Terminology

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Interrogatories

Written questions sent by one side to the opposing side, answered under oath.

Deposition

The pretrial oral questioning of a witness under oath.

Deponent

The person who is being asked questions at a deposition.

Request for admissions

A document that lists statements regarding specific items for the other party to admit or deny.

Dismissal with prejudice

A court order that ends a lawsuit; the suit cannot be refiled by the same parties.

Pretrial conference

A meeting of the attorneys and the judge prior to the beginning of the trial.

Motion in limine

A request that the court order that certain information not be mentioned in the presence of the jury.

Voir dire

An examination of a prospective juror to see if he or she is fit to serve as a juror on a specific case.

Challenge for cause

A method for excusing a prospective juror based on the juror's inability to serve in an unbiased manner.

Peremptory challenge

A method for excusing a prospective juror; no reason need be given.

Direct examination

The questioning of your own witness.

Leading question

The question that suggests the answer; generally, leading questions may not be asked during direct examination of a witness.

Cross-examination

The questioning of an opposing witness.

Directed verdict

A verdict ordered by a trial judge if the plaintiff fails to present a prima facie case or if the defendant fails to present a necessary defense.

Pattern jury instructions

A set of standardized jury instructions.

Verdict

The opinion of a jury on a question of fact.

Mistrial

A trial ended by the judge because of a major problem, such as a prejudicial statement by one of the attorneys.

Judgment

The decision of the court regarding the claims of each side. It may be based on a jury's verdict.

Writ of execution

A court order authorizing a sheriff to take property in order to enforce a judgment.

Judgment notwithstanding the verdict (judgment N.O.V.)

A judgment that reverses the verdict of the jury when the verdict had no reasonable factual support or was contrary to law.

Motion for a new trial

A request that the court order a rehearing of a lawsuit because irregularities, such as errors of the court or jury misconduct, make it probable that an impartial trial did not occur.

Appellate brief

An attorney's written argument presented to an appeals court, setting forth a statement of the law as it should be applied to the client's facts.

Clearly erroneous

Standard used by appellate courts when reviewing a trail court's findings of fact.

Harmless error

A trial court error that is not sufficient to warrant reversing the decision.

Reversible error

An error made by the trial judge sufficiently serious to warrant reversing the trial court's decision.

Affirm

When a higher court agrees with what a lower court has done.

Reverse

When an appellate court overturns or negates the decision of a lower court.

Remand

When an appellate court sends a case back to the trial court for a new trial or other action.

Rules of criminal procedure

Federal and state rules that regulate how criminal proceedings are conducted.

Insanity defense

A defense requiring proof that the defendant was not mentally responsible.

M'Naghten test

A test that provides that the defendant is not guilty due to insanity if, at that time of the killing, the defendant suffered from a defect or disease of the mind and could not understand whether the act was right or wrong.

Irresistible impulse test

A test that provides that the defendant is not guilty due to insanity if, at the time of the killing, the defendant could not control his or her actions.

Substantial capacity test

Part of the Model Penal Code; a test that provides that the defendant is not guilty due to insanity if, at the time of the killing, the defendant lacked either the ability to understand that the act was wrong or the ability to control the behavior.

Duress

A defense requiring proof that force or a threat of force was used to cause a person to commit a criminal act.

Necessity

A defense requiring proof that the defendant was forced to take an action to avoid a greater harm.

Entrapment

A defense requiring proof that the defendant would not have committed the crime but for police trickery.

Self-defense

The justified use of force to protect oneself or others.

Retreat exception

The rule that in order to claim self-defense there must have been no possibility of retreat.

Battered woman's or spouse's syndrome

Being the victim of repeated attacks, self-defense is sometimes allowed to the victim, even when the victim is not in immediate danger.

Void for vagueness

A reason for invalidating a statute where a reasonable person could not determine a statute's meaning.

Overbreadth

A reason for invalidating a statute where it covers both protected and criminal activity.

Double jeopardy

A constitutional protection against being tried twice for the same crime.

Stop and frisk

The right of the police to detain an individual for a brief period of time and to search the outside of the person's clothing if the police have a reasonable suspicion that the individual has committed or is about to commit a crime.

Reasonable suspicion

A suspicion based on specific facts; less than probably cause.

Arrest

Occurs when the police restrain a person's freedom and charge the person with a crime.

Probable cause

Not susceptible to a precise definition; a belief based on specific facts that a crime has been or is about to be committed; more than reasonable suspicion.

Warrant

A court's prior permission for the police to search and seize.

Execute

to perform

No-knock warrant

A warrant that allows the police to enter without announcing their presence in advance.

Plain view doctrine

Without the need for a warrant, the police may seize objects that are openly visible.

