Fundamental Terminology

Legal English for International AttorneysFundamental TerminologyElizabeth Baldwin, M.A., [email protected]

Dr. Dana [email protected]

Overview

Sources of Law

Studying Cases

Civil Procedure

Litigation Terminology

Sources of Law

Sources of Law

Common Law countries (‘kä.mən) –

Legal systems that rely primarily on laws developed through judicial decisions

Civil Law countries (outside U.S.)(‘si-vəl) –

Legal systems that rely primarily on laws enacted by legislation

Civil Law (inside U.S.) –

The body of law concerned with private rights and remedies (v. criminal law)

Sources of Law

Federal Law (‘fed.(ə).rəl) Laws applicable nationally (v. State Law):

• U.S. constitution• Federal (by Congress) statutes• Federal court decisions• President’s executive orders (eg.‘ze.k(y)ə.tiv;

eg.‘ze.kyü.tiv; ig.‘ze.k(y)ə.tiv)• Administrative rules & regulations

(əd.‘mi.nə-ˌstrā.tiv)

Sources of Law Primary (‘prī.mer.ē)

Constitution (“the people”) Statutes/ Code (legislative branch) Case Law (judicial branch) – reported judicial opinions that may serve

as authority for other courts President’s executive orders Administrative rules & regulations Treaties (ratified) (‘trē.dēz)

Secondary (‘se.kən.ˌder.ē) Law Review Articles Treatises (ˈ‘trē.təs.ez)– a scholarly ‘encyclopedia’ explaining the law Hornbooks – commercial outlines of textbooks Restatements (’rē.stāt.mənt) – A scholarly publication by ALI describing

what the law is or should be. (noun: ‘re-; verb: rē.’stāt)

Studying Cases: People

Studying Cases: People Case –

Adjudication of a dispute before the court (a judicial opinion)

Party – A side in a lawsuit (case)

Plaintiff (‘plān.təf) – A person/entity who brings (initiates) a civil

lawsuit/action in court

Defendant (di.‘fen.dənt) – A person/entity against whom a civil or criminal

action is brought

Studying Cases: People

Appellant (ə.‘pel.ənt) –

A party who appeals a decision from a lower court to a higher court; also Petitioner

Appellee (ə.‘pel.ē) –

A party who contends against an appeal; also Respondent

Amicus Curiae (ə.’mē.kəs ‘kyur.ē.ā; ‘a.mi.kəs ‘kyur.ē.ī) –

“Friend of the Court” who offers information on a point of law or another aspect of a case to assist the court in deciding a matter

Studying Cases: Outcome

Studying Cases: Outcome Review (rē.‘vyü) –

Judicial re-examination primarily by an appellate court examining the decision of a lower court

Judicial Review (jü.‘di.shəl) –

Power of the courts to review acts of other branches of government

Affirm (ə.‘fərm) –

To approve/uphold on appeal a lower court decision

Reverse (ri.‘vərs) –

To overturn a decision of the lower court

Studying Cases: Outcome Vacate (‘vā.kāt) –

To render void or cancel a decision of a lower court

Remand (ri.‘mand;ˌrē.‘mand) –

To send a case back to the trial court to conduct a new hearing/trial or other action (by appellate court to trial court)

Grant/deny (Writ of) Certiorari (ˌsər.shē.ə.‘rär.ē)

To review a decision of a lower court (A discretionary action by the U.S. Supreme Court)

Studying Cases - Impact


Precedent (‘pre.sə.dənt) –

A legal decision that serves as authority or justification for later court decisions

Binding (precedent) (‘bīn.diŋ) –

Being mandatory or obligatory (to follow)

Stare decisis (‘stä.re. də.‘sī.sis) –

Judicial policy to adhere to precedent and not re-open a settled point of law


Distinguish (di.‘stiŋ.(g)wish) –

To point out an essential difference; showing how a a case cited as precedent is inapplicable to the present dispute

Overrule (‘ō.vər.‘rül) –

To cancel the binding authority of a judicial opinion by a later contradictory decision of the same or a higher court

Studying Cases - Impact Issue (‘i.shü) –

The legal question(s) at the core of a case that the court must resolve

Reasoning (‘rē.sən.iŋ) –

The rationale explaining the court’s decision

Rule (rül) –

The general legal principle on which the court decides a case and that can be applied to future cases

