Definitions of Legal Terms
Here are some definitions and explanations of common legal terms you hear attorneys use. If you are not already familiar with these terms, you probably want to avoid using them until you have a better understanding of what they mean – if you are going into court without an attorney, trying to act more knowledgeable and sophisticated than you are can get you into a world of trouble. These definitions and explanations will help you understand what is going on a little better. Note: This explanation covers civil (i.e., not criminal) cases, and the same word may mean something different in a criminal case. It is also based on practice in the state courts of New York, and may not apply in other courts’ practice. If this doesn’t help, you might want to try http://dictionary.law.com/ which has an extensive database of legal terms.
ACTION: An action is a type of court case in a civil lawsuit. Sometimes referred to as a plenary action, it is the ordinary form of a lawsuit that would be brought based upon a claim that someone breached a contract, caused injury through negligence, seeking a divorce or most other claims. In New York practice, this is distinguished from a proceeding, but the Federal Rules have removed the distinctions between proceedings and actions.
ADJOURNMENT: Sometimes called a continuance. Just what it seems – whatever you are doing or are about to do, it gets put over to a later date.
AFFIDAVIT. An affidavit is a written, sworn statement, signed by the witness and notarized. These are used frequently in motions so the judge has a sworn statement about the facts of the case. Usually, affidavits are not admissible at trial – the person making the statement has to be in court to be cross-examined.
ALLEGATIONS: An allegation is a claim made by someone, usually a party to a lawsuit. In a pleading, the party alleges facts (and sometimes legal conclusions) that the party claims favor its position in the case. The preferred form of making allegations in a pleading is to have very short – usually one sentence – paragraphs which are sequentially numbered.
ANSWER: The Answer is the pleading that a defendant or respondent interposes to admit or deny the allegations of the Complaint (or Petition) and to assert any defense or counterclaim that may exist.
APPEAL: An appeal is the process of taking the order or judgment of one court to a higher court to have the judgment or order reversed or modified. The first step in taking an appeal is to serve a notice of appeal, which is followed by perfecting the appeal, and then often arguing the appeal. The appeal court can affirm, reverse or modify the lower court’s order or judgment, and may remand the case for further proceedings. Perfecting the appeal means serving and filing the papers needed by the appeals court to hear an appeal. These include the record on appeal, which is a copy of the papers used by the lower court in reaching its decision, and almost always includes the pleadings, the judgment or order appealed, the decision of the lower court, all motion papers, and, if there was a trial or other evidentiary hearing, a transcript of the hearing and copies of all exhibits; a brief, which contains the legal arguments of the party, and a notice of argument that states when the appeal will be heard. The record and brief are, contained in bound volumes and several copies are submitted to the court (except where the court orders otherwise, usually because a person is proceeding as a poor person and cannot afford it). In New York courts, the procedural requirements for the record, and to a lesser extent, the briefs, are rigorous and exact. Not only are there specific requirements as to what goes into a record, there is a specific order in which the papers are bound, where the page numbers go, how the volume is indexed and what headings are inserted, what type size is used, and so on. This is so that the judges of the appeals court can easily turn to the items they wish to review. There are a number of printers that specialize in putting together appeal records, who are familiar with the specific requirements of each court. As a practical matter, this means that appeals are very hard to do if you are not an attorney with experience in doing appeals.
APPEARANCE: This term has more than one meaning. One type of appearance is where a party or their attorney files an answer in a case. That gives the party the right to defend the case, assert counterclaims, and participate in the case fully. If a party does not answer on time, they can be held in default, and can lose the case by default. The term also refers to actually going in front of a judge at a hearing or trial date of a case.
APPLICATION: A request made to the Court. If an attorney says, “Your honor, I would like to make an application for a continuance until next Thursday,” you can understand that to mean “Judge, let’s stop now and come back next Thursday and pick up where we left off today.”
