Legal Terminologies

Admissible - A term used to describe evidence that may be considered by a jury or judge in civil and criminal cases.

Admissible evidence - Evidence that can be legally and properly introduced in a civil or criminal trial.

Affiant - A person who makes and signs an affidavit.

Affidavit - A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths. For example, in criminal cases, affidavits are often used by police officers seeking to convince courts to grant a warrant to make an arrest or a search. In civil cases, affidavits of witnesses are often used to support motions for summary judgment.

Agreement - Mutual assent between two or more parties; normally leads to a contract; may be verbal or written.

Allegation. The claim made in a pleading by a party to an action setting out what he or she expects to prove.

Answer - The formal written statement by a defendant in a civil case that responds to a complaint, articulating the grounds for defense.

Appeal - A request made after a trial by a party that has lost on one or more issues that a higher court review the decision to determine if it was correct. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the "appellant;" the other party is the "appellee."

Appearance - 1. The formal proceeding by which a defendant submits to the jurisdiction of the court. 2. A written notification to the plaintiff by an attorney stating that he or she is representing the defendant.

Appellant - The party who appeals a district court's decision, usually seeking reversal of that decision.

Appellate - About appeals; an appellate court has the power to review the judgment of a lower court (trial court) or tribunal. For example, the U.S. circuit courts of appeals review the decisions of the U.S. district courts.

Appellee - The party who opposes an appellant's appeal, and who seeks to persuade the appeals court to affirm the district court's decision.

Arbitration - A form of alternative dispute resolution in which the parties bring their dispute to a neutral third party and agree to abide by his or her decision. In arbitration there is a hearing at which both parties have an opportunity to be heard.

Arbitrator - A person who conducts an arbitration.

Assets - Property of all kinds, including real and personal, tangible and intangible.

Assumption of the Risk - When a person voluntarily and knowingly proceeds in the face of an obvious and known danger, she assumes the risk. A person found to have assumed the risk cannot make out the duty element of a negligence cause of action. The theory behind the rule is that a person who chooses to take a risk cannot later complain that she was injured by the risk that she chose to take. Therefore, she will not be permitted to seek money damages from those who might have otherwise been responsible.

Attorney-Client Privilege - Client's privilege to refuse to disclose and to prevent any other person from disclosing confidential communications between the client and his or her attorney.

Bad faith - Intention to mislead or deceive; conscious refusal to fulfill some duty. Implies active ill will, as opposed to negligence. Bad faith is not bad judgment; it requires conscious wrongdoing.

Bench Trial or Non-jury Trial - Trial before a judge and without a jury. In a bench trial, the judge decides questions of law and questions of fact.

Binding Authority - Law that controls the outcome of a case. For example, a decision on the same point of law by a higher court in the same state must be followed by a lower court in that state. See precedent.

Breach of Contract - Failure, without legal excuse, to perform all or some of the promises made in a contract.

Burden of Proof or Standard of Proof - Degree of proof required in a specific kind of case to prevail. In the majority of civil cases, it is proof by a preponderance of the evidence.

Caption - The heading on a legal document listing the parties, the court, the case number, and related information.

Case Law - Law established by previous decisions of appellate courts, particularly the Supreme Court.

Cause - A lawsuit, litigation, or action. Any question, civil or criminal, litigated or contested before a court of justice.

Causation - The act by which an effect is produced. See also "legal cause" and "proximate cause."

Cause of Action - Fact or facts that give someone the right to seek a remedy through the court because the facts of the case apply to a certain law sought to be enforced.

Civil Procedure - The rules and process by which a civil case is tried and appealed, including the preparations for trial, the rules of evidence and trial conduct, and the procedure for pursuing appeals.

Claim - A creditor's assertion of a right to payment from a debtor or the debtor's property.

Clear and Convincing Evidence - Standard of proof commonly used in civil lawsuits and in regulatory agency cases. It governs the amount of proof that must be offered in order for the plaintiff to win the case.

Class Action - A lawsuit in which one or more members of a large group, or class, of individuals or other entities sue on behalf of the entire class. The district court must find that the claims of the class members contain questions of law or fact in common before the lawsuit can proceed as a class action.

Clerk of Court - The court officer who oversees administrative functions, especially managing the flow of cases through the court.

Comparative Negligence - Comparing the plaintiff's contributory negligence to the defendant's negligence. Pennsylvania's Comparative Negligence statute states that when a plaintiff is guilty of contributory negligence and that negligence was not greater than the defendant's negligence, the plaintiff's damages will be diminished in proportion to his negligence in causing the accident.