Holding (‘hōl.diŋ) –

The statement of the court as to (primarily) the conclusion of law reached by the court as applied to the facts in the case. Answers the questions asked by the issue


Judgment (‘jəj.mənt) –

The final decision of the court resolving the dispute and determining rights and obligations of the parties. Also Decree

(Obiter) Dicta (‘ō.bit.ər ‘dik.tə) –

Parts of an opinion that are not part of the reasoning of the decision, and so not binding as precedent


En banc (‘än bänk) –

A case decided by the entire court

Majority opinion (mə.‘jor.ə.tē / mə.‘jär.ə.tē ō.‘pin.yən) –

Judicial opinion of an appellate court in which the majority of judges hearing the case join

Concurring opinion (kən.‘kər.iŋ) –

Opinion given by one or more members of the appellate court, agreeing with the result reached by another opinion, but not necessarily with the reasoning


Dissenting opinion (di.‘sen.tiŋ) –

Opinion given by one or more judges of an appellate court that expresses disagreement with the decision of the majority

Plurality opinion (plů.‘ra.lə.tē) –

When most judges join in the result (but when there is no majority as to the reasoning)

Civil Procedure(‘si.vəl prə.‘sē.jər)

Civil Procedure

Jurisdiction (jůr.əs.‘dik.shən/jər.əs.‘dik.shən) – The power and authority of a court to adjudicate a

case

Personal jurisdiction (‘pər.sən.əl) – The power of a court to decide a case against a

specific person or party in a lawsuit

Subject matter jurisdiction -- The power of a court to hear and determine a case of

a particular nature

Civil Procedure

Federal question jurisdiction (‘fed.(ə).rəl‘kwes.chən)–

The power of federal courts to hear disputes concerning federal law

Diversity jurisdiction (də.‘vər.sə.tē) –

Subject matter jurisdiction of federal courts when parties are from different states and the amount in controversy exceeds the sum or value of $75,000

Civil Procedure Venue (‘ven.yü) –

The court where a lawsuit may be filed or commenced

Standing (‘stan.diŋ) –

The ability to bring a lawsuit because of a party’s actual injury that the court can remedy.

Moot (‘müt) –

When the issue in the case ceases to exist or becomes purely academic—i.e., there is no harm that the court can redress under the law. A court should dismiss a case where there is no true controversy

Ripe (‘rīp) –

When a dispute is ready for judicial decision

Civil Procedure Civil Action (‘ak.shən) –

A lawsuit brought to protect private rights (v. criminal action –to bring a case for violation of criminal laws)

Class Action –

A lawsuit brought by or on behalf of a group

Cause of Action (‘koz) –

Facts giving a person or party a right to judicial relief against another. Also a Claim

Remedy (‘re.mə.dē) –

To enforce a right or redress an injury; The relief sought

Prima Facie Case (‘prē.mə ‘fa.shə) –

What a plaintiff must prove to establish liability for a cause of action

Civil Procedure Complaint (kəm-‘plānt)–

Initial pleading or document filed with the court detailing the elements of the cause of action the plaintiff alleges against the defendant; this commences the action or lawsuit

Summons (‘sə-mənz) –

Document informing a defendant of a lawsuit and requiring the defendant to appear in court

Answer (‘an(t)-sər) –

Defendant’s responsive pleading to plaintiff’s complaint (denying allegation in whole or in part)

Briefs (brēfz) –

Documents submitted to courts to discuss factual and legal arguments

Civil Procedure Motion (‘mō.shən) –

A written/oral application to the court for a ruling/order in favor of the applicant before/during/after the trial

(Motion to) Dismiss (dis.‘mis) –

To dispose of a claim because no cause of action or no jurisdiction (.i.e., failure to state a claim; lack of jurisdiction; etc. See FRCP 12).

(Motion for) Summary Judgment (‘sə.mə.rē; ‘səm-rē; ‘sə.mer.ē) –

Judicial disposition of a lawsuit without proceeding to trial because no issue of material fact, no inferences to be drawn from disputed facts, or only a question of law is involved.