Exigent circumstances

Generally, an emergency situation that allows a search to proceed without a warrant.

Miranda warnings

The requirement that defendants be notified of their rights to remain silent and to have an attorney present prior to being questioned by the police.

Booking

The process after arrest that includes taking the defendant's personal information, giving the defendant an opportunity to read and sign a Miranda card, and allowing the defendant the opportunity to use a telephone.

Bail

Money or something else of value that is held by the government to ensure the defendant's appearance in court.

Personal recognizance bond

A defendant's personal promise to appear in court.

Grand jury

A group of people, usually 23, whose function is to determine if probable cause exists to believe that a crime has been committed and that the defendant committed it.

Indictment

A grand jury's written accusation that a given individual has committed a crime.

Information

A prosecutor's written accusation that a given individual has committed a crime.

Arraignment

A criminal proceeding at which the court informs the defendant of the charges being brought against him or her and the defendant enters a plea.

Plea bargaining

A process whereby the prosecutor and the defendant's attorney agree for the defendant to plead guilty in exchange for the prosecutor's promise to charge him or her with a lesser offense, drop some additional charges, or request a lesser sentence.

Nolo contendere

A defendant's plea meaning that the defendant neither admits nor denies the charges.

Inculpatory evidence

Evidence that suggests the defendant's guilt.

Exculpatory evidence

Evidence that suggests the defendant's innocence.

Motion to suppress

A request that the court prohibit the use of certain evidence at the trial.

Exclusionary rule

A rule that states that evidence obtained in violation of an individual's constitutional rights cannot be used against that individual in a criminal trial.

Fruit of the poisonous tree doctrine

Evidence that is derived from an illegal search or interrogation is inadmissible.

Motion to require a finding of not guilty

The defense's request that the court find the prosecution failed to meet its burden and that it remove the case from the jury by finding the defendant not guilty.

Charging the jury

The judge informs the jurors of the law they need to know to make their decision.

Recidivist

A repeat offender; one who continues to commit more crimes.

Writ of habeas corpus

A request that the court release the defendant because of the illegality of the incarceration.

Legal Research

The process of finding the law.

Legal Reasoning

The application of legal rules to a client's specific factual situation; also known as legal analysis.

Legal writing

Examples of legal writing include case briefs, law office memoranda, and documents filed with the court.

Paralegal

A person who assists an attorney and, working under the attorney's supervision, does tasks that, absent the paralegal, the attorney would do. A paralegal cannot give advice or appear in court.

American Bar Association (ABA)

www.abanet.org A national voluntary organization of lawyers.

Freelance Paralegal

A paralegal who works as an independent contractor rather than as an employee of a law firm or corporation.

Lay advocate

Generally someone operating within the law, representing persons before administrtive agencies that permit this practice.

Legal technician

A nonlawyer who provides legal services directly to the public without being under the supervision of an attorney. Absent a statute allowing this activity, it constitutes the unauthorized practice of law.

American Association for Paralegal Education (AAfPE) www.aafpe.org

A national organization of paralegal programs that promoties high standards for paralegal education.

National Federation of Paralegal Associations (NFPA) www.paralegals.org

A national association of paralegal associations.

National Association of Legal Assistants (NALA) www.nala.org

A national paralegal association.

International Paralegal Management Association (IPMA) www.paralegal management.org

A national association of paralegal managers

Registration

The process by which individuals or organizations have their names placed on an official list kept by some private organization or governmental agency.

Certified

The status of being formally recognized by a nongovernmental organization for having met special criteria, such as fulfilling educational requirements and passing an exam, established by that organization.

Certificated

The status of having received a certificate documenting that the person has successfully completed an educational program.

Partnership

A business run by two or more persons as co-owners.

Professional Corporation (PC)

A professional entity in which the stockholders share in the organization's profits but have their liabilities limited to the amount of their investment.

Limited liability partnership (LLP)

A professional entity in which the owners share in the organization's profits but are not liable for the malpractice of their partners.

Legal clinic

Usually organized as either a partnership or a professional corporation, law clinics provide low-cost legal services on routine matters by stessing low overhead and high volume.

Legal services offices

Affiliated with the federal government's Legal Services Corporation, these offices serve those who would otherwise be unable to afford legal assistance.

Laws

Rules of conduct promulgated and enforced by the government.

Constitutional law

A body of principles and rules that are either explicitly stated in, or inferred from, the constitutions of the United States and those of the individual states.

Separation of powers

The division of governmental power among the legislative, executive, and judicial branches.

Federalism

A system of government in which the authority to govern is split between a single, nationwide central government and several regional governments that control specific geographical areas.

Bill of Rights

The first ten amendments to the U.S. Constitution.

Power of judicial review

A court's power to review statutes to decide if they conform to the federal or a state constitution.

