Glossary of US Legal Terms A-D
A
Abatement: The suspension or termination of legal proceedings due to the death of a party, procedural defect, or other event occurring before trial or judgment. In tort law, abatement may also refer to the reduction of a nuisance. The abatement of an action does not necessarily extinguish the underlying claim, which may be revived by a successor or personal representative depending on the nature of the claim and applicable survival statutes.
Abstract of judgment: A summary of a court’s money judgment that, when recorded with the appropriate government office, creates a lien on the judgment debtor’s real property. This lien attaches to all real property owned by the debtor in the county where recorded and may be enforced through foreclosure if the judgment remains unsatisfied. The abstract of judgment is a powerful collection tool because it gives the judgment creditor priority over subsequently recorded interests.
Accord and satisfaction: A contract law doctrine in which a party accepts performance different from what was originally due, discharging the original obligation. The accord is the new agreement, and the satisfaction is the performance of that agreement. For the defense to apply, there must be a bona fide dispute about the amount owed, the debtor must offer payment in full settlement, and the creditor must accept the payment with knowledge that it is offered as full satisfaction.
Acquittal: A judgment that a criminal defendant is not guilty, resulting from either a jury verdict or a court’s determination that the evidence is insufficient to sustain a conviction. An acquittal is final and bars retrial for the same offense under the Double Jeopardy Clause, even if new evidence later emerges. A directed verdict of acquittal, entered when the prosecution fails to present sufficient evidence, has the same preclusive effect as a jury acquittal.
Ad damnum clause: The portion of a civil complaint stating the amount of damages the plaintiff seeks. Many jurisdictions require that the ad damnum clause specify the exact amount of damages sought, while others permit general statements such as “damages in excess of the jurisdictional minimum.” The ad damnum clause may limit the plaintiff’s recovery, though courts may permit amendment to increase the amount if justified by the evidence.
Ad litem: A Latin term meaning “for the lawsuit,” used when a person is appointed to represent another party in litigation, as in guardian ad litem. A guardian ad litem is typically appointed to represent the interests of a minor, an incapacitated person, or an unborn heir in legal proceedings where their interests are not otherwise adequately protected.
Administrative law judge (ALJ): An officer who presides over administrative hearings and issues initial decisions in agency adjudications under the Administrative Procedure Act. ALJs are independent decision-makers who are insulated from agency pressure through civil service protections. They conduct evidentiary hearings, rule on procedural matters, and issue recommended or initial decisions that become final absent appeal within the agency.
Admissible: Evidence that is relevant, not unduly prejudicial, and otherwise meets legal standards for consideration by the trier of fact. The Federal Rules of Evidence govern admissibility in federal courts, while states have their own evidence codes. Evidence must be relevant under Rule 401, must not be excluded by specific exclusionary rules (hearsay, privilege, character evidence), and must not be substantially more prejudicial than probative under Rule 403.
Adversary system: The American legal system in which opposing parties present their cases before a neutral judge or jury. The adversary system relies on the parties to develop and present evidence, with the judge serving as an impartial arbiter. This contrasts with the inquisitorial system used in civil law countries, where the judge actively investigates the facts.
Affidavit: A written statement made under oath before a notary public or other authorized officer. Affidavits are used to present evidence in support of motions, to verify pleadings, and to establish facts in various legal proceedings. A person who knowingly makes false statements in an affidavit may be prosecuted for perjury.
Affirmative defense: A defendant’s assertion of new facts or legal theories that, if proven, defeat the plaintiff’s claim even if all allegations in the complaint are true. Common affirmative defenses include statute of limitations, laches, accord and satisfaction, assumption of risk, comparative negligence, and res judicata. Under Rule 8(c) of the Federal Rules of Civil Procedure, affirmative defenses must be specifically pleaded in the answer.
Amicus curiae: A person or organization not a party to a lawsuit that submits a brief offering relevant information or argument to assist the court. Amicus briefs are commonly filed in appellate courts and provide additional perspectives on the legal issues. The court’s permission is required unless all parties consent, and amici must disclose their interests and any financial support for the brief.
Answer: The defendant’s responsive pleading in a civil case, admitting or denying the plaintiff’s allegations and asserting affirmative defenses. Under Rule 8 of the Federal Rules of Civil Procedure, the answer must respond to each allegation and may assert counterclaims against the plaintiff. Failure to respond to an allegation may be deemed an admission.
