Law Definitions

By on Dec 5, 2012 in Traumatic Brain Injury Law | 0 comments

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This section defines law terms commonly used in personal injury claims and the final outcomes and verdicts. Each term on this page have been defined for simplicification for understanding by everyday people such as you and I. Definitions were taken from Black’s Law Dictionary, Abridged fifth edition, 1983 and Oran’s Law Dictionary for Non Lawyers,1975.

Action - Proceeding taken in a court of law. Synonymous with case, suit lawsuit.

Adjudication - A judgment or decree Adversary system - Basic U.S. trial system in which each of the opposing parties has opportunity to state his viewpoints before the court. Plaintiff argues for defendant’s guilt (criminal) or liability (civil). Defense argues for defendant’s innocence (criminal) or against liability civil)

Affidavit - A written or printed declaration or statement under oath

Affirm - The assertion of an appellate court that the judgment of the lower court is correct and should stand.

Allegation - An assertion, declaration or statement of a party to an action made in a pleading, stating what he expects to prove.

Alleged - (allegation) Stated; recited; claimed; asserted; charged.

Answer - A formal response to a claim, admitting or denying the allegations in the claim.

Appeal - Review of a case by a higher court.

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 the he is representing the defendant.

Arbitration - the hearing and settlement of a dispute between opposing parties by a third party whose decision the parties have agreed to accept.

At issue - The time in a lawsuit when the complaining party has stated his claim and the other side has responded with denial and the matter is ready to be tried.

Attorney at law - A lawyer; one who is licensed to act as a representative for another in a legal matter or proceeding.

Attorney of record - An attorney , named in the records of a case, who is responsible for handling the cause on behalf of the party he represents.

Bankruptcy - A legal proceeding where a person or business is relieved of paying certain debts.

Best evidence - Primary evidence; the best evidence which is available; any evidence falling short of this standard is secondary.

Brief - A legal document, prepared by an attorney which presents the law and facts supporting his client’s case

Burden of proof - Measure of proof required to prove a fact. Obligation of a party to probe facts at issue in the trial of a case.

Calendar - List of cases arranged for hearing in court.

Caption - The caption of a pleading, or other papers connected with a case in court, is the heading or introductory clause which shows the names of the parties, name of the court, number of the case, etc.

Case - Any proceeding, action, cause, lawsuit or controversy initiated through the court system by filing a complaint, petition, indictment or information.

Caseload - The number of cases a judge handles in a specific time period.

Cause of action - A legal claim.

Certificate under penalty of perjury - A written statement, certified by the maker as being under penalty of perjury. In many circumstances, it may be used in lieu of an affidavit.

Certiorari - Procedure for removing a case from a lower court or administrative agency to a higher court for review.

Challenge for cause - A request by a party that the court excuse a specific juror on the basis that the juror is biased.

Citation - Summons to appear in court. 2. Reference to authorities in support of a legal argument.

Civil law - All law that is not criminal law. Usually pertains to the settlement of disputes between individuals, organizations or groups and having to do with the establishment, recovery or redress of private and civil rights.

Claim - The assertion of a right to money or property.

Clerk of the court - An officer of a court whose principal duty is to maintain court records and preserve evidence presented during a trial.

Closing argument - The closing statement, by counsel, to the trier of facts after all parties have concluded their presentation of evidence.

Code - A collection, compendium or revision of laws systematically arranged into chapters, table of contents and index and promulgated by legislative authority.

Commit - To lawfully send a person to prison, a reformatory or an asylum

Common law - Law which derives its authority solely from usage and customs of immemorial antiquity or from the judgments and decrees of courts. also called “case law.”

Comparative negligence - Negligence of a plaintiff in a civil suit which decreases his recovery by his percentage of negligence compared to a defendant’s negligence.

Competency - In the law of evidence, the presence of those characteristics which render a witness legally fit and qualified to give testimony.

Complaint - 1. (criminal) Formal written charge that a person has committed a criminal offense. 2. (civil) Initial document entered by the plaintiff which states the claims against the defendant.

Contempt of court - Any act that is meant to embarrass, hinder or obstruct a court in the administration of justice. Direct contempt is committed in the presence of the court; indirect contempt is when a lawful order is not carried out or refused.

Continuance - Adjournment of the proceedings in a case from one day to another.

Corroborating evidence - Evidence supplementary to that already given and tending to strengthen or confirm it. C

Costs - An allowance for expenses in prosecuting or defending a suit. Ordinarily does not include attorney’s fees.

Counter claim - Claim presented by a defendant in opposition to, or deduction from, the claim of the plaintiff.

Court - 1. Place where justice is administered. 2. Judge or judges sitting on the court administering justice.

