Litigation Glossary

This litigation glossary was prepared by the law firm of Michael T. Chulak & Associates for non-attorneys to assist them in understanding the litigation process and the terms used in litigation. This litigation glossary is general legal information only and is not intended to be legal advice. If you need legal advice, you should consult with an attorney licensed in your state.


Act of God

is an act that takes place exclusively by forces of nature, uncontrolled and uninfluenced by man. Examples are earthquakes, lightning and tornados.

Adjucation

is the formal pronouncement of a court in the form of a judgment or decree.

Admissible Evidence
 
Admissible Evidence is any testimonial, documentary, or tangible evidence that may be introduced to a factfinder - a judge or jury - to establish or to bolster a point put forth by a party to the proceeding. For evidence to be admissible, it must be relevant, without being unfairly prejudicial, and it must have some indicia of reliability. The general rule is that all relevant evidence is admissible and all irrelevant evidence is inadmissible
 
Admission

is the acknowledgement of a party to a lawsuit of the truth of certain facts that are inconsistent with his or her claims, or helpful to the party requesting the admission.

Affirmative Defense

is a response to the plaintiff’s claim that attacks the plaintiff’s legal right to bring the action as opposed to attacking the truth of the claim. Examples are failure to mitigate, consent, estoppel, and statute of limitations.

Allegation

is a claim made by a party in a pleading setting forth what he or she intends to prove.

Alternative Dispute Resolution (ADR)

refers to the alternatives of mediation or arbitration, as opposed to litigation, to settle disputes. Some contracts and statutes require the use of ADR.

American Rule

is that attorney’s fees are not awardable to the prevailing party in a lawsuit unless authorized by a contract signed by the parties or a statute. The effect is that both parties must often pay their own attorney’s fees.

Answer

is the response by a defendant to a plaintiff’s complaint denying all or a part of the plaintiff’s allegations.

Appeal

is a written request to a higher court to modify or reverse the judgment of a lower court. Generally, an appellate court will accept as true all of the facts that the trial court found to be true, and decides only whether an error was made in applying the law.

Arbitration

is a fast, confidential and economical way to settle most disputes outside the courtroom. It is a process by which parties submit their dispute to an informed neutral third party (the arbitrator) who is empowered to render a binding decision.

Attorney’s Lien

is the right of an attorney to a claim against the money or property of a client to compensate the attorney for legal services provided.

Bench Trial

is a trial before a judge without a jury.

Bifurcate

is to divide the issues in a case so that one issue, or set of issues, can be tried before the others. For example, the issue of liability may be tried first and afterwards, the issue of damages.

Brief

is a written argument presented to a court for the purpose of providing “information” and persuading. It includes a summary of the facts, the relevant law, and an argument of how the law applies to the facts.

Cause of Action

Declarant means the person or persons who signed are established the CC&Rs. This is nearly always the builder.

Common Law

is the body of law established by judicial decisions as opposed to law created by legislation. It originated in England and the American Colonies before the Declaration of Independence.

Complaint

is the initial pleading filed by a plaintiff. It sets forth the claims of the plaintiff and the remedy sought. The complaint, together with the summons, is served on the defendant.

Contribution

refers to the right to recover from another who is jointly liable.

Cross-complaint

is a claim made by a defendant against a plaintiff or another party alleged to be liable whether or not the person is already a party to the lawsuit.

Cross-examination

is the examination of any witness who testified against that witness on direct examination. The opportunity to cross-examine a witness takes place as soon as the witness completes his or her direct testimony. The primary purposes of cross-examination are to get the witness to say something favorable to your side, or to impeach or cast doubt on the witness.

Damages

is money awarded by a court to compensate an injured party. There are several definitions or types of damages that sometimes overlap.

Damages – Compensatory

are also called actual damages and are intended to restore the party to the position he or she was in prior to the injury. Compensatory damages commonly include property damage, medical costs and lost income.

Damages – General

are damages intended to cover those types of injuries for which it is extremely difficult to calculate an exact dollar amount. General damages commonly include pain and suffering, loss of a loved one, loss of reputation and a shortened life expectancy.

Damages – Nominal

are commonly only one dollar. Nominal damages are awarded when the law requires an award, but there are no significant damages.

