ABCs of Remedial Law (Part 1)

Compiled by: Romer Yadao

Barrista Solutions lists key concepts in Remedial Law. This will help you memorize important terms in the subject.

ABCs of Remedial Law

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

A confession made out of court and not as a part of a judicial examination or investigation. Such confession must be corroborated by some other proof of the corpus delicti or else, it is insufficient to warrant a conviction.

58. EXTRINSIC EVIDENCE

Evidence relating to a contract but not appearing on the face of the contract because it comes from other sources, such as statements between the parties or the circumstances surrounding the agreement. Extrinsic evidence is usually not admissible to contradict or add to the terms of an unambiguous document Also termed extraneous evidence, parol evidence, evidence aliunde.

59. NEWLY DISCOVERED EVIDENCE

Evidence existing at the time of a motion or trial but then unknown to a party, who, upon later discovering it, may assert it as grounds for reconsideration or a new trial.

60. OPINION EVIDENCE

A witness’ belief, thought, inference or conclusion concerning a fact or facts.

61. REAL EVIDENCE

Physical evidence (such as clothing or a knife wound) that itself plays a direct part in the incident in question. Also termed physical evidence.

62. REBUTTAL EVIDENCE–

Evidence offered to disprove or contradict the evidence presented by an opposing party. Rebuttal evidence is introduced in the rebutting party’s answering case; it is not adduced, e.g., through cross-examination during the case-in-chief of the party to be rebutted. Also termed rebutting evidence.

63. SECONDARY EVIDENCE

Evidence that is inferior to the primary or best evidence and that becomes admissible when the primary or best evidence is lost or inaccessible.

64. TESTIMONIAL EVIDENCE

A person’s testimony offered to prove the truth of the matter asserted; especially, evidence elicited from a witness. Also termed communicative evidence, oral evidence.

65. EXCESS OF JURISDICTION

A court’s acting beyond the limits of its power usually in one of three ways: (1) when the court has no power to deal with the kind of matter at issue; (2) when the court has no power to deal with the particular person concerned; or (3) when the judgment or order issued is of a kind that the court has no power to issue.

66. EXECUTION

Judicial enforcement of a money judgment usually by seizing and selling the judgment debtor’s property.

67. EXPENSES OF ADMINISTRATION

Expenses incurred by a decedent’s representatives in administering the estate.

68. FISHING EXPEDITION

An attempt, through broad discovery requests or random questions, to elicit information from another party in the hope that something relevant might be found especially such an attempt that exceeds the scope of discovery allowed by procedural rules.

69. FORECLOSURE

A legal proceeding to terminate a mortgagor’s interest in the property, instituted by the lender (mortgagee) either to gain title or to force a sale in order to satisfy the unpaid debt secured by the property.

70. EXTRINSIC FRAUD

Deception that is collateral to the issues being considered in the case; intentional misrepresentation or deceptive behavior outside the transaction itself (whether a contract or a lawsuit), depriving one party of informed consent or full participation. For example, a person might engage in extrinsic fraud by convincing a litigant not to hire counsel or answer by dishonestly saying he matter will not be pursued.

71. INTRINSIC FRAUD

Deception that pertains to an issue involved in an original action. Examples include the use of fabricated evidence, a false return of service, perjured testimony and false receipts or other commercial documents.

72. FRUIT OF THE POISONOUS TREE DOCTRINE

The rule that evidence derived from an illegal search, arrest or interrogation is inadmissible because the evidence (the “fruit”) was tainted by the illegality (the “poisonous tree”)

73. GARNISHMENT

A judicial proceeding in which a creditor asks the court to order a third party who is indebted to or is a bailee for the debtor to turn over to the creditor any of the debtor’s property held by that third party.

74. GUARDIANSHIP

The fiduciary relationship between a guardian and a ward or other incapacitated person, whereby the guardian assumes the power to make decisions about the ward’s person or property.

75. HABEAS CORPUS

A writ employed to bring a person before a court, most frequently to ensure that the person’s imprisonment or detention is not illegal.

76. HEARSAY

Traditionally, testimony that is given by a witness who relates not what he or she knows personally, but what others have said, and that is therefore dependent on the credibility of someone other than the witness.

77. IDENTITY OF INTERESTS

A relationship between two parties who are so close that suing one serves as notice to the other, so that the other may be joined in the suit

78. IDENTITY OF PARTIES

A relationship between two parties who are so close that a judgment against one prevents later action against the other because of res judicata.

79. IMPEACHMENT EVIDENCE

Evidence used to undermine a witness’ credibility.

80. INADVERTENT DISCOVERY

A law enforcement officer’s unexpected finding of incriminating evidence in plain view.

81. INJUNCTION

A court order commanding or preventing an action. To get an injunction, the complainant must show that there is no plain, adequate and complete remedy at law and that an irreparable injury will result unless the relief is granted.

82. MANDATORY INJUNCTION

An injunction that orders an affirmative act or mandates a specified course of conduct.

83. PRELIMINARY INJUNCTION

A temporary injunction issued before or during trial to prevent an irreparable injury from occurring before the court has a chance to decide the case. A preliminary injunction will be issued only after the defendant receives notice and an opportunity to be heard.

84. IN PERSONAM

Involving or determining the personal rights and obligations of the parties.

85. IN REM

Involving or determining the status of a thing and therefore the rights of persons generally with respect to that thing.

86. INTEGRATION RULE

The rule that if the parties to a contract have embodied their agreement in a final document, any other action or statement is without effect and is immaterial in determining the terms of the contract. Also termed parol evidence rule.

87. INTERPLEADER

A suit to determine a right to property held by a usually disinterested third party who is in doubt about ownership and who therefore deposits the property with the court to permit interested parties to litigate ownership.

Source: Bryan A. Garner, Blacks Law Dictionary (USA: West Publishing Co, 2004)

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