Civil Litigation - Vocabulary

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kkohl1
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194179
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Civil Litigation - Vocabulary
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2013-02-26 12:03:04
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Kelly's Civil Litigation Flashcards
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  1. Civil Litigation
    The process of resolving private disputes through the court system.
  2. Trial
    The pricess of deciding a case (fiving evidence, making arguments, deciding by a judge and jury, etc), which occurs if the dispute is not resolved by pleadings, pretrial motions, or settlement.  A trial usually takes place in open court, and may be followed by a judgment, an appeal, and so on.
  3. Procedural Law
    The rules of carrying on a civil lawsuit or a criminal case (how to enforce rights in court) as opposed to suvstantive law (the law of the rights and duties themselves).
  4. Substantive Law
    The basic law of rights and duties (contract law, criminal law, accident law, law of wills, etc.). as opposed to procedural law (law of pleading, law of evidence, law of jurisdiction, etc.).
  5. Criminal Law
    Having to do with the law of crimes and illegal conduct.
  6. Criminal Procedure
    The procedure by which a person accused of a crime is brought to trial and given punishment.
  7. Civil Procedure
    The laws and rules that govern how noncriminal lawsuite are handled by the individuals involved and by the court.
  8. Civil Laws
    Laws dealing with private disputes between parties.
  9. Plantiff
    A person who brings a lawsuit against another person.
  10. Defendant
    The person against whom a legal action is brought.  This legal action may be civil or criminal.
  11. Complaint
    The first main paper filed in a civil lawsuit.  It includes, among other things:

    1. a statement of the wrong or harm done to the plaintiff by the defendant,

    2. a request for specific help from the court and,

    3. an explanation of why the court has the power to do what the plaintiff wants.
  12. Petition
    A written request to a court asking that it take a particular action.  In some states the word is limited to written requests made when there is no other side in a case; in some states, "petition" is used in place of "complaint" (the first pleading in a lawsuit).
  13. Answer
    The first pleading by the defendant in a lawsuit.  This pleading responds to the charges and demands of the plaintiff's complaint.  The defendant may:

    1. Deny the plaintiffs charges,

    2. May present new facts to defeat them,

    3. May show why the plaintiffs facts are legally invalid.
  14. Default
    Failure to take a required step in a lawsuit; for example, failure to file a paper on time.  Such default can sometimes lead to a default judgment" against the side failing to file the paper.
  15. Judgment
    The official decision of a court about the rights and claims of each side in a lawsuit.  Judgement usually refers to a final decision that is based on the facts of the case and made at the end of a trial.  It is called judgment on the merits.
  16. Discovery
    The formal and informal exchange of informaiton between two sides in a lawsuit.  Two types of discovery are interogatories and depositions.
  17. Motion
    A request that a judge make a ruling or take some other action.  Motions are either granted or denied by the judge.
  18. Writ of Execution
    A judge's order requiring that something be done outside the courtroom or authorizing it to be done.  For example, a writ of execution orders a court official to take a debtor's property to pay court-cedided debt, usually by holding an execution sale.
  19. Alternative Dispute Resolution (ADR)
    Ways to resolve legal problems without a court decision, for example, arbitration, mediation, minitrial, rent-a-judge, or summary jury trial.
  20. Negotiation
    1. Discuss, arrange, or bargain about a business deal.

    2. Discuss a compromise to a situation.
  21. Mediation
    Outside help in settling a dispute.  The person who does this is called a mediator.  This is different from arbitration in that a mediator can only persuade, not force, people into a settlement.
  22. Mediator
    The person who helps settle a dispute through mediation.
  23. Arbitration
    Resolution of a dispute by a person (other than a judge) whose decision is binding.  This person is called an arbitrator.  Submission of the dispute for decision is often the result of an agreement (an arbitration clause) in a contract if arbitration is requited by law, it is called compulsory.
  24. Arbitrator
    The person who resolves a dispute in an arbitration hearing.
  25. Primary Sources
    Books that contain the actual law (i.e. case reporters, codes, constitutions).
  26. Secondary Sources
    1. Persuasive authority

