Tort Legal Glossary

Actual Malice: To win a defamation suit, public officials or prominent people, such as political candidates or movie stars, must prove that the offender made a false statement with actual malice. This means the statement was made with knowledge that it was false or with serious doubts about whether it was true.

Affidavit: A written statement made under oath.

Affirmed: In the practice of the appellate courts, the decree or order is declared valid and will stand as rendered in the lower court.

Age of Majority: The age when a person acquires all the rights and responsibilities of being an adult. In most states, the age is 18.

Allegation: Something that someone says happened.

Alternative Dispute Resolution: Methods for resolving problems without going to court.

Amicus Curiae: Latin for “friend of the court.” Refers to a party that is allowed to provide information (usually in the form of a legal brief) to a court even though the party is not directly involved in the current case.

Answer: In a civil case, the defendant’s written response to the plaintiff’s complaint. It must be filed within a specified period of time, and it either admits to or denies the factual basis for liability.

Appeal: A request to a supervisory court usually composed of a panel of judges, to overturn the legal ruling of a lower court.

Appellate: About appeals; an appellate court has the power to review the judgment of another lower court or tribunal.

Arbitration: A method of alternative dispute resolution in which the disputing parties agree to abide by the decision of an arbitrator.

Arrangement: A proceeding in which an individual who is accused of committing a crime is brought into court, told of the charges, and asked to plead guilty or not guilty.

Assignment: The transfer of legal rights, such as the time left on a lease, from one person to another.

Assumption of Risk: A defense raised in personal injury lawsuits. Asserts that the plaintiff knew that a particular activity was dangerous and thus bears all responsibility for any injury that resulted.

Bad Faith: Dishonesty or fraud in a transaction, such as entering into an agreement with no intention of ever living up to its terms or knowingly misrepresenting the quality of something that is being bought or sold.

Bailment: A legal relationship created when a person gives property to someone else for safekeeping. To create a bailment the other party must knowingly have exclusive control over the property. The receiver must use reasonable care to protect the property.

Bench Trial: Also called court trial. A trial held before a judge and without a jury.

Bifurcation: Splitting a trial into two parts: a liability phase and a penalty phase. In some cases, a new jury may be impaneled to deliberate for the penalty phase.

Bill of Rights: The first ten amendments to the U.S. Constitution.

Binder: An outline of the basic terms of a proposed sales contract between a buyer and a seller.

Board of Directors: The group of people elected by a corporation’s shareholders to make major business decisions for the company.

Bond: A document with which one party promises to pay another within a specified amount of time. Bonds are used for many things, including borrowing money or guaranteeing payment of money.

Brief: A written document that outlines a party’s legal arguments in a case.

Burden of Proof: The duty of a party in a lawsuit to persuade the judge or the jury that enough facts exist to prove the allegations of the case. Different levels of proof are required depending on the type of case.

Buy-Sell Agreement: An agreement among business partners that specifies how shares in the business are to be transferred in the case of a co-owner’s death.

By-Laws: A corporation’s rules and regulations. They typically specify the number and respective duties of directors and officers and govern how the business is run.

Capital Gain: The profit made from the sale of a capital asset, such as real estate, a house, jewelry or stocks and bonds.

Capital Loss: The loss that results from the sale of a capital asset, such as real estate, a house, jewelry or stocks and bonds. 

Caps on Damages: A damages cap is an arbitrary ceiling on the amount an injured party can receive in compensation by a judge or jury, irrespective of what the evidence presented at a trial proves compensation should be. A cap is usually defined in a statute by a dollar figure or by tying the cap to another type of damages (e.g. two times compensatory damages). Caps usurp the authority of judges and juries, who listen to the evidence in a case, to decide compensation based on each specific fact situation. Several states have declared caps unconstitutional. 

Caps on Non-Economic Damages: Non-economic damages compensate injured consumers for intangible but real injuries, like infertility, permanent disability, disfigurement, pain and suffering, loss of a limb or other physical impairment. Caps or limits on non-economic damages have a disproportionate effect on plaintiffs who do not have high wages – like women who work inside the home, children, seniors or the poor, who are thus more likely to receive a greater percentage of their compensation in the form of non-economic damages if they are injured. 

Caps on Punitive Damages: Punitive damages, also known as “exemplary damages,” are assessed against defendants by judges or juries to punish particularly outrageous, deliberate or harmful misconduct, and to deter the defendant and others from engaging in similar misconduct in the future. 

