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Glossary of Legal Terms
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- abandoned property –
over which the owner has given up dominion and control with no intention
of recovering it.
- acquittal - Criminal Law
The legal and formal certification of the innocence of a person who has
been charged with crime; a deliverance or setting free a person from a
charge of guilt; finding of not guilty. Acquittals
in fact are those which take place when the jury, upon trial,
finds a verdict of not guilty. Acquittals
in law are those which take place by mere operation of law; as
where a man has been charged merely as an accessory, and the principal has
- adjudicate - To settle in the exercise
of judicial authority. To determine finally.
- affidavit - A written or
printed declaration or statement of facts, made voluntarily, and confirmed
by the oath or affirmation of the party making it, taken before a person
having authority to administer such oath or affirmation.
- aggravated assault – A person is guilty of aggravated assault if he:
attempts to cause serious bodily injury to another, or causes such injury
purposely, knowingly or recklessly under circumstances manifesting extreme
indifference to the value of human life; or, attempts to cause or
purposely or knowingly cause bodily injury to another with a deadly
- aid and abet - Help, assist, or facilitate the commission of a crime,
promote the accomplishment thereof, help in advancing or bringing it
about, or encourage, counsel, or incite as to its commission. It
comprehends all assistance rendered by words, acts, encouragement,
support, or presence, actual or constructive, to render assistance, if
- a.k.a. - also known as
- alternative dispute resolution - Term refers
to procedures for settling disputes by means other than litigation; e.g.,
by arbitration, mediation, mini-trials. Such procedures, which are usually
less costly and more expeditious, are increasingly being used in
commercial and labor disputes, divorce actions, in resolving motor vehicle
and medical malpractice tort claims, and in other disputes that would
likely otherwise involve court litigation.
- answer - Pleading The
response of a defendant to the plaintiff's complaint, denying in part or in
whole the allegations made by the plaintiff.
- appeal - Resort to a
superior (i.e. appellate)
court to review the decision of an inferior (i.e. trial) court or
- arraignment - Procedure
whereby the accused is brought before the court to plead to the criminal
charge against him in the indictment or information. The charge is read to
him and he is asked to plead "guilty" or "not guilty."
- assault - Any willful attempt or threat to inflict injury
upon the person of another, when coupled with an apparent present ability
so to do, and any intentional display of force such as would give the
victim reason to fear or expect immediate bodily harm, constitutes an
assault. An assault may be committed without actually touching, or
striking, or doing bodily harm, to the person of another. Frequently used to describe illegal
force which is technically a battery. For crime of assault victim need not
be apprehensive of fear if the outward gesture is menacing and defendant
intends to harm, though for tort of assault, element of victim’s
apprehension is required. In some
jurisdictions degrees of the offense are established as first, second and
even third degree assault.
- attorney - Attorney at law Person
admitted to practice law in his respective state and authorized to perform
both civil and criminal legal functions for clients, including drafting of
legal documents, giving of legal advice, and representing such before
courts, administrative agencies, boards, etc.
- bail - v.To
procure release of one charged with an offense by insuring his future
attendance in court and compelling him to remain with jurisdiction of
amount for or condition of pretrial release from custody, normally set by
a judge at the initial appearance. The purpose of bail is to ensure the
return of the accused at subsequent proceedings. If the accused is unable
to make bail, or otherwise unable to be released on his or her own
recognizance, he or she is detained in custody. Bail bond. A
three-party contract which involves state, accused and surety under which
surety guarantees state that accused will appear at subsequent
- bailiff - A court officer or
attendant who has charge of a court session in the matter of keeping order
and custody of the jury.
- burden of proof - In the law of evidence, the necessity or duty of
affirmatively proving a fact or facts in dispute on an issue raised
between the parties in a cause.
- caption - The heading or
introductory part of a pleading, motion, deposition, or other legal
instrument which indicates the names of the parties, name of the court,
docket or file number, title of the action, etc.
- certified copy - A copy of a
document or record, signed and certified as a true copy by the officer to
whose custody the original is intrusted.
- change – An alteration; a modification or addition; substitution of one
thing for another. Exchange of money against money of a different
- change of venue - The removal of a suit begun in one county or district to
another county or district for trial, though the term is also sometimes
applied to the removal of a suit from one court to another court of the
same county or district. In criminal cases a change of venue will be
permitted if for example the court feels that the defendant cannot receive
a fair trial in a given venue because of prejudice. In civil cases a
be permitted in the interests of justice or for the convenience of the
- clean hands
doctrine - Under this
doctrine, equity will not grant relief to a party, who, as actor, seeks to
set judicial machinery in motion and obtain some remedy, if such party in
prior conduct has violated conscience or good faith or other equitable
principle. Franklin v. Franklin, 365 Mo. 442, 283 S.W.2d 483, 486. One seeking equitable relief
cannot take advantage of one’s own wrong. Fair Automotive Repair, Inc. v.
Car-X Service Systems, Inc., 2 Dist., 128
Ill.App.3d 763, 84 Ill.Dec. 25, 471 N.E.2d 554, 558.
- clerk - Officer of court
who files pleadings, motions, judgments, etc., issues process, and keeps
records of court proceedings. A law
clerk assists an attorney or judge with legal research, brief
writing, and other legal tasks. Is commonly a recent law school graduate
or law student.
- codicil - A supplement or an
addition to a will; it may explain, modify, add to, subtract from,
qualify, alter, restrain or revoke provisions in existing will.
- compel –
To urge forcefully; under extreme pressure.
- complaint - The original or
initial pleading by which an action is commenced under codes or Rules of
Civil Procedure. Such complaint (whether it be the original claim,
counterclaim, cross-claim, or third-party claim) shall contain: (1) a
short and plain statement of the grounds upon which the court's
jurisdiction depends, unless the court already has jurisdiction and the
claim needs no new grounds of jurisdiction to support it, (2) a short and
plain statement of the claim showing that the pleader is entitled to
relief, and (3) a demand for judgment for the relief to which he deems
himself entitled. The complaint, together with a summons, is required to
be served on the defendant. In criminal law, a charge, preferred before a
magistrate having jurisdiction, that a person
named (or an unknown person) has committed a specified offense, with an
offer to prove the fact, to the end that a prosecution may be instituted.
