Legal terms Week 1-7 (Part 2) Flashcards
(129 cards)
1
Q
- A court-issued writ that commands a person to appear at a certain time and place to do something demanded in the writ, or to show cause for not doing so. 2. A reference to a legal precedent or authority (such as a case, statute, or treatise) to support a given position. Also termed cite.
A
citation
2
Q
A judicial proceeding brought to enforce, redress, or protect a private or civil right; a noncriminal case.
A
civil action
3
Q
- One of the two prominent legal systems in the Western World, originally administered in the Roman Empire and still in effect in continental Europe, Latin America, Scotland, and Louisiana, among other parts of the world. Cf. common law. 2. The body of law imposed by the state, as opposed to moral law. 3. The law of civil or private rights, as opposed to criminal law or administrative law.
A
civil law
4
Q
The body of law that governs the methods and practices used in civil litigation, such as the Federal Rules of Civil Procedure.
A
civil procedure
5
Q
(usu. pl.) The individual rights of personal liberty guaranteed, e.g., in the U.S., by the Bill of Rights and by the 13th, 14th, 15th and 19th Amendments to the United States Constitution, as well as by legislation such as the Voting Rights Act. X include esp. the right to vote, the right of due process, and the right of equal protection under the law.
A
civil right
6
Q
- The aggregate of operative facts giving rise to a right enforceable by a court. 2. The assertion of an existing right; any right to payment or to an equitable remedy, even if contingent or provisional. 3. A demand for money or property to which one asserts a right.
A
claim
7
Q
A lawsuit in which a single person or a small group of people represent by their litigation the interests of a larger group. Federal procedure has several requirements for maintaining a X: (1) the class must be so large that individual suits would be impracticable, (2) there must be legal or factual questions common to the class, (3) the claims or defenses of the representative parties must be typical of those of the class, and (4) the representative parties must adequately protect the interests of the class.
A
class action
8
Q
The principle that a party cannot take advantage of its own wrong by seeking equitable relief or asserting an equitable defense if that party has violated an equitable principle, such as good faith.
A
clean-hands doctrine
Such a party is described as having “unclean hands.” Also termed unclean-hands doctrine.
9
Q
Evidence indicating that the thing to be proved is highly probable or reasonably certain. This is a greater burden than preponderance of the evidence, the standard applied in most civil cases, but less than evidence beyond a reasonable doubt, the norm for criminal trials. X is usu. the standard in cases involving the termination of parental rights.
A
clear and convincing evidence
10
Q
- A public official whose duties include keeping records or accounts. 2. A court officer responsible for filing papers, issuing process, and keeping records of court proceedings as generally specified by rule or statute. Also termed clerk of court. 3. A law student or recent law school graduate who assists a lawyer or judge with legal research, writing and other tasks.
A
clerk
11
Q
A corporation whose stock is not freely traded and is held by only a few shareholders (often within the same family). The requirements and privileges of close corporations vary by jurisdiction. Also termed closely held corporation.
A
close corporation
12
Q
In the sale of real estate, the final transaction between the buyer and the seller, during which the conveyancing documents are concluded and the money and property transferred.
A
closing
13
Q
In a trial, a lawyer’s final statement to the judge or jury before deliberation begins, in which the lawyer requests the judge or jury to consider the evidence and to apply the law in her or his client’s favor. Also termed closing statement; summation.
A
closing argument
14
Q
A defect or potential defect in the owner’s title to a piece of land arising from some claim or encumbrance, such as a lien, an easement, or a court order.
A
cloud on title
15
Q
A complete system of positive law, carefully arranged and officially promulgated; a systematic collection or revision of laws, rules, or regulations. Strictly, a X is a compilation not just of existing statutes, but also of much of the unwritten law on a subject, which is newly enacted as a complete system of law.
A
code
16
Q
A supplement or addition to a will, not necessarily disposing of the entire estate but modifying, explaining, or otherwise qualifying the will in some way. When admitted to probate, the X becomes a part of the will.
A
codicil
17
Q
Property pledged by a borrower as security for the debt.
A
collateral
18
Q
An attack on a judgment entered in an earlier proceeding. A petition for a writ of habeas corpus is one type of X. Cf. direct attack.
A
collateral attack
19
Q
An affirmative defense barring a party from relitigating an issue determined against that party in an earlier action, even if the second action differs significantly from the earlier one. Cf. res judicata.
A
collateral estoppel
20
Q
Negotiations between an employer and the representatives of organized employees for the purpose of determining the conditions of employment, such as wages, hours, and fringe benefits.
