ABCs of Remedial Law (Part 1)
Updated: Jul 4, 2021
Compiled by: Romer Yadao
Barrista Solutions lists key concepts in Remedial Law. This will help you memorize important terms in the subject.
1. ADMISSIBLE EVIDENCE
Evidence that is relevant and is of such a character that the court should receive it.
2. ANCIENT DOCUMENT
A document that is presumed to be authentic because its physical condition strongly suggests authenticity, it has existed for 20 or more years and it has been maintained in proper custody (as by coming from a place where it is reasonably expected to be found.
3. ANCILLARY JURISDICTION
A court’s jurisdiction to adjudicate claims and proceedings related to a claim that is properly before the court.
4. APPELLATE JURISDICTION
The power of a court to review and revise a lower court’s decision.
5. ASSIGNMENT OF ERROR
An alleged error that occurred in a lower court and is pointed out in an appellate brief as grounds for reversal.
6. ATTORNEY–CLIENT PRIVILEGE
The client’s right to refuse to disclose and to prevent any other person from disclosing confidential communications between the client and the attorney.
7. BENCH WARRANT
A writ issued directly by a judge to a law-enforcement officer, especially for the arrest of a person who has been held in contempt, has been indicted, has disobeyed a subpoena or has failed to appear for a hearing or trial.
8. BEST EVIDENCE
Evidence of the highest quality available, as measured by the nature of the case rather than the thing being offered as evidence. The term is usually applied to writings and recordings.
9. BEST EVIDENCE RULE
The evidentiary rule providing that, to prove the contents of a writing (or a recording or photograph), a party must produce the original writing (or a mechanical, electronic, or other familiar duplicate, such as a photocopy) unless it is unavailable, in which case, secondary evidence- the testimony of the drafter or a person who read the document may be admitted.
10. CERTIORARI
An extraordinary writ issued by an appellate court, at its discretion, directing a lower court to deliver the record in the case for review.
11. CHARACTER EVIDENCE
Evidence regarding someone’s general personality traits or propensities, of a praiseworthy or blameworthy nature. Character evidence is usually, but not always, prohibited if offered to show that the person acted in conformity with that character.
12. CHATTEL MORTGAGE
A mortgage on the goods purchased on installment, whereby the seller transfers title to the buyer but retains a lien securing the unpaid balance.
13. CIRCUMSTANTIAL EVIDENCE
Evidence based on inference and not on personal knowledge or observation. Also termed indirect evidence, oblique evidence.
14. CLASS ACTION
A lawsuit in which the court authorizes a single person or a small group of people to represent the interests of a larger group specifically a lawsuit in which the convenience either of the public or of the interested parties requires that the case be settled through litigation by or against only a part of the group of similarly situated persons and in which a person whose interests are or may be affected does not have an opportunity to protect his or her interests by appearing personally or through a personally selected representative or through a person specifically appointed to act as a trustee or guardian.
15. CLEAR AND CONVINCING EVIDENCE
Evidence indicating that the thing to be proved is highly probable or reasonably certain. This is a greater burden that preponderance of evidence, the standard applied in most civil trials, but less than evidence beyond a reasonable doubt, the norm for criminal trials.
16. COGNOVIT JUDGMENT
A debtor’s confession of judgment.
17. COMPLAINT
The initial pleading that starts a civil action and states the basis for the court’s jurisdiction, the basis for the plaintiff’s claim and the demand for relief.
18. THIRD PARTY COMPLAINT
A complaint filed by the defendant against a third party, alleging that the third party may be liable for some or all of the damages that the plaintiff is trying to recover from the defendant.
19. COMPULSORY COUNTERCLAIM
A counterclaim that must be asserted to be cognizable usually because it relates to the opposing party’s claim and arises out of the same subject matter. If a defendant fails to assert a compulsory counterclaim in the original action, that claim may not be brought in a later, separate action.
20. COMPULSORY JOINDER
The necessary joinder of a party if either of the following is true: (1) in that party’s absence, those already involved in the lawsuit cannot receive complete relief; (2) the absent party claims an interest in the subject of an action, so that party’s absence might either impair the protection of that interest or leave some other party subject to multiple or inconsistent obligations.
21. CONCLUSIVE PRESUMPTION
A presumption that cannot be overcome by any additional evidence or argument.
22. CONCURRENT JURISDICTION
Jurisdiction that might be exercised simultaneously by more than one court over the same subject and within the same territory, a litigant having the right to choose the court in which to file the action.
23. CONFESSION
A criminal suspect’s oral or written acknowledgment of guilt often including details about the crime.
24. CONFESSION OF JUDGMENT
A person’s agreeing to the entry of judgment upon the occurrence or non - occurrence of an event, such as making a payment.
25. CONSTRUCTIVE FRAUD
Unintentional deception or misrepresentation that causes injury to another.
26. COUNTERCLAIM
A claim for relief asserted against an opposing party after an original claim has been made especially a defendant’s claim in opposition to or as a setoff against the plaintiff’s claim.
