Virginia Vocab

Question 1

Abatement

Answer 1

Ending of a suit. So-called “please in abatement” are not recognized anymore but they could ask you whether the action will “be abated” if a motion is granted for a venue defect (answer: no, it will be transferred, not ended)

Question 2

Ab initio

Answer 2

“from the beginning” as in a judgment entered by a court that lacks subject matter jurisdiction is void ad initio

Question 3

Ad damnum

Answer 3

The portion of plaintiff’s pleading which specifies the amount of money the suit seeks

Question 4

Additur

Answer 4

a rare maneuver in which the trial judge thinks a jury verdict is too low, and tells the defendant that unless defendant accepts a higher amount, the trial judge will give plaintiff a new trial.

Question 5

Assignments of error

Answer 5

In VA, every appellant must write out a short summary of each of the errors made in the lower tribunal that appellant claims are grounds for reversal. The appeal is limited to the exact scope of what is asserted in the assignment

Question 6

Bailiwick

Answer 6

The territory in which a sheriff has jurisdiction; usually, a city or county.

Question 7

Bailment

Answer 7

the cause of action one uses when property is left with someone and is damaged. Can be “gratuitous” (no payment, bailee need only use some care) or “compensated” (bailee is liable for negligence, or for departure from the terms of the owner who entrusted the property with him.

Question 8

Bill of Particulars

Answer 8

In most states, a criminal discovery device. Here it’s available on the civil side too, in actions at law only. You move to have the court require the plaintiff to spell out more particularly what the motion for judgment is trying to allege (like the federal motion for a more definite statement).

Question 9

Certiorari

Answer 9

In VA parlance, certiorari is the proceeding one brings in circuit court to challenge local zoning rulings.

Question 10

Chancery

Answer 10

The old name for the equity side of circuit court. The Chancellor is the circuit court judge when hearing an equitable claim, and particularly when presiding at a bench trial.

Question 11

Collateral estoppel

Answer 11

Issue preclusion. Arises in VA where the same parties who previously actively litigated a specific issue and reached a final judgment, are again facing each other in a later case where that fact/issue could have some effect.

Question 12

Collateral Source Rule

Answer 12

The doctrine that even if an injured person will receive insurance recoveries he or she may still sue the tortfeasor for personal injuries and property damage plaintiff has suffered. The insurance or other payment is “collateral” to the tortfeasor’s obligation to pay.

Question 13

Commissioner

Answer 13

Usually a lawyer appointed by the court in an equity suit to hear evidence and make a report recommending how the court should rule. This happens in domestic relations cases, real property cases such as easement disputes, and other “chancery” causes of action. Sometimes a “special commissioner” is appointed to do some act the court requires, such as to convey title, when the parties refuse but the court insists.

Question 14

Committee

Answer 14

One form of guardian appointed for a person under disability (e.g., mental cases and convicts). Despite the nomenclature, it’s usually an individual, as in, Mr. DeWayne Shifflett was appointed as the committee for Mr. Counts.

Question 15

Confession of judgment

Answer 15

A contract term that allows the creditor to cimply register a judgment if the debtor falls into default, without even filing a suit. It’s constitutional.

Question 16

Continuance

Answer 16

The case is adjourned to a later date. So it does not continue right now but…

Question 17

Contribution

Answer 17

The equitable cause of action (recognized by statute in VA) for one tortfeasor to sue other joint tortfeasors for their share of the liability to the injured party.

Question 18

pro rata

Answer 18

In VA, contribution is [—] (equal shares) rather than proportionate to culpability (not comaparative)

Question 19

Decree

Answer 19

a word sometimes used to refer to the final order or judgment reached in an equitable suit.

Question 20

Demurrer

Answer 20

The pleading that works in VA like a motion to dismiss – it challenges the face of the bill of complain/motion for judgment and says “if we take all these averments as true, does plaintiff have a viable claim here?”

Question 21

Detinue

Answer 21

The civil action in VA to seek recovery of personal property. Remember: Don’t use “replevin” in VA as the same for this cause of action.