A
collective bargaining
21
Q
An agreement between two or more persons to defraud another or to obtain something forbidden by law.
A
collusion
22
Q
Courtesy among political entities (such as nations, states, or courts of different jurisdictions), involving esp. mutual recognition of legislative, executive, and judicial acts.
A
comity
23
Q
Negotiable instruments collectively, esp. in the form of drafts or notes. Often shortened to paper.
A
commercial paper
24
Q
Communication (such as advertising and marketing) that involves only the commercial interests of the speaker and the audience, and is therefore afforded lesser First Amendment protection than social, political, or religious speech.
A
commercial speech
25
The act of confining a person in a prison, mental hospital, or other institution.
commitment
26
1. The body of law derived from judicial decisions and opinions, rather than from statutes or constitutions. See case law. 2. The body of law based on the English legal system, as distinct from a civil law system. All states in the United States except Louisiana have the X as their legal system. Cf. civil law.
common law
27
A marriage that takes legal effect, without license or ceremony, when a couple live together as spouses, intend to be married, and hold themselves out to others as a married couple. X s are permitted in 15 states and in the District of Columbia in the United States.
common-law marriage
28
Stock that gives the holders the right to vote and to receive dividends after other claims and dividends have been paid (esp. to preferred shareholders). Cf. preferred stock.
common stock
29
In some states in the United States, property owned in common by spouses as a result of its having been acquired during the marriage by means other than gift or inheritance, each spouse holding a one-half interest in the property. Only nine states in the United States have X systems: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Cf. separate property.
community property
30
A plaintiff's own negligence that proportionally reduces the damages recoverable from a defendant. Cf. contributory negligence.
comparative negligence
31
See actual damages.
compensatory damages
32
1. A basic or minimal ability to do something, qualification, esp. to testify. 2. The capacity of an official body to do something. 3. Admissibility.
competence
33
The mental ability to understand problems and make decisions. In the context of a criminal defendant's ability to stand trial, competency includes the capacity to understand the proceedings, to consult meaningfully with counsel, and to assist in the defense.
competency
34
1. The initial pleading that starts a civil action and states the grounds for the court's jurisdiction, the plaintiff's claim, and the demand for relief. In some states in the United States, this pleading is called a petition. Cf. answer. 2. In criminal law, a formal charge accusing a person of an offense. Cf. indictment; information.
complaint
35
A judicial deduction made on a showing of certain facts, no further evidence being required; a legal inference mandated by the evidence. Cf. finding of fact.
conclusion of law
36
A presumption that cannot be overcome by any additional evidence or argument. Also termed irrebuttable presumption. Cf. rebuttable presumption.
conclusive presumption
37
1. A vote cast by a judge in favor of the judgment reached, often on grounds differing from those expressed in the majority opinion explaining the judgment. 2. A separate written opinion explaining such a vote. Also termed concurring opinion.
concurrence
38
Two or more overlapping periods of jail time to be served simultaneously. For example, if a defendant receives X of 5 years and 15 years, the total amount of jail time is 15 years. Cf. consecutive sentences.
concurrent sentences
39
The determination and declaration that certain property (esp. land) is taken for public use, subject to reasonable compensation; the exercise of eminent domain by a governmental entity. See eminent domain.
condemnation
40
1. A stipulation or prerequisite in a contract, will, or other instrument. 2. A future and uncertain event on which the existence or extent of an obligation or liability depends; an uncertain act or event that triggers or negates a duty to render a promised performance. For example, if A promises to pay B $500 for repairing a car, B's failure to repair the car relieves A of the promise to pay. 3. A qualification attached to the conveyance of property providing that, if a particular event does or does not take place, the estate will be created, enlarged, defeated, or transferred.
condition
41
An act or event, other than a lapse of time, that must exist or occur before a duty to perform a promised performance arises. If the condition does not occur and is not excused, the promised performance need not be rendered. The most common condition contemplated by this term is the immediate or unconditional duty of performance by a promisor.
condition precedent
42
A condition that, if it occurs, will bring something else to an end; an event the existence of which, by agreement of the parties, operates to discharge a duty of performance that has arisen.
condition subsequent
43
A criminal suspect's admission of guilt, usu. in writing and often including a disclosure of details about the crime.
confession
44
1. A real or apparent incompatibility between one's private interests and one's public or fiduciary duties. 2. A real or apparent incompatibility between the interests of two of a lawyer's clients, such that the lawyer is disqualified from representing both clients if the dual representation adversely affects either client or if the clients do not consent.
conflict of interest
45
1. A difference between the laws of different states or countries in a case in which a party has acquired rights within two or more jurisdictions. 2. The body of jurisprudence that undertakes to reconcile such differences or to decide what law is to govern in those situations; the principles of choice of law.
conflict of laws
46
The Sixth Amendment provision of the U.S. Constitution guaranteeing a criminal defendant's right to cross-examine any witness.