    2. Writings about the law, such as articles, treatises, and encyclopedias.

    i.e. Form books, dictionary,
  27. Local Rules of the Court
    Rules that are adopted by the individual courts and apply only to those courts.
  28. Form books
    Books containing sample forms for legal professionals to follow in preparing pleadings and other documents.
  29. Cloud Computing
    Electronic file storage where files are stored on the internet rather than on the office computer.
  30. Trial Court
    A court where the parties to a lawsuit file their pleadings and present evidence to a judge or jury.
  31. Lower Court
    Another term for trial court
  32. Jurisdiction
    1. The geographical area within which a court (or public official) has the right and power to operate.

    2. The person from whom and the subject matters about which a court has the right and power to make decisions that are legally binding.
  33. Original Jurisdiction
    The power of a court to take a case, try it, and decide it (as opposed to appellate jurisdiction, the power of a court to hear and decide an appeal).
  34. Court of Appeals
    A court that decides appeals from a trial court.  In most states it is a middle-level court (similar to a US court of Appeals), but in some states it is the highest court.
  35. Brief
    A written statement prepared by one side in a lawsuit to explain its case to the judge.  it usually contains a fact summary, a law summary and an argument abour how the law applies to the facts.  Most of such "briefs" are not brief.
  36. Legal Error
    A mistake in the way the law is interpreted or applied to a situation.
  37. Appellate jurisdiction
    The power and authority of a higher court to take up cases that have already been in a lower court and the power to make decisions about these cases  The process is called an appellate review.  Also, a trial court may have appellate jurisdiction over cases from an administrative agency.
  38. Higher Court
    The court of appeals
  39. Affirm
    1. To make firm.  repeat agreement; confirm.

    2. When a higher court declares that a lower court's action was valid and right, it affirms the decision.
  40. Reverse
    Set asside, for example, when a higher court reverses a lower court on appeal, it sets asside the judgement of the lower court and either substitutes its own judgment for it or sends the case back to the lower court with instructions on what to do with it.
  41. Remand
    Send back.  For example, a higher court may remand (send back) a case to the lower court, directing the lower court to take some action.
  42. Supreme Court
    The highest of the US Courts and the highest court of most, but not all, of the states.
  43. Certiorari
    " To make sure " A request for certiorari (or cert. for short) is like an appeal, but one that the higher court is not required to take for decision.  It is literally a writ from the higher court asking the lower court for the record of the case.
  44. Subject matter jurisdiction
    The authority that a court has to hear a particular type of case.
  45. Personal Jurisdiction
    The power or authority of the court to make a ruling affecting the parties before the court.
  46. In rem jurisdiction
    The authority of a court to hear a case based on the fact that the property which is the subject of a lawsuit. is located thin the state in which the court is situated.
  47. Quasi in rem jurisdiction
    Authority of a court to hear a case based on the fact that the defendant owns property that is located within the stat, even though that properys is not the subject of the lawsuit.
  48. Diversity of citizenship
    The situation that occurs when persons on one side of a case in gederal court come from a different state than the persons on the other side.  Complete diversity (all of the plaintiffs are from a different state than all of the defendants) allows the court to accept and decide the case based on the courts divirsity jurisdiction provided that certain other criteria are met.  Diversity of citizen ship also applies to suits between citizens and foreign nationals.
  49. Exclusive jurisdiction
    If a court has exclusive jurisdiction over a subject no other court in the area can decide a lawsuit on that subject.
  50. Concurrent jurisdiction
    "Running together" or having the same authority at the same time. For example, courts have concurrent jurisdiction when each one has the power to deal with the same case.
  51. Removal
    The transfer of a case from one court to another (most commonly, from a state to a federal court, often for civil rights reasons)
  52. Supplemental jurisdiction
    A federal courts right to decide a claim based on a nonfederal issue if this claim depends on the same set of facts as does a federal claim in the case before the court
  53. General jurisdiction
    The power of a court to hear and decide any of a wide range of cases that arise within its geographic areas
  54. Limited jurisdiction
    Authority to hear only certain kinds of cases.
  55. Long Arm Statutes
    A state law that allows the courts of that state to claim jurisdiction over (decide cases directly involving) persons outside the state who have allegedly committed torts or other wrongs inside the state.  Even with a long arm statute the court will not have jurisdiction unless the person sued has certain minimum contacts with the state.
  56. General Appearance
    Coming before a court and submitting to its jurisdiction in a case.
  57. Special Appearance
    Showing up in court for a limited purpose only, especially that the court lacks jurisdiction over you or your client.  Special appearances have been replaced in federal courts and many state courts by motions or pleadings for the same purpose.
  58. Motion to quash service of summons
    A request that the court declare that service of the complaint and summons is invalid, either because the court lacks jurisdiction over the defendant or because of some procedural problem with the service itself.
  59. Attachment
    Formally seizing property (or a person) in order to bring it under the control of the court.  This is usually done by getting a court order to have a law enforcement officer take control of the property.
  60. Venue
    The local area where a case may be tried.  Court systems may have jurisdiction (power) to take a case in a wide geographic area, but the proper venue for the case may be one place within that area for the convenience of the parties, or other reasons.  Jurisdiction is the subject of fixed rules, but venue is often left up to the discretion (good judgement) of the judge.
  61. Cause of Action
    1. Facts sufficient to support a valid lawsuit

