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CLS Law Term Definitions

CLS Online Glossary

Term: Acquittal

Definition: A finding of not guilty, an absolution of guilt, or a jury verdict of not guilty in a criminal action.

Term: Action

Definition: A lawsuit brought in court.

Term: Ad Damnum

Definition: See prayer for relief.

Term: Additur

Definition: An amount of money conferred by the judge in addition to the damage award provided by the jury. The judge grants a new trial unless the losing party agress to add a certain amount to the damage award. See also remittitur.

Term: Adversary hearing

Definition: A hearing where both parties are present to argue their respective positions. The hearing gives both sides in the controversy a chance to be heard. The adversarial system places the burden of proving or disproving legal arguments on the parties to the litigation rather than on the judge.

Term: Adverse Judgment

Definition: A judgment or decision against the party that you and your attorney represent.

Term: Affiant

Definition: A person who swears or affirms under penalty of perjury to the truthfulness of a written statement. The person who signs an affidavit.

Term: Affidavit

Definition: A written statement of fact in which the affiant swears under penalty of perjury that the written statement is true. Those who don't swear under oath affirm the statement rather than swear to it.

Term: Affidavit of Service

Definition: A written statement sworn to by the affiant, saying that a party has been served with papers and stating the time and place details of the service. This document is usually notarized and returned to the court after service has been effectuated.

Term: Affirm

Definition: To uphold or establish.

Term: Affirmative defense

Definition: A new factual allegation by the defendant not contained in the plaintiff's allegations. An affirmative defense is usually contained in the defendant's answer to the plaintiff's complaint. Common examples of affirmative defenses for federal proceedings are found in Rule 8 (c ) of the Federal Rules of Civil Procedure.

Term: Answer

Definition: The pleading filed by the defendant responding to or answering the allegations of the plaintiff's complaint. May also contain the defendant's affirmative defenses, cross claims, and counterclaims.

Term: Appeal

Definition: An application to a higher court to correct or modify the judgment of a lower court.

Term: Appellant

Definition: The party initiating an appeal. Usually, the losing party in the lower-court decision becomes the appellant before the appellate court.

Term: Appellee

Definition: The party against whom the appeal is brought. Usually, the victorious party in the trial court action.

Term: Attorney client privilege

Definition: The privilege of a client to refuse to disclose any confidential communication made with his or her attorney that relates to legal services. Also, the attorney can't disclose the communication without the permission of the client.

Term: Attorney work product

Definition: Material collected and prepared for a case by counsel that is not subject to disclosure through discovery by opposing counsel. Examples of material that is generally protected by the attorney work product rule include correspondence between the attorney and client, interoffice legal research memos, and the trial notebook.

Term: Below

Definition: Term used to refer to the court below the appellate court.

Term: Bench

Definition: Term used to refer to judges collectively or the actual place where the judge or judges sit in a court.

Term: Best evidence rule

Definition: A rule applied to documents introduced as evidence at trial states that the original document should be produced unless it's shown to be unavailable for some reason other than the fault of the proponent of that evidence. For example, in an action for a breach of an apartment lease, the original lease must be produced to avoid speculation that the evidence could have been altered.

Term: Beyond a reasonable doubt

Definition: The degree of proof required of the state in a criminal prosecution. It is considered to be fair doubt and not imaginable doubt, and it is usually measured by 100 percent agreement on the part of the jury.

Term: Bias

Definition: The potential for a judge, juror, or party to make unfair judgments because of prior knowledge or involvement in the matters of the case.

Term: Burden of Proof

Definition: The responsibility of proving something at trial. Generally, the party making an allegation has the burden of proving it. For instance, in a criminal case, the prosecutor has the burden of proving beyond a reasonable doubt that the accused committed the crime charged. In a civil proceeding, the plaintiff has the burden of proving by a preponderance of the evidence that the defendant caused the plaintiff's harm.

Term: Cause of action

Definition: A legally acceptable reason for suing. Also known as a claim for relief.

Term: Challenge for cause

Definition: A party's request to a judge that a particular prospective juror not be allowed to be a member of the jury for specified reasons, such as bias. These challenges are unlimited as long as the party requesting the challenge is able to demonstrate to the judge that the prospective juror has knowledge of the parties to the suit or is involved in a business that's represented in the litigation. Thus, a police officer is usually omitted from sitting on a jury in a criminal case under a challenge for cause.

Term: Charter

Definition: The law of a municipality or other local unit of government authorizing it to perform designated governmental functions.

Term: Choice of venue

Definition: The process of finding the fairest place for a trial's location. An impartial venue can be helpful in providing due process in a trial. See also change of venue.