Case Law: Also known as common law. The law created by judges when deciding individual disputes or cases.

Case of First Impression: A novel legal question that comes before a court. 

Caveat Emptor: Latin for “buyer beware.” This rule generally applies to all sales between individuals. It gives the buyer full responsibility for determining the quality of the goods in question. The seller generally has no duty to offer warranties or to disclose defects in the goods. 

Certiorari: Latin that means “to be informed of.” Refers to the order a court issues so that it can review the decision and proceedings in a lower court and determine whether there were any irregularities. When such an order is made, it is said that the court has granted certiorari.

Challenge for Cause: Ask that a potential juror be rejected if it is revealed that for some reason he or she is unable or unwilling to set aside preconceptions and pay attention only to the evidence. 

Chambers: A judge’s office. 

Change of Venue: A change in the location of a trial, usually granted to avoid prejudice against one of the parties.

Charge to the Jury: The judge’s instructions to the jury concerning the law that applies to the facts of the case on trial.

Charge: The law that the police believe the defendant has broken.

Charging Lien: Entitles a lawyer who has sued someone on a client’s behalf the right to be paid from the proceeds of the lawsuit, if there are any, before the client receives those proceeds. 

Chief Judge: The judge who has primary responsibility for the administration of a court but also decides cases; chief judges are determined by seniority. 

Circumstantial Evidence: Indirect evidence that implies something occurred but doesn’t directly prove it. If a man accused of embezzling money from his company had made several big-ticket purchases in cash around the time of the alleged embezzlement that would be circumstantial evidence that he had stolen the money. 

Class Action Suit: A lawsuit in which one or more parties file a complaint on behalf of themselves and all other people who are “similarly situated” (suffering from the same problem). Often used when a large number of people have comparable claims.

Clear And Convincing Evidence: The level of proof sometimes required in a civil case for the plaintiff to prevail. Is more than a preponderance of the evidence but less than beyond a reasonable doubt. 

Clerk of the Court: An officer appointed by the court to work with the chief judge in overseeing the court’s administration, especially to assist in managing the flow of cases through the court and to maintain court records. 

Closing: In a real estate transaction, this is the final exchange in which the deed is delivered to the buyer, the title is transferred, and the agreed-on costs are paid. 

Cohabitation Agreement: Also called a living-together contract. A document that spells out the terms of a relationship and often addresses financial issues and how property will be divided if the relationship ends.

Collateral Source Rule: The collateral source rule prevents a wrongdoer from reducing its financial responsibility for the injuries it causes by the amount an injured party receives (or could later receive) from outside sources. Payments from outside sources are those unrelated to the wrongdoer, like health or disability insurance, for which the injured party has already paid premiums or taxes. The rule also prevents juries from learning about such collateral payments, so as not to unfairly influence with verdict. States that have modified this rule have either completely repealed it, mandating that payments received from health insurance, social security or other sources be used to reduce the wrongdoer’s liability. Or, they allow juries to hear during trial about collateral payments.

Collateral: An asset that a borrower agrees to give up if he or she fails to repay a loan.

Collective Bargaining Agreement: The contract that spells out the terms of employment between a labor union and an employer.

Comity: A code of etiquette that governs the interactions of courts in different states, localities and foreign countries. Courts generally agree to defer scheduling a trial if the same issues are being tried in a court in another jurisdiction. In addition, courts in this country agree to recognize and enforce the valid legal contracts and court orders of other countries.

Common Law: The legal system that originated in England and is now in use in the United States. It is based on judicial decisions rather than legislative action.

Community Property: Property acquired by a couple during their marriage. Refers to the system in some states for dividing the couple’s property in a divorce or upon the death of one spouse. In this system, everything a husband and wife acquire once they are married is owned equally (fifty-fifty) by both of them, regardless of whom provided the money to purchase the asset or whose name the asset is held in.

Comparative Negligence: Also called comparative fault. A system that allows a party to recover some portion of the damages caused by another party’s negligence even if the original person was also partially negligent and responsible for causing the injury. Not all states follow this system.

Compensatory Damages: Money awarded to reimburse actual costs, such as medical bills and lost wages. Also awarded for things that are harder to measure, such as pain and suffering. 

Complaint: In a civil action, this is a document that initiates a lawsuit. The complaint outlines the alleged facts of the case and the basis for which a legal remedy is sought. 

