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243 terms

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.
Bench trial
A trial conducted without a jury.
Entrapment
A defense requiring proof that the defendant would not have committed the crime but for police trickery.
Appellate courts
Courts that determine whether lower courts have made errors of law.
Appellate or petitioner
The party in a case who has initiated an appeal.
Appellee or respondent
The party in a case against whom an appeal has been filed.
Harmless error
A trial court error that is not sufficient to warrant reversing the decision.
Reverse
A decision is reversed 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.
Majority opinion
An opinion in which a majority of the court joins.
Concurring opinion
An opinion that agrees with the majority's result but disagrees with its reasoning.
Dissenting opinion
An opinion that disagrees with the majority's decision and its reasoning.
U.S. Supreme Court
The highest federal appellate court, consisting of nine appointed members.
U.S. Court of Appeals
The intermediate appellate courts in the federal system.
U.S. district courts
The general jurisdiction trial courts in the federal system.
General jurisdiction
A court's power to hear any type of case arising within its geographical area.
Limited jurisdiction
A court's power to hear only specialized cases.
Subpoena
A court order requiring a person to appear to testify at a trial or deposition.
En banc
When an appellate court that normally sits in panels sits as a whole.
Writ of certiorari
A means of gaining appellate review; in the U.S. Supreme Court the writ is discretionary and will be issued to another court to review a federal question if four of the nine justices vote to hear the case.
Court of record
A court where a permanent record is kept of the testimony, lawyers' remarks, and judges' rulings.
Exclusive jurisdiction
When only one court has the power to hear a case.
Concurrent jurisdiction
When more than one court has jurisdiction to hear a case.
Federal question jurisdiction
The power of the federal courts to hear matters of federal law.
Diversity jurisdiction
The power of the federal courts to hear matters of state law if the opposing parties are from different states and the amounts in controversy exceeds $75,000.00
Removal
The transfer of a case from one state court to a federal court.
Alternative dispute resolution (ADR)
Techniques for resolving conflicts that are alternatives to full-scale litigation. The two most common are arbitration and mediation.
Arbitration
An ADR mechanism whereby the parties submit their disagreement to a third party, whose decision is binding.
Mediation
An ADR mechanism whereby a neutral third party assists the parties in reaching a mutually agreeable, voluntary compromise.
Summary jury trials
A nonbinding process in which attorneys for both sides present synopses of their cases to a jury, which renders an advisory opinion on the basis of these presentations.
Pleadings
The papers that begin a lawsuit-generally, the complaint and the answer.
Pretrial motion
A motion brought before the beginning of a trial either to eliminate the necessity for a trial or to limit the information that can be heard at the trial.
Discovery
The modern pretrial procedure by which one party gains information from the adverse party
Standing
The principle that courts cannot decide abstract issues or render advisory opinions; rather, they are limited to deciding cases that involve litigants who are personally affected by the court's decision.
Judgment proof
When the defendant does not have sufficient money or other assets to pay the judgment.
Guardian
A person appointed by the court to manage the affairs or property of a person who is incompetent due to age or some other reason.
Compulsory joinder
When a person must be brought into a lawsuit as either a plaintiff or a defendant.
Class action suit
A lawsuit brought by a person as a representative for a group of people who have been similarly injured.
Jurisdiction
The power of a court to hear a case.
Subject matter jurisdiction
The power of a court to hear a particular type of case.
Personal jurisdiction
The power of a court to force a person to appear before it.
Minimum contacts
A constitutional fairness requirement that a defendant have at least a certain minimum level of contact with a state before the state courts can have jurisdiction over the defendant.
Statutes of limitations
The law that sets the length of time from when something happens to when a lawsuit must be filed before the right to bring it is lost.
Exhaustion of administrative remedies
The requirement that relief be sought from an administrative agency before proceeding to court.
Complaint
The pleading that begins a lawsuit.
Answer
Defendant's reply to the complaint. It may contain statements of denial, admission, or lack of knowledge and affirmative defenses.
Counterclaim
A claim by the defendant against the plaintiff.
Cross-claim
A claim by one defendant against another defendant or by one plaintiff against another plaintiff.
Third-party claim
A claim by a defendant against someone in addition to the persons the plaintiff has already sued.
Caption
The heading section of a pleading that contains the names of the parties, the name of the court, the title of the action, the docket or file number, and the name of the pleading.
