A

Action in personam

An action against the person, founded on a personal liability. In contrast to an action in rem, an action for the recovery of a specific object.

Action in rem

Proceeding "against the thing" as compared to personal actions (in personam). Usually a proceeding where property is involved.

Affidavit

A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths. For example, in criminal cases, affidavits are often used by police officers seeking to convince courts to grant a warrant to make an arrest or a search. In civil cases, affidavits or witnesses are often used to support motions for summary judgment.

Allegation

The assertion of a party to an action, setting out what he expects to prove.

Amicus curiae

Lit: "A friend of the court". One not a party to a case who volunteers to offer information on a point of law or some other aspect of the case to assist the court in deciding a matter before it.

Appeal

A request made after a trial, asking another court (usually a court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal."

Appellant

The party appealing a final decision or judgment.

Appellate court

A court having jurisdiction to hear appeals and review a trial court´s procedure.

Arbitration

The referral of a dispute to an impartial third person chosen by the parties, who agree in advance to abide by the arbitrator´s award issued after a hearing at which both parties have an opportunity to be heard.

Attorney-at-Law

An advocate, counsel or official agent employed in preparing, managing and trying cases in the courts.

B

Bench - "the bench"

Judges collectively

Bench trial

Trial without a jury in which a judge decides the facts.

Bench warrant

An order issued by a judge for the arrest of a person.

Beyond a reasonable doubt

The standard in a criminal case requiring that the jury be satisfied to a moral certainty that every element of a crime has been proven by the prosecution. This standard of proof does not require that the state establish absolute certainty by eliminating all doubt, but it does require that the evidence be so conclusive that all reasonable doubts are removed from the mind of the ordinary person.

Brief

A written statement prepared by the counsel arguing a case in court. It contains a summary of the facts of a case, the pertinent laws and an argument of how the law applies to the facts supporting counsel´s position.

Burden of proof

The obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court.

C

Case law

Law established by previous decisions of appellate courts, particularly the Supreme Court.

Cause of action

The facts that give rise to a lawsuit or a legal claim.

Certiorari

Lit: "...to be informed". An extraordinary writ issued by an appellate court, at its discretion, directing a lower court to deliver the record in the case for review; certiorari is used by the U.S. Supreme Court to review the cases it wants to hear.

Challenge (of a juror)

An objection, such as when an attorney objects at a hearing to the seating of a particular person on a civil or criminal jury. Challenge for Cause - A party´s challenge supported by a specific reason, that if established will automatically disqualify that juror, such as a bias or prejudice. Peremptory Challenge - One of a party´s limited numbers of challenges that need not be supported by any reason, unless it appears that the party has used such a challenge in a way that discriminates against a protected minority.

Change of venue

Moving a lawsuit or criminal trial to another place for trial.

Charge to the Jury

The judge´s instructions to the jury concerning the law that applies to the facts of the case on trial.

Chief judge (justice)

Presiding or Administrative Judge in a court.

Civil action

Noncriminal case in which one private individual or business sues another to protect, enforce or redress private or civil rights.

Class action

A lawsuit in which a single person or a small group of people represent by their litigation the interests of a larger group (class) and the judgment is binding on any member of the class. US federal procedure requires the following to maintain a class action: (1) the class must be so large that individual suits would be impracticable, (2) there must be legal or factual questions common to the class, (3) the claims or defenses of the representative parties must be typical of those of the class, and (4) the representatives parties must adequately protect the interests of the class (Fed.R.Civ.P. 23).

Clear and convincing evidence

Standard of proof commonly used in regulatory agency cases. It governs the amount of proof that must be offered in order for the plaintiff to win the case.

Collateral

Property that is pledged as security against a debt.

Common Law

The legal system that originated in England and is now in use in all Commonwealth Countries, e.g., New Zealand, South Africa, etc. and the United States. It is based on judicial decisions rather than legislative action.

