#### Legal Terminology

Ejusdem Generis

Legal rule meaning 'of the same kind', used by judges to help them interpret the words in a statute.

Action

(1) Case, cause, suit or controversy filed then disputed or contested before a court of justice

Affirm

To declare a judgment, decree or order is valid and must stand as rendered below

A Fortiori

Literally, "with stronger reason". A logic term used to label an argument claiming that because one ascertained fact exists, therefore another, analogous fact must also exist
i.e. if a particular fact is true, then one can infer that a second fact is also

Amicus Curiae" Brief

(1) Latin for "friend of the court" who is interested in the outcome. A person with strong interest in or views on the subject matter of an action, but not a party to the action, may petition the court for permission to file a brief, ostensibly on behalf

Averment

In a pleading, to allege or assert positively
i.e. A formal statement by a party in a case of a fact or circumstance which the party offers to prove or substantiate.
(ex) This averment is supported by particulars of the matters relied upon.

Cause

A lawsuit, litigation, or action. Any question, civil or criminal, litigated or contested before a court of justice.
i.e. a matter to be resolved in a court of law

Cause of Action

The facts that enable a person to bring a lawsuit against another person
(ex) the plaintiff had a good cause of action in negligence'

Writ of Certiorari

(1) Latin for "to be informed of."
(2) If appeal to Appellate Court, and not like their decision, then the party will ask the Appellate Court to petition for a writ of certiorari asking for court of last resort (State or SCOTUS) to agree to hear the first

Common Law

(1) Rules and Legal principles arising from tradition and judicial decisions rendered in absence of enacted law (i.e. statutes, ordinances, or regulation that are passed by legislature or other rule-making body)
(2) Generally, common law is case law rende

Declaratory Judgment

i.e. A judge's statement that, without enforcement, declares the rights of the parties OR an interpretation of the law.
(ex) a plaintiff may seek a declaratory judgment that a particular statute, as written, is unclear or violates some constitutional righ

Decree

The judgment of a court of equity (deciding based on equity and good conscience) or chancery, answering for most purposes to the judgment of a court of law.
i.e. An official order issued by a legal authority. The term "judgment" has generally replaced "de

Demurrer ("Motion to Dismiss")

(1) A motion to dismiss a civil case bc of the legal insufficiency of a complaint.
(2) An allegation that, even if that facts as stated are taken to be true, there is NO violation of law or grounds for civil damages.
(Ex) Larry wants court to force Marty

Dicta

(1) In an opinion, unlike Holdings that encompass statements addressing the actual case questions necessary to explain the decision, Dicta are the statements, usually general, not necessary to resolve the dispute of the parties and thus explain the decisi

En Banc

(1) Latin for "on the bench."
(2) All judges of a court sitting together. Appellate courts can consist of a dozen or more judges, but often they hear cases in panels of 3 judges. If a case is heard or re-heard by the full court, it is heard en banc.
(ex)

Enjoin

(1) To require a person, by writ of injunction, to perform or to abstain from specific act.
(ex) 'he was enjoined from using the patent'

Equity

A branch of law that developed by England alongside common law in order to remedy some of its defects in fairness and justice, formerly administered in special courts. Equity and common-law courts are now merged in most jurisdictions.
i.e. Equity= sert of

Ex Contractu

A common-law action arising out of CONTRACT or a cause of action arising from a breach of PROMISE..
(ex) Where a cause of action for a suit arises from a breach of promise laid down in a contract = ex contractu

Ex Delicto

A common-law action arising out of TORT or a cause of action arising from breach of DUTY growing out of contract.
(ex) Where cause of action arise form a breach of duty = ex delicto.

Ex-Ante

(1) Latin for "based on assumption and prediction" OR "before the event in question has occurred"
(2) This about normative perspective (is it a good rule) where look at legal rules ex-ante (forward from the present)
(3) When dealing with cases involving q

Ex-Post

(1) Latin for "after the fact" OR "event in question HAS occurred"
(2)This about normative perspective (is it a good rule) where look at legal rules ex-post (backwards from the present)
(3) When dealing with cases involving fairness, usually 1st perspecti

Finding

(1) Formal conclusion by a judge or regulatory agency on issues of fact; Also, a conclusion by a jury regarding a fact. Usually findings of fact cannot be appealed once the lower court has made its determination.
i.e. the court's or jury's decision on iss

Holding

(1) Court's decision on the particular legal issue/question + the important facts (the facts that seem to make the most difference for the result)
(2) Rooted in common law, it part of precedent case that binds future courts
(3) Holding of an opinion is li

Injunction

(1) Often in civil cases, it is a court order for loser to do something OR refrain from doing something
(2) Generally it is a preventive and protective remedy, aimed at FUTURE acts, and is NOT intended to redress PAST wrongs.
Compare with declaratory judg

Inter alia

(1) Latin for "among other things." A term used in pleadings, especially in reciting statutes, where the whole statute was NOT set forth at length

Judgment/Disposition

(1) The final disposition or action of a case the court took found at end of opinion (i.e. affirm, uphold, reverse, vacate. remand)
(2) For contracts, a judgment allows the plaintiff satisfaction from the defendant's real and personal property which the j

Judgment n.o.v. (Motion to this)

(1) Literally A motion for judgment not withsanding the verdict (N.o.v.) on grounds that evidcnece submitted in trial not legally sufficent for a reasonable jury to decide for either side (i.e. judge decides if other reasonable juries would come to same c

