Glossary of Legal Terms

Below is a glossary of legal terms you may encounter while Walsh Woodard LLC is handling your case.

This glossary of legal terms  is provided by Walsh Woodard LLC for information only and does not constitute legal advice or represent the most up-to-date definition of a legal term based on current court procedure or case law.  If there is a legal term you are looking for that you cannot find here, please let us know by contacting us

A

Admissible

A term used to describe evidence that may be considered by a jury or judge in civil and criminal cases.

Affidavit

A written or printed statement made under oath.

Affirmed

In the practice of the court of appeals, it means that the court of appeals has concluded that the lower court decision is correct and will stand as rendered by the lower court.

Allegation

A claim put forward by one party that they believe they may prove true against an offending party. Until proven in court however, an allegation is considered a mere claim, not the truth.

Alternate juror

A juror selected in the same manner as a regular juror who hears all the evidence but does not help decide the case unless called on to replace a regular juror.

Alternative dispute resolution (ADR)

A procedure for settling a dispute outside the courtroom. Most forms of ADR are not binding, and involve referral of the case to a neutral party such as an arbitrator or mediator.

Amicus curiae

Latin for “friend of the court.” It is advice formally offered to the court in a brief filed by an entity interested in, but not a party to, the case.

Answer

The formal written statement by a defendant in a civil case that responds to a complaint, articulating the grounds for defense.

Appeal

A request made after a trial by a party that has lost on one or more issues that a higher court review the decision to determine if it was correct. To make such a request is “to appeal” or “to take an appeal.” One who appeals is called the “appellant;” the other party is the “appellee.”

Appellant

The party who appeals a superior court’s decision, usually seeking reversal of that decision.

Appellate

About appeals; an appellate court has the power to review the judgment of a lower court (trial court) or tribunal.

Appellee

The party who opposes an appellant’s appeal, and who seeks to persuade the appeals court to affirm the superior court’s decision.

Attorney Client Privilege

Communications between an attorney and client that are confidential.

Automatic stay

An injunction that automatically stops lawsuits, foreclosures, garnishments, and most collection activities against the debtor the moment a bankruptcy petition is filed.

B

Bench trial

A trial without a jury, in which the judge serves as the fact-finder.

Beneficiary

In the event of the death of one party, the person to receive benefits and/or property as specified by the deceased person’s will is named the beneficiary of the will.

Brief

A written statement submitted in a trial or appellate proceeding that explains one side’s legal and factual arguments.

Burden of proof

The duty to prove disputed facts. In civil cases, a plaintiff generally has the burden of proving his or her case. In criminal cases, the government has the burden of proving the defendant’s guilt. (See standard of proof.)

C

Case file

A complete collection of every document filed in court in a case.

Case law

The law as established in previous court decisions. A synonym for legal precedent. Akin to common law, which springs from tradition and judicial decisions.

Caseload

The number of cases handled by an attorney or judge.

Cause of action

A legal claim.

Chambers

The offices of a judge and his or her staff.

Chief judge

The judge who has primary responsibility for the administration of a court; chief judges are determined by seniority.

Claim

A creditor’s assertion of a right to payment from a debtor or the debtor’s property.

Class action

A lawsuit in which one or more members of a large group, or class, of individuals or other entities sue on behalf of the entire class. The district court must find that the claims of the class members contain questions of law or fact in common before the lawsuit can proceed as a class action.

Clerk of court

The court officer who oversees administrative functions, especially managing the flow of cases through the court. The clerk’s office is often called a court’s central nervous system.

Collateral

Property that is promised as security for the satisfaction of a debt.

Common law

The legal system that originated in England and is now in use in the United States, which relies on the articulation of legal principles in a historical succession of judicial decisions. Common law principles can be changed by legislation.

Compensatory Damages

Damages that cover actual injury or economic loss. Compensatory damages typically include medical expenses, lost wages and the repair or replacement of property.

Complaint

A written statement that begins a civil lawsuit, in which the plaintiff details the claims against the defendant.