Conflict of Interest: Refers to a situation when someone, such as a lawyer or public official, has competing professional or personal obligations or personal or financial interests that would make it difficult to fulfill his duties fairly.

Consideration: Something of value that is given in exchange for getting something from another person.

Contempt of Court: An action that interferes with a judge’s ability to administer justice or that insults the dignity of the court. Disrespectful comments to the judge or a failure to heed a judge’s orders could be considered contempt of court. A person found in contempt of court can face financial sanctions and, in some cases, jail time.

Contingency Fee Limits: Under a contingency fee arrangement, a lawyer agrees to take a case on behalf of an injured client without obtaining any money up front from the client. This system provides injured consumers who could not otherwise afford legal representation with access to the courts. Typically, states limit contingency fees by capping them sometimes way below one-third, sometimes along a sliding scale so fee percentages decrease, sometimes drastically, as judgments increases. The principal impact of contingency fee limits is to make it less likely attorneys can afford to risk bringing many cases, particularly the more costly and complex ones, providing practical immunity for many wrongdoers

Continuance: Put off trial until another time.

Contract: An agreement between two or more parties in which an offer is made and accepted, and each party benefits. The agreement can be formal, informal, written, oral or just plain understood. Some contracts are required to be in writing in order to be enforced.

Contributory Negligence: Prevents a party from recovering for damages if he or she contributed in any way to the injury. Not all states follow this system.

Copyright: A person’s right to prevent others from copying works that he or she has written, authored or otherwise created. 

Corporation: An independent entity created to conduct a business. It is owned by shareholders. 

Counsel: Legal advice; a term used to refer to lawyers in a case. 

Counterclaim: A claim that a defendant makes against a plaintiff.

Court Reporter: A person who makes a word-for-word record of what is said in court and produces a transcript of the proceedings upon request.

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

Creditor: A person (or institution) to whom money is owed.

Cross Examination: The questioning of an opposing party’s witness about matters brought up during direct examination. 

Damages: The financial compensation awarded to someone who suffered an injury or was harmed by someone else’s wrongful act. 

Debtor: Person who owes money.

Decision: The judgment rendered by a court after a consideration of the facts and legal issues before it.

Deed: A written legal document that describes a piece of property and outlines its boundaries. The seller of a property transfers ownership by delivering the deed to the buyer in exchange for an agreed upon sum of money. 

Defamation: The publication of a statement that injures a person’s reputation. Libel and slander are defamation. 

Default Judgment: A ruling entered against a defendant who fails to answer a summons in a lawsuit.

Default: The failure to fulfill a legal obligation, such as neglecting to pay back a loan on schedule.

Defendant: In civil matters, the defendant is the person or organization that is being sued. 

Defense Table: The table where the defense lawyer sits with the defendant in the courtroom. 

Defined Benefit Plan: A type of retirement plan that specifies how much in benefits it will pay out to a retiree.

Deposition: Part of the pre-trial discovery (fact-finding) process in which a witness testifies under oath. A deposition is held out of court with no judge present, but the answers often can be used as evidence in the trial. 

Direct Evidence: Evidence that stands on its own to prove an alleged fact, such as testimony of a witness who says she saw a defendant pointing a gun at a victim during a robbery. 

Direct Examination: The initial questioning of a witness by the party that called the witness. 

Directed Verdict: A judge’s order to a jury to return a specified verdict, usually because one of the parties failed to prove its case.

Disbursements: Legal expenses that a lawyer passes on to a client, such as for photocopying, overnight mail and messenger services. 

Discovery: Part of the pre-trial litigation process during which each party requests relevant information and documents from the other side in an attempt to “discover” pertinent facts.

Dismissal with Prejudice: When a case is dismissed for good reason and the plaintiff is barred from bringing an action on the same claim.

Docket: A log containing brief entries of court proceedings. 

Double Jeopardy: Being tried twice for the same offense.

Due Process: The idea that laws and legal proceedings must be fair. The Constitution guarantees that the government cannot take away a person’s basic rights to “life, liberty or property, without due process of law.” Courts have issued numerous rulings about what this means in particular cases. 

Duty to Warn:The legal obligation to warn people of a danger. Typically, manufacturers of hazardous products have a duty to warn customers of a product’s potential dangers and to advise users of any precautions they should take.

Elective Share: Refers to probate laws that allow a spouse to take a certain portion of an estate when the other spouse dies, regardless of what was written in the spouse’s will.

Emancipation: When a minor has achieved independence from his or her parents, often by getting married before reaching age 18 or by becoming fully self-supporting.