Overrule

i.e. To make void.
A judicial decision is said to be overruled when a later decision, rendered by the SAME court or by a SUPERIOR court in the same system, expresses a judgment upon the same question of law directly OPPOSITE to the earlier opinion, thereb

Per Curiam Opinion

(1) Latin for "By the court." Signals opinion reflects a common view among all the judges rather than the writings of a specific judge
(2) If two cases have similar factual patterns and similar arguments, then court says "per curium" i.e. not gonna repeat

Prima Facie Case

(1) Literally, "on the face of it." A case that is sufficient - that is, has the minimum amount of evidence necessary to allow it to continue in the judicial process and thus passes a motion for directed verdict.
(ex) Plantiff has burden of proving elemen

Remand

(1) Return (a case) to a lower court for reconsideration/retrial
(2) Often an Appellate court that remands a case for retrial in Trial court consistent with the appellate court's ruling.
(ex) 'the Supreme Court summarily vacated the opinion and remanded t

Res Judicata

(1) Latin for "the thing has been decided/adjudicated."
(2) The rule that a final judgment rendered by a court constitutes an absolute bar to a later suit/action raising the same claim
i.e. A matter that has been adjudicated by a competent court may NOT b

Reverse

(1) To nullify a judgment of a lower court
(2) Often by Appellate Court to Trial Court OR Supreme Court to lower courts
(ex) 'the court reversed

Stare Decisis et quieta non movere

(1) Latin for "once properly decided, the legal issue should not be decided again"
(2) Akin to precedent, a time-honored doctrine requiring courts to follow principles of law laid down in previous cases (i.e. precedent) when deciding similar cases
(2) hea

Sine Qua Non

(1) Latin for "without which not." An indispensable requisite or condition.
i.e. An essential condition; a thing that is absolutely necessary.
(ex) 'grammar and usage are the sine qua non of language teaching and learning'

Summary Judgment (i.e. Motion for this)

(1) A party's motion, grounded in affidavits, briefs, and products from discovery stage, requesting a quick judgement by the court without proceeding to trial. (Usually followed after Defendant files Motions challenging Plantiff's filed Complaint, and Pla

Trespass

A form of action brought to recover damages for any injury to one's person or property or relationship with another. Generally, trespass was understood to mean the redress of harm caused by the defendant's direct and immediate application of force against

Trespass on the Case

In common law, the form of action adapted to the recovery of damages for some injury resulting to a party which is the indirect or secondary consequence of a defendant''s act. Such action is the ancestor of the present day action for negligence, otherwise

Writ

(1) A handwritten judicial order to perform a specified act or to institute an action at common law. Historically, in order to commence most actions, plaintiffs had to obtain the appropriate kind of writ. Trespass and trespass on the case are the two writ

Writ of Mandamus

(1) A writ issued by a court ordering/compelling an action to be done/carried out by a court, public entityt, organization, or person
(2) Opposite of writ of cease and desist bc

Writ of Replevin

(1) A writ issued by the court ordering/compelling recovery of a possession that has been wrongfully taken.
(2) Usually in Contract or Tort cases

Default Rules

A legal principle where In absence of explicit rules of a contract, the court may fill the gap; Parties may alter terms by mutual consent; Terms are altered in writing

Altering Rules

An altering rule looks not at who the parties are, the relationship between them, or the type of agreement they are entering into, but at what the parties do. An altering rule says when parties have acted in a way that displaces the defau

Mandatory Rule

(1) Mandatory rule is a legal rule that is not subject to contrary agreement. It is a legal rule which is in all cases binding and cannot be departed from by agreement between the parties concerned.
(ex) the Uniform Commercial Code's obligation of good fa

Contra Preferentum Rule

This is Latin to say to resolve a contractual ambiguity by interpreting the contract against the drafting party
Often happens after analyzing all extrinsic evidence, then will pursue this rule (bc Court saying if you drafter, and made this ambiguous, you

limits consequential damages to those that are foreseeable by the breaching party; it is an information forcing default used often by courts against ambiguous drafters or party negotiation tactics of just this kind AND thus gives party hiding info their u

Substantive Rules

(1) Determine what outcomes and consequences are supposed to flow from the facts of the proceedings
(2) One motivated by desires to influence conduct outside the litigation process
(3) The part of the law which the courts are established to administer, as

Procedural Rules

(1) the part of the law that governs how, in court, the process of litigation will be carried out
(2) motivated by a desire to reduce cost or increase accuracy of litigation process
(3) The technical aspects of a legal system that states the steps that ne

Erie Doctrine 1938

(1) The doctrine that was set forth as a result of Erie v. Tompkins (1938) that federal courts hearing issues OTHER than those surrounding the U.S. Constitution should apply the state law for state-related substantive claims.
(2) When 2 litigants brought

Appellate Court: Standard of Review

(1) The amount of deference (respect) given by an appellate court to various determinations made during an earlier part of the adjudication i.e. in the trial level
(2) Appellate courts must give in their opinions what standard of review (clearly erroneous

(1) The giving or pronouncing a judgment or decree in a cause; also the judgment given.
The term is principally used in bankruptcy proceedings
(ex) the adjudication being the order which declares the debtor to be a bankrupt

Trier of Fact (Jury or Judge)

(1) The Trier of Fact in Trial courtts is the entity seeking the facts i.e. what happened between the parties that disputed that can be by jury (primary) or the judge absent a jury
(2) For Trials, can assess the demeanor of witnesses and hence has an adva