Contingency Fee

Rather than an hourly or fixed fee, a contingency fee is paid to an attorney when an attorney is successful in making a recovery on behalf of his client. The lawyer receives a percentage of the verdict or settlement amount. If the lawyer is unsuccessful in making any recovery for the client, there is no fee charged to the client.

Contract

An agreement between two or more people that creates an obligation to do or not to do a particular thing.

Contributory Negligence

A legal doctrine under which a claimant’s action is barred if his negligence exceeds the combined negligence of all defendants. Otherwise, the claimant’s recovery is diminished in proportion to his degree of negligence.

Counsel

Legal advice; a term also used to refer to the lawyers in a case.

Court

Government entity authorized to resolve legal disputes. Judges sometimes use “court” to refer to themselves in the third person, as in “the court has read the briefs.”

Court reporter

A person who makes a word-for-word record of what is said in court, generally by using a stenographic machine, shorthand or audio recording, and then produces a transcript of the proceedings upon request.

Count

An allegation in an indictment or information, charging a defendant with a crime. An indictment or information may contain allegations that the defendant committed more than one crime. Each allegation is referred to as a count.

D

Damages

Money that a defendant pays a plaintiff in a civil case if the plaintiff has won. Damages may be compensatory (for loss or injury) or punitive (to punish and deter future misconduct).

Defendant

An individual (or business) against whom a lawsuit is filed.

Declaratory judgment

A judge’s statement about someone’s rights. For example, a plaintiff may seek a declaratory judgment that a particular statute, as written, violates some constitutional right.

De facto

Latin, meaning “in fact” or “actually.” Something that exists in fact but not as a matter of law.

Default judgment

A judgment awarding a plaintiff the relief sought in the complaint because the defendant has failed to appear in court or otherwise respond to the complaint.

Defendant

In a civil case, the person or organization against whom the plaintiff brings suit; in a criminal case, the person accused of the crime.

De jure

Latin, meaning “in law.” Something that exists by operation of law.

De novo

Latin, meaning “anew.” A trial de novo is a completely new trial. Appellate review de novo implies no deference to the trial judge’s ruling.

Deposition

An oral statement made before an officer authorized by law to administer oaths. Such statements are often taken to examine potential witnesses, to obtain discovery, or to be used later in trial. See discovery.

Disability

Inability to pursue an occupation because of a physical or mental impairment; inability to engage in any substantial gainful activity because of a medically determinable physical or mental impairment that can be expected to result in death or to be of long continued or indefinite duration.

Discovery

Procedures used to obtain disclosure of evidence before trial.

Dismissal with prejudice

Court action that prevents an identical lawsuit from being filed later.

Dismissal without prejudice

Court action that allows the later filing.

Docket

A log containing the complete history of each case in the form of brief chronological entries summarizing the court proceedings.

E

Economic damages

Compensation determined by the trier of fact for pecuniary losses including, but not limited to, the cost of reasonable and necessary medical care, rehabilitative services, custodial care and loss of earnings or earning capacity excluding any noneconomic damages

En banc

French, meaning “on the bench.” All judges of an appellate court sitting together to hear a case, as opposed to the routine disposition by panels of three judges.

Equitable

Pertaining to civil suits in “equity” rather than in “law.” In English legal history, the courts of “law” could order the payment of damages and could afford no other remedy (see damages). A separate court of “equity” could order someone to do something or to cease to do something (e.g., injunction). In American jurisprudence, the federal courts have both legal and equitable power, but the distinction is still an important one. For example, a trial by jury is normally available in “law” cases but not in “equity” cases.

Evidence

Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case in favor of one side or the other.

Exhibit

An exhibit can be an object or a paper that serves as evidence to the validity of certain facts pertaining to a case. An attorney compiles these exhibits to strengthen his client’s case.

Ex parte

A proceeding brought before a court by one party only, without notice to or challenge by the other side.

Expert Witness

A witness who lends their expertise in a given field to testimony in support of a party’s case.