Compensation - Something that makes up for a loss. In workers' compensation cases, it refers to payment to unemployed or injured workers or their dependents.

Continuance - Postponement of a legal proceeding to a later date.

Contingent Fee Agreement - An agreement between an attorney and his or her client whereby the attorney agrees to represent the client for a percentage of the amount recovered. This fee agreement is frequently used in personal injury actions.

Contract - An agreement between two or more persons that creates an obligation to do or not to do a particular thing.

Contributory Negligence - Broadly, carelessness on the plaintiff's part. More precisely, conduct which falls below the standard of care established by law for the protection of one's self against unreasonable risk of harm.

Counsel - Legal advisor; a term used to refer to lawyers in a case.

Counterclaim - Claim brought by a defendant in a lawsuit against the plaintiff.

Court - Government entity authorized to resolve legal disputes. Judges sometimes use "court" to refer to themselves in the third person, as in "the court has read the briefs."

Court Administrator/Clerk of court - An officer appointed by the Court or elected to oversee the administrative, non-judicial activities of the court.

Court Costs - The expenses of prosecuting or defending a lawsuit, other than the attorneys' fees. An amount of money may be awarded to the successful party (and may be recoverable from the losing party) as reimbursement for court costs.

Court reporter - A person who makes a word-for-word record of what is said in court, generally by using a stenographic machine, shorthand or audio recording, and then produces a transcript of the proceedings upon request.

Cross-Claim - Claim brought by a defendant in a lawsuit against a co-defendant in the lawsuit.

Cross-Examination - The questioning of a witness produced by the other side.

Damages - Money that a defendant pays a plaintiff in a civil case if the plaintiff has won. Damages may be compensatory (for loss or injury) or punitive (to punish and deter future misconduct).

Decedent - A deceased person.

Default Judgment - A judgment awarding a plaintiff the relief sought in the complaint because the defendant has failed to appear in court or otherwise respond to the complaint.

Defendant - In a civil case, the person or organization against whom the plaintiff brings suit; in a criminal case, the person accused of the crime.

Deposition - An oral statement made before an officer authorized by law to administer oaths. Such statements are often taken to examine potential witnesses, to obtain discovery, or to be used later in trial. See discovery.

Deponent - The person who testifies at a deposition.

Directed Verdict - Now called Judgment as a matter of Law. An instruction by the judge to the jury to return a specific verdict.

Direct Evidence - Generally, eyewitness evidence. Compare with circumstantial evidence.

Direct Examination - The first questioning of witnesses by the party on whose behalf they are called.

Disability - In the legal sense, lack of legal capacity to perform some act. Used in a physical sense in connection with workers' compensation acts and is a composite of (a) actual incapacity to perform employment tasks and the wage loss resulting therefrom and (b) physical bodily impairment which may or may not be incapacitating.

Discovery - Procedures used to obtain disclosure of evidence before trial.

Dismissal with Prejudice - Court action that prevents an identical lawsuit from being filed later.

Dismissal without Prejudice - Court action that allows the later filing.

Docket - A log containing the complete history of each case in the form of brief chronological entries summarizing the court proceedings.

Dram shop - A drinking establishment where alcoholic beverages are served to be drunk on the premises.

Dram Shop Act - In Pennsylvania, this statute imposes liability on drinking establishments, like bars and restaurants, for harm resulting from the establishment's service of alcohol to visibly intoxicated persons.

Evidence - Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case in favor of one side or the other.

File - To place a paper in the official custody of the clerk of court to enter into the files or records of a case.

Impeachment - The process of calling a witness's testimony into doubt. For example, if the attorney can show that the witness may have fabricated portions of his testimony, the witness is said to be "impeached."

In Camera - Latin, meaning in a judge's chambers. Often means outside the presence of a jury and the public. In private.

Interrogatories - A form of discovery consisting of written questions to be answered in writing and under oath.

Issue - 1. The disputed point between parties in a lawsuit; 2. To send out officially, as in a court issuing an order.

Judge - An official of the judicial branch with authority to decide lawsuits brought before courts. Used generically, the term judge may also refer to all judicial officers, including Supreme Court justices.

Judgment - The official decision of a court finally resolving the dispute between the parties to the lawsuit.

Jury - The group of persons selected to hear the evidence in a trial and render a verdict on matters of fact.

Jury instructions - A judge's directions to the jury before it begins deliberations regarding the factual questions it must answer and the legal rules that it must apply.

Lawsuit - A legal action started by a plaintiff against a defendant based on a complaint that the defendant failed to perform a legal duty which resulted in harm to the plaintiff.