    2. The legal theory upon which a lawsuit (action) is based.
  62. Statue of Limitations (limitation0
    A time limit. 

    For example, a statute of limitations is a law that sets a maximim amount of time after something happes for it to be taken to court.
  63. Claim Statute
    A type of law that requites a written notice desctibing a claim to be presented to the defendant before a lawsuit can be filed.
  64. Laches
    The legal doctorine that a delay (in pursuing or enforcing a claim or tight) can be so long that the person against whom you are proceeding is unfairly hurt or prejudiced by the delay itself.  Laches is an equitable defense, used when a plaintiff delays unfairly in starting a lawsuit.
  65. Tickler system
    A calendaring system
  66. Model rules of professtional conduct
    American bar assiciation rules stating and explaining what lawyers must do, must not do, should do and should not do.  They cover the field of legal ethics.
  67. Conflict of interest
    Being in a postition where your own needs and desires could possibly lead you to violate your dury to a person who has a right to depend on you, or being in a position where you try to serve two competing masters or clients.
  68. Flat Fee
    A legal fee based on a fixed sum rather than on an hourly rate or a percentage of a recovery
  69. hourly billing
    A legal fee based on a fixed amount for each hour the law firm spends on the case
  70. Contingent fee
    Payment to a lawyer of a percentage of the "winnings", if any, from a lawsuit rather than payment of a flar amount of money or payment according to the number of hours worked
  71. Costs
    Expenses of one side in a lawsuit that the judge orders the other side to pay or reimburse
  72. Retainer
    1.  Employment of a lawyer by a client