Clearly Erroneous Standard

(1) 1 of 3 Appelate standards of Review to reverse Trial courts factual findings (which rare)
(2) Trial court sees witness firsthand so Appellate court usually trust their decision on questions of fact
(3) CANT reverse bc Appelate says, based on the facts

De Novo Standard

(1) 1 of 3 Appellate standards of review to reverse Trial Court's understanding of the law
(2) De Novo means "new case" where Appellate looks at case as if deciding issue from scratch (not bound by trial courts legal opinion)
(3) CAN reverse if Appellate

Questions of Law vs. Questions of Fact

(1) Questions of Law
- Court answers by doing legal research
- court decide only what law WILL require if a particular set of facts turn out to be true
- Questions of law are reviewed on a de novo basis, meaning that the appellate

Abuse of Discretion Standard

(1) 1 of 3 Appellate Standards of Review to reverse Trial Court's understanding of the law
(2) Appellate believes Trail courts decision/judgment was unreasonable and unconscionable taken without consideration for the facts and law pertaining to the case m

Motion for Judgment as Matter of Law (e.g. Directed Verdict)

(1) Motion during Trial process where parties presenting evidence in the court in front of jury and judge OR after closing arguments usually filed by both parties
(2) If Plaintiff with his burden of proving elements to his claim NOT establish prima facie

Appellate Court (Circuit)

(1) The federal courts having appellate jurisdiction over the district within its geographic area
(2) Purpose: to review independently a lower courts legal determinations/analysis (to see if the law was applied correctly with the facts presented)

Trial/District Courts

(1) Lowest level of federal courts, where federal cases begin and trials are held
(ex) bank robbery, environmental violations, tax evasion)
(2) Purpose: to collect/evaluate the facts AND apply fact-dependent legal standard/reasoning to be reviewed by the

Burden of Production

(1) Usually during Trial/District court level, Burden of party to come forward with some kind of evidence so that jury has some ability to derive a decision for either party from this evidence
(2) Failure of this burden can lead to the opposite party to f

Motion to Dismiss (Demurrer)

(1) Usually, during the pre-trial stage, the Defendant can move to have the case dismissed for:
(i) failure of the Plaintiff to state a claim in his complaint
(ii) lack of jurisdiction of court or no proper serving of complaint
(Ex) if the Burden of Alleg

McDowel Douglass Standard

(1) Details how shifting burdens (either on defendant or plaintiff) can play out as a result of establishing prima facia
(2) A standard for establishing disparate treatment discrimination

Process Execution

(1) obtain satisfaction from the defendant's real and personal property which the judgment gives the plaintiff power to do and makes it so cooperation from the defendant not necessary

Specific Performance

(1) The court order that is mandatory where a party must fulfills its contractual obligations according to the exact terms of the contract.
(2) can be challenged by Defendant if present grounds in the case urging against it that a court decides if valid b

Pro Rata

(1) in records to contracts requesting payments in periodic installments,
(2) Proportionately; according to a certain rate, percentage, or proportion.
(ex) Thus, the creditors (of the same class) of an insolvent estate are to be paid pro rata

Mutual Assent

(1) Both parties are agreeing to the same thing
"Meeting of the minds"
(2) achieved subjectively (parties express mental assents of what they believe agreeing to) or objectively (absent expression, words and acts can suffice for contractual liability)

Paternalism (limiting contract freedom)

(1) Public policy concern to to limit contractual freedom and promote a mandatory rule via this normative justification
(2) society agrees with this justification to protect parties WITHIN the contract bc believe party not have CAPACITY to provide informe

Externalities (limiting contract freedom)

(1) public policy concern to limit contractual freedom and promote a mandatory rule via this normative justification
(2) Society agrees with this justification to protect parties OUTSIDE the contract (3rd parties) bc believe they not have OPPORTUNITY to o

Property Rules (protect rights)

(1) Laws that deter (via punitive threats such as jail or fines) potential 3rd party takers "A" from non-consentiually taking "B's" entitlements
(2) Usually provided in laws of property

Liability Rules (protect rights)

(1) Property Laws that compensate potential takees "B" from 3rd party takers "A" non-consensually taking "B's" entitlement
(2) Usually provided in laws of tort

Transactional Cost Theory

(1) If TC low (able to renegotiate if not want to do X) = Property Rules more efficient bc if not do x then go to jail
(2) if TC high = Liability Rules more efficient bc go to jail unfair, so pay compensation that would be paid if COULD contract
(3) Prope

When Learn of New Legal Right (in reference to protection of property and liability rules) Always Ask:

(1) Positive Task: How IS Legal Right Protected
- either property or liability rule protection
- figure out by learning:
(i) Consequences of various TYPES of takings (intentional gets property versus negligent gets liability)
(ii) by various types of peop

Indemnify

(1) to compensate someone for loss or harm

(1) Arguments that draw inferences from the background or motivation of a person, to judge the views, actions, or arguments made of that person
(2) This a rhetorical trick to substitute for substantive reasons (say argument invalid not bc conforms to the

Slippery Slope Argument

(1) Slippery slope bc just like hard to keep balance on the slippery plane, so too is it hard to maintain an argument that leads to infinite events eventually leading to an unpalatable implication
(2) If we allow A, B will necessarily or very likely follo

Preliminary Injunction

(1) An injunction (writ or order requiring a person to refrain from or do a particular act) granted BEFORE the trial has started, which states that the plaintiff will suffer extensive damage in case the injunction is NOT granted. Security must be posted w