Complaint

1. The legal document that usually begins a civil lawsuit. It states the facts and identifies the action the court is asked to take.

2. Formal written charge that a person has committed a criminal offense.

Concurrent jurisdiction

The jurisdiction of two or more courts each authorized to deal with the same subject matter.

Conflict of interest

1. A real or seeming incompatibility between one´s private interests and one´s public or fiduciary duties.

2. A real or seeming incompatibility between the interests of two of a lawyer´s clients, such that the lawyer is disqualified from representing both clients if the dual representation adversely affects either client or if the clients do not consent.

Consideration

The cause, price, or impelling influence which induces a party to enter into a contract. Something of value (such as an act, forbearance, or a return promise) received by a promisor from a promise; consideration, or a substitute such as promissory estoppel, is necessary to enforce the contract.

Conspiracy

An agreement by two or more persons to commit an unlawful act; in criminal law, conspiracy is a separate offense for the crime that is object of the conspiracy.

Contempt of court

The finding of the court that an act was committed with the intent of embarrassing the court, disobeying its lawful orders, or obstructing the administration of justice in some way.

Counterclaim

A claim presented by a defendant in a civil lawsuit against the plaintiff. In essence, a counter lawsuit within a lawsuit.

Counterfeit

To forge, to copy or imitate, without authority or right, and with the purpose to deceive or defraud, by passing off the copy as genuine.

Court

1. A unit of the judiciary authorized to decide disputed matters of fact, cases or controversies.

2. Figuratively, the judge or judicial officer. Judges sometimes use "court" to refer to themselves in the third person, as in "the court has read the briefs".

Court of Appeals

See: Appellate Court.

Court, District Court

1. Federal - A trial court with general Federal jurisdiction.

2. State - Meaning varies from state to state.

Court, Municipal

A court having jurisdiction (usually civil and criminal) over cases arising within the city or community in which it sits.

D

Damages

Money awarded by a court to a person injured by the unlawful act or negligence of another person.

Default judgment

A judgment entered against a party who fails to appear in court, respond to the charges, or does not comply with an order, especially an order to provide or permit discovery.

Demurrer

A motion to dismiss a civil case because of the legal insufficiency of a complaint.

Deposition

A pretrial discovery device by which one party questions the other party or a witness for the other party. It usually takes place in the office of one of the lawyers, in the presence of a court reporter, who transcribes what is said. Questions are asked and answered orally as if in court, with opportunity given to the adversary to cross-examine. Occasionally, the questions are submitted in writing and answered orally.

Discovery(Pre-Trial)

The procedure by which one or both parties disclose evidence which will be used at trial. The specific tools of discovery include depositions, interrogatories and motions for the production of documents.

Dismissal with prejudice

The dismissal of a case, by which the same cause of action cannot be brought against the defendant against at a later date.

Dismissal without prejudice

The dismissal of a case without preventing the plaintiff from bringing the same cause of action against the defendant in the future.

District attorney

A lawyer appointed or elected to represent the state in criminal cases in his or her respective judicial districts.

Due Process of Law

The right of all persons to receive the guarantees and safeguards of the law and the judicial process. It includes such constitutional requirements as adequate notice, assistance of counsel, the right to remain silent, the right to a speedy and public trial, the right to an impartial jury, and the right to confront and secure witnesses.

E

En Banc

All the judges of a court sitting together. Appellate courts can consist of a dozen or more judges, but often they hear cases in panels of three judges. If a case is heard or reheard by the full court, it is heard en banc.

Equity

Generally, justice or fairness. Historically, equity refers to a separate body of law developed in England in reaction to the inability of the common law courts, in their strict adherence to rigid writs and forms of action, to consider or provide a remedy for every injury. The king therefore established the court of chancery to do justice between parties in cases where the common law would give inadequate redress. The principle of this system of law is that equity will find a way to achieve a lawful result when legal procedure is inadequate. Equity and law courts are now merged in most jurisdictions.