Term: Circumstantial evidence

Definition: Evidence of one fact from which another fact can be inferred. Circumstantial evidence is less persuasive than direct evidence. For instance, the 50 feet of skid marks left by an automobile preceding the point of impact with a school bus is circumstantial evidence of the automobile's speed based on the direct evidence of the actual skid marks on the roadway.

Term: Civil law

Definition: The legal means by which the rights and remedies of private individuals are enforced and protected. Crime is not an issue for civil litigation, and the responsibility of pursuing a damage remedy in civil law rests with the person harmed.

Term: Co-defendant

Definition: An additional defendant sued in the same litigation.

Term: Competency

Definition: Legal capacity to testify, determined by (1) an understanding of the obligation to tell the truth, (2) ability to communicate, and (3) a knowledge of the topic of the testimony.

Term: Complaint

Definition: The initial pleading served and filed by the plaintiff stating his or her version of the facts and law concerning the defendant's alleged wrongdoing. In some states, like Texas, a complaint is called a petition.

Term: Concurring opinion

Definition: A judge's opinion that agrees with the result of the majority of the court but disagrees with the reasons the majority used to support that result.

Term: Congress

Definition: The legislative branch of the federal government with the primary function of enacting law.

Term: Constitution

Definition: The document that sets forth the fundamental laws that create the branches of government and identify the basic rights and obligations of citizens. There are 50 state constitutions and one federal consititution in the United States.

Term: Contempt

Definition: A willful disregard for or disobedience of a judge.

Term: Contest

Definition: To challenge.

Term: Corroborate

Definition: To add weight or credibility to testimony.

Term: Counterclaim

Definition: A claim or cause of action against the plaintiff stated in the defendant's answer.

Term: Cross claim

Definition: A claim by one codefendant against another codefendant.

Term: Cross examination

Definition: The questioning of the witness during a hearing or trial after the other side has completed direct examination. Generally, the person conducting the cross examination must limit himself or herself to the topics raised during the direct examination of the witness by the other side.

Term: Damages

Definition: An award of money paid by one who has been found liable by a judge or jury to compensate the person who has been harmed. Types of damages include general/actual/compensatory, special, punitive/exemplary, nominal, consequential, and liquidated.

Term: Default judgment

Definition: A court order deciding the case in favor of the plaintiff because the defendant failed to file an answer or otherwise plead within the statutory time allowed for that purpose, which is usually 20 to 30 days.

Term: Defendant

Definition: A person or entity against whom a plaintiff brings an action. The defendant may also be known as a respondent in a domestic or probate court action.

Term: Defense

Definition: A response made by one party to the claims or allegations of another party. The defense may be a denial of facts or a more elaborate response, like an affirmative defense, and is usually contained in the defendant's answer.

Term: Deposition

Definition: A pretrial discovery device where one party asks oral questions of the other party or of a witness for the other party. Depositions are usually conducted under oath outside of the courtroom. Paralegals assist during a deposition by taking notes and by providing the supervising attorney with questions to ask the deponent.

Term: Direct evidence

Definition: Evidence that tends to establish a fact without the need for making an inference. Direct evidence is preferred over indirect, or circumstantial evidence.

Term: Direct examination

Definition: The initial questioning of the witness during a hearing or trial. The attorney who calls the witness to the stand usually conducts the direct examination of that witness, which is then followed by the cross examination of that witness by the adverse party. After cross examination, the attorney may conduct redirect examination of that same witness.

Term: Directed verdict

Definition: An order entered by the trial court judge in favor of the party requesting the verdict because the opposing party has failed to establish a prima facie cause of action or an adequate defense to that cause of action. Defendants may request a directed verdict after plaintiffs have rested their cases, and plaintiffs may request a directed verdict after defendants have completed their defenses.

Term: Discovery

Definition: Pretrial devices that can be used by one party to obtain evidence and information about the case from the other party in order to prepare for trial, prevent surprise, and facilitate settlement of the controversy. The most common kinds of discovery are interrogatories, depositions, requests for admissions, requests for production of documents, and requests for mental or physical examinations.

Term: Dismissal without prejudice

Definition: A dismissal of a case based on a procedural error. The case can be filed again so long as the procedural error is corrected in the amended action.

Term: Dissenting opinion

Definition: An opinion that disagrees with the decision of the majority of the appellate court.

Term: Diversity of citizenship

Definition: Diversity of citizenship is the federal court's power to hear a case based upon the fact that (a) the parties to the litigation are from different states and (b) the amount of money in involved in the lawsuit exceeds a statutory minimum, which changes frequently and is, as of this writing, $75,000.

