Terminology and Definitions

A

Action: A judicial proceeding whereby one party prosecutes another for a wrong done, or for protection of a right or prevention of a wrong; at common law, to be distinguished from an action in equity which would not be brought before the law courts but only before a court of equity. 

Affidavit: A written statement made under oath before an officer of the court, a notary public or other person legally authorized to certify the statement.

Affirmative Defense: SEE DEFENSE

Adjudication: The act or process of determining or adjudging; Are passing of a judgment. A judgment or decision of a court. The act of a court declaring an ascertained fact. 

Allegation: An assertion of a fact; a statement of the issue that the contributing party expects to prove. 

Amicable: Characterized by or exhibiting friendliness or goodwill; Friendly.  

Appearance: The required coming into court of a plaintiff or defendant in an action either by himself or herself (Pro Se) or through an attorney. An appearance involves a voluntary submission to the jurisdiction of the court. 

Appeal: A request to a higher court to review and reverse the decision of a lower court. On appeal, no new evidence is introduced; The higher court is limited to considering whether the lower court erred on the question of law or gave a decision plainly contrary to the evidence presented during trial. Unless a special permission is granted by the higher court to hear and enter the Interlocutory appeal, an appeal cannot be made until the lower court renders a final judgment. 

Appellate [Appeals] Court: A court having authority to review the law applied by a lower court in the same case. In most instances, the trial court first decides the lawsuit, with review of its decision and then available in the appellate court. 

At Law: That which pertains to or is governed by the rules of law, as distinguished from the rules of equity; According to the rules of common law. 

Attest: To bear witness to; Certify; declare to be correct, true, or genuine; declare the truth of, in words or writing, especially affirm in an official capacity: to attest the truth of a statement

B

Breach:

Burden of Evidence: SEE BURDEN OF PROOF

Burden of Proof: 1. The duty of a party to substantiate an allegation or issue, either to avoid dismissal of that issue early in the trial or to convince the court of the truth of that claim and hence to prevail in a civil or criminal suit. 2. The duty of a plaintiff, at the beginning of a trial, to make a Prima Facie showing of each fact necessary to establish the existence of A cause of action; referred to as the duty of producing evidence (also Burdon of Evidence or Production Burdon). 3. The obligation to plead each element of A cause of action or Affirmative Defense (SEE DEFENSE) or suffer a dismissal; Referred to as the Pleading Burdon.      

C

CAPTA: The Child Abuse Prevention and Treatment Act.

Case Law:  SEE COMMON LAW

Cause: That which effects a result. 

Cause, Direct: The active cause that sets in motion a chain of events that brings about a result without the intervention of any other source; often used interchangeably with Proximate Cause. 

Cause, Immediate: The nearest cause in time and space. 

Cause, Intervening [Supervening]: The cause that actively produces the result after the negligence or breach or culpable act of the defendant. 

Cause, Proximate: That which in natural and continuous sequence, unbroken by any new independent cause, produces an event, and without which the injury would not have occurred. 

Cause, Remote: That which does not necessarily produce an event without which injury would not occur. Thus, a cause which is not considered to be “proximate” will be considered as “remote.”

Cause, Superseding: An intervening cause so substantially responsible for the ultimate injury that it cuts off the liability of preceding actors regardless of whether their prior negligence was a substantial factor in bringing about the injury. 

Child maltreatment: Child maltreatment is defined by CAPTA as serious harm (neglect, physical abuse, sexual abuse, an emotional abuse or neglect) cause to children by parents or primary caregivers, such as extended family members or babysitters. Child maltreatment also can include harm that a caregiver allows to happen or does not prevent from happening to a child. In general, child welfare agencies do not intervene in cases of harm to children caused by acquaintances or strangers. These cases are the responsibility of law enforcement.

Circumstantial Evidence: Indirect evidence; secondary facts by which of principle fact may be reasonably inferred. 

Citation: 1. A reference to a legal authority- for example, a citation to a statute or case; 2. A writ similar to a summons, in that it commands the appearance of a party in a proceeding. The objective of a citation is to give the court proper jurisdiction and to notify the defendant that the suit has been filed.

Civil Proceedings/Procedure:  The body of rules of Practice to be adhered to in adjudicating a controversary before a court of civil, as opposed to criminal, Jurisdiction. The term refers to matters of form rather than to the principles of Substantive law that must be applied to determine the rights of the parties. 