Escrow

Money or a written instrument such as a deed that, by agreement between two parties, is held by a neutral third party (held in escrow), e.g., until all conditions of the agreement are met.

Estate

An estate consists of personal property (car, household items, and other tangible items), real property, and intangible property, such as stock certificates and bank accounts, owned in the individual name of a person at the time of the person´s death. It does not include life insurance proceeds (unless the estate was made the beneficiary) or other assets that pass outside the estate (like joint tenancy assets).

Estoppel

A person´s own act, or acceptance of facts, which preclude his or her later making claims to the contrary.

Ex Parte

Lit: "...from the part". On behalf of only one party, without notice to any other party. For example, a request for a search warrant is an ex parte proceeding, since the person subject to the search is not notified of the proceeding and is not present at the hearing (e.g. Mareva Injunction, Anton Pillar Order).

F

Fine

To sentence a person convicted of an offense to pay a penalty in money.

Forfeiture

The loss of money or property resulting from failure to meet a legal obligation or from the illegal nature or use of the money or property.

Fraud

Intentional, unlawful deception to deprive another person of property or to injure that person in some other way.

G

General Jurisdiction

Refers to courts that have no limit on the types of criminal and civil cases they may hear.

Grand Jury

Jury of inquiry. The jury which determines which charges, if any, are to be brought against a defendant.

H

Hung Jury

A jury whose members cannot agree upon a verdict; if the jury is hung, the judge will have to declare a mistrial and the trial has to be repeated with a new jury.

I

Impanel

To seat a jury. When the "voir dire" is finished and both sides have exercised their challenges, the jury is impaneled. The jurors are sworn in and the trial is ready to proceed.

Injunction

Writ or order by a court prohibiting a specific action from being carried out by a person or group.

Interlocutory order

Provisional; not final. An interlocutory order or an interlocutory appeal concerns only a part of the issues raised in a lawsuit. Compare to a decree.

Interrogatories

Written questions asked by one party in a lawsuit for which the opposing party must provide written answers.

Intervention

An action by which a third person who may be affected by a lawsuit is permitted to become a party to the suit. Differs from the process of becoming amicus curiae.

J

Judge

An elected or appointed public official with authority to hear and decide cases in a court of law.

Judicial review

The authority of a court to review the official actions of other branches of government. Also, the authority to declare unconstitutional the actions of other branches.

Jurisdiction

1. The legal authority of a court to hear and decide a case. 2. The (i) subject matter, (ii) geographic area, or (iii) persons over which the court has authority to decide.

Juror

Member of the jury

Jury (Petit)

A body of persons temporarily selected from the citizens of a particular district sworn to listen to the evidence in a trial and declare a verdict on matters of fact.

Jury commissioner

The court officer responsible for choosing the panel of persons to serve as potential jurors for a particular court term.

Jury foreman

The juror who chairs the jury during deliberations and speaks for the jury in court when announcing the verdict.

Jury trial

Trial in which a jury decides issues of fact as opposed to trial only before a judge.

L

Law

The combination of those rules and principles of conduct promulgated by legislative authority, derived from court decisions, and established by local custom.

Lien

A legal claim against another person´s property as security for a debt. A lien does not convey ownership of the property, but gives the lien holder a right to have his or her debt satisfied out of the proceeds of the property if the debt is not otherwise paid.

Lis (alibi) pendens

A pending lawsuit.

M

Malpractice

Violation of a professional duty to act with reasonable care and in good faith without fraud or collusion. This term is usually applied to such conduct by doctors, lawyers or accountants.

Merits

Strict legal rights of the parties. A decision "on the merits" is one that reaches the right(s) of a party; as distinguished from disposition of a case on a ground not reaching the right(s) raised in an action. For example, entry of nolle prosequi before a criminal trial begins is a disposition other than on the merits, allowing trial on those charges at a later time without double jeopardy attaching; similarly, dismissal of a civil action on a preliminary motion raising a technicality, such as improper service of process, does not result in res judicata of an issue.