Court administrator - Manager of administrative, non judicial affairs of the court.

Court commissioner - A judicial officer at both trial and appellate court levels who performs many of the same duties as judges and justices.

Court of appeals - Intermediate appellate court to which most appeals are taken from superior court.

Court superior - State trial court of general jurisdiction.

Court supreme - “Court of last resort.” Highest court in the state and final appellate court.

Courts of limited jurisdiction - Includes district, municipal and police courts.

Crime - Conduct declared unlawful by a legislative body and for which there is a punishment of a jail or prison term, a fine or both.

Criminal law - Body of law pertaining to crimes against the state or conduct detrimental to society as a whole. Violation of criminal statues are punishable by law.

Cross examination - The questioning of a witness by the party opposed to the one who produced the witness.

Damages - Compensation recovered in the courts by a person who has suffered loss, detriment or injury to his/her person, property or rights, through the unlawful act or negligence of another.

De novo - “Anew.” A trial de novo is a completely new trial held in a higher or appellate court as if the original trial had never taken place.

Declamatory judgment - A judgment that declares the rights of the parties on a question of law.

Decree - Decision or order of the court. A final decree completes the suit; an interlocutory decree is a provisional or preliminary decree which is not final.

Default - A failure of a party to respond in a timely manner to a pleading; a failure to appear for trial.

Defendant - 1 (criminal) Person charged with a crime. 2. (civil) Person against whom a civil action is brought. Defense attorney - The attorney who represents the defendant.

Deposition - Sworn testimony taken and recorded in an authorized place outside of the courtroom, according to the rules of the court.

Direct examination - The questioning of a witness by the party who produced the witness.

Discovery - A pretrial proceeding where a party to an action may be informed about (or “discover”) the facts known by other parties or witnesses.

Dismissal with prejudice - Dismissal of a case by a judge which bars the losing losing party from raising the issue again in another lawsuit.

Dismissal without prejudice - The losing party is permitted to sue again with the same cause of action.

Disposition - 1. Determination of a charge; termination of any legal action; 2. A sentence of a juvenile offender.

Dissent - The disagreement of one or more judges of a court with the decision of the majority.

Docket - Book containing entries of all proceedings in a court.

Due process - Constitutional guarantee that an accused person receive a fair and impartial trial.

En banc “On the bench.” All judges of a court sitting together to hear a case.

Enjoin - To require a person to perform, or abstain or desist from some act.

Evidence - Any form of proof legally presented at a trial through witnesses, records, documents, etc.

Exception - A formal objection of an action of the court, during the trial of a case, in refusing a request or overruling an objection; implying that the party excepting does not acquiesce in the decision of the court and will seek to obtain its reversal.

Exhibit - Paper, document or other object received by the court as evidence during a trial or hearing.

Expert evidence - Testimony given by those qualified to speak with authority regarding scientific, technical or professional matters.

Fact-findinq hearing - A proceeding where facts relevant to deciding a controversy are determined.

Fair Preponderance- Evidence sufficient to create in the minds of the triers of fact the belief that the party which bears the burden of proof has established its case.

Felony - A crime of grave nature than a misdemeanor.

Fine - A sum of money imposed upon a convicted person as punishment for a criminal offense. File - 1. The complete court record of a case. 2. “To file” a paper is to give it to the court clerk for inclusion in the case record. 3. A folder in a law office (of a case, a client, business records, etc.)

Fraud - An intentional perversion of truth; deceitful practice or device resorted to with intent to deprive another of property or other right or in some manner do him/her injury.

General jurisdiction - Refers to courts that have no limit on the types of criminal and civil cases they may hear. Superior courts are courts of general jurisdiction.

Grand Jury - A body of persons sworn to inquire into crime and, if appropriate, bring accusations (indictments) against the suspected criminals.

Guardian ad litem - A person appointed by a court to manage the interests of a minor or incompetent person whose property is involved in litigation.

Hearing - An in-court proceeding before a judge, generally open to the public.

Hearsay - Evidence based on what the witness has heard someone else say, rather than what the witness has personally experienced or observed.

Hung Jury - A jury whose members cannot agree on a verdict.

Hypothetical question - A combination of facts and circumstances, assumed or proved, stated in such a form as to constitute a coherent state of facts upon which the opinion of an expert can be asked by way of evidence in a trial.

Immunity - Freedom from duty or penalty.

Impeachment of a witness - An attack on the credibility of a witness by the testimony of other witnesses.

Inadmissible - That which, under the established rules of evidence, cannot be admitted or received.

Induction - Writ or order by a court prohibiting a specific action from being carried out by a person or group.