Class Action: An action to protect a private right or to compel a civil remedy in a dispute between private parties, as distinguished from a criminal. 

Code: A systematic compilation of laws, for example the Criminal Code (referring to penal laws) and the motor vehicle code (referring to laws relating to motor vehicles). 

Comparative Negligence: SEE NEGLIGENCE 

Common Law: The system of Jurisprudence, which originated in England and was later applied in the United States, that is based on Judicial Precedent (court decisions or case law) rather than legislative enactment (Statutes)  and is therefore derived from principles rather than rules. In the absence of Statutory Law regarding a particular subject, the judge- made rules of common law by the law on that subject. Thus the traditional phrase “at Common Law” refers to the state of the law in a particular field prior to the enactment of legislation in that field. 

Competent: Properly or legally qualified; Able; Capable of understanding or acting reasonably.  

Conciliation: Amicable agreement between parties that resolves a dispute. 

Consolidate: Combine; Unite; Bring together. 

Culpable Act: 

D

Defendant: 1. In Civil Proceedings, the Party responding to the complaint; One who is sued and called upon to make satisfaction for a wrong complained of by another; Two period in criminal proceedings, the accused. See also Respondent. 

Diligence: Attention to the matter at hand. Due diligence or Reasonable Diligence is that level of attention required by the circumstances in order to avoid liability in Negligence. 

Direct Evidence: Proof based upon the witness’s own observations that do not require any additional inferences to be drawn. Compare Circumstantial Evidence. 

E

Error: A mistake; An act involving a departure from truth or accuracy. In a legal proceeding such as a trial, an Error of Law furnishes grounds for the Appellate Court to Reverse a Judgment. 

Error of Law: SEE ERROR

Evidence: All the means by which any alleged matter of fact, the truth of which is submitted to investigation at judicial trial, is established or disproved. Evidence includes the testimony of witnesses, in production of records, documents, exhibits or any other relevant matter offered for the purpose of inducing the trier of fact’s (fact finder’s) belief in the party’s contention. 

Exculpatory Evidence: Refers to evidence or statements that tend to justify or excuse a defendant from an alleged fault or guilt. Contrast Incriminate; Inculpatory. 

Exemplary Damages: SEE DAMAGES 

Ex Parte: “In behalf of” or on the application of one party; By or for one party. An Ex Parte judicial proceeding is one brought for the benefit one party only, without notice to or challenge by an adverse party. Therefore, in an Ex Parte proceeding the adverse party and his or her evidence are excluded. For this reason, such proceedings are not favored, an any relief obtained Ex Parte is subject to speedy review.  

Ex Parte Communication: Ex Parte means one-sided. An Ex Parte communication is any communication between a judge or juror in a party to a legal proceeding or any other person about the case, outside of the presence of the opposing party or the opposing party’s attorney. In criminal cases, the parties are the criminal defendant represented by the defense counsel, and the state represented by the prosecutor. 

Ex Post Facto Law: A civil or criminal law with retroactive effect especially; a law that retroactively alters a defendant’s rights especially by criminalizing an imposing punishment for an act that was not criminal or punishable at the time it was committed, by increasing the severity of a crime from its level at the time the crime was committed, by increasing the punishment for a crime from the punishment imposed at the time the crime was committed, or by taking away from the protections (as evidentiary protection) Afforded the defendant by the law as it existed when the act was committed. NOTE: Ex post facto laws are prohibited by article 1, section 9 of the US constitution. 

F

G

Good Faith: Total absence of intention to seek unfair advantage or to defraud another party; an honest intention to fulfill one’s obligation; observance of reasonable standards of Fair dealing.  

Gross Negligence: SEE NEGLIGENCE 

Guardian: When who legally has care in management of the person or estate, or both, of an incompetent; an officer or agent of the court who was appointed to protect the interests of minors or incompetent persons and provide for their welfare, education, and support. 

Guardian Ad Litem: A person appointed by the court to protect the interests of award in a legal proceeding. 

H

Habeas Corpus: “You have the body” The writ of habeas corpus, known as the great writ, has varied use in criminal and civil contexts. It is a procedure for obtaining a judicial determination of the legality of the individual’s custody. Technically, it is used in the criminal law context to bring the petitioner before the court to inquire into the legality of his confinement. The writ of habeas corpus is used to test the constitutionality of a State criminal conviction.   