Lien - A charge on specific property that is designed to secure payment of a debt or performance of an obligation. A debtor may still be responsible for a lien after a discharge.

Litigation - A case, controversy, or lawsuit. Participants (plaintiffs and defendants) in lawsuits are called litigants.

Mistrial - An invalid trial, caused by fundamental error. When a mistrial is declared, the trial must start again with the selection of a new jury.

Moot - Not subject to a court ruling because the controversy has not actually arisen, or has ended.

Motion - A request by a litigant to a judge for a decision on an issue relating to the case.

Motion in Limine - A pretrial motion requesting the court to prohibit the other side from presenting, or even referring to, evidence on matters said to be so highly prejudicial that no steps taken by the judge can prevent the jury from being unduly influenced.

Opinion - A judge's written explanation of the decision of the court. Because a case may be heard by three or more judges in the court of appeals, the opinion in appellate decisions can take several forms. If all the judges completely agree on the result, one judge will write the opinion for all. If all the judges do not agree, the formal decision will be based upon the view of the majority, and one member of the majority will write the opinion. The judges who did not agree with the majority may write separately in dissenting or concurring opinions to present their views. A dissenting opinion disagrees with the majority opinion because of the reasoning and/or the principles of law the majority used to decide the case. A concurring opinion agrees with the decision of the majority opinion, but offers further comment or clarification or even an entirely different reason for reaching the same result. Only the majority opinion can serve as binding precedent in future cases.

Oral argument - An opportunity for lawyers to summarize their position before the court and also to answer the judges' questions.

Panel - 1. In appellate cases, a group of judges (usually three) assigned to decide the case; 2. In the jury selection process, the group of potential jurors; 3. The list of attorneys who are both available and qualified to serve as court-appointed counsel for criminal defendants who cannot afford their own counsel.

Petition - The document that initiates the filing of a bankruptcy proceeding, setting forth basic information regarding the debtor, including name, address, chapter under which the case is filed, and estimated amount of assets and liabilities.

Plaintiff - A person or business that files a formal complaint with the court.

Pleadings - Written statements filed with the court which describe a party's legal or factual assertions about the case.

Precedent - A court decision in an earlier case with facts and legal issues similar to a dispute currently before a court. Judges will generally "follow precedent" - meaning that they use the principles established in earlier cases to decide new cases that have similar facts and raise similar legal issues. A judge will disregard precedent if a party can show that the earlier case was wrongly decided, or that it differed in some significant way from the current case.

Pretrial conference - A meeting of the judge and lawyers to plan the trial, to discuss which matters should be presented to the jury, to review proposed evidence and witnesses, and to set a trial schedule. Typically, the judge and the parties also discuss the possibility of settlement of the case.

Procedure - The rules for conducting a lawsuit; there are rules of civil procedure, criminal procedure, evidence, bankruptcy, and appellate procedure.

Service of process - The delivery of writs or summonses to the appropriate party.

Settlement - Parties to a lawsuit resolve their dispute without having a trial. Settlements often involve the payment of compensation by one party in at least partial satisfaction of the other party's claims, but usually do not include the admission of fault.

Standard of Proof - Degree of proof required. In criminal cases, prosecutors must prove a defendant's guilt "beyond a reasonable doubt." The majority of civil lawsuits require proof "by a preponderance of the evidence" (50 percent plus), but in some the standard is higher and requires "clear and convincing" proof.

Statute - A law passed by a legislature.

Statute of Limitations - The time within which a lawsuit must be filed or a criminal prosecution begun. The deadline can vary, depending on the type of civil case or the crime charged.

Subpoena - A command, issued under a court's authority, to a witness to appear and give testimony.

Subpoena duces tecum - A command to a witness to appear and produce documents.

Summary judgment - A decision made on the basis of statements and evidence presented for the record without a trial. It is used when it is not necessary to resolve any factual disputes in the case. Summary judgment is granted when - on the undisputed facts in the record - one party is entitled to judgment as a matter of law.

Testimony - Evidence presented orally by witnesses during trials.

Tort - A civil, not criminal, wrong. A negligent or intentional injury against a person or property, with the exception of breach of contract.

Transcript - A written, word-for-word record of what was said, either in a proceeding such as a trial, or during some other formal conversation, such as a hearing or oral deposition.

Venue - The geographic area in which a court has jurisdiction. A change of venue is a change or transfer of a case from one judicial district to another.

Verdict - The decision of a trial jury or a judge that determines the final outcome of a civil case.

Voir Dire - Jury selection process of questioning prospective jurors, to ascertain their qualifications and determine any basis for challenge.

Witness - A person called upon by either side in a lawsuit to give testimony before the court or jury.