Informed consent - A person’s agreement to allow something to happen (such as surgery) that is based on a full disclosure of facts needed to make the decision intelligently.

Injure - 1. Hurt or harm 2. Violate the legal rights of another person.

Instruction - Direction given by a judge regarding the applicable law in a given case.

Interrogatories - Written questions developed by one party’s attorney for the opposing party. Interrogatories must be answered under oath within a specific period of time.

Intervention - Proceeding in a suit where a third person is allowed, with the court’s permission, to join the suit as a party.

Judge - An elected or appointed public official with authority to hear and decide cases in a court of law.

Judgment - Final determination by a court of the rights and claims of the parties in an action.

Judge pro tem - Temporary judge.

Jurisdiction- Authority of a court to exercise judicial power.

Jurisprudence - The science of law.

Juror - Member of a jury.

Jury - Specific number of people (usually 6 or 12), selected as prescribed by law to render a decision (verdict) in a trial.

Law - The combination of those rules and principles of conduct promulgated by legislative authority, derived from court decisions and established by local custom.

Law clerks - Persons trained in the law who assist the judges in researching legal opinions.

Lawsuit - A civil action; a court proceeding to enforce a right (rather than to convict a criminal).

Lawyer - A person licensed to practice law; other words for “lawyer” include: attorney, counsel, solicitor and barrister

Lay - non-professional; for example: a lawyer would call a non-lawyer a lay person and a doctor would call a non-doctor a lay person.

Lay advocate - a paralegal who specializes in representing persons in administrative hearings

Leading question - One which suggests to a witness the answer desired. Prohibited on direct examination.

Limited jurisdiction - Refers to courts that are limited in the types of criminal and civil cases they may hear. District, municipal and police courts are courts of limited jurisdiction.

Litigant - One who is engaged in a lawsuit.

Litigation - Contest in court; a law suit. Magistrate - Court official with limited authority.

Malpractice. Professional misconduct or unreasonable lack of skill. A claim of malpractice must prove two things. One, you must prove that you could have won your case were it not for your lawyer’s negligence. And, secondly, you must prove that your lawyer’s actions were negligent.

Mandate - Command from a court directing the enforcement of a judgment, sentence or decree.

Misdemeanor - Criminal offenses less than felonies; generally those punishable by fine or imprisonment of less than 90 days in a local facility. A gross misdemeanor is a criminal offense for which an adult could be sent to jail for up to one year, pay a fine up to $5,000 or both.

Mistrial - Erroneous or invalid trial. Usually declared because of prejudicial error in the proceedings or when there was a hung jury.

Mitigating circumstances - Those which do not constitute a justification or excuse for an offense but which may be considered as reasons for reducing the degree of blame.

Motion - Oral or written request made by a party to an action before, during or after a trial upon which a court issues a ruling or order.

Moot - Unsettled; undecided. A moot point is one not settled by judicial decisions.

Negligence - The absence of ordinary care. Oath - Written or oral pledge by a person to keep a promise or speak the truth.

Objection - Statement by an attorney taking exception to testimony or the attempted admission of evidence and opposing its consideration as evidence.

Of counsel - Phrase used to identify attorneys that are employed by a party to assist in the preparation and management of a case but who are not the principal attorneys of record in the case.

Offender - 1. A person who has committed a felony, as established by state law and is eighteen years of age or older. 2. A person who is less than eighteen but whose felony case has been transferred by the juvenile court to a criminal court.

Offer - 1. To make a proposal ; to present for acceptance or rejection. 2. To attempt to have something admitted into evidence in a trial; to introduce evidence 3. An “offer” in contract law is a proposal to make a deal. It must be communicated successfully from the person making it to the person to whom it is made and it must be the person to whom it is made and it must be definite and reasonably certain in its terms.

Omnibus hearing - A pretrial hearing normally scheduled at the same time the trial date is established. Purpose of the hearing is to ensure each party receives (or “discovers”) vital information concerning the case held by the other. In addition, the judge may rule on the scope of discovery or on the admissibility of challenged evidence.

Opening statement - The initial statement made by attorneys for each side, outlining the facts each intends to establish during the trial.

Opinion - statement of decision by a judge or court regarding a case tried before it. Published opinions are printed because they contain new legal interpretations. Unpublished opinions, based on legal precedent, are not printed.

Opinion, per curiam - Phrase used to distinguish an opinion of the whole court from an opinion written by only one judge.

Overrule - 1. Court’s denial of any motion or point raised to the court. 2. To overturn or void a decision made in a prior case.

Parties - Persons, corporations, or associations, who have commenced a law suit or who are defendants.

Peremptory challenge - Procedure which parties in an action may use to reject prospective jurors without giving reason. Each side is allowed a limited number of such challenges.

