Law Terms (6/26/01)

appeal

v. To ask a higher court to reverse the decision of a trial court after final judgment or other legal ruling.

appeal

After the lower court judgment is entered into the record, the losing party (appellant) must file a notice of _____, request transcripts or other records of the trial court (or agree with the other party on an "agreed-upon statement"), file briefs with the _____(s) court citing legal reasons for over-turning the ruling, and show how those reasons (usually other _____ decisions called "precedents") relate to the facts in the case.

appeal

No new evidence is admitted on _____, for it is strictly a legal argument. The other party (Respondent or appellee) usually files a responsive brief countering these arguments.

appeals

The appellant then can counter that response with a final brief. If desired by either party, they will then argue the case before the _____ court, which may sustain the original ruling, reverse it, send it back to the trial court, or reverse in part and confirm in part.

appeals

For state cases there are Supreme Courts which are the highest _____ courts, and most states have lower _____ courts as well.

appeal

n. The name for the process of _____ing, as in "he has filed an _____."

appellant

n. The party who appeals a trial court decision he/she/it has lost.

appellate court

n. A court of appeals which hears appeals from lower court decisions. The term is often used in legal briefs to describe a court of appeals.
(two words)

certiorari

n. A writ (order) of a higher court to a lower court to call up all the documents in a case to it so the higher court can review the lower court's decision.

Certiorari

_____ is most commonly used by the U.S. Supreme Court, which is selective about which cases it will hear on appeal.

collateral estoppel

n. The situation in which a judgment in one case prevents (estops) a party to that suit from trying to litigate the issue in another legal action. In effect, once decided, the parties are permanently bound by that ruling.
(two words)

defendant

n. The party sued in a civil lawsuit or the party charged with a crime in a criminal prosecution. In some types of cases (such as divorce) a _____ may be called a respondent.

de novo

adj. Latin for "anew," which means starting over, as in a trial _____. For example, a decision in a small claims case may be appealed to a local trial court, which may try the case again, _____.

dictum

n. Latin for "remark," a comment by a judge in a decision or ruling which is not required to reach the decision, but may state a related legal principle as the judge understands it.

dictum

While it may be cited in legal argument, it does not have the full force of a precedent (previous court decisions or interpretations) since the comment was not part of the legal basis for judgment. The standard counter argument is: "it is only _____."

en banc

French for "in the bench," it signifies a decision by the full court of all the appeals judges in jurisdictions where there is more than one three- or four-judge panel. The larger number sit in judgment when the court feels there is a particularly significant issue at stake or when requested by one or both parties to the case and agreed to by the court.

estop

v. To halt, bar or prevent.

express malice

If the party says, "I did it because I was mad at him, and I hated him," this would be _____.
(two words)

interlocutory

adj. Provisional and not intended to be final. This usually refers to court orders which are temporary.

interlocutory decree

n. A court judgment which is temporary and not intended to be final until either a) other matters come before the judge, or b) there is a specified passage of time to determine if the _____ (judgment) is "working" (becomes accepted by both parties) and should become final.
(two words)

malice

n. A conscious, intentional wrongdoing either of a civil wrong like libel (false written statement about another) or a criminal act like assault or murder, with the intention of doing harm to the victim. This intention includes ill-will, hatred or total disregard for the other's well-being.

malice

Often the mean nature of the act itself implies _____.

malice

In a lawsuit for defamation (libel and slander) the existence of _____ may increase the judgment to include general damages. Proof of _____ is absolutely necessary for a "public figure" to win a lawsuit for defamation.

moving party

The _____ is one filing the petition and is usually called the "petitioner."
(two words)

pretext

n. A purpose or motive alleged or an appearance assumed in order to cloak the real intention or state of affairs.

prima facie

adj. Latin for "at first look," or "on its face," referring to a lawsuit or criminal prosecution in which the evidence before trial is sufficient to prove the case unless there is substantial contradictory evidence presented at trial.
(two words)

prima facie

A _____ case presented to a Grand Jury by the prosecution will result in an indictment. Example: in a charge of bad check writing, evidence of a half dozen checks written on a non-existent bank account makes it a _____ case. However, proof that the bank had misprinted the account number on the checks might disprove the prosecution's apparent "open and shut" case.
(two words)

respondent

n. The party who is required to answer a petition for a court order or writ requiring the _____ to take some action, halt an activity or obey a court's direction.

respondent

The _____ in such matters the moving party (the one filing the petition) is usually called the "petitioner." Thus, the _____ is equivalent to a defendant in a lawsuit, but the potential result is a court order and not money damages.

respondent

On an appeal, the _____ is the party who must respond to an appeal by the losing party in the trial court (called "appellant") in the appeals court.

sua sponte

adj. Latin for "of one's own will," meaning on one's own volition, usually referring to a judge's order made without a request by any party to the case. These include an order transferring a case to another judge due to a conflict of interest or the judge's determination that his/her court does not have jurisdiction over the case.
(two words)

summary judgment

n. A court order ruling that no factual issues remain to be tried and therefore a cause of action or all causes of action in a complaint can be decided upon certain facts without trial.
(two words)

summary judgment

A _____ is based upon a motion by one of the parties that contends that all necessary factual issues are settled or so one-sided they need not be tried.
(two words)

summary judgment

This motion is supported by declarations under oath, excerpts from depositions which are under oath, admissions of fact and other discovery, as well as a legal argument (points and authorities), that argue that there are no triable issues of fact and that the settled facts require a _____ for the moving party. The opposing party will respond by counter-declarations and legal arguments attempting to show that there are "triable issues of fact."
(two words)

summary judgment

If it is unclear whether there is a triable issue of fact in any cause of action, then _____ must be denied as to that cause of action.
(two words)

summary judgment

The theory behind the _____ process is to eliminate the need to try settled factual issues and to decide without trial one or more causes of action in the complaint. The pleading procedures are extremely technical and complicated and are particularly dangerous to the party against whom the motion is made.
(two words)

toll

To make null (_____ the statute of limitations).

tort

n. From French for "wrong," a civil wrong or wrongful act, whether intentional or accidental, from which injury occurs to another.

torts

_____ include all negligence cases as well as intentional wrongs which result in harm.
(plural)

tort

_____ law is one of the major areas of law (along with contract, real property and criminal law) and results in more civil litigation than any other category. Some intentional _____s may also be crimes, such as assault, battery, wrongful death, fraud, conversion (a euphemism for theft) and trespass on property and form the basis for a lawsuit for damages by the injured party.

tort

Defamation, including intentionally telling harmful untruths about another--either by print or broadcast (libel) or orally (slander)--is a _____ and used to be a crime as well.

tortious

adj. Referring to an act which is a tort (civil wrong).

trial de novo

n. A form of appeal in which the appeals court holds a trial as if no prior trial had been held. A _____ is common on appeals from small claims court judgments.
(two words)

trier of fact

n. The judge or jury responsible for deciding factual issues in a trial.
(three words)

trier of fact

If there is no jury the judge is the _____ as well as the trier of the law. In administrative hearings, an administrative law judge, a board, commission or referee may be the _____.
(three words)

writ

n. A written order of a judge requiring specific action by the person or entity to whom the _____ is directed.

writ of certiorari

To appeal to the Supreme Court one applies to the Supreme Court for a _____, which it grants at its discretion and only when at least three members believe that the case involves a sufficiently significant federal question in the public interest.
(three words)

writ of certiorari

By denying such a _____ the Supreme Court says it will let the lower court decision stand, particularly if it conforms to accepted precedents (previously decided cases).
(three words)