En Banc: “In the bench” or “full bench.” Refers to court sessions with the entire membership of a court participating rather than the usual quorum. U.S. courts of appeals usually sit in panels of three judges, but may expand to a larger number in certain cases. They are then said to be sitting en banc.

Encumbrance: Any claim or restriction on a property’s title. 

Equal Protection Clause: Portion of the Fourteenth Amendment to the U.S. Constitution that prohibits discrimination by state government institutions. The clause grants all people “equal protection of the laws,” which means that the states must apply the law equally and cannot give preference to one person or class of persons over another. 

Establishment Clause: Portion of the First Amendment to the U.S. Constitution that prohibits government from “establishing” a religion. 

Estate: All the property a person owns. 

Evidence: The various things presented in court to prove an alleged fact. May include testimony, documents, photographs, maps and video tapes. 

Ex Parte: Latin that means “by or for one party.” Refers to situations in which only one party (and not the adversary) appears before a judge. Such meetings are often forbidden.

Executor: Person named in a will to oversee and manage an estate.

Exigent Circumstances: Emergency conditions.

Expert Witness: A witness with a specialized knowledge of a subject who is allowed to discuss an event in court even though he or she was not present. For example, an arson expert could testify about the probable cause of a suspicious fire. 

Express Warranty: An assertion or promise concerning goods or services. Statements such as “This air conditioner will cool a five-room house,” or “We will repair any problems in the first year” are express warranties.

Fair Use: The use of a portion of copyrighted material in a way that does not infringe the owner’s rights. The use of a portion of material for educational purposes, literary criticism or news reporting is often considered a fair use.

Fault Auto Insurance System: Refers to a system in which the party that bears the blame (fault) for an accident is liable for any damages. 

Fiduciary Duty: An obligation to act in the best interest of another party. For instance, a corporation’s board member has a fiduciary duty to the shareholders, a trustee has a fiduciary duty to the trust’s beneficiaries, and an attorney has a fiduciary duty to a client.

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

Fixtures: All things that are attached to property, such as ceiling lights, awnings, window shades and doorknobs. Fixtures are automatically included in a sale, unless specifically mentioned in the contract as going to the seller.

Foreseeability: A key issue in determining a person’s liability. If a defendant could not reasonably have foreseen that someone might be hurt by his or her actions, then there may be no liability.

General Partner: One of two kinds of partners in a limited partnership. A general partner has the right to participate in the management of the partnership and has unlimited personal liability for its debts. 

Good Faith: Honestly and without deception. An agreement might be declared invalid if one of the parties entered with the intention of defrauding the other. 

Grantor: The person who sets up a trust. 

Gross Negligence: Failure to use even the slightest amount of care; showing recklessness or willful disregard for the safety of others. 

Guardian AD Litem: Latin for “guardian at law.” The person appointed by the court to look out for the best interests of the child during the course of legal proceedings.

Hearsay: Secondhand information that a witness only heard about from someone else and did not see or hear himself. Hearsay is not admitted in court because it’s not trustworthy, though there are many exceptions.

Hostile Environment Sexual Harassment: Where a person is subject to unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature to such an extent that it alters the conditions of the person’s employment and creates an abusive working environment. 

Hung Jury: A jury that is unable to reach a verdict.

Immunity: Exemption from a legal duty, penalty or prosecution.

Impairment: When a person’s faculties are diminished so that his or her ability to see, hear, walk, talk and judge distances is below the normal level as set by the state. Typically, impairment is caused by drug or alcohol use, but can also be caused by mental illness.

Impeachment: (1) The process of calling something into question, as in “impeaching the testimony of a witness.” (2) The constitutional process whereby the House of Representatives may “impeach” (accuse of misconduct) high officers of the federal government for trial in the Senate. 

Implied Consent Laws: (also called express consent) Laws adopted by all states that apply to testing for alcohol in the blood, breath or urine (most states have such laws that apply to testing for the use of drugs). The principle underlying these laws is that any licensed driver who operates a vehicle has consented to submit to approved tests to show intoxication.

Implied Warranty of Fitness for a Particular Purpose: Warranty that exists when a seller should know that a buyer is relying on the seller’s expertise. 

Implied Warranty of Habitability: A landlord is required by law to provide a premise that is safe and able to be lived in. Problems with essential building services and cleanliness are often breaches of the implied warranty and the landlord will be required to correct them. 