Moot

A moot case or a moot point is one not subject to a judicial determination because it involves an abstract question or a pretended controversy that has not yet actually arisen or has already passed. Mootness usually refers to a court´s refusal to consider a case because the issue involved has been resolved prior to the court´s decision, leaving nothing that would be affected by the court´s decision.

N

Negligence

Failure to exercise the degree of care that a reasonable person would use under the same circumstances.

Notice

Formal notification to the party that has been sued in a civil case of the fact that the lawsuit has been filed. Also, any form of notification of a legal proceeding.

O

Of counsel

A phrase commonly applied to counsel employed to assist in the preparation or management of the case, or its presentation on appeal, but who is not the principal attorney for the party.

Opinion

A judge´s written explanation of a decision of the court or of a majority of judges. A dissenting opinion disagrees with the majority opinion because of the reasoning and/or the principles of law on which the decision is based. A concurring opinion agrees with the decision of the court but offers further comment. A per curiam opinion is an unsigned opinion of the court.

P

Permanent injunction

A court order requiring that some action be taken, or that some party refrain from taking action. It differs from forms of temporary relief, such as a temporary restraining order or preliminary injunction.

Petition

A formal, written application presented to a court or other governmental or official body requesting judicial or other governmental action on some matter (e.g. petition by creditor; petition for arrangement; petition for leave to appeal; petition for clemency, etc.).

Petitioner

The person filing an action in a court of original jurisdiction. Also, the person who appeals the judgment of a lower court. The opposing party is called the respondent.

Plea

In a criminal proceeding, it is the defendant´s declaration in open court that he or she is guilty or not guilty. The defendant´s answer to the charges made in the indictment.

Plea Bargain

The process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to court approval. Usually involves the defendant´s pleading guilty to a lesser offense or to only one.

Power of attorney

Formal authorization of a person to act in the interest of another person.

Precedent

A previously decided case that guides the decision of future cases.

Preliminary Injunction

In civil cases when it is necessary to preserve the status quo prior to trial, the court may issue a preliminary injunction or temporary restraining order ordering a party to carry out a specified activity.

Pre-trial conference

A meeting between the judge and the lawyers involved in a lawsuit to narrow the issues in the suit, agree on what will be presented at the trial, and make a final effort to settle the case without a trial.

Prosecutor

A trial lawyer representing the government in a criminal case. The prosecutor has the responsibility of deciding who and when to prosecute. Private Prosecutor - a private person who institutes and carries on a legal action, esp. a criminal action.

Punitive damages

Money awarded to an injured person, over and above the measurable value of the injury (compensatory damage), in order to punish the person who hurt him and deter the person and the general public from committing such tort in the future. Punitive damage awards should normally not exceed nine times the amount awarded as compensatory damage (US Federal Supreme Court 2003 -; "State Farm Mutual Automobile Insurance Company v. Inez Preece Campbell et al.").

Q

Quid pro quo

Lit: "this for that". What for what; something for something; giving one valuable thing for another.

R

Ratio decidendi

Lit: "...the reason for deciding." The ground or reason of the decision in a case.

Rehearing

Another hearing of a civil or criminal case by the same court in which the case was originally heard.

Remittitur

The reduction by a judge of the damages awarded by a jury.

Res judicata

Lit: "...a thing adjudicated". A rule of civil law that once a matter has been litigated and final judgment has been rendered by the trial court, the matter cannot be relegated by the parties in the same court, or any other trial court.

Respondent

The party who makes an answer to a bill or other proceedings in equity; also refers to the party against whom an appeal is brought. Sometimes called an appellee.

Restitution

An act of giving the equivalent for any loss, damage or injury.

Restraining order

A court order forbidding the defendant from doing any action or threatened action until a hearing on the application can be conducted.

