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General Legal Terms

Chapter 5 General Legal Terms

 

The United States has a common law legal system, which means it is derived from English law. American legal vocabulary has its origins in medieval English law, and it contains many terms in Latin and French. You will encounter many unfamiliar words as you learn about law and law procedures in America. In many cases, words that would otherwise be familiar to you may have special meanings in the law; in some contexts familiar words may be combined to designate concepts that are entirely unfamiliar. The purpose of this chapter is to introduce the non - lawyer to general terms which attorneys use in litigation pre - trial and at trial. The terms can be confusing at times, and lawyers often use words or abbreviations which are not familiar to lay people.

 

Civil litigation terms

 

Plaintiff is a person who files a summons and complaint against a defendant seeking help from the court to resolve a dispute. It can be compensation for personal injury and/or relief from a breach of contract. The" summons" is a document that starts the plaintiffs action; it requires the defendant to appear and answer the complaint. The" complaint" is a separate document that sets forth the elements of the cause of action (or causes of action, if there is more than one) that the plaintiff is alleging against the defendant. A litigant or party is one who is suing or defen­ding a suit. A defendant is the one accused civilly of harming the plaintiff. Unless the plaintiff is appearing pro se( without an attorney) , the plaintiff’s attorney will also file an" appearance. " This is a simple document that sets forth the name and address of the attorney. Corporations cannot appear pro se and must be represented by an attorney. The defendant may file an answer disputing the allegations or statements in the complaint. A civil suit is not a criminal matter; the issue is liability not the doing of a crime.

 

 

Pre - trial terms®

 

Once an answer is filed,the issue at dispute is joined and the litigation begins. Pre - trial discovery is used to find out the facts behind the dispute. There is an exchange of interrogato­ries, which are written questions and answers. There can be a notice to produce documents, which are papers which support a litigant’s viewpoint, or challenge it. A demand for admissions can also be made which are a series of statements which a party either admits or denies. It is not uncommon for a lay person to claim a denial is an act of peijury when they know the fact to be true. But for lawyers a denial is more a legal statement that the party will not admit the truth of the matter and leaves the other party to prove the allegation in a court of law. A deposition is an oral question and answer session in which the opposing lawyer asks the questions and the party or non party witness answers while the whole thing is recorded by a court reporter. This produces a typed booklet.

 

The deposition booklet can be used at trial to support and/or impeach the credibility of a witness. There are fact witnesses, and expert witnesses. Fact witnesses can only testify as to what they know. Expert witnesses such as doctors are permitted to offer opinions such as an injury was caused by an accident and is permanent. Experts can be deposed just as fact witnesses are. Motions are requests to the court for an order in regards to litigation. One such motion may be to strike a witness for not being able to help the matter progress or to challenge the expertise of a particular expert. Motions can be granted by the court or denied. In some cases a litigant may file a motion for summary judgment asking the court to dismiss the litigation.

 

Mediation and/or arbitration

 

Courts are very crowded and often a mediator and/or arbitrator will be selected by the par­ties to assist the litigants in resolving the matter without going to court. They can also be ordered by the court. They can be binding which means that the parties must accept the ruling, or non - binding which means either party can return to court. Mediators and arbitrators are usually law­yers with trial experience. The process can be complex with witnesses, documents, etc. ,or sim­ply informal with the two sides giving short summaries of the dispute.

 

Trial—the beginning

 

When a matter is trial ready, the parties are normally assigned a judge who will manage the courtroom during a trial. A bench trial is judge only while a jury trial means the final deci­sion will be made by a panel of jurors. Criminal juries consist of 12 people who must reach a u- nanimous verdict. Civil juries are usually smaller and most jurisdictions want a majority to agree on a verdict. Sometimes the judge will have a pre - trial conference and act as a mediator to see if he can get the parties to settle without resorting to trial. A settlement is an agreement between

 

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Trial jury—selection and testimony

 

The judge normally guides a panel selection in which potential jurors are chosen. There can be court challenges to sitting someone on a jury "for cause" (for example one potential ju- i ror is a close friend of one of the litigants) ,or " pre - emptive" (when an attorney strikes a po­tential juror without giving a reason). (Obviously the reason is usually the attorney believes this particular person would decide against his client. ) During a trial the plaintiff and defendant counsel provide the jury with opening statements which are road maps to the parties and the dispute. The trial begins with the calling of fact and expert witnesses, first for the plaintiff and then for the defendant. Direct examination is when a lawyer asks questions of his own party or non-party witness, and cross examination is when the opposing party asks questions. The pur­pose of a cross examination is to undermine the credibility of the witness with the jury.

