Legal and Regulatory Environment of Business – Ch. 4 – Litigation – Flashcards
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Beyond a reasonable doubt
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The burden of proof required in a criminal case. The prosecution in a criminal case has the burden of proving the defendant is guilty; and the jury must have no reasonable doubt about the defendant's guilt. See also "Burden of proof."
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BriefA
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written document produced by a party for a reviewing court that contains the facts; propositions of law; and argument of a party. It is in this document that the party argues the desired application of the law and any contentions as to the rulings of the lower court.
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Burden of proof
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The term "burden of proof" has two meanings. It may describe the party at a trial with the burden of coming forward with evidence to establish a fact. The term also describes the party with the burden of persuasion. This party must convince the judge or jury of the disputed facts in issue or else lose that issue. There are various degrees of proof. See also "beyond a reasonable doubt;" "preponderance of evidence;" and "clear and convincing proof."
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Class-action suit
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A method of litigation that allows one or more plaintiffs to file a lawsuit on behalf of a much larger group of persons; all of whom have a common interest in the claims being litigated.
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Clear and convincing proof
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A burden of proof that requires the party with the burden to establish clearly the existence of the alleged facts. This burden requires more proof than merely having a preponderance of evidence on one's side.
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Complaint
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In legal practice; the first written statement of the plaintiff's position and allegations; which initiates the lawsuit.
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Counterclaim
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Any claim filed by the defendant in a lawsuit against the plaintiff in the same suit.
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Counterdefendant
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The party involved in litigation against whom a counterclaim is filed. This party is the original plaintiff.
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Counterplaintiff
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The party involved in litigation who files a counterclaim. This party if the original defendant who is making a claim against the original plaintiff.
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Default
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The failure of a defendant to answer a plaintiff's complain within the time period allowed by the court. Upon the defendant's default; a judgment is entered in the plaintiff's favor.
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Defendant
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The party involved in a lawsuit that is sued; the party required to respond to the plaintiff's complaint.
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Deposition(s)
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A discovery process outside the court's supervision that involves the sworn questioning of a potential witness. This oral questioning is reduced to a written form so that a record is established.
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Directed verdict
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A motion for a directed verdict requests that the judge direct the jury to bring in a particular verdict if reasonable minds could not differ on the correct outcome of the lawsuit. In deciding the motion; the judge will view in the light most favorable to the nonmoving party; and if different inferences may be drawn by reasonable people; then the court cannot direct a verdict. In essence; a directed verdict removes the jury's discretion.
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Discovery
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Procedures by which one party to a lawsuit may obtain information relevant to the case from the other party or from third persons.
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Execution
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To carry out some action to completion. With respect to enforcing a court's judgment; an execution involves the seizure of the debtor's property; a sale of the property; and the payment of proceeds to the creditor.
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Extradition
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The process that one state uses to have another state transfer to the jurisdiction of the first state a person accused of criminal activities.
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Garnishment
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A legal proceeding whereby a creditor may collect directly from a third party who is obligated to the debtor.
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Interrogatories (Interrogatory)
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A written question submitted by one party to another in a lawsuit; a type of discovery procedure.
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Judgment
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Official adjudication of a court of law.
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Judgment notwithstanding the verdict
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The decision of a court that sets aside the verdict of a jury and reaches the opposite result.
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Judgment on the pleadings
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A principle of litigation; in the form of a motion; whereby one party tests the validity of the allegations contained in the complaint and answer. Upon this motion; a judge might determine that the pleadings contain no issues of fact or law and thus grant a judgment prior to a trial.
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Jury instruction(s)
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A statement made by the judge to the jury informing them of the law applicable to the case the jury is bound to accept and apply.
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Long-arm statutes
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A state statute that gives extra-territorial effect to process (summon) in specified cases. It allows state courts to obtain jurisdiction in civil actions over defendants who are beyond the border of the state provided the defendants have minimum contact with the state sufficient to satisfy due process.
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Motion
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The process by which the parties make written or oral requests that the judge issue an order or ruling.
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Oral argument
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Attorneys appear in person before the appellate court to explain orally to the court their position in the case and answer the court's questions about the case.
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Peremptory challenge(s)
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The power granted each party to reject a limited number of potential jurors during voir dire examination. No reason for the rejection need be given.
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Personal jurisdiction
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The power of a court over the parties involved in the litigation process.
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Petitioner
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The party filing either a case in equity or a petition for a writ of certiorari before a supreme court.
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Plaintiff
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The person who initiates a lawsuit.
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Pleadings
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The system for defining and narrowing the issues by parties who file formal documents stating their respective positions in a lawsuit.
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Preponderance of evidence
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In the judgment of the jurors; evidence that has greater weight and overcomes the opposing evidence and presumptions.
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Request for an admission
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A method of discovery used to narrow the issues to be litigated by having a party request that the other party admit the facts that are not in dispute.
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Request for production of documents
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A method of discovery whereby one party asks the other to provide documents for the requesting party's review.
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Res judicata
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The doctrine that deems a former adjudication conclusive and prevents a retrial of matters decided in the earlier lawsuit.
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Respondent
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The party answering a petition for a writ of certiorari in the Supreme Court.
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Standing to sue
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The requirement that a plaintiff must satisfy by demonstrating a personal interest in the outcome of litigation or an administrative hearing.
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Statute of limitations
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A statute that sets a date after which a lawsuit may not be brought. The statute begins running after the happening of a certain event; such as the occurrence of an injury or the breach of a contract.
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Summary judgment
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A judicial determination that no genuine factual dispute exists and that one party to the lawsuit is entitled to judgment as a matter of law.
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Summons
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An official notice to a person that a lawsuit has been commenced against him or her and that he or she must appear in court to answer the charges.
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Third-party defendant(s)
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A party who is not a party (plaintiff or defendant) to the original litigation. Typically; a defendant might file a claim against a third party stating that if the defendant is liable to the plaintiff; then this third party will be liable to the defendant.
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Verdict
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Findings of fact by the jury.
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Voir dire
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The preliminary examination of prospective jurors for the purpose of ascertaining bias or interest in the lawsuit.
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