    2. The specific agreement in #1
  73. Trust Account
    Money or property put in a bank account to be kept separate (often for ethical or legal reasons) or used for a special purpose
  74. Representation letter
    A letter from an attorney to a new client establishing the ground rules of the litigation, including fees, billing rates, retainer, and work to be performed by the law firm.
  75. Retainer agreement
    An agreement between an attorney and a client setting forthe the fee arrangement.
  76. Release
    A document by which a claim or right is relinquished
  77. Authorization
    A signed statement empowering someone (such as a doctor or employer) to give out information that might otherwise be treated as confidential.
  78. Medical Diary
    A document in which the client keeps track of medical treatment, daily health complaints, type and amount of medication, mileage to physicians' offices, and other related medical expenses.
  79. Agent for Service of process
    Individual designated by a corporation who is authorized to be served with a lawsuit against the corporation.
  80. Agent
    A person authorized (requested or permitted) by another person to act for him or her; a person entrusted with another's business
  81. Service of process
    The delivery (or it's legal equivalent, such as publication in a newspaper in some cases) of a legal paper, such as a writ, by an authorized person in a way that meets certain formal requitements. it is the way to notify a person of a lawsuit
  82. Leading question
    A question that shows a witness how to answer it or suggests the preffered answer.
  83. Demeanor
    Physical appearance and behavior. The demeanor of a witness is not what the witness says, but how the witness says it.
  84. Direct evidence
    Proof of a fact without the need for other facts leading up to it.  For example, direct evidence that dodos are not extinct would be a live dodo.
  85. Circumstantial evidence
    Facts that indirectly prove a main fact in a question
  86. Presumption
    A conclustion ot ingerence drawn.  A presumption of law is an automatic assumption required by law that whenever a certain set of facts shows up a court must automatically draw certain legal conclusion.
  87. Judicial notice
    The act of a judge in recognizing the existence or truth of certain facts without bothering to make one side in a lawsuite prove them. This is done when the facts are either common knowledge and undisputed, or are easily found and cannot be disputed.
  88. Electronically stored information
    Computer generated records such as those found in e-mail files, databases, calendaring programs, and all other relevant data files created by spreadsheets, word processing, or any analogous program.
  89. Relevant evidence
    Evidence that tends to prove or disprove a fact that is important to a claim, charge, or defense in a court case.
  90. Character evidence
    Testimony about a person's personal traits and habits that is drawn from the opinions of close associates, from the person's reputation in the community, or from the persons past actions.
  91. habit
    The way a person usually responds to a particular situation.
  92. hearsay
    A statement about what someone else said (or wrote or otherwise communicated). Hearsay evidence is evidence concerning what someone said outside of a court proceeding that is offered in the proceeding to prove the truth of what was said.
  93. Evidence log
    A document attached to an item of physical evidence recording the chain of possession (chain of custody) of that piece of evidence.
  94. Expert witness
    A person possessing special knowledge or experience who is allowed to testify at a trial not only about facts (like an ordinary witness) but also about the professional conclusions he or she draws from these facts.
  95. Pleadings
    Formal, written statements of each side of a civil case
  96. Allegation
    A statement in a pleading that sets out a fact that the side filing the pleading expects to prove
  97. Caption
    The heading or introductory section of a legal paper.  the caption of a court paper usually contains the names of the parties, the court, and the case number.
  98. Prayer
    Request.  That part of a legal pleading (such as a complaint) that asks for relieg (help, money, specific court action, an action from the other side).
  99. Subscription (subscribe)
    Sign a document (this happens in the signature block and date area)
  100. Verification (verify)
    Swear in writing to the truth or accuracy of a document (notary block)
  101. Capacity
    Legal ability to do something
  102. Guardian ad litem (GAL)
    A guardian who is appointed by a court to take care of the interests of a person who cannot legally take care of himself or herself in a lawsuit involving that person.
  103. Fictitiously named defendants
    Defendants in a lawsuit who are not identified by their correct names; usually refers to the practice in some state courts of including several "Does" as defendants to provide for discovery of additional defendants after the statute of limitations has run.
  104. Permissive joinder
    A concept allowing multiple parties to be joinded in one lawsuit as plaintiffs or defendants as long as there is some common question of fact or law.
  105. Compulsory joinder (joinder)
    A party or an issue that must be included in a case.
  106. Indispensable party
    A person who has such a stake in the outcome of a lawsuit that the judge will not make a final decision unless that person is formally joined as a party to the lawsuit
  107. Class Action
    A lawsuit brought for yourself and other persons in the same situation
  108. Interpleader
    A procedure in which persons having conflicting claims against a third person may be forced to resolve the conflict before seeking relief from the third person
  109. Count
    Each separate part of a complaint or an indictment.
  110. Specific performance (performance)
    Being required to do exactly what was agreed to

    anorder requiring a party to perform a contract
  111. Recission
    The annulment of a contract