BURDEN OF PROOF: Assume that the following occurs – the parties to a law suit have properly raised their claims and defenses to a court, and they are all legally correct – if proved, they would cause the party raising the claim or defense to prevail on that claim or defense. Then assume that on some claim or defense raised, there is no evidence presented to the court. Who wins on that claim or defense? That is the party with the burden of proof on the claim or defense. Who has the burden of proof is not always obvious, and there are legal issues where the burden of proof can change from one party to the other as certain things happen in the course of the matter. Generally, a plaintiff has the burden of proof as to what is alleged in the complaint. The converse is not true – there are defenses called “affirmative defenses” where the defendant has to prove the defense. There are other defenses where, if they are alleged in the answer, the plaintiff has to disprove them.
CALENDAR: This term has a couple of meanings. One is the list of cases that are going in front of a judge on a particular day. A case or motion is “on the calendar” if it is on that list. In most instances, that means that someone – a party or attorney – must be physically present at that time and place to deal with the matter. If there is an adjournment, the case is then placed on a calendar for a different date. Another meaning has to do with how cases are prepared for trial. In an action, a case is started but it is not on the calendar automatically. If no one does anything to put the case on the trial calendar, it will never get assigned to a judge for trial. When a party wants to try an action, they have to serve a notice of trial, sometimes called a note of issue, and the court assigns the case to a part or judge for trial. If a case is on the calendar, it can be “marked off calendar” which means that it will not appear before a judge until someone takes steps to have it placed in front of a judge.
CALL: Cases or motions are “called” when the judge, or sometimes the clerk, is about to do something wit the case. IN some parts, there is a formal call of the calendar, and case names are recited out loud. If a party does not answer they can be defaulted and lose by virtue of not being there. Some courtrooms are less formal, and wait for the necessary people to show up and “check in” with the clerk, who can then call the case and put the papers in front of the judge.
CAPTION: This can mean either the simple name of the case (e.g. “Smith v. Jones”) or the actual typed portion of a court paper that contains the name of the parties, the index number, the name of the court, and so on, which appears at the top of the first sheet of almost all court documents.
CLERK: In court parlance, a clerk is a very important person. This is not someone who just files papers, but also the person in a court room that gets your case in front of the judge, keeps the records of what happens to a case, keeps track of the various attorneys who have to be present for a case. In the administrative sense, there is usually a “clerk of the Court” who is a very high level administrator that deals with non-judicial aspects of running the court, and who is in overall charge of record keeping, filing, issuing papers, scheduling who works with whom, etc. Basically, the clerks are the ones that run the courts and the courtrooms, and woe betide any attorney or litigant that runs afoul of a clerk.
COMPLAINT: In a civil case, a complaint is a legal pleading made by a plaintiff that makes allegations that the Plaintiff claims are true and which, if proved to the court, would entitle the Plaintiff to the relief sought from the court. In a criminal case, the term “complaint” has a somewhat different meaning.
COUNTERCLAIM: If the party being sued has a claim against the party that is bringing the suit, it can often be raised in the case as a counterclaim. A counterclaim that is related to the main claim can almost always be raised. Example: Landlord sues tenant for rent. Tenant asserts as a defense and a counterclaim that the landlord has not supplied proper repairs and services.
CROSS CLAIM: A cross claim is a claim asserted between two parties being sued in the same case. There are types of litigation where cross claims are very common, such as that involving construction, where there are a number of parties with related obligations to each other. For example, if a building goes up and the owner finds that there are structural problems, the owner might sue, in a single suit, the main contractor, the subcontractors that pored the concrete, the company that supplied the concrete, the engineering firm that specified the type of concrete and how much to use, etc. The main contractor may sue other subcontractors in the same case by raising a cross claim.
CROSS EXAMINATION. This is the process of asking questions of a witness in order to show the court that the witness’s testimony should be discounted to some degree. For some interesting reading on this important aspect of trying a case, we recommend Francis Wellman’s Art of Cross Examination. In short, cross examination will often be used to show that a witness is biased or has reason to lie; that the witness’s recollection is incomplete or faulty; that the witness could not have observed or know what the witness testified to on direct examination; or that there are other facts that have to be taken into account in evaluating the witness’s testimony.
DECISION: When a judge decides a case or a motion, there is usually a decision, which explains, in varying detail, the reasons why the court is ruling as it is. A decision may discuss why a judge has decided what law applies, point out procedural issues require or bar granting relief, or, if there is testimony, discuss which witnesses are credible and which are not.