Implied Warranty of Merchantability: Warranty that guarantees that goods purchased by consumers are reasonably fit for their ordinary purpose. 

In Camera: Latin for “in chambers.” Refers to a hearing or inspection of documents that takes places in private, often in a judge’s chambers. 

In Forma Pauperis: In the manner of a pauper. Permission given to a person to sue without payment of court fees on claim of indigence or poverty. 

Indigent: Lacking in funds; poor.

Informed Consent: Except in the case of an emergency, a doctor must obtain a patient’s agreement (informed consent) to any course of treatment. Doctors are required to tell the patient anything that would substantially affect the patient’s decision. Such information typically includes the nature and purpose of the treatment, its risks and consequences and alternative courses of treatment. 

Infringement: Unauthorized use, typically of a patent or copyright.

Injunctuion: An order of the court prohibiting (or compelling) the performance of a specific act to prevent irreparable damage or injury. 

Instructions: Judge’s explanation to the jury before it begins deliberations of the questions it must answer and the law governing the case. 

Interlocutory Order: Temporary order issued during the course of litigation. Typically cannot be appealed because it is not final.

Interrogatories: Part of the pre-trial discovery (fact-finding) process in which a witness provides written answers to written questions under oath. The answers often can be used as evidence in the trial. 

Interview: A meeting with the police or prosecutor.

Issue: (1) The disputed point in a disagreement between parties in a lawsuit. (2) To send out officially, as in to issue an order. 

Joint And Several Liability Limits: The doctrine of joint and several liability is a fairness rule, developed over centuries to protect injured consumers. It applies when more than one defendant is found fully or substantially responsible for causing an injury. For example, if one wrongdoer is insolvent or cannot pay their share, the other fully-responsible wrongdoers must pay the bill, to make sure the innocent victim is fully compensated. 

Judge: Government official with authority to decide lawsuits brought before courts. Other judicial officers in the U.S. courts system are Supreme Court justices. 

Judgment: The official decision of a court finally determining the respective rights and claims of the parties to a suit. 

Judgment Non Obstante Veredicto: Known also as a judgment notwithstanding the verdict. A decision by a trial judge to rule in favor of a losing party even though the jury’s verdict was in favor of the other side. Usually applied when the facts or law do not support the jury’s verdict.

Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases. 

Jurisprudence: The study of law and the structure of the legal system. 

Juror: A person who is on the jury. 

Jury Charge: The judge’s instructions to the jurors on the law that applies in a case and definitions of the relevant legal concepts. These instructions may be complex and are often pivotal in a jury’s discussions.

Jury: Persons selected according to law and sworn to inquire into and declare a verdict on matters of fact. 

Just Cause: A legitimate reason. Often used in the employment context to refer to the reasons why someone was fired.

Lawsuit: A legal action started by a plaintiff against a defendant based on a complaint that the defendant failed to perform a legal duty, resulting in harm to the plaintiff. 

Lemon Laws: Laws that require manufacturers to repair defective cars. If the repairs are not made within a reasonable amount of time and number of attempts, the manufacturer is required to refund the purchase price, less a reasonable amount for the use of the car. 

Liability: Any legal responsibility, duty or obligation. 

Libel: Defamatory (false and injurious) written statements or materials, including movies or photographs. 

Lien: A claim against someone’s property. A lien is instituted in order to secure payment from the property owner in the event that the property is sold. A mortgage is a common lien. 

Liquidated Damages: The amount of money specified in a contract to be awarded in the event that the agreement is violated.

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

Magistrate Judges: Judicial officers who assist U.S. district judges in getting cases ready for trial, who may decide some criminal and civil trials when both parties agree to have the case heard by a magistrate judge instead of a judge.

Malpractice: Improper or negligent behavior by a professional, such as a doctor or a lawyer. The failure of a professional to follow the accepted standards of practice of his or her profession.

Mediation: A method of alternative dispute resolution in which a neutral third party helps resolve a dispute. The mediator does not have the power to impose a decision on the parties. If a satisfactory resolution cannot be reached, the parties can pursue a lawsuit.

Minor: A person who does not have the legal rights of an adult. A minor is usually defined as someone who has not yet reached the age of majority. In most states, a person reaches majority and acquires all of the rights and responsibilities of an adult when he or she turns 18.

Misdemeanor: Crime that is punishable by less than one year in jail, such as minor theft and simple assault that does not result in substantial bodily injury.