 

Trial—the process

 

The parties have witnesses speak and introduce other forms of evidence such as documents and photographs. The judge determines what is permitted as evidence and what is not. During a trial a motion can be made to the court to limit someone’s testimony,or to strike it,or to have the judge give the jury an instruction not to heed someone’s one statement or even their entire testimony. At the conclusion, the lawyers give summaries of what was proven in court, and the judge instructs the jury in the rules of law they are to apply in their deliberation. The jury re­tires to a special room where they deliberate and then come to a conclusion, such as the defend­ant owes the plaintiff a sum of money and/or no cause which is a verdict to dismiss the case. The jury returns to the courtroom to provide its verdict. A verdict decision can take a jury a few minutes or several days. If a jury cannot reach a verdict the judge may declare a mistrial and the litigants have to resort to a new trial.

 

Verdict and afterwards

 

A jury verdict is turned into a written order by the prevailing party which is then signed by the judge and becomes an order of the court. If it is a money judgment, the defendant must pay the money.In some cases as in an automobile accident,the defendant’s insurance carrier will pay the money. A successful verdict usually means that the plaintiff attorney will receive a por­tion of the verdict,such as 1/3rd less costs of litigation. The order can also be filed as a judg­ment and becomes a lien against the assets of the losing party. A warrant of satisfaction is a le­gal document filed with the court that states the debt has been paid and the lien is then lifted.

 

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An appeal—what it is

 

The losing party may file an appeal in the next higher court. Appellate courts usually focus only on the legal process during a trial, and will overturn a decision and/or remand (send it back) to a trial court with instructions on how to correct the error. This may mean relitigating the entire original trial and/or a portion of it. Lay people often believe that an appellate court will overturn an"unfair"trial,but losing is not a reason for the higher court to overturn a ver­dict. However,appeals may be costly,and the appellate court must find an error on the part of the court below that justifies upsetting the verdict. Therefore, only a small proportion of trial court decisions result in appeals. Some appellate courts, particularly supreme courts, have the power of discretionary review, meaning that they can decide whether they will hear an appeal brought in a particular case. Appellate courts rarely overturn trial courts decisions and rarely find that the trial judge committed error.

 

Some legal terms you need to know

 

Acknowledgment—A sworn declaration by a person before an official such as a notary public that he executed a legal document or that such a document is genuine.

 

Act—An enacted (passed) piece of legislation; may also be referred to as a law or slip

 

law.

 

Action—Case, cause, suit, or controversy disputed or contested before a court.

 

Advance Sheet—Paperback volume of a case reporter that preceded publication of the bound volume and has the same volume and page numbers as the bound volume will have. Usu­ally contains a list of cases reported, index of topics, table of unpublished opinions, and table of citations to laws, acts, and statutes.

 

Annotated Code—Subject arrangement of a jurisdiction’s public, general laws currently in force, including for each section of each law abstracts of cases interpreting the language of the sections, legislative history, cross references to other code sections, references to law review arti­cles , and cross references to pertinent material in other legal resources.

 

Annotation—1) Additional explanation or abstract of a statute. May include legislative history, relevant decisions, and journal references. 2) Essay on a legal topic, generally footnoted with references to cases.

 

Answer—A pleading by which defendant endeavors to resist the plaintiffs allegation of facts.

 

Attorney General Opinions—They are often written in response to inquiries from govern­ment officials to interpret case law, to provide explanations of statutes, and to give legal coun­sel. Although not legally binding,these opinions have persuasive authority. At the federal level, the official series for these documents is called Official ODinions of thp Attnm

 

 

custody of the jury.

 

Bill—Proposed piece of legislation.

 

Barrister—Specialist in litigation and advocacy who receives instructions from a solicitor. Barristers may not normally, deal directly with members of the public.

 

Beneficiary—Person who receives a gift under a will, or for whose benefit property is held by an executor or trustee.

 

Bill of exchange—Written, signed instrument requiring the person to whom it is addressed to pay on demand (or on a future date) a fixed amount of money either to the person identified as payee or to anyone presenting the bill of exchange. A cheque is a form of bill of exchange.

 

Best evidence—Primary evidence; the best evidence which is available; any evidence falling short of this standard is secondary; i. e. ,an original letter is best evidence compared to a copy.

 

Brief—A written or printed document prepared by counsel to file in court, usually setting forth both facts and law in support of his case.

 

Burden of proof—in the law of evidence, the necessity or duty of affirmatively proving a fact or facts in dispute.

 

Citation or Cite—Written legal reference identifying a particular document(decision,stat­ute ,etc. ).

 

Citator—A publication that compiles cases, statutes and other sources of law, showing ci­tations to later sources of law that may affect the authority, validity or meaning of a previous case or statute.

 

Code—Subject compilation of a jurisdiction’s public, general laws or administrative rules currently in force.

 

Codify—To collect and systematically arrange systematically laws,rules or regulations.

 

Common law —Law which derives its authority solely from usages and customs of imme­morial antiquity, or from the judgments and decrees of courts. Also called case-law.

 

Court of last resort—A court from which there is no appeal.

 

Court of record—A court whose acts and judicial proceedings are reported and which has the power to fine or imprison for contempt.