DEPOSITION: In New York, this term refers to taking testimony, with a stenographer or other means of recording, outside the court. Sometimes referred to as an EBT (examination before trial) it is usually used as part of discovery to prepare a case for trial.
DEFAULT: The course of any court case involves a party doing something and the opposing party or the court doing something in response, usually according to a specific time table. So what happens if a party does not react or does not react in time? A default occurs. Frequently this means that the defaulting party is treated as having waived – given up – any opposition to the request made by the other party. If a defendant is served with a summons and complaint suing for money, and the defendant does not serve an answer, the defendant has defaulted, and may lose the case on default. Defaults often lead to the Defendant seeking an order to show cause, asking the court to vacate the default, with a temporary restraining order stopping the plaintiff from acting on the judgment obtained on default.
DEFENDANT: The party being sued in a civil case.
DEFENSE: Defenses have to be understood in the context of claims, or causes of action. The cause of action is what gives the party suing the right to some form of relief, if proved. A defense is a set of fact – or alleged facts – that avoid that claim. In other words, even if the Plaintiff proves what they allege, if there is a valid defense the Plaintiff either does not recover or recovers only part of their claim. Examples: P sells D a bunch of widgets, and D does pay. P sues D. D has a defense “the widgets were defective.” Another: Landlord sues tenant for rent. Tenant admits tenant withheld rent but raises a defense of lack of proper repairs and service (called “breach of the warranty of habitability” in New York landlord/tenant parlance) because there was no heat. Landlord then recovers only part of the rent because the tenant is entitled to an abatement.
DIRECT EXAMINATION. When a witness is called to the stand by a party and asked questions to support party’s claims, it is called direct examination. It is usually followed by cross examination, and the party who called the witness may then question the witness in redirect examination.
DISCOVERY: Sometimes called disclosure. This is a legal process through which a party can get evidence or information to prepare a case for trial. In New York, it is not available in special proceedings unless a judge orders it, but is available without court intervention in an action.
EQUITY. This term has few related meanings. The types of claim that can be the basis of a court case are divided into claims “at law” and those “in equity.” The reasons are purely historical, having to do with which matters were tried by the King’s courts and which were tried by the Church’s court a few hundred years ago in England. Generally, claims purely about money – including negligence, contract, unpaid loan and bad check claims – are “legal” claims or those “at law.” The claims in equity usually involve forcing someone to perform some act (sell property under a contract of sale) or cease doing an act (using your trade name) or the like. Some courts have little or no equitable jurisdiction; they cannot hear cases in equity. Equity is also used as a general term in law for fairness. There are also equitable defenses – defenses based upon fairness to a purely legal claim or an equitable claim. As you might guess, because the historical origins of these doctrines, these distinctions as to types of claims sometimes seem to make no sense except as an historical artifact. For example, if you want a court to order someone to stop walking across your lawn and trespassing, that is an equitable claim. If someone wants to evict a tenant for not paying rent, that is a legal, not equitable claim.
EXAMINATION. This is the process of asking a witness questions to elicit testimony. It is not that easy, without legal training and experience, to examine a witness effectively. The rules of evidence are fairly complex, and a poor examination of a witness can hurt the case of the party doing the examination.
EXHIBIT: This can mean a few different things. At a trial, pieces of physical evidence, such as books and records, photographs, letters, as well as things like “the murder weapon” may be considered by the judge. To be considered they have to be “in evidence” – admitted into evidence by the court. They will be given a number or letter so that the record will, if read later on, be clear as to what the item was when a witness refers to it. Generally, the Plaintiff or Petitioner’s exhibits are given numbers and Defendant’s or Respondent’s exhibits are given letters. The process for getting an item into evidence is a formal one – and one that usually occupies a full course in law school. One of the major problems that pro se litigants have is making sure that any issues in the record are preserved and that the important documents are actually admitted into evidence.
