Appendix E | Legal Glossary

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With An Emphasis On Legal Proceedings 

Affidavit

A statement of facts based on personal knowledge, written or adopted by a person (called the affiant) who signs it before a notary and swears to the truth of the statement.

Affirmative Defenses

Listed in Rule 8 of the Federal Rules Of Civil Procedure (FRCP); these defenses must be pleaded (stated) in the answer or they are waived; they are generally aimed at denying the merits of plaintiff’s cause of action.

Alternative Dispute Resolution (ADR)

An umbrella term for a number of mechanisms which resolve disputes outside of formal litigation. These can include negotiated settlements, mini-trials, mediation, and arbitration.

Answer

Governed by Federal Rules Of Civil Procedure (FRCP) Rules 7 and 8, this pleading contains admissions or denials of the allegations contained in plaintiff’s complaint. A defendant also puts affirmative defenses (see above) in his/her answer.

Appellant

The party who is dissatisfied with the judgment of the trial court and seeks to have that judgment reversed or altered by appealing the judgment to a higher court.

Appellate

The party opposing the appellant on appeal (sometimes called a respondent).

Cause Of Action Or Claim

A series of allegations of facts asserted as a legal basis for seeking some sort of relief from the court.

Civil Law / Criminal Law

Civil law cases typically are disputes between persons or entities (like corporations or governments) in which the remedy sought is money damages, or sometimes an order that the defendant do or refrain from doing certain acts, called an injunction. Civil law cases include torts, suits about contracts, domestic relations (family law) cases, and many other kinds of cases. A criminal law case, by contrast, is always brought by a governmental entity (through a federal or local prosecutor) against a defendant for a violation of a criminal law statute where the penalty may be a fine or imprisonment or both. It should be noted that the victim of a crime may be a witness, but is not really a party to the prosecution of a criminal defendant. Many acts can subject a defendant to both civil law and criminal law actions. For example, a defendant who commits certain kinds of fraud may be prosecuted by the government and put in jail, and may also be sued by the victim for money damages.

Class Action

FRCP Rule 23; a device whereby a representative may assert the rights of numerous other persons in a lawsuit without the necessity of having each class member participate in the lawsuit.

Complaint

FRCP Rules 7-11; the initial pleading in a lawsuit containing a statement of facts comprising the plaintiff s cause of action or claim.

Counterclaim

FRCP Rule 13; a claim filed by a party (usually a defendant) against an opposing party (usually a plaintiff) who has already filed a complaint against him. Counterclaims may be permissive or compulsory.

Cross Claim

FRCP Rule 13(g); a claim stated by a party against a co-party (usually a defendant cross claims against a codefendant).

Defendant

The party against whom a complaint (or criminal charge) is filed.

Demurrer

An historical term for what the defendant asserts to challenge whether the plaintiff has stated a legally sufficient claim. Now handled by the FRCP Rule 12(b) motion to dismiss for failure to state a claim.

Deposition

FRCP Rule 30; a discovery device whereby the litigants before trial may question under oath a party or witness in a lawsuit.

Discovery And Disclosure

FRCP Rules 26-37; the processes by which litigants may learn before trial what evidence their opponent intends to rely on discovery may include depositions, interrogatories, requests for documents, physical examinations, etc.

Diversity Jurisdiction

28 U.S.C. 1332 (Also Art. III, Sec. 2, U.S. Const.); a shorthand phrase for one of the kinds of cases over which federal courts have subject matter jurisdiction, i.e., cases between citizens of different states (where the amount in controversy exceeds $75,000). N.B., state courts may also hear this kind of case, and the plaintiff may choose either federal or state forum.

Due Process Clause

The fourteenth amendment to the U.S Constitution provides that no person may be deprived of life, liberty or property by the state without due process of law. This phrase governs many aspects of a lawsuit, including the location of the suit and the manner in which a person is notified of a suit.

Federal Question Jurisdiction

28 U.S.C. 1331 (Also, Art. III, Sec. 2, U.S. Const.); the short-hand term used to describe the type of subject matter jurisdiction possessed by the federal courts to hear cases arising under federal laws (federal statutes) or the U.S. Constitution. no minimum amount in controversy is required. State courts may also hear federal question cases except where federal jurisdiction is exclusive, e.g., bankruptcy, patent cases, admiralty, and a few other areas.

Garnishment

Like attachment, a device used to bring property in the form of a debt under the court s’ jurisdiction. It is also used to collect unpaid judgments and other obligations, for example, by taking money out of the debtor s paycheck.

Impleader

FRCP Rule 14; a procedural device whereby a party, usually the defendant, may bring into a lawsuit another person, asserting that such person is or may be liable to him for all or part of the plaintiff s claim.

