Legal Language

affidavit: a statement of facts based on personal knowledge, written or adopted by a person (called the affiant) who signs it before a notary and swears to the truth of the statement. Affidavits are not necessarily admissible in court, but are used for other purposes as well.

affirmative defenses: listed in Rule 8; these defenses must be pleaded in the answer or they are waived; they are generally aimed at destroying the merits of plaintiff’s cause of action.

alternative dispute resolution (ADR): an umbrella term for a number of mechanisms which resolve disputes outside of formal litigation. These can include negotiated settlements, mini-trials, mediation, and arbitration.

amendments: Rule 15; allows a party to make changes in his/her pleadings.

amount in controversy: a plaintiff’s claim must exceed $75,000 in all diversity cases in federal court; the requisite amount in controversy is necessary or the federal court lacks subject matter jurisdiction over the case. The subject matter jurisdiction of other courts may be defined by the amount in controversy (such as small claims courts).

ancillary jurisdiction: a concept historically associated with the determination of subject matter jurisdiction; a federal court may exercise ancillary jurisdic¬tion over some claims between parties because they are so closely connected to the main case, even though such claims would not meet subject matter jurisdiction requirements if sued upon alone. This doctrine is now embodied in a federal statute, 28 U.S.C §1367, and called supplemental jurisdiction.

answer: governed by Rules 7 and 8, this pleading contains admissions or denials of the allegations in plaintiff’s complaint. A defendant also puts affirmative defenses in his/her answer.

appellant: the party who is dissatisfied with the judgment of the trial court and seeks to have that judgment reversed or altered by appealing the judgment to a higher court.

appellee: (sometimes called a respondent) the party opposing the appellant on appeal.

attachment: a method of commencing a lawsuit by the (symbolic) seizure of the defendant’s property.


cause of action or claim: a series of allegations of facts asserted as a legal basis for seeking some sort of relief from the court.

civil/criminal: civil cases typically are disputes between persons or entities (like corporations or governments) in which the remedy sought is money damages, or sometimes an order that the defendant do or refrain from doing certain acts. Civil cases include torts, suits about contracts, domestic relations (family law) cases, and many other kinds of cases. A criminal case, by contrast, is always brought by a governmental entity (through a federal or local prosecutor) against a defendant for a violation of a criminal statute where the penalty may be a fine or imprisonment or both. It should be noted that the victim of a crime may be a witness, but is not really a party to the prosecution of a criminal defendant. Many acts can subject a defendant to both civil and criminal actions. For example, a defendant who commits certain kinds of fraud may be prosecuted by the government and put in jail, and may also be sued by the victim for money damages.

class action: Rule 23; a device whereby a representative may assert the rights of numerous other persons in a lawsuit without the necessity of having each class member participate in the lawsuit.

complaint: Rules 7-11; the initial pleading in a lawsuit containing a statement of facts comprising the plaintiff’s cause of action or claim.

conflict or choice of laws: the area of law concerned with determining cases in which differing decisional principles may be applicable. For example, if State X law requires a person to be 21 years old in order to enter into a valid contract, while State Y law says age 18 is old enough, is a contract between a 19 year old citizen of the State X and a 19 year old citizen of State Y a valid contract? Which state’s law should apply in deciding the issue?

constructive: as an adjective, this word can mean fictional, or imposed by law, as opposed to real. A person who has “constructive notice” of a court date, for example, may never have actually received notice at all, but under some circumstances, the law treats that person as though he/she was in fact notified. Similarly, a person is said to intend all the natural and foreseeable consequences of his/her actions, so a person who deliberately rams another car in heavy traffic constructively intends all the damage caused to that car, and all the other cars and people that are damaged or injured as a result.

counterclaim: Rule 13; a claim filed by a party (usually a defendant) against an opposing party (usually a plaintiff) who has already filed a complaint against him. Counterclaims may be permissive or compulsory.

cross claim: Rule 13(g); a claim stated by a party against a coparty (usually a defendant cross claims against a codefendant).


defendant: the party against whom a complaint (or criminal charge) is filed.

demurrer: an historical term for what the defendant asserts to challenge whether the plaintiff has stated a legally sufficient claim. Now handled by the Rule 12(b) motion to dismiss for failure to state a claim.

deposition: Rule 30; a discovery device whereby the litigants before trial may question under oath a party or witness in a lawsuit.

discovery and disclosure: Rules 26-37; the processes by which litigants may learn before trial what evidence their opponent intends to rely on. Discovery may include depositions, interrogatories, requests for documents, physical examinations, etc.