HEARING: This term has at least two meanings. In one sense, it refers to taking testimony – having witnesses sworn and questioned in front of the judge and all the attorneys – but in some preliminary matter, instead of the whole trial. An example of this would be a traverse hearing on how papers were served. In another sense, it refers to an appearance before a judge with no witnesses, but where something is occurring. An example of this is a hearing on a motion, where the judge makes sure that all of the papers are in the file and sometimes hears the attorneys argue.
INDEX NUMBER: Sometimes called a docket number, every case is given an index number, which is used to keep all of the papers in a case together. As you may gather, keeping track of the paper in a court case is very important; if it is not part of the physical court papers in front of a judge, it might as well not exist
JUDGMENT: This is very much like an order, but it is a final deposition of a case or a part of a case. A judgment for a sum of money allows the person who won the judgment (the judgment creditor) to have a sheriff or city marshall take money out of the loser’s (the judgment debtor’s) bank account, or otherwise collect money. A judgment of eviction lets the landlord get a warrant of eviction to have the marshall actually evict the tenant.
JURISDICTION: Literally from Latin, what a court of law is allowed to say. There are two major areas of jurisdiction, subject matter jurisdiction and personal (“in personam”) jurisdiction. Subject matter jurisdiction is what type of case a court can hear – some courts can hear only civil cases or only criminal cases, or only cases brought to recover less than a specified amount of money or cases involving residents of the state. Some cases can only be heard in state courts and some only in federal court. Personal jurisdiction has to do with whom the court can order to do something or against whom it may issue a judgment. Issues of personal jurisdiction usually arise where a defendant claims that the summons was not properly served. The idea of personal jurisdiction is one of constitutional magnitude in many cases, as there are formal steps that must be taken to put a defendant on notice that a case is brought against the defendant so as to provide the defendant with an opportunity to be heard and to prove any defense. This is part of the due process requirement under the American legal system; due process requires that a defendant be provided with notice and an opportunity to be heard.
MARSHALL: Not the kind that round up the bad guys in westerns, city marshals are persons appointed in the city of New York to act as arms of the courts, primarily the Civil Court, in much the same manner as the Sheriff.
MOTION: A motion is an application for an order. There are two types of motions in New York practice. One type, that is done before a trial or hearing, in a motion on notice, and it is done on papers. It can be done by either a notice of motion or an order to show cause (see the annexed samples). The other type is done orally, on the record, at a trial or immediately before or after a trial, and generally deals with matters that have to be dealt with immediately, like striking a portion of the testimony or excluding a witness from the court room during trial. The rules about motion practice are fairly complicated, and difficult to explain briefly. Motions are necessary in court cases if the party wants a judge to issue an order and the other side disagrees.
NOTICE: This has two meanings. The first is fairly obvious – a person has notice of an occurrence, event, or claim if they know about it, or (in general and in the legal meaning of the word) should have known about it if they exercised ordinary diligence. The second meaning refers to a piece of paper in a court case, such as a notice of motion, notice of appearance or notice of appeal, for example. These legal notices have to provide specific information specified by law, and have to be in a specific form, and put the other parties (and the court) on notice –in the first meaning of the term – that the person serving and filing notice intends to do something or ask the court to do something.
NOTICE OF PETITION: A notice of petition is the equivalent of a summons, but it is used instead of a summons in a special proceeding. It tells the Respondent when and where the Petition will be in front of a judge on the first court date.
OATH. An oath is a formally binding statement that the witness will tell the truth, either as to oral testimony or a written statement (called an affidavit). If a witness violates their oath by intentionally making false statements, the witness is committing the crime of perjury. The traditional language of an oath given to a witness in a trial is something like “Do you solemnly swear to give the truth, the whole truth and nothing but the truth, so help you God.” This hearkens back to the time before separation of church and state, and it is sometimes reword to do away with religious references and sometimes to substitute the term “affirm” for “swear” to indicate that it is purely a matter of law, and not religion, at least as far as the court case is concerned.
ORDER: The actual paper that embodies a judge’s determination or direction. This is different from a decision, although the two are sometimes combined into a single document. In New York state courts, unlike some other courts, a judge’s order has to be an actual piece of paper signed by the judge; a judge simply saying that something is an order does not make it an order, which means it cannot be appealed. An order might be “motion to dismiss the case is granted,” or it might contain detailed directions by the judge as to what a party is directed to do. This is not the same thing as a ruling.
