnesses are often used to support Motions for Summary Judgment.  The person signing is the Affiant.

Affirmative Defense – A legal excuse for not being liable to another.  An example is a Statute of Limitations saying a type of claim must be sued upon within a certain period of time.  If you wait to long, you may not be able to win your lawsuit.

Allegation – A factual or legal statement in a lawsuit document which a person is prepared to prove in court.

Alternative dispute resolution – Settling a dispute without trial. Methods include mediation and arbitration.

Answer – The defendant’s response to the plaintiff’s allegations as stated in a complaint.

Appeal – An application for review of an order or judgment.

Appearance – A written notice by an attorney stating that he is representing a party.

Appellate court – A court having jurisdiction to hear appeals and review a trial court’s procedure.

Arbitration – An alternative dispute resolution in which the parties bring their dispute to a neutral third party Arbitrator and agree to abide the Arbitrator’s decision. The Final Hearing is like a trial. 

At Issue – After the parties have stated their claims and defenses against each other, the matter is at issue and a trial can be requested.

Bench Trial – Trial without a jury in which a judge decides the case.

Brief – A written statement which argues a view of the facts of a case and the applicable law.

Burden of Proof – The need to prove facts in dispute on an issue raised between the parties in a lawsuit. The responsibility of proving a point or points; the standard of proof indicates the degree to which the point must be proven. For example, in a civil case the burden of proof rests with the plaintiff, who must establish her case by such standards of proof as a preponderance of evidence or clear and convincing evidence.

Calendar – List of cases scheduled for hearing in court.  Also called a docket.

Caption (or Style) – The heading on a legal document listing the parties, the court, the case number, and related information.

Case Law – Law established by previous court decisions.

Certified copy – a court document that is authenticated, signed and sealed by the clerk or deputy clerk.

Certiorari – A type of Appeal sought before a case is finished.  Also, a small number of cases are begun by a Petition for Writ of Certiorari.

Challenge – Term used in a jury trial when attempting to exclude a potential juror.

Challenge for Cause – Objection to a potential juror for a stated reason (usually bias or prejudice for or against one of the parties in the lawsuit.) The judge has the discretion to deny the challenge. This differs from a peremptory challenge.  Each side in a case has a small number of these and no cause for objection is required. 

Chambers – A judge’s private office. Hearings are often conducted in chambers rather thanin the courtroom

Change of venue – Moving a lawsuit trial to another place for trial.

Charge to the jury – The judge’s instructions to the jury concerning the law that applies to the facts of the case.

Civil Action – Noncriminal cases.

Civil Procedure – Rules by which a civil case is tried and appealed, including formatting of pleadings and challenges to same, discovery of information and materials from an opponent, Summary Judgment to try and win without a trial, conduct of the trial, and Motions after a trial.

Closing Argument – An attorney’s presentation to the trier of facts (Jury or Judge in a Non-Jury Trial) summarizing the facts and law after all parties have concluded their presentation of evidence.

Common Law – The legal system that originated in England and is now in use in the United States. It is based on judicial decisions rather than legislative action.

Complaint – The document that usually begins a civil lawsuit. It states the alleged facts and elements of each legal claim for recovery and identifies the action the court is asked to take.

Contempt of court – An act of disrespect to the court including  willful disregard of the court’s authority.

Continuance – Postponing a trial or hearing to a later date.

Corroborating Evidence – Evidence that tends to strengthen or confirm other evidence.

Counsel – Lawyers in a case.

Counterclaim – A claim made by the defendant in a civil lawsuit against the plaintiff. In essence, a counter lawsuit within a lawsuit.

Clerk of Court -An officer elected to oversee the administrative, non-judicial activities of the court.

Court – Government entity which resolves legal disputes. Judges sometimes use “court” to refer to themselves in the third person, as in “the court has read the brief.”

Court costs – The expenses of prosecuting or defending a lawsuit, other than the attorneys’ fees. Some costs may be awarded to the successful party and may be recoverable from the losing party.

Court reporter – A privately employed person who maintains the verbatim record of court proceedings.

Cross-Claim – A claim by a defendant against another defendant.

Cross-Examination – Questioning of a witness after the witness is questioned by the other side.

Damages – Money awarded by a court to a person injured by the unlawful act of another person.

Declaratory judgment – A judgment of the court that explains a party’s rights without the need for enforcement of those rights.

Default – Failure to respond to a lawsuit within the specified time.

Default Judgment – A judgment entered against a party who has defaulted.

