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91 Cards in this Set
- Front
- Back
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administrative agency
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any branch or division of the government other than the judicial or legislative branches (such as the Aocial Security Administration of Depart of Education)
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administrative laws
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regulations and procedures that govern administrative agencies
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adversary system
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system of law in America
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affadavit
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a written statement sworn to before a person officially permitted by law to administer an oath
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amicus curiae
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"friend of the court"; a person or organization allowed to appear in a lawsuit, to file arguments in the form of a brief supporting one side or the other, even though not a party to the dispute
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answer
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The formal written statement by a defendant in a civil case that responds to a complaint, articulating the grounds for defense.
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appeal
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A request made after a trial by a party that has lost on one or more issues that a higher court review the decision to determine if it was correct. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the "appellant;" the other party is the "appellee."
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appellate court
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an appellate court has the power to review the judgment of a lower court (trial court) or tribunal. For example, the U.S. circuit courts of appeals review the decisions of the U.S. district courts.
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appellee
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see DEFENDANT
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beyond a reasonable doubt
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the level of proof required to convict a person of a crime. This is the highest level of proof required in any type of trial, in contrast to BY A FAIR PREPONDERANCE OF EVIDENCE, the level of proof in civil cases
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bill of rights
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first ten amendments to the constitution
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brief
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A written statement submitted in a trial or appellate proceeding that explains one side's legal and factual arguments.
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by a fair preponderance of evidence
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the level of proof required in civil cases. This is lower than in criminal cases
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Cause of Action
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facts suffcient to allow a valid lawsuit to proceed
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certiorari
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A writ of review issued by a higher court to a lower court. A means of getting an appellate court to review a lower court's decision. If an appellate court grants a writ of certiorari, it agrees to take the appeal. (Sometimes referred to as "granting cert.")
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circumstantial evidence
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All evidence except eyewitness testimony. One example is physical evidence, such as fingerprints, from which an inference can be drawn.
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civil case
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every lawsuit other than a criminal proceeding. Most civil cases involve a lawsuit brought by one person against another person and usually involves money damages
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class action
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a lawsuit in which one or more members of a large group, or class, of individuals or other entities sue on behalf of the entire class. The district court must find that the claims of the class members contain questions of law or fact in common before the lawsuit can proceed as a class action.
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code
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a collection of laws. Most states have an education code conatining all laws directly relevant to education
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Common law
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The legal system that originated in England and is now in use in the United States that relies on the articulation of legal principles in a historical succession of judicial decisions. Common law principles can be changed by legislation.
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compensatory damages
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damages that relate to the actual loss suffered by the plantiff, such as loss of income
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complaint
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A written statement that begins a civil lawsuit, in which the plaintiff details the claims against the defendant.
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concurring opinion
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agrees with the majority opinion but gives different or added reasons for arriving at that opinon
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criminal case
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A lawsuit brought by a prosecutor employed by the federal, state or local government that charges a person with the commission of a crime.
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De Facto
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Latin, meaning "in fact" or "actually." Something that exists in fact but not as a matter of law. De facto segregation is that which exists regardless of teh law or actions of authorities
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Defamation
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That which tends to injure a person's reputation. (See libel and slander.)
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Defendant
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In a civil case, the person or organization against whom the plaintiff brings suit; in a criminal case, the person accused of the crime.
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De Jure
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Latin, meaning "in law." Something that exists by operation of law. De jure segregation is sanctioned by law.
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De Minimus
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small, unimportant; not worthy of concern
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demurrer
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A request made to a court, asking it to dismiss a lawsuit on the grounds that no legal claim is asserted. For example, you might file a demurrer if your neighbor sued you for parking on the street in front of her house. Your parking habits may annoy your neighbor, but the curb is public property and parking there doesn't cause any harm recognized by the law. After a demurrer is filed, the judge holds a hearing at which both sides can make their arguments about the matter. The judge may dismiss all or part of the lawsuit, or may allow the party who filed the lawsuit to amend its complaint. In some states and in federal court, the term demurrer has been replaced by "motion to dismiss for failure to state a claim" (called a "12(b)(6) motion" in federal court) or similar term.
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de novo
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Latin, meaning "anew." A trial de novo is a completely new trial. Appellate review de novo implies no deference to the trial judge's ruling.
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dictum
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a digression; a discussion of side points or unrelated points. short for OBITER DICTUM; plural DICTA
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disclaimer
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(1) A refusal or renunciation of a claim or right. (2) A refusal or denial of responsibility for a claim or an act. (3) The written clause or document that sets out the disclaimer. See also disclaim.
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dissenting opinion
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disagrees with the majority opinion
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en banc
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French, meaning "on the bench." All judges of an appellate court sitting together to hear a case, as opposed to the routine disposition by panels of three judges. In the Ninth Circuit, an en banc panel consists of the chief judge and 14 other, randomly selected, judges.