Appeal: A request to a higher court to review a lower court’s decision for legal error. The appellant must demonstrate that the lower court made an error of law, abuse of discretion, or that the verdict was against the weight of the evidence. Appeals are decided based on the record below; new evidence cannot be presented on appeal.
Arbitration: A form of alternative dispute resolution in which parties submit their dispute to one or more neutral arbitrators whose decision is usually binding. Arbitration is governed by the Federal Arbitration Act and state arbitration statutes. Courts generally enforce arbitration agreements according to their terms and review arbitration awards on limited grounds, including fraud, corruption, or manifest disregard of the law.
Arraignment: The first court appearance of a criminal defendant, at which the charges are read and the defendant enters a plea. At arraignment, the defendant is formally advised of the charges, informed of constitutional rights, and given the opportunity to plead guilty, not guilty, or nolo contendere. The court also addresses bail, appointment of counsel for indigent defendants, and sets future deadlines.
Attachment: A legal process by which a court seizes a defendant’s property before judgment to secure satisfaction of a potential judgment. Attachment is an extraordinary remedy typically available only when the defendant is likely to flee, hide assets, or otherwise frustrate collection. The plaintiff must post a bond to protect the defendant against wrongful attachment.
Attorney-client privilege: The legal protection of confidential communications between lawyers and their clients from compelled disclosure. The privilege belongs to the client and encourages full and frank disclosure between client and attorney by ensuring that communications will remain confidential. The privilege does not apply to communications in furtherance of future crime or fraud.
B
Bail: Money or property deposited with the court to secure a criminal defendant’s release from custody and guarantee appearance at trial. The Eighth Amendment prohibits excessive bail. The Bail Reform Act governs federal pretrial release, requiring the court to impose the least restrictive conditions that will reasonably assure the defendant’s appearance and community safety.
Bailment: The delivery of personal property by one person (bailor) to another (bailee) for a specific purpose, with the property to be returned after that purpose is accomplished. The bailee owes a duty of care proportional to the benefit received. Gratuitous bailments impose minimal care obligations, while bailments for hire require ordinary care.
Bankruptcy: A federal legal proceeding in which debtors obtain relief from certain debts, governed by the Bankruptcy Code. Chapter 7 involves liquidation of assets, Chapter 13 involves repayment plans for individuals with regular income, and Chapter 11 involves reorganization for businesses. The automatic stay upon filing stops most collection actions.
Bench trial: A trial conducted without a jury, in which the judge decides both questions of fact and questions of law. Bench trials are common in equity cases, cases where the parties waive jury trial, and cases where jury trial is not available. The judge must make findings of fact and conclusions of law.
Beyond a reasonable doubt: The highest standard of proof in the American legal system, required to convict a criminal defendant. This standard requires moral certainty of guilt and excludes every reasonable hypothesis of innocence. The prosecution must prove every element of the charged offense beyond a reasonable doubt.
Bill of attainder: A legislative act that singles out an individual or group for punishment without a judicial trial, prohibited by Article I of the Constitution. The prohibition on bills of attainder prevents the legislature from exercising judicial functions. The Supreme Court has applied this prohibition to laws that inflict punishment without judicial trial.
Bill of lading: A document issued by a carrier acknowledging receipt of goods for shipment and setting forth the terms of carriage. The bill of lading serves as a receipt, a contract of carriage, and a document of title. Negotiable bills of lading may be transferred by endorsement, transferring title to the goods.
Bona fide: A Latin term meaning “in good faith,” without fraud or deceit. Bona fide purchasers acquire property without notice of competing claims and may take free of certain adverse interests. The concept of good faith is central to commercial law, particularly the holder in due course doctrine under the Uniform Commercial Code.
Brief: A written legal argument submitted to a court explaining why the party should prevail. Appellate briefs must comply with strict formatting and length requirements. An effective brief focuses on legal errors, cites relevant authority, and applies the appropriate standard of review.
Burden of proof: The obligation of a party to prove its allegations by the applicable standard of proof. In civil cases, the plaintiff typically bears the burden of proof by a preponderance of the evidence. In criminal cases, the prosecution must prove guilt beyond a reasonable doubt. The burden may shift to the defendant for affirmative defenses.
