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Litigation Glossary
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This litigation glossary was prepared
by the law firm of Michael
T. Chulak & Associates for
non-attorneys to assist them in understanding the litigation process and
the terms used in litigation. This litigation glossary is general legal
information only and is not intended to be legal advice. If you need
legal advice, you should consult with an attorney licensed in your
state. |
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is an act that takes place exclusively
by forces of nature, uncontrolled and uninfluenced by man.
Examples are earthquakes, lightning and tornados. |
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is the formal pronouncement of a court
in the form of a judgment or decree. |
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is the acknowledgement of a party to a
lawsuit of the truth of certain facts that are inconsistent with
his or her claims, or helpful to the party requesting the
admission. |
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is a response to the plaintiff’s claim
that attacks the plaintiff’s legal right to bring the action as
opposed to attacking the truth of the claim. Examples are failure
to mitigate, consent, estoppel, and statute of limitations. |
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is a claim made by a party in a
pleading setting forth what he or she intends to prove. |
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refers to the alternatives of
mediation or arbitration, as opposed to litigation, to settle
disputes. Some contracts and statutes require the use of ADR. |
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is that attorney’s fees are not
awardable to the prevailing party in a lawsuit unless authorized
by a contract signed by the parties or a statute. The effect is
that both parties must often pay their own attorney’s fees. |
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is the response by a defendant to a
plaintiff’s complaint denying all or a part of the plaintiff’s
allegations. |
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is a written request to a higher court
to modify or reverse the judgment of a lower court. Generally, an
appellate court will accept as true all of the facts that the
trial court found to be true, and decides only whether an error
was made in applying the law. |
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is a fast, confidential and economical
way to settle most disputes outside the courtroom. It is a process
by which parties submit their dispute to an informed neutral third
party (the arbitrator) who is empowered to render a binding
decision. |
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is the right of an attorney to a claim
against the money or property of a client to compensate the
attorney for legal services provided. |
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is a trial before a judge without a
jury. |
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is to divide the issues in a case so
that one issue, or set of issues, can be tried before the others.
For example, the issue of liability may be tried first and
afterwards, the issue of damages. |
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is a written argument presented to a
court for the purpose of providing “information” and persuading.
It includes a summary of the facts, the relevant law, and an
argument of how the law applies to the facts. |
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refers to the facts that entitle the
plaintiff to file a suit seeking a judicial remedy against the
defendant. |
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is the body of law established by
judicial decisions as opposed to law created by legislation. It
originated in England and the American Colonies before the
Declaration of Independence. |
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is the initial pleading filed by a
plaintiff. It sets forth the claims of the plaintiff and the
remedy sought. The complaint, together with the summons, is served
on the defendant. |
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refers to the right to recover from
another who is jointly liable. |
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is a claim made by a defendant against
a plaintiff or another party alleged to be liable whether or not
the person is already a party to the lawsuit. |
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is the examination of any witness who
testified against that witness on direct examination. The
opportunity to cross-examine a witness takes place as soon as the
witness completes his or her direct testimony. The primary
purposes of cross-examination are to get the witness to say
something favorable to your side, or to impeach or cast doubt on
the witness. |
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is money awarded by a court to
compensate an injured party. There are several definitions or
types of damages that sometimes overlap. |
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are also called actual damages and are
intended to restore the party to the position he or she was in
prior to the injury. Compensatory damages commonly include
property damage, medical costs and lost income. |
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are damages intended to cover those
types of injuries for which it is extremely difficult to calculate
an exact dollar amount. General damages commonly include pain and
suffering, loss of a loved one, loss of reputation and a shortened
life expectancy. |
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are commonly only one dollar. Nominal
damages are awarded when the law requires an award, but there are
no significant damages. |
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or exemplary damages are awarded over
and above special and general damages to punish a losing party’s
malicious or intentional misconduct |
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is an allegation by a defendant that
the complaint does not set forth a cause of action upon which
relief can be granted by the court. It admits for the purpose of
testing the complaint that all facts asserted are true, but not
the conclusions of law. |
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is the oral testimony of a witness
under oath, but not in court. It is part of the discovery process.
A transcript is made of the deposition for use before and during
the trial. |
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is the initial questioning of a party
or witness at trial by the side that called him or her to testify.
The purpose is to explain your version of the facts to the judge
or jury. |
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refers to the pre-trial practice of
obtaining facts about the case from the other party and other
witnesses in order to prepare for trial. Discovery consists of
taking depositions, requests for production of documents,
interrogatories, requests for admission, permission to inspect
property, and physical and mental examinations. It is an
investigatory process governed by court rules. |
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is an order or judgment of the court
disposing of a lawsuit without a trial. A dismissal may be
voluntary or involuntary. |
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consists of testimony, written
materials and objects that are presented in court to prove the
existence or nonexistence of a fact. Evidence may be direct
evidence such as the testimony of an eyewitness. It may also be
indirect evidence or circumstantial evidence which is based on
logical inference. |
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are written rules that govern the
admissibility of evidence in a court. There are both Federal Rules
of Evidence and state codes such as the California Evidence Code. |
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is a witness who has knowledge not
acquired by ordinary persons gained through education and / or
experience. A person qualified as an expert by a court may give
opinion testimony unlike percipient witnesses. Expert testimony is
intended to help the jury understand technical and complex matters
not within the full understanding of the average person. Examples
of experts include physicians, engineers, property managers,
homeowner association consultants, and mortgage bankers. |
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is an actual happening, event or thing
done. |
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is the reasonable anticipation that
injury or harm will likely result from certain acts or failure to
act. In tort law, forseeability is an element of causation. |
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is a worker hired to do a specific job
over which the employer has no right to control the manner in
which the work is done. The worker is generally licensed and
offers services to the public. Independent contractors establish
their own hours and receive no training. Independent contractors
are free to assign work to others, if they determine to do so. |
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is an order of a court that a party do
something or refrain from doing something. It is intended to
prevent harm. Injunctions may be temporary, pending trial
(preliminary injunctions) or may be permanent injunctions ordered
after trial. |
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is any wrong or damage done to another
person, his property, rights or reputation. |
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is the person in whose favor a money
judgment has been entered by a court. |
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is the person against whom a money
judgment has been entered by a court. |
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is the official, final decision of a
court after determining the rights and obligations of the parties.