 

Court Reporter—1) Publication containing published court decisions; 2 ) Individual who records court proceedings.

 

Decision—Used as a synonym for opinion. Technically, the decision of a court is its judg­ment while the opinion is the reason given for that judgment, or the expression of the views of the judge.

 

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Headnote—Summary of a point of law in a court decision.

 

Hypothetical question—A combination of facts and circumstances, assumed or proved, stated in such a form as to constitute a coherent state of facts upon which the opinion of an ex­pert can be asked by way of evidence in a trial.

 

Information—An accusation for some criminal offense, in the nature of an indictment, but which is presented by a competent public officer instead of a grand jury.

 

Intestate—One who dies without leaving a valid will.

 

Judge’s charge—The instruction a judge gives to a jury before the jury begins deliber­ation.

 

Judgment—The final decision rendered by a court in a civil or criminal proceeding.

 

Law Review—Journal edited by law students and published by a law school.

 

Leading question—One which instructs a witness how to answer or puts into his mouth words to be echoed back; one which suggests to the witness the answer desired. Prohibited on direct examination.

 

LexisNexis—Online legal database supported by LexisNexis Group that contains the full text of primary and secondary legal resources. LexisNexis Group is the global legal publishing arm of Reed Elsevier, an Anglo - Dutch company.

 

Looseleaf service—Commercially produced topical publication that provides current infor­mation through the use of loose pages that are issued frequently and interfiled in a binder. Out­dated pages are discarded, according to the publisher’s instructions.

 

National Reporter System—West Publishing Company’s system of federal, regional and state reporters.

 

Nominal party—One who is joined as a party or defendant merely because the technical rules of pleading require his presence in the record.

 

Nutshell—West Group’s series of concise treatises on a wide range of legal topics. There are more than 115 titles in the Nutshell Series.

 

Objection—The act of taking exception to some statement or procedure in trial. Used to call the court’s attention to improper evidence or procedure.

 

Opinion—Used as a synonym for decision. Technically, a decision of the court is its judg­ment ; the opinion is the reasons given for that judgment, or the expression of the views of the judge.

 

Ordinances—Local laws.

 

Original Jurisdiction —Jurisdiction of a court to assert authority over a case at the outset, to try it,and to decide the issues.

 

Paralegal—non - lawyers who assist lawyers in their legal work.

 

Pocket Part—Supplement that slips into a pocket in the back of a published volume to update information in that volume.

 

Precedent—A court decision that provides an example or authority for a similar case that later confronts a similar question of law.

 

Primary legal sources—Texts of laws, constitutions, court decisions, administrative agency regulations and rulings, executive orders, treaties, and other first - hand accounts of the law.

 

Pro se—Representing oneself in court without an appearance by a lawyer.

 

Respondent—Party who responds to an appeal brought by another party.

 

Reply—When a case is tried or argued in court,the argument of the plaintiff in answer to that of the defendant. A pleading in response to an answer.

 

Rest—A party is said to "rest" or "rest his case" when he has presented all the evidence he intends to offer.

 

Secondary legal resources—Treatises, legal encyclopedias, law review articles, reports of commissions and associations, etc. Sources that describe, explain, analyze, criticize, or suggest changes in the law.

 

Session laws —Slip laws arranged in chronological order and published in permanent bound volumes.

 

Shepard’s—A major legal citator.

 

Shepardize—Using Shepard’s Citations as a citator to determine the current status of a particular law.

 

Sheriff—An officer of a county, chosen by popular election, whose principal duties are aid of criminal and civil courts; chief preserver of the peace. He serves processes, summons juries, executes judgments and holds judicial sales.

 

Slip law—Text of a single act issued officially in a pamphlet or single sheet.

 

Slip opinion—Text of a single court decision officially issued in a pamphlet prior to publi­cation in a permanent volume._

 

Stare decisis—Legal doctrine that requires courts to stand by precedent.

 

Syllabus—A note prefixed to a court opinion, containing a brief statement of the rulings of the court upon the point or points decided in the vase.

 

Synopsis—Brief summary of the facts of a case.

 

Statute—Law passed by a state legislature or Congress.

 

Treatise—A secondary source in the form of a narrative text that provides an in - depth a- nalysis of a legal subject.

 

True bill—In criminal practice, the endorsement made by a grand jury upon a bill of in­dictment when thev find sufficient eviHenr.f* tn warrant a nriminal rVharirfv

 

 

Westlaw—Online legal database developed by West Group that contains primary and sec­ondary legal resources, as well as editorial enhancements found in the National Reporter Sys­tem.

 

Year—When used without any other qualification, a 12 - month period beginning on Janu­ary 1.

 

Young person—Person under 16 , whose regular, full - time employment is forbidden by . the 1996 Protection of Young Persons (Employment) Act. A child over 14 may do light work during school holidays, but a child under 14 cannot be employed at all.

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