glossaryoflegalterminology finalized

7/28/2019 GlossaryofLegalTerminology Finalized

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Glossary of Legal Terminology

accused: One charged with an offense; the defendant in a criminal case

actus reus: The unlawful act; that a person commits an action which is forbidden by law.

acquittal: Judgment of not guilty beyond a reasonable doubt.

adjudicate: To hear or try and determine judicially.

adversary: An opponent. The defendant is the plaintiff's adversary.

adversarial system: The system of trial practice in which each of the opposing, or adversarial,parties has full opportunity to present and establish its opposing contentions before the court.

affidavit: A written statement of facts confirmed by the oath of the party making it, before a notaryor officer having authority to administer oaths.

affirmed: In the appellate courts, the decree or order is declared valid and will stand as rendered inthe lower court.

agent:A person who has received the power to act on behalf of another, binding that other person asif he or she were themselves making the decisions .

allege: To assert without proof or before proving.

amicus curiae:Literally, friend of the court. Refers more specifically to persons asking forpermission to intervene in a case in which they are neither claimant nor defendant, usually to present

their point of view (or that of their organisation) in a case which has the potential of setting a legal

precedent in their area of activity. This is common, for example, in cases involving civil rights and, in

some instances, can only be done with the permission of the parties or the court.

antedate: To date back retroactively, to date a document to a time before it was actually written.

appeal: A request made after a trial, asking another court (usually the court of appeals) to decidewhether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal"

to a higher court.

appellant: The party who takes an appeal to a higher court (See petitioner).

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

appellee: The party against whom an appeal in a higher court is taken (See respondent).

arbitration: An alternative dispute resolution method by which an independent, neutral third person("arbitrator") is appointed to hear and consider the merits of the dispute and renders a final and

binding decision called an award.

argument: A reason given in proof or rebuttal.

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

arson:Criminal offense of intentionally starting a fire in order to cause harm.

assault and battery:Criminal offense - to inflict offensive physical bodily harm on a person andbeating or use of force on a person.

attorney: An alternate word for lawyers or "barrister& solicitor". A person who has been trained inthe law and is certified to give legal advice or to represent others in litigation
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bad faith: Intent to deceive. A person who intentionally tries to deceive or mislead another in orderto gain some advantage.

bail: Security given for the release of a criminal defendant or witness from legal custody (usually inthe form of money) to secure his appearance on the day and time appointed.

bankruptcy: Refers to statutes and judicial proceedings involving persons or businesses that cannot

pay their debts and seek the assistance of the court in getting a fresh start. Under the protection of thebankruptcy court, debtors may discharge their debts, perhaps by paying a portion of each debt.

Bankruptcy judges preside over these proceedings.

barrister: A litigation specialist; a lawyer that restricts his or her practice to the courtroom. InEngland and other Commonwealth jurisdictions, a legal distinction is made between barristers and

solicitors, the latter with exclusive privileges of advising clients, providing legal advice, and the

former with exclusive privileges of appearing in all courts on behalf of a client. In other words,

solicitors appear only in lower courts on a client's behalf and barristers in all courts.

battered woman syndrome: A post traumatic stress disorder. The jury in a murder trial can

consider this disorder as a relevant characteristic, which makes her more prone to loss of self-control.bench trial: Trial without a jury in which a judge decides the facts.

beneficiary: In a strictly legal context, a "beneficiary" usually refers to the person for whom a trusthas been created. It also refers to a person who benefits under a will.

bona fide: Literally, in good faith; used to signify honesty and absence of fraud or collusion orparticipation in any wrongdoing.

brief: A written statement submitted by the lawyer for each side in a case that explains to the judgeswhy they should decide the case or a particular part of a case in favor of that lawyer's client.

burden of proof: A rule of evidence that makes a plaintiff prove a certain thing or the contrary willbe assumed by the court. In criminal trials, the prosecution has the burden of proving the accused

guilty because innocence is presumed.

burglary: Breaking into premises in order to steal [something].

chambers: A judge's office. [Also in camera in chambers, in private.]

capital offense: A crime punishable by death. The death penalty is referred to as capitalpunishment.

case law: The entire collection of published legal decisions of the courts, which incorporates theprinciple ofstare decisis. If a rule of law cannot be found in written laws, lawyers will say that it is to

be found in "case law." In other words, the rule is not in the statutes but can be found as a principle of

law established by a judge in some recorded case.

