DOs and DON'Ts
If you have a court case, and have to represent yourself for all or part of it, here are some guidelines. Of course, you are better off having an attorney, but unfortunately circumstances occur where you have to handle a case yourself. This is not, and could not be, a complete guide. It is not legal advice such as you would be given if you hired a lawyer, although we hope that most lawyers would agree that these are good, common sense rules of thumb.
Understand what the basic issues in the case are. Who is suing whom for what relief, and what facts and legal theories are important? If you haven’t gotten this far, you need to get some basic information and think about the case some. The person bringing the case has to state in the pleadings what facts – in outline form – he or she intends to prove, and you need to know which are important to the case and which you can table for the time being. The strengths or weaknesses in a case can only be seen if you know what the law says about the facts and circumstances of the case. There may be issues raised in the papers that are totally irrelevant to the case and there may be crucial defenses or claims that a party has failed to assert.
DO NOT PLAY LAWYER.
Do not act more sophisticated or knowledgeable that you really are. Do not throw around legal terms. Be yourself. It annoys people if you use them incorrectly, and makes you look bad. You (and a large portion of the legal profession) would be better off keeping away from fancy terms and using just plain old English.
Do not unnecessarily antagonize anyone involved with the case. This means the judge, the other attorneys, the court personnel, and the other parties. Think about it: If they like you, they are more likely to give you some or all of what you want. On the other hand, if you really annoy them, they may decide to give you the hardest time possible out of spite. There are almost no—and maybe not any—circumstances where personal attacks are of any value whatsoever.
If you are involved in a court case, you will probably have to appear in court. Be on time. You can lose a case by default if you do not show up or show up late. You can gain brownie points with the judge by showing up and diligently paying attention to your case, particularly if the other side appears to be making you wait for no reason.
SEEK OUT RESOURCES.
You may be able to get some free legal advice on you problems from community organizations, pro se clerks at the court, public officials community offices, web pages, etc.
STICK TO THE POINT.
If you are talking to the judge, the judge’s court attorney, a clerk, or other person involved with the case, stick with the issues of the case. There is no point in going off on a tangent or discussing things that are totally off the topic, or telling your story beginning with “let there be light . . . .” Be succinct and express yourself clearly.
BRING EVIDENCE TO COURT.
If you think you might need some paper or item of evidence, bring it to court. It would be smart of have an extra copy, as well. For documents, you often need the original document to get it into evidence.
PRESERVE YOUR EVIDENCE.
If there is something you are likely to need in a court case, save it and keep it safe. This applies to things like leases and contracts where you may never be involved in a lawsuit. Keep good records. Keep copies.
IF YOU GET COUNSEL, DO IT PROMPTLY.
If you are considering hiring an attorney or getting legal advice, do so early on in the case. The earlier the better. You may make mistakes that adversely affect you if you postpone seeking help.
When you settle a case, it is hard to undo the settlement agreement. In fact, it is almost impossible to do so unless there are some special circumstances. Do not get rushed into a settlement where you give up something valuable – like agreeing to move out of your home – unless you are sure about it and have a very clear understanding of the rights and risks involved in the case.
THE OTHER SIDE IS NOT YOUR FRIEND.
The opposing attorney has a job to do, and that is winning the case for the client. He or she may be nice. He may be personable. You may feel you can trust every word he says when he or she tells you what your rights are and that you have to take his settlement. That may be so, but it may be a passel of lies as well.
Honesty counts. Neither the judges nor the other parties involved in the litigation will be tolerant of out and out prevarication. A judge or jury can reject all of what you say if they believe you have intentionally lied. A lot of people think that cases are won by fraud and dishonesty – that is rarely the case. More often, cases are lost because of a party’s dishonesty. This is not the same as volunteering every harmful fact about your case – a major part of the art of advocacy involves knowing what to volunteer and what not to disclose unless asked specifically. It is also one of the things that having a good lawyer will help you to do.
KEEP YOUR WORD.
