Person who complains or sues in a civil action
Person from whom relief or recovery is sought in a civil action or suit, or the accused in a criminal case.
Power of the court to decide a matter in controversy and presupposes the existence of a duly constituted court with control over the subject matter of the parties. Consists of jurisdiction over the subject matter and person.
The particular country, or geographical area, in which a court with jurisdiction may hear and determine a case.
In a case in which the party w/ the burden of proof has failed to present a prima facie case for jury consideration, the trial judge may order the entry of a verdict without allowing the jury consideration, because as a matter of law, there can be only once such verdict..
Procedural device available for prompt and expeditious disposition of controversy without trial when there is no dispute as to either material fact or inferences to be drawn from undisputed facts or if only questions of law are involved.
Resort to superior (i.e. appellate) court to review the decision of an inferior court or administrative agency.
(law) a legal proceeding in which the appellant resorts to a higher court for the purpose of obtaining a review of a lower court decision and a reversal of the lower court's judgment or the granting of a new trial
Damages on an increasing scale, awarded to the plaintiff over and above what will compensate him for his property loss, where the wrong done to him was aggravated by circumstances of violence, oppression, malice, fraud, or wanton and wicked conduct on the part of the defendant, and are intended to solace the plaintiff for mental anguish, shave, or else to punish the defendant for his evil behavior. Unlike compensatory or actual damages, punitive damages are based on an entirely different public policy consideration - that of punishing the defendant or setting and example for similar wrongdoers.
A species of proof, or probative matter, legally presented at the trial of an issue, by the act of the parties and through the medium of purpose of inducing belief in the minds of the court of jury as to their contentions. The evidence must be relevant and admissible.
The body of law created by acts of the legislature in contrast to constitutional law and law generated by courts and administrative bodies.
That branch of public law of a nation or state which forms the framework of governing the nation or state; the fundamental principals which regulate the relations of government and citizen.
The body of law created by administrative agencies (in the form of rules, regulations, orders, and decisions) in order to carry out their duties and responsibilities.
The aggregate of reported cases as forming a body of jurisprudence, or the law of a particular subject as evidenced or formed by the adjudged cases.
Cause of action
The fact or facts which give a person a right to judicial redress or relief against another. The legal effect of an occurrence in terms of redress to party to the occurrence. The right a party has to institute a judicial proceeding.
The trail court at state and federal levels. This is the court where trails occur. The district court has one judge.
The court that reviews cases from the lower court level The appellate court is composed of a number of judges that makes determinations regarding the rulings of the lower courts.
A private or civil wrong or injury for which the court will provide a remedy in the form of an action for damages. A violation of a duty imposed by general law of otherwise upon all persons occupying the relation to each other which is involved in a given transaciton or event.
That which is offered and alleged by the party proceeding against in an action or suit, as a reason in law or fact why the plaintiff should not recover or establish what he seeks. That which is put forward to diminish plaintiff's cause of action or defeat recovery. A response to the claims of the other party, setting forth reasons why the claims should not be granted.
Evidence that attacks the factual sufficiency of the plaintiff's pleadings. This differs from a defense in that, even if proven does not totally defeat the claim of the plaintiff.
LET THE MASTER ANSWER. This doctrine or maxim means that master is liable in certain cases for the wrongful acts of his servant, and principal for those of his agents.
"A MATTER ADJUDGED". A thing judicially acted upon or jurisdiction on the merits is conclusive as to the rights of the parties and their privies , and as to them constitutes an absolute bar to a subsequent action involving the same claims, demand or causes of action.
An implied or presumptive agency, which exists where one, either intentionally or form want of ordinary care, induces another to believe that third person is his agent, though he never in fact employed him. It is, strictly speaking, no agency at all, but is in reality based entirely upon the subjective belief of the plaintiff.
Negligence per se
A form of ordinary negligence that results form the violation of a statue, conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of a specific stature or valid municipal ordinance, or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it.
Res Ipsa Loquitor
"THE THING SPEAKS FOR ITSELF" Rebuttal presumption or inference that defendant was negligent, which arise upon proof that instrumentality causing injury was in defendants; exclusive control, and that the accident would no happen in the absence of negligence.