change of venue: The removal of a suit or case begun in one county or district to another county ordistrict for trial, often to avoid bias or discrimination.

charge to the jury: The judge's instructions to the jury concerning the law that applies to the factsof the case on trial.

circumstantial evidence: All evidence except eyewitness testimony.

class action: When different persons combine their lawsuits because the facts and the defendant are

so similar. To save Court time and to allow one judge to hear all the cases at the same time and tomake one decision binding on all parties.
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clerk of court: An officer appointed by the court to work with the chief judge in overseeing thecourt's administration, especially to assist in managing the flow of cases through the court and to

maintain court records.

client-lawyer privilege: A right that belongs to the client of a lawyer that the latter keep strictlyconfidential any information or words spoken to her or him during the legal sessions with the client.

This includes being shielded from testimony before a court of law. The client may expressly orimplicitly waive the privilege and, in very rare exceptions, it may also be waived by the lawyer if the

disclosure of the information may prevent a serious crime.

collusion: A secret agreement between two or more persons, who seem to have conflicting interests,to abuse the law or the legal system, deceive a court or to defraud a third party.

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

complaint: A written statement by the plaintiff stating the wrongs allegedly committed by thedefendant.

confession: A statement made by a person suspected or charged with a crime, that he (or she) did, infact, commit that crime.

consideration: The basis of a contract. Consideration is a benefit or right for which the parties to acontract must bargain; the contract is founded on an exchange of one form of consideration for

another. Consideration may be a promise to perform a certain act for example, a promise to fix a

leaky roof or a promise not to do something, such as build a second story on a house that will block

the neighbor's view. Whatever its particulars, consideration must be something of value to the people

who are making the contract.

conspiracy: An agreement between two or more persons to commit a criminal act; those forming

the conspiracy are called conspirators.

contempt of court: An act of defiance of court authority or dignity. Contempt of court can bedirect (swearing at a judge or violence against a court officer) or constructive (disobeying a court

order). The punishment for contempt is a fine or a brief stay in jail (e.g. overnight or until the

contempt is erased by an apology).

contract: An agreement between two or more persons that creates an obligation to do or not to do aparticular thing.

conviction: A judgment of guilt against a criminal defendant.

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

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

court: Government entity authorized to resolve legal disputes. Judges sometimes use "court" to referto 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 and producesa transcript of the proceedings upon request.

cross-examination: In trials, when each party questions the other's witnesses. Lawyers are allowedmore latitude in cross-examination then when they question their own witnesses.

culpable: Deserving punishmentcustody: Keeping a defendant in detention before trial, as in remand in custody.


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damages: Money paid by defendants to successful plaintiffs in civil cases to compensate theplaintiffs for their injuries.

default judgment: A judgment rendered because of the defendant's failure to answer or appear.

defendant: In a civil suit, the person complained against; in a criminal case, the person accused ofthe crime.

deposition: An oral statement made before an officer authorized by law to administer oaths. Suchstatements are often taken to examine potential witnesses, to obtain discovery, or to be used later in

trial. (Today, depositions are often videotaped by persons notarized to record on video.)

discovery: Lawyers' examination, before trial, of facts and documents in possession of theopponents to help the lawyers prepare for trial.

docket: A log containing brief entries of court proceedings.

due process: A term, principally of US law which refers to fundamental procedural legal safeguardsof which every citizen has an absolute right when a state or court purports to take a decision that could

affect any right of that citizen. The most basic right protected under the due process doctrine is theright to be given notice, and an opportunity to be heard.

en banc: "In the bench" or "full bench." Refers to court sessions with the entire membership of acourt 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.

entrapment: The inducement, by law enforcement officers, of another person to commit a crime forthe purposes of bringing charges for the commission of that artificially provoked crime. This

technique, because it involves abetting the commission of a crime, which is itself a crime, is severely

curtailed under the constitutional law of most countries.

equity: A judgment based on conscience which prevents an unfair common law court judgment frombeing enforced.

escrow: Money or a written document (such as shares or a deed) held by a third party until a certaincondition is met between the two contracting parties.

euthanasia: Putting to death a terminally ill or severely debilitated person through omission theintentional withholding of a life-saving medical procedure ("passive euthanasia"), orcommission of an

act such as administering a lethal injection or drug ("active euthanasia").

evidence: Information presented in testimony or in documents that is used to persuade the fact finder(judge or jury) to decide the case for one side or the other.

exculpate: Something that excuses or justifies a wrong action (as in exculpatory behavior).

extradition: A formal process by which a criminalsuspectheld by one government is handed overto another government fortrial or, if the already tried and found guilty, to serve his or hersentence.

felony: A serious crime carrying a penalty of more than a year in prison.

fiduciary: A lawyer or trustee who has rights and powers which would normally belong to anotherperson. The fiduciary holds those rights which must be exercised to the benefit of thebeneficiary.

