It may seem that Lawyers speak a different language at times. It can be confusing when you are discussing a legal issue and your lawyer uses a term that you are unfamiliar with. But, there are several very good reasons why Lawyers use these words. Many words that we use in everyday speech may have different meanings, or connotations, to different people. By using well defined legal terms, Lawyers are able to avoid these misunderstandings.Please feel free to use this Guide to familiarize yourself with some common legal terms.
|A short glossary of common legal terms.|
|Acquittal||A jury verdict that a criminal defendant is not guilty, or the finding of a judge that the evidence is insufficient to support a conviction.|
|Admissible||A term used to describe evidence that may be considered by a jury or judge in civil and criminal cases.|
|Affidavit||A written or printed statement made under oath.|
|Alternative dispute resolution (ADR)||A procedure for settling a dispute outside the courtroom. Most forms of ADR are not binding, and involve referral of the case to a neutral party such as an arbitrator or mediator.|
|Amicus curiae||Latin for “friend of the court.” It is advice formally offered to the court in a brief filed by an entity interested in, but not a party to, the case.|
|Answer||The formal written statement by a defendant in a civil case that responds to a complaint, articulating the grounds for defense.|
|Appeal||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.”|
|Bail||The release, prior to trial, of a person accused of a crime, under specified conditions designed to assure that person’s appearance in court when required. Also can refer to the amount of bond money posted as a financial condition of pretrial release.|
|Bankruptcy||A legal procedure for dealing with debt problems of individuals and businesses; specifically, a case filed under one of the chapters of title 11 of the United States Code (the Bankruptcy Code).|
|Bench trial||A trial without a jury, in which the judge serves as the fact-finder.|
|Brief||A written statement submitted in a trial or appellate proceeding that explains one side’s legal and factual arguments.|
|Burden of proof||The duty to prove disputed facts. In civil cases, a plaintiff generally has the burden of proving his or her case. In criminal cases, the government has the burden of proving the defendant’s guilt. (See standard of proof.)|
|Case file||A complete collection of every document filed in court in a case.|
|Case law||The law as established in previous court decisions. A synonym for legal precedent. Akin to common law, which springs from tradition and judicial decisions.|
|Cause of action||A legal claim.|
|Claim||A creditor’s assertion of a right to payment from a debtor or the debtor’s property.|
|Class action||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.|
|Clerk of court||The court officer who oversees administrative functions, especially managing the flow of cases through the court. The clerk’s office is often called a court’s central nervous system.|
|Collateral||Property that is promised as security for the satisfaction of a debt.|
|Common law||The legal system that originated in England and is now in use in the United States, which relies on the articulation of legal principles in a historical succession of judicial decisions. Common law principles can be changed by legislation.|
|Complaint||A written statement that begins a civil lawsuit, in which the plaintiff details the claims against the defendant.|
|Contract||An agreement between two or more people that creates an obligation to do or not to do a particular thing.|
|Counsel||Legal advice; a term also used to refer to the lawyers in a case.|
|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.”|
|Court reporter||A person who makes a word-for-word record of what is said in court, generally by using a stenographic machine, shorthand or audio recording, and then produces a transcript of the proceedings upon request.|
|Damages||Money that a defendant pays a plaintiff in a civil case if the plaintiff has won. Damages may be compensatory (for loss or injury) or punitive (to punish and deter future misconduct).|
|Debtor||A person who has filed a petition for relief under the Bankruptcy Code.|
|Defendant||An individual (or business) against whom a lawsuit is filed.|
|Declaratory judgment||A judge’s statement about someone’s rights. For example, a plaintiff may seek a declaratory judgment that a particular statute, as written, violates some constitutional right.|
|De facto||Latin, meaning “in fact” or “actually.” Something that exists in fact but not as a matter of law.|
|Default judgment||A judgment awarding a plaintiff the relief sought in the complaint because the defendant has failed to appear in court or otherwise respond to the complaint.|
|Defendant||In a civil case, the person or organization against whom the plaintiff brings suit; in a criminal case, the person accused of the crime.|
|De jure||Latin, meaning “in law.” Something that exists by operation of law.|
|De novo||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.|
|Deposition||An oral statement made before an officer authorized by law to administer oaths. Such statements are often taken to examine potential witnesses, to obtain discovery, or to be used later in trial. See discovery.|
|Discharge||A release of a debtor from personal liability for certain dischargeable debts. Notable exceptions to dischargeability are taxes and student loans. A discharge releases a debtor from personal liability for certain debts known as dischargeable debts and prevents the creditors owed those debts from taking any action against the debtor or the debtor’s property to collect the debts. The discharge also prohibits creditors from communicating with the debtor regarding the debt, including through telephone calls, letters, and personal contact.|
|Dismissal with prejudice||Court action that prevents an identical lawsuit from being filed later.|