Question 22

Devisavit vel non

Answer 22

as in, an action [—-]. This is a proceeding to determine whether there is a valid will, which may be heard by the judge, with or without an advisory jury.

Question 23

Ejectment

Answer 23

and action for [—] is the form of lawsuit used when you wish to assert title to real property

Question 24

Eminent Domain

Answer 24

synonym for condemnation of property by the government or authorized utility.

Question 25

Ex Contractu

Answer 25

use this term as a general reference to “all contract type actions”. As in “for venue purposes, actions [—] arise either where the agreement is made, or where it is breached.

Question 26

Ex Delicto

Answer 26

use this term as a general reference to “all tort type actions”.

Question 27

Execution

Answer 27

Enforcement of judgments and liens; also, what firms do if you fail the bar exam 3 times running

Question 28

Extraordinary writs

Answer 28

habeas corpus, mandamus or prohibition, coram nobis

Question 29

Habeas Corpus

Answer 29

to challege validity of incarceration

Question 30

Mandamus or Prohibition

Answer 30

to order a lower court or official to do something or refrain from acting

Question 31

coram nobis

Answer 31

asking for a new trial (good luck)

Question 32

Fieri Facias

Answer 32

known to the bar as “fi fa.” This is the name of the writ directing the sherrif to execute on a judgment lien

Question 33

Forum Non Conveniens

Answer 33

In VA this can mean either dismissal of a VA case in contemplation that the action will proceed in another state or nation, or a simple transfer to avoid gross inconvenience when plaintiff selects a valid venue but it is terrifically inconvenient.

Question 34

Garnishment

Answer 34

Statutory procedure a creditor may use to force people or entities who owe a debtor money to pay those funds to the creditor, rather than the debtor. Examples: the creditor garnishes wages that would otherwise be paid to the debtor, or a bank account of the debtor.

Question 35

Laches

Answer 35

There is no “statute of limitations” for equitable claims, but the doctrone of [—] is a recognized defense in equity, asking the Chancellor to deem a claim barred by unjustified delay in assertion which prejudiced the defendant’s ability to defent (i.e., witness died meantime.)

Question 36

Lis pendens

Answer 36

as in, a notice of [—], being notice that a suit is pending which may affect real property (title, liens, etc.), usually docketed with the clerk of the city or county where property is located.

Question 37

Misnomer

Answer 37

suing and describing the correct defendant but making a relatively minor (clerical) error in spelling the name of the party. If the correct person gets served and has notice, and the error is minor, plaintiff can amend and the filing date of the original action will be used for statute of limitations purposes rather than the later date when the naming is corrected.

Question 38

Next friend

Answer 38

A competent adult who files suit on behalf of a minor or disabled person (no appointment by court is necessary).

Question 39

Nonsuit

Answer 39

the only acceptable term in VA to describe plaintiff’s voluntary discontinuance of a lawsuit.

Question 40

Nuisance

Answer 40

Tort action for anything that interferes with an owner/occupier of land’s enjoyment of the premises.

Question 41

Nunc pro tunc

Answer 41

do it now, as though it was done before. As in, retroactively modifying a payment schedule, or correcting a judgment which had clerical problems expressing the court’s rullings.

Question 42

Ore tenus

Answer 42

taken orally. As in, the court heard the evidence [—-], meaning it heard live witnesses as opposed to receiving affidavits or depositions.

Question 43

Partition

Answer 43

The equitable cause of action where two co-owners or inheritors of property cannot agree on its disposition. If it’s in their best interests, the court should “divide it in kind” if that’s feasible, or require a sale and simply divide the proceeds.

Question 44

Plea in equity

Answer 44

a single, dispositive factual proposition asserted as a plea in bar in an equity proceeding (that is, as a defense that obviates the claim), as to which there is a right by statute in VA for empanelling a jury even though the case is in equity, and the jury’s verdict on a [—] is binding.

