Chapter 16: Glossary

Legal Glossary

ACTION, CASE, SUIT, LAWSUIT: These words mean essentially the same thing. They refer to a legal dispute brought into court for trial.
ADVERSARY SYSTEM: The system of justice in the U.S. and some other countries in which court cases are decided on the basis of evidence and arguments presented by each of the opposing, or adversary, parties who thus have full opportunity to present and establish their opposing contentions before the court or jury.
AMICUS CURIAE: (a me’kus ku’re-i) A “friend of the court”; one who interposes and volunteers information and argument on some matter of law before the court. The court has to give permission before someone can appear “amicus curiae.”
ANSWER: The paper in which the defendant answers the claims of the plaintiff.
APPELLANT: (a-pel’ant) The party appealing a decision or judgment to a higher court.
APPELLATE COURT: A court having jurisdiction of appeal and review; not a “trial court.”
ARRAIGNMENT: In criminal law, the stage where a prisoner is brought to court to hear the charge against him or her.
ATTACHMENT: A remedy by which a plaintiff is able to acquire a lien on property of a defendant for satisfaction of a judgment the plaintiff may obtain in the future.
BAIL: To set at liberty a person arrested or imprisoned, on security being taken for his or her appearance on a specified day and place to answer the charges brought against him or her.
BAILIFF: A court attendant whose duties are to keep order in the courtroom and to have custody of the jury.
BENCH WARRANT: An order issued by the court itself “from the bench” for the arrest of a person.
BURDEN OF PROOF: In the law of evidence, the necessity of proving a fact in dispute.
CERTIORARI: (Sur’shi-o-ra’re) An order commanding judges or officers of lower courts to certify or to provide records of proceedings in a case to a higher court for judicial review.
CHANGE OF VENUE: The removal of a lawsuit begun in one county or state to another for trial.
CIRCUIT COURT JUDGE: (See JUDGES).
CIRCUMSTANTIAL EVIDENCE: Evidence of an indirect nature by which a court or jury may reason from proved circumstances to establish by inference a principal fact.
CIVIL CASE: A lawsuit is called a “civil case” when it is between persons in their private capacities; or when the government sues an individual under the law, as distinguished from prosecuting a criminal charge. It results generally in a judgment for the plaintiff or for the defendant and, in many cases, involves the giving or denying of damages.
CLAIMANT: One who claims or asserts a right, demand, or claim.
CLERK: The clerk usually sits at the desk in front of the judge, is an officer of the court and keeps a record of papers filed. He or she has custody of the pleadings and records of the trial of the case, orders made by the court during the trial, and the decision at the end of the trial. He or she also administers the oath to jurors and all witnesses before they testify and marks all exhibits when they are presented as evidence.
CLOSING ARGUMENT: An oral review of the evidence and argument why their clients should win the case, by the attorneys at the end of the case, after all of the evidence is in.
CODE: A collection of laws systemically arranged and adopted by legislative authority.
COMMIT: To send a person involuntarily to prison or to an asylum or reformatory by lawful authority.
COMMON LAW: Law which derives solely from previous legal practice or from the previous decisions of courts.
COMMUTATION: The change of a punishment from a greater degree to a lesser degree, as from death to life imprisonment. In Oregon the governor has the power to commute sentences.
COMPLAINT: The paper in which the person who brings the lawsuit sets forth his or her claims against the defendant.
CONTEMPT OF COURT: Any act calculated to embarrass, hinder or obstruct a court in the administration of justice, or calculated to lessen its authority or dignity. Contempts are of two kinds: direct and indirect. Direct contempts are those committed in the immediate presence of the court; indirect contempt usually refers to the failure or refusal to obey a court order.
CORPUS DELICTI: (kor’pus de-lik’ti) The body (material substance) on which a crime has been committed, e.g., the corpse of a murdered man or woman, the charred remains of a burned house. Commonly used to mean the “body of evidence” indicating that a crime has been committed.
COURTS OF RECORD: Those courts whose courtroom proceedings are recorded by a court reporter. Courts not of record are those of lesser authority, whose proceedings are not recorded.