Do not make promises you do not intend to keep. When you agree to do something in court, you should do it. There are times when you cannot do what you agreed to do, or where you have good reasons for not doing what you said you would do, but if you are not an attorney, you are best with sticking to your promises. If you have to do something that goes contrary to what you have represented that you would do to the court, you should probably make a motion in court or seek permission from the other side or the judge. If you cannot do what you agreed to do, be ready to show a good reason why not.
KEEP THE GOAL IN MIND.
Being in a court case is about winning the case. It is not about being right, or seeing justice done. Court cases are a means of resolving disputes between the parties. Convincing the world that you are right but losing the case is, well, losing the case. What you do in a court case should be calculated to win the case, and if what you are doing is not helping you win the case, then do not do it unless it is legally required or is necessary to avoid perpetrating a fraud.
IT IS NOT A MATTER OF PRINCIPAL.
While you may want to pursue a case “as a matter of principal,” that is usually a bad idea. Judges do not like cases where the main issue is a matter of principal. Someone who pursues a case “as a matter of principal” is usually wasting time and money and is very likely to be disappointed. Court cases are a means of resolving disputes, not a means of demonstrating moral superiority or that one party is “right.”
THERE ARE FREE AND CHEAP SOURCES OF LEGAL INFORMATION.
Anyone can buy law books. Paperbound copies of many statutes are available in large bookstores, like Barnes & Noble, and large public libraries have law books. Textbooks are likewise readily available. The internet is a great source and most public laws and codes are available there. A word of caution, though: A little knowledge is a dangerous thing. You can misunderstand something in the law more easily than you can understand it.
IF YOU SIGN IT, GET A COPY.
A Brief Summary of Pleading Rules
Why is this section here? Well, we get to see a lot of clients who have started out handling a case themselves and who have made a mess of it because they put too much or too little in their answer filed with the court. This is usually due to a misunderstanding of the basic principals of pleading. While this short summary cannot give you the same knowledge as an attorney, it may help avoid serious errors.
- A pleading should make claims in a simple, readily understandable form. Avoid long, convoluted statements.
- A pleading should let the adverse party and the court know exactly what the pleading party is claiming.
- A pleading should have each allegation made in a separate, short paragraph. A good test is whether a paragraph can be easily responded to with a simple admission or denial. If a party has to admit x, y and z, but denies p, q, and r of a given allegation, the allegation needs to be broken down into several paragraphs. In an answer, several allegations of the complaint or petition can be answered in single paragraphs. For example, it is a proper answer to say, "Denies the allegations in paragraphs 1, 3, 4, and 6."
- A responsive pleading—an answer to a complaint or petition, or a reply to a counterclaim—should be explicit and clear as to what allegations are admitted or denied.
- A responsive pleading should allege any defense that is likely to take the adverse party by surprise.
- A pleading is not the place to set forth the evidence in the case. Yes, there are times where a party may attach a lease, contract, promissory note or the like to a pleading, but that is usually done where there is really no issue as to the item attached. The big mistake pro se parties make is to bulk up an answer with piles of evidentiary items. This is bad because: (a) judges want the Answer to be a simple, easy to read summary of the defenses, and judges do not want to read 20 pages where half a page would do; and (b) you may be needlessly giving the opposing side ammunition to use against you, either by providing them with knowledge about something of which they were ignorant, or, worse yet, stating something that can easily be taken out of context as an admission that you did not intend to make.
- Certain defenses must be raised in an answer or they are waived: the defense of lack of personal jurisdiction is a prime example. If the papers were not properly served, but the defendant or respondent serves an answer that does not raise the defense of lack of personal jurisdiction, that defense is forever waived and cannot be asserted in an amended pleading.
- An allegation that is not the subject of a specific response is usually deemed admitted; if your answer does not deny an allegation, it is the same as admitting the allegation. There is an exception that applies often in housing matters—in Civil Court, a counterclaim raised by a tenant-respondent in a summary proceeding, or a defendant in an action, is deemed “generally denied” if not responded to; that means that there is denial, but any defense that would have to be pleaded is not deemed interposed.