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

find for: To decide in favor of.
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fraud: Deceitful conduct to manipulate or cheat another person (1) by lying, (2) by repeatingsomething that ought to have been known as false or suspect or (3) by concealing a fact from the other

party which may have saved that party from being cheated. The existence of fraud will cause a court to

void a contract and can give rise to criminal liability.

fugitive: One who runs away to avoid arrest, prosecution or imprisonment. Many extradition laws

also call the suspect a "fugitive" although, in that context, it does not necessarily mean that the suspectwas trying to hide in the country from which extradition is being sought.

garnish: To seize a person's property, credit or salary, on the basis of a law which allows it, and forthe purposes of paying off a debt.

grand jury: A body of citizens who listen to evidence of criminal allegations, which are presentedby the government (prosecutors), and determine whether there is probable cause to believe the offense

was committed.

guilty: Having committed a crime; verdict of judge or jury that a defendant is guilty.

habeas corpus: Literally, to have the body. A writ to obtain the release of someone who has been

unlawfully held in prison or in police custody, or to make the person holding him bring him to court toexplain why he is being held and whether the detention is lawful.

hearsay: Statements by a witness who did not see or hear the incident in question but heard about itfrom someone else. Hearsay is usually not admissible as evidence in court.

hold, held: Wording used to introduce the judgment in a case.

homicide: Killing a human being.

immunity: Exemption or safety from prosecution or punishment.

impeachment: (1) The process of calling something into question, as in "impeaching the testimonyof 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.

indictment: The formal charge issued by a grand jury stating that there is enough evidence that thedefendant committed the crime to justify having a trial; it is used primarily for felonies.

injunction: An order of the court prohibiting (or compelling) the performance of a specific act toprevent irreparable damage or injury.

innocent:Free from legal guilt or fault, verdict of Not Guilty from a judge or jury.

instructions: Judge's explanation to the jury before it begins deliberations of the questions it must

answer and the law governing the case.

interrogatories: Written questions asked by one party of an opposing party, who must answer themin writing under oath; a discovery device in a lawsuit.

intestate: Dying without having made a will; the estate is divided up between relatives following therules set by law.

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

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 theparties to a suit.
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judicial activism: A judiciary which performs its functions in a vigorous and decisive manner toachieve an end which may mean overruling legislative decisions.

judicial review: A process where the high court is asked to rule on the appropriateness of thegovernment's decision; not limited to errors in law but may be based on alleged errors on the part of

the government on findings of fact. A distinguishing feature of judicial review is that it reviews the

process of the decision making and not the decision itself. Government ministers' decisions can, andoften are, judicially reviewed.

jurisdiction: (1) The legal authority of a court to hear and decide a case. (2) The geographic areaover which the court has authority to decide cases.

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

jury: Persons selected according to law and sworn to hear the evidence and declare a verdict onmatters of fact.

larceny: The unlawful taking of someone's personal property; petit (petty) larceny: taking propertyof a value below a legally established minimum; grand larceny: taking property of a value greater

than that fixed as constituting petit larceny

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

liability: Any legal obligation, either due now or at some time in the future. It could be a debt or apromise to do something. To say a person is "liable" for a debt or wrongful act is to indicate that they

are the person responsible for paying the debt or compensating the wrongful act.

lien: The right to hold the properly of another as security for the performance of an obligation.

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

called litigants.

living will: A document that sets out guidelines for dealing with life sustaining medical proceduresin the eventuality of the signatory's sudden debilitation. Living wills inform medical staff not to

provide extraordinary life preserving procedures on individual if they are incapable of expressing

themselves and suffering from an incurable and terminal condition.