Confrontation Clause
47
Two or more periods of jail time to be served in sequence. For example, if a defendant receives X of 20 years and 5 years, the total amount of the jail time is 25 years. Also termed cumulative sentences. Cf. concurrent sentences.
consecutive sentences
48
A person appointed by the court to manage the estate or affairs of someone who is legally incapable of doing so.
conservator
49
Something of value (such as an act, a forbearance, or a return promise) received by one party to a contract from the other party. X, or a substitute such as promissory estoppel, is necessary for a contract to be enforceable.
consideration
50
An agreement by two or more persons to commit an unlawful act; a combination for an unlawful purpose. In criminal law, X is a separate offense from the crime that is the object of the X.
conspiracy
51
The body of law deriving from the constitution of a nation or a state (e.g., the United States Constitution or a state constitution) and dealing primarily with governmental powers and civil rights and liberties.
constitutional law
52
The act or process of interpreting the sense or intention of a writing (usu. a statute, opinion, or instrument).
construction
53
Notice arising by presumption of law from the existence of facts and circumstances that a party had a duty to take notice of, such as a registered deed or a pending lawsuit; notice presumed by law to have been acquired by a person and thus imputed to that person. Cf. actual notice.
constructive notice
54
A trust imposed by a court on equitable grounds against one who has obtained property by wrongdoing, thus preventing the wrongful holder from being unjustly enriched. A X does not create a fiduciary relationship. Cf. resulting trust.
constructive trust
55
Conduct that defies the authority or dignity of a court or legislature. Because X interferes with the administration of justice, it is punishable, usu. by fine or imprisonment.
contempt
56
A fee charged for a lawyer's services only if the lawsuit is successful or is favorably settled out of court. X are usu. calculated as a percentage of the client's recovery, such as 33% of the recovery if the case is settled, and 40% if the case is won at trial. Also termed contingency fee.
contingent fee
57
The adjournment or postponement of a trial or other proceeding until a future date.
continuance
58
1. An agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law. 2. The writing that sets forth such an agreement. 3. The body of law dealing with agreements and exchange.
contract
59
The right that gives one of several persons who are liable on a common debt the ability to recover from each of the others in proportion when that one person discharges the debt for the benefit of all: the right to demand that another who is jointly responsible for a third party's injury pay part of what one is required to compensate the third party. Cf. indemnity.
contribution
60
A plaintiff's own negligence that played a part in causing the plaintiff's injury and that is significant enough to bar the plaintiff from recovering damages. In most states in the United States, this defense has been superseded by comparative negligence. Cf. comparative negligence.
contributory negligence
61
In tort and criminal law, the wrongful possession or disposition of another's personal property as if it were one's own.
conversion
62
1. The voluntary transfer of a right. 2. The transfer of an interest in real property from one living person to another, by means of an instrument such as a deed. 3. The document (usu. a deed) by which such a transfer occurs.
conveyance
63
1. The act or process of judicially finding someone guilty of a crime; the state of having been proved guilty. 2. The judgment (as by a jury verdict) that a person is guilty of a crime.
conviction
64
A property right in an original work of authorship fixed in any tangible medium of expression (such as a literary, musical, artistic, photographic, or film work), giving the holder the exclusive right to reproduce, adapt, distribute, perform, and display the work.
copyright
65
A statutory entity (usu. a business) having authority to act as a legal person distinct from the shareholders who make it up and having rights to issue stock and to exist indefinitely.
corporation
66
Having a physical material existence: tangible. Cf. incorporeal.
corporeal
67
(Latin "body") 1. The property for which a trustee is responsible: the trust principal. Also termed res; trust estate. 2. Principal (as of a fund or estate), as opposed to interest or income. Pl. corpora.
corpus
68
Confirmation or support by additional evidence or authority.
corroboration
69
1. Advice or assistance. 2. One or more lawyers who represent a client. In the singular, also termed counselor.
counsel
70
1. The part of an indictment charging the suspect with a distinct offense. 2. In pleading, the plaintiff's statement of a distinct claim.
