Litigation Glossary

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This litigation glossary was prepared by the law firm of Michael T. Chulak & Associates for non-attorneys to assist them in understanding the litigation process and the terms used in litigation. This litigation glossary is general legal information only and is not intended to be legal advice. If you need legal advice, you should consult with an attorney licensed in your state.

Act of God
is an act that takes place exclusively by forces of nature, uncontrolled and uninfluenced by man. Examples are earthquakes, lightning and tornados.

is the formal pronouncement of a court in the form of a judgment or decree.

is the acknowledgement of a party to a lawsuit of the truth of certain facts that are inconsistent with his or her claims, or helpful to the party requesting the admission.

Affirmative Defense
is a response to the plaintiff’s claim that attacks the plaintiff’s legal right to bring the action as opposed to attacking the truth of the claim. Examples are failure to mitigate, consent, estoppel, and statute of limitations.

is a claim made by a party in a pleading setting forth what he or she intends to prove.

Alternative Dispute Resolution (ADR)
refers to the alternatives of mediation or arbitration, as opposed to litigation, to settle disputes. Some contracts and statutes require the use of ADR.

American Rule
is that attorney’s fees are not awardable to the prevailing party in a lawsuit unless authorized by a contract signed by the parties or a statute. The effect is that both parties must often pay their own attorney’s fees.

is the response by a defendant to a plaintiff’s complaint denying all or a part of the plaintiff’s allegations.

is a written request to a higher court to modify or reverse the judgment of a lower court. Generally, an appellate court will accept as true all of the facts that the trial court found to be true, and decides only whether an error was made in applying the law.

is a fast, confidential and economical way to settle most disputes outside the courtroom. It is a process by which parties submit their dispute to an informed neutral third party (the arbitrator) who is empowered to render a binding decision.

Attorney’s Lien
is the right of an attorney to a claim against the money or property of a client to compensate the attorney for legal services provided.

Bench Trial
is a trial before a judge without a jury.

is to divide the issues in a case so that one issue, or set of issues, can be tried before the others. For example, the issue of liability may be tried first and afterwards, the issue of damages.

is a written argument presented to a court for the purpose of providing “information” and persuading. It includes a summary of the facts, the relevant law, and an argument of how the law applies to the facts.

Cause of Action
refers to the facts that entitle the plaintiff to file a suit seeking a judicial remedy against the defendant.

Common Law
is the body of law established by judicial decisions as opposed to law created by legislation. It originated in England and the American Colonies before the Declaration of Independence.

is the initial pleading filed by a plaintiff. It sets forth the claims of the plaintiff and the remedy sought. The complaint, together with the summons, is served on the defendant.

refers to the right to recover from another who is jointly liable.

is a claim made by a defendant against a plaintiff or another party alleged to be liable whether or not the person is already a party to the lawsuit.

is the examination of any witness who testified against that witness on direct examination. The opportunity to cross-examine a witness takes place as soon as the witness completes his or her direct testimony. The primary purposes of cross-examination are to get the witness to say something favorable to your side, or to impeach or cast doubt on the witness.

is money awarded by a court to compensate an injured party. There are several definitions or types of damages that sometimes overlap.

Damages – Compensatory
are also called actual damages and are intended to restore the party to the position he or she was in prior to the injury. Compensatory damages commonly include property damage, medical costs and lost income.

Damages – General
are damages intended to cover those types of injuries for which it is extremely difficult to calculate an exact dollar amount. General damages commonly include pain and suffering, loss of a loved one, loss of reputation and a shortened life expectancy.

Damages – Nominal
are commonly only one dollar. Nominal damages are awarded when the law requires an award, but there are no significant damages.

Damages – Punitive
or exemplary damages are awarded over and above special and general damages to punish a losing party’s malicious or intentional misconduct

Damages – Special
are out-of-pocket costs.

is an allegation by a defendant that the complaint does not set forth a cause of action upon which relief can be granted by the court. It admits for the purpose of testing the complaint that all facts asserted are true, but not the conclusions of law.

is the oral testimony of a witness under oath, but not in court. It is part of the discovery process. A transcript is made of the deposition for use before and during the trial.

Direct Examination
is the initial questioning of a party or witness at trial by the side that called him or her to testify. The purpose is to explain your version of the facts to the judge or jury.

refers to the pre-trial practice of obtaining facts about the case from the other party and other witnesses in order to prepare for trial. Discovery consists of taking depositions, requests for production of documents, interrogatories, requests for admission, permission to inspect property, and physical and mental examinations. It is an investigatory process governed by court rules.

is an order or judgment of the court disposing of a lawsuit without a trial. A dismissal may be voluntary or involuntary.

consists of testimony, written materials and objects that are presented in court to prove the existence or nonexistence of a fact. Evidence may be direct evidence such as the testimony of an eyewitness. It may also be indirect evidence or circumstantial evidence which is based on logical inference.

Evidence Rules
are written rules that govern the admissibility of evidence in a court. There are both Federal Rules of Evidence and state codes such as the California Evidence Code.

Expert Witness
is a witness who has knowledge not acquired by ordinary persons gained through education and / or experience. A person qualified as an expert by a court may give opinion testimony unlike percipient witnesses. Expert testimony is intended to help the jury understand technical and complex matters not within the full understanding of the average person. Examples of experts include physicians, engineers, property managers, homeowner association consultants, and mortgage bankers.

is an actual happening, event or thing done.

is the reasonable anticipation that injury or harm will likely result from certain acts or failure to act. In tort law, forseeability is an element of causation.

