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Unit 1 Civil Litigation (pretrial)
Terms in this set (108)
Signing of a document, under oath, where the person identifies himself as the signer.
The opponent; an enemy.
Amount in Controversy
A term relevant to determining a court's jurisdiction, when jurisdiction is based upon either a minimum $ amount with which the court is permitted to concern itself, or a maximum amount that represents the upper limit of its jurisdiction
A statement in a pleading of a fact that the party filing the pleading intends to prove
A defense that amounts to more than simply a denial of the allegations in the plaintiff's complaint.
A pleading in response to a complaint.
The system of justice in the United States. Court hears the evidence presented by the adverse parties and decides the case.
To enter an appearance in a case.
Amendment of pleading
All jurisdictions permit pleadings to be amended for the purpose of correcting errors and omissions and to modify allegations and supply new ones.
The action of an attorney declaring to the court that he represents a litigant in a case before the court
A docket kept by the clerk of court in which appearances are entered.
"Friend of the court." A person interested in the outcome of the case but not in a side; Provides another point of view.
To improve; to make better by change or modification; to correct; to adjust.
A trial or other proceeding in which all side have the opportunity to present their contentions; a proceeding involving a contested action.
Action at law
A lawsuit brought in a court of law as opposed to court of equity.
A formal statement or declaration, made as a substitute for a sworn statement, by a person whose religious or other beliefs will not permit him to swear.
Action at a common law
A lawsuit governed by the common law rather than by statues.
A judicial or administrative proceeding for the enforcement or protection of a right; a lawsuit. It is important to distinguish a civil action from a criminal action.
Affidavit of service
An affidavit that certifies that process has been served upon the parties to the action in a manner prescribed by law
Any voluntary statement reduced to writing and sworn to or affirmed before a person legally authorized to administer an oath or affirmation
Bill of particulars
In civil actions, a more detailed statement of the pleading. An adverse party is entitled to be informed of the precise nature of the opposite party's cause of action or defense, in order to be able to prepare for trial and to protect himself against surprise at the trial. Formal
one who claims or makes a claim; an applicant for justice; a plaintiff
Court of general jurisdiction
Generally, another term for trial court; that is a court having jurisdiction to try all classes of civil and criminal cases except those that can be heard only by a court of limited jurisdiction
An action brought by one or several plaintiffs on behalf of a class or persons. In such a situation, injured parties who wish to do so may, with the court's permission, sue on behalf of all.
Court of inferior jurisdiction
A court of original or limited jurisdiction, as opposed to an appellate court, or a court that has jurisdiction to hear many kinds of cases.
Clear and Convincing evidence
A degree of proof required in some civil cases, higher than the usual standard of preponderance of evidence.
Court of Law
A having jurisdiction of actions at law, as distinguished from equitable actions
Court of limited jurisdiction
A court whose jurisdiction is limited to civil cases of a certain type or provide a limited amount of money or petty offenses and preliminary hearings
A heading of court papers.
Cause of action
Circumstances that give a person the right to bring a lawsuit and to receive relief from a court.
Initial pleading in a civil action, in which the plaintiff alleges a cause of action and asks that the wrong done to him be remedied by the court.
The rules by which private rights are enforced by the courts and agencies.
A cause of action on which a defendant in a lawsuit might have sued the plaintiff in a separate action.
A counterclaim against a co-plaintiff or a co-defendant.
A complaint a defendant in an action may file:
(a) against the Plaintiff , based upon any cause of action she has against him; or (b) against anyone if she alleges a cause of action same as transactions as those upon which the complaint against her is base.
An action brought by a defendant in a lawsuit against another named defendant based upon a cause of action arising out of the same transaction on which the plaintiff's suit is based
Court of equity
A court having jurisdiction of non-money or equitable actions; a court that administers remedies that are equitable in nature.
Body of law that determines private rights and liabilities, as distinguished from criminal law. Handed down from Roman Empire
Change of venue
Moving the trial of a case from one county or judicial district to another county or judicial district.
Two or more courts having the power to adjudicate the same class or cases or the same matter.