Hearsay: SEE HEARSAY RULE 

Hearsay Rule: A rule that declares not admissible as evidence any statement other than that by a witness while testifying at a hearing and offered into evidence to prove the truth of a matter stated. The hearsay statement may be oral or written and includes nonverbal conduct intended as a substitute for words parentheses such as nodding of the head parentheses. If, for example, a witness’s statement as to what he or she heard another person say is elicited to prove the truth of what that other person said, it is hearsay.  

Hidden Defect: Defect not recognizable upon a reasonable inspection of a good or product, or that is not readily apparent, for which a seller is generally liable and that would give rise to a right to revoke a prior acceptance.    

I

Incriminate: 1. To hold another, or oneself, responsible for criminal misconduct; 2. to involve someone, or oneself, in an accusation of a crime. 

Inculpatory: Tending to incriminate or bring about a criminal conviction. Compare Exculpatory.

Inference: A process of reasoning by which a proposition is derived as a logical consequence from given facts.  

In Forma Pauperis: In the manner of a Pauper. In pleadings, In Forma Pauperis grants the right to sue without assuming the burden of costs or formalities of pleading. A criminal defendant granted permission to proceed In Forma Pauperis may be entitled to court- appointed counsel. 

Informed Consent: Consent given only after Full disclosure of what is being consented to; Constitutionally required in certain areas where one may consent to what otherwise would be an unconstitutional violation of a right.  

Interlocutory: Determining a matter during the course of a case and not part of a final decision. 

Ipso Facto:  by that very fact or act: as an inevitable result. It is a term used to refer to the state of something being the inevitable result of an existing state of affairs, rather than being dependent on other factors.  

J

Judicial Precedent: Is a legal case law establishing a principle or rule that a court or other judicial body may apply while deciding subsequent cases involving similar issues or facts. 

Judgment: The determination of a quart of competent Jurisdiction upon matters submitted to it; a final determination of the rights of the parties to a lawsuit. 

Jurisdiction: 1. Power to hear and determine a case; May be established and described with reference to a particular subject or two parties in a particular category. In addition to power to adjudicate, a valid exercise of jurisdiction requires fair Notice and opportunity for affected parties to be heard. 2. The geographic or political entity governed by a particular legal system or body of laws. The word “Jurisdiction” is also used to refer to particular legal systems, as in “the law varies in different jurisdictions,” and in the sense of territory (coupled with authority to reach conduct within the territory), as “within the jurisdiction of X state”.

Jurisprudence: 1. The science of law; The study of the structure of legal systems, such as equity, and the principles of underlying that system; 2. A collective term denoting the course of judicial decision, i.e., case law, as opposed to legislation; 3. sometimes a synonym for law.  

K

L

Leading Question: A question posed by a trial lawyer that is sometimes improper because it suggests to the witness the answer he or she is to deliver, or in effect prompts answers in disregard of actual memory. 

Loquitur Rider: SEE RES IPSA LOQUITUR

M

Malice: The state of mind that accompanies the intentional doing of a wrongful act without justification and in wanton or willful disregard of the plane likelihood that harm will result. 

Malicious Prosecution: The intent to Institute a prosecution for a purpose other than bringing an offender to justice.  

Malpractice: A professional’s improper or immoral conduct in the performance of his or her duties, done either intentionally or through carelessness or ignorance. 

Mandamus: “We command” An extraordinary writ, issued from a court to an official, compelling performance of an act that the law recognizes as an absolute duty, as distinct from acts that may be at the officials discretion. 

Mandate: A judicial command. An official mode of communicating the judgment of the appellate court to the lower court. 

Merit: The various elements that qualify plaintiffs right to the relief sought, or defendant’s right to prevail in his defense. 

Minority: Condition of being under legal age.  

Mitigating Circumstances: A set of conditions that, while not exonerating the accused, might reduce the sentence or the damages arising from the offense.  

N

Negligence: Failure to exercise a degree of care that a person of ordinary prudence (a reasonable man) would exercise under the same circumstances. The term refers to conduct that falls below the standard established by law for the protection of others against unreasonable risk of harm. 

O

Obstruction of Justice: The impeding of those who seek justice in the court, or of those who have duties or powers of administering justice herein; includes attempting to influence, intimidate or impede any juror, witness or officer in any court regarding the discharge of his duty. 

Of Counsel: Refers to an attorney who aides in the preparation of a case, but who is not the principle attorney of record for the case. He or she usually assist the attorney who has been hired for the case. 