|Dismissal without prejudice||Court action that allows the later filing.|
|Docket||A log containing the complete history of each case in the form of brief chronological entries summarizing the court proceedings.|
|Due process||In criminal law, the constitutional guarantee that a defendant will receive a fair and impartial trial. In civil law, the legal rights of someone who confronts an adverse action threatening liberty or property.|
|En banc||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 11 randomly selected judges.|
|Equitable||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 (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.|
|Equity||The value of a debtor’s interest in property that remains after liens and other creditors’ interests are considered. (Example: If a house valued at $60,000 is subject to a $30,000 mortgage, there is $30,000 of equity.)|
|Evidence||Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case in favor of one side or the other.|
|Ex parte||A proceeding brought before a court by one party only, without notice to or challenge by the other side.|
|File||To place a paper in the official custody of the clerk of court to enter into the files or records of a case.|
|Impeachment||1. The process of calling a witness’s testimony into doubt. For example, if the attorney can show that the witness may have fabricated portions of his testimony, the witness is said to be “impeached;” 2. The constitutional process whereby the House of Representatives may “impeach” (accuse of misconduct) high officers of the federal government, who are then tried by the Senate.|
|In camera||Latin, meaning in a judge’s chambers. Often means outside the presence of a jury and the public. In private.|
|Injunction||A court order preventing one or more named parties from taking some action. A preliminary injunction often is issued to allow fact-finding, so a judge can determine whether a permanent injunction is justified.|
|Interrogatories||A form of discovery consisting of written questions to be answered in writing and under oath.|
1. The disputed point between parties in a lawsuit; 2. To send out officially, as in a court issuing an order.
A court-approved mechanism under which two or more cases can be administered together. (Assuming no conflicts of interest, these separate businesses or individuals can pool their resources, hire the same professionals, etc.)
One bankruptcy petition filed by a husband and wife together.
An official of the Judicial branch with authority to decide lawsuits brought before courts. Used generically, the term judge may also refer to all judicial officers, including Supreme Court justices.
The position of judge. By statute, Congress authorizes the number of judgeships for each district and appellate court.
The official decision of a court finally resolving the dispute between the parties to the lawsuit.
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.
The study of law and the structure of the legal system.
The group of persons selected to hear the evidence in a trial and render a verdict on matters of fact. See also grand jury.
A legal action started by a plaintiff against a defendant based on a complaint that the defendant failed to perform a legal duty which resulted in harm to the plaintiff.
A charge on specific property that is designed to secure payment of a debt or performance of an obligation. A debtor may still be responsible for a lien after a discharge.
A case, controversy, or lawsuit. Participants (plaintiffs and defendants) in lawsuits are called litigants.
The sale of a debtor’s property with the proceeds to be used for the benefit of creditors.
A creditor’s claim for a fixed amount of money.
An invalid trial, caused by fundamental error. When a mistrial is declared, the trial must start again with the selection of a new jury.
Not subject to a court ruling because the controversy has not actually arisen, or has ended.
A request by a litigant to a judge for a decision on an issue relating to the case.
Motion to lift the automatic stay
A request by a creditor to allow the creditor to take action against the debtor or the debtor’s property that would otherwise be prohibited by the automatic stay.
Motion in Limine
A pretrial motion requesting the court to prohibit the other side from presenting, or even referring to, evidence on matters said to be so highly prejudicial that no steps taken by the judge can prevent the jury from being unduly influenced.
No contest. A plea of nolo contendere 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.
A judge’s written explanation of the decision of the court. Because a case may be heard by three or more judges in the court of appeals, the opinion in appellate decisions can take several forms. If all the judges completely agree on the result, one judge will write the opinion for all. If all the judges do not agree, the formal decision will be based upon the view of the majority, and one member of the majority will write the opinion. The judges who did not agree with the majority may write separately in dissenting or concurring opinions to present their views. A dissenting opinion disagrees with the majority opinion because of the reasoning and/or the principles of law the majority used to decide the case. A concurring opinion agrees with the decision of the majority opinion, but offers further comment or clarification or even an entirely different reason for reaching the same result. Only the majority opinion can serve as binding precedent in future cases. See also precedent.
An opportunity for lawyers to summarize their position before the court and also to answer the judges’ questions.
Latin, meaning “for the court.” In appellate courts, often refers to an unsigned opinion.
A district court may grant each side in a civil or criminal trial the right to exclude a certain number of prospective jurors without cause or giving a reason.