The act or mission amount to want of ordinary care on part of the complaining party, which, concurring with defendants negligence, is the proximate cause of the injury. conduct by a plaintiff which contributed to the injury, and which is below the standard to which he is legally;y required to conform for his own protection. Falling below the standard can result in a total bar to recovery.
Under comparative negligence is measured in terms of percentage, and any damages allowed shall be diminished in proportion to the amount of negligence attributable i to the person for whose injury, damage, or death recovery is south. Where negligence by both parties is concurrent and contributes to injury, recovery is not barred, but plaintiffs damages are diminished proportionately, provided his fault is less than defendants.
EMPLOYEE RETIREMENT INCOME SECURITY ACT- the federal act governing the funding , vesting administrative and termination of private pension plans. This act further preempts state law actions in most jurisdictions against HMO's or other managed care entities by individuals because the law exempts administrator of employer health plans form any liability other than injunction relief.
The imposition of liability on one person for the actionable conduct of another, based solely on a relationship between the two persons. EXAMPLE: The liability of an employer for the acts of an employee, or a principal for torts or contracts of an agent.
The control test
A test a law used to determine whether a person is an employee or an independent contractor of the principal. The test evaluates the power of authority to manage, direct, supervise, and direct the day to day activities of the agent.
Ruled by the appellate court that ratifies, upholds, approves, confirms, and establishes the decision of a court.
Reversed and Rendered
Ruling by the appellate court that changes the decision of the lower court and inserts a new ruling in its place.
Reversed and Remanded
Ruling by the appellate court that says the lower court ruling was incorrect, and sends the case back to the lower court for retrial.
An elevated duty required by individuals because of the relationship that exists between the parties, i.e., accountant has fiduciary duty with his clients.
The federal laws that make it a violation of the law to bill Medicare for designated services to an entity owned by the provider or an immediate family member of the provider.
Anti-Kick back laws
The federal and state laws that make it illegal to receive compensation of any type for the referral of a patient to another provider.
Sherman Anti-trust Act:
The act that prohibits any unreasonable interference, by contract, or combination, or conspiracy, with the ordinary, usual and freely-competative pricing or distribution system of the open market in interstate trade.
A federal law enacted in 1914 as amendment to the Sherman anti-trust act dealing with antitrust regulations and unfair trade practices. The act prohibits price discrimination, tying and exclusive dealing contracts, and mergers where the effect may be substantially to lessen competition or tend to create a monopoly in any line of commerce.
Federal Trade commission
The federal agency responsible for enforcement of anti-trust laws in the United States.
Americans with Disabilities Act
The federal act that requires business owners to make reasonable accommodations for employees and customers with disabilities.
Action brought by the parents of a disabled child related to the physician's failure to inform the parents of a child of the disability in a timely manner that would have allowed the parents the decision to terminate the pregnancy. Damages under this cause of action are limited in most jurisdictions to the costs of providing extraordinary care to the child.
This is an action brought by the child(by the parents on the child's behalf) for failure to inform the parents of a child of the disability in a timely manner that would have allowed the parents the decision to terminate the pregnancy. Damages sought in this case of suffering the child would endure. This is not viable cause of action in most jurisdictions due to the belief that any life is better than not life at all.
Non-Monetary relief that places the parties in a particular legal position. This relief normally make parties do certain things or bars parties from doing certain things. In ERISA context, it would require HMO to pay for certain procedure, but would not allow monetary damages for the failure of the HMO to timely approve a procedure.
A type of injunctive relief whereby the court makes a declaration as to a legal position between the parties.
Qui Tam Action
An abbreviation of the Latin phrase, "qui tam pro domino rege quam pro si ipso spso in hac parte sequitur", meaning he who sues of the King as well as for himself". It is an action brought by an informer, under a statue which establishes a penalty for the commission or omission of a certain act, and provides that the same shall be will bl bring such action and the remainder to the state or some other institution. This has been a major vehicle in Medicare fraud cases whereby and informer brings the suit on behalf of the government and the informer gets a portion of the proceeds, if any.
EMERGENCY MEDICAL TREATMENT & ACTIVE LABOR ACT: The federal act that requires hospitals to stabilize any patient who presents with an emergent condition prior to transfer to another facility.
Satute of Limitations
Statues of the federal government and various states setting maximum time periods during which certain actions can be brought or rights enforced.