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An Introduction to Legal Terms used in Litigation

Written by: Ronald Anthony Sarno

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Lawsuits

Posted about 3 years ago. 7 helpful votes, 0 comments

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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.

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.

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.

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.

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.

Trial Jury-- Selection and Testimony

The judge normally guides a panel selection in which potental jurors are chosen. There can be court challenges to sitting someone on a jury "for cause" (for example one potential juror is a close friend of one of the litigants), or "pre-emptive" (when an attorney strikes a potential juror without giving a reason). (Obviously the reason is usually the attorney believes this particular person would decide against his client.) During a trial the plaintiff and defendant counsel provide the jury with opening statements which are road maps to the parties and the dispute. The trial begins with the calling of fact and expert witnesses, first for the plaintiff and then for the defendant. Direct examination is when a lawyer asks questions of his own party or non party witness, and cross examination is when the opposing party asks questions. The purpose of a cross examination is to undermine the credibility of the witness with the jury.

Trial --the Process

The parties have witnesses speak and introduce other forms of evidence such as documents and photographs. The judge determines what is permitted as evidence and what is not. During a trial a motion can be made to the court to limit someone's testimony, or to strike it, or to have the judge give the jury an instruction not to heed someone's one statement or even their entire testimony. At the conclusion, the lawyers give summaries of what was proven in court, and the judge instructs the jury in the rules of law they are to apply in their deliberation. The jury retires to a special room where they deliberate and then come to a conclusion, such as the defendant owes the plaintiff a sum of money and/or no cause which is a verdict to dismiss the case. The jury returns to the courtroom to provide its verdict. A verdict decision can take a jury a few minutes or several days. If a jury cannot reach a verdict the judge may declare a mistrial and the litigants have to resort to a new trial

Verdict and Afterwards

A jury verdict is turned into a written order by the prevailing party which is then signed by the judge and becomes an Order of the court. If it is a money judgment, the defendant must pay the money. In some cases as in an automobile accident, the defendant's insurance carrier will pay the money. A successful verdict usually means that the plaintiff attorney will receive a portion of the verdict, such as 1/3rd less costs of litigation. The order can also be filed as a judgment and becomes a lien against the assets of the losing party. A warrant of satisfaction is a legal document filed with the court that states the debt has been paid and the lien is then lifted. An unpaid lien can show up in a judgment search and cause an attachment to be made on the proceeds of the sale of a home of the losing party. Judgment liens normally last for a long period (in NJ it lasts for 20 years and can be renewed).

An appeal -what it is

The losing party may file an appeal in the next higher court. Appellate courts usually focus only on the legal process during a trial, and will overturn a decision and/or remand (send it back) to a trial court with instructions on how to correct the error. This may mean relitigating the entire original trial and/or a portion of it. Lay people often believe that an appellate court will overturn an "unfair" trial, but losing is not a reason for the higher court to overturn a verdict. Appellate courts rarely overturn trial courts decisions and rarely find that the trial judge committed error.