Inter Alia

(1) Latin for "among other things"
(2) A term anciently used in pleading, especially in reciting statutes, where the whole statute was not set forth at length
(ex) Gonzalez v O Centro 2006, UDV alleges inter alia, that applying the Controlled Substances A

Objection! Non-Responsive

(2)

Objection! Assumes Facts not in Evidence

(1) the loaded question assumes something as true for which no evidence has been shown
(2) Allows you to challenge the premises of an argument that not have an adequate evidentiary foundation
(3) A question can be used as relying on witness to answer a qu

Case of First Impression

(1) a case without precedent
(2) One involving a question never before determined

Replevin Action

(1) A court action that enables the plaintiff to take back property held by the defendant before trial
(2) an action for the repossession of personal property wrongfully taken or detained by the defendant, whereby plaintiff gives security for and holds th

Writ of Error

(1) a court order from the Appellate Court to the judge who tried a case in Trial/District Court to give the records of the case to the Appellate Court for them to review
(2) A request for review of a decision by a higher court. Acceptance of the request

Ab Initio

(1) Latin for "meaning from the start"
(ex) Walker-Thomas II
- Circuit court says this contract stunk from the start
- you lower courts did NOT find enough facts to allow us to make a final determination to say this contract was unenforceable from the beg

Security Interest

(1) Security interest is an enforceable legal claim or lien on collateral that has been pledged, usually as a loan.
- the borrower provides the lender with a security interest in certain assets, which give the right to the lender to repossess (i..e the le

Veil of Ignorance (John Rawls)

(1) Perspvtive on legal rules specifically when dealing with cases involving fairness
(2) the principles of justice for the basic structure of society are to be chosen by representative parties behind a veil of ignorance (i.e. That is, the representatives

Court of General Jurisdiction

(1) a state or federal court whose jurisdiction is NOT limited to hear (i.e. have subject-matter jurisdiction) certain kinds of cases
(2) In Fed and State system, it superior than Courts of Limited Jurisdiction (State family court or Fed U.S. custom court

Court of Limited Jurisdiction

(1) Courts (state or federal) limited to hear (have jurisdiction) over specific types of cases.
(2) Many of these courts have simplified rules of evidence or procedure designed to speed the process, and many of the judges, lawyers, and administrative staf

Appellant

(1) The party who takes an appeal from one court to another.
(2) Cant ask to decide entire case over again but ask to review specific issues
(ex) Appellant seeks appellate review of questions of law or questions of fact
(ex) Trial Court - Jim was defendan

File Memo

(1) Lawyer asks, via a file memo, his associate (i.e. another lawyer) to help research X things for his case
(2) Details on this for a civil case proceeding through litigation process in Notes

Office Memo

(1) Client's lawyer sends file memo to associate (i.e. other lawyer), associate replies with Office memo stating research conclusions
(2) Details on this for a civil case proceeding through litigation process in Notes

Opinion Letter from Client's Lawyer

(1) Client's lawyer gives opinion in letter form or face-to-face to client regarding legal actions that client could take
(2) Details on this for a civil case proceeding through litigation process in Notes

Demand Letter

(1) Client's lawyer sends to wrongdoer (defendant) letter laying out (A) how defendant conduct bad (B) legal + fact basis for why conduct led to client's/plaintiff's injury (C) damages the law permits in this case
(2) Details on this for a civil case proc

Response to Demand Letter

(1) After receiving Plaintiff's Demand Letter, Defendant's lawyer responds with legal + fact basis for Defendants defense against the allegations
(2) Details on this for a civil case proceeding through litigation process in Notes

Settlement Letter

(1) Before going to court, both parties lawyers send each other settlement letters negotiating offers offers
(2) Details on this for a civil case proceeding through litigation process in Notes

Client Letter

(1) Before going to court, both parties lawyers negotiate offers via settlement letters and convey these offers to client via client letters
(2) Details on this for a civil case proceeding through litigation process in Notes

Complaint/Petition

(1) If neither parties agree on settlement, client's (now plaintiff) lawyer chooses the court + files complaint to commence his action stating (A) case facts and (B) his legal basis (C) demand for relief sought
(2) Details on this for a civil case proceed

Motions

(1) After defendant receives plaintiffs complaint/petition, defendant's lawyer drafts a response where lays out Motions to the complaint (e.g. requests court action such as motion to dismiss bc lack of jurisdiction or attack the sufficiency of the complai

Court Opinion

(1) written document usually explaining HOW the court thought the governing rule of law applied to the facts of that case
(2) Case Law (made only to fill a void left by legislature) is derived from court Opinionsr
Notes: See LSP Class 1 on how Courts make

Rule of Law

(1) a statement of the legal test the court will apply to resolve a legal issue/decide a the case
(ex) governing rule of law deciding a will revocation issue:
- To revoke a will, a testator must have the intention to revoke and must take some action that

Policy Rationale

(1) Found in the Court's Opinion with their reasoning
(2)How a court justifies a decision based on what result will be best for society at large (incentive them to not do x or prevent y in future)

Bona Fide

(1) Latin for "In or with good faith"
(2) often make bona fide offers

Statute

(1) a written law passed by a legislative body used, among other things, to proscribe and govern conduct
(2) Federal laws (statutes) enacted by Congress that MUST be followed by every state in U.S.
(ex) if state law contradicts statute, then statute preem

Caveat Emptor

(1) Latin for "let the buyer beware"
(2) This maxim summarizes the rule that the purchaser of an article must examine, judge, and test It for himself, being bound to discover any obvious, physical defects or imperfection
(3) i.e. seller no obligation to i

