ABCs of Remedial Law (Part 2)

Compiled by: Romer Yadao

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

1. JUST COMPENSATION

A payment by the government for property it has taken under eminent domain usually the property’s fair market value, so that the owner is theoretically no worse off after the taking.

2. JUDICIAL CONFESSION

A plea of guilty or some other direct manifestation of guilt in court or in a judicial proceeding.

3. FINAL JUDGMENT

A court’s last action that settles the rights of the parties and disposes of all issues in controversy, except for the award of costs and enforcement of the judgment. Also termed final appealable judgment.

4. FOREIGN JUDGMENT

A decree, judgment or order of a court in a state, country or judicial system different from that where the judgment or its effect is at issue.

5. JUDGMENT NUNC PRO TUNC

A judgment entered on a day after the time when it should have been entered, as of the earlier date.

6. INTERLOCUTORY JUDGMENT

An intermediate judgment that determines a preliminary or subordinate point or plea but does not finally decide the case.

7. JUDGMENT OF ACQUITTAL

A judgment, rendered on the defendant’s motion or court’s own motion, that acquits the defendant of the offense charged when the evidence is insufficient.

8. JUDGMENT OF DISMISSAL

A final determination of a case (against the plaintiff in a civil action or the government in a criminal action) without trial on its merits.

9. JUDGMENT OF NOLLE PROSEQUI

A judgment entered against a plaintiff who, after appearance but before judgment on the merits, has decided to abandon prosecution of the lawsuit.

10. JUDGMENT ON THE MERITS

A judgment based on the evidence rather than on technical or procedural grounds. Also termed decision on the merits.

11. JUDGMENT ON THE PLEADINGS

A judgment based solely on the allegations and information contained in the pleadings and not on any outside matters.

12. JUDGMENT QUASI IN REM

A judgment based on the court’s jurisdiction over the defendant’s interest in property rather than on its jurisdiction over the defendant or the property.

13. JUDICIAL POWER

The authority vested in courts and judges to hear and decide cases and to make binding judgments on them.

14. JUDICIAL REVIEW

A court’s power to review the actions of other branches or levels of government especially the court’s power to invalidate legislative and executive actions as being unconstitutional.

15. JURISDICTION

A government’s general power to exercise authority over all persons and things within its territory.

16. EXCLUSIVE JURISDICTION

A court’s power to adjudicate an action or class of actions to the exclusion of all other courts.

17. EXTRATERRITORIAL JURISDICTION

A court’s ability to exercise power beyond its territorial limits.

18.LIMITED JURISDICTION

Jurisdiction that is confined to a particular type of case or that may be exercised only under statutory limits and prescriptions. Also termed as special jurisdiction.

19. ORIGINAL JURISDICTION

A court’s power to hear and decide a matter before any other court can review the matter.

20. KNOCK AND ANNOUNCE RULE

The requirement that the police knock at the door and announce their identity, authority and purpose before entering a residence to execute an arrest or search warrant.

21. LAYING A FOUNDATION

Introducing evidence of certain facts needed to render later evidence relevant, material or competent. For example, propounding a hypothetical question to an expert is necessary before the expert may render an opinion.

22. LEADING QUESTION

A question that suggests the answer to the person being interrogated especially a question that may be answered by a mere “yes” or “no”. Leading questions are generally allowed only in cross-examination.

23. LEARNED TREATISE RULE

An exception to the hearsay rule, by which a published text may be established as authoritative, either by expert testimony or by judicial notice.

24. LEGAL CERTAINTY TEST

A test designed to determine whether the amount in controversy satisfies the minimum needed to establish the court’s jurisdiction.

25. LETTERS OF ADMINISTRATION

A formal document issued by a probate court to appoint the administrator of an estate.

26. LETTERS OF GUARDIANSHIP

A court order appointing a guardian to care for the well-being, property and affairs of a minor or an incapacitated adult. It defines the scope of the guardian’s rights and duties, including the extent of control over the ward’s education and medical issues.

27. LETTERS TESTAMENTARY

A Probate Court order approving the appointment of an executed under a will and authorizing the executor to administer the estate.

28. EXECUTION LIEN

A lien on property seized by a levy of execution. Such a lien gives the execution creditor priority over later transferees of the property and over prior unrecorded conveyances of interests in the property.

29. GARNISHMENT LIEN

A lien on a debtor’s property held by a garnishee. Such a lien attaches in favor of the garnishing creditor when a garnishment summons is served and also impounds any credits the garnishee owes the debtor so that they must be paid to the garnishing creditor.

30. JUDGMENT LIEN

A lien imposed on a judgment debtor’s non-exempt property. This lien gives the judgment creditor the right to attach the judgment debtor’s property.

31. LIS PENDENS

A pending lawsuit. The jurisdiction, power or control acquired by a court over property while a legal action is pending.

32. MIRANDA RULE

The doctrine that a criminal suspect in police custody must be informed of certain constitutional rights before being interrogated.

33. MORTGAGE

A conveyance of title to property that is given as security for the payment of a debt or the performance of a duty and that will become void upon payment or performance according to the stipulated terms.

34. EQUITABLE MORTGAGE

A transaction that has the intent but not the form of a mortgage and that a court of equity will treat as a mortgage.

35. MOTION

A written or oral application requesting a court to make a specified ruling or order.

36. EX PARTE MOTION

A motion made to the court without notice to the adverse party.

37.OMNIBUS MOTION

A motion that makes several requests or asks for multiple forms of relief.

38. MOTION FOR JUDGMENT ON THE PLEADINGS

A party’s request that the court rule in its favor based on the pleadings on file, without accepting evidence, as when the outcome of the case rests on the court’s interpretation of the law.

39. MOTION OF NEW TRIAL

A party’s post judgment request that the court vacate the judgment and order a new trial for such reasons as factually insufficient evidence or newly discovered evidence.

40. MOTION FOR SUMMARY JUDGMENT

A request that the court enter judgment without a trial because there is no genuine issue of material fact to be decided by a fact finder – that is, because the evidence is legally insufficient to support a verdict in the non-movant’s favor.

41. MOTION TO DISMISS

A request that the court dismiss the case because of settlement, voluntary withdrawal, or a procedural defect.

42. MOTION TO QUASH

A party’s request that the court nullify process or an act instituted by the other party, as in seeking to nullify a subpoena.

43. MOTION TO STRIKE

A party’s request that the court delete insufficient defenses or immaterial, redundant, impertinent or scandalous statements from an opponent’s pleading.

44. NEGATIVE PREGNANT

A denial implying its affirmative opposite by seeming to deny only a qualification of the allegation and not the allegation itself. An example is the statement, “I did not steal the money last Tuesday.” The implication being that the theft might have happened on another day.

45. NOLLE PROSEQUI

A legal notice that a lawsuit or prosecution has been abandoned.

46. NONJOINDER

The failure to bring a person who is a necessary