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.

manslaughter: The unlawful killing of a person but without malice or intent.

mediation: The most popular form of alternative dispute resolution, it involves the appointment of amediator who acts as a facilitator assisting the parties in communicating, essentially negotiating a

settlement. The mediator does not adjudicate the issues in dispute or force a compromise; only the

parties, of their own volition, can shift their position in order to achieve a settlement. The result of a

successful mediation is called a "settlement." (Compare with arbitration.)

mens rea: Literally, guilty mind. The concept focuses on the mental state of the accused and requiresproof of a guilty state of mind such as intent, recklessness, or willful blindnes

minor: A person who is legally underage. In the UK, it is 18 years of age. In the USA, each state setsan age threshold at which time a person is deemed an adult with all legal rights.

misdemeanor: Usually a petty offense, a less serious crime than a felony, punishable by less than ayear of confinement.
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Miranda warning: In the US also known as the "Miranda Rule, this is the name given to therequirement that police officers must warn suspects upon arrest that they have the right to remain

silent, that any statement that they make could be used against them in a court of law, that they have

the right to contact a lawyer and that if they cannot afford a lawyer, that one will be provided before

any questioning if so desired. Failure to issue the Miranda warning results in the evidence so obtained

not being admissible in the court.

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

mitigating circumstances: Facts that, while not negating a wrongful action, show that thedefendant may have had grounds for acting the way he or she did, e.g. an assault, though provoked, is

still assault but provocation may constitute mitigating circumstances and allow for a lesser sentence.

modus operandi: Literally, method of operation. Refers to a criminal's preferred method ofcommitting crime. For example, car thief "X" may have a breaking and entering technique that leaves

a long scratch on the car door. Upon discovery of a stolen vehicle with such a mark, the police might

include "X" in the list of suspects because the evidence at the crime scene is consistent with his

"modus operandi."

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

oath: A solemn affirmation (often while holding a Bible) to tell the truth or to take a certain action.

obiter dictum: Literally "something said by the way".A side opinion which does not form part ofthe judgment for the purposes ofstare decisis. May also be referred to as "dicta" or "dictum".

offer: An explicit proposal tocontractwhich, if accepted, completes the contract and binds both theperson that made the offer and the person accepting the offer to the terms of the contract.

opinion: A judge's written explanation of the court's decision or of the decision of a majority ofjudges. 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 toanswer the judges' questions.

overrule: To reject or set aside.

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

paralegal: A person who is not a lawyer but provides a limited number of legal services.

pardon: A decision by a judge or a high-ranking government official (e.g. the President) to allow aperson convicted of a crime to be free and absolved of that conviction, as if never convicted.

parole: An early release from prison in which the prisoner promises to heed certain conditions(usually set by a parole board) and under the supervision of a probation officer. Any violation of those

conditions could result in the return of the person to prison.

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

per curiam: A "per curiam" decision is a decision delivered via an opinion issued in the name of theCourt rather than specific justices. [Latin: by the court]. Often, a statement made by the court to clarify

a point of law; it can be used as a precedent .
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perjury: An intentional lie given while under oath or in a sworn affidavit.

petit jury (or trial jury): A group of citizens who hear the evidence presented by both sides attrial and determine the facts in dispute. Federal criminal juries consist of 12 persons. Federal civil

juries consist of six persons.

petitioner: The person who appeals the judgment of a lower court; also called Appellant.

plaintiff: The person who files the complaint in a civil lawsuit.

plea: In a criminal case, the defendant's statement pleading "guilty" or "not guilty" in answer to thecharges, a declaration made in open court.

plea bargaining:. The negotiation of an agreement between a prosecutor and a defendant wherebythe defendant is permitted to plead guilty to a reduced charge.

precedent: A court decision in an earlier case with facts and law similar to a dispute currentlybefore a court. Precedent will ordinarily govern the decision of a later similar case, unless a party can

show that it was wrongly decided or that it differed in some significant way.

pretrial conference: A meeting of the judge and lawyers to discuss which matters should bepresented to the jury, to review evidence and witnesses, to set a timetable, and to discuss the

settlement of the case.

prima facie case: A case supported by evidence, enough evidence for a grand jury to indict.

pro bono (publica): Literally, for the public good. Work done by lawyers free of charge.

probation: A sentencing alternative to imprisonment in which the court releases convicteddefendants under supervision as long as certain conditions such as reporting regularly to a probation

officer or not leaving the city or not contacting a specific person are observed. Failing to fulfill the

conditions is cause for being jailed immediately. (Today called Community Rehabilitation Order).