A means for providing a party, in advance of trial ,with access to facts that are within the knowledge of the other side, to enable the party to better try her case.
The person against whom an action is brought.
To object to; take exceptions to; to disagree
The transcript of a witness's testimony given under oath outside of the courtroom, usually in advance of the trial or hearing, upon oral examination or in response to written interrogatories.
A series of volumes containing summaries of cases organized by legal topics, subject areas, and so on.
To order a case, motion, or prosecution to be terminated.
The jurisdiction of a federal court arising from diversity of citizenship where parties are residents of different states and the jurisdiction amount has been met.
Diversity of citizenship
A ground for invoking the original jurisdiction of a federal district court, the bias of jurisdiction being the existence of a controversy between citizens of different states.
Although the distinction between a suit in equity and an action at law has been abolished in most states, all actions now being simply civil actions , the concept of an still exist with respect to the remedy.
"of a side" (by one party). The term refers to an application made to the court by one party without notice to the other party.
To file an interpleader in a lawsuit
A court order that commands or prohibits some act or course of conduct. Protects the plaintiff from irreparable injury to his property or property rights.
In personam action
A legal action whose purpose is to obtain a judgement against a person, as opposed to a judgement against property.
Writing questions put by one party to another, or, in limited situations, to a witness in advance of trial.
In rem action
A legal action brought against property, as opposed to an action brought against a person.
A remedy that requires rival claimants to property held by a disinterested third party to litigate their demands without entangling him in their lawsuit
The science of law; legal philosophy
Jurisdiction quasi in rem
The jurisdiction a court has over the defendant's interest in property located within the jurisdiction
Jurisdiction in rem
The jurisdiction a court has over property situated in the state.
Jurisdiction in personam
The jurisdiction a court has over the person of a defendant. (Personal jurisdiction)
EXAMPLE: by doing business in a state or by operating a vehicle within a state
The power of a court to hear cases only within a specific territorial area.
EXAMPLE: a state; county; a federal judicial district
In a criminal prosecution, a determination of guilt; a conviction.
A study of precedents and other authority for the purpose of developing or supporting a legal theory or position.
A pending suit or pending action.
Long arm statutes
Permit a state's courts to take jurisdiction over a nonresident is she has done business in the state, or owns a tort, or owns property within the state..
A legal action; a lawsuit
Motion for summary judgment
A method of disposing of an action without further proceedings. Under the Federal Rules of Civil Procedure, and the rules of civil procedure of many states, a party against whom a claim, counterclaim, or cross-claim is asserted, or against whom a declaratory judgement is sought ,may file seeking judgement in her favor if there is no genuine issue as to any material fact.
Motion to compel discovery
To force a response;to force a response to discovery. A person who fails to answer interrogatories or to respond appropriately to an attempt to take his deposition may be forced to comply.
Motion to dismiss
Motion requesting a case, motion, or prosecution to be terminated.
Memorandum of law
A written statement submitted to a court for the purpose of persuading it of the correctness of one's position. Informal
An application made to a court for the purpose of obtaining an order or rule directing something to be done in favor of the applicant.
Quasi in rem action
An action that adjudicates only the rights of the parties with respect to property, not the rights of all persons who might have an interest in the property.
The return of a case by an appellate court to the trial court for further hearing or proceeding for a new trial, or for entry of judgement in accordance with the order of the appellate court
Request for physical or mental examination
Demands that can be made during the discovery process. The physical examination or inspection or a party is only requested when the person is claiming bodily harm or hurt ( Known as personal injury) and has put her physical condition at issue, typical from a car accident or slip and fall. A request for a mental examination is much less common. Again, only where a party has put her mental condition at issue, with a claim of brain damage, distress, fright, or emotional disturbance, can such a request be made. Because of privacy concerns, there are many restrictions on these forms of discovery depending on the jurisdiction.
Request for production
During the discovery process either party may request that the other side make available for inspection relevant documents or things related to the case that are in its possession.