Order to Show Cause: SEE SHOW CAUSE ORDER

P

Party: In a judicial proceeding, a litigant (plaintiff or defendant); a person directly interested in the subject matter of a case; One who would assert a claim, make a defense, control proceedings, examine witnesses or appeal from the judgment. 

Per Curiam: “By the Court”

Per Se: Through itself, by means of itself. Not requiring extraneous evidence or support to establish its existence. 

Petitioner: One who presents a petition to a court or other body either to Institute an equity proceeding or to take an appeal from a judgment. The adverse party is called the respondent. 

Plead: 1. To make any pleating; 2. To answer plaintiffs common law declaration; 3. In criminal law, to answer to the charge, either admitting or denying guilt. 

Practice: Refers to the rules governing all aspects of a court proceeding. 

Prejudice: Bias; Leaning toward one party in a lawsuit; a pre judging of a case. 

Production Burden: SEE BURDEN OF PROOF

Pro Se: “for himself”; In one’s own behalf. One appears Pro Se an illegal action when one represents oneself without aid of counsel. 

Prosecution: 1. The act of pursuing a lawsuit or criminal trial; 2. The party initiating a criminal suit, i. e., the state. 

Per Se: through itself, by means of itself. Not requiring extraneous evidence or support to establish its existence.  

Preponderance of Evidence: General standard of proof in civil cases. The phrase refers to the degree of proof that will lead the trier of fact to find that the existence of the fact in issue is more probable than not. 

Prima Facie: “at first view, on its face” Not requiring further support to establish existence, validity, credibility. 

Privilege: 1. A particular benefit enjoyed by a person, company or class beyond the advantages of other citizens; 2. an exceptional exception, or an immunity help beyond the course of the law; 3. An exemption from some burden or attendance, with which certain persons are indulged, from a supposition of the law that the public offices or duties require so much time and care that, without this indulgence, their duties could not be performed to the advantage that the public good demands. 

Privileged Communication: Communication that occurs in a setting of legal or other recognized professional confidentiality. Designating a communication as privileged allows the speakers to resist legal process to disclose its contents. When communications are termed privileged, a breach by one party of the current confidentiality can result in a civil suit in tort by the other party to the communication. Communications that are privileged may include: (1) communications in the sanctity of the marital relationship; (2) communication between physicians and their patients; (3) communications of psychological counselors and their clients; (4) priest and penitent communications ; (5) communications between attorney and client; And (6) in some jurisdictions, communications between journalists and their resources. 

Procedure: Legal method; The machinery for carrying on the suit, including pleating, process, evidence and practice. 

Proximate Cause: SEE CAUSE 

Q

Quash: To annul, overthrow or vacate by judicial decision. 

Question of Fact: Disputed factual contention that is traditionally left for the jury to decide, unless the judge is serving as Trier of fact in the case.  

Question of Law: Disputed legal contentions that are traditionally left for the judge to decide. The occurrence or non-occurrence of an event is a Question of Fact; Its legal significance is a question of law.  

R

Real Evidence: An object relevant to facts in an issue at a trial and produced for inspection at trial rather than described by a witness.

Reasonable Care: That degree of care that under the circumstances would ordinarily or usually be exercised by or might be reasonably expected from an ordinary prudent person. 

Reasonable Diligence: SEE DILIGENCE

Reasonable Doubt: Refers to the degree of certainty required of a juror before he or she can make a legally valid determination of the guilt of a criminal defendant. These words are used in instructions to the jury in a criminal trial and to indicate that innocence is to be presumed unless the jury can see no reasonable doubt of the guilt of the person charged.  

Reasonable Man: A phrase used to denote the hypothetical person who exercises qualities of attention, knowledge, intelligence and judgment that SoC requires of its members for the protection of their own interest in the interests of others. 

Recusal: Disqualification of a judge, jury or administrative officer for prejudice or interest in the subject matter. A judge may be recused as a result of objection by either party or may voluntarily disqualify himself or herself if he or she fears that he or she may not be acting impartially, or that some circumstance will lead to a suspicion of bias. 

Rebuttal: Generally, the time either party is given to refute or oppose a claim or claims made by the opposing party that would not otherwise belong in that party’s case in chief. Also refers to the time given to the party who presented the first closing argument to rebut any claims made by the opposing party in the closing argument, which followed. This rebuttal can only attack those claims made in the opposing party’s argument and not raise any new issues. 

Relevancy: A test concerning the admissibility of evidence. Evidence is relevant if it has a logical tendency, however slight, to prove a fact in issue.   