COURT REPORTER: The court reporter takes down in shorthand or on a machine everything that transpires, which constitutes the record in the case. The notes are subject to transcription later, if necessary.
CRIMINAL CASE: A lawsuit is called a “criminal case” when it is between the state on one side, as plaintiff, and a person on the other side, as defendant, charging the defendant with committing a crime, the verdict usually being “guilty” or “not guilty” and can result in incarceration.
CROSS-EXAMINATION: The questions a lawyer asks the other side’s witness after the other side’s attorney has finished with his or her questions or direct examination.
DECREE: In Oregon, this term has become obsolete. It means the same thing as “judgment,” which now is the technically correct term. A final judgment is one which fully and finally disposes of the litigation; an interlocutory decree or judgment is a temporary or preliminary decree or judgment which is not final.
DEFENDANT: In a civil case, the defendant is the person against whom the lawsuit is brought. In a criminal case, the defendant is the person charged with the crime.
DE NOVO: (de no’vo) Anew, fresh. (See TRIAL DE NOVO).
DEPOSITION: Questioning of a witness either orally by a lawyer in front of a court reporter or by written questions and answers, prior to trial. Depositions may be transcribed and under some circumstances may be used in a trial.
DIRECT EXAMINATION: A lawyer’s questioning of witnesses that he or she has called to provide testimony.
DIRECTED VERDICT: An instruction by the judge to the jury to reach a specific verdict, or the entry of such a verdict by the judge in a jury case.
DISCOVERY: A process for finding out relevant facts in a lawsuit before the trial begins. Discovery methods include depositions; inspections (“production”) of documents, things or property; physical or mental examinations of persons; requests for admission of facts; and written interrogatories that the other side must answer.
DISMISSAL WITHOUT/WITH PREJUDICE: Dismissal of a case “without prejudice” permits the complainant to sue again later on the same facts, while dismissal “with prejudice” bars the right to sue again on the same facts.
DISTRICT COURT JUDGES: (See JUDGES).
DOUBLE JEOPARDY: Common-law and constitutional prohibition against more than one criminal prosecution for the same acts.
DUE PROCESS: The guarantee of due process requires that every person have the protection of a fair hearing and procedures.
EMINENT DOMAIN: The power to take private property for public use by condemnation.
EQUITY, COURTS OF: Historically, courts which administer remedial justice according to the system of equity, as distinguished from courts of law. Equity courts are sometimes called courts of chancery. Juries are never used in equity cases. In Oregon, there is no distinction between courts of equity and courts of law, but some lawsuits are still equitable in nature, e.g. injunctions.
EQUITABLE ACTION FOR INJUNCTION: A lawsuit filed to restrain threatened wrongs, injuries, or actions, or to require a person to do specific actions. Equity cases do not use juries. The judge makes all decisions.
EXHIBITS: Objects, including pictures, books, letters and documents, are often received in evidence. These are called “exhibits” and are generally given to the jury to take into the jury room while deliberating.
EX PARTE: (ex par’te) By or for one party; done for, in behalf of, or on the application of, one party only and without the other parties being present in court for a hearing.
EX POST FACTO: (eks post fak’to) After the fact; an act or fact occurring after some previous act or fact. The Constitution of the United States prohibits ex post facto laws. This means that a person cannot be prosecuted for acts that were not crimes at the time the acts occurred.
EXTRADITION: The surrender of an individual in the custody of one state or nation to another state or nation on its request.
FELONY: A crime of graver nature than a misdemeanor. Generally, an offense punishable by death or one or more years imprisonment in a penitentiary.
GRAND JURY: A jury of inquiry whose duty is to receive complaints and accusations in criminal cases, hear the evidence and find bills of indictment in case where they are satisfied a trial is needed. Grand juries also can initiate their own investigations.
HABEAS CORPUS: (ha’be-as kor’pus) Latin for “You have the body.” The name given a variety of proceedings whose object is to bring a person before a court or judge. Usually, a writ of habeas corpus is directed to the official person detaining another, commanding him or her to produce the body of the prisoner or person detained so that the court may determine if the person is legally held or has been denied his or her liberty without due process of law.