Retainer

Act of the client in employing the attorney or counsel. Also denotes the fee the client pays when he or she retains the attorney to act for him or her.

S

Service

The delivery of a legal document, such as a complaint, summons, or subpoena, notifying a person of a lawsuit or other legal action taken against him or her. Process consists of a summons, citation or warrant, to which a copy of the complaint is attached.

Settlement

An agreement between parties that dictates what is being received from one party to the other.

Sovereign immunity

The doctrine that the government, state or federal is immune to lawsuit unless it gives its consent (acta iure imperii).

Specific performance

A remedy requiring a person who has breached a contract to perform specifically what he or she has agreed to do. Specific performance is ordered when damages would be inadequate compensation (suit in equity).

Standard of proof

There are essentially three standards of proof applicable in most court proceedings. In criminal cases, the offense must be proven beyond a reasonable doubt, the highest standard. In civil cases and neglect and dependency proceedings, the lowest standard applies by a mere preponderance of the evidence, (more likely than not). In some civil cases, and in juvenile proceedings such as a permanent termination of parental rights, an intermediate standard applies, proof by clear and convincing evidence.

Stare decisis

Lit: "...to stand by things decided." The doctrine that courts will follow principles of law laid down in previous cases. Similar to precedent.

Statute

A formal, written statement by legislature declaring, commanding, or prohibiting something.

Statute of limitations

The time within a plaintiff must begin a lawsuit (in civil cases) or a prosecutor must bring charges (in criminal cases). There are different statutes of limitations at both the federal and state levels for different kinds of lawsuits or crimes.

Strict liability

A concept applied by courts in product liability cases in which a seller is liable for any and all defective or hazardous which unduly threaten a consumer´s personal safety.

Subpoena

An order of the court which requires a person to be present at a certain time and place to give testimony upon a certain matter. Failure to appear may be punishable as a contempt of court.

Subpoena duces tecum

A court order commanding a witness to bring certain documents or records to court.

Suit

Any proceeding by one person or persons against another in a court of law.

Summary judgment

A decision made on the basis of statements and evidence presented for the record without a trial. It is used when there is no dispute as to the facts of the case, and one party is entitled to judgment as a matter of law.

Summons

A notice to a defendant that he or she has been sued or charged with a crime and is required to appear in court. A jury summons requires the person receiving it to report for possible jury duty.

T

Testimony (to testify)

The evidence given by a witness under oath. It does not include evidence from documents and other physical evidence.

Tort

A civil injury or wrong committed on the person or property of another.

Trial

A judicial examination and determination of issues between parties before a court that has jurisdiction.

Trial, court (bench)

A trial where the jury is waived and the case is seen before the judge alone.

Trust

A legal device used to manage real or personal property, established by one person (the grantor or settler) for the benefit of another (the beneficiary). A third person (the trustee) or the grantor manages the trust.

V

Venue

The proper geographical area (county, city or district) in which a court with jurisdiction over the subject matter may hear a case.

Verdict

The opinion of a jury on the factual issues of a case.

Voir dire

Lit: "To speak the truth"; preliminary examination which the court and attorneys make of prospective jurors to determine their qualification and suitability to serve as jurors.

W

Witness

1. One, who testifies to what they have seen, heard or otherwise observed. 2. To subscribe one´s name to a document for the purpose of authenticity.

Witness, expert

A witness who is qualified by knowledge, skill, experience, training or education to provide a scientific, technical or specialized opinion on the subject about which he or she is to testify. That knowledge must generally be such as is not normally possessed by the average person.

Writ

A court´s written order commanding the addressee to do or refrain from doing some specified act.

This glossary contains a number of legal terms, which we feel are relevant to common law jurisdictions and which are mentioned in German business newspapers. Its goal is to give a brief overview (also for non-lawyers) and is not intended to be exact or exhaustive. We have oriented our definitions on the American understanding of the terms.