Defendant – A person being sued.

Deposition – A question and answer session in which the witness being questioned has been sworn to testify truthfully. Such statements are taken to examine potential witnesses, to obtain discovery, to be used later in trial. Testimony of a witness other than in open court.

Directed verdict – An instruction by the judge to the jury to return a specific verdict.

Direct Evidence – Proof of facts by witnesses who saw acts done or heard words spoken.

Direct Examination – The first questioning of witnesses by the party on whose behalf they are called.

Dismissal – Termination of a lawsuit or determination that a Claim is technically incorrect.  For Claim problems, permission to amend, or re-write, the Claim is usually given. 

Distress writ – A writ that is filed with a complaint for eviction of commercial property. It instructs the tenants that they are not to remove any of the contents of the property.

Due Process of Law – The right of all persons to receive the guarantees and safeguards of the law and the judicial process.

Enjoining – An order (injunction) by the court telling a person to not do an act or stop performing that act. A mandatory injunction compels action.

Equity – Generally, justice or fairness. The principle of this system of law is that equity will find a way to achieve a lawful result when legal procedure such as an award of money damages is inadequate.

Escrow – Money or a written instrument such as a deed that, by agreement between two parties, is held by a neutral third party (held in escrow) until all conditions of the agreement are met.

Estoppel – A person’s own act, or acceptance of facts, which preclude his or her later making claims to the contrary.

Et. Al. – All others.  Et. ux. means and one other. 

Evidence – Testimony or exhibits received by the court at any stage of court proceedings.

Exempt Property – Property protected by law from the reach of creditors.

Ex Parte – On behalf of only one party, without notice to any other party. For example, a request for a search warrant is an ex parte proceeding, since the person subject to the search is not notified of the proceeding and is not present at the hearing.

Exhibit – Any paper or object offered in court that is marked for identification or evidence.

File – To place a paper in the official custody of the clerk of court to enter into the files or records of a case.

Filed in Open Court – Court documents entered into the file in court.

Finding – Formal conclusion by a judge or jury on issues of fact.

Garnishment – A legal proceeding in which a debtor’s money or property in the possession of another (called the garnishee) is applied to the debts of the debtor such as when an employer garnishes a debtor’s wages.

Harmless error – An error committed during a trial that was corrected or was not serious enough to affect the outcome of a trial and therefore was not sufficiently harmful (prejudicial) to be reversed on appeal.

Hearsay – This area of the law is extremely complicated.  Grossly oversimplified explanation: an out of court statement or document. While there are several complicated exceptions including something that is an admission against interest by a party to the lawsuit, hearsay is not admissible as evidence in court unless and exception is present.    

Hostile Witness – A witness whose testimony is not favorable to the party who calls the witness to testify. A hostile witness may be asked leading questions and may be cross examined by the party who calls the witness to the stand.

Hung jury – Jury unable to reach a verdict.

Impeachment of a witness – An attack on the credibility (believability) of a witness, through evidence introduced for that purpose.

Inadmissible – That which, under the rules of evidence, cannot be admitted or received as evidence.

In Camera – In chambers, or in private. A hearing in camera takes place in the judge’s office outside of the presence of the jury and the public.

Injunction – Writ or order by a court prohibiting a specific action from being carried out by a person or group. A preliminary injunction is granted provisionally, until a full hearing can be held to determine if it should be made permanent.

Instructions – Judge’s explanation to the jury before it begins deliberations of the questions it must answer and the applicable law governing the case. Also called charge to the jury.

Interrogatories – Written questions asked by one party in a lawsuit for which the opposing party must provide written answers.

Interlocutory – Provisional; not final. An interlocutory order or an interlocutory appeal concerns only a part of the issues raised in a lawsuit.

Intervention – An action by which a third person who may be affected by a lawsuit is permitted to become a party to the suit. Differs from the process of becoming an amicus curiae.

Issue – 1. The disputed point in a disagreement between parties in a lawsuit. 2. To send out officially, as in to issue an order.

Joint and Several Liability – A legal doctrine that makes each of the parties who are responsible for an injury liable for all the damages awarded in a lawsuit if the other parties responsible cannot pay.   

Judge – An elected or appointed public official with authority to hear and decide cases in a court of law. A judge Pro Tem is a temporary judge.

Judgment – The decision in a lawsuit.

Jurisdiction – 1. The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. 2. The geographic area over which the court has authority to decide cases.

Jury – Persons selected according to law and sworn to inquire into and declare a verdict on matters of fact.