Rescission

(1) Rescission, or the act of rescinding, is where a contract is canceled, annulled, or abrogated by the parties, or one of them

Estopped

(1) Legal term for prohibited

Subject-Matter Jurisdiction

(1) 1st Jurisdiction Requirement - the power of a court to hear/decide a particular type of case/dispute
State Trial court general court of jurisdiction so likely can hear issue
Federal Distrrict court more strist so likely cannot hear party wants move fi

Personal Jurisdiction (Over the Person of the Defendant)

(1) 2nd Jurisdiction Requirement - courts power to bind a particular defendant
(2) If Nongrata never had contact with Minnesota, then Hertz cannot file suit in this state court or federal court for her to answer in, even IF MN has subject-matter jurisdict

Diversity of Citizenship Claim

(1) Exception for Subject-Matter Jurisdiction
(2) Under Article III, Section 2, of the Constitution, a basis allowing someone to file case from state court to federal court bc federal court now has subject-matter jurisdiction
(3) Only if have complete div

Venue Statute

(1) Bc many courts in different places could have both subject-matter jurisdiction and jurisdiction over the defendant, venue statutes give rules to determine which court most appropriate

Forum Contests Claim: Motion to Dismiss/Transfer

(1) If Plaintiff files suit in given court, Defendant can argue this court NOT have proper forum THUS no jurisdiction
(2) Can file a "motion to dismiss" or "motion to transfer" and Plaintiff will dispute these motions, resulting in forum contests
(3) Matt

Counterclaim

(1) A claim made by a defendant in a civil lawsuit against the plaintiff. In effect, the defendant is suing the plaintiff.
(ex) Plantiff accuses Defendant of abuse but now Dedefent says Plaintiff was abuser

Cross-claim

(1) a claim brought by one defendant against another defendant in the same suit
(ex) Defendant thinks co-defendant should take most blame

3rd party claim

(1) a complaint filed by the defendant claiming that another party, currently not held liable in suit, is at fault

Intervene

(1) Someone left out of suit that wants to join in can "intervene"
(ex) Plantiff's wife wants to join in

Compulsory Joinder

(1) when a person originally omitted, must be brought into a lawsuit as either a plaintiff or a defendant bc they vital for proceedings to continue
(2) required by federal law to come if feasible

(1) After defendant has received plaintiffs complaint/petititon, can file motions (raise different issues) or attack validity of plaintiff's claim itself via (A) agree or rebut plaintiff's facts or (B) Affirmative defenses to plaintiffs legal theory
(ex)

Motion of Default Judgement

(1) If Defendant in suit fails to file an answer to the Plaintiffs complaint/petition, petitioner can file "motion of default judgement" requesting court make judgment now without plaintiff
See this in Civil Procedure Notes case with wife tricking NY guy

Motion of Judgement on the Pleadings

(1) A motion by either party to a lawsuit at the close of the pleadings requesting the court to decide the issue solely on the pleadings without proceeding to trial. The motion will be granted only if no facts are in dispute.
(ex) If defendant admits to a

Discovery

(1) Collect evidence stage by the parties
(2) refers to pretrial procedures by which litigants may obtain information from opponents and witnesses via interrogatories, motions for production, depositions under oath etc...

Venire Members

(1) Potential jurors that examined by judge, lawyer, or both to determine whether fit to serve on jury panel

Challenge for Cause

(1) 1 of 2 Challenges evoked by a lawyer during the jury selection process (Voir Dire)
(2) Lawyers for the parties may ask/motion the judge to remove a person from being considered to serve on the jury that the judge can approve or deny
(3) These challeng

Peremptory Challenge

(1) 1 of 2 Challenges evoked by a lawyer during the jury selection process (Voir Dire)
(2) Each attorney may excuse up to 5-6 jurors (venire members) in the trial jury selection process (Voir Dire) for ANY reason
(3) Common law practice; these challenges

Hearsay Evidence

(1) Evidence given by a witness based on information received from someone else rather than personal knowledge
(2) Opposing party can call Objection, hearsay and have judge exclude this testimony

Burden of Proof

(1) the obligation for Plaintiff to prove elements of his X claim via
(A) Burden of production (provide evidence to support findings by jury) and
(B) Burden of persuasion (persuade jury via weight of evidence that plaintiff claim probably correct)

Motion for a New Trial

(1) 1 of 2 common motions (motion for judgment n.o.v.) post Trial Jury verdict, where parties assert that the trial was so fundamentally flawed (because of procedural errors rather than substantive ones like newly discovered evidence, prejudice, or anothe

Writ of Execution

(1) A court's order, after a judgment has been entered against the debtor, directing the sheriff to seize (levy) and sell any of the debtor's non-exempt real or personal property. The proceeds of the sale are used to pay off the judgment, accrued interest

Contracts

(1) an enforceable promise or agreement between two parties that creates an obligation by the promisors to bring about a world that both envisioned

Promissory Agreement

(1) in a contract, there is a promise at least on one side of the parties which is a condition to make promise enforceable

Assumpsit

(1) Latin for "A person promised"
(2) A written or oral promise, but not under seal, made by one person to another where one person assumes or undertakes to do some act or pay something to another.
See 1st case in Contracts

Ordinance

(1) An enacted law passed by a legislative body usually tailored to municipal laws/municipal areas
(2) 1 of 3 enacted laws by legislative body (statutes, ordinances, and regulations)

