To Have a Better Understanding
Litigation Terms and Their Definitions
Answer – A defendant’s written response to a plaintiff’s initial court filing (called a complaint or petition). An answer normally denies some or all of the facts asserted by the complaint, and sometimes seeks to turn the tables on the plaintiff by making allegations or charges against the plaintiff (called counterclaims) or providing justification for the defendant’s behavior (called affirmative defenses). Normally a defendant has 30 days in which to file an answer after being served with the plaintiff’s complaint. In some courts, an answer is called a “response.”
Brief – A document used to submit a legal contention or argument to a court. A brief typically sets out the facts of the case and a party’s legal arguments. These arguments must be supported by legal authority and precedent, such as statutes, regulations, and previous court decisions. Don’t be fooled by the name — briefs are usually anything but brief, as pointed out by writer Franz Kafka, who defined a lawyer as “a person who writes a 10,000-word decision and calls it a brief.”
Complaint – Papers filed in court by an injured party to begin a lawsuit by setting out facts and legal claims (usually called causes of action). The person filing the complaint is called the plaintiff and the other party is called the defendant. In some states and in some types of legal actions, such as divorce, complaints are called petitions and the person filing is called the petitioner. The plaintiff’s complaint must be served on the defendant, who then has the opportunity to respond by filing an answer. A complaint filing must be accompanied by a filing fee payable to the court clerk, unless the party asks a judge to waive the fee based on inability to pay.
Court of Common Pleas – Common kind of court structure found in various common law jurisdictions. Trial courts of general jurisdiction in a state. They hear civil cases with a significant amount of controversy and trials for serious crimes.
Default Judgment – At trial, a decision awarded to the plaintiff when a defendant fails to contest the case or comply with required procedural steps. For instance, the defendant may fail to respond to the plaintiff’s complaint within the required time, or simply neglect to show up in court. To appeal a default judgment, a defendant must first file a motion in the court that issued it, asking to have the default vacated (set aside).
Defendant – The person against whom a lawsuit is filed. In some types of cases (such as divorce) a defendant may be called a respondent.
Deposition – The taking and recording of the testimony of a party or witness under oath before a court reporter, in a place away from the courtroom, before trial. A deposition is part of pretrial discovery. The testimony is recorded by the court reporter, who will prepare a transcript that can be used for pretrial preparation or in trial to contradict or refresh the memory of the witness, or be read into the record if the witness is not available.
Discovery – A formal investigation — governed by court rules — that is conducted before trial by both parties. Discovery allows each party to question the other parties, and sometimes witnesses. The most common types of discovery are interrogatories, consisting of written questions the other party must answer under penalty of perjury; depositions, at which one party to a lawsuit has the opportunity to ask oral questions of the other party or witnesses under oath while a written transcript is made by a court reporter; and requests to produce documents, by which one party can force the other to produce physical evidence. Parties may also ask each other to admit or deny key facts in the case. Discovery allows parties to assess the strength or weakness of an opponent’s case, in order to support settlement talks and also to be sure that the parties have as much knowledge as possible for trial. Discovery is also present in criminal cases, in which by law the prosecutor must turn over to the defense any witness statements and any evidence that might tend to exonerate the defendant. Depending on the rules of the court, the defendant may also be obliged to share evidence with the prosecutor.
Execution (on judgment) – The act of carrying out a judgment or a final court ruling.
Hearing – Any proceeding before a judge or other qualified hearing officer without a jury, in which evidence and argument is presented to determine some issue of fact or both issues of fact and law. The term usually refers to a brief court session that resolves a specific question before a full trial takes place, or to such specialized proceedings as administrative hearings. In criminal law, a “preliminary hearing” is held before a judge to determine whether the prosecutor has presented sufficient evidence that the accused has committed a crime to hold him/her for trial. Also called a judgment.
Interrogatories – Written questions sent by one party to another as part of the pretrial investigation process, called “discovery.” Interrogatories must be answered in writing under oath or under penalty of perjury within a specified time (such as 30 days). Lawyers can write their own sets of questions, or can use form interrogatories designed for the most common types of lawsuits.