INDICTMENT: An accusation in writing issued by a grand jury, charging that a person has done some act, or been guilty of some omission, which, by law, is a crime.
INJUNCTION: A court order that either requires a person to do an act or forbids a person to do an act.
INSTRUCTIONS OR “CHARGE” TO JURY: The outline of the rules of law which the jury must follow in deciding the factual issues submitted to them is called either the judge’s “charge” to the jury or his or her “instructions” to the jury.
INTERLOCUTORY: Provisional; temporary; not final. Refers to court orders pending final judgment in a case.
INTERPLEADER: When two or more persons claim the same thing (or fund) held by a third person, and he or she, making no claim to it him or herself, is unsure which of them has a right to it, he or she may sue the claimants as defendants and require them to interplead their claims so that he or she can get a court order who has the right to the thing.
ISSUE: A disputed question of fact or law is referred to as an “issue.”
JUDGES: In Oregon, the constitution provides that judges of the Supreme Court and other courts shall be elected by the legal voters of the state or of their respective districts for a term of six years, that their compensation shall not be diminished, and that they shall retire at 75 years of age. All judges must be citizens of the United States, residents of Oregon for three years (exceptions noted below), and members of the Oregon State Bar. Supreme Court judges, at the time of their election, must have been admitted to practice before the Oregon Supreme Court. District judges are required to be residents of the county only, unless they are elected in counties with over 500,000 population. In that case, they must be residents for three years. There are no requirements that county judges, municipal judges or justices of the peace be lawyers.
JUDICIAL CONFERENCE: All the judges of the Supreme Court, Tax Court, and circuit courts belong to the Oregon Judicial Conference, which meets at least annually. The conference is charged by statute with the responsibility of keeping judges aware, through continuous survey and study, of the organization, jurisdiction, procedures, practices, and methods of administration and operation of the various courts of the state, and with the objective of improving the administration of justice in Oregon.
JURISPRUDENCE: The philosophy of law or the science which studies the principles of law and legal relations.
JURY: A certain number of citizens, selected according to law and sworn to consider questions of fact brought to the court for decision.
JURY PANEL: All of the prospective jurors from which the trial jury is chosen.
MANDAMUS: (man-da’mus) The name of an order by which a court of superior jurisdiction directs an inferior court or public officer to perform an official act.
MANDATE: A judicial command directing a public officer to enforce a judgment or sentence.
MISDEMEANOR: An offense less than a felony; generally one punishable by fine or imprisonment other than in penitentiaries.
MISFEASANCE: Usually, the improper performance of some lawful act.
MISTRIAL: An erroneous or invalid trial due to a substantial error that voids the trial.
MOOT: A moot issue is one not settled by judicial decision but no longer in dispute or in need of a decision.
OBJECTION OVERRULED: This term means that, in the judge’s opinion, the lawyer’s objection is not correct under the rules of law. The judge’s ruling, so far as a juror is concerned, is final and must be accepted by the jury.
OBJECTION SUSTAINED: This means that the judge agrees that, under the rules of law, the lawyer’s objection was correct. This ruling likewise is not subject to question by jurors.
OPENING STATEMENT: Before introducing any evidence for his or her side of the case, a lawyer is permitted to tell the jury what the case is about and what he or she expects the evidence to be. This is called the “opening statement.”
PARTIES: The plaintiff and defendant in the case. They are sometimes called the “litigants.”
PEREMPTORY CHALLENGE: The challenge a party may use to reject a certain number of prospective jurors without assigning any reason.
PETIT JURY: The ordinary jury of 12 (or fewer) persons for the trial of a civil or criminal case. So called to distinguish it from the grand jury.
PLAINTIFF: A person who files a lawsuit.
PLEADINGS: The parties in a lawsuit must file in court papers stating their claims against each other. In a civil case, these usually consist of a complaint filed by the plaintiff, an answer filed by the defendant and, oftentimes, a reply filed by the plaintiff. These are called “pleadings.”
POWER OF ATTORNEY: A document authorizing one person to act as another person’s agent.
PREJUDICIAL ERROR: Synonymous with “reversible error;” an error of sufficient seriousness to justify an appellate court’s reversal of a judgment.