Regulation

(1) 1 of 3 enacted laws passed by a legislative body usaually derived from administrative bodies
(2) a rule or order prescribed for management or government; a regulating principle; a precept

Precedent

(1) any prior judicial decision/opinion that serves as an example of how a subsequent court can apply legal rules and doctrines to resolve a similar question of law under a similar set of facts
(2) If precedent interprets common law rule, then it becomes

Jurisdiction

(1) Limits the ability of a court to exercise its authority; restricts the power of a court to resolve legal issues in 2 ways
- Limits courts geographically
- Limits courts by the subject-matter they are allowed to consider

Certification

(1) A procedure allowed only by authority of state law, allows a federal court to refer a state issue originally brought in federal court to that state's court of last resort
(2) Usually happens when federal court not have any state precedent or decisions

Authority

(1) any cited source courts and attorneys use to oppose or support a legal proposition
(2) primary - laws which Binding or persuasive
(3) secondary - commentary on laws NEVER Binding only persuasive
Detail in LSP Class 1 Notes

6th Amendment (1791)

(1) The right to a Speedy Trial by jury, representation by an attorney for an accused person (even if poor)
(2) Gideon v. Wainwright established rule that the 14th Amendment extends the 6th Amendment rule for right to council to state criminal defendants

Model Penal Code (MPC)

(1) A statutory text adopted by the American Law Institute in 1962 in an effort to bring greater uniformity to state criminal laws by looking across jurisdictions and adopting certain legal standards and reforms they found best to approach certain crimina

Concurring Opinion

(1) explains a vote in favor of the winning side, but with different legal rational than majority opinion

Dissenting Opinion

(1) explains a vote in favor of losing side

Damages

(1) Often in civil cases, party requests judge to make other party pay him money for alleged injury THUS this award of money is called damages

Appeal

(1) a legal proceeding that considers whether another courts legal decision was right or wrong (usually grounded on judge err in deciding motions or instructing the jury)
(2) Appellate Courts determine outcome of appeals

Lawsuit

(1) Legal Disputes between 2 parties within a civil case that judges ONLY issue opinions where 2 parties to a dispute disagree on a particular legal question
(2) criminal cases not file lawsuits but file charges

Ipse Dixit

(1) arbitrary statement
(2) appeals to authority of individual (who may not be an expert at all)
(ex) Judge Thomas says unreasonable noise is something that "I know it when I see it" seems ipse digit

Plea no contest (nolo contendere)

(1) Rather than admitting guilt or no guilt, the accused will not contest the facts on which the charge is based as a criminal case plea.
(2) It is not an admission of guilt. It is generally aimed at preventing lawsuits that may arise from admission. It i

Non-Suit

(1) order from the judge dismissing the case because the plaintiff has failed to meet a prima facie case
(2) The name of a judgment given against a plaintiff, when he is unable to prove his case, or when he refuses or neglects to proceed to the trial of a

Due Process Clause (14th A and 5thA)

(1) Clause in the 5th Amendment limiting the power of the national government; similar clause in the 14th Amendment prohibiting state governments from depriving any person of life, liberty, or property without due process of law.

Equal Protection Clause

(1) Involves state action via the 14th Amendment; 5th amendment eventually changes so this apply to government now; Eliminates not all, but bad discrimination

Punitive/Exemplary Damages

(1) damages (usually monetary) intended to make an example of and punish wrongdoers for the harm they have caused (jail or fine)
(2) The costs that are awarded to a person due to negligence/reckless behavior that has caused 'personal injury' or damage to

(1) cite as evidence

Nominal Damages

(1) A damage award when a legal wrong has occurred, but where there was no actual financial loss as a result of that legal wrong. Typically, when a nominal damage award is used, the plaintiff will be awarded $1 or$2
(ex) If defendant breach contract, but

Pecuniary Damages

(1) Damages or losses that a plaintiff may cite too result from breach of contract, where losses can be measured in  and thus receive monetary compensation
(ex) White v. McGee case where found pecuniary damages too hot and nominal damages too cold

Rule Nisi

(1) an order to show cause - court will enter a particular ruling and it will be final UNLESS one or both parties show cause
(ex) The divorce decree from the court was a rule nisi to become final after the expiration of the statutory waiting period of 60

Misdirection

(1) In practice. An error made by a judge in instructing the Jury upon the trial of a cause.
(2) This usually one of the ground that losers in Trial court will ground their appeal in for Appelate Court to answer this question of law issue
(ex) Defendant o

Doctrine of Proximate/Direct Cause

(1) a loss is covered via damages ONLY if a covered peril is the proximate/direct cause of a covered consequence
(2) The result of an direct action and cause of loss to property that sets in motion a chain of events that is unbroken and causes damage, inj

Subjective Theory of Assent

(1) Expression of mutual assent ("agreeing to the same thing"), and not the assent itself (intent or words and acts substituting) is the essential element of contractual liability
(2) Losing its relevance in law

Objective Theory of Assent

(1) If no expression of mental assent (parties not communicate to each other what they believe they agreeing to) then words and acts interpreted by a reasonable person can suffice for contractual liability
(ex) Lucy v. Zehmer

Venerable case

(1) respected case

Chancery

(1) A court of equity, as distinguished from a common-law court.

Complete Diversity Rule

(1) No diversity if any P is a citizen of the same state as any D
(2) Strawbridge v. Curtiss: Absolute diversity between plaintiffs and defendants necessary for diversity jurisdiction.