Judgment – A final court ruling resolving the key questions in a lawsuit and determining the rights and obligations of the parties. For example, after a trial involving a vehicle accident, a court will issue a judgment stating which party was at fault and how much money that party must pay the other.
Litigation – The process of bringing and pursuing (litigating) a lawsuit.
Local Rules – A set of procedural rules adopted by local, state, or federal courts that instruct parties and attorneys what the court’s mandatory procedures are about things like the time allowed to file papers, format of documents, filing procedures and fees, basis for calculating alimony and child support.
Magisterial District Justice/ MDJ – MDJ handles all traffic cases, minor criminal cases, and civil cases involving amounts up to $12,000.
Motion – A formal request that a judge enter a particular order or ruling in a lawsuit. An oral motion may be made during trial — for example, to strike the testimony of a witness or admit an exhibit. Often, motions are made in writing, accompanied by a written statement explaining the legal reasons why the court should grant the motion. The other party has an opportunity to file a written response, and then the court decides whether to grant or deny the motion. The court may hold a hearing where each party can argue its side, or may decide the issue without a hearing.
Oral Argument – Arguments spoken to a judge or appellate court by a lawyer (or parties when representing themselves) of the legal reasons why they should prevail. Oral argument at the appellate level accompanies written briefs, which also advance the argument of each party in the legal dispute.
Order – A decision issued by a court. It can be a simple command–for example, ordering a recalcitrant witness to answer a proper question–or it can be a complicated and reasoned decision made after a hearing, directing that a party either do or refrain from some act. For example, following a hearing, the court may order that evidence gathered by the police not be introduced at trial; or a judge may issue a temporary restraining order. This term usually does not describe the final decision in a case, which most often is called a judgment.
Plaintiff – The person, corporation, or other legal entity that initiates a lawsuit seeking damages, enforcement of a contract, or a court determination of rights. In certain states and for some types of lawsuits, the term petitioner is used instead of plaintiff.
Preliminary Objections – Points of law or fact raised at the outset of a case or lawsuit by the defense without going into the merits of the case. Preliminary objections take no account of the validity of the claims of the claimant or plaintiff.
Request for Production of Documents – A request asking the opposing party to produce documents relating to the case. Typically, these requests include bank statements, other financial documents, contracts, etc.
Rule to Show Cause – An order from a judge that directs a party to come to court and convince the judge why the judge shouldn’t grant an action proposed by the other side or, occasionally, by the judge. For example, in a divorce, at the request of one parent a judge might issue an order directing the other parent to appear in court on a particular date and time to show cause why the first parent should not be given sole physical custody of the children.
Rules of Civil Procedure – Rules that are used in handling a civil case from the time the initial complaint is filed through pretrial discovery, the trial, and any subsequent appeal.
Service – Delivering legal papers to a defendant or a plaintiff in a lawsuit. 2) Delivering written notification of the sender’s intent to invoke a legal or contractual right. See: service of process, personal service, substituted service
Statute of Limitations – The legally prescribed time limit in which a lawsuit must be filed. Statutes of limitation differ depending on the type of legal claim and on state law. For example, many states require that a personal injury lawsuit be filed within one year from the date of injury — or in some instances, from the date when it should reasonably have been discovered — but some allow two years. Similarly, claims based on a written contract must be filed in court within four years from the date the contract was broken in some states and five years in others. Statute of limitations rules apply to cases filed in all courts, including federal court.
Summary Judgment – A final decision by a judge, upon a party’s motion, that resolves a lawsuit before there is a trial. The party making the motion marshals all the evidence in its favor, compares it to the other side’s evidence, and argues that there are no “triable issues of fact.” Summary judgment is awarded if the undisputed facts and the law make it clear that it would be impossible for the opposing party to prevail if the matter were to proceed to trial.
Writ of Summons – One of two modes used in commencing a civil action against a person. A formal document addressed to the defendant requiring him to appear before the court if he/she wishes to defend himself against the plaintiffs claim.