C
Capacity: A person’s legal ability to enter into contracts, execute wills, or engage in other legal acts. Minors generally lack capacity, and contracts with minors may be voidable. Mental incapacity may also render legal acts voidable if the person lacked understanding at the time of the act.
Capital offense: A crime punishable by death. Capital cases have additional procedural protections, including heightened scrutiny of jury selection, mandatory appellate review, and collateral review through habeas corpus. The Eighth Amendment prohibits the death penalty for certain categories of defendants, including juveniles and intellectually disabled persons.
Case law: Law derived from judicial decisions rather than constitutions, statutes, or regulations. Case law develops through the doctrine of stare decisis, which requires courts to follow precedents established in earlier cases. Common law systems rely heavily on case law to interpret statutes and develop legal principles.
Causation: The element of a tort or crime requiring a causal connection between the defendant’s conduct and the resulting harm. Actual cause (cause in fact) is established by the “but-for” test: the harm would not have occurred but for the defendant’s conduct. Proximate cause limits liability to foreseeable consequences of the defendant’s conduct.
Cease and desist order: An administrative or judicial order directing a person to stop engaging in specified conduct. The Federal Trade Commission and other regulatory agencies commonly issue cease and desist orders to enforce consumer protection and antitrust laws. Violation of a cease and desist order may result in civil or criminal penalties.
Certiorari: A discretionary writ from a higher court to review a lower court’s decision, most commonly used for Supreme Court review. The Supreme Court grants certiorari in approximately 1% of petitions, typically those presenting important federal questions or conflicts among circuits.
Chain of custody: The documentation of the handling of evidence from its collection through its presentation at trial. Proper chain of custody establishes that the evidence has not been tampered with or altered. Each person who handles the evidence must be identified, and the periods of custody must be accounted for.
Change of venue: The transfer of a case from one geographic location to another, typically to avoid prejudice or for convenience. Parties may move for change of venue when pretrial publicity has made a fair trial unlikely in the original venue. The court has discretion to grant or deny the motion.
Civil procedure: The body of rules governing the process of civil litigation, including pleading, discovery, motions, and trial. The Federal Rules of Civil Procedure govern in federal courts, while each state has its own civil procedure rules. Civil procedure ensures orderly resolution of disputes and protects due process rights.
Class action: A lawsuit in which one or more plaintiffs sue as representatives of a larger group of similarly situated persons. Class actions are governed by Rule 23 of the Federal Rules of Civil Procedure, which requires numerosity, commonality, typicality, and adequacy of representation. The court must certify the class and approve any settlement.
Clear and convincing evidence: An intermediate standard of proof requiring a high probability that the facts are as claimed. This standard is used in certain civil cases involving particularly important interests, such as fraud claims, termination of parental rights, and punitive damages. It is higher than preponderance of the evidence but lower than beyond a reasonable doubt.
Closing argument: The final statement by each party’s attorney summarizing the evidence and arguing the party’s position to the jury. Closing argument provides an opportunity to highlight favorable evidence, attack weaknesses in the opposing party’s case, and explain why the jury should rule in the party’s favor.
Collateral estoppel: The doctrine preventing relitigation of issues actually litigated and necessarily determined in a prior proceeding. Collateral estoppel applies even when the second lawsuit involves different claims, as long as the issue is identical, actually litigated, and essential to the prior judgment.
Comity: The principle of mutual respect between courts of different jurisdictions, under which one court gives effect to the laws and judicial decisions of another. Comity is not a legal obligation but a matter of courtesy and practical necessity in a federal system with multiple sovereigns.
Complaint: The initial pleading in a civil case in which the plaintiff states the basis for the court’s jurisdiction and the facts supporting relief. The complaint must contain a short and plain statement showing entitlement to relief under the plausibility standard.
Concurrent jurisdiction: The situation in which both federal and state courts have authority to hear the same type of case. Diversity jurisdiction and federal question jurisdiction with less than the jurisdictional amount are examples. Plaintiffs may choose the forum, subject to removal by the defendant.
Conflict of laws: The body of rules determining which jurisdiction’s law applies when laws of different states or countries conflict. Choice of law rules vary by subject matter, with torts typically governed by the law of the place of injury and contracts by the law chosen by the parties.
Consideration: Something of value exchanged between parties to a contract, necessary for contract formation. Consideration may be a promise, an act, or forbearance. The sufficiency of consideration is generally not reviewed by courts, as long as it has some legal value.