Petit jury (or trial jury)
A group of citizens who hear the evidence presented by both sides at trial and determine the facts in dispute. Federal criminal juries consist of 12 persons. Federal civil juries consist of at least six persons.
The document that initiates the filing of a bankruptcy proceeding, setting forth basic information regarding the debtor, including name, address, chapter under which the case is filed, and estimated amount of assets and liabilities.
A person or business that files a formal complaint with the court.
A debtor’s detailed description of how the debtor proposes to pay creditors’ claims over a fixed period of time.
In a criminal case, the defendant’s statement pleading “guilty” or “not guilty” in answer to the charges. See also nolo contendere.
Written statements filed with the court that describe a party’s legal or factual assertions about the case.
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.
A meeting of the judge and lawyers to plan the trial, to discuss which matters should be presented to the jury, to review proposed evidence and witnesses, and to set a trial schedule. Typically, the judge and the parties also discuss the possibility of settlement of the case.
The rules for conducting a lawsuit; there are rules of civil procedure, criminal procedure, evidence, bankruptcy, and appellate procedure.
Proof of claim
A written statement describing the reason a debtor owes a creditor money, which typically sets forth the amount of money owed. (There is an official form for this purpose.)
A slang expression sometimes used to refer to a pro se litigant. It is a corruption of the Latin phrase “in propria persona.”
Representing oneself. Serving as one’s own lawyer.
To charge someone with a crime. A prosecutor tries a criminal case on behalf of the government.
A written account of the proceedings in a case, including all pleadings, evidence, and exhibits submitted in the course of the case.
The act of a court setting aside the decision of a lower court. A reversal is often accompanied by a remand to the lower court for further proceedings.
A penalty or other type of enforcement used to bring about compliance with the law or with rules and regulations.
Service of process
The delivery of writs or summonses to the appropriate party.
Parties to a lawsuit resolve their dispute without having a trial. Settlements often involve the payment of compensation by one party in at least partial satisfaction of the other party’s claims, but usually do not include the admission of fault.
To separate. Sometimes juries are sequestered from outside influences during their deliberations.
A law passed by a legislature.
Statute of limitations
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.
Latin, meaning “of its own will.” Often refers to a court taking an action in a case without being asked to do so by either side.
The act or process by which a person’s rights or claims are ranked below those of others.
A command, issued under a court’s authority, to a witness to appear and give testimony.
Subpoena duces tecum
A command to a witness to appear and produce documents.
The characterization of a bankruptcy case filed by an individual whose debts are primarily consumer debts where the court finds that the granting of relief would be an abuse of chapter 7 because, for example, the debtor can pay its debts.
Putting the assets and liabilities of two or more related debtors into a single pool to pay creditors. (Courts are reluctant to allow substantive consolidation since the action must not only justify the benefit that one set of creditors receives, but also the harm that other creditors suffer as a result.)
A decision made on the basis of statements and evidence presented for the record without a trial. It is used when it is not necessary to resolve any factual disputes in the case. Summary judgment is granted when – on the undisputed facts in the record – one party is entitled to judgment as a matter of law.
Temporary restraining order
Akin to a preliminary injunction, it is a judge’s short-term order forbidding certain actions until a full hearing can be conducted. Often referred to as a TRO.
Evidence presented orally by witnesses during trials or before grand juries.
See statute of limitations.
A civil, not criminal, wrong. A negligent or intentional injury against a person or property, with the exception of breach of contract.
Any mode or means by which a debtor disposes of or parts with his/her property.
A written, word-for-word record of what was said, either in a proceeding such as a trial, or during some other formal conversation, such as a hearing or oral deposition.
Unlawful detainer action
A lawsuit brought by a landlord against a tenant to evict the tenant from rental property – usually for nonpayment of rent.
The geographic area in which a court has jurisdiction. A change of venue is a change or transfer of a case from one judicial district to another.
The decision of a trial jury or a judge that determines the guilt or innocence of a criminal defendant, or that determines the final outcome of a civil case.
Jury selection process of questioning prospective jurors, to ascertain their qualifications and determine any basis for challenge.
A transfer of a debtor’s property with the debtor’s consent.
A nonbankruptcy legal proceeding whereby a plaintiff or creditor seeks to subject to his or her claim the future wages of a debtor. In other words, the creditor seeks to have part of the debtor’s future wages paid to the creditor for a debt owed to the creditor.
Court authorization, most often for law enforcement officers, to conduct a search or make an arrest.
A person called upon by either side in a lawsuit to give testimony before the court or jury.
A written court order directing a person to take, or refrain from taking, a certain act.
Writ of certiorari
An order issued by the U.S. Supreme Court directing the lower court to transmit records for a case which it will hear on appeal.