Glossary

The following glossary of select legal terms is intended for general informational purposes only to those unfamiliar with the legal system. It does not constitute the rendering of legal advice to any prospective or existing client nor does it trigger creation of the attorney-client relationship. In addition, definitions of some terms and their context may vary from case to case and jurisdiction to jurisdiction. Therefore, if you have a specific legal issue, you should consult with and retain a licensed attorney.

Alternative Dispute Resolution (ADR)

The term used to describe methods of resolving disputes, claims and lawsuits outside the courtroom in arbitration or mediation.

Arbitration

Arbitration is the process of having a hearing in a non-judicial setting (outside of the courtroom) while providing final relief to all parties. Arbitration hearings are typically held in law offices, hotel or business center conference rooms. They are presided over by attorneys and sometimes, retired judges. The rules of evidence do not usually apply, however parties do make objections which are ruled upon by the presiding arbitrator. Typically, arbitrations are not recorded and the grounds to appeal an arbitrator’s award are very limited. In most arbitration, some pre-hearing discovery is permitted, but that is up to the presiding arbitrator and is also typically more limited than discovery permissible in a lawsuit. Various arbitration forums exist but the most common in our practice are the American Arbitration Association (AAA), the International Chamber of Commerce (ICC), and the London Court of International Arbitration (LCIA).

Arbitration Clause

A provision in a written contract which states that parties agree to submit disputes to arbitration, usually by waiving their right(s) to a jury trial. There is no “standard” arbitration clause, and the specific terms are negotiable subject to the parties’ willingness to negotiate. As a general proposition, public policy favors enforcement of mutually agreed upon arbitration clauses.

Arbitration Panel

The members (usually one or three) who will hear evidence and participate in deciding an arbitrated dispute.

Arbitrator

One who decides or participates in ruling over a dispute pending in arbitration.

Breach of contract

A failure to perform one’s agreed upon duties or promises owed to another person or company.

Burden of Proof

The level of proof necessary to substantiate a claim or defense. For example, in civil cases, Plaintiffs have the burden of proving their claims by a preponderance of the evidence as opposed to criminal cases which require the prosecution to prove its case beyond reasonable doubt.

Case Law/Common Law

A body of laws or rules from published cases as decided by trial and appellate courts.

Continuance

In its most common usage, a continuance is a postponement of a hearing or trial from a set or scheduled date to another date.

Court Reporter

A transcriptionist who takes an oath as an officer of the court to transcribe all questions, answers and any other oral statements and sometimes, non-verbal events which occur during a specific legal proceeding, like a hearing , trial, or deposition. All depositions must be recorded by stenographers in order to use them at a later date.

Cross Claim

A claim asserted typically by one Defendant against another.

Deposition

A question and answer session during which attorneys ask questions and the witness or deponent provides answers. Depositions usually take place at attorney’s office or elsewhere, like the courthouse, if the court orders that or the parties cannot agree on a specific location. Attorneys, their clients or party representative and court reporters typically attend depositions. Under certain circumstances, others may be present for depositions. Judges do not attend or participate in depositions, although in rare cases, judges may be contacted during a deposition to make certain rulings regarding the manner in which the deposition is taking place or the responses being given by a witness. Attorneys are required to make certain objections during depositions; however because judges do not typically participate in depositions, any objections made by the attorneys may be ruled upon later in the case and usually, at or before trial.

Discovery

When used in the context of legal proceedings, discovery is the process of obtaining information from an adverse party about its claims, theories of recovery, any defenses, the identity of any key documents or witnesses and related information. Discovery tools include Depositions, Interrogatories, Requests for Admission, Requests for Production, Request for Entry Upon Land.

Docket Control Order (DCO)

An order from the court notifying parties of the deadlines and scheduling of certain events like adding new parties to the case, or conducting depositions of fact or expert witnesses, which take place during the pendency of a lawsuit. Docket Control Orders will also often set forth the trial date. If both sides agree, there are certain portions of a Docket Control Order which may be modified without obtaining the court’s permission. Otherwise, in order to modify a Docket Control Order, permission from the court is required.

Hearsay

The hearsay rule will typically prohibit a jury from hearing out of court statements for the truth of their content in a court proceeding. However, there are many exceptions to this rule. Essentially, this means that a witness is usually not permitted to testify about what he or she heard someone else saying.

Incapacity

When used in a legal sense, incapacity refers to a lack of mental state or legal status which renders witness or party incapable of performing a certain act, like entering into a contract or testifying in court proceeding.

Interrogatories

A set of written questions seeking written answers to those questions to be sworn to or affirmed under oath. Responses to Interrogatories usually have a specific date by which they must be provided to the opposing party.

Jury

A body of citizens of the county in which the dispute is pending who will decide the issues of fact submitted to them based on the instruction given by the court.

Jury Charge

Instructions read to the jury by the trial judge read after all of the evidence is complete and before jury deliberations begin. A written form of the jury charge is also usually given to the jury to aid in deliberations and to provide specific questions which require specific written answers. Those answers are put on a verdict form.

Jury Deliberations

After all evidence and arguments have been made, the process of a jury discussing and analyzing the evidence heard, the instructions from the court and deciding the issues or questions submitted.

Jury Selection

The process of selecting suitable jurors from a pool of many citizens who appear for jury duty. Voir Dire is the commonly used French term synonymous with jury selection.

Jury Trial

A courtroom hearing during which each party presents its evidence and arguments to the jury before a presiding judge. Usually, a jury trial takes place after all fact and expert discovery has been completed; although in some instances, the court may order or the parties may agree to have certain issues decided by a jury before the rest of discovery has been completed.

Objection

A procedure by which a party takes exception to the admission of a certain piece of evidence or other matter.

Statute

As opposed to common law or case-law, statutes are laws or rules from an act of a legislative body and are usually found within a published code or set of rules.

Statute of Limitations

A rule or law which requires certain cases or claims to be filed or commenced in court within a specific time period after the occurrence of an event or act after which time, such cases or claims are time barred.

Subpoena

A written document requiring a witness to appear at a judicial proceeding, like a deposition or trial on a specific date and at a specific location.

Subpoena Duces Tecum

A written document requiring the production of documents or things to the person or body which issued the document. A subpoena duces tecum will ordinarily specify a date and location for compliance.

Third Party Action/Impleader

In a case between a plaintiff and one or more Defendants, the procedure by which a party brings another new party into the case alleging that party is liable in whole or in part for damages alleged by one of the parties.