(Motion for) Preliminary Injunction (pri.‘li.mə.ner.ē in.‘jəŋ(k).shən) –

A temporary court order at the request of one party that prevents the other party from pursuing a particular course of conduct until the conclusion of the trial

Civil Procedure Discovery (dis.‘kə.v(ə).rē; dis.‘kəv.rē) –

The pre-trial stage in a lawsuit in which each party can obtain information and evidence from the opposing party using various discovery devices provided by the rules of civil procedure

Work Product (‘wərk ‘prä.dəkt) –

The legal concept that the private thought processes of attorneys are protected when they are made in anticipation of, or preparation for litigation. These materials are exempt from discovery and cannot be admitted as evidence

Attorney-client privilege (‘priv.lij; ‘pri.və.lij) –

The legal concept that communications between a client and attorney are protected and confidential. Exempt from discovery and cannot be admitted as evidence

Civil Procedure

Interrogatories (in.tə.‘rä.gə.tor.ēz) –

Formal, written questions asked by one party to an opposing party during discovery.

Deposition (ˌde.pə.‘zi.shən) –

Testimony that is given before trial (usually transcribed by a court reporter) as part of the discovery process.


Litigation Terminology Bench Trial (‘trīl; ‘trī.əl) –

A lawsuit decided before a judge instead of a jury (v. Jury Trial)

Jury (‘jur-ē) – Members of the community selected to listen to evidence and decide

questions of fact related to liability (civil trial) or guilt (criminal trial)

Voir Dire (vwär.‘dēr) –

The process of questioning prospective jurors, by the attorneys or the trial judge, to determine which are qualified for service on a jury.

Opening Statements (‘ōp.niŋ; ‘ō.pə.niŋ ‘stāt.mənt) –

Summary of case and expected proof presented by the attorney at the start of trial before any evidence is submitted (v. Closing Statements)

Litigation Terminology Case in Chief (‘chēf) –

The portion of a trial where the party with the burden of proof in the case presents its evidence

Rebuttal (ri.‘bə.təl) – The time either party is given to contradict a claim or evidence

presented by the opposing party that would not otherwise belong in that party's case in chief

Direct Examination (ig.ˌza.mə.ˈnā.shən) – Initial questioning of a witness during a trial by the side that

called the person as a witness.

Cross Examination –

Thorough questioning of a witness by the party opposing the one who asked the person to testify in order to evaluate the truth of that person's testimony or develop it further


Leading Question –

A question that suggests its answer

Objection (əb.‘jek.shən) –

A formal declaration of disapproval concerning a specific point of law or procedure during the course of a trial

Litigation Terminology Hearsay (‘hir.ˌsā) –

A statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Hearsay is generally not admissible as evidence in court (see exceptions)

Ex Parte Proceeding (eks.pär.tā prō.‘sēd.iŋ) – Action taken without notice to the adverse party or

participation by that party in the hearing

Jury Instructions – The judge’s instructions to the jury on the legal rules that

the jurors must follow when deciding a civil or criminal case

Deliberation (di.ˌli.bə.‘rā.shən) – The process where the jury determines in private the

defendant’s guilt or liability based on the evidence

Litigation Terminology Verdict (‘vər.(ˌ)dikt) –

A formal finding of a defendant’s liability (civil action) or guilt (criminal action) by jury/trial judge

Liability (ˌlī-ə-‘bi-lə-tē) –

A legal responsibility or obligation for one’s acts or omissions

Acquit (ə-ˈkwit) –

A not-guilty verdict by jury/trial judge in a criminal case


(Compensatory) Damages (käm.‘pen.sə.ˌtor.ē)

Monetary/pecuniary compensation awarded to the injured party by the defendant

Punitive Damages (‘pyü.nə.tiv) –

Civil damages to punish the wrongdoer for causing injury

Injunction (in.ˈjəŋ(k).shən) –

A court order, whereby a party is required to do, or to refrain from doing, certain acts

Litigation Terminology Settlement (‘se.təl.mənt) –

Agreement between the parties to resolve dispute and terminate the lawsuit

Mediation (ˌmē.dē.‘ā.shən) –

A way to settle a dispute instead of a trial in which an impartial party called a mediator helps the parties reach a compromise or settlement

Arbitration (ˌär.bə.‘trā.shən) –

A way to settle a dispute, instead of a trial, in which an impartial party called an arbitrator hears the arguments and makes a sometimes binding decision for the parties.