File an Action on the Judgement

(1) It pleads that the Plantiff has a judgement from another state, and it asks the court to enter a judgement enforceable within its jurisdiction
(ex) Wyman v. Newhouse P files this saying have judgement from FL state court, and asks the District Court i

Tag Jurisdiction

(1) If Plantiff (who must establish in civil cases that Defendent was poroperly served complaint and Defendent subject to jurisdiction) shows Defendant was sent a complaint while physically present in a state, then Plantiff can say Defedent is subject to

White Collar Crime

(1) Nonviolent crime committed by individuals or corporations to obtain a personal or business advantage.
(ex) Posner pg 35 in Criminal Lasw casebook
(ex) Committed by the afluent than poor criminals such as fraud, monopoly, breach of faith rather than vi

(1) a legally recognized hostile way of taking title to property by physical occupation/possession. (been there for like 20 years)
(2) Based on ancient principles of common law, adverse possession is defined by statute on a state-by-state basis and advers

Justice of the Peace + Police Magistrate Courts

(1) Courts of Special/Limited Jurisdiction
(2) Lowest court of the state court system; limited jurisdiction in both civil and criminal cases
(3) local trial courts with limited jurisdiction over small claims and very minor criminal misdemeanors

Domestic Relations Court

(1) Courts of Special/Limted Jurisdiction
(2) resolves marital disputes and child custody issues.
(3) Lower court of state system, but higher than Justice of Peace Court
See Tort Audio Seg 2 Notes

Municipal Courts

(1) Courts of Special/Limited Jurisdiction
(2) Sometimes have less important cases tried by municipal justice or municipal magistrates
(3) Lower than Superior (Trial) Court but higher than Domestic and Justice of Peace Court in state system
See Tort Audio

County Courts

(1) Court of Special/Limited Jurisdiction
(2) a court that hears both civil and criminal cases involving less serious crimes or minor issues for one specific county
(ex) sometimes called Common Pleas or District Courts
See Tort Audio Seg. 3 Notes

Probate Court

(1) Court of Special/Limited Jurisdiction
(2) conducts proceedings relating to the settlement of a deceased person's estate, or guardianship of minors
See Tort Audio Segm. 3 Notes

Long-Arm Statutes

(1) State laws seeking maximum jurisdiction (i.e. personal jurisdiction) for that state court system
(ex) benefits plaintiffs want case in "home court" but bad for defendant from defendant who citizen of Hawaii

Concurrent Jurisdiction

(1) Able to file case (usually plantiff's choice that defendant can file removal motion) in either state or federal court as authority for both state and federal courts to hear and decide cases
(Ex) If case admissible in more than 1 court in more than 1 c

Brief

(1) A condensed summary of the facts, circumstances, or propositions of law, constituting the case proposed to be set up by either party to an action about to be tried or argued.
(2) Info. Brief- Provided to Judges as information usually before Trial proc

Cross-Examination

(1) During presenting evidence to jury stage of Trial court, it is when one party brings up witness to question then opposing party questions (cross-examines) that witness with own questions
(2) usually to sway jury to come to their understanding of the s

In Rem Jurisdiction

(1) jurisdiction to hear a case because of jurisdiction over the property of the lawsuit
(2) If the object of adjuration is a "thing" like land, within the territory of the state, the state has power over it in the same way that it has power over persons

Memorandum decision

(1) A very short paragraph or writing that sets for the court's decision of a case. Usually it is just a decision without citing reasons in reaching the decision.

Promisor

(1) A person/party who makes a promise.

Promisee

(1) A person/party to whom a promise is made.

Expectation Principle

(1) In Contract Law, this idea we found in Hawkins v. McGee
- Expectation damages ONLY recovered if they can be calculated with reasonable certainty (if not calculated, then only recover nominal damages)
(2) For class, we say we make Contracts to get in b

Loss on the Bargain

(1) Value of the product or service itself (i.e. approximately the cost of a substitute on the market i.e. market value)
(2) Direct damages refer to those which the party lost from the contract itself - the "benefit of the bargain

Consequential Loss

(1) Loss that flows from the breach other than "loss on the bargain"
(2) refer to economic harm beyond the Immediate scope of the contract.
(3) To get this, need to look at if damages (a) flowed naturally from breach OR (b) special circus mates told thus

Reasonable Foreseeability

(1) A reasonable or likely consequence of an act i.e. breach of contract
(2) Known vs. unknown situations
-Could you have known the situation was a REASONABLE possibility?
(ex) Hadley v. Baxedale - bc Hadley not tell Baxendale specific cirumdatcnes at bre

Special Circumstances/Damages

((1) Coined in Hadley v. Baxendale, (Puts limit on expectation damages saying have expectation principle as resulting service not given, get loss in the bargain "cost of service" but ALSO consequential damage (i.e. loss that x party not know unless specia

Reliance Principle

(1) Each party acts in reliance that the other party will fulfill their respective obligation. If one party fails to respect their obligation, then the other party or parties may suffer an economic harm.
(2) already committed thus will stay in contract th

Restitution Principle

????