count
71
A defendant's claim in opposition to, or as a setoff against, the plaintiff's claim. Cf. cross-claim.
counterclaim
72
In contract law, an offeree's new offer that varies the terms of the original offer. By varying the terms, the offeree rejects the original offer.
counteroffer
73
An established pattern of conduct between the parties to a business transaction. If a dispute arises, the parties' course of dealing can be used as evidence of how they intended to carry out the transaction.
course of dealing
74
1. A governmental body consisting of one or more judges who sit to adjudicate disputes and administer justice. 2. The judge or judges who sit on such a governmental body.
court
75
The charges or fees assessed by a court, such as filing fees, jury fees, reporter fees, and courthouse fees.
court costs
76
See order.
court order
77
A person who transcribes by shorthand, stenographically takes down, or electronically records testimony during court proceedings or trial-related proceedings.
court reporter
78
1. A formal agreement or promise, usu. in a contract. 2. A promise made in a deed or implied by law; esp. an obligation in a deed burdening or favoring a landowner. E.g., covenant not to compete. See noncompetition clause.
covenant
79
One to whom a debt (esp. money) is owed.
creditor
80
A social harm that the law makes punishable; the breach of a legal duty treated as the subject matter of criminal proceedings.
crime
81
A judicial proceeding instituted by the government to punish offenses against the public; a prosecution.
criminal action
82
The body of law defining offenses against the community at large, regulating how suspects are investigated, charged, and tried, and establishing punishments for convicted offenders.
criminal law
83
The legal rules governing the methods by which crimes are investigated, prosecuted, adjudicated, and punished, as well as the protection of accused persons' constitutional rights.
criminal procedure
84
A claim that arises between codefendants or coplaintiffs in a case and that relates to the subject of the original claim or counterclaim. Also termed cross-action. Cf. counterclaim.
cross-claim
85
The formal questioning of a witness by the opponent of the party who called the witness to testify. The cross-examiner is typically allowed to ask leading questions but is usu. limited to matters covered on direct examination and to credibility issues. Often shortened to cross. Cf. direct examination.
cross-examination
86
See consecutive sentences. Cf. concurrent sentences.
cumulative sentences
87
1. The care and control of a thing or person for inspection, preservation, or security. 2. The care, control, and maintenance of a child awarded by a court to one of the parents in a divorce or separation proceeding.
custody
88
A state official appointed or elected to represent the state in criminal cases in a particular judicial district; a prosecutor.
D.A.: District Attorney
89
Money claimed by, or ordered to be paid to, a person as compensation for loss or injury caused by a wrongdoer.
damages
90
Violent action known to create a substantial risk of causing death or serious bodily harm.
deadly force
91
A law prohibiting the admission of a decedent's statements as evidence in certain circumstances, as when an opposing party or witness seeks to use those statements to support a claim against the decedent's estate. Also termed (formerly) dead man's statute.
dead person's statute
92
1. Liability on a claim; a specific sum of money due by agreement or otherwise. 2. The aggregate of all existing claims against a person, entity, or state.
debt
93
1. One who owes an obligation to another, esp. an obligation to pay money. 2. A person or entity that is the subject of a bankruptcy case. The Bankruptcy Code refers to the "debtor" rather than the "bankrupt."
debtor
94
A dead person, esp. one who has died recently.
decedent
95
A judicial determination after consideration of the facts and the law; esp. a ruling, order, or judgment pronounced by a court when considering or disposing of a case.
decision
96
1. A formal statement, proclamation, or announcement. 2. A document that governs legal rights to certain types of real property, such as a condominium or a residential subdivision. 3. An unsworn statement made by someone having knowledge of facts relating to an event in dispute.
declaration
97
A binding adjudication that establishes the rights and other legal relations of the parties without providing for or ordering enforcement. Xs are often sought by insurance companies to determine whether a policy covers a given party or claim.
declaratory judgment
98
A court order, esp. one in a domestic-relations case.
decree
99
A written instrument by which land is conveyed.
deed
100
A deed conveying title to real property to a trustee as security until the grantor repays a loan. This type of deed resembles a mortgage.
deed of trust
101
Existing in fact; actual; having effect even though not formally or legally recognized. Cf. de jure.
de facto
102
1. The act of harming the reputation of another by making a false statement to a third person. 2. A false written or oral statement that damages another's reputation. See libel; slander.