27. COURT OF GENERAL JURISDICTION
A court having unlimited or nearly unlimited trial jurisdiction in both civil and criminal cases.
28. COURT OF LIMITED JURISDICTION
A court with jurisdiction over only certain types of cases or cases in which the amount in controversy is limited.
29. COURT OF ORIGINAL JURISDICTION
A court where an action is initiated and first heard.
30. CROSS-CLAIM
A claim asserted between co-defendants or co-plaintiffs in a case and that relates to the subject of the original claim or counterclaim.
31. DEAD MAN’S STATUTE
A law prohibiting the admission of a decedent’s statement as evidence in certain circumstances, as when an opposing party or witness seeks to use the statement to support a claim against the decedent’s estate.
32. DECLARATORY JUDGMENT
A binding adjudication that establishes the rights and other legal relations of the parties without providing for or ordering enforcement.
33. DEFAULT JUDGMENT
A judgment entered against a defendant who has failed to plead or otherwise defend against the plaintiff’s claim.
34. DEMONSTRATIVE EVIDENCE
Physical evidence that one can see and inspect (i.e. an explanatory aid, such as a chart, map and some computer simulations) and that, while of probative value and usually offered to clarity testimony, does not play a direct part in the incident in question.
35. DEMURRER TO EVIDENCE
A party’s objection or exception that the evidence is legally insufficient to make a case.
36. DEPOSITION
A witness’ out of court testimony that is reduced to writing usually by a court reporter for later use in court or for discovery purposes.
37. DEPOSITION DE BENE ESSE
A deposition taken from a witness who will likely be unable to attend a scheduled trial or hearing. If the witness is not available to attend the trial, the testimony is read at trial as if the witness were present in court.
38. DEPOSITION ON WRITTEN INTERROGATORIES
A deposition given in response to a prepared set of written questions, as opposed to a typical oral deposition.
39. DERIVATIVE EVIDENCE
Evidence that is discovered as a result of illegally obtained evidence and is therefore inadmissible because of the primary taint.
40. DIRECT EVIDENCE
Evidence that is based on personal knowledge or observation and that, if true, proves a fact without inference or presumption.
41. DISMISSAL WITHOUT PREJUDICE
A dismissal that does not bar the plaintiff from refiling the lawsuit within the applicable limitations period.
42. DISMISSAL WITH PREJUDICE
A dismissal usually after an adjudication on the merits, barring the plaintiff from prosecuting any later lawsuit on the same claim. If, after a dismissal with prejudice, the plaintiff files a later suit on the same claim, the defendant in the later suit can assert the defense of res judicata (claim preclusion).
43. DOCTOR – PATIENT PRIVILEGE
The right to exclude from discovery and evidence in a legal proceeding any confidential communication that a patient makes to a physician for the purpose of diagnosis or treatment, unless the patient consents to the disclosure.
44. DOCTRINE OF CONCLUSIVENESS OF JUDGMENT
Estoppel that prevents a party from contradicting the previous declaration made during the same or an earlier proceeding if the change in position would adversely affect the proceeding or constitute a fraud on the court. Also termed Doctrine of Preclusion of Inconsistent Positions.
45. DOCTRINE OF PRECEDENT (STARE DECISIS)
The rule that precedents not only have persuasive authority but also must be followed when similar circumstances arise.
46. DOCTRINE OF RES JUDICATA
An issue that has been definitively settled by judicial decision. An affirmative defense barring the same parties from litigating a second lawsuit on the same claim or any other claim arising from the same transaction or series of transactions and that could have been, but was not, raised in the first suit. The three essential elements are (1) earlier decision on the issue; (2) a final judgment on the merits and (3) the involvement of the same parties, or parties in privity with original parties.
47. DOCUMENTARY EVIDENCE
Evidence supplied by a writing or other document, which must be authenticated before the evidence is admissible.
48. DOMINANT-JURISDICTION PRINCIPLE
The rule that the court in which a case is filed maintains the suit to the exclusion of all other courts that would have jurisdiction.
49. DOUBLE JEOPARDY
The fact of being prosecuted or sentenced twice of substantially the same offense.
50. DUPLICITY (DOUBLE PLEADING; DOUBLE PLEA)
The pleading of two or more distinct grounds of complaint or defense for the same issue. In Criminal Procedure, this takes the form of joining two or more offenses in the same count of an indictment.
51. ENTRY OF JUDGMENT
The ministerial recording of a court’s final decision usually by noting it in a judgment book or civil docket.
52. ERRONEOUS JUDGMENT
A judgment issued by a court with jurisdiction to issue it but containing an improper application of law.
53. ESCHEAT
Reversion of property (especially real property) to the State upon the death of an owner who has neither a will nor any legal heirs.
54. EVICTION
The act or process of legally dispossessing a person of land or rental property.
55. EVIDENCE
The body of law regulating the admissibility of what is offered as proof into the record of a legal proceeding.
56. EX PARTE COMMUNICATION
A communication between counsel and the court when opposing counsel is not present. Such communications are ordinarily prohibited.
57. EXTRAJUDICIAL CONFESSION