PROBATION: In modern criminal administration, allowing a person convicted of some offense to go free, under a suspension of sentence, during good behavior, and generally under the supervision of a probation officer.
PROSECUTOR: One who instigates the prosecution on which an accused is arrested or who presses charges against the party whom he or she suspects to be guilty. Also, the attorney who represents the government in prosecuting a criminal case.
QUASH: To overthrow; vacate; to annul or void a summons or indictment or other document.
QUO WARRANTO: (kwo wo-ran’to) An order issuable by the state, through which it demands an individual to show by what right he or she exercises an authority or claims public office which can only be exercised or claimed through a valid grant or franchise from the state.
RECORD: This refers to the pleadings, the exhibits, and the word-for-word record made by the court reporter of all the proceedings at the trial.
REPLY: The paper in which the plaintiff answers any claims made by the defendant in his or her answer.
REST: This is a legal phrase which means that the lawyer has concluded the evidence he or she wants to introduce in that stage of the trial.
SINE QUA NON: (si’ne kwa non) An indispensable requisite.
STARE DECISIS: (sta’re de-si’sis) The doctrine that, when a court has once decided a principle of law as applicable to a certain set of facts, it will adhere to that principle and apply it to future cases where the facts are substantially the same.
STATUTE: The written law adopted by the Legislature as distinguished from the common law.
STAY: A stopping or temporary halting of a judicial proceeding by order of the court until some future even occurs.
STRIKING TESTIMONY: On some occasions, after a witness has testified, the judge will order certain evidence stricken from the record and will direct the jury to disregard it. When this is done, the jury must treat the evidence stricken as though it had never been given and must wholly disregard it.
SUBPOENA: The document which is issued for service on a witness to compel his or her appearance in court or for a deposition or other hearing.
SUBROGATION: The substitution of one person in the place of another with reference to a claim, so that he or she who is substituted succeeds to the rights of the other in relation to the claim.
SUBROGEE: One who is subrogated; one who succeeds to the rights of another by subrogation.
SUBSTANTIVE LAW: The law dealing with rights, duties and liabilities, as distinguished from the law regulating procedure.
SUMMONS: An order directing the sheriff or other officer to notify the named person that a lawsuit has been commenced against him or her in court and that he or she is required to appear by a certain time, and answer the complaint or suffer a judgment against him or her.
SUPREME COURT JUSTICE: (See JUDGES).
TESTIMONY: Evidence given verbally by a witness, under oath, as distinguished from evidence derived from writings and other sources.
TORT: A tort is negligent or wrongful conduct which causes bodily injury or property damage for which compensation can be recovered in a civil lawsuit. Most torts are the result of negligence such as automobile accidents. Some are intentional, such as libel, slander, assault and battery.
TORT CLAIMS ACT: In Oregon, the traditional doctrine of governmental immunity was ended in large part by legislation enacted in 1967. Under the new law, every public body, including every local government agency, is liable to third parties for wrongful deaths, personal injuries, and property damage that result from governmental operations involving negligent or wrongful conduct, subject to limitations on the amount that can be recovered. This law is commonly referred to as the Tort Claims Act.
TRIAL DE NOVO: (de no’vo) A new trial or retrial in an appellate court in which the whole case is gone into as if there had been no trial in a lower court and regardless of the findings and decisions of the lower court.
TRUE BILL: In criminal practice, the endorsement made by a grand jury on a bill of indictment when they find it sufficient to support a criminal charge.
USURY: Charging an illegally high interest rate.
VENIRE: (ve-ni’re) Technically, an order summoning persons to court to act as jurors; popularly used as meaning the body of people summoned.
VENUE: (ven’u) The particular county, city, or geographical area in which a court with jurisdiction may hear and decide a case.
VERDICT: The formal decision or finding made by a jury and reported to the court.
VOIR DIRE: (vwor dear) To speak the truth. The phrase denotes the preliminary questioning of potential jurors by the court and attorneys to determine the jurors’ qualifications.
WITNESS: One who testifies, under oath, to what he or she has seen, heard, or observed.
WRIT: An order requiring the performance of a specified act or giving authority to have something done.