Term: Due process

Definition: The evaluation of a case based upon the judgment of a disinterested objective party. Due process is a fundamental constitutional right, which means that the judicial system has to give parties notice and opportunity to be heard, confront witnesses against the parties, examine evidence presented, be represented by counsel, defend themselves, and receive a determination.

Term: Eminent Domain

Definition: The power of the state to take possession of private property for public use without the consent of the property owner. The state must provide reasonable compensation to the property owner.

Term: En Banc

Definition: When all of the members of the court decide a case, that decision is said to be rendered en banc, as opposed to a decision made by a panel of judges, which usually consists of only three of the appellate-court judges.

Term: Evidence

Definition: Written or unwritten proof of allegations at issue between the parties to a lawsuit. Types of evidence include tangible, or demonstrative, testimonial, or oral.

Term: Ex parte hearing

Definition: A hearing where only one party to the action is present. A request for a temporary restraining order (TRO) is heard ex parte. To ex parte a judge is to talk to a judge about a case without the other side being present, which is unethical.

Term: Expert witness

Definition: A person who has been qualified as an expert and who then will be allowed (through answers to questions) to assist the jury in understanding complicated and technical subjects that are not generally within the jury's understanding. Medical doctors, accountants, and scientists commonly testify as expert witnesses.

Term: Garnishment

Definition: A method of executing judgment where part of the judgment debtor's salary is automatically turned over to the court, which in turn gives the money to the judgment creditor until the judgment is satisfied. Garnishments involving a child-support arrearage may be as high as 65 percent of the debtor's net monthly take-home pay and 25 for judgments that don't involve child support arrearages.

Term: In issue

Definition: The truth of facts in a case that must be established at trial. A judge must rule on the applicability of law in question or issue in a case. Also known as at issue or in question.

Term: In personam jurisdiction

Definition: A court's jurisdiction over a person.

Term: In rem jurisdiction

Definition: A court's jurisdiction over property or a controversy.

Term: Indigent

Definition: A person who is destitute of property or means of comfortable subsistence. By providing indigence, a person may be entitled to taxpayer-supported defense in felony charges.

Term: Information and belief

Definition: When a party qualifies a statement made in a pleading not as bact but as believed to be true from information available to the party. This standard legal phraseology in complaints protects a plaintiff who isn't absolutely certain of the existence of facts set forth in the complaint.

Term: Intent

Definition: Probably the most important word in law. It refers to a "determination of the mind," which is very difficult to prove and usually up to the jury to determine.

Term: Interlocutory appeal

Definition: An appeal to a higher court made during the process of a case requesting temporary relief rather than a final judgment. This appeal usually takes the form of a motion made to a higher court requesting a review of the action, or inaction, of the trial court. For example, when a court grants a defense motion to suppress evidence obtained during a search of the defendant, the prosecution often appeals the trial court's granting of the motion. An interlocutory appeal is requested before final judgment.

Term: Interrogatories

Definition: Discovery techniques consisting of written questions about the case submitted by one party to the other party. The answers to interrogatories are usually provided under oath.

Term: Judgment

Definition: The final decision of the court that resolves the dispute and determines the respective rights and obligations of the parties.

Term: Judgment non obstante verdicto (JNOV)

Definition: A judgment ordered by the court in favor of the plaintiff that's contrary to the jury's decision in favor of the defendant. This is also known as judgment notwithstanding the verdict, because the court's decision opposes the verdict reached by the jury and, in effect, overrules the jury.

Term: Judicial Branch

Definition: The branch of government that interprets laws created by the legislative branch and administrative laws produce by the executive branch and creates common law (judge-made law) by issuing opinions.

Term: Jurisdiction

Definition: A court's power to hear a case and decide the outcome.

Term: Jury

Definition: The group of citizens who decide the issues or questions of fact at the trial. Members of the jury are summoned from sources such as motor vehicle registration lists, driver's license lists, voter registration lists, and property owenership lists. Most juries consist of either 6 or 12 jurors.

Term: Jury instructions

Definition: Guidelines and law given by the judge to the jury that the jury is to use in deciding issues of fact at trial. Paralegals can be instrumental in preparing jury instructions.

Term: Legislative branch

Definition: The branch of government that creates law. Congress is the legislative branch of the federal government.

Term: Liable

Definition: To be responsible or accountable in law or equity.

Term: Litigation

Definition: An action or lawsuit.

Term: Majority opinion

Definition: The decision of the majority of the members of the appellate court, which is ofter recorded in written form.