Independent Contractor
is a worker hired to do a specific job over which the employer has no right to control the manner in which the work is done. The worker is generally licensed and offers services to the public. Independent contractors establish their own hours and receive no training. Independent contractors are free to assign work to others, if they determine to do so.

is an order of a court that a party do something or refrain from doing something. It is intended to prevent harm. Injunctions may be temporary, pending trial (preliminary injunctions) or may be permanent injunctions ordered after trial.

is any wrong or damage done to another person, his property, rights or reputation.

Judgment Creditor
is the person in whose favor a money judgment has been entered by a court.

Judgment Debtor
is the person against whom a money judgment has been entered by a court.

is the official, final decision of a court after determining the rights and obligations of the parties. The term “judgment” also includes “decision” and “decree.”

Lis Pendens
is a notice filed with the court and recorded in the county recorder’s office by the plaintiff declaring that a lawsuit has been filed claiming a right to title or possession to specific real property. The purpose is to notify anyone dealing with the property that a claim exists that may affect them adversely.

Malicious Prosecution
exists when a plaintiff files suit or continues a suit without probable cause to believe the claims can be proven. A plaintiff that takes part in malicious prosecution can be held liable for damages caused.

Mandatory Settlement Conference
is a settlement conference ordered by the judge requiring the parties and attorneys to appear in court for the purpose of attempting to settle a case.

is a fast, confidential and economical way to settle most disputes. It is a process by which parties submit their dispute to an informed neutral third party (the mediator) who works with them to reach a settlement.

Motion in Limine
is a pretrial motion requesting the court to prohibit the opposing lawyer from referring to or providing evidence that is highly prejudicial, irrelevant or inadmissible.

is an application to the court for the purpose of obtaining a ruling or order.

is a command by the court, following a hearing, requiring a party to do something or refrain from doing something.

Order to Show Cause (OSC)
is an order from a judge that directs a party to appear in court to argue why the judge shouldn’t grant an action proposed by the opposing side or by the judge.

to an action is a person designated as a plaintiff or defendant.

is a formal written application to a court requesting judicial action.

is the plaintiff for certain types of lawsuits such as divorces.

are the formal allegations of the plaintiff and defendant as to their claims and defenses. The purpose of pleadings are to provide notice to the opposition as to what should be expected at trial. The pleadings include the complaint and answer to the complaint.

Preponderance of the Evidence
is the standard of proof in civil cases. It is evidence that is of greater weight or more convincing that the opposing evidence.

Pre-trial Conference
is a conference called by the court prior to trial for the purpose of narrowing the trial issues, to secure stipulations and to take any other steps that will assist in the disposition of the case.

Prevailing Party
is the party who prevails on the main issue. The party who successfully prosecutes or defends. Some statutes award attorney’s fees to the prevailing party.

Prima Facie
means presumed to be true unless disproved by contrary evidence.

Pro Per
is Latin meaning “for one’s self.” It is used to describe a person who is representing himself or herself in court, without a lawyer.

Pro Se
is Latin meaning “for himself.” It has the same meaning as pro per.

is the establishment of a fact by evidence or the effect of evidence.

Quantum Meruit
refers to the reasonable value of services provided.

Relevant Evidence
is evidence that tends to prove or disprove an alleged fact. Evidence is relevant if it tends to make the existence of a material fact more likely or probable.

Request For Admissions
is a discovery procedure in which a party asks another party to admit or deny that certain facts are true. If the opposing party fails to respond in a timely manner, the facts will be deemed true for purposes of the trial.

Res Judicata
means “the thing has been decided.”

Stare Decisis
is the doctrine that court decisions should stand as precedent for future cases.

Status Conference
is a court-ordered conference where the attorneys appear before the judge to report on the status of the case. There may be one or more status conferences prior to trial.

Statute of Limitations
refers to the time limit for filing a lawsuit. Statutes of limitation differ depending on the type of claim and state. If a claim is not filed timely, it will be banned from being filed.

Strict Liability
refers to the doctrine of liability without fault or negligence. One who sells a defective product that is unreasonably dangerous to the use or his property is subject to strict liability for the harm caused.

Subpoena Duces Tecum
is a type of subpoena, or court order, issued at the request of a party to a lawsuit requiring a witness to produce specified documents at a deposition or trial.

Subpoena or Subpena (modern spelling)
is a court order issued at the request of a party to a lawsuit requiring a witness to appear in court.

Summary Judgment
A Motion for Summary Judgment is a procedural device designed to end a case without trial when there is no dispute concerning material facts, the only dispute being questions of law. The motion can be directed toward all of a portion of the claim. If the motion is successful, it results in a summary judgment.

Upon the filing of a complaint, the clerk of the court issues a Summons and delivers it for service to a person appointed to serve it on the defendant. It notifies the defendant that an action has been filed against him of her in the court from which the process issues and that he or she is required to respond.

Temporary Restraining Order
is a short term, emergency order of a court issued only in extraordinary circumstances and only until a trial court can hear the matter. Is it intended to maintain the status quo pending a hearing for an injunction.

is a private or civil wrong for which a court will provide a remedy. It may be an intentional act or negligence that results in some form of injury.

is the formal decision or finding made by a jury.