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

Motion for a New Trial: Request in which a losing party asserts that a trial was unfair due to legal errors that prejudiced its case.

Motion for directed Verdict: A request made by the defendant in a civil case. Asserts that the plaintiff has raised no genuine issue to be tried and asks the judge to rule in favor of the defense. Typically made after the plaintiff is done presenting his or her case.

Motion for Summary Judgment: A request made by the defendant in a civil case. Asserts that the plaintiff has raised no genuine issue to be tried and asks the judge to rule in favor of the defense. Typically made before the trial. 

Motion to dismiss: In a civil case, a request to a judge by the defendant, asserting that even if all the allegations are true, the plaintiff is not entitled to any legal relief and thus the case should be dismissed.

Motion to Suppress Evidence: A request to a judge to keep out evidence at a trial or hearing often made when a party believes the evidence was unlawfully obtained.

Motion: A request asking a judge to issue a ruling or order on a legal matter. 

Named Plaintiffs: The originators of a class action suit.

Negligence: A failure to use the degree of care that a reasonable person would use under the same circumstances.

Nolo Contendere: No contest-has the same effect as a plea of guilty, as far as the criminal sentence is concerned, but may not be considered as an admission of guilt for any other purpose.

Notary Public: A person authorized to witness the signing of documents.

Notice Appeal: The document a person must file with the trial court in order to pursue an appeal.

Oath: A promise to tell the truth.

Objection: A reason that an attorney interrupts a witness to talk to the judge.

Opinion: A judge’s written explanation of a decision of the court or of a majority of judges. A dissenting opinion disagrees with the majority opinion because of the reasoning and/or the principles of law on which the decision is based. A concurring opinion agrees with the decision of the court but offers further comment. 

Oral Argument: An opportunity for lawyers to summarize their position before the court and also to answer the judges’ questions.

Panel: (1) In appellate cases, a group of judges (usually three) assigned to decide the case; (2) in the jury selection process, the group of potential jurors. 

Parties: Plaintiffs and defendants (petitioners and respondents) to lawsuits, also known as appellants and appellees in appeals, and their lawyers.

Partition: A court action to divide property. Typically taken when a property is jointly owned and a dispute arises about how to divide it. 

Partnership: An association of two or more people who agree to share in the profits and losses of a business venture.

Penalty Phase: The second part of a bifurcated trial, in which the jury hears evidence and then votes on what penalty or damages to impose. 

Peremptory Challenges: Limited number of challenges each side in a trial can use to eliminate potential jurors without stating a reason. Challenges may not be used to keep members of a particular race or sex off the jury.

Personal Guardian: Person appointed to take custody of children and provide for their care and upbringing. Distinguished from property guardian.

Personal Representative: A person who manages the legal affairs of another, such as a power of attorney or executor.

Petit Jury: A group of citizens who hear the evidence presented by both sides at trial and determine the facts in dispute. Federal civil juries consist of six persons. Distinguished from a grand jury.

Petition: A written application to the court asking for specific action to be taken. 

Plaintiff: The person who initiates a lawsuit. 

Pleadings: In a civil case, the allegations by each party of their claims and defenses.

Power of Attorney: The authority to act legally for another person.

Precedent: A previously decided case that is considered binding in the court where it was issued and in all lower courts in the same jurisdiction. 

Prejudgment Interest: Prejudgment interest is the amount of interest that accrues on the value of an injured consumer’s claim between the time he or she files a case and the final judgment. Some states penalize victims by prohibiting pre-judgment interest or by imposing very low limits on pre-judgment interest rates. Laws that limit prejudgment interest can delay timely settlements or judgments in civil cases by reducing the monetary incentive that defendants have to resolve cases expeditiously.

Preponderance of the Evidence: The level of proof required to prevail in most civil cases. The judge or jury must be persuaded that the facts are more probably one way (the plaintiff’s way) than another (the defendant’s). 

Pre-sentencing Report: A report prepared by a probation department, for a judge, to assist in sentencing. Typically contains information about prior convictions and arrests, work history and family details.

Pretrial Conference: A meeting of the judge and lawyers to discuss which matters should be presented to the jury, to review evidence and witnesses, to set a timetable, and to discuss the settlement of the case. 

Pre-Trial Diversion: A program in which a defendant essentially is put on probation for a set period of time and his or her case does not go to trial during that time. If the defendant meets the conditions set by the court, then the charge will be dismissed.