F

Federal question jurisdiction

Jurisdiction given to federal courts in cases involving the interpretation and application of the U.S. Constitution, acts of Congress, and treaties.

File

To place a paper in the official custody of the clerk of court to enter into the files or records of a case.

G

Good Faith Certificate

In medical malpractice actions, the attorney filing the complaint must attach a certificate showing that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant. An opinion from a health care provider similar to the defendant must be included with the certificate.

Gross Negligence

An almost willful recklessness, gross negligence borders on intent to harm others. At the very least it is a complete disregard for the lives and the personal safety of others.

H

Hearsay

Evidence presented by a witness who did not see or hear the incident in question but heard about it from someone else. With some exceptions, hearsay generally is not admissible as evidence at trial.

I

Impeachment

The process of calling a witness’s testimony into doubt. For example, if the attorney can show that the witness may have fabricated portions of his testimony, the witness is said to be “impeached;” 2. The constitutional process whereby the House of Representatives may “impeach” (accuse of misconduct) high officers of the federal government, who are then tried by the Senate.

In camera

Latin, meaning in a judge’s chambers. Often means outside the presence of a jury and the public. In private.

In forma pauperis

“In the manner of a pauper.” Permission given by the court to a person to file a case without payment of the required court fees because the person cannot pay them.

Injunction

A court order preventing one or more named parties from taking some action. A preliminary injunction often is issued to allow fact-finding, so a judge can determine whether a permanent injunction is justified.

Insurance Adjuster

Insurance adjusters are sent to review police and hospital records, interview claimants and witnesses and view the damages in order to determine the responsibility carried by the company in a given situation.

Interrogatories

A form of discovery consisting of written questions to be answered in writing and under oath.

Issue

The disputed point between parties in a lawsuit; 2. To send out officially, as in a court issuing an order.

J

Judge

An official of the Judicial branch with authority to decide lawsuits brought before courts. Used generically, the term judge may also refer to all judicial officers, including Supreme Court justices.

Judgment

The official decision of a court finally resolving the dispute between the parties to the lawsuit.

Jurisdiction

The legal authority of a court to hear and decide a certain type of case. It also is used as a synonym for venue, meaning the geographic area over which the court has territorial jurisdiction to decide cases.

Jurisprudence

The study of law and the structure of the legal system.

Jury

The group of persons selected to hear the evidence in a trial and render a verdict on matters of fact. See also grand jury.

Jury instructions

A judge’s directions to the jury before it begins deliberations regarding the factual questions it must answer and the legal rules that it must apply.

K

Knowingly

Consciously or with knowledge or complete understanding of the facts or circumstances.

L

Lawsuit

A legal action started by a plaintiff against a defendant based on a complaint that the defendant failed to perform a legal duty which resulted in harm to the plaintiff.

Liability

Liability indicates the legal responsibility an individual holds for his or her own actions and omissions. Failing in this responsibility can, and often does result in a lawsuit suing for incurred damages.

Liability Insurance

Insurance coverage held by a policy holder or defendant which will provide compensation to a party who is injured or whose property is damaged as a result of the negligence of the policy holder.

Lien

A charge on specific property that is designed to secure payment of a debt or performance of an obligation. A debtor may still be responsible for a lien after a discharge.

Litigation

A case, controversy, or lawsuit. Participants (plaintiffs and defendants) in lawsuits are called litigants.

Loss of Consortium

If an individual suffers wrongdoing resulting in physical or mental consequences, that in turn leave a spouse unable to have sexual relations with his/her spouse, he/she may sue for loss of consortium.

M

Mediation

Through the assistance of a third party, mediation seeks to resolve the legal conflicts between two parties out of court before seeking settlement through a trial. Mediation is commonly used in domestic relations situations.

Medicaid

A program of medical aid designed for those unable to afford regular medical care and financed by the state and federal governments.

Medical malpractice

The delivery of care by a healthcare provider that is negligent or does not meet the established standard of care and results in patient’s injury or death.