- conclude - To finish; determine; to estop; to prevent.
- concurrent sentences - Two or more terms
of imprisonment, all or part of each term of which is served
simultaneously and the prisoner is entitled to discharge at the expiration
of the longest term specified.
- conflict of interest - Term used
in connection with public officials and fiduciaries and their relationship
to matters of private interest or gain to them. Ethical problems connected
therewith are covered by statutes in most jurisdictions and by federal statutes
on the federal level. The Code of Professional Responsibility and Model
Rules of Professional Conduct set forth standards for actual or potential
conflicts of interest between attorney and client. Generally, when used to
suggest disqualification of a public official from performing his sworn
duty, term "conflict of interest" refers to a clash between
public interest and the private pecuniary interest of the individual
concerned. A conflict of interest arises when a government employee's personal
or financial interest conflicts or appears to conflict with his official
- conformed copy - An exact copy of a
document on which has been written explanations of things that could not
or were not copied; e.g.
written signature that might be replaced on conformed copy with notation
that it was signed by the person whose signature appears on the original.
- consecutive sentences - When one sentence
of confinement is to follow another in point of time, the second sentence
is deemed to be consecutive.
- conservator - A guardian;
protector; preserver. Person appointed by a court to manage the estate of
one who is unable to manage property and business affairs effectively.
- consolidation of actions - The act or process of uniting several actions into one
trial and judgment, by order of a court, where all the actions are between
the same parties, pending in the same court, and involving substantially
the same subject-matter, issues, and defenses; or the court may order that
one of the actions be tried, and the others decided without trial
according to the judgment in the one selected.
- contempt of court - Any act which is
calculated to embarrass, hinder, or obstruct court in administration of
justice, or which is calculated to lessen its authority or its dignity.
Contempts are, generally, of two kinds, direct and constructive. Direct
contempts are those committed in the immediate view and presence of the
court (such as insulting language or acts of violence) or so near the
presence of the court as to obstruct or interrupt the due and orderly
course of proceedings. Constructive (or indirect) contempts are those
which arise from matters not occurring in or near the presence of the
court, but which tend to obstruct or defeat the administration of justice,
and the term if chiefly used with reference to the failure or refusal of a
party to obey a lawful order, injunction, or decree of the court laying
upon him a duty of action or forbearance. A court of the United States has
power to punish by fine or imprisonment.
- contested case - A court or
administrative proceeding that is opposed by another party or interested
- contract - An agreement
between two or more persons which creates an obligation to do or not to do
a particular thing.
- conviction - In a general
sense, the result of a criminal trial which ends in a judgment or sentence
that the accused is guilty as charged. Summary
conviction The conviction of a person usually for a minor
misdemeanor), as the result of his trial before a magistrate or court,
without a jury.
- corroborate - To
strengthen; to add weight or credibility to a thing by additional and
confirming facts or evidence. The testimony of a witness is said to be
corroborated when it is shown to correspond with the representation of
some other witnesses, or to comport with some facts otherwise known or
- counsel of record - Attorney whose appearance has been filed with court
- counsel, right to - Constitutional right of criminal defendant to court
appointed attorney if he is financially unable to retain private counsel;
guaranteed by Sixth and Fourteenth Amendments to U.S. Constitution, and as
well by court rule and statute. Such right to counsel exists with respect
to felonies; misdemeanors when the sentence is to a jail term, and to
juvenile delinquency proceedings. The extent of this right extends from
the time that judicial proceedings have been initiated against the
accused, whether by way of formal charge, preliminary hearing, indictment,
information, or arraignment, through to sentencing and appeal. There is no
absolute right to appointed counsel in postconviction proceedings.
- count - In pleading, the
plaintiff's statement of a cause of action; a separate and independent
claim. Used also to signify the several parts of an indictment, each
charging a distinct offense. "Count" and "charge" when
used relative to allegations in an indictment or information are
- counterclaim - A claim
presented by a defendant in opposition to or deduction from the claim of
- court administrator - Generally, a non-judicial officer whose responsibility is
the administration of the courts as to budgets, juries, judicial
assignments, calendars and non-judicial personnel.
- court reporter - A person who transcribes by shorthand, stenographically
takes down, or electronically records testimony during court proceedings,
or at trial related proceedings such as depositions.
- custody of children - The care, control and maintenance of a child which may be
awarded by a court to one of the parents as in a divorce or separation
custody is where child lives with each parent part of the year
with reciprocal visitation privileges; in divided custody, parent with
whom child is living has complete control over child during that period. Joint custody
involves both parents sharing responsibility and authority with respect to
the children; it may involve joint "legal" custody and joint
"physical" custody. Such includes physical sharing of child in
addition to both parents participating in decisions affecting child's
education, medical problems, recreation, etc; "joint custody"
does not mean fifty-fifty sharing of time, since each case depends on
child's age, parent's availability and desires, and other factors. Temporary custody
Awarding of custody of a child to a parent temporarily, pending the
outcome of a separation or divorce action. Uniform Child Custody Jurisdiction Act
A uniform law adopted in all states to deal with multi-state child custody
and visitation disputes.
- default-judgment - Judgment entered against a party who has failed to defend
against a claim that has been brought by another party. Under Rules of
Civil Procedure, when a party against whom a judgment for affirmative
relief is sought has failed to plead (i.e.
answer) or otherwise defend, he is in default and a judgment by default
may be entered either by the clerk or the court.
- defendant - The person
defending or denying; the person against whom relief or recovery is sought
in an action or suit or the accused in a criminal case.
- de novo trial - Trying a matter
anew; the same as if it had been heard before and as if no decision had
been previously rendered.
- deposition - The testimony of a
witness taken upon oral question or written interrogatories, not in open
court, but in pursuance of a commission to take testimony issued by a
court, or under a general law or court rule on the subject, and reduced to
writing and duly authenticated, and intended to be used in preparation and
upon the trial of a civil action or criminal prosecution.
- directed verdict - In a case in which
the party with the burden of proof has failed to present a prima facie
case for jury consideration, the trial judge may order the entry of a
verdict without allowing the jury to consider it, because, as a matter of
law, there can be only one such verdict. A directed verdict may be granted
either on the court's own initiative or on the motion of a party.