Contempt: An act that disrespects or obstructs the authority of a court, punishable by fine or imprisonment. Civil contempt is coercive and may be purged by compliance, while criminal contempt is punitive and requires procedural protections including proof beyond a reasonable doubt.
Contract: A legally enforceable agreement between two or more parties. Contract formation requires offer, acceptance, consideration, mutual assent, and capacity. Contracts may be express, implied, or quasi-contractual.
Conversion: The civil wrong (tort) of taking or retaining another’s personal property as one’s own. The plaintiff may recover the value of the property or its return. Conversion may also be a crime in some circumstances.
Criminal procedure: The body of rules governing the process of criminal prosecution, from investigation through appeal. Criminal procedure is governed by the Constitution (particularly the Fourth, Fifth, Sixth, and Eighth Amendments), statutes, and court rules.
Cross-examination: The questioning of a witness by the opposing party after direct examination, designed to test credibility and elicit favorable facts. The Confrontation Clause guarantees criminal defendants the right to cross-examine witnesses against them.
Custodial interrogation: Questioning initiated by law enforcement after a person is taken into custody or otherwise deprived of freedom of action. Miranda warnings are required before custodial interrogation to protect the Fifth Amendment privilege against self-incrimination.
D
Damages: Monetary compensation awarded to a plaintiff for injury or loss caused by the defendant’s wrongful conduct. Compensatory damages aim to make the plaintiff whole, while punitive damages punish egregious conduct. Nominal damages may be awarded when a right is violated but no actual loss occurred.
Declaratory judgment: A court judgment that declares the rights and obligations of the parties without awarding damages or ordering specific action. The Declaratory Judgment Act allows parties to resolve legal uncertainties before injury occurs. Declaratory judgments are binding and may be enforced through subsequent proceedings.
Default judgment: A judgment entered against a defendant who fails to respond to a complaint or appear in court. The plaintiff must prove entitlement to relief, and the court may hold a hearing on damages. Default judgments may be set aside for good cause shown.
Defendant: The party against whom a lawsuit or criminal charges are brought. In civil cases, the defendant responds to the plaintiff’s complaint. In criminal cases, the defendant is presumed innocent and has constitutional rights including the right to counsel and the right to remain silent.
Demurrer: A pleading that admits the facts alleged but argues they are legally insufficient to state a claim. Demurrers have been largely replaced by motions to dismiss for failure to state a claim under Rule 12(b)(6) in federal practice.
Deposition: Sworn, out-of-court testimony of a witness, taken before trial and used for discovery or impeachment. Depositions allow parties to preserve testimony and assess witness credibility. The Federal Rules limit depositions to 10 per side and 7 hours per deposition.
Directed verdict: A verdict ordered by the judge when the evidence is insufficient to support a contrary verdict. In federal practice, directed verdicts have been replaced by judgment as a matter of law under Rule 50.
Discovery: The pretrial process by which parties obtain information and evidence from each other and third parties. Discovery tools include interrogatories, requests for production, depositions, and requests for admission. The scope of discovery is limited to relevant, nonprivileged information proportional to the needs of the case.
Diversity jurisdiction: Federal court jurisdiction over cases between citizens of different states when the amount in controversy exceeds $75,000. Diversity jurisdiction provides a neutral forum for disputes between parties from different states. Complete diversity is required; no plaintiff may share citizenship with any defendant.
Docket: A court’s calendar of cases and the official record of proceedings. The docket lists all filings, orders, and events in a case. Electronic docketing through PACER (Public Access to Court Electronic Records) provides public access to federal court dockets.
Double jeopardy: The Fifth Amendment prohibition against being tried twice for the same offense after acquittal or conviction. Jeopardy attaches when the jury is sworn or the first witness testifies in a bench trial. Exceptions include mistrials for manifest necessity and dual sovereignty prosecutions.
Due process: The constitutional guarantee of fair procedures and fundamental fairness in government action. Procedural due process requires notice and an opportunity to be heard. Substantive due process protects fundamental rights from government interference.
Duress: Unlawful pressure or threats used to compel a person to act against their will, potentially invalidating contracts or guilty pleas. Duress may be physical (threats of violence) or economic (wrongful threats to a person’s business or property). The party claiming duress must show that the threat left no reasonable alternative.