Legal Terminology Flashcards
(36 cards)
ACTION
In the legal sense, an “ACTION” is a legal matter that is brought before a court.
An action can be civil or criminal.
ANSWER
In a civil lawsuit, once the defendant is served with the COMPLAIN and SUMMONS, the defendant is require to file a responsive pleading called an ANSWER. The ANSWER is usually a general denial of the allegations in the COMPLAINT.
APPEAL
After a final order or JUDGMENT has been entered by a Court, the losing party normally has the right to seek review of that order or JUDGMENT by the next higher court. An APPEAL usually begins by the filing of a “Notice of Appeal”.
ASSIGNED CLAIM
A person who is the owner of a legal right may give, or assign, that right to another person.
For example, a financial institution which has loaned money often sells that note to another financial institution. This is an assignment of all rights and obligations that the original financial institution may have had, and is usually done for consideration, i.e. a price paid by the assignee.
An assignment may also be a gift, not supported by CONSIDERATION.
Another example is seen in automobile cases involving insurance payment for damages. The party who receives the insurance payment is required to assign their claim against the other party to the insurance company. The insurance company may then pursue all legal remedies that were available to the assignor.
ATTORNEY OF RECORD
Attorneys can confer with a prospective client and even go so far as to create an attorney-client relationship without becoming the attorney of record for that client.
The formal status of “attorney of record” is created by the filing of a Notice of Appearance.
Once this Notice is filed, the attorney has a legal and ethical obligation to effectively represent that client until he is relieved of that responsibility by the Court.
BIFURCATED
Bifurcation means that a matter has been divided into more than one part, or partitioned.
For example, in a complicated matter, the parties may request, or the judge may decide, to separate the presentation of evidence into more than one hearing.
Bifurcation is often seen in personal injury litigation. In such cases, the issues of liability and damages are heard separately. Often this separation of issues streamlines the presentation of evidence and can make the scheduling of witnesses a little easier for the parties.
BINDING vs. NON-BINDING ARBITRATION
This is a term used to indicate finality.
It is usually used in reference to a decision that has been made. When a party has made a decision that is final, irrevocable and non-appealable, it is referred to as binding.
For purposes of the ADR program, arbitration proceedings are considered non-binding, which means that either litigant may appeal an arbitrator’s decision to the trial court. The parties to an arbitration may stipulate that the arbitration be either binding or non-binding.
BREACH
Breach is essentially a failure to perform a legally required duty. Breach is synonymous with “break”.
For example, when a party to a contract fails to do, or refrain from doing something that was promised in the contract, this is considered a breach of contract.
That breach gives the aggrieved party (the “victim” of the breach) the right to sue to enforce the contract.
CASA
An abbreviation for COURT APPOINTED SPECIAL ADVOCATE, usually a volunteer appointed by the court to represent the best interests of a child or impaired adult.
COMPLAINT/ CLAIM
A civil lawsuit usually begins with the plaintiff filing a pleading called a Complaint.
There are very specific rules that determine the legal sufficiency of a Complaint. The complaint must contain allegations which establish the jurisdiction and venue of the Court, the conduct (acts or omissions) of the defendant(s) which resulted in damage or harm to the plaintiff and a prayer for relief, usually money damages.
The normal responsive pleading to the Complaint is an ANSWER.
CONSIDERATION
As used in the law, consideration means value. This term is usually found in the context of contract litigation.
The promises that the contracting parties exchange are deemed to have value. In order for the contractual promises to be legally enforceable, they must be supported by some value.
Interestingly, it is a basic premise of the law that courts will not determine the sufficiency of the consideration. In other words, as long as the promises that the contracting parties made to each other are supported by some “value,” a court will not get involved in any determination of whether enough value has been exchanged.
COUNTERCLAIM
After a defendant in a civil lawsuit has been served with a Complaint, the Defendant’s Answer may contain a Counterclaim.
This is a claim against the plaintiff for relief for harm caused by the plaintiff. Essentially the filing of an Answer and Counterclaim creates another lawsuit where the original plaintiff becomes a defendant, referred to as a Counter-Defendant.
The same rules of legal sufficiency that govern the filing of a Complaint also apply to a Counterclaim. Once the plaintiff has been served with the Answer and Counterclaim, he is required to file a RESPONSE PLEADING, usually called an Answer or Reply to Counterclaim.
A Counterclaim may be either compulsory or permissive, depending on whether or not the acts or omissions stated in the Counterclaim are connected or related to the acts or omissions stated in the original Complaint.
CROSS-CLAIM
When a civil lawsuit involves more than one defendant, the defendants may find themselves in adversary positions to each other.