Jury trial – A trial in which the jury judges the facts and the judge rules on the law.

Justiciable – Issues and claims capable of being properly examined in court.

Law – The combination of rules and principles of conduct established by legislative authority, derived from court decisions, and established by local custom.

Law Clerks – Persons trained in the law who assist judges in researching legal opinions.

Leading question – A question that suggests the answer desired of the witness. A party generally may not ask one’s own witness leading questions. Leading questions may be asked only of hostile witnesses and on cross-examination.

Liable – Legally responsible.

Lien – A legal claim against another person’s property as security for a debt. A lien does not convey ownership of the property, but gives the lien-holder a right to have his or her debt satisfied out of the proceeds of the property if the debt is not otherwise paid.

Lis Pendens – A pending suit. Jurisdiction, power, or control which courts acquire over property in a suit pending action and until final judgment. Notice of Lis Pendens: A notice filed on public records for the purpose of warning all persons that the title to certain property is in litigation, and that they are in danger of being bound by an adverse judgment. The notice is for the purpose of preserving rights pending litigation.

Litigant – A party to a lawsuit. Litigation refers to a case, controversy, or lawsuit.

Mediation – A proceeding where a neutral third party tries to help parties agree on a settlement.

Mistrial – An invalid trial, caused by fundamental error. If a mistrial is declared, the trial starts over with a new jury.

Moot – A moot case or a moot point is one not subject to a judicial determination because it involves an abstract question or a pretended controversy that has not yet actually arisen or has already passed.

Motion – Oral or written request made by a party to an action before, during, or after a trial, upon which a court issues a ruling or order.

Motion in limine – A request that the court not consider certain prejudicial or inadmissible evidence.

Non-jury trial – A case tried by a judge.

Notice – Formal notification that an action has been taken in a case.

Nunc pro tunc – An order made now for an act done previously and to have the effect as if it were done on a prior date.

Oath – Sworn promise to testify truthfully.

Objection – The process by which one party takes exception to some statement or procedure. An objection is either sustained (allowed) or overruled (disallowed) by the judge.

Opening Statement – The initial presentation made by attorneys for each side, outlining the facts each believes will be  established during the trial.  

Ore tenus motion – An oral motion.

Opinion – A judge’s written explanation of a decision of the court or of a majority of judges.

Oral Argument – An opportunity for lawyers to summarize their positions before the court and also to answer the judges’ questions.

Order – A decision from a court.

Party – A person, business, or other entity involved in the prosecution or defense of a legal proceeding.

Perjury – The criminal offense of making a false statement under oath.

Permanent Injunction – A court order requiring that some action be taken, or that some party refrain from taking action. It differs from temporary relief such as a temporary restraining order or preliminary injunction which are not final decisions of the court.

Plaintiff – The person who files the complaint in a civil lawsuit.

Pleadings – The written statements of fact and law filed by the parties.

Pre-Trial Conference – A meeting between the judge and the lawyers involved in a lawsuit to narrow the issues in the suit, agree on what will be presented at the trial, and determine circumstances for conduct of the trial.

Precedent – A previously decided case that guides the decision of future cases.

Preemptory challenge – A challenge that may be used to reject a certain number of prospective jurors without giving a reason.

Preponderance of the evidence – Greater weight of the evidence; the common standard of proof in civil cases.

Pro se – In one’s own behalf without a lawyer.

Quash – To vacate or void a summons, subpoena, or other legal command

Rebut – Evidence disproving other evidence previously given or reestablishing the credibility of challenged evidence.

Record – All the documents and evidence plus transcripts of oral proceedings in a case.

Recusal – A judge excusing him or herself from a case.

Re-Direct Examination – Opportunity to present rebuttal evidence after one’s evidence has been subjected to cross-examination.

Rehearing – Another hearing of a case by the same court in which the case was originally heard.

Remand – To send a dispute back to the court where it was originally heard. Usually it is an appellate court that remands a case for proceedings in the trial court consistent with the appellate court’s ruling.

Remedy – Legal or judicial means by which a right or privilege is enforced or the violation of a right or privilege is prevented, redressed, or compensated.

Remittitur – The reduction by a judge of the damages awarded by a jury.  Additur increases the award. 

Removal – The transfer of a state case to federal court.

Replevin – An action for the recovery of personal property that has been wrongfully taken or withheld.

Reply – The response by a party to affirmative defenses raised by the other party.  A defense to a defense.

Rest – A party is said to rest or rest its case when it has presented all the evidence it intends to offer.