Term: Motion

Definition: A request made to a court. Although most motions must be submitted in writing, some trial motions (like a motion to suppress) may be presented orally.

Term: Motion for New Trial

Definition: A request that the judge set aside the judgment and order a new trial on the basis that the trial was improper or unfair due to specified prejudicial errors that occurred during the trial.

Term: Motion for Summary Judgment

Definition: A pretrial request by a party that a decision on an issue be made on the basis of the pleadings and discovery without having to go through an entire trial. A party who requests summary judgment attempts to convince the judge that there are no issues of material fact disputed between the parties and so a decision should be rendered by the judge without the necessity of jury consideration.

Term: Motion to Dismiss

Definition: A request by a party to end a case without going through a trial.

Term: Move into evidence

Definition: To request that the court declare that specified items be admissible as evidence.

Term: Nolo contendere

Definition: A no-contest plea. It has the effect of a guilty plea without actually admitting guilt and allows the judge to sentence the defendant as though he or she pled guilty. A defendant will often be counseled to plead no contest to a criminal accusation so that the plea can't be used as an admission of liability in a related civil suit.

Term: Notice of Appeal

Definition: A document announcing an intention to appeal filed with the appellate court and served on the opposing party.

Term: Parol evidence rule

Definition: Oral evidence. Oral representations about the terms of a written agreement must be integrated into that agreement to be admissible and enforceable.

Term: Personal service

Definition: Service of process upon an individual, or the designated agent of an individual or corporation, by delivering, or attempting to deliver, a copy of the summons and complaint to that individual or agent. A subpoena should also be served in the same way.

Term: Petition

Definition: A formal request that petitions the court to take some action. See also complaint.

Term: Plaintiff

Definition: The person bringing the lawsuit. A plaintiff may also be known as petitioner in some states and in domestic and probate actions.

Term: Plea bargaining

Definition: The process whereby the accused and the prosecutor negotiate a mutually satisfactory disposition of a criminal case. The defendant usually agrees to plead guilty to a lesser charge in return for the state's willingness to drop the more serious charge(s).

Term: Plead

Definition: To formally admit or deny the charges made by the prosecutor in a criminal case.

Term: Pleadings

Definition: The initial documents filed in a lawsuit that state the positions of the parties pertaining to the causes of action and the respective defenses. The most common pleadings are complaints, answers, replies, third-party complaints, cross claims, and counterclaims.

Term: Prayer for Relief

Definition: A request contained in the complaint or petition (usually right before the attorney's signature) that asks for the relief that the plaintiff thinks he or she is entitled to. Common wording after the request is the phrase "and such other and futher relief as the to the court may seem just and proper." This enables the court to grant whatever relief it feels is appropriate in addition to what was specifically requested. Also known as a wherefore clause or ad damnum clause.

Term: Preponderance of the evidence

Definition: The standard of proof that must be established to win a civil case. This standard is met when a party's evidence indicates that it's "more likely than not" that the fact is as the party alleges it to be. A majority of the jurors must agree for a plaintiff to prevail in a civil action.

Term: Pretrial conference

Definition: A conference held between the judge or magistrate and the attorneys to prepare the case for trial. At this conference, the presiding judge sometimes tries to encourage the parties to settle part or all of their dispute.

Term: Prima facie case

Definition: A case sufficient on its face that is supported by the requisite minimum evidence and free of palpable defects. This must exist to prevail under any cause of action.

Term: Privilege

Definition: The right to refuse to testify or the right to prevent someone else from testifying on a matter.

Term: Pro Se

Definition: On one's own behalf, without an attorney.

Term: Probable cause

Definition: A reasonable basis to believe that a defendant has committed a wrong or is guilty of the crime charged.

Term: Quasi in rem jurisdiction

Definition: A court's power to resolve a personal claim against the defendant with the judgment being satisfied out of property or assets that the defendant has in state.

Term: Record

Definition: The official collection of all the trial pleadings, exhibits, orders, and word-for-word testimony that took place during the trial. The trial court record must be ordered and prepared as a prerequisite to prosecution of an appeal.

Term: Redirect examination

Definition: Examination that takes place after questioning the witness on cross examination. The attorney who conducts the direct examination conducts the redirect examination.

Term: Relevant

Definition: Something that tends to prove or disprove a fact in issue is declared relevant by the court and is admissible for consideration by the judge and jury.

Term: Remand

Definition: To send back to an inferior court for further consideration.

Term: Remittitur

Definition: The procedural process by which the verdict of a jury is diminished by subtraction. It's a device the judge uses to tell the winning party that a new trial will be granted unless the party agrees to decrease the damage award reached by the jury.

