fundamental terminology
TRANSCRIPT
Legal English for International AttorneysFundamental TerminologyElizabeth Baldwin, M.A., [email protected]
Dr. Dana [email protected]
Overview
Sources of Law
Studying Cases
Civil Procedure
Litigation Terminology
Sources of Law
Sources of Law
Common Law countries (‘kä.mən) –
Legal systems that rely primarily on laws developed through judicial decisions
Civil Law countries (outside U.S.)(‘si-vəl) –
Legal systems that rely primarily on laws enacted by legislation
Civil Law (inside U.S.) –
The body of law concerned with private rights and remedies (v. criminal law)
Sources of Law
Federal Law (‘fed.(ə).rəl) Laws applicable nationally (v. State Law):
• U.S. constitution• Federal (by Congress) statutes• Federal court decisions• President’s executive orders (eg.‘ze.k(y)ə.tiv;
eg.‘ze.kyü.tiv; ig.‘ze.k(y)ə.tiv)• Administrative rules & regulations
(əd.‘mi.nə-ˌstrā.tiv)
Sources of Law Primary (‘prī.mer.ē)
Constitution (“the people”) Statutes/ Code (legislative branch) Case Law (judicial branch) – reported judicial opinions that may serve
as authority for other courts President’s executive orders Administrative rules & regulations Treaties (ratified) (‘trē.dēz)
Secondary (‘se.kən.ˌder.ē) Law Review Articles Treatises (ˈ‘trē.təs.ez)– a scholarly ‘encyclopedia’ explaining the law Hornbooks – commercial outlines of textbooks Restatements (’rē.stāt.mənt) – A scholarly publication by ALI describing
what the law is or should be. (noun: ‘re-; verb: rē.’stāt)
Studying Cases: People
Studying Cases: People Case –
Adjudication of a dispute before the court (a judicial opinion)
Party – A side in a lawsuit (case)
Plaintiff (‘plān.təf) – A person/entity who brings (initiates) a civil
lawsuit/action in court
Defendant (di.‘fen.dənt) – A person/entity against whom a civil or criminal
action is brought
Studying Cases: People
Appellant (ə.‘pel.ənt) –
A party who appeals a decision from a lower court to a higher court; also Petitioner
Appellee (ə.‘pel.ē) –
A party who contends against an appeal; also Respondent
Amicus Curiae (ə.’mē.kəs ‘kyur.ē.ā; ‘a.mi.kəs ‘kyur.ē.ī) –
“Friend of the Court” who offers information on a point of law or another aspect of a case to assist the court in deciding a matter
Studying Cases: Outcome
Studying Cases: Outcome Review (rē.‘vyü) –
Judicial re-examination primarily by an appellate court examining the decision of a lower court
Judicial Review (jü.‘di.shəl) –
Power of the courts to review acts of other branches of government
Affirm (ə.‘fərm) –
To approve/uphold on appeal a lower court decision
Reverse (ri.‘vərs) –
To overturn a decision of the lower court
Studying Cases: Outcome Vacate (‘vā.kāt) –
To render void or cancel a decision of a lower court
Remand (ri.‘mand;ˌrē.‘mand) –
To send a case back to the trial court to conduct a new hearing/trial or other action (by appellate court to trial court)
Grant/deny (Writ of) Certiorari (ˌsər.shē.ə.‘rär.ē)
To review a decision of a lower court (A discretionary action by the U.S. Supreme Court)
Studying Cases - Impact
Studying Cases - Impact
Precedent (‘pre.sə.dənt) –
A legal decision that serves as authority or justification for later court decisions
Binding (precedent) (‘bīn.diŋ) –
Being mandatory or obligatory (to follow)
Stare decisis (‘stä.re. də.‘sī.sis) –
Judicial policy to adhere to precedent and not re-open a settled point of law
Studying Cases - Impact
Distinguish (di.‘stiŋ.(g)wish) –
To point out an essential difference; showing how a a case cited as precedent is inapplicable to the present dispute
Overrule (‘ō.vər.‘rül) –
To cancel the binding authority of a judicial opinion by a later contradictory decision of the same or a higher court
Studying Cases - Impact Issue (‘i.shü) –
The legal question(s) at the core of a case that the court must resolve
Reasoning (‘rē.sən.iŋ) –
The rationale explaining the court’s decision
Rule (rül) –
The general legal principle on which the court decides a case and that can be applied to future cases
Holding (‘hōl.diŋ) –