The term “judgment” also includes “decision” and “decree.” |
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is a notice filed with the court and
recorded in the county recorder’s office by the plaintiff
declaring that a lawsuit has been filed claiming a right to title
or possession to specific real property. The purpose is to notify
anyone dealing with the property that a claim exists that may
affect them adversely. |
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exists when a plaintiff files suit or
continues a suit without probable cause to believe the claims can
be proven. A plaintiff that takes part in malicious prosecution
can be held liable for damages caused. |
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is a settlement conference ordered by
the judge requiring the parties and attorneys to appear in court
for the purpose of attempting to settle a case. |
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is a fast, confidential and economical
way to settle most disputes. It is a process by which parties
submit their dispute to an informed neutral third party (the
mediator) who works with them to reach a settlement. |
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is a pretrial motion requesting the
court to prohibit the opposing lawyer from referring to or
providing evidence that is highly prejudicial, irrelevant or
inadmissible. |
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is an application to the court for the
purpose of obtaining a ruling or order. |
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is a command by the court, following a
hearing, requiring a party to do something or refrain from doing
something. |
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is an order from a judge that directs
a party to appear in court to argue why the judge shouldn’t grant
an action proposed by the opposing side or by the judge. |
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to an action is a person designated as
a plaintiff or defendant. |
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is a formal written application to a
court requesting judicial action. |
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is the plaintiff for certain types of
lawsuits such as divorces. |
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are the formal allegations of the
plaintiff and defendant as to their claims and defenses. The
purpose of pleadings are to provide notice to the opposition as to
what should be expected at trial. The pleadings include the
complaint and answer to the complaint. |
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is the standard of proof in civil
cases. It is evidence that is of greater weight or more convincing
that the opposing evidence. |
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is a conference called by the court
prior to trial for the purpose of narrowing the trial issues, to
secure stipulations and to take any other steps that will assist
in the disposition of the case. |
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is the party who prevails on the main
issue. The party who successfully prosecutes or defends. Some
statutes award attorney’s fees to the prevailing party. |
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means presumed to be true unless
disproved by contrary evidence. |
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is Latin meaning “for one’s self.” It
is used to describe a person who is representing himself or
herself in court, without a lawyer. |
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is Latin meaning “for himself.” It has
the same meaning as pro per. |
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is the establishment of a fact by
evidence or the effect of evidence. |
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refers to the reasonable value of
services provided. |
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is evidence that tends to prove or
disprove an alleged fact. Evidence is relevant if it tends to make
the existence of a material fact more likely or probable. |
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is a discovery procedure in which a
party asks another party to admit or deny that certain facts are
true. If the opposing party fails to respond in a timely manner,
the facts will be deemed true for purposes of the trial. |
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means “the thing has been decided.” |
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is the doctrine that court decisions
should stand as precedent for future cases. |
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is a court-ordered conference where
the attorneys appear before the judge to report on the status of
the case. There may be one or more status conferences prior to
trial. |
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refers to the time limit for filing a
lawsuit. Statutes of limitation differ depending on the type of
claim and state. If a claim is not filed timely, it will be banned
from being filed. |
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refers to the doctrine of liability
without fault or negligence. One who sells a defective product
that is unreasonably dangerous to the use or his property is
subject to strict liability for the harm caused. |
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is a type of subpoena, or court order,
issued at the request of a party to a lawsuit requiring a witness
to produce specified documents at a deposition or trial. |
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is a court order issued at the request
of a party to a lawsuit requiring a witness to appear in court. |
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A Motion for Summary Judgment is a
procedural device designed to end a case without trial when there
is no dispute concerning material facts, the only dispute being
questions of law. The motion can be directed toward all of a
portion of the claim. If the motion is successful, it results in a
summary judgment. |
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Upon the filing of a complaint, the
clerk of the court issues a Summons and delivers it for service to
a person appointed to serve it on the defendant. It notifies the
defendant that an action has been filed against him of her in the
court from which the process issues and that he or she is required
to respond. |
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is a short term, emergency order of a
court issued only in extraordinary circumstances and only until a
trial court can hear the matter. Is it intended to maintain the
status quo pending a hearing for an injunction. |
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is a private or civil wrong for which
a court will provide a remedy. It may be an intentional act or
negligence that results in some form of injury. |
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is the formal decision or finding made
by a jury |
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