Damages – Punitive

or exemplary damages are awarded over and above special and general damages to punish a losing party’s malicious or intentional misconduct

Damages – Special

are out-of-pocket costs.

Demurrer

is an allegation by a defendant that the complaint does not set forth a cause of action upon which relief can be granted by the court. It admits for the purpose of testing the complaint that all facts asserted are true, but not the conclusions of law.

Deposition

is the oral testimony of a witness under oath, but not in court. It is part of the discovery process. A transcript is made of the deposition for use before and during the trial.

Direct Examination

is the initial questioning of a party or witness at trial by the side that called him or her to testify. The purpose is to explain your version of the facts to the judge or jury.

Discovery

refers to the pre-trial practice of obtaining facts about the case from the other party and other witnesses in order to prepare for trial. Discovery consists of taking depositions, requests for production of documents, interrogatories, requests for admission, permission to inspect property, and physical and mental examinations. It is an investigatory process governed by court rules.

Dismissal

is an order or judgment of the court disposing of a lawsuit without a trial. A dismissal may be voluntary or involuntary.

Evidence

consists of testimony, written materials and objects that are presented in court to prove the existence or nonexistence of a fact. Evidence may be direct evidence such as the testimony of an eyewitness. It may also be indirect evidence or circumstantial evidence which is based on logical inference.

Evidence Rules

are written rules that govern the admissibility of evidence in a court. There are both Federal Rules of Evidence and state codes such as the California Evidence Code.

Expert Witness

A person who is qualified to testify as an expert if he or she has special knowledge, skill, experience, training, or education sufficient to qualify as an expert on the subject to which his or her testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.

A witness' special knowledge, skill, experience, training, or education may be shown by any otherwise admissible evidence, including his or her own testimony.

A witness testifying as an expert may be cross-examined to the same extent as any other witness and, in addition, may be fully cross-examined as to his or her qualifications, the subject to which his or her expert testimony relates, and the matter upon which his or her opinion is based and the reasons for his or her opinion.

If a witness testifying as an expert testifies in the form of an opinion, he or she may not be cross-examined in regard to the content or tenor of any scientific, technical, or professional text, treatise, journal, or similar publication unless any of the following occurs:

  • The witness referred to, considered, or relied upon such publication in arriving at or forming his or her opinion.


  • The publication has been admitted in evidence.


  • The publication has been established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, relevant portions of the publication may be read into evidence but may not be received as exhibits.

The compensation and expenses paid or to be paid to an expert witness by the party calling him or her is a proper subject of inquiry by any adverse party as relevant to the credibility of the witness and the weight of his or her testimony.

The court may, at any time before or during the trial of an action, limit the number of expert witnesses to be called by any party.

Fact

is an actual happening, event or thing done.

Forseeability

is the reasonable anticipation that injury or harm will likely result from certain acts or failure to act. In tort law, forseeability is an element of causation.

Independent Contractor

is a worker hired to do a specific job over which the employer has no right to control the manner in which the work is done. The worker is generally licensed and offers services to the public. Independent contractors establish their own hours and receive no training. Independent contractors are free to assign work to others, if they determine to do so.

Injunction

is an order of a court that a party do something or refrain from doing something. It is intended to prevent harm. Injunctions may be temporary, pending trial (preliminary injunctions) or may be permanent injunctions ordered after trial.

Injury

is any wrong or damage done to another person, his property, rights or reputation.

Judgment Creditor

is the person in whose favor a money judgment has been entered by a court.

Judgment Debtor

is the person against whom a money judgment has been entered by a court.

Judgment

is the official, final decision of a court after determining the rights and obligations of the parties. The term “judgment” also includes “decision” and “decree.”

Lis Pendens

is a notice filed with the court and recorded in the county recorder’s office by the plaintiff declaring that a lawsuit has been filed claiming a right to title or possession to specific real property. The purpose is to notify anyone dealing with the property that a claim exists that may affect them adversely.

Malicious Prosecution

exists when a plaintiff files suit or continues a suit without probable cause to believe the claims can be proven. A plaintiff that takes part in malicious prosecution can be held liable for damages caused.

Mandatory Settlement Conference

is a settlement conference ordered by the judge requiring the parties and attorneys to appear in court for the purpose of attempting to settle a case.

