Construction people who talk in a language of board-and-batt, 8-penny, prestressed, romex, osha, mudjacking, lath-and-plaster (for the old timers) and foche might sometimes be perplexed over some of the language used around the courthouse. To relieve some of the tensions for construction people who find themselves in court, we offer the following glossary of prominent legal jargon (in alphabetical order):
Answer: Within a specified time after the defendant receives the Complaint (defined below), he is required to answer the Complaint and, by coincidence, his answer is called an "Answer."
Appeal: An appeal is a means by which a decision of a lower court is reviewed by a higher court usually at the request of the losing party. Frequently, the case may be appealed to more than one higher court such as the highest appeals court of a state and then to the Supreme Court of the United States.
Attachment: A means of collecting a judgment by tying up property of the party against whom the judgment was recovered. After attachment the property may be sold at a sheriff's sale and the proceeds used to pay off the judgment.
Bar: In lawyer language a bar is certainly not a place for refreshment. Instead, the bar is a physical barrier (rail) located in a courtroom in front of which only lawyers and trial participants may sit or stand. Spectators sit "behind the bar." A lawyer "passes the bar" not by walking past Duffy's but by taking an examination and, if successful, being licensed to practice law.
Bench: The bench is that part of the courtroom occupied by the judge.
Brief: A brief is not an item of underclothing and rarely is it brief. It is a paper containing arguments made to persuade the court that the party by whom it is filed is entitled to the relief being sought. Perhaps lawyers and judges should consider changing the title of such paper from "brief' to "long" with the result that instead of filing a brief an attorney "files a long."
Civil Suit, Case Or Action: A lawsuit where one or more private parties are seeking relief personal to them. The civil case is distinguished from a criminal case where the public seeks punishment for a "wrong."
Complaint: A complaint is generally the first paper filed in court initiating a civil lawsuit and contains a general statement of the claims being made by the plaintiff (defined below) against the defendant (defined below).
Costs: The successful party in a lawsuit is generally entitled to recover his costs incurred in connection with a suit. Recoverable costs, however, do not include all expenses incurred but only the court docket fee (usually relatively minimal); costs incurred in obtaining the attendance of witnesses at trial by subpoena; expert witness fees and miscellaneous other small items.
Attorney's fees are generally not recoverable except as specifically provided by a contract upon which the suit is based or by specific statute under which the suit has been litigated. Some states allow attorney fee recovery when the other side's claim or defense was frivolous or ground
Counterclaim: If the defendant has a claim against the plaintiff he may file a counterclaim and prosecute his claim against the plaintiff.
Crossclaim: If there is more than one defendant, any of them may wish to make claims against fellow defendants, in which case those claims are set forth in pleadings called "crossclaims."
Damages: Amounts of money recoverable in a lawsuit usually in such amount as to make the claimant "whole," that is the economic position he would have been in but for the other party's wrongdoing or breach of contract.
Defendant: The person who is sued. Although he came in second place in the race to the courthouse, he may also sue his opponent or anyone else, frequently in the same lawsuit. In criminal cases, defendants are those against whom criminal charges are made and prosecuted.
Deposition: A proceeding before trial where a witness' sworn testimony is taken, question-and-answer, before a reporter who takes down every word and later produces a written transcript of the testimony given. The purpose is three-fold: (1) to find out what the witness would say, (2) to preserve his testimony should he be unavailable at trial time, and (3) to possibly challenge the witness' credibility at trial if he contradicts his deposition testimony.
Discovery: Procedures by which parties to lawsuits attempt to get information about the dispute. Discovery methods include depositions, written interrogatories (questions), requests for admissions, requests for production and request for examination, all defined elsewhere in this article.
Execution: The process by which a successful litigant seeks to obtain payment of his judgment. Methods available include garnishment, attachment, and sheriff's sale. In criminal cases (murder or treason) it is the process by which unsuccessful defendants likewise meet their doom.
Garnishment: A method of collecting a judgment by taking monies which are owed to the party against whom a judgment has been recovered or his property held by a third person. The person garnished (garnishee) is served with papers which require him to answer questions about money he owes or will owe or property in his possession belonging to the judgment debtor. The garnishment paper also directs him not to pay all or portions of those monies or return property to the judgment debtor.
Injunction: A court may order a party to do or refrain from doing something by a paper called an injunction. An injunction may apply only while the lawsuit is pending in order to preserve the status quo or may be permanent.
Motion: A request that the court enter some order. Motions may range from those seeking dismissal of the lawsuit to those requiring another party to appear for his deposition to even motions asking the court to change its mind about a ruling it has made.