diversity jurisdiction: 28 U.S.C. §1332 (also Art. III, Sec. 2, U.S. Const.); a shorthand phrase for one of the kinds of cases over which federal courts have subject matter jurisdiction, i.e., cases between citi¬zens of different states (where the amount in controversy exceeds $75,000). N.B., state courts may also hear this kind of case, and the plaintiff may choose either federal or state forum.

due process clause: The Fourteenth Amendment to the U.S Constitution provides that no person may be deprived of life, liberty or property by the state without “due process of law.” This broad and fluid phrase governs many aspects of a lawsuit, including the location of the suit and the manner in which a person is notified of a suit. Since every lawsuit seeks to use the power of the state (through its court system) to deprive the defendant of something, the interpretations given to the due process clause ultimately circumscribe the procedures by which such a deprivation may occur.


Erie problem: a conflict or choice of law problem arising between state and federal substantive laws or rules of procedure.


federal question jurisdiction: 28 U.S.C. §1331 (also, Art. III, sec. 2, U.S. Const.); the short-hand term used to describe the type of subject matter jurisdiction possessed by the federal courts to hear cases “arising under” federal laws or the U.S. Constitution. No minimum amount in controversy is required. State courts may also hear federal question cases except where federal jurisdiction is exclusive, e.g., bankruptcy, patent cases, admiralty, and a few other areas,

forum non conveniens: a judge-made doctrine pertaining to venue, allowing a court to refuse to hear a case even if jurisdiction and venue requirements are met. This concept has been largely superseded in the federal courts by statute, 28 U.S.C. §1404, allowing the court to transfer the case to another court.


garnishment: like attachment, a device used to bring property in the form of a debt under the court’s jurisdiction. It is also used to collect unpaid judgments and other obligations, for example, by taking money out of the debtor’s paycheck.


impleader: Rule 14; a procedural device whereby a party, usually the defendant, may bring into a lawsuit another person, asserting that such person is or may be liable to him for all or part of the plaintiff’s claim. For example, where plaintiff is made ill by eating bad meat at a restaurant and sues the restaurant, the restaurant may wish to implead the meat processor.

in rem jurisdiction: a basis for the court to adjudicate rights in property between specific persons; the controversy may or may not relate to the property. Historically, a court could attach any property located within its boundaries and use it to satisfy a debt owed to the plaintiff whether the court had personal jurisdiction over the owner of the property or not; now the defendant must have minimum contacts with the forum.

indispensable party: Rule 19(b); a person needed for the just adjudication of a case; if there is a legal impediment to joining her and the court determines it cannot proceed with the case in her absence, that person will be considered indispensable and the case must be dismissed.

injunction: Rule 65; an equitable remedy issued by a court, ordering a person to do something or to refrain from doing something.

interpleader: Rule 22, 28 U.S.C. §1335; a procedural device allowing a person in possession of property belonging to another (or owing an obligation to another) to bring an action against all persons who might be interested therein in order to determine to whom the property belongs or to whom the obligation should be paid.

interrogatories: Rule 33; a discovery device whereby a party to a lawsuit submits written questions to another party who must then respond to those questions in writing.

intervention: Rule 24; a procedural device allowing a person who is not a party to an existing lawsuit to enter into the lawsuit. A person may either have a right to intervene or may intervene only if allowed to do so by the court (permissive intervention).


long-arm statute: a state law authorizing the courts of that state to exercise personal jurisdiction over persons not found within the state but who have a certain relationship to the state. The exercise of jurisdiction over non-residents under a long-arm statute must not exceed the limits of the due process clause; i.e., the non-resident must have minimum contacts with the state such that the exercise of jurisdiction over him does not offend traditional notions of substantial justice and fair play.


necessary party: Rule 19(a); shorthand term for a person needed for a just adjudication. Such a person must be joined as a party to a lawsuit if feasible.


objective standard: standard that measures a person’s behavior or knowledge against what a reasonable person would have done or known, thus holding the person to a community standard of behavior.

opinion: the written product of a judge or judges handing down and explaining a decision. Opinions are usually written by appellate courts, but may also be written by trial judges who resolve legal issues at the trial level. A majority opinion is joined by a majority of the judges participating in the decision. A dissenting opinion disagrees with the holding of the majority; a concurring opinion agrees with the majority’s holding but for different reasons, a plurality opinion is joined by the largest number of judges when no majority opinion is achieved, and there can also be opinions that dissent in part, concur in part, etc.


pendent jurisdiction: the historical term associated with the exercise of jurisdiction over a state-law claim by a federal court when it is joined with a federal question claim arising out of a common nucleus of operative fact. This concept is now embodied in 28 U.S.C. §1367, Supplemental Jurisdiction.