Mediation

is a fast, confidential and economical way to settle most disputes. It is a process by which parties submit their dispute to an informed neutral third party (the mediator) who works with them to reach a settlement.

Motion in Limine

is a pretrial motion requesting the court to prohibit the opposing lawyer from referring to or providing evidence that is highly prejudicial, irrelevant or inadmissible.

Motion

is an application to the court for the purpose of obtaining a ruling or order.

Order

is a command by the court, following a hearing, requiring a party to do something or refrain from doing something.

Order to Show Cause (OSC)

is an order from a judge that directs a party to appear in court to argue why the judge shouldn’t grant an action proposed by the opposing side or by the judge.

Party

to an action is a person designated as a plaintiff or defendant.

Petition

is a formal written application to a court requesting judicial action.

Petitioner

is the plaintiff for certain types of lawsuits such as divorces.

Pleadings

are the formal allegations of the plaintiff and defendant as to their claims and defenses. The purpose of pleadings are to provide notice to the opposition as to what should be expected at trial. The pleadings include the complaint and answer to the complaint.

Preponderance of the Evidence

is the standard of proof in civil cases. It is evidence that is of greater weight or more convincing that the opposing evidence.

Pre-trial Conference

is a conference called by the court prior to trial for the purpose of narrowing the trial issues, to secure stipulations and to take any other steps that will assist in the disposition of the case.

Prevailing Party

is the party who prevails on the main issue. The party who successfully prosecutes or defends. Some statutes award attorney’s fees to the prevailing party.

Prima Facie

means presumed to be true unless disproved by contrary evidence.

Pro Per

is Latin meaning “for one’s self.” It is used to describe a person who is representing himself or herself in court, without a lawyer.

Pro Se

is Latin meaning “for himself.” It has the same meaning as pro per.

Proof

is the establishment of a fact by evidence or the effect of evidence.

Quantum Meruit

refers to the reasonable value of services provided.

Relevant Evidence

is evidence that tends to prove or disprove an alleged fact. Evidence is relevant if it tends to make the existence of a material fact more likely or probable.

Request For Admissions

is a discovery procedure in which a party asks another party to admit or deny that certain facts are true. If the opposing party fails to respond in a timely manner, the facts will be deemed true for purposes of the trial.

Res Judicata

means “the thing has been decided.”

Stare Decisis

is the doctrine that court decisions should stand as precedent for future cases.

Status Conference

is a court-ordered conference where the attorneys appear before the judge to report on the status of the case. There may be one or more status conferences prior to trial.

Statute of Limitations

refers to the time limit for filing a lawsuit. Statutes of limitation differ depending on the type of claim and state. If a claim is not filed timely, it will be banned from being filed.

Strict Liability

refers to the doctrine of liability without fault or negligence. One who sells a defective product that is unreasonably dangerous to the use or his property is subject to strict liability for the harm caused.

Subpoena Duces Tecum

is a type of subpoena, or court order, issued at the request of a party to a lawsuit requiring a witness to produce specified documents at a deposition or trial.

Subpoena or Subpena (modern spelling)

is a court order issued at the request of a party to a lawsuit requiring a witness to appear in court.

Summary Judgment

A Motion for Summary Judgment is a procedural device designed to end a case without trial when there is no dispute concerning material facts, the only dispute being questions of law. The motion can be directed toward all of a portion of the claim. If the motion is successful, it results in a summary judgment.

Summons

Upon the filing of a complaint, the clerk of the court issues a Summons and delivers it for service to a person appointed to serve it on the defendant. It notifies the defendant that an action has been filed against him of her in the court from which the process issues and that he or she is required to respond.

Temporary Restraining Order

is a short term, emergency order of a court issued only in extraordinary circumstances and only until a trial court can hear the matter. Is it intended to maintain the status quo pending a hearing for an injunction.

Tort

is a private or civil wrong for which a court will provide a remedy. It may be an intentional act or negligence that results in some form of injury.

Trier of Fact
 
The Trier of Fact determines facts in a legal proceeding. In a jury trial, a jury is the trier of fact. In a bench trial, the judge is the trier of fact.
 
Verdict

is the formal decision or finding made by a jury.


 
 
 
 
 
 
 
 

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