Remedy: The means employed to enforce or redress an injury. 

Removal: 1. a change in place or position, as the removal of a proceeding to another court, especially from state to federal court; 2. the process by which a public official is stripped office for cause. 

Reply: A defensive pleading by one who is made a complaint; The sole purpose of reply is to interpose a defense to new matter pleaded in the answer. In modern practice a reply is an extraordinary pleading and is not permitted except to respond to a counterclaim or by leave of court to an answer or third-party answer. 

Representative: Agent; One who acts for another in a special capacity. 

Res Ipsa Loquitur: A rule of evidence whereby the negligence of an alleged wrongdoer can be inferred from the fact the incident happened. 

Res Judicata: The thing that has been judged, meaning the issue before the court has already been decided by another court, with the same parties. 

Respondent:  1. in equity, the party who answers a pleading. 2. The party against whom an appeal is prosecuted. (A person who responds or makes reply) 

Reversal: The vacating or changing to the contrary the direction of a lower court or other body. As used in opinions, judgments, and mandates.  

Right: 1. individual liberties in a constitutional sense; 2. proprietary, contractual or legal rights. 

S

Sealing of Records: The sealing of criminal records, permitted in some states with respect to youthful offenders, so that such records may be examined only by court order.  

Show Cause Order: An order, made upon the motion of one party, requiring a party to appear an show cause (demonstrate) why a certain things should be permitted or not permitted. 

Statute: An act of the legislature, adopted under its constitutional authority, by prescribed means and in certain form, so that it becomes the law governing conduct within its scope. 

Statutory Law: The law created by legislatively enacted statutes. Compare common law. 

Sua Sponte: Of itself or of 1’s self. Without being prompted; Refers especially to a court’s acting of its own volition (on its own motion), without emotion being made by either of the adverse parties. 

Substantive Law: The positive law that creates, defines and regulates the rights and duties of the parties and that may give rise to A cause of action, as distinguished from objective law that pertains to an prescribes the practice and procedure or the legal machinery by which the substantial of law is determined or made effective.  

Sui Juris: Of his own right. Describes one who is no longer dependent, e.g., one who has reached majority, or has been removed from the care of a Guardian. 

Suit: Any proceeding in a Court of Justice by which an individual pursues a remedy that the law affords. 

Summary Judgment: Pre verdict judgment of the court in response to a motion by a plaintiff or defendant, rendered when the court perceives that only questions of law are in dispute, or that the court’s decision must be the same regardless of which party’s version of the facts is accepted. It is a device designed to affect a prompt disposition of controversies on their merits without resort to a lengthy trial. 

Summons: A mandate requiring the appearance of a defendant under penalty of having judgment entered against him or her for failure to appear. 

Suppress: To affectively prevent; To re strain; To end by force.  

Suppression of Evidence: The refusal to produce evidence or to allow evidence to be produced for use in litigation. Suppression of evidence also refers to a party’s refusal to produce evidence or to interference by a party with the production of evidence one another party seeks the evidence pursuant to law in civil cases, failure to produce evidence may constitute an admission that the evidence is unfavorable to the party refusing to produce it. 

T

Threat: A declaration of intention or determination to inflict punishment, loss, or pain on another, or to injure another by some wrongful act. A threat may be made by means of innuendo or suggestion as well as by express language. Threats may be the basis of criminal or civil liability. 

U

Undue Influence: Influence of another that destroys the requisite freewill up a testator or donor. 

V

W

Warrant: A written order from a competent authority directing the doing of a certain act, especially one directing the arrest of a person or persons, issued by the court, body or official. 

Weight of The Evidence: A phrase that indicates the relative value of the totality of evidence presented on one side of a judicial dispute, compared to the evidence presented on the other side; Refers to the persuasiveness of the testimony of the witnesses. 

With Prejudice: The dismissal of a case on merits after Adjudication. The plaintiff is barred from bringing an action on the same claim. Dismissal with prejudice is a final judgment and the case becomes res judicata on the claims that were or could have been brought in it. 

Without Prejudice: Without any loss or waiver of rights or privileges. 

Without Recourse: In litigation, someone without recourse against another party cannot Sue that party, or at least cannot obtain adequate relief even if a lawsuit moves forward. Someone completely without recourse cannot Sue anyone for an alleged injury, or else cannot contain any relief even if lawsuits are filed. 

X

Y

Z