The statement of the court as to (primarily) the conclusion of law reached by the court as applied to the facts in the case. Answers the questions asked by the issue
Studying Cases - Impact
Judgment (‘jəj.mənt) –
The final decision of the court resolving the dispute and determining rights and obligations of the parties. Also Decree
(Obiter) Dicta (‘ō.bit.ər ‘dik.tə) –
Parts of an opinion that are not part of the reasoning of the decision, and so not binding as precedent
Studying Cases - Impact
En banc (‘än bänk) –
A case decided by the entire court
Majority opinion (mə.‘jor.ə.tē / mə.‘jär.ə.tē ō.‘pin.yən) –
Judicial opinion of an appellate court in which the majority of judges hearing the case join
Concurring opinion (kən.‘kər.iŋ) –
Opinion given by one or more members of the appellate court, agreeing with the result reached by another opinion, but not necessarily with the reasoning
Studying Cases - Impact
Dissenting opinion (di.‘sen.tiŋ) –
Opinion given by one or more judges of an appellate court that expresses disagreement with the decision of the majority
Plurality opinion (plů.‘ra.lə.tē) –
When most judges join in the result (but when there is no majority as to the reasoning)
Civil Procedure(‘si.vəl prə.‘sē.jər)
Civil Procedure
Jurisdiction (jůr.əs.‘dik.shən/jər.əs.‘dik.shən) – The power and authority of a court to adjudicate a
case
Personal jurisdiction (‘pər.sən.əl) – The power of a court to decide a case against a
specific person or party in a lawsuit
Subject matter jurisdiction -- The power of a court to hear and determine a case of
a particular nature
Civil Procedure
Federal question jurisdiction (‘fed.(ə).rəl‘kwes.chən)–
The power of federal courts to hear disputes concerning federal law
Diversity jurisdiction (də.‘vər.sə.tē) –
Subject matter jurisdiction of federal courts when parties are from different states and the amount in controversy exceeds the sum or value of $75,000
Civil Procedure Venue (‘ven.yü) –
The court where a lawsuit may be filed or commenced
Standing (‘stan.diŋ) –
The ability to bring a lawsuit because of a party’s actual injury that the court can remedy.
Moot (‘müt) –
When the issue in the case ceases to exist or becomes purely academic—i.e., there is no harm that the court can redress under the law. A court should dismiss a case where there is no true controversy
Ripe (‘rīp) –
When a dispute is ready for judicial decision
Civil Procedure Civil Action (‘ak.shən) –
A lawsuit brought to protect private rights (v. criminal action –to bring a case for violation of criminal laws)
Class Action –
A lawsuit brought by or on behalf of a group
Cause of Action (‘koz) –
Facts giving a person or party a right to judicial relief against another. Also a Claim
Remedy (‘re.mə.dē) –
To enforce a right or redress an injury; The relief sought
Prima Facie Case (‘prē.mə ‘fa.shə) –
What a plaintiff must prove to establish liability for a cause of action
Civil Procedure Complaint (kəm-‘plānt)–
Initial pleading or document filed with the court detailing the elements of the cause of action the plaintiff alleges against the defendant; this commences the action or lawsuit
Summons (‘sə-mənz) –
Document informing a defendant of a lawsuit and requiring the defendant to appear in court
Answer (‘an(t)-sər) –
Defendant’s responsive pleading to plaintiff’s complaint (denying allegation in whole or in part)
Briefs (brēfz) –
Documents submitted to courts to discuss factual and legal arguments
Civil Procedure Motion (‘mō.shən) –
A written/oral application to the court for a ruling/order in favor of the applicant before/during/after the trial
(Motion to) Dismiss (dis.‘mis) –
To dispose of a claim because no cause of action or no jurisdiction (.i.e., failure to state a claim; lack of jurisdiction; etc. See FRCP 12).
(Motion for) Summary Judgment (‘sə.mə.rē; ‘səm-rē; ‘sə.mer.ē) –
Judicial disposition of a lawsuit without proceeding to trial because no issue of material fact, no inferences to be drawn from disputed facts, or only a question of law is involved.