defamation
103
1. A judgment entered against a defendant who has failed to answer, appear at trial, or otherwise defend against the plaintiff's claim. 2. A judgment entered as a penalty against a party who has not complied with an order, esp. an order to provide or permit discovery.
default judgment
104
An imperfection or shortcoming, esp. in a part that is essential to the operation or safety of a product. See product liability.
defect
105
A person sued in a civil proceeding or accused in a criminal
proceeding. Cf. plaintiff.
defendant
106
1. A defendant's statement of a reason why the plaintiff or prosecutor has no valid case against the defendant; esp. a defendant's answer, denial, or plea. 2. A defendant's method and strategy in opposing the plaintiff or the prosecution.
defense
107
1. A shortfall in paying taxes; the amount by which the tax properly due exceeds the sum of the amount of tax shown on a taxpayer's return plus amounts previously assessed or collected as a deficiency, minus any credits, refunds, or other payments due the taxpayer. 2. The amount still owed on a secured debt (such as a mortgage) after the sale of the secured property fails to yield sufficient proceeds to cover the debt's full amount; esp. the shortfall between the proceeds of a foreclosure sale and the principal debt plus interest together with the foreclosure costs.
deficiency
108
An incremental measure of guilt or negligence; a grade based on the seriousness of an offense.
degree
109
The formal act of transferring or conveying something, such as a deed; the thing so transferred or conveyed.
delivery
110
1. The assertion of a legal right. 2. A request for payment of a debt or an amount due.
demand
111
1. The conveyance of an estate by will or lease; the instrument by which such a conveyance is accomplished. 2. The passing of property by descent or by
will.
demise
112
1. A refusal or rejection; esp. a court's refusal to grant a request presented in a motion or petition. 2. A defendant's response contradicting the facts that a plaintiff has alleged in a complaint; a repudiation.
denial
113
A witness who testifies by deposition.
deponent
114
1. A witness's out-of-court testimony that is reduced to writing (usu. by a court reporter) for later use in court or for discovery purposes. 2. The session at which such testimony is recorded.
deposition
115
A suit by a beneficiary of a fiduciary to enforce a right belonging to the fiduciary; esp. a suit asserted by a shareholder on the corporation's behalf against a third party (usu. a corporate officer) because of the corporation's failure to take some action against the third party. Also termed shareholder derivative suit.
derivative action
116
Reliance by one party on the acts or representations of another, resulting in a worsening of the first party's position. X may serve as a substitute for consideration and thus make a promise enforceable as a contract. See promissory estoppel.
detrimental reliance
117
1. The act of giving property (usu. real property) by will; the provision in a will containing such a gift. 2. Property (usu. real property) disposed of in a will. Cf. bequest; legacy.
devise
118
A judicial comment made during the course of delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (though it may be considered persuasive). Also termed obiter dictum. Pl. dicta. Cf. holding.
dictum
119
An attack on a judgment made in the same proceeding as the one in which the judgment was entered. Examples of Xs are appeals and motions for new trial. Cf. collateral attack.
direct attack
120
A judgment entered on the order of a trial judge who takes over the fact-finding role of the jury because the evidence is so compelling that only one decision can reasonably follow or because the evidence fails to establish a prima facie case. Also termed instructed verdict.
directed verdict
121
Evidence that is based on personal knowledge or observation and that, if true, proves a fact without inference or presumption. Cf. circumstantial evidence.
direct evidence
122
The first questioning of a witness in a trial or other proceeding, conducted by the party who called the witness to testify. Often shortened to direct. Cf. cross-examination.
direct examination
123
Lack of a legal qualification; incapacity.
disability
124
1. To pay or satisfy (a debt or some other obligations). 2. To release (a debtor) from monetary obligations upon adjudication of bankruptcy.
discharge
125
A mandatory regulation stating the minimum level of professional conduct that a lawyer must sustain to avoid being subject to disciplinary action. These rules in the U.S. are found chiefly in the Model Code of Professional Responsibility.
disciplinary rule
126
1. A renunciation or denial of one's own or another's legal right or claim. 2. A writing that contains such a renunciation or denial.
disclaimer
127
The procedures, usu. conducted before trial, by which the parties to a case obtain relevant factual information from each other. The primary discovery devices are depositions, interrogatories, requests for admissions, and requests for production.
discovery
128
A public official's power or right to act in certain circumstances according to personal judgment and conscience. See abuse of discretion.
discretion
129
The form of appellate review that is not a matter of right but that occurs only when the higher court agrees to hear the case. See certiorari.
discretionary review