1. In pleading, the plaintiff's response to the defendant's set off or counterclaim.
2. A response; an answer
Request for admission
Written statements concerning a case, directed to an adverse party, that must be admitted or denied. All will be treated by the court as having been established and need not be proven.
1. A determination made by a courts; an order of court.
2. A determination made by an administrative agency.
Order to show cause
An order of court directing a party to appear before the court and to present facts and legal arguments showing cause why the court should not take a certain action adversely affecting that party's interest.
Formal statements by the parties to an action setting forth their claims or defenses.
1. Formal request in writing , addressed to a person or body in a position of authority, signed by a number of persons or by one person.
2. The name given in some jurisdiction to a complaint or other pleading that alleges a cause of action.
Permission to enter upon land
During the discovery process, a party might request permission to enter upon the land of another.
EXAMPLE: For a "slip and fall" case, the plaintiff's attorney would want to enter on the land of another to see the scene of the accident.
The means or method by which a court adjudicates cases (Examples: the federal Rules of Civil procedure; the Federal Rules of Criminal Procedures; rules of court), as distinguished from the substantive law by which it determines legal rights.
An original or firsthand document or reliable works that are generally created at the time the event occurred.
Prior to trial. Applied to any aspect of litigation that occurs before the trial begins.
A conference held between the judge and counsel for all parties prior to trial, for the purpose of facilitating disposition of the case by, among other actions, simplifying the pleadings , narrowing the issues, obtaining stipulations to avoid unnecessary proof, and limiting the number of witnesses.
Preponderance of the evidence
It means that the greater weight and value of the credible evidence, taken as a whole, belongs to one side in a lawsuit rather than to the other side.
Motions that may be filed prior to the commencement of a trial.
EXAMPLE: a motion to suppress; a motion to dismiss.
1. In one sense, every procedural aspect of a lawsuit, from beginning to end, including all means or process by which a party is able to cause a court to act; a suit; an action
A person who brings a lawsuit.
In a civil case, the process by which an action is commenced and the defendant is brought within the jurisdiction of the court.
Subpoena duces tecum
"Bring with you under penalty."A written command requiring a witness to come to court to testify, and at that time to produce for use as evidence the papers, documents, books, or records listed in the subpoena.
A command in the form of written process requiring a witness to come to court to testify
Area of the law that defines rights and responsibilities, law, and facts, as opposed to procedural law, which governs the process by which rights are adjudicated.
Service of process
Delivery of a summons, writ, complaint, or other process to the opposite party, or other person entitles to receive it, in such manner as the law prescribes, whether by leaving a copy at her residence, by mailing a copy to her or her attorney, or by publication.
As opposed to case law, which is binding authority, is merely persuasive authority, it is not law itself , but simply commentary upon or a summary of the law.
The delivering of process; short for service of process.
Service by mail
In circumstances where permitted by statute, service of process occurs by mailing a copy of a summons, writ, complaint, or other process to the party to be served at his last known address or by mailing it to his attorney.
Service by publication
In circumstances where permitted by statute, service of process occurs by publishing a copy of a summons, writ, complaint, or other process in a newspaper of general circulation in a particular region.
Statutes of limitations
Federal and state statutes prescribing the maximum period of time during which various types of civil actions and criminal prosecutions can be brought after the occurrence of the injury or the offense.
Subject matter jurisdiction
The jurisdiction of a court to hear and determine the type of case before it.
EXAMPLE: the jurisdiction of a family court to try cases involving matter of family law.
An action taken by a tribunal, for EXAMPLE, a court or administrative board, to enforce its judgement, decision, or order. EXAMPLES are fines or a penalty, or even the suspension or revocation of a license.
A complaint filed by the defendant in a lawsuit against a third person whom he seeks to bring into the action because of that person's alleged liability to the defendant.
A court that hears and determines a case initially, as opposed to an appellate court; a court of general jurisdiction.
1. To certify the accuracy or truth of a statement under oath; to make a verification
2. To establish the accuracy or truth of anything, whether, or not by oath.
Sworn; Sworn to; stated under oath
A sworn statement certifying the truth of the facts recited in an instrument or document.
The county or judicial district in which a case should be tried
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