Compensatory/General Damages

(1) A monetary award equivalent to the actual value of injuries or damage "Loss of the bargain" sustained by the aggrieved party.
(2) Compensatory or general damages are money awarded to a plaintiff to compensate for damages, injury, or another incurred l

8th Amendment

(1) Right to be free from cruel and unusual punishment
See in Criminal Law notes week 2

Mens Rea and Actus Reus

(1) Mens Rea Latin for a "guilty mind" usually referring to the guilty state of mind required for a crime in conjunction with a prohibited/criminal act (acts reus)
(ex) intentional, reckless or negligence homicide.
(2) To be found guilty of most crimes (o

UCC - Course of Performance, Course of Dealing, and Usage of Trade

(1) Pattern of conduct between the parties to a transaction which may be necessary to explain the parties' understanding of the terms of the written agreement.
Found in UCC Section 1-303; See in Contract Law Week 2 Notes

Good Faith and Fair Dealing

(1) A Mandatory Rule that cannot be disclaimed where EVERY contract contains an implied common law duty of good faith and fair dealing.
(2) found in the UCC, this duty requires that neither party will do anything that will destroy or injure the right of t

Breach of Warranty

(1) the failure to uphold an express or implied promise to abide by certain terms and conditions relevant to the sale or lease of goods
(2) A breach or failure to meet requirements with regard to the title, the quality or the actual condition of the produ

Bench Trial

(1) the trial where the judge will find the facts and also apply the law instead of letting a jury decide the law.

Homicide

(1) The killing of 1 person by another person
i.e. Suicide excludes homicide bc causing own death
See Criminal Law notes for week 2 on People v. Cambell

Tort

(1) Action which actually causes someone or something harm AND that the law provides the harmed party the formal societally enforced opportunity to seek legal compensation from the harm producer (tortfeaser) for the harm suffered to the plaintiff/victum

Battery

(1) Intentional infliction of a harmful bodily contact upon another
(2) Can sue and make someone liable if prove: (i) intended to bring about harmful or offensive contact, and (ii) Contact was not consented to by harmed party, and (iii)Contact not otherwi

Bodily contact (via Tort of battery)

(1) experience imposed by the defendant upon the plaintiff which primarily or fundamentally or simply violates the plaintiff's physical interest (i.e. physical bodily self)
See Tort Audio Seg 10 notes of bodily contact 9/5
(ie) Punch/Kick...Air horn = bod

Direct Appellate Review (DAR) MA law

(1) Massachusetts law/practice
(2) After appeal docketed in Appeals Court, Supreme Judicial Court of MA. may grant parties application for DAR where questions presented by the appeal asking last resprt court to answer are:

Strict Liability Statute

(1) Statute that says defendant liable for crime if prove committed the act (Acteus Reus)
(2) NOT have to prove mental state (Mens Reau) of Defendant
(ex) it matters not that the defendant knew he was speeding while driving, all that matters is that the d

De Minimus Threshold

(1) Latin for "of a trifling consequence and a matter"
(2) Whenever see in law, any area, a doctrine or requirement that there be a certain amount of injury BEFORE a legal remedy/administrative remedy available, we call this requirement or designed techni

Restatements of the Law

(1) 1 of several series of volumes adopted by the American Law Institute in the 1923 century in an effort to bring greater uniformity and less time intensive process of having to look at common law cases, their opinions, their dicta etc... to determine wh

Judgement Proof

(1) When a Defendant is not able to satisfy a subsequent judgment bc they have no assets
(2) Can have a court order saying they liable and they say we simply cant pay
(ex) Plantiff won't likely pursue a Tort claim when get struck by lightning bc lightenin

Congruence Analysis of Intent

(1) If jury, judge cannot show that A (what the defendant has the purpose or desire to do to the plantiff) perfectly matches with B (what the defendant in fact did to the plaintiff), then will consider if A and B legally congruent for the purpose of legal

Circumstantial Evidence

(1) (indirect evidence) from which existence or non-existence of other facts may be inferred or implied, but not proven directly
(2)
less persuausive but things like forensic evidence matching DNA is circumsaital evidence but may be more persduausive than

Direct evidence

(1) (direct evidence) Evidence that establishes the existence of a fact that is in question without relying on inference.
usually more persuausive
(2) Eye witness testimony or evidence based on direct personal knowledge or observation of the facts in cont

Subrogation Clause

(1) Any rights the insured had to sue the person who caused the damage are assigned to the insurance company that has already paid the insured for the damages.
(2) i.e. Majority of defendants in tort liability will have liability insurance company like a

Assignment of Error

(1) The statement of mistakes that have supposedly been made during a trial in a lower court. These errors are used to take the case to a higher court usually brought by party
(ex) Appellant's first assignment of error

Redress

to set right, remedy; relief from wrong or injury

Equitable Lien theory

a lien on a property imposed by a court in order to achieve fairness, particularly when someone has possession of a property which he/she holds for another
(Seek week 5 contracts case)

In foro conscientiae

(1) Latin for "Before the tribunal of conscience"
(2) This term is applied in opposition, to the obligations which the law enforces; In the sale of property, for example, the concealment of facts by the vendee which may enhance the price, is wrong in foro

Collateral Attack on Jurisdiction

(1) Way for Defendent to challange plantiffs forum court choice based on jurx
(2) If plaintiff chooses forum by filing suit and serving to defendant, defendant can argue against the forum, claiming no jurx, by refusing to show up to the plaintiffs chosen

Special Appearance on Jurisdiction

(1) Another way for defendant to challenge plaintiffs form court choice on jurx
(2) It is made in the court whose jurx is challenged, and made solely for purpose of asserting the challenge
(3) If properly made, then it does NOT subject the defendant to th

Treble Damages

(1) Damages that, by statute, are three times the amount that the fact finder (usually jury) determines is owed and judge on motion to order the amount to be trebled
See Civil Procedure Week 6