In other words, the plaintiff has a cause of action and claim for damages against defendants A and B.
Defendant B may believe that, if he is found liable to the plaintiff, that the other defendant, defendant A, is also liable to him (defendant B).
Defendant B then files a Cross-claim against defendant A.
Defendant B then becomes a Cross-Claimant and defendant A then becomes a Cross-defendant and must respond to the Cross-claim by filing an Answer or Reply to the Cross-claim.
DEFAULT
In a civil lawsuit there are strict deadlines imposed by statute or court rules for a party to file a responsive pleading. If that party fails to file the required responsive pleading, then he loses by DEFAULT.
For example, if a defendant is effectively served with a COMPLAINT and SUMMONS, but fails to file an ANSWER within the time permitted by law, the plaintiff begins the DEFAULT process by filing a request with the Court that alleges that the time to file an answer has elapsed and asking the Court to enter JUDGMENT for the relief requested in the COMPLAINT.
DEFAULT HEARING
The hearing scheduled for cases in which the defendant has failed to appear or answer.
DEFAULT JUDGMENT
When a Judgment is awarded to the plaintiff because the defendant has failed to appear or ANSWER.
DE NOVO
This is a Latin term that indicates that a proceeding, usually a hearing or trial, will be conducted again, as if there had been no previous hearing or trial. Just think of any matter that is “de novo” as a do-over.
DISCLOSURE
The court Rules, both civil and criminal, require that the parties exchange information relevant to the case. The court Rules are designed to ensure that both sides are in possession of all the necessary information to be able to try their case and to promote a just outcome.
Failure to comply with the disclosure requirements usually results in sanctions. Those sanctions can be as minor as the imposition of fines or fees made necessary to secure compliance with the disclosure rules, or they can be as severe as the entry of judgment against the non-complying party.
EXECUTION OF JUDGMENT
After litigation has concluded and a judgment has been entered by the court, the prevailing party will need to take the necessary steps to obtain the relief that is ordered in the judgment.
For example, after a contract dispute has been concluded and the court has entered a judgment in favor of the plaintiff for a sum certain, the defendant is not likely to just hand over the amount of money ordered by the court. Post-judgment proceedings are usually necessary to give effect to the judgment of the court.
Some of the ways the plaintiff can execute, or satisfy, his judgment include garnishment of wages, or filing a lien on property of the defendant.
GARNISH/ GARNISHMENT
When a party is successful in a civil lawsuit, whether as the plaintiff, the counterclaimant, or cross-claimant, and is granted a formal judgment by the Court and the judgment is for money damages, the prevailing party may pursue the remedy of Garnishment.
In order for the prevailing party to avail himself of this remedy, the losing party must be gainfully employed and be receiving a periodic paycheck. If the prevailing party complies with all legal requirements for a garnishment, the Court issues an Order to the losing party’s employer which obligates the employer to pay a portion of the losing party’s wages to the prevailing party.
The amount of the wages which may be paid to the prevailing party is controlled by statute, and takes into consideration the losing party’s income and expenses.
INJUNCTIVE RELIEF
A civil litigant can obtain a court order which prohibits a person or group from carrying out a given action, or commands that a given action be done.
Injunctive relief can be granted by the court at the conclusion of a civil case, or it can be granted by the court during the pendency of a lawsuit, if appropriate. Intermediate or interlocutory injunctions usually require that very strict procedural rules be observed and the burden of proof is normally higher.
For example, a party seeking a Temporary Restraining Order, especially if the request is made “ex-parte” (without notice to the other side), must satisfy the court that unless the Temporary Restraining Order is granted, the Petitioner will suffer irreparable harm. Even if this Temporary Order is granted, the court must hold a hearing within 10 days to determine whether the Order should have been granted and whether or not the Order should continue with or without modification.
JUDGMENT
A civil lawsuit concludes with the entry of a formal Order signed by the Judge.
If the Plaintiff is the prevailing party, the Judgment usually grants all or part of the relief sought by the Plaintiff, including money damages.
If the Defendant is the prevailing party, the Judgment usually orders the dismissal of the lawsuit and that the Plaintiff is not granted relief.
The entry of the Judgment triggers the ability of the losing party to seek appellate review.
JUDGMENT CREDITOR/ DEBTOR
The party who owes a debt is the debtor and the party to whom a debt is owed is the creditor.
When litigation has concluded and one party is ordered to pay any sum of money to the other party, then the party who is entitled to collect the amount ordered in the judgment is the Judgment Creditor, and the party who is required to pay the amount ordered is the Judgment Debtor.
JVOC
An abbreviation for Juvenile Victim-Offender Conferencing, an alternative to traditional trial process for juveniles involved in minor criminal activity.