ORDER TO SHOW CAUSE (OTSC): This is a very useful device in law. It is usually a substitute for a notice of motion, but may also be used as a substitute for a notice of petition. It is a form of court order, usually obtained ex parte (without notice to the other parties in a case) and orders the other party to “appear and show cause” why an order should not issue. It may contain a temporary restraining order (also called a TRO), which is an order issued by the court to maintain the status quo until the hearing of the order to show cause.
PART: A division of a court. At any given time, it almost always refers to a particular judge and particular court room, sometimes limited to specific types of matters. In New York practice, a case or motion will be assigned to a part, and usually stay with the part even if the individual judge rotates to a different assignment. Some parts may only handle trials, and some only conferences, so a case may be on the calendar of more than one part.
PARTY: The persons who are centrally involved in a court case, like the plaintiff and defendant. Someone who may be a witness or otherwise be involved in a court case, but who are not affected by the outcome, are “non-parties.”
PETITION: A Petition is a pleading in a special proceeding. It is the equivalent of a Complaint in an action.
PLEADING: Pleadings are the papers that state what the case is about in the most basic sense, and what papers are pleadings is specifically defined by statute. When a party starts a case in New York, they almost always have to make allegations, that if proved in court, would entitle them to some form of relief. In an action, the allegations are set forth in a complaint, and in a special proceeding, they are set forth in a petition. These are the first pleadings in the case, and the allegations should be set forth in short (usually one sentence) paragraphs, with each paragraph alleging one factual allegations. In response, the defendant in an action, or respondent in a special proceeding, states their position in an answer. An answer may have very few statements saying something like “Admits the allegations of paragraphs 1, 5, 7 and 9. Denies the allegations of paragraphs 2, 3, 4, 6, and 8. The answer may also allege various defenses, and may contain counterclaims or cross claims. There may also be a reply to respond to counterclaims or an answer to cross claims. See the short section on basic rules of pleading.
Pro Se: A Latin term meaning, “for self.” A party that appears in court without an attorney. In New York, usually only individuals can appear pro se. Corporations and other business entities usually need to have an attorney.
PROCEDURAL v. SUBSTANTIVE: In law you will hear these terms mentioned a lot. Substantive issues are those dealing with a basic right or ability to get the court to do something, like who should win a case. Procedural matters are those that dictate how the court proceeds, such as what has to be put in certain court papers, how motions are made, etc. The issues are not quite a dispirit as you might thing – if you have no procedure to enforce a substantive right, you might as well not have that right; if you have a procedural means to protect yourself in a case, that is as good as the substantive right of ultimately winning the case.
RECORD: Court proceedings are memorialized by a record. That is the name for the collection of documents on which the case is decided. Exactly what is meant by the term depends on the context, however. In a trial, there is a means of recording testimony, usually a court reporter (also called a stenographer) or sometimes a tape on electronic recording. Proceedings are “on the record” when the testimony is being transcribed or recorded; discussions that are not on the record (ie, “off the record”) are technically not part of the case, and cannot be considered in deciding the case or in an appeal. When an appeal is taken, part of the process of perfecting the appeal is to prepare, serve and file a record on appeal, which will contain all of the things that the lower court considered in deciding the case, including the pleadings, trial transcript (what the stenographer took down or what was on the tape), trial exhibits, motion papers, etc. An appeal record is done according to a very rigid set of rules that specify not only what goes in the record, but in what order, with what headings, where page numbers go, etc.
RELIEF: A term that generally describes what you want the court to do or issue – an order, injunction, judgment or the like. A judge may ask, “what type of relief are you seeking?” – meaning, “What are you asking me to do?” Many court papers contain a “prayer” (i.e., request) for relief so the opposing party and the court know what is requested.
REMAND: Sent back to the lower court.
RETURN DATE: The date the paper says to be in court.
RULING: A ruling is similar to a decision or an order, but the term is most often used where a judge makes a determination in the course of a hearing or trial, such as an evidentiary ruling where a party objects to testimony or evidence being offered.
