This Guide's purpose is to introduce the non-lawyer to terms which attorneys use in litigation pre- trial and at trial. The terms can be confusing at times, and lawyers often use words or abbreviations which are not familiar to lay people. Ask your lawyer for the meaning of terms you don't know.
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Civil Litigation-common terms:
Plaintiff is a person who files a Complaint against a Defendant seeking help from the court to resolve a dispute. It can be compensation for personal injury and/or relief from a breach of contract.
A litigant or party is one who is suing or defending a suit. A Defendant is the one accused civilly of harming the plaintiff. The defendant files an Answer disputing the allegations or statements in the Complaint. A civil suit is not a criminal matter; the issue is liability not the doing of a crime.
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Pre Trial Terms
Once an Answer is filed, the issue at dispute is joined and the litigation begins. Pre trial discovery is used to find out the facts behind the dispute. There is an exchange of Interrogatories, which are written questions and answers. There can be a Notice to Produce documents, which are papers which support a litigant's viewpoint, or challenge it. A Demand for Admissions can also be made which are a series of statements which a party either admits or denies. It is not uncommon for a lay person to claim a denial is an act of perjury when they know the fact to be true. But for lawyers a denial is more a legal statement that the party will not admit the truth of the matter and leaves the other party to prove the allegation in a court of law. A deposition is an oral question and answer session in which the opposing lawyer asks the questions and the party or non party witness answers while the whole thing is recorded by a court reporter. This produces a typed booklet.
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Pre Trial Terms, continued.
The deposition booklet can be used at trial to support and/or impeach the credibility of a witness.
There are fact witnesses, and expert witnesses. Fact witnesses can only testify as to what they know. Expert witnesses such as doctors are permitted to offer opinions such as an injury was caused by an accident and is permanent. Experts can be deposed just as fact witnesses are.
Motions are requests to the court for an order in regards to litigation. One such motion may be to strike a witness for not being able to help the matter progress or to challenge the expertise of a particular expert. Motions can be granted by the court or denied. In some cases a litigant may file a motion for summary judgment asking the court to dismiss the litigation.
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Mediation and/or arbitration
Courts are very crowded and often a mediator and/or arbitrator will be selected by the parties to assist the litigants in resolving the matter without going to court. They can also be ordered by the court. They can be binding which means that the parties must accept the ruling, or non- binding which means either party can return to court. Mediators and arbitrators are usually lawyers with trial experience. The process can be complex with witnesses, documents, etc. or simpy informal with the two sides giving short summaries of the dispute.
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Trial-- the beginning
When a matter is trial ready, the parties are normally assigned a judge who will manage the courtroom during a trial. A bench trial is judge only while a jury trial means the final decision will be made by a panel of jurors. Criminal juries consist of 12 people who must reach a unanimous verdict. Civil juries are usually smaller and most jurisdictions want a majority to agree on a verdict. In NJ, for example, a panel of 6 civil jurors can decide unanimously and/or 5-1. Sometimes the judge will have a pre-trial conference and act as a mediator to see if he can get the parties to settle without resorting to trial. A settlement is an agreement between the parties to withdraw the suit if certain terms are met, for example, the Defendant paying a sum of money to the plaintiff. Settlements can be filed with the court, and/or kept secret. A Release is a document signed by the plaintiff freeing the Defendant from the claims of the suit and normally reciting the financial agreement.
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