personal jurisdiction: (in personam jurisdiction): the power of a court to require a person to come before it and defend a lawsuit or suffer a judgment against that person. Courts generally have personal jurisdiction over persons who are citizens of the state in which the court is sitting, and over non residents who have certain minimum contacts with the state such that the exercise of jurisdiction over them does not offend traditional notions of substantial justice and fair play.

pleadings: Rules 7-11; those documents filed with the court reflecting the matters in issue; complaints answer and reply (also counterclaims, etc.).


remand: an order made by an appellate court whose decision that does not end the case. The case is sent back (remanded) to the trial court to do whatever is necessary to be consistent with the appeals court’s decision. This may mean conducting a new trial, entering judgment for a different party, holding a hearing on a part of the case, etc.

removal: 28 U.S.C. §1441 et seq., a method whereby a case commenced in a state court can be “removed” (changed) to a federal court if the federal court would have been a proper forum originally.

res: a thing; tangible or intangible property.

res judicata: literally, “the thing has been decided”. A doctrine which ensures that there be finality to litigation; once a matter is adjudicated by a court of competent jurisdiction, it cannot be relitigated.

reversed: a ruling made by an appellate court disapproving the judgment entered or action taken by the lower court. It does not necessarily mean that the party who lost in the lower court automatically wins; it may mean only that she gets a new trial.

rules/standards: theoretical terms contrasting different styles of legal regulation. In this context, a rule is a statement of a legal proscription that specifies with particularity what is required, leaving little discretion to the decision maker (although the language of even specific rules can be subject to interpretations). By contrast, a standard is a statement of a legal proscription that describes the required behavior in general terms, giving significant discretion to the decision maker to determine whether the behavior in a particular case falls within the proscription. An example of a rule would be a statute that states, “Owners must keep dogs on leashes at all times in public parks.” A standard would be, “Owners must keep their pets under control in public parks.”

Rule: Specific to the course in Civil Procedure, a procedural rule is one approved by the highest court in a jurisdiction, and often approved by its legislative body as well. Rules of civil procedure govern the operation and management of court systems, lawyer conduct, and prescribe processes for litigation and other kinds of dispute resolution. There are separate rules for criminal procedure.


service of process: Rule 4; the delivery of a summons and complaint to the defendant which commences a lawsuit. While a court may theoretically have power to exercise personal jurisdiction over a particular defendant, it cannot do so until the defendant has been served with process, or otherwise given the best notice practicable under the circumstances.

subject matter jurisdiction: the authority granted to a court or court system by its sovereign (state laws or constitutions for state courts; federal laws or the U.S. Constitution for federal courts) defining what types of cases it may hear. Certain state courts may be authorized to hear only probate cases, for example; the federal courts are authorized to hear diversity cases and federal question cases, among others, but not divorce cases.

subjective standard: a standard that measures a person’s behavior against what that person is capable of doing, thus finding his/her behavior acceptable if the person did the best that he/she could do. Similarly, when asking whether a person “knew” a fact, a subjective standard requires that a person actually/subjectively had knowledge of the fact, not whether the person should have known the fact, or whether a reasonable person would have known the fact. [Compare “objective standard,” above.]

substance/procedure or substantive/procedural: these terms serve to distinguish between the law that governs general human conduct and the law that governs the resolution of disputes. We look to the substantive law, for example, to tell us what constitutes a breach of contract, or medical malpractice, or trespass, or murder. Procedural rules, by contrast, tell us how to commence a lawsuit or a prosecution, or what kinds of motions can be made, or how information should be shared between litigants.

summary judgment: Rule 56; a means whereby a court can decide a case as a matter of law without a trial if there are no genuine issues of material fact in dispute.

supplemental jurisdiction: 28 U.S.C. §1367: the statutory authority for federal courts to exercise subject matter jurisdiction over suits which have some claims between non-diverse parties or non-federal question claims in them.


third party defendant: Rule 14; in an impleader situation, the person brought into the action by means of a third party complaint.

*third party plaintiff: * Rule 14; in an impleader situation, the third party plaintiff is usually the original defendant, who seeks to bring in a third party defendant to answer for some or all of the original plaintiff’s claim against him.

tort: a generic term encompassing many different causes of action in which a plaintiff alleges some injury caused by the defendant. Torts include such actionable wrongs as assault, invasion of privacy, product liability (injury caused by defective goods) and many others. The most common tort is an action for negligence; a person injured by the negligent conduct of another (such as in an automobile accident) may sue to recover monetary damages for those injuries.


venue: pertains to the particular location of the court in a court system in which a case is to be heard; governed by state or federal statutes (28 U.S.C. § 1391). Venue is a matter of convenience rather than power.