Question 45

Praecipe

Answer 45

a notice document in VA procedure, served on adversaries and filed, to announce readiness for a proceeding, or to notify adversaries of a court date. It’s really a noun, “file a [—].” But the in-crowd would make it a verb : “let’s [—] it for a hearing next Tuesday” (meaning: let’s serve a [—] notifying them that the motion/trial, etc. will be next Tuesday).

Question 46

privity

Answer 46

a case-law doctrine that where two or more people share a joint right, or where one obtains a property interest from another person, the present party can for some purposes be treated as being bound by notice to or legal actions against the other person with whom the party is in privity.

Question 47

Prohibition

Answer 47

as in, writ of [—-]. This is the writ one seeks if the goal is to order a lower ranking judge to stop doing something that is beyond statutory powers.

Question 48

Receiver

Answer 48

A person appointed by the circuit court in an equitable proceeding with power to run a business involved in the litigation until the court can sort out whether the owners or managers are acting improperly. It is a “drastic” remedy to give such power.

Question 49

Reformation

Answer 49

Equitable relief which “rewrites” the contract so that it matches the intentions that the parties had at the outset.

Question 50

Remitittur

Answer 50

Reduction of a jury jury award by the judge where there is no adequate factual basis for the amount of award given by the jury. Plaintiff may accept this amount, or demand a new trial.

Question 51

Rescission

Answer 51

A word with 3 S’s in it, which means cancelling a contract for such things as mutual mistake or misrepresentation

Question 52

Res judicata

Answer 52

claim preclusion. Under Rule 1:6 this is codified in VA, and governs all claims arising from the same conduct, transaction or occurrence.

Question 53

Satisfaction

Answer 53

Paying off the loan or judgment amount

Question 54

special appearance

Answer 54

appearing (in person or by filing papers) for the sole purpose of arguing that the court lacks personal jurisdiction over the defendant. Used to contest service of process and “minimum contacts” due process limits on personal jurisdiction.

Question 55

setoff

Answer 55

Where the D asserts that P owes money relating to the same transaction

Question 56

Sovereign Immunity

Answer 56

See the Local Government Outline

Question 57

Statute of Frauds

Answer 57

It embodies the rule that contracts involving ownership of real estate, or contracts involving more than $25,000 or performance duties lasting more than 1 year, must be in writing (although multiple writings can be pieced together and some conduct can be considered.

Question 58

Subpoena Duces Tecum

Answer 58

The subpoena to call for production of records by a third party (not subject to discovery rules). In general district court, where discovery is not generally available, one can still seek a [—-].

Question 59

Quo Warranto

Answer 59

Surely they would not give you this? This is a kind of claim, an action for a legal writ, which challenges the power of a public officer (e.g., the sheriff) to do whatever is being done.

Question 60

Unclean hands

Answer 60

a defense available in contract cases and all equitable claims, which applies anytime the plaintiff has acted improperly (not necessarily illegally or actionably) in the same transaction from which he now seeks equitable relief. If unclean hand is found, it bars all remedies.

Question 61

Unlawful detainer

Answer 61

the civil action to oust a tenant of possession of leased premises (e.g., for non-payment of rent or expiration of the lease).

Question 62

Vested rights

Answer 62

the concept that due process prevents another person or the government from taking away an established ownership interest or right, such as the right to subdivide property.

Question 63

Voir dire

Answer 63

questioning of potential jurors (sometimes called venir) to see whether they should be “excused for cause” (because they have some bias or interest or relationship.

Question 64

Warrant in debt

Answer 64

a pre-printed one page pleading used to start most cases in general district court. A complaint can be used, but in GDC usually plaintiffs just sign the form, check the box to indicate that D owes money, and the case is being begun when the form is filed. These “warrants in debt” are used for personal injury or property damage, or contract matters, not just “debts.”

Question 65

Writ of possession

Answer 65

the order authorizing a landlord to retake possession of the premises

Question 66

Writ tax

Answer 66

one of the fees collected when you commence a lawsuit in VA. The other is a (yes) filing fee.

Question 67

Wrongful death

Answer 67

the statutory cause of action at law for negligence torts resulting in death of the victim, maintiained on behalf of prescribed beneficiaries.