(Motion for) Preliminary Injunction (pri.‘li.mə.ner.ē in.‘jəŋ(k).shən) –
A temporary court order at the request of one party that prevents the other party from pursuing a particular course of conduct until the conclusion of the trial
Civil Procedure Discovery (dis.‘kə.v(ə).rē; dis.‘kəv.rē) –
The pre-trial stage in a lawsuit in which each party can obtain information and evidence from the opposing party using various discovery devices provided by the rules of civil procedure
Work Product (‘wərk ‘prä.dəkt) –
The legal concept that the private thought processes of attorneys are protected when they are made in anticipation of, or preparation for litigation. These materials are exempt from discovery and cannot be admitted as evidence
Attorney-client privilege (‘priv.lij; ‘pri.və.lij) –
The legal concept that communications between a client and attorney are protected and confidential. Exempt from discovery and cannot be admitted as evidence
Civil Procedure
Interrogatories (in.tə.‘rä.gə.tor.ēz) –
Formal, written questions asked by one party to an opposing party during discovery.
Deposition (ˌde.pə.‘zi.shən) –
Testimony that is given before trial (usually transcribed by a court reporter) as part of the discovery process.
Litigation Terminology
Litigation Terminology Bench Trial (‘trīl; ‘trī.əl) –
A lawsuit decided before a judge instead of a jury (v. Jury Trial)
Jury (‘jur-ē) – Members of the community selected to listen to evidence and decide
questions of fact related to liability (civil trial) or guilt (criminal trial)
Voir Dire (vwär.‘dēr) –
The process of questioning prospective jurors, by the attorneys or the trial judge, to determine which are qualified for service on a jury.
Opening Statements (‘ōp.niŋ; ‘ō.pə.niŋ ‘stāt.mənt) –
Summary of case and expected proof presented by the attorney at the start of trial before any evidence is submitted (v. Closing Statements)
Litigation Terminology Case in Chief (‘chēf) –
The portion of a trial where the party with the burden of proof in the case presents its evidence
Rebuttal (ri.‘bə.təl) – The time either party is given to contradict a claim or evidence
presented by the opposing party that would not otherwise belong in that party's case in chief
Direct Examination (ig.ˌza.mə.ˈnā.shən) – Initial questioning of a witness during a trial by the side that
called the person as a witness.
Cross Examination –
Thorough questioning of a witness by the party opposing the one who asked the person to testify in order to evaluate the truth of that person's testimony or develop it further
Litigation Terminology
Leading Question –
A question that suggests its answer
Objection (əb.‘jek.shən) –
A formal declaration of disapproval concerning a specific point of law or procedure during the course of a trial
Litigation Terminology Hearsay (‘hir.ˌsā) –
A statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Hearsay is generally not admissible as evidence in court (see exceptions)
Ex Parte Proceeding (eks.pär.tā prō.‘sēd.iŋ) – Action taken without notice to the adverse party or
participation by that party in the hearing
Jury Instructions – The judge’s instructions to the jury on the legal rules that
the jurors must follow when deciding a civil or criminal case
Deliberation (di.ˌli.bə.‘rā.shən) – The process where the jury determines in private the
defendant’s guilt or liability based on the evidence
Litigation Terminology Verdict (‘vər.(ˌ)dikt) –
A formal finding of a defendant’s liability (civil action) or guilt (criminal action) by jury/trial judge
Liability (ˌlī-ə-‘bi-lə-tē) –
A legal responsibility or obligation for one’s acts or omissions
Acquit (ə-ˈkwit) –
A not-guilty verdict by jury/trial judge in a criminal case
Litigation Terminology
(Compensatory) Damages (käm.‘pen.sə.ˌtor.ē)
Monetary/pecuniary compensation awarded to the injured party by the defendant
Punitive Damages (‘pyü.nə.tiv) –
Civil damages to punish the wrongdoer for causing injury
Injunction (in.ˈjəŋ(k).shən) –
A court order, whereby a party is required to do, or to refrain from doing, certain acts
Litigation Terminology Settlement (‘se.təl.mənt) –
Agreement between the parties to resolve dispute and terminate the lawsuit
Mediation (ˌmē.dē.‘ā.shən) –
A way to settle a dispute instead of a trial in which an impartial party called a mediator helps the parties reach a compromise or settlement
Arbitration (ˌär.bə.‘trā.shən) –
A way to settle a dispute, instead of a trial, in which an impartial party called an arbitrator hears the arguments and makes a sometimes binding decision for the parties.