Petition - Written application to a court requesting a remedy available under law.

Petition for review - A document filed in the state Supreme Court asking for a review of a decision made by the Court of Appeals.

Perjury - Making intentionally false statements under oath. Perjury is a criminal offense.

Plaintiff - The party who begins an action; the party who complains or sues in an action and is named as such in the court’s records. Also called a petitioner.

Plea - A defendant’s official statement of “guilty” or “not guilty” to the charge(s) made against him.

Pleadings - Formal, written allegations by the parties of their respective claims. Polling the jury - A practice whereby the jurors are asked individually whether they agreed, and still agree, with the verdict.

Power of attorney - Document authorizing another to act as one’s agent or attorney in fact (not an attorney at law).

Precedent - Previously decided case which is recognized as an authority for determining future cases.

Preponderance of evidence - The general standard of proof in civil cases. The weight of evidence presented by one side is more convincing to the trier of facts than the evidence presented by the opposing side.

Presiding judge - Chief or administrative judge of a court. Probate - The legal process of establishing the validity of a will and settling an estate.

Proceeding - Any hearing or court appearance related to the adjudication of a case.

Record - 1. To preserve in writing, print or by film, tape, etc. 2. History or a case. 3. The word-for-word (verbatim) written or tape recorded account of all proceedings of a trial.

Record on appeal - The portion of the record of a court of limited jurisdiction necessary to allow a superior court to review the case.

Reasonable doubt - An accused person is entitled to acquittal if, in the minds of the jury, his guilt has not been proved beyond a “reasonable doubt”. That state of mind of jurors in which they cannot say they feel an abiding conviction as to the truth of the charge.

Rebuttal - The introduction of contradicting or opposing evidence showing that what witnesses said occurred is not true, the stage of a trial at which such evidence may be introduced.

Redirect examination - Follows cross examination and is carried out by the party who, first examined the witness.

Remand - To send back. A disposition by an appellate court that results in sending the case back to the original court from which it came for further proceedings.

Reply - Pleading by the plaintiff in response to the defendant’s written answer.

Respondent - 1. Party against whom an appeal is brought in an appellate court. the prevailing party in the trial court case. 2. A juvenile offender.

Restitution - Act of giving the equivalent for any loss, damage of injury.

Rests the case - When a party concludes his presentation or evidence.

Reversal - Setting aside, annulling, vacating or changing to the contrary the decision of a lower court or other body.

Service - Delivery of a legal document to the opposite party.

Set aside - Annul or void as in “setting aside” a judgment.

Settlement - 1. Conclusion of a legal matter. 2. Compromise agreement by opposing parties in a civil suit before judgment is made, eliminating the need for the judge to resolve the controversy.

Settlement conference - A meeting between parties of a lawsuit, their counsel and a judge to attempt a resolution of the dispute without trial.

Statute - A law created by the Legislature.

Statute of limitations - Law which specifies the time within which parties must take judicial action to enforce their rights.

Stay - Halting of a judicial proceeding by order of the court.

Stipulation - Agreement by the attorneys or parties on opposite sides of a case regarding any matter in the trial proceedings.

Subpoena - Document issued by the authority of the court to compel a witness to appear and give testimony or produce documentary evidence in a proceeding. Failure to appear or produce is punishable by contempt of court.

Subpoena duces tecum - “Under penalty you shall take it with you.” A process by which the court commands a witness to produce specific documents or records in a trial.

Suit - Any court proceeding in which an individual seeks a decision.

Summons - Document or writ directing the sheriff or other officer to notify a person that an action has been commenced against him in court and that he is required to appear, on a certain day, and answer the complaint in such action.

Testimony - Any statement made by a witness under oath in a legal proceeding.

Tort - An injury or wrong committed, with or without force, to the person or property of another, which gives rise to a claim for damages.

Transcript - The official record or proceedings in a trial or hearing, which is kept by the clerk.

Trial - The presentation of evidence in court to a trier of facts who applies the applicable law to those facts and then decides the case

Trier of facts - The jury or, in a non-jury trial, the judge, or an administrative body.

Venue - The specific county, city or geographical area in which a court has jurisdiction.

Verdict - Formal decision made by a judge or jury (trier of facts).

Voir dire - (pronounced “vwar-deer”) - “To speak the truth.” The process of preliminary examination of prospective jurors, by the court or attorneys, regarding their qualifications.

Willful act - An intentional act carried out without justifiable cause.

Witness - Person who testifies under oath before a court, regarding what he/she has seen, heard or otherwise observed.

Writ - A special, written court order directing a person to perform, or refrain from performing, a specific act.

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