- direct examination - The first interrogation or examination of a witness, on
the merits, by the party on whose behalf he is called. The first
examination of a witness upon a matter that is not within the scope of a
previous examination of the witness.
- discovery - In a general
sense, the ascertainment of that which was previously unknown. Trial
practice The pre-trial devices that can be used by one
party to obtain facts and information about the case from the other party
in order to assist the party's preparation for trial. In criminal
proceedings, "discovery" emphasizes right of defense to obtain
access to evidence necessary to prepare its own case.
- dismissal - An order or
judgment finally disposing of an action, suit, motion, etc., without trial
of the issues involved.
- dismissal without prejudice - Term
meaning dismissal without prejudice to the right of the complainant to sue
again on the same cause of action.
- dismissal with prejudice - Term meaning an
adjudication on the merits, and final disposition, barring the right to
bring or maintain an action on the same claim or cause.
- disposition - The final
settlement of a matter, and with reference to decisions announced by
court, judge's ruling is commonly referred to as disposition, regardless
of level of resolution. In a criminal procedure, the sentencing or other
final settlement of a criminal case.
- divorce - The legal
separation of man and wife, effected by the judgment or decree of a court,
and either totally dissolving the marriage relation, or suspending its
effects so far as concerns the cohabitation of the parties.
- double jeopardy - Fifth Amendment guarantee, enforceable against states
through Fourteenth Amendment, protects against second prosecution for same
offense after acquittal or conviction, and against multiple punishments
for same offense.
- doubt - Uncertainty of
mind; the absence of a settled opinion or conviction; the attitude of mind
towards the acceptance of or belief in a proposition, theory, or
statement, in which the judgment is not at rest but inclines alternately
to either side. Reasonable
doubt This is a term often used, probably quite well
understood, but not easily defined. It does not mean a mere possible
doubt, because everything relating to human affairs, and depending on
moral evidence, is open to some possible or imaginary doubt. It is that
state of the case which, after the entire comparison and consideration of
all the evidence, leaves the minds of jurors in that condition that they
cannot say they feel an abiding conviction to a moral certainty of the
truth of the charge. Proof "beyond a reasonable doubt" is not
beyond all possible or imaginary doubt, but such proof as precludes every
reasonable hypothesis except that which it tends
to support. A "reasonable doubt" is such a doubt as would cause a reasonable and prudent man in the graver and
more important affairs of life to pause and hesitate to act upon the truth
of the matter charged.
- duces tecum - (Lat. Bring with you.) The name of certain species of
writs, of which the subpoena
duces tecum is the most usual, requiring a party who is
summoned to appear in court to bring with him some document, piece of
evidence, or other thing to be used or inspected by the court.
- due process of
law - Law in its regular course of administration through courts
of justice. A course of legal proceedings according to those rules and
principles which have been established in our systems of jurisprudence for
the enforcement and protection of private rights.
- et al. - An abbreviation for et
alii, "and others."
- et seq. - An abbreviation for et
sequentes (masculine and femine plural) or et sequentia (neuter),
"and the following." Thus a reference to "p. 1, et seq."
means "page first and the following pages."
- et ux - An abbreviation for ex
- evidence - Any species of
proof, or probative matter, legally presented at the trial of an issue, by
the act of the parties and through the medium of witnesses, records,
documents, exhibits, concrete objects, etc., for the purpose of inducing
belief in the minds of the court or jury as to their contention.
- execution - Carrying out some
act or course of conduct to its completion. Execution upon a money
judgment is the legal process of enforcing the judgment, usually by
seizing and selling property of the debtor. Writ of execution Formal process
issued by court generally evidencing the debt of the defendant to the
plaintiff and commanding the officer to take the property of the defendant
in satisfaction of the debt.
- executor - A person appointed
by a testator to carry out the directions and requests in his will, and to
dispose of the property according to his testamentary provisions after his
decease. "Personal representative" includes
- executrix - A female executor.
- exhibit - n. A paper or
document produced and exhibited to a court during a trial or hearing, or
to a person taking depositions, or to auditors, arbitrators, etc., as a
voucher, or in proof of facts, or as otherwise connected with the
subject-matter, and which, on being accepted, is marked for identification
and annexed to the deposition, report, or other principal document, or
filed of record, or otherwise made a part of the case. Paper, document,
chart, map, or the like, referred to and made a part of an affidavit,
pleading or brief. An item of physical/tangible evidence which is to be or
has been offered to the court for inspection.
- exoneration - The removal
of a burden, charge, responsibility, or duty.
- ex parte - On one side only; by or for one party; done for, in behalf
of, or on the application of, one party only. A judicial proceeding,
order, injunction, etc., is said to be ex
parte when it is taken or granted at the instance and for the
benefit of one party only, and without notice to, or contestation by, any
person adversely interested.
- expert - One who is knowledgeable in specialized field, that
knowledge being obtained from either education or personal experience.
- expungement of record - Process by which
record of criminal conviction is destroyed or sealed after expiration of
- extradition - The
surrender by one state or country to another of an individual accused or
convicted of an offense outside its own territory and within the
territorial jurisdiction of the other, which being competent to try and
punish him, demands the surrender.
- felony - A crime of a
graver or more serious nature than those designated as misdemeanor; e.g.
aggravated assault (felony) as contrasted with simple assault
(misdemeanor). Under many state statutes, any offense punishable by death
or imprisonment for a term exceeding one year.
- garnishment - A proceeding
whereby a plaintiff creditor, i.e.,
garnishor, seeks to subject to his or her claim the property
or money of a third party, i.e.,
garnishee, owed by such party to defendant debtor, i.e.,
- Green River ordinance - Type of
local licensing law which protects persons from unwanted peddlers and
salespersons who call on homes and business establishments.
- guardian - A person lawfully
invested with the power, and charged with the duty, of taking care of the
person and managing the property and rights of another person, who, for
defect of age, understanding, or self-control, is considered incapable of
administering his own affairs. One who legally has responsibility for the
care and management of the person, or the estate, or both, of a child
during its minority.