Reverse – An action of a higher court in setting aside or revoking a lower court decision.

Reversible error – A procedural error during a trial or hearing sufficiently harmful to justify reversing the judgment of a lower court.

Rules of Evidence – Standards governing whether evidence is admissible and to be considered by the trier of fact.

Sequestration of witnesses – Keeping all witnesses (except plaintiff and defendant) out of the courtroom except for their time on the stand, and cautioning them not to discuss their testimony with other witnesses.

Service – The delivery of a legal document, such as a complaint, summons, or subpoena, notifying a person of a lawsuit or other legal action taken against him/her by an officially authorized person in accordance with the formal requirements of the applicable laws.

Settlement – An agreement between the parties disposing of a lawsuit.

Show cause order – Court order requiring a person to appear and show why some action should not be taken.

Sidebar – A conference between the judge and lawyers, usually in the courtroom, out of earshot of the jury and spectators.

Small Claims Court – A court that handles civil claims for small amounts of money. People often represent themselves rather than hire an attorney.

Specific performance – A remedy requiring a person who has breached a contract to perform specifically what he or she has agreed to do. Specific performance is ordered when damages would be inadequate compensation.

Standing – The legal right to bring a lawsuit. Only a person with something at stake has standing to bring a lawsuit.

Stare decisis – The doctrine that courts will follow principles of law laid down in previous cases. Similar to precedent.

Statute of limitations – The time within which a plaintiff must begin a lawsuit (in civil cases) or a prosecutor must being charges (in criminal cases.) There are different statutes of limitations at both the federal and state levels for different kinds of lawsuits or crimes.

Statutory Law – Law enacted by the legislative branch of government, as distinguished from case law or common law.

Stay – A court order halting a judicial proceeding.  Also referred to as abatement.

Stipulation – An agreement by attorneys on both sides of a case about some aspect of the case; e.g. to extend the time to answer, to continue the trial date, or to admit certain facts at the trial.

Strike – Removal of evidence or pleaded matters that have been improperly offered or claimed and will not be relied upon.

Subpoena – Command to a person to appear and testify in a specific proceeding.

Subpoena Duces Tecum – A court order commanding a witness to bring certain documents or records to a deposition or court.

Summary judgment – A decision made on the basis of statements and evidence presented for the record without a trial. It is used when there is no dispute as to the facts of the case, and one party is entitled to judgment as a matter of law.

Summons – A document signed by a deputy clerk ordering a person to appear before the court.

Testimony – The evidence given by a witness under oath. It does not include evidence from documents and other physical evidence.

Third party – A person, business or government agency not actively involved in a legal proceeding, agreement, or transaction.

Third-Party Claim – An action by the defendant that brings a third party into a lawsuit.

Title – Legal ownership of property, usually real property or automobiles.

Tort – An injury or wrong committed on the person or property of another. A tort is an infringement on the rights of an individual, but not founded in a contract.  Fraud is an example.

Transcript – A written, word-for-word record of what was said, either in a proceeding such as a trial or during some other conversation, as in a transcript of a hearing or oral deposition.

Venue – The proper geographical area (county, city, or district) in which a court with jurisdiction over the subject matter may hear a case.

Verdict – The findings of a jury at the end of the trial.

Voir dire – Examination of a jury panel by the judge and attorneys.

Without Prejudice – A claim or cause dismissed without prejudice may be the subject of a new lawsuit.

With Prejudice – Applied to orders of judgment dismissing a case, meaning that the plaintiff is forever barred from bringing a lawsuit on the same claim or cause.

Witness – A person who testifies to what was seen, heard, or otherwise experienced. Also, a person who observes the signing of a document.

Writ – A judicial order directing a person to do something.

Writ of attachment – A writ of the court ordering the sheriff to seize or hold a person or property and bring same before the court.

Writ of certiorari – An order by the appellate court used when the court has the discretion on whether or not to hear an appeal.

The matters discussed here are general in nature and are not to be relied upon as legal advice in the absence of a consultation with Volk Law Offices, P.A..  Every specific legal matter requires specific legal attention. The law is constantly changing and matters discussed today may not be the same tomorrow.  Legal matters are  also subject to different interpretations by attorneys, judges, jurors and scholars.  No attorney-client relationship is intended or created as a result of matters discussed here. You should consult counsel of your choice if you have any dealings in these areas of the law.  Volk Law Offices, P.A. and its attorneys and other employees make no representations or warranties with respect to the accuracy or completeness of the matters addressed.

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