Statute

A law enacted by a state legislature or by Congress.

Administrative law

Rules and regulations created by administrative agencies.

Regulation

A law promulgated by an administrative agency.

Enabling act

A statute establishing and setting out the powers of an administrative agency.

Common law

Body of law that has evolved from judicial decisions in cases that do not involve constitutional, statutory, or administrative regulation interpretation.

Stare decisis

The doctrine stating that normally once a court has decided one way on a particular issue, it and other courts in the same jurisdiction will decide the same way on that issue in future cases given similar facts unless they can be convinced of the need for change.

Codification of the common law

The process of legislative enactment of areas of the law previously governed solely by the common law.

Derogation of the common law

Used to describe legislation that changes the common law.

Equity

Fairness; a court's power to do justice. Equity powers allow judges to take action when otherwise the law would limit their decisions to monetary awards. Equity powers include a judge's ability to issue an injunction and to order specific performance.

Injunction

A court order rquiring a party to perform a specific act or to cease doing a specific act.

Specific performance

A requirement that a party fulfill his or her contractual obligations.

Federalism

A system of government in which the authority to govern is split between a single, nationwide central government and several regional governments that control specific geographical areas.

Doctrine of implied powers

Powers not stated in the Constitution but that are necessary for Congress to carry out other, expressly granted powers.

Preemption

The power of the federal government to prevent the states from passing conflicting laws, and sometimes even to prohibit states from passing any laws on a particular subject.

Civil law

Law that deals with harm to an individual.

Criminal law

Law that deals with harm to society as a whole.

Plaintiff

A person who initiates a lawsuit.

Defendant

In a lawsuit the person who is sued; in a criminal case the person who is being charged with a crime.

Beyond a reasonable doubt

The standard of proof used in criminal trials. The evidence represented must be so conclusive and complete that all reasonable doubts regarding the facts are removed from the jurors' minds.

Preponderance of the evidence

The standard of proof most commonly used in civil trials. The evidence presented must prove that it is more likely than not the defendant committed the wrong.

Clear and convincing

The standard of proof used in some civil trials. The evidence presented must be greater than a preponderance of the evidence but less than beyond a reasonable doubt.

Damages

Monetary compensation, including compensatory, punitive, and nominal damages.

Double jeopardy

A constitutional protection against being tried twice for the same crime.

Mens rea

Bad intent.

Actus rea

Bad act.

Prima facie case

What the prosecution or plaintiff must be able to prove in order for the case to go to the jury-that is, the elements of the prosecution's case or the plaintiff's cause of action.

Cause of action

A claim that based on the law and the facts is sufficient to support a lawsuit. If the plaintiff does not state a valid cause of action in the complaint, the court will dismiss it.

Affirmative defense

A defense whereby the defendant offers new evidence to avoid judgment.

Compensatory damages

Money is awared to a plaintiff in payment for his or her actual losses.

Punitive damages

Money awarded to a plaintiff in cases of intentional torts in order to punish the defendant and serve as a warning to others.

Nominal damages

A token sum awarded when liability has been found but monetary damages cannot be shown.

Contract

An agreement supported by consideration.

Consideration

Something of value exchanged to form the basis of a contract.

Property law

Law dealing with ownership.

Real property

Land and objects permanently attached to land.

Personal property

All property that is not real property.

Constructive

Not factually true, but accepted by the courts as being legally true.

Legal fiction

An assumption that something that is not real is real-for example, saying that a corporation is a person for purposes of its being able to sue and be sued.

Tort law

Law that deals with harm to a person or a person's property.

Intentional tort

A tort committed by one who intends to do the act that creates the harm.

Negligence

The failure to act reasonably under the circumstances.

Contributory negligence

Negligence by the plaintiff that contributed to his or her injury. Normally, any finding of contributory negligence acts as a complete bar to a plaintiff's recovery.

Assumption of the risk

Voluntarily and knowingly subjecting oneself to danger.

Comparative negligence

A method for measuring the relative negligence of the plaintiff and the defendant, with a commensurate sharing of the compensation for the injuries.

Strict liability

Liability without a showing of fault.

Substantive law

Law that creates rights and duties.

Procedural law

Law that regulates how the legal system operates.

Statute of limitations

The law that sets the length of time from when something happens to when a lawsuit must be filed before the rigtht to bring it is lost.

Jurisdiction

The power of a court to hear a case.

Trial courts

Courts that determine the facts and apply the law to the facts.

Original jurisdiction

The authority of a court to hear a case when it is initiated, as opposed to appellate jurisdiction.

Questions of fact

Questions relating to what happened: who, what, when, where, and how.

Questions of law

Questions relating to the interpretation or application of the law.

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