- guilty plea - Formal admission
in court as to guilt of having committed criminal act charged which a
defendant may make if he or she does so intelligently and voluntarily, i.e., accused
can only make such plea after he or she has been fully advised of rights
and court has determined that accused understands such rights and is
making plea voluntarily. It is equivalent to and is binding as a
conviction after trial on the merits, and it has the same effect in law as
a verdict of guilty and authorizes imposition of punishment prescribed by
- habeas corpus - Lat. (You have the body.) The name given to a variety of
writs (of which there were anciently the emphatic words), having for their
object to bring a party before a court or judge. The primary function of
the writ is to release from unlawful imprisonment. The office of the writ
is not to determine prisoner's guilt or innocence, and only issue which it
presents is whether prisoner is restrained of his liberty by due process.
- hearing - A proceeding of
relative formality, generally public, with definite issues of fact or of
law to be tried, in which witnesses are heard and evidence presented.
- hearsay - A term applied to
that species of testimony given by a witness who relates, not what he
knows personally, but what others have told him, or what he has heard said
by others. The very nature of the evidence shows its weakness, and, as
such, hearsay evidence is generally indadmissable unless it falls within
one of the many exceptions which provides for admissibility.
- hung jury – A jury so
irreconcilably divided in opinion that they cannot agree upon any verdict
by the required unanimity.
- importunity – Pressing solicitation; urgent request; application
for a claim or favor which is urged with troublesome frequency or
- in camera - In chambers; in private. A judicial proceeding is said to heard in
camera either when the hearing is had before the judge in his
private chambers or when all spectators are excluded from the courtroom.
- incapacitated person - Any person
who is impaired by reason of mental illness, mental deficiency, physical
illness or disability, advanced age, chronic use of drugs, chronic
intoxication, or other cause (except minority) to the extent that he lacks
sufficient understanding or capacity to make or communicate responsible
decisions concerning his person.
- in custody - A suspect is
"in custody" for purpose of determining necessity of Miranda
warnings if police, by word or conduce, have manifested to suspect that he
is not free to leave.
- indictment - An accusation in
writing and presented by a grand jury, legally convoked and sworn, to the
court in which it is impaneled, charging that a person therein named has
done some act, or been guilty of some omission, which by law is a public
offense, punishable on indictment.
- indigent defendant - A person
indicted or complained of who is without funds or ability to hire a lawyer
to defend him is, in most instances, entitled to appointed counsel to
represent him at every stage of the criminal proceedings, through appeal,
consistent with the protection of the Sixth and Fourteenth Amendments to
- in forma pauperis - In the character or manner of a pauper. Describes permission
given to a poor person (i.e.
indigent) to proceed without liability for court fees or
- information - An
accusation exhibited against a person for some criminal offense, without
an indictment. An accusation in the nature of an indictment, from which it
differs only in being presented by a competent public officer on his oath
of office, instead of a grand jury on their oath.
- infraction - A breach,
violation, or infringement; as of a law, a contract, a right or duty. A
violation of a statute for which the only sentence authorized is a fine
and which violation is expressly designated as an infraction.
- injunction - A court order
prohibiting someone from doing some specified act or commanding someone to
undo some wrong or injury.
- in limine – On or at the threshold; at the very
beginning; preliminarily. Any motion, whether used before or during trial,
by which exclusion is sought of anticipated prejudicial evidence.
- inquest - The inquiry by a
coroner or medical examiner, sometimes with the aid of a jury, into the
manner of the death of any one who has been killed, or has died suddenly
under unusual or suspicious circumstances, or by violence, or while in
- in re - In the affair; in the matter of; concerning, regarding.
This is the usual method of entitling a judicial proceeding in which there
are not adversary parties, but merely some res concerning which judicial
action is to be taken, such as a bankrupt's estate, an estate in probate
court, a proposed public highway, etc.
- inter alia – Among
other things. A term anciently used in pleading, especially in reciting
statutes, where the whole statute was not set forth at length.
- interrogatories - A set or
series of written questions drawn up for the purpose of being propounded
to a party, witness, or other person having information or interest in the
- intestate - To die without a
will. A person is said to die intestate when he dies without making a
will, or dies without leaving anything to testify what his wishes were
with respect to the disposal of his property after his death. Under such
circumstances, state law prescribes who will receive the decedent's
property. The laws of intestate succession generally favor the surviving
spouse, children, and grandchildren and then move to parents and grandparents
and to brothers and sisters.
- joint and several liability - Describes the liability of copromisors of the same
performance when each of them, individually, has the duty of fully
performing the obligation, and the obligee can sue all or any of them upon
breach of performance.
- joint tenancy – An estate in fee-simple,
fee-tail, for life, for years, or at will, arising by purchase or grant to
two or more persons. Joint tenants have one and the same interest,
accruing by one and the same conveyance, commencing at one and the same
time, and held by one and the same undivided possession. The primary
incident of joint tenancy is survivorship, by which the entire tenancy on
the decease of any joint tenant remains to the survivors, and at length to
the last survivor. Type of ownership
of real or personal property by two or more persons in which each owns an
undivided interest in the whole and attached to which is the right of
survivorship. Single estate in property owned by two or more persons under one instrument or act. An estate held by two or
more persons jointly, each have an individual interest in the whole and an
equal right to its enjoyment during his or her life.
- jurisdiction – A term of comprehensive import
embracing every kind of judicial action. It is the power of the court to
decide a matter in controversy and presupposes the existence of a duly
constituted court with control over the subject matter and the parties.
Jurisdiction defines the powers of courts to inquire into facts, apply the
law, make decisions, and declare judgment. The legal right by which judges
exercise their authority. It exists when court has cognizance of class of
cases involved, proper parties are present, and point to be decided is
within powers of court. Power and authority of a court to hear and
determine a judicial proceeding; and power to render particular judgment
in question. The right and power of a court to adjudicate concerning the
subject matter in a given case. The term may have different meanings in
different contexts. Areas of
authority; the geographic area in which a court has power or types of
cases it has power to hear.
- jury - A certain number of men and women selected according to
law, and sworn
(jurati) to inquire of certain matters of fact, and declare
the truth upon evidence to be laid before them. Grand jury
Body of citizens, the number of whom varies from state to state, whose
duties consist in determining whether probable cause exists that a crime
has been committed and whether an indictment should be returned against
one for such a crime. It is an accusatory body and its function does not
include a determination of guilt. Petit
jury The ordinary jury for the trial
of a civil or criminal action; so called to distinguish it from the grand
- jury commissioner - An officer charged with the duty of selecting the names to
be put into the jury wheel, or of drawing the panel of jurors for a
particular term of court.