SERVICE: In law, when you discuss serving papers, the issue is getting the papers to the intended recipient. There are different types of service that will be good, legally sufficient service, depending on the circumstances and paper to be served. If the court has jurisdiction over a person, the service is often proper if done by mailing the paper to the person’s attorney. If a case has just started and the party has not appeared, the service has to be done in a manner that is set froth in detail in the applicable statute. Usually that type of service can be done by handing the person the paper, and if the person cannot be given the paper (usually because they are not home) then leaving the paper with some other person, posting the paper on the person’s door, and doing mailings, in a combination that is specified by law.
SETTLEMENT. Most cases never actually go to a full trial. Most are settled prior to trial. A court case is a means of resolving a dispute, following substantive and procedural rules of law. At some point in most cases, all of the parties come to the conclusion that it is better to settle the case rather than risk losing the case at trial or to avoid spending the legal fees, time and other resources that go into trying a case. One of the primary skills of a good trial attorney is being able to weigh the various factors that need to be considered in evaluating the risk and costs, and decide what is a good settlement.
SHERIFF: In New York, the sheriff is the public official that acts as an arm of the court outside of the courthouse. The Sheriff’s office does things like size property ordered to be taken by the court an enforce judgments. In New York City, a City Marshall has similar authority.
SPECIAL PROCEEDING: Before you read this definition, make sure that your question applies to New York practice – you will not find this term used much outside of New York or in Federal court. A special proceeding is a type of case that can be brought on certain causes of action. It is different from an action(sometimes called a plenary action) in that it has an accelerated time table. In an action, nothing actually goes in front of a judge until a party places the case on the calendar or makes a motion or requests a conference with a judge. An action can go on for years without a judge laying a finger on it. In a special proceeding, there is a return date set by the papers served on the Respondent, and the case will appear on a court calendar on that date. The Special proceeding or some aspect of it will be in front of a judge immediately. A special proceeding is started by a Petition (the first pleading) and either a notice of petition or order to show cause, which will specify when and where the petition is to be heard.
STATUTE: A statute is a law that is passed by the legislature. In the English and American legal system, historically most law was created by courts This is common law, and common law still forms the basis for most civil law suits – the law governing negligence and contract law suits, for example, is almost completely based on common law.. Gradually, statutory law has taken on a much greater role in the legal system, and many types of court cases can only be brought because there are statutes that create causes of action.
STIPULATION: An agreement in a court case, usually in writing but occasionally on the record or oral. The stipulation may be to settle a case adjourn a case or any other agreement in a case. It may be procedural, substantive, or both. The verb form is “to stipulate.” A stipulation may be “so ordered” by the judge, in which case it becomes a court order.
SUBPOENA: This is a paper that is issued by the Court, or an attorney, which compels production of documents for trial or compels a witness to appear for trial.
SWORN: Statements, either written or oral, that are made in the context of a court case are frequently “sworn.” The person making the statement – e.g., the witness – states that he or she will tell the truth. The statement is made to a persona authorized to administer oaths – the promise to tell the truth is an oath. A written statement is usually called an affidavit, and the person administering the oath is usually a notary public.
SUMMONS: A summons is the piece of paper that actually tells the defendant that a case is started against him. It is service of the summons that gives the court jurisdiction over a defendant; the complaint is what tells the defendant what the case is about.
TESTIMONY. This is the legal term for sworn statements. It is used where a witness answers questions posed by a lawyer – or sometimes simply makes statements – after being administered an oath. It usually refers to questions and answers that are given on the record in court or at a deposition.
WRIT. Here is an old chestnut of a term that sometimes rears its head even today. Our legal system is a direct descendant of the common law system of England, which began in the eleventh century. In the olden days, if a party wanted a court to do something or bring someone else into court to force them to pay damages or the like, the court had to issue a writ – a piece of paper based upon specific claims. The most prevalent use of the term today is in referring to a “writ of habeas corpus” – literally directing that someone bring the body (meaning the person) of a prisoner to court to show why the prisoner should or should not be held.