Mistrial

An invalid trial, caused by fundamental error. When a mistrial is declared, the trial must start again with the selection of a new jury.

Moot

Not subject to a court ruling because the controversy has not actually arisen, or has ended.

Motion

A request by a litigant to a judge for a decision on an issue relating to the case.

Motion to lift the automatic stay

A request by a creditor to allow the creditor to take action against the debtor or the debtor’s property that would otherwise be prohibited by the automatic stay.

Motion in Limine

A pretrial motion requesting the court to prohibit the other side from presenting, or even referring to, evidence on matters said to be so highly prejudicial that no steps taken by the judge can prevent the jury from being unduly influenced.

N

Negligence

Failure to exercise the degree of care expected of a person of ordinary prudence in like circumstances in protecting others from a foreseeable and unreasonable risk of harm in a particular situation.

Noneconomic Damages

Compensation determined by the trier of fact for all nonpecuniary losses including, but not limited to, physical pain and suffering and mental and emotional suffering.

O

Opinion

A judge’s written explanation of the decision of the court. Because a case may be heard by three or more judges in the court of appeals, the opinion in appellate decisions can take several forms. If all the judges completely agree on the result, one judge will write the opinion for all. If all the judges do not agree, the formal decision will be based upon the view of the majority, and one member of the majority will write the opinion. The judges who did not agree with the majority may write separately in dissenting or concurring opinions to present their views. A dissenting opinion disagrees with the majority opinion because of the reasoning and/or the principles of law the majority used to decide the case. A concurring opinion agrees with the decision of the majority opinion, but offers further comment or clarification or even an entirely different reason for reaching the same result. Only the majority opinion can serve as binding precedent in future cases. See also precedent.

Oral argument

An opportunity for lawyers to summarize their position before the court and also to answer the judges’ questions.

P

Pain and Suffering

Mental or esp. physical distress for which one may seek damages in a tort action.

Paralegal

Paralegals have successfully completed a number of law courses providing them with a degree of legal knowledge and awareness of legal process to enable them to certain routine asks in a law office.

Per curiam

Latin, meaning “for the court.” In appellate courts, often refers to an unsigned opinion.

Peremptory challenge

A district court may grant each side in a civil or criminal trial the right to exclude a certain number of prospective jurors without cause or giving a reason.

Personal injury

Injury to one’s body, mind, reputation or emotions, not property.

Petit jury (or trial jury)

A group of citizens who hear the evidence presented by both sides at trial and determine the facts in dispute.

Plaintiff

A person or business that files a formal complaint with the court.

Pleadings

Written statements filed with the court that describe a party’s legal or factual assertions about the case.

Precedent

A court decision in an earlier case with facts and legal issues similar to a dispute currently before a court. Judges will generally “follow precedent” – meaning that they use the principles established in earlier cases to decide new cases that have similar facts and raise similar legal issues. A judge will disregard precedent if a party can show that the earlier case was wrongly decided, or that it differed in some significant way from the current case.

Premise Liability

Premise liability refers to the responsibility of the owners of any property, land or buildings, for certain accidents or bodily injury that a person may incur while he/she is on the owner’s premises.

Pretrial conference

A meeting of the judge and lawyers to plan the trial, to discuss which matters should be presented to the jury, to review proposed evidence and witnesses, and to set a trial schedule. Typically, the judge and the parties also discuss the possibility of settlement of the case.

Procedure

The rules for conducting a lawsuit; there are rules of civil procedure, criminal procedure, evidence, bankruptcy, and appellate procedure.

Product Liability

Product liability is the area of personal injury law that focuses on dangerous and defective products. Manufacturers are held legally responsible for any damages or injuries caused by their defective products.

Property Damage

Property damage refers to the damage caused to another’s possessions or property through the negligence or willful intent of another. Amounts awarded depend on replacement costs, repair costs, loss of use and sentimental value.

Pro se

Representing oneself. Serving as one’s own lawyer.

Pro tem

Temporary.