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equitable
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Pertaining to civil suits in "equity" rather than in "law." In English legal history, the courts of "law" could order the payment of damages and could afford no other remedy. See damages. A separate court of "equity" could order someone to do something or to cease to do something. See, e.g., injunction. In American jurisprudence, the federal courts have both legal and equitable power, but the distinction is still an important one. For example, a trial by jury is normally available in "law" cases but not in "equity" cases.
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et al.
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"and others." When the words ET AL. are used in an opinion, the court is thereby indicating that there are unnamed parties, either plantiffs or defendants, also before the court in the case
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ex parte
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On behalf of only one party, without notice to any other party. For example, a request for a search warrant is an ex parte proceeding, since the person subject to the search is not notified of the proceeding and is not present at the hearing.
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expunge
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To intentionally destroy, obliterate or strike out records or information in files, computers and other depositories. For example, state law may allow the criminal records of a juvenile offender to be expunged when he reaches the age of majority, to allow him to begin his adult life with a clean record. Or, a company or government agency may routinely expunge out-of-date records to save storage space.
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ex rel.
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on behalf of, when a case is titled STATE EX REL. DOE V. ROE, it means that the state is bringing the lawsuit againts ROE on behalf of ROE
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fiduciary
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A person or institution who manages money or property for another and who must exercise a standard care imposed by law, i.e., personal representative or executor of an estate, a trustee, etc.
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guardian ad litem
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A person, not necessarily a lawyer, who is appointed by a court to represent and protect the interests of a child or an incapacitated adult during a lawsuit. For example, a guardian ad litem (GAL) may be appointed to represent the interests of a child whose parents are locked in a contentious battle for custody, or to protect a child's interests in a lawsuit where there are allegations of child abuse. The GAL may conduct interviews and investigations, make reports to the court and participate in court hearings or mediation sessions. Sometimes called court-appointed special advocates (CASAs).
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hearing
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In the trial court context, a legal proceeding (other than a full-scale trial) held before a judge. During a hearing, evidence and arguments are presented in an effort to resolve a disputed factual or legal issue. Hearings typically, but by no means always, occur prior to trial when a party asks the judge to decide a specific issue--often on an interim basis--such as whether a temporary restraining order or preliminary injunction should be issued, or temporary child custody or child support awarded. In the administrative or agency law context, a hearing is usually a proceeding before an administrative hearing officer or judge representing an agency that has the power to regulate a particular field or oversee a governmental benefit program. For example, the Federal Aviation Board (FAB) has the authority to hold hearings on airline safety, and a state Worker's Compensation Appeals Board has the power to rule on the appeals of people whose applications for benefits have been denied.
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hearsay
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Evidence presented by a witness who did not see or hear the incident in question but heard about it from someone else. With some exceptions, hearsay generally is not admissible as evidence at trial.
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holding
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the rule of law in a case; that part of a judge's written opinion that applies the law to the facts of the case and about which can be said "the case means no more or no less than this." A holding is the opposite of DICTUM
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in camera
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Latin, meaning in a judge's chambers. Often means outside the presence of a jury and the public. In private.
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incriminate
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to involve in a crime; to cause to appear guilty
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informed consent
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a person's agreement to allow something to happen (such as being the subject of a research study) that is based on a full disclosure of facts needed to make the decision diligently
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Injunction
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A prohibitive order or remedy issued by the court at the suit of the complaining party, which forbids the defendant to do some act which he is threatening or attempting to do. Conversely, it may require him to perform an act which he is obligated to perform but refuses to do.
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in loco parentis
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in place of the parent; acting as a parent in respect to the care, rupervision, and discpline of a child
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in re
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In the matter of. this is a prefix to the name of case, often used when a child is involved (In re John Jones)
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ipso facto
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by the fact itself, by the mere fact that
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judicial review
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The authority of a court to review the official actions of other branches of government. Also, the authority to declare unconstitutional the actions of other branches.
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Jurisdiction
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The legal authority of a court to hear and decide a certain type of case. It also is used as a synonym for venue, meaning the geographic area over which the court has territorial jurisdiction to decide cases.
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law
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Basic rules of order pronounced by a government. Common law refers to laws originating in customs or practice. Staute law refers to laws passed by legislatures and recorded in public documents. Case law are pronoucements by courts
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Libel
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Published defamation which tends to injure a person's reputation.
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mandamus
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Latin for "we command." A writ of mandamus is a court order that requires another court, government official, public body, corporation or individual to perform a certain act. For example, after a hearing, a court might issue a writ of mandamus forcing a public school to admit certain students on the grounds that the school illegally discriminated against them when it denied them admission. A writ of mandamus is the opposite of an order to cease and desist, or stop doing something. Also called a "writ of mandate."