Prima Facie: Latin for “at first view.” Refers to the minimum amount of evidence a plaintiff must have to avoid having a case dismissed. It is said that the plaintiff must make a prima facie case.

Privileged Communication: Conversation that takes places within the context of a protected relationship, such as that between an attorney and client, a husband and wife, a priest and penitent, and a doctor and patient. 

Pro se: Latin phrase that means “for himself.” A person who represents himself in court alone without the help of a lawyer is said to appear pro se.

Procedure: The rules for the conduct of a lawsuit; there are rules of civil, criminal, evidence, bankruptcy, and appellate procedure. 

Product Liability Defences: The doctrine of “strict liability” has long applied in suits involving defective products. Strict liability ensures that one who is responsible for bringing a dangerously defective product into the marketplace or workplace compensates those injured by the product. This forces plaintiffs, who are at a distinct disadvantage when it comes to knowledge about technical design alternatives, to prove the existence of such alternatives when this defense is raised. Other laws immunize manufacturers that produce products with design defects if the products have “obvious risks,” like tobacco, or are considered “unavoidably unsafe,” like guns — even if a defective gun accidentally discharges and kills someone. 

Promissory Note: A written document in which a borrower agrees (promises) to pay back money to a lender according to specified terms. 

Property Guardian: Person appointed to oversee property left to a minor in a will. Distinguished from a personal guardian.

Punitive Damages: Money awarded to a victim that is intended to punish a defendant and stop the person or business from repeating the type of conduct that caused an injury. Also intended to deter others from similar conduct.

Quash: To nullify, void or declare invalid. 

Quid Pro Quo Sexual Harassment: Where an employee is threatened with a demotion (or promised a promotion) in exchange for “sexual favors.” It usually comes from a supervisor or other person in a position of authority.

Quid Pro Quo: Latin phrase that means what for what or something for something. The concept of getting something of value in return for giving something of value. For a contract to be binding, it usually must involve the exchange of something of value.

Quitclaim Deed: A deed that transfers the owner’s interest to a buyer but does not guarantee that there are no other claims against the property.

Real Property: Land and all the things that are attached to it. Anything that is not real property is personal property and personal property is anything that isn’t nailed down, dug into or built onto the land. A house is real property, but a dining room set is not.

Reasonable Care: The level of care a typical person would use if faced with the same circumstances.

Record: A written account of all the acts and proceedings in a lawsuit.

Re-cross Examination: Questioning a witness about matters brought up during re-direct examination.

Re-direct Examination: Questioning a witness about matters brought up during cross examination.

Remand: When an appellate court sends a case back to a lower court for further proceedings.

Replevin: Repossession. Action taken by a creditor to seize assets of a debtor.

Res Ipsa Loquitur: A Latin phrase, that means “the thing speaks for itself.” Refers to situations when it’s assumed that a person’s injury was caused by the negligent action of another party because the accident was the sort that wouldn’t occur unless someone was negligent. 

Retainer: Refers to the up front payment a client gives a lawyer to accept a case. The client is paying to “retain” the lawyer’s services. 

Retaining Lien: Gives a lawyer the rights to hold on to your money or property (such as a deed) until you pay the bill. 

Reverse: When an appellate court sets aside the decision of a lower court because of an error. A reversal is often followed by a remand.

Security Agreement: A contract between a lender and borrower that states that the lender can repossess the property a person has offered as collateral if the loan is not paid as agreed.

Services of Process: The act of notifying the other parties that an action has begun and informing them of the steps they should take in order to respond.

Settlement Agreement: In a civil lawsuit, the document that spells out the terms of an out-of-court compromise.

Settlement: Parties to a lawsuit resolve their difference without having a trial. Settlements often involve the payment of compensation by one party in satisfaction of the other party’s claims.

Sidebar: A conference between the judge and lawyers held out of earshot of the jury and spectators.

Slander: Defamatory (false and injurious) oral statements or gestures.

Sole Proprietorship: A form of business organization in which an individual is fully and personally liable for all the obligations (including debts) of the business, is entitled to all of its profits and exercises complete managerial control.

Standard of Care: The degree of care a reasonable person would take to prevent an injury to another.

Standing: The legal right to initiate a lawsuit. To do so, a person must be sufficiently affected by the matter at hand, and there must be a case or controversy that can be resolved by legal action.

Stare Decisis: Latin for “to stand by that which is decided.” Refers to the principle of adhering to precedent when deciding a case. 

Statement: A description that a witness gives to the police and that the police write down.