Notice pleading
A method adopted by the federal rules in which the plaintiff simply informs the defendant of the claim and the general basis for it.
Count
In a complaint, one cause of action.
Pleading in the alternative
Including more than one count in a complaint; the counts do not need to be consistent.
Verification
An affidavit signed by the client indicating that he or she has read the complaint and that its contents are correct.
Summons
A notice informing the defendant of the lawsuit and requiring the defendant to respond or risk losing the suit.
Notice
Being informed of some act done or about to be done.
Service
The delivery of a pleading or other paper in a lawsuit to the opposing party.
Affirmative defense
A defense whereby the defendant offers new evidence to avoid judgment.
Default judgment
A judgment entered against a party who fails to complete a required step, such as answering the complaint.
Motion
A request made to the court.
12(b)(6) motion
A request that the court find the plaintiff has failed to state a valid claim and dismiss the complaint.
Rule 56 motion (summary judgment motion)
A request that the court grant judgment in favor of the moving party because there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. It is similar to a 12(b)(6) motion except that the court also considers matters outside the pleadings.
Model Rules of Professional Conduct
A set of ethical rules developed by the American Bar Association in the 1980s. The Model rules have been adopted by most of the states.
Confidentiality
The ethical rule prohibiting attorneys and paralegals from disclosing information regarding a client or a client's case.
Attorney-client privilege
A rule of evidence that prevents an attorney or a paralegal from being compelled to testify about confidential client information.
Conflict of interest
The ethical rule prohibiting attorneys and paralegals from working for opposing sides in a case.
Concurrent conflict of interest
Simultaneously representing adverse clients.
Successive conflict of interest
Representing someone who is in a position adverse to a prior client.
Potential conflict
A situation in which a confict of interest may arise in the future-- for example, representing business partners.
Vicarious representation
The rule whereby all members of a law firm are treated as though they had represented the former client.
Ethical wall or screen or cone of silence
A system developed to shield an attorney or a paralegal from a case that otherwise would create a conflict of interest.
Unauthorized practice of law
When nonlawyers do things that only lawyers are allowed to do. In most states this is a crime.
Practice of law
An activity that requires professional judgment, or the educated ability to relate law to a specific legal problem.
Professional judgment
The educated ability to apply law to specific facts.
Contingency fee
Attorney compensation as a precentage of the amount recovered rather than a flat amount of money or an hourly fee.
Client trust account
A bank account used to hold money belonging to the client or to a third party.
Reprimand or censure
A public or private statement that an attorney's conduct violated the code of ethics.
Suspension
A determination that an attorney may not practice law for a set period of time.
Disbarment
The revocation of an attorney's license.
Negligence
The failure to act reasonably under the circumstances.
Legal malpractice
The failure of an attorney to act reasonably.
Proving a case within a case
The requirement in a legal malpractice case that the plaintiff-client prove that but for the attorney's negligence, the client would have won.
Retainer
An advance or down payment that is given to engage the services of an attorney.
Fixed fee
A set charge for a specific service, such as drafting a simple will.
Contingency fee
A fee calculated as a percentage of the settlement or award in the case.
Hourly rate
A fee based on how many hours attorneys or paralegals spend on the case, Different hourly rates are often charged for different attorneys and paralegals within the firm, based on their seniority and experience.
Billable hours
The number of hours, or parts of an hour, that can be charged to a specific client.
Tickler system
A calendaring system that records key dates and important deadlines.
Structured database
A computerized database that contains key information about the content of documents, such as medical records.
Full-text database
A computerized database that contains the full text of documents, such as court opinions or depositions.
Central district
Which district are we in within the federal system?
9th Circuit
Which circuit are we in within the appeals court?
Second appellate district
aka California court of appeals
Superior courts
California trial courts are called?
4 ways in which civil law is different than criminal law.
Civil is Plaintiff v. defendant; criminal is State v. the People. Standard of proof is different. Civil must prove by the preponderance of the evidence and criminal is beyond a reasonable doubt. Harm is different. Civil involves harm to an individual and criminal is harm to society as a whole. And in civil they focus on redressing the losses by awarding the plaintiff damages and/or an injunction. In criminal sanctions are designed to punish and to deter future offenders by imposing loss of liberty and/or financial penalty.