- Pleadings can usually be amended. It may be necessary to make a motion to amend a pleading, or it may be possible to simply serve an amended pleading, but the general rule is that pleadings are freely amendable so long as the rights of the other parties are not prejudiced. As a practical matter, it is usually best to have a pleading done properly the first time, however, and some defenses are waived if not raised in the first answer served.
There are also a number of strategy issues relating to pleadings, which really cannot be explained to someone who does not have experience in litigation. There may be times when a party wants to get the adverse party to commit to a legal theory early in the case, or to specifically admit or deny factual matters that technically do not have to be alleged. It may be that pleading a claim or defense in a certain way will cause an adversary to make a motion that has the effect of forcing the adverse party to reveal evidence or documents very early in a case, or supply an affidavit with specific factual statements that can be used later in a case.
The New York Rules of Professional Conduct have been adopted by the Appellate Division of the New York State Supreme Court and are published as Part 1200 of the Joint Rules of the Appellate Division (22 NYCRR Part 1200).
You should know how you are being charged. This is usually set down in a written retainer agreement or retention letter, which explains its charges.
You are entitled to an attorney who has no conflict of interest. The attorney should not have interests which, if pursued by the attorney, could hurt your case or claim. This includes the attorney’s own business interests as well as the attorney’s need to represent other clients effectively.
You are entitled to an attorney who will represent you vigorously and competently. Keep in mind, though, that the amount of resources that should go into a case may be limited by your budget and the type of case and the potential recovery; there is no point in spending $10,000 in legal resources over a $5,000 small claims case.
An attorney should not encourage you to spend a great deal on a case simply because you believe you are right. It is the attorney's job to advise you as to the merits of your case, including any potential recovery.
An attorney is prohibited from guaranteeing an outcome. They can predict a possible result based upon their experience, but if someone guarantees you a result, that is prohibited.
Remember that selecting an attorney is similar to selecting any other professional, such as a doctor. You must be sure your attorney has the experience and expertise to handle your case, that you are being charged commensurate with his or her expertise, and finally, that your attorney has a personality that you can work with. Litigation can be a long and arduous task; you must be able to communicate with your counsel.
If you cannot afford an attorney, you may still be able to find free representation. It is quite difficult to obtain free legal representation in New York City, but you can try contacting the following resources:
Brooklyn Legal Services
North (718) 487-2300
South (718) 237-5500
HIV Law Project
Legal Services for New York
Legal Aid Society
New York Legal Assistance Group (NYLAG)
Urban Justice Center
Glossary of Common Legal Terms
Here are some definitions and explanations of common legal terms you here 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 does not help, you might want to consult the online Law Dictionary, which has an extensive database of legal terms.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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. This is how the court keeps track of which case is which.
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.
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 plaintifff to the relief sought from the court. In a criminal case, the term “complaint” has a somewhat different meaning.
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. The tenant is seeking compensation for a lack of repairs and services.
Court Officers are law enforcement officers who provide security to the New York State Unified Court System, and enforce state and city laws. It is extremely important to be courteous to Court Officers and follow their instructions. When you arrive in court for a scheduled date, the first thing you should do is check in with the Court Officer in the proper courtroom. Other places call them “bailiffs.”
COVENANT OF QUIET ENJOYMENT
This is a basic promise implied in all leases, like the warranty of habitability. It provides that the Landlord cannot disturb a tenant’s right to “quietly enjoy” their property. Harassment, lock-outs, and failure to keep an apartment in habitable condition all violate the covenant of quiet enjoyment. “Quiet” means peaceful, not necessarily free of noise.
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.
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, The Art of Cross Examination (4th Ed., 1997). 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.
This is a term used for when a Landlord’s actions are so egregious, or the Landlord has allowed conditions to persist that are so uninhabitable, that the tenant is forced to leave the apartment.
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 that require or bar granting relief, or, if there is testimony, discuss which witnesses are credible and which are not.