Statute of Limitations: A law that sets the time within which parties must take action to enforce their rights. 

Statute of Repose: A statute of repose for products completely cuts off liability of the manufacturer or seller of a defective product after an arbitrarily-established number of years, such as 10 years or 15 years. Statutes of repose apply no matter how serious the injuries, how many injuries have been caused over the years by these products or services, or how reckless the actions of the wrongdoer were. They cover products with expected lives much longer than typical cut-off dates in the statute of repose, products like nuclear power plant components, medical devices such as pacemakers, elevators, airplanes, home appliances, playground equipment, farm equipment, freight trains, trucks, and other industrial machinery. 

Statute: A law passed by a legislature.

Statutes of Fraud: Laws in most states to protect against false claims for payment from contracts that were not agreed upon. The specific laws vary from state to state, but most require that certain contracts be in writing.

Statutes of Limitations: Laws setting deadlines for filing lawsuits within a certain time after events occur that are the source of a claim.

Strict Liability: Liability even when there is no proof of negligence. Often applicable in product liability cases against manufacturers, who are legally responsible for injuries caused by defects in their products, even if they were not negligent.

Structured Settlements: Also called “periodic payments,” structured settlement laws either mandate or allow courts to require that some or all payments awarded by a judge or jury be made to the injured consumer over a long period of time. In other words, the injured consumer is prohibited from receiving payments in a lump sum. These provisions increase the hardships of the most seriously injured consumers who are hit soon after an injury with large medical costs and must make adjustments in transportation and housing. Often, the law allows insurance companies to pocket the money upon the plaintiff’s death, instead of paying it to a dependent spouse or child.

Subpoena Duces Tecum: A command to a witness to produce documents.

Subpoena: An order compelling a person to appear to testify or produce documents.

Summary Judgment: A decision made on the basis of statements and evidence presented for the record without a trial. It is used when there is no dispute as to the facts of the case, and one party is entitled to judgment as a matter of law. 

Summation: The closing argument in a trial.

Summons: A legal document that notifies a party that a lawsuit has been initiated and states when and where the party must appear to answer the charges.

Tangible Personal Property: Anything other than real estate or money, including furniture, cars, jewelry and china.

Temporary Restraining Order: Prohibits a person from an action that is likely to cause irreparable harm. This differs from an injunction in that it may be granted immediately, without notice to the opposing party, and without a hearing. It is intended to last only until a hearing can be held. 

Testify: Answer questions in court.

Testimony: Evidence presented orally by witnesses during trials or before grand juries. 

Title Search: A review of the land records to determine the ownership and description of the property.

Title: Ownership of property.

Tort: A civil wrong that result in an injury to a person or property. 

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

Trial: A hearing that takes place when the defendant pleads “not guilty” and witnesses are required to come to court to give evidence

Uniform Commercial Code: A model statute covering things such as the sale of goods, credit, and bank transactions. All states have adopted and adapted the entire UCC, with the exception of Louisiana, which only adopted parts of it.

Unjust Taking: When the government acquires private property and fails to compensate an owner fairly. A taking can occur even without the actual physical seizure of property, such as when a government regulation has substantially devalued a property.

Uphold: The decision of an appellate court not to reverse a lower court decision.

Valid Claim: A grievance that can be resolved by legal action.

Venue: The geographical location in which a case is tried.

Verdict: The formal decision issued by a jury on the issues of fact that were presented at trial.

Vested Right: An absolute right. When a retirement plan is fully vested, the employee has an absolute right to the entire amount of money in the account.

Vicarious Liability: When one person is liable for the negligent actions of another person, even though the first person was not directly responsible for the injury.

Voir Dire: The process by which judges and lawyers select a petit jury from among those eligible to serve, by questioning them to determine knowledge of the facts of the case and a willingness to decide the case only on the evidence presented in court. “Voir dire” is a phrase meaning “to speak the truth.”

Warranty: A promise about a product made by either a manufacturer or a seller. 

Writ: A formal written command, issued from the court, requiring the performance of a specific act.

Witness: Person who comes to court and swears under oath to give truthful evidence.

Writ of Certiorari: An order issued by the Supreme Court directing the lower court to transmit records for a case for which it will hear on appeal.

Writ: A formal written command, issued from the court, requiring the performance of a specific act.

Wrongful Discharge: When an employee is fired for reasons that are not legitimate, typically either because they are unlawful or because they violate the terms of an employment contract.

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