Term: Request for Admissions

Definition: Discovery techniques consisting of written statements of facts concerning the case that are submitted to an adverse party and that that party is required to admit to or deny.

Term: Request for Physical or Mental Examination

Definition: A form of discovery that requires court approval unless the parties agree, or stipulate, to it. A defendant usually wants to conduct a physical or mental examination of the plaintiff in an effort to verify the damages and injuries complained of by the plaintiff.

Term: Request for Production

Definition: A discovery technique that asks a party to produce, at a specified time and place, documents or other things in that party's possession or control.

Term: Res gestae

Definition: An evidentiary term that applies to exceptions to the hearsay rule involving statements that are made close to or concurrently with the happening of a transaction or occurrence.

Term: Res Judicata

Definition: The legal doctrine that a judgment on the merits will prevent the same parties from re-litigatin the same cause of action because the parties have already had their day in court and the controversy has already been judicially decided. It's similar to the doctrine of double jeopardy in a criminal case.

Term: Retainer Agreement

Definition: A contract between an attorney and client stating the nature of the services to be rendered and the cost of those services.

Term: Serve

Definition: To present legal papers to a party notifying that party of a lawsuit.

Term: Service of process

Definition: The delivery of a summons and complaint to a defendant ordering that defendant to answer the allegations made by the plaintiff. Service of process is a prerequisite to the court's acquisition of personal jurisdiction or power over the defendant.

Term: Settlement

Definition: A compromise reached by the adverse parties in a civil suit before the final judgment where they agree between themselves about their respective rights and obligations, thus eliminating the necessity of a judicial resolution of the controversy. Judicial statistics indicate that 90 percent of filed civil actions settle prior to trial, and paralegals can be instrumental in the preparation of settlement demands, or brochures, that are used to achieve a settlement.

Term: Stare decisis doctrine

Definition: The doctrine that the court is obliged to stand by decided cases and to follow set precedent. As long as the facts and issues presented and decided in prior cases are substantially similar to the case being considered, an inferior court must apply that prior precedent in resolving its case.

Term: Stipulate

Definition: A fact agreed upon by the parties is said to be stipulated. A stipulation of fact won't be contested or disputed so that no evidence need be presented at trial concerning the truth or falsity of that fact.

Term: Subject matter jurisdiction

Definition: A court's power to hear the type of case being presented. A bankruptcy court would not have subject-matter jurisdiction over a child-custody case, for example.

Term: Subpoena

Definition: A writ issued under authority of a court to compel the appearance of a witness at a judicial proceeding. Generally, a subpoena must be served personally and can't be served by substitute service on a person not named in the subpoena.

Term: Summons

Definition: A formal notice from the court ordering the defendant to appear in court or to answer a complaint in lieu of appearing.

Term: Sustain

Definition: To support, approve, or adequately maintain a motion.

Term: Third Party Complaint

Definition: A pleading filed by the defendant against a new, third party that alleges that the third party is or may be liable for all or part of the damages that the plaintiff attributes to the defendant.

Term: Tickler System

Definition: A common filing system that allows the secretary and paralegal to alert the attorney of approaching deadlines. Tickler systems are important for keeping the law-office staff aware of court dates, filing deadlines, and other important dates.

Term: United States Court of Appeals

Definition: An appellate court of limited jurisdiction. The jurisdiction is limited to appeals from the United States District Court.

Term: United States District Court

Definition: The federal trial court where the litigants are entitled to a trial by jury. This court's jurisdiction is limited to cases where the United States is a party, a federal question is at issue, or diversity of citizenship exists between two or more of the parties and at least $75,000 is at stake.

Term: United States Supreme Court

Definition: The court of last resort. It is the nation's highest court and selects certain appeals referred to it from the United States Court of Appeals and state supreme courts. It also has original jurisdiction in cases involving ambassadors, public ministers, and consuls and those cases in which a state is a party. The United States Supreme Court has a chief justice and eight associate justices.

Term: Venue

Definition: The place where a trial is held. An impartial venue is critical to a fair trial. See also choice of venue.

Term: Verdict

Definition: The final decision of the jury.

Term: Voir dire

Definition: The jury-selection process; the examination of prospective jurors by the attorneys and the court. It may also refer to the examination of the qualifications of a prospective witness prior to allowing that witness to testify.

Term: Writ of certiorari

Definition: An order by an appellate court concerning the review or reexamination of what a lower court did. If the writ is denied, the higher court refuses to hear the appeal and the judgment below stands unaffected.
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