    An order recinding or voiding a contract
  112. Restitution
    Giving something back; making good for something.

    an order to return money or property, usually paid in connection with a contract that was subsequently recinded
  113. Declaration of relief
    A court order defining or explaining the rights and ovligations of parties under some contrat or other document.
  114. Quiet title action
    A way of establishing clear ownership of land.
  115. Injunction
    A judges order to a person to do or to refrain from doing a particular thing.
  116. Temporary restraining order (TRO)
    A judge's order to a person to not take a certain action during the period prior to a full hearing on the rightfulness of the action.
  117. Preliminary injunction
    A court order made prior to final judgment in the case, directing that a party take some action or regrain from taking some action until the trial in the case takes place.
  118. Filing (file)
    Giving a paper to the court clerk for inclusion in the case record.
  119. Docket number
    A number assigned to a lawsuit by the court; each pleading or document filed in the action must bear this number.
  120. Summons
    A notice delivered by a sheriff or other authorized person informing a person of a lawsuit against him or her.
  121. Personal Service of process
    Notice of a lawsuit or other proceeding that is fiven to a party by personally delivering a copy of the papers to that party.
  122. Proof of Service
    Written verification that papers have been delivered to a party, detailing when, where, and how the papers were delivered
  123. Stipulation
    An agreement between lawyers on opposite sides of a lawsuit.
  124. Open stipulation
    Anagreement between parties or their attorneys that a defendant need not answer a complaint within the time directed by law and need not answer until specifically notified by the plaintiff to do so
  125. General denial
    A type of answer in which all fo the allegations of the complaint are denied
  126. Specific Denial
    A type of answer inwhich the defendant specifically replies to each of the contentions alleged in the complaint.
  127. Qualified denial
    A type of answer denying all of the allegations of the complaint except those that are specifically admitted
  128. Affirmative defense
    The part of a defendant's answer to a complaint that goes beyond denyting the facts and arguments of the complaint.  It sets out new facts and arguments that might win for the defendant even if everything in the complaint is true.
  129. Counterclaim
    A claim made by the defendant in a cibil lawsuit that, in effect, "sues" the plaintiff
  130. Cross-claim
    A claim brought by one defendant against another that is based on the same subject matter as the plaintiff's lawsuit.
  131. Third-party complaint
    A complaint brought by a defendant in a lawsuit against someone not in the lawsuit.
  132. Compulsory counterclaim
    A counterclaim based on the same subject or transaction as the original claim
  133. Permissibe counterclaim
    A claim made by a defendant in a cibil lawsuit that, in effect, "sues" the plaintiff, based on things entirely different from the plaintiff's complaint.
  134. Indemnificaiton
    A concept allowing a defendant who has paid a judgment to seek reimbursement from another defendant.
  135. Contribution
    The right of a person who has paid an entire deby (or judgment) to get back a fair share of the payment from another person who is also responsible for the debt.
  136. Reply
    In Federal pleading, the plaintiff's response to the defendant's answer or counterclaim
  137. Demurrer
    A legal pleading that says, in effect, "even if, for the sake of argument, the facts presented by the other side are correct, those facts do not give the other side a legal argument that can possibly stand up in court."  The demurrer has been replaced in many courts with MOTION TO DISMISS
  138. Motion to Dismiss
    A request that the court dismiss or strike the case.
  139. More definite statement (motion)
    A request that the judge require an opponent in a lawsuit to file a less vague or less ambiguous pleading
  140. Affidavit
    A written statement sworn to before a person officially permitted by law to administer an oath.
  141. Entry of default
    Action by a court clerk noting that the defendant has failed to file a proper response to the complaint.

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