In Rem Jurisdiction

A basis for the court to adjudicate rights in property between specific persons; the controversy may or may not relate to the property.

injunction

FRCP Rule 65; an equitable remedy issued by a court, ordering a person to do something or to refrain from doing something.

Interrogatories

FRCP Rule 33; a discovery device whereby a party to a lawsuit submits written questions to another party who must then respond to those questions in writing.

Long-Arm Statute

A state law authorizing the courts of that state to exercise personal jurisdiction over persons not found within the state but who have a certain relationship to the state. The exercise of jurisdiction over non-residents under a long-arm statute must not exceed the limits of the due process clause; i.e., the non-resident must have minimum contacts with the state such that the exercise of jurisdiction over him does not offend traditional notions of substantial justice and fair play.

Objective Standard

Standard that measures a persons’ behavior or knowledge against what a reasonable person would have done or known, thus holding the person to a community standard of behavior.

Opinion

The written product of a judge or judges handing down and explaining a decision. Opinions are usually written by appellate courts, but may also be written by trial judges who resolve legal issues at the trial level. A majority opinion is joined by a majority of the judges participating in the decision. A dissenting opinion disagrees with the holding of the majority; a concurring opinion agrees with the majority’s holding but for different reasons, a plurality opinion is joined by the largest number of judges when no majority opinion is achieved, and there can also be opinions that dissent in part, concur in part, etc.

Personal Jurisdiction (In Personam Jurisdiction) 

The power of a court to require a person to come before it and defend a lawsuit or suffer a judgment against that person. Courts generally have personal jurisdiction over persons who are citizens of the state in which the court is sitting, and over non-residents who have certain minimum contacts with the state such that the exercise of jurisdiction over them does not offend traditional notions of substantial justice and fair play.

Pleadings

FRCP Rules 7-11; those documents filed with the court reflecting the matters in issue; complaints answer and reply (also counterclaims, etc.).

Remand

An order made by an appellate court whose decision that does not end the case. The case is sent back (remanded) to the trial court to do whatever is necessary to be consistent with the appeals courts’ decision. This may mean conducting a new trial, entering judgment for a different party, holding a hearing on a part of the case, etc.

Removal

28 U.S.C. 1441 et seq., a method whereby a case commenced in a state court can be removed (changed) to a federal court if the federal court would have been a proper forum originally.

Res

A thing; tangible or intangible property.

Res Judicata

Literally, the thing has been decided. A doctrine which ensures that there be finality to litigation; once a matter is adjudicated by a court of competent jurisdiction, it cannot be relitigated.

Reversed

A ruling made by an appellate court disapproving the judgment entered or action taken by the lower court. It does not necessarily mean that the party who lost in the lower court automatically wins; it may mean only that she gets a new trial.

Service Of Process

FRCP Rule 4; the delivery of a summons and complaint to the defendant which commences a lawsuit. While a court may theoretically have power to exercise personal jurisdiction over a particular defendant, it cannot do so until the defendant has been served with process, or otherwise given the best notice practicable under the circumstances.

Subject Matter Jurisdiction

The authority granted to a court or court system by its sovereign (state laws or constitutions for state courts; federal laws or the U.S. Constitution for federal courts) defining what types of cases it may hear. Certain state courts may be authorized to hear only probate cases, for example; the federal courts are authorized to hear diversity cases and federal question cases, among others, but not divorce cases.

Subjective Standard

A standard that measures a person s behavior against what that person is capable of doing, thus finding his/her behavior acceptable if the person did the best that he/she could do. Similarly, when asking whether a person knew a fact, a subjective standard requires that a person actually/subjectively had knowledge of the fact, not whether the person should have known the fact, or whether a reasonable person would have known the fact (compare objective standard, above).

Summary Judgment

FRCP Rule 56; a means whereby a court can decide a case as a matter of law without a trial if there are no genuine issues of material fact in dispute.

Third Party Defendant

FRCP Rule 14; in an impleader situation, the person brought into the action by means of a third party complaint.

Third Party Plaintiff

FRCP Rule 14; in an impleader situation, the third party plaintiff is usually the original defendant, who seeks to bring in a third party defendant to answer for some or all of the original plaintiff s claim against him.

Tort

A generic term encompassing many different causes of action in which a plaintiff alleges some injury caused by the defendant. Torts include such actionable wrongs as assault, invasion of privacy, product liability (injury caused by defective goods) and many others. The most common tort is an action for negligence; a person injured by the negligent conduct of another (such as in an automobile accident) may sue to recover monetary damages for those injuries.

Venue

Pertains to the particular location of the court in a court system in which a case is to be heard; governed by state or federal statutes (28 U.S.C. 1391). Venue is a matter of convenience rather than power.

 

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