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material
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important, going to the heart of the matter; for example, a material fact is necessary to reach a decision
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misrepresentation
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A lie by one spouse before marriage that provides grounds for an annulment. For example, if a spouse failed to mention that he was still married or was incapable of having children, he has misrepresented himself.
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mitigation
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the reduction in a fine, penalty, sentence, or damages intitally assessed or decreed against a defendant
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Moot
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A moot case or a moot point is one not subject to a judicial determination because it involves an abstract question or a pretended controversy that has not yet actually arisen or has already passed. Mootness usually refers to a court's refusal to consider a case because the issue involved has been resolved prior to the court's decision, leaving nothing that would be affected by the court's decision.
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majority opinion
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the opinion agreed to by more than half the judges hearing a case; sometimes called the opinion of the court
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Ordinance
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A rule established by authority; may be a municipal statute of a city council, regulating such matters as zoning, building, safety, matters of municipality, etc.
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parens partiae
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parent of the country; the historical right of all governments to take care of persons under their jurisdiction, particularlly minors and incapacitated persons
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per curiam
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an unsigned decision and opinion of the court, as distinguished from one signed by a judge
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Petitioner
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The person filing an action in a court of original jurisdiction. Also, the person who appeals the judgment of a lower court. (See respondent.)
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Plaintiff
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A person or business that files a formal complaint with the court.
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Pleadings
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Written statements filed with the court which describe a party's legal or factual assertions about the case.
First the plaintiff submits a paper with facts and claims; then the defendant submits a paper with facts and counterclaims; then the plaintiff responds; and so on till all issues and questions are clearly posed for trial |
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political question
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An issue that the federal courts refuse to decide because it properly belongs to the decision-making authority of elected officials, such as the legislature
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Precedent
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A court decision in an earlier case with facts and legal issues similar to a dispute currently before a court. Judges will generally "follow precedent" — meaning that they use the principles established in earlier cases to decide new cases that have similar facts and raise similar legal issues. A judge will disregard precedent if a party can show that the earlier case was wrongly decided, or that it differed in some significant way from the current case.
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prima facie
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Latin for "on its face." A prima facie case is one that at first glance presents sufficient evidence for the plaintiff to win. Such a case must be refuted in some way by the defendant for him to have a chance of prevailing at trial. For example, if you can show that someone intentionally touched you in a harmful or offensive way and caused some injury to you, you have established a prima facie case of battery. However, this does not mean that you automatically win your case. The defendant would win if he could show that you consented to the harmful or offensive touching.
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punitive damages
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Sometimes called exemplary damages, awarded over and above special and general damages to punish a losing party's willful or malicious misconduct
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quasi judicial
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the case deciding function of a administrative agency
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redress
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To set right; to remedy; to compensate; to remove the causes of a grievance.
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remand
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To send a dispute back to the court where it was originally heard. Usually it is an appellate court that remands a case for proceedings in the trial court consistent with the appellate court's ruling.
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res judicata
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Latin for "the thing has been judged," meaning the issue before the court has already been decided by another court, between the same parties. Therefore, the court will dismiss the case before it as being useless. Example: an Ohio court determines that John is the father of Betty's child. John cannot raise the issue again in another state. Sometimes called res adjudicata.
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respondent
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The person against whom an appeal is taken. (See petitioner.) frequently used in appellate and divorce cases rather than the more customary term DEFENDANT
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sectarian
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characteristic of a sect or religion
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secular
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not specifically relgious, ecclesiastical, or clerical; relating to the worldly or temporal
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sine qua non
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a thing or condition that is indispensable
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Slander
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Spoken defamation which tends to injure a person's reputation. (See libel.)
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Sovereign Immunity
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The doctrine that the government, state or federal, is immune to lawsuit unless it give its consent.
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standing
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The legal right to bring a lawsuit. Only a person with something at stake has standing to bring a lawsuit.
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stare decisis
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Latin for "to stand by things decided." Stare decisis is essentially the doctrine of precedent. Courts cite to stare decisis when an issue has been previously brought to the court and a ruling already issued. Generally, courts will adhere to the previous ruling, though this is not universally true.
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Statute of Limitations
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The time within which a lawsuit must be filed or a criminal prosecution begun. The deadline can vary, depending on the type of civil case or the crime charged.
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strict scrutiny
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a stringent standard applied by the courts when a person's important constitutional right is restricted or denied by official action. (highest standard)
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tort
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A civil, not criminal, wrong. A negligent or intentional injury against a person or property, with the exception of breach of contract.
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trial
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A judicial examination of issues between parties to an action.
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trial court
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A trial court or court of first instance is the court in which most civil or criminal cases begin. (as opposed to higher courts where appear are heard)
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ultra vires
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Going beyond the specifically delegated authority to act; for example, a school board which is by law restricted from punishing students for behavior that is wholly off campus might act ultra vires in punishing student behavior at a private party over the weekend
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waiver
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Intentionally given up a right.
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