Objections: During trial objections may be made to questions asked of witnesses or to offered exhibits. These objections are founded upon court rules which have evolved over long periods of time establishing that certain types of testimony or exhibits are either unreliable, not relevant to issues being tried, or because the evidence involved is not competent or material. The judge rules on objections, either by sustaining them, in which event the evidence is not admitted or overruling the objection, in which event the evidence is admitted.
Offer of Judgment: Under court rules a party may make a formal offer of judgment agreeing that a judgment granting certain relief, usually an amount of money, may be entered against the party making the offer. The party to whom such offer is made is at liberty to refuse the offer but if he refuses and does not get a better result after trial, he may be required to pay the offering party's costs of suit.
Party/Parties: This is not where the lawyers have all their fun. A party is simply a person involved in a lawsuit (or anything else for that matter). If you are not involved in a particular lawsuit, you are a nonparty and are not missing any fun, only expenses.
Petition: A petition is like a complaint although seeking other types of relief than involved in the ordinary lawsuit. The party on whose behalf a petition is filed is called a petitioner and his opponent is called a respondent.
Plaintiff: The person who first sues. Sometimes this person may be a petitioner, instead, depending on the nature of the claim.
Pleadings: Pleadings are any legal papers filed in court in which relief against the other party is claimed or denied. Examples of pleadings include complaints, answers, crossclaims, counterclaims, third-party complaints, all as defined in this column.
Pretrial Conference: Under the rules of some courts, a pretrial conference is held between the judge and attorneys for the parties. The function of a pretrial conference is to attempt to define and narrow the issues to be litigated at trial, identify the witnesses and exhibits to be offered, and to simplify the trial to the extent possible.
Punitive (Exemplary) Damages: In certain circumstances where the defendant's conduct had been wanton or particularly callous, the law sometimes allows recovery of punitive or exemplary damages which the offending party may pay to the other party not as compensation but as a punishment to teach the offender and others that the law does not tolerate certain types of conduct.
Reply: Instead of the plaintiff answering the counterclaim, he must "reply" to it by a document appropriately named.
Requests for Admission: A written list of factual statements or document identifications submitted to an opposing party who must furnish written responses either admitting or denying the truthfulness of the statement or the genuineness of the documents identified.
Request for Examination: Another discovery device seeking to have a person, place or thing examined by a physician, psychiatrist or other expert.
Request for Production: A paper requesting that an opposing party in a lawsuit produce items (papers, plats, maps, plans, specifications or anything else) for inspection and perhaps copying by the requesting party.
Service: The process of having legal papers given to a party to the lawsuit by a sheriff or process server. One "served" usually has the burden of making some kind of answer, failing which he could be in trouble - called default.
Settlement Conference: Before trial, a settlement conference may be held before a judge other than the judge who will actually try the case. In concept, the settlement conference is intended to settle the case without a trial, thus resulting in a compromise where the risk and expense of trial and possible appeals might be avoided.
Sheriff's Sale: One who has recovered a judgment may have the sheriff sell property of the losing party. The sale proceeds are used to pay off the judgment.
Stipulation: An agreement between lawsuit parties pertaining to any aspect of the case. For example, the parties may, by stipulation, agree to dismiss the case completely or to dismiss some but not all of the claims in the case. The parties may also stipulate to certain facts, thus avoiding the time and expense which might otherwise be incurred in having to establish those facts through witnesses or exhibits at trial. Parties may stipulate as to anything involved in the case, the stipulation being a formal agreement binding in court.
Subpoena: A legal paper requiring that its recipient appear somewhere at some particular time, usually in court or at a deposition, to either testify, bring something along, or both.
Summons: A legal paper demanding that its recipient respond, usually to a complaint, by filing an answer.
Third-Party Plaintiff and Third-Party Defendant: In an apparent quest for companionship, a defendant might want to bring someone else into the case and make claims against him. This defendant then also becomes a third-party plaintiff and the party against whom his claim is made becomes a third-party defendant.
Trial: A case may be tried either before a judge sitting without a jury or in certain cases before both a judge and a jury. In jury cases the judge decides the legal questions involved and the jury decides the factual issues. If there is no jury the judge resolves both the legal and factual issues.
Verdict: The result of the jury deliberation is a verdict which is the written result of the jury determination and signed by the jury foreman. It is the product of the jury's study of the evidence applied to the law which they receive from the judge by instructions.
Voir Dire: Before a jury is selected, counsel for all parties has an opportunity to question the individual jurors to determine whether they might be biased or otherwise partial to one party or the other. The phrase actually means, "see and speak", thus indicating that potential jurors are given the once over by the attorneys in the case.