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

promissory note: An unconditional, written and signed direct promise from thepayorto thepayeeto pay a certain amount of money, on demand or at a certain defined date in the future.

prosecute: To charge someone with a crime. A prosecutor tries a criminal case on behalf of thegovernment.

punitive: Inflicting or aimed at punishment.

punitive damages: Money awarded to the plaintiff in excess of normal compensation in order topunish a defendant for a serious wrong.

ratio decidendi: One part of the judgment in a case: the reason for the decision.

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

recuse: To refuse to do something; often describes the behavior of a judge, arbitrator or other courtofficial who leaves the court room because of unacceptable behavior or an embarrassing situation.

relief: When a court redresses (corrects) a wrong, usually with compensation or damages.

remand: (1) To send a case back to a lower court for further proceedings; (2) to return a suspect to

custody pending trial or for further detention.

remedy: Compensation for a wrong; the legal means to recover a right.
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res ipsa loquitur: Literally, the thing speaks for itself. Refers to situations where negligence ispresumed on the part of the defendant since the object causing injury was in his or her control. It can

only be defeated if the defendant can show that the event was a total and inevitable accident.

respondent: Party who "responds to" a claim filed in court against them by a plaintiff or claimant;more commonly called the defendant. The word is also used to refer to the party who wins at the first

court level but who must then respond to an appeal launched by the party that lost the case (uponappeal, this latter person is called the appellant).

retainer: A contract between a lawyer and his or her client, wherein the lawyer receives an initialsum of money and agrees to represent and provide legal advice to the client. The signed retainer

begins the client lawyer relationship which imposes many responsibilities and duties on the lawyer.

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

ruling: An official decision by a judge on a point of law.

seal: To close a case file from public scrutiny. In cases of youthful offenders, sealing orders are

issued by the court to prevent the public from obtaining information on the cases.

search warrant: A written order issued by a judge that directs a law enforcement officer to searcha specific area for a particular piece of evidence.

sentence: The punishment ordered by a court for a defendant convicted of a crime.

settlement: Parties to a lawsuit resolve their difference without having a trial. Settlements ofteninvolve the payment of compensation by one party in satisfaction of the other party's claims.

sequester: To separate. Sometimes juries are sequestered [in hotels, with nor radio or TV ornewspapers] from outside influences during their deliberations.

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

slippery slope: Many judges are cautious (evenly overly cautious) because they fear a slipperyslope in which a legal ruling will initiate a chain of rulings that will lead to other more undesirable

ruling later, or a seemingly harmless or appealing judgment now may lead other judges to use this as

the precedent for implement a far more dangerous judgement in the future.

specific performance: A remedy requiring a person who has breached a contract to performspecifically what he or she has agreed to do. Specific performance is ordered when damages would be

inadequate compensation.

stare decisis: When a court follows precedent of previous cases.

statute: A law passed by a legislature.

statute of limitations: A statute which limits the right of a plaintiff to file an action unless it isdone within a specified time period after the occurrence.(Also refers to certain criminal actions.)

stay: A court order halting a judicial proceeding.

sub judice: Under consideration by a judge or court.

subpoena: A command to a witness to appear and give testimony.

substantive: Referring to the substance of the law rather than to procedure.

sue: To start civil proceedings against someone.
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summary judgment: A decision made on the basis of statements and evidence presented for therecord 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.

summons: A written order telling someone to appear in court.

suspect: A person thought to be guilty or culpable on slight evidence or without proof.

sustain: A court ruling upholding an objection or a motion.

temporary restraining order: Prohibits a person from an action that is likely to causeirreparable 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.

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

third party complaint: A petition filed by a defendant against a third party (not presently a partyto the suit) which alleges that the third party is liable for all or part of the damages plaintiff may win

from defendant.

tort: A civil wrong or breach of a duty to another person, as outlined by law. A very common tort isnegligent operation of a motor vehicle that results in property damage and personal injury in an

automobile accident.

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

uphold: The decision of an appellate court not to reverse a lower court decision. [See affirm.]

U.S. attorney: A lawyer appointed by the President in each judicial district to prosecute and defendcases for the federal government.

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

verdict: The decision of a petit jury or a judge.

voir dire: The process by which judges and lawyers select a petit jury from among those eligible toserve, 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."

warrant: A written order directing the arrest of a party. A search warrant orders that a specificlocation be searched for items, which if found, can be used in court as evidence.

witness: A person called upon by either side in a lawsuit to give testimony before the court or jury.

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

writ ofcertiorari: An order issued by the Supreme Court directing the lower court to transmitrecords for a case for which it will hear on appeal.

glossaryoflegalterminology finalized

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