Punitive Damages

Punitive, also know as exemplary damages are those damages awarded to a plaintiff who has suffered special or general damages from the malicious or grossly reckless acts of the defendant.

Q

Quash

In law, a motion to quash asks the judge for an order setting aside or nullifying an action, such as “quashing” service of a summons when the wrong person was served.

Question of Law

An issue arising in a lawsuit which only relates to determination of what the law is, how it is applied to the facts in the case, and other purely legal points in contention.

Question of Fact

An issue of fact in which the truth or falsity (or a mix of the two) must be determined by the “trier of fact” (the jury or the judge in a non-jury trial) in order to reach a decision in the case.

R

Record

A written account of the proceedings in a case, including all pleadings, evidence, and exhibits submitted in the course of the case.

Recover

To obtain or get back (as damages, satisfaction for a debt, or property) through a judgment or decree [damages in a tort action]; to obtain (a judgment) in one’s favor.

Remand

Send back.

Reverse

The act of a court setting aside the decision of a lower court. A reversal is often accompanied by a remand to the lower court for further proceedings.

S

Sanction

A penalty or other type of enforcement used to bring about compliance with the law or with rules and regulations.

Service of process

The delivery of writs or summonses to the appropriate party.

Settlement

Parties to a lawsuit resolve their dispute without having a trial. Settlements often involve the payment of compensation by one party in at least partial satisfaction of the other party’s claims, but usually do not include the admission of fault.

Sequester

To separate. Sometimes juries are sequestered from outside influences during their deliberations.

Slip and Fall

Slip and fall claims fall under tort law. A person who has slipped and fallen may claim that they did so due to the failure of the premise owner to repair a hazardous condition.

Special Damages

Damages that cover the winning party’s out-of-pocket costs. For example, in a vehicle accident, special damages typically include medical expenses, car repair costs, rental car fees and lost wages.

Standard of proof

Degree of proof required. The majority of civil lawsuits require proof “by a preponderance of the evidence” (50 percent plus), but in some the standard is higher and requires “clear and convincing” proof.

Statute

A law passed by a legislature.

Statute of limitations

The time within which a lawsuit must be filed. The deadline can vary, depending on the type of civil case.

Sua sponte

Latin, meaning “of its own will.” Often refers to a court taking an action in a case without being asked to do so by either side.

Subordination

The act or process by which a person’s rights or claims are ranked below those of others.

Subpoena

A command, issued under a court’s authority, to a witness to appear and give testimony.

Subpoena duces tecum

A command to a witness to appear and produce documents.

Summary judgment

A decision made on the basis of statements and evidence presented for the record without a trial. It is used when it is not necessary to resolve any factual disputes in the case. Summary judgment is granted when – on the undisputed facts in the record – one party is entitled to judgment as a matter of law.

T

Testimony

Evidence presented orally by witnesses during trials or before grand juries.

Toll

See statute of limitations.

Tort

A civil, not criminal, wrong. A negligent or intentional injury against a person or property, with the exception of breach of contract.

Transcript

A written, word-for-word record of what was said, either in a proceeding such as a trial, or during some other formal conversation, such as a hearing or oral deposition.

U

Uphold

The appellate court agrees with the lower court decision and allows it to stand. See affirmed.

V

Venue

The geographic area in which a court has jurisdiction. A change of venue is a change or transfer of a case from one judicial district to another.

Verdict

The decision of a trial jury or a judge that determines the guilt or innocence of a criminal defendant, or that determines the final outcome of a civil case.

Voir dire

Jury selection process of questioning prospective jurors, to ascertain their qualifications and determine any basis for challenge.

W

Witness

A person called upon by either side in a lawsuit to give testimony before the court or jury.

Writ

A written court order directing a person to take, or refrain from taking, a certain action.

Wrongful death

A wrongful death is a death that has been caused by the negligence of another person. Wrongful death lawsuits are usually filed by a decedent’s family or beneficiaries.

X

 

Y

Your Honor

The proper way to address a judge in court.