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.
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 timetable. 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.
The party being sued in a civil case. In some cases, such as summary proceedings, the term “Respondent” is used.
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 facts—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 doesn’t 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.
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.
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.
Electronic filing. Many courts are either permitting or requiring papers to be filed electronically. The method and rules relating to electronic filing vary from court to court by usually require that a PDF of any paper be filed with the court over the Internet. In New York, most Supreme Court cases are e-filed.
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.
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.
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.
An eviction is the removal of a tenant and his or her personal belongings from an apartment. Only a marshal can do this, and there are strict rules around when a tenant may be evicted. First, the landlord must properly terminate the tenancy by properly serving a notice of termination. Then, the landlord must commence an eviction action in court, and win the right to possession. Finally, the landlord have a marshal serve the tenant with a notice of eviction. After the notice is served, the marshal can return to perform the eviction some time more than 72 business hours after the notice has been served, or 6 business days after the notice has been mailed, between the hours of sunrise and sunset.
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.
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.
A hearing for the purpose of determining the amount of damages. If a defendant fails to appear for their case and is defaulted, the court will send the plaintiff to an Inquest hearing. At an inquest, only the plaintiff is present because the defendant has failed to answer or appear in the action. The plaintiff must prove the allegations made in the complaint to the satisfaction of the Judge, and then must prove the amount of damages they seek.
This is very much like an order, but it is a final disposition 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 marshal 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 marshal actually evict the tenant.
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.
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. They help enforce judgments and court orders.
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. 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 courtroom 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.
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.
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.
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.
A division of a court. At any given time, it almost always refers to a particular judge and particular courtroom, 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.
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.”
A petition is a pleading in a special proceeding. It is the equivalent of a Complaint in an action.
The party suing in a civil case is sometimes called a “Petitioner,” and sometimes called a “plaintiff.”
The party suing in a civil case. Sometimes, for example in summary process cases, this party is called the “Petitioner.”
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, which, 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 allegation. 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”—another pleading—to respond to counterclaims or an answer to cross claims. See the short section on basic rules of pleading.
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 disparate 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.
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 (i.e., “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.
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.
Send back to the lower court. An Appeals Court may remand a case back to the lower court for further proceedings.
The date the paper says to be in court.
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.
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.
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. A settlement is usually done in a written stipulation (see below).
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.
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.
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. Rules and regulations, adopted by agencies, may interpret or effectuate statutes.
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.
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.
Statements, either written or oral, that are made in the context of a court case are frequently “sworn.” The person making the statement—the witness—states that he or she will tell the truth. The statement is made to a person 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.
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.
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.
A hearing conducted by a judge to determine whether the defendant in a case was properly served with the summons. If the defendant was not properly served, the case is dismissed and the plaintiff must try again. If the summons was properly served, the case moves forward as scheduled.
A notarized sworn statement by a party filing a pleading, which swears that everything in the pleading being verified is true to the best of the party’s knowledge, and where the party does not know if something is true, the Party believes it to be true. If a party verifies a pleading by including such a sworn statement, the other party is forced to respond with a verified pleading. For example, if a plaintiff files a case with a verified complaint, the defendant must respond with an answer and a verification of that answer.
WARRANTY OF HABITABILITY
This is an implied right that all tenants have: the right to a livable, safe and sanitary apartment. A landlord cannot waive the tenant’s right to this warranty. Public areas of the building are also covered by the warranty of habitability. This warranty also applies to co-operative apartments, but not to condominiums—where you are a tenant, not an owner. Any uninhabitable condition caused by the tenant or persons under the tenant’s direction or control does not constitute a breach of the warranty of habitability. If a landlord breaches the warranty of habitability, the tenant may sue for a rent abatement or reduction. Alternatively, rent regulated tenants can also file a rent reduction complaint with DHCR. The tenant may also withhold rent, but in response, the landlord may sue the tenant for non-payment of rent. In such case, the tenant may countersue for breach of the warranty.
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.