- jury instructions - A direction given
by the judge to the jury concerning the law of the case; a statement made
by the judge to the jury informing them of the law applicable to the case
in general or some aspect of it; an exposition or the rules or principles
of law applicable to the case or some branch or phase of it, which the
jury are bound to accept and apply.
- jury trial - Trial of matter or cause before jury as opposed to trial
- juvenile - A young person who
has not yet attained the age at which he or she should be treated as an
adult for purposes of criminal law.
- legal custody – Restraint of
or responsibility for a person according to law, such as a guardian’s
authority over the person or property, or both, of his ward.
- magistrate's courts - The jurisdiction
of these courts of limited jurisdiction differs from state to state. Such
may be divisions of courts of general jurisdiction, and may have
concurrent jurisdiction with other courts. Commonly their jurisdiction is
restricted to the handling of minor offenses, small claims or preliminary
- material – Important; more or less necessary;
having influence or effect; going to the merits; having to do with matter,
as distinguished from form. Representation relating to matter which is so substantial and important as to influence party to
whom made is “material.”
- may - Word
"may" usually is employed to imply permissive, optional or
discretional, and not mandatory.
- mediation - Private, informal
dispute resolution process in which a neutral third person, the mediator,
helps disputing parties to reach an agreement. The mediator has no power
to impose a decision on the parties.
- minor - An infant or
person who is under the age of legal competence. A term derived from the
civil law, which described a person under a certain age as less than so
many years. In most states, a person is no longer a minor after reaching
the age of 18 (though state laws might still prohibit certain acts until
reaching a greater age; e.g.
purchase of liquor).
- misdemeanor - Offenses
lower than felonies and generally those punishable by fine, penalty,
forfeiture or imprisonment otherwise that in penitentiary.
- mistrial – An erroneous,
invalid, or nugatory trial. A trial of an action which cannot stand in law
because of want of jurisdiction, or a wrong drawing of jurors, or
disregard of some other fundamental requisite before or during trial.
Trial which has been terminated prior to its normal conclusion. A device
used to halt trial proceedings when error is so prejudicial and
fundamental that expenditure of further time and expense would be wasteful
if not futile. The judge may declare a mistrial because of some
extraordinary event (e.g. death
of juror, or attorney), for prejudicial error that cannot be corrected at
trial, or because of a deadlocked jury. “Mistrial” is equivalent to no
trial and is a nugatory trial while “new trial” recognizes a completed
trial which for sufficient reasons has been set aside so that the issues
may be tried de novo.
- modification - A change;
an alteration or amendment which introduces new elements into the details,
or cancels some of them, but leaves the general purpose and effect of the
- moot - A subject for argument; unsettled; undecided.
A moot point is one not settled by judicial decisions.
- motion - An application
made to a court or judge for purpose of obtaining a rule or order
directing some act to be done in favor of the applicant.
- motion in limine - A pretrial motion
requesting court to prohibit opposing counsel from referring to or
offering evidence on matters so highly prejudicial to moving party that
curative instructions cannot prevent predispositional effect on jury.
- motion to suppress - Device used
to eliminate from the trial of a criminal case evidence which has been
secured illegally, generally in violation of the Fourth Amendment (search
and seizure), the Fifth Amendment (privilege against self incrimination),
or the Sixth Amendment (right to assistance of counsel, right to
confrontation etc.), of U.S. Constitution.
- nolle prosequi - A
formal entry upon the record, by the a plaintiff in a civil suit, or, more
commonly, by the prosecuting attorney in a criminal action, by which he
declares that he "will no further prosecute" the case, either as
to some of the defendants, or altogether. The voluntary withdrawal by the
prosecuting attorney of present proceedings on a criminal charge.
- Latin phrase meaning "I will not contest it"; a plea in a
criminal case which has a similar legal effect as pleading guilty. Type of
plea which may be entered with leave of court to a criminal complaint or
indictment by which the defendant does not admit or deny the charges,
though a fine or sentence may be imposed pursuant to it. The principal
difference between a plea of guilty and a plea of nolo contendere is that
the latter may not be used against the defendant in a civil action based
upon the same acts. As such, this plea is particularly popular in
antitrust actions (e.g. price fixing) where the likelihood of civil
actions following in the wake of a successful antitrust prosecution is
very great. A defendant may plead nolo contendere only with the consent of
the court. Such a plea shall be accepted by the court only after due
consideration of the views of the parties and the interest of the public
in the effective administration of justice.
- non-judicial day - Day on which process cannot
ordinarily issue or be executed or returned, and on which courts do not
- not guilty - Plea entered by the accused to criminal charge. If the
defendant refuses to plead, the court will enter a plea of not guilty.
Also, the form of the verdict in criminal cases where the jury acquits the
finds him "not guilty."
- nunc pro tunc - Lat. Now for then. A phrase applied to acts allowed to be
done after the time when they should be done, with a retroactive effect, i.e., with the
same effect as if regularly done.
- paternity suit - A court action to
determine whether a person is the father of a child born out of wedlock
for the purpose, commonly, of enforcing support obligations.
- per diem - By the day; an allowance or amount of
so much per day. Generally, as used in connection with compensation, wages
or salary, means pay for a day’s service.
- peremptory challenge - The right to
challenge a juror without assigning, or being required to assign, a reason
for the challenge. In most jurisdictions each party to an action, both
civil and criminal, has a specified number of such challenges and after
using all his peremptory challenges he is required to furnish a reason for
- plaintiff - A person who
brings an action; the party who complains or sues in a civil action and is
so named on the record. The prosecution (i.e. State or United States) in a
- plea bargaining - The process whereby the accused and the prosecutor in a
criminal case work out a mutually satisfactory disposition of the case
subject to court approval. It usually involves the defendant's pleading
guilty to a lesser offense or to only one or some of the counts of a
multi-count indictment in return for a lighter sentence than that possible
for the graver charge.
- power of attorney - An instrument in writing whereby one person, as principal,
appoints another as his agent and confers authority to perform certain
specified acts or kinds of acts on behalf of principal.
- preliminary hearing - The hearing by a
judge to determine whether a person charged with a crime should be held
for trial. Preliminary hearing before magistrate is, basically, a first
screening of the charge; its function is not to try the defendant, nor
does it require the same degree of proof or quality of evidence as is
necessary for an indictment or for conviction at trial. Its function is to
determine whether there is sufficient evidence to hold an accused for
- pre-nuptial agreement - One entered
into by prospective spouses prior to marriage but in contemplation and in
consideration thereof; by it, the property or other financial rights of
one or both of the prospective spouses are determined or are secured to
one or both of them or to their children.
- preponderance of evidence - As standard of proof in civil cases, is evidence which is
of greater weight or more convincing than the evidence which is offered in
opposition to it; that is, evidence which as a whole shows that the fact
sought to be proved is more probable than not. Preponderance of evidence
may not be determined by the number of witnesses, but by the greater
weight of all evidence, which does not necessarily mean the greater number
of witnesses, but opportunity for knowledge, information possessed, and
manner of testifying determines the weight of testimony.
- pre-sentence report - The report
prepared from the presentence investigation, which is designed to assist
the judge in passing sentence on a convicted defendant. Presentence reports
vary in scope and focus, but typically contain at least the following
items: (1) complete description of the situation surrounding the criminal
activity; (2) offender's educational background; (3) offender's employment
background; (4) offender's social history; (5) residence history of the
offender; (6) offender's medical history; (7) information about
environment to which the offender will return; (8) information about any
resources available to assist the offender; (9) probation officer's view
of the offender's motivations and ambitions; (10) full description of the
defendant's criminal record; and (11) recommendation as to disposition.
- presumption of innocence - A hallowed
principle of criminal law to the effect that the government has the burden
of proving every element of a crime beyond a reasonable doubt and that the
defendant has no burden to prove his innocence.
- pre-trial conference - Procedural
device used prior to trial to narrow issues to be tried, to secure
stipulations as to matters and evidence to be heard, and to take all other
steps necessary to aid in the disposition of the case.
- prima facie
evidence - Evidence good and sufficient on its face. Such evidence
as, in the judgment of the law, is sufficient to establish a given fact,
or the group or chain of facts constituting the party's claim or defense,
and which if not rebutted or contradicted, will remain sufficient.
- probable cause - Reasonable cause;
having more evidence for than against.
- probable cause hearing - That procedural
step in the criminal process at which the judge or magistrate decides
whether a complaint should issue or a person should be bound over to a
grand jury on a showing of probable cause.
- probate - Court procedure by
which a will is proved to be valid or invalid; though in current usage
this term has been expanded to generally refer to the legal process
wherein the estate of a decedent is administered. Generally, the probate
process involves collecting a decedent's assets, liquidating liabilities,
paying necessary taxes, and distributing property to heirs. These
activities are carried out by the executor or administrator of the estate,
usually under the supervision of the probate court or other court of
- probation - Sentence imposed
for commission of crime whereby a convicted criminal offender is released
into the community under the supervision of a probation officer in lieu of
incarceration. It is not a matter of right, but rather is an act of grace
and clemency available only to those defendants found eligible by the
court. In determining whether the defendant is entitled to a sentence of
probation, the court looks to such matters as the nature and circumstances
of the offense, the history and characteristics of the defendant, and the
need for the sentence imposed.
- pro bono - Lit. For the good; used to describe work or services (e.g. legal
services) done or performed free of charge.
- pro se - For one's own behalf; in person. Appearing for oneself, as
in the case of one who does not retain a lawyer and appears for himself in
- prosecuting attorney - The name of the
public officer who is appointed or elected in each judicial district,
circuit, or county, to conduct criminal prosecutions on behalf of the
State or people.
- protection order - Order issued by
court in domestic violence or abuse cases to, for example, protect spouse
from physical harm by other spouse or child from abuse by parent(s). Such
order may be granted immediately by court in cases where immediate and
present danger of violence or abuse is shown. Such emergency orders are
granted in ex parte type proceeding and are temporary in duration pending
full hearing by court with all parties involved.
- public defender - An attorney appointed by a court or employed by a
government agency whose work consists primarily in defending indigent
defendants in criminal cases.
- quash - To overthrow; to
abate; to vacate; to annul; to make void; e.g. to quash an indictment.
- quiet title action – A
proceeding to establish the plaintiff’s title to land by bringing into
court an adverse claimant and there compelling him either to establish his
claim or be forever after estopped from asserting it.
- reasonable cause - As basis for
arrest without warrant, is such state of facts as would lean man of
ordinary care and prudence to believe and conscientiously entertain honest
and strong suspicion that person sought to be arrested is guilty of
committing a crime.
- reasonable doubt - The standard used
to determine the guilt or innocence of a person criminally charged. To be
guilty of a crime, one must be proved guilty "beyond a reasonable
doubt." Reasonable doubt is such a doubt as would cause prudent men
to hesitate before acting in matters of importance to themselves.
- remand - To send back. The
act of an appellate court when it sends a case back to the trial court and
orders the trial court to conduct limited new hearings or an entirely new
trial, or to take some further action. When a prisoner is brought before a
judge on habeas corpus, for the purpose of obtaining liberty, the judge
hears the case, and either discharges him or remands him.
- remittitur - The procedural
process by which an excessive verdict of the jury is reduced. If money
damages awarded by a jury are grossly excessive as a matter of law, the
judge may order the plaintiff to remit a portion of the award.
- respondent - In appellate
practice, the party who contends against an appeal; the party against whom
the appeal is taken, i.e.
- restraining order - An order in the
nature of an injunction which may issue upon filing of an application for
an injunction forbidding the defendant from doing the threatened act until
a hearing on the application can be had. It is distinguishable from an
injunction, in that the former is intended only as a restraint until the
propriety of granting an injunction can be determined and it does no more
than restrain the proceeding until such determination.
- retainer - In the practice of
law, when a client hires an attorney to represent him, the client is said
to have retained the attorney. This act of employment is called the
retainer. The retainer agreement between the client and attorney sets
forth the nature of services to be performed, costs, expenses, and related
- retaining fee - A fee given to counsel on
engaging his services.
- satisfaction of judgment - A document such as
an execution enforced by the judgment creditor and indicating that the
judgment has been paid.
- search warrant - An order in
writing, issued by a justice or other magistrate, in the name of the
state, directed to a sheriff, constable, or other officer, authorizing him
to search for and seize any property that constitutes evidence of the
commission of a crime, contraband, the fruits of crime, or things
otherwise criminally possessed; or, property designed or intended for use
or which is or has been used as the means of committing a crime. A warrant
may be issued upon an affidavit or sworn oral testimony.
- seizure - The act of taking
possession of property, e.g.,
for a violation of law or by virtue of an execution of a judgment. The act
performed by an officer of the law, under the authority and exigence of a
writ, in taking into the custody of the law the property, real or
personal, of a person against whom the judgment of a competent court has
passed, condemning him to pay a certain sum of money, in order that such
property may be sold, by authority and due course of law, to satisfy the
- sentence - The judgment
formally pronounced by the court or judge upon the defendant after his
conviction in a criminal prosecution, imposing the punishment to be
inflicted, usually in the form of a fine, incarceration, or probation.
- sequester - v. To separate
or isolate; e.g.
to sequester jurors is to isolate them from contact with the public during
the course of a sensational trial.
- set aside – To reverse,
vacate, cancel, annul, or revoke a judgment, order, etc.
- settlement - Act or process of
adjusting or determining; an adjusting; an adjustment between persons
concerning their dealings or difficulties; an agreement by which parties
have disputed matters between them reach or ascertain what is coming from
one to the other; arrangement of difficulties; composure of doubts or
differences; determination by agreement; and liquidation.
- shall - As used in
statutes, contracts, or the like, this word is generally imperative or
- side-bar - Refers to position
at side of the judge's bench where trial counsel and judge discuss matters
out of hearing of jury.
- simple - Pure, unmixed; not compounded; not
aggravated; not evidenced by sealed writing or record. As to simple Assault; Average; Battery; Blockade; Bond; Confession;
Contract; Deposit; Imprisonment; Interest; Larceny; Obligation; and Trust.
- simple assault - An assault
unaccompanied by any circumstances of aggravation. A person is guilty of
simple assault if he (a) attempts to cause or purposely, knowingly or
recklessly causes bodily injury to another; or (b) negligently causes
bodily injury to another with a deadly weapon; or (c) attempts by physical
menace to put another in fear if imminent serious bodily injury. An
unlawful attempt coupled with present ability to commit violent injury on
person of another.
- small claims court - A special court which provides expeditious, informal, and
inexpensive adjudication of small claims. Jurisdiction of such courts is
usually limited to collection of small debts and accounts. Proceedings are
very informal with parties normally representing themselves.
- statute - n. A formal
written enactment of a legislative body, whether federal, state, city, or
- stay - n. A stopping;
the act of arresting a judicial proceeding by the order of a court. A stay
is a suspension of the case or some designated proceedings within it.
- stipulation - A material
condition, requirement, or article in an agreement. The name given to any
agreement made by the attorneys engaged on opposite sides of a cause (especially
if in writing), regulating any matter incidental to the proceedings or
trial, which falls within their jurisdiction.
- striking a jury - The selecting or
nominating a jury out of the whole number returned as jurors on the panel.
It is especially used of the selection of a special jury, where a panel is
prepared by the proper officer, and the parties, in turn, strike off a
certain number of names, until the list is reduced to twelve. A jury thus
chosen is called a "struck jury."
- subpoena - A subpoena is a
command to appear at a certain time and place to give testimony upon a
certain matter. A subpoena duces tecum requires production of books,
papers and other things.
- summary judgment - Procedural device
available for prompt and expeditious disposition of controversy without
trial when there is no dispute as to either material fact or inferences to
be drawn from undisputed facts, or if only question of law is involved.
Federal Rule of Civil Procedure 56 permits any party to a civil action to
move for a summary judgment on a claim, counterclaim, or cross-claim when
he believes that there is no genuine issue of material fact and that he is
entitled to prevail as a matter of law. The motion may be directed toward
all or part of a claim or defense and it may be made on the basis of the
pleadings or other portions of the record in the case or it may be
supported by affidavits and a variety of outside material.
- summons - Instrument used to
commence a civil action or special proceeding and is a means of acquiring
jurisdiction over a party. In criminal law, an alternative to arrest
generally used for petty or traffic offenses; a written order notifying an
individual that he or she has been charged with an offense. A summons
directs the person to appear in court to answer the charge.
- suppression of evidence - The ruling of a
trial judge to the effect that evidence sought to be admitted should be
excluded because it was illegally acquired.
- suspect classifications - The Court
will employ the “strict scrutiny” standard under the Equal Protection
Clause in determining the legitimacy of classifications that are based
upon a trait which itself seems to contravene established constitutional
principles so that any purposeful use of the classification may be deemed
“suspect.” Examples include race, sex, national origin and alienage (with
- suspended sentence - A conviction of a
crime followed by a sentence that is given formally, but not actually
served. A suspended sentence in criminal law means that in effect that
defendant is not required at the time sentence is imposed to serve the
- tenant in common – Tenants who hold the same land together by several and
distinct titles, but by unity of possession, because none knows his own
severalty, and therefore they all occupy promiscuously. Where two or more
hold the same land, with interests accruing under different titles, or
accruing under the same title, but at different periods, or conferred by
words of limitation importing that the grantees are to take in distinct
- testify - To bear witness;
to give evidence as a witness; to make a solemn declaration, under oath or
affirmation, in a judicial inquiry, for the purpose of establishing or
proving some fact.
- testimony - Evidence given by
a competent witness under oath or affirmation; as distinguished from
evidence derived from writings, and other sources.
- third party
complaint - A complaint filed by the defendant against a third-party (i.e., a person
not presently a party to the lawsuit). This complaint alleges that the
third party is or may be liable for all or part of the damages which the
plaintiff may win from the defendant.
- trial - A judicial
examination and determination of issues between parties to action, whether
they be issues of law or fact, before a court that has jurisdiction. Trial by court or judge
Trial before judge alone, in contrast to trial before jury and judge. A
jury waived trial. Trial
by jury A trial in which the issues of fact are to be
determined by the verdict of the jury, duly selected, impaneled, and
sworn. Trial de
novo A new trial or retrial had in which the whole case is
retried as if no trial whatsoever had been had in the first instance. A
trial of the entire case anew, both on law and on facts
- undue influence – Persuasion, pressure, or influence
short of actual force, but stronger than mere advice, that so overpowers
the dominated party's free will or judgment that he or she cannot act
intelligently and voluntarily, but acts, instead, subject to the will or
purposes of the dominating party. Any improper or wrongful constraint,
machination, or urgency of persuasion whereby the will of a person is
overpowered and he is induced to do or forbear an
act which he would not do or would do if left to act freely. Influence
which deprives person influenced of free agency or destroys freedom of his
will and renders it more the will of another than his own. Misuse of
position of confidence or taking advantage of a person's weakness,
infirmity, or distress to change improperly that person's actions or
decisions. Term refers to conduct by which a person, through his power
over mind of testator, makes the latter's desires conform to his own,
thereby overmastering the volition of the testator. Parrisella v.
Fotopulos, 111 Ariz.
4, 522 P.2d 1081, 1083. For purpose of executing
instruments, such exists when there was such dominion and control
exercised over mind of person executing such instruments, under facts and
circumstances then existing, as to overcome his free agency and free will
and to substitute will of another so as to cause him to do what he would
not otherwise have done but for such dominion and control. Board of
Regents of University
of Tex. v.
Yarbrough, Tex.Civ.App., 470 S.W.2d 80, 86, 92.
- unlawful detainer – The unjustifiable retention of the
possession of real property by one whose original entry was lawful and of
right, but whose right to the possession has terminated and who refuses to
quit, as in the case of a tenant holding over after the termination of the
lease and in spite of a demand for possession by the landlord. Actions of
“unlawful detainer” concern only right of possession of realty, and differ
from ejectment in that no ultimate question of title or estate can be
- vacate - To annul; to set
aside; to cancel or rescind. To render an act void; as, to vacate an entry
of record, or a judgment. As applied to a judgment or decree it is not
synonymous with "suspend" which means to stay enforcement of
judgment or decree.
- venue - Formerly spelled visne. The
particular county, or geographical area, in which
a court with jurisdiction may hear and determine a case.
- verdict - From the Latin
"veredictum," a true declaration. The formal decision or finding
made by a jury, impaneled and sworn for the trial of a cause, and reported
to the court (and accepted by it), upon the matters or questions duly
submitted to them upon the trial. In criminal cases the verdict shall be
unanimous, and shall be returned by the jury to the judge in open court.
In civil cases the parties may stipulate that a verdict of a stated
majority of the jurors shall be taken as a verdict of the jury. Directed verdict
Verdict ordered by the judge as a matter of law
when he rules that the party with the burden of proof has failed to make
out a prima facie case. The judge under these circumstances orders the
jury to return a verdict for the other party. Motion for judgment of
acquittal is used in place of directed verdict in criminal cases. Split verdict
A verdict in which one party prevails on some claims in issue while the
other party prevails on other claims. In criminal law, a verdict finding a
defendant guilty of one charge but innocent of another, or finding one
defendant guilty while acquitting a codefendant.
- versus - Lat. Against. In
the title of a cause, the name of the plaintiff is put first, followed by
the word "versus,"
then the defendant's name. The word is commonly abbreviated "vs." or
- voir dire - L. Fr. To speak
the truth. This phrase denotes the preliminary examination which the court
and attorneys make of the prospective jurors to determine their
qualification and suitability to serve as jurors.
- waiver - The intentional or
voluntary relinquishment of a known right or such conduct as warrants as
inference of the relinquishment of such right. The term is often used in
the context of waiving one's right to counsel (for example, Miranda
warning) or waiving certain steps in the criminal justice process (for
example the preliminary hearing). Essential to waiver is the voluntary
consent of the individual.
- warrant - n. An order by
which the drawer authorizes one person to pay a particular sum of money. Arrest warrant
A written order of the court which is made on behalf of the state, or
United States, and is based upon a complaint issued pursuant to statute
and/or court rule and which commands law enforcement officer to arrest a
person and bring him before magistrate.
- will - n. Wish;
desire; pleasure; inclination; choice; the faculty of conscious, and
especially of deliberate, action. An instrument by which a person makes a
disposition of his real and personal property, to take effect after his
death, and which by its own nature is ambulatory and revocable during his
will One that is entirely written, dated, and signed by the
testator himself. Sometimes spelled "olographic."
One where the same instrument is made the will of two or more persons and
is jointly signed by them. Living
will A document which governs the withholding or withdrawal of
life-sustaining treatment from an individual in the event of an incurable
or irreversible condition that will cause death within a relatively short
time, and when such person is no longer able to make decisions regarding
his or her medical treatment. Reciprocal
will One in which two or more persons make mutual or
reciprocal provisions in favor of each other. Also known as a
"mutual," "double," or "counter" will.
- without prejudice - Where an offer or
admission is made "without prejudice," or a motion is denied or
a suit dismissed "without prejudice," it is meant as a
declaration that no rights or privileges of the party concerned are to be
considered as thereby waived or lost except in so far as may be expressly
conceded or decided. A dismissal "without prejudice" allows a
new suit to be brought on the same cause of action.
- with prejudice - Phrase "with prejudice," as used in context in
which an action is dismissed with prejudice, means an adjudication on
merits and final disposition, barring right to bring or maintain an action
on same claim or cause. Addition of the words "with prejudice"
to order granting motion to dismiss complaint indicates finality for
purposes of appeal.
- witness - n. In general,
one who, being present, personally sees or perceives a thing; a beholder,
spectator, or eyewitness. One who is called to testify before a court. Character
witness In criminal cases, the accused is entitled to use
character evidence in presenting defense. The accused is entitled to show
character traits inconsistent with the crime charged. Material witness
In criminal trial, a witness whose testimony is crucial to either the
defense or prosecution. Witness
to will One who has attested the will by subscribing his name
thereto. The trend in state statutes is to require two witnesses to attest
the signing of the will.
- writ - A written court order or a
judicial process, directing that a sheriff or other judicial officer do
what is commanded by the writ; or giving authority and commission to have
- writ of attachment - An order to seize a debtor's property so as to secure the
claim of a creditor.
- writ of execution - A writ to put in force the judgment or decree of a court.
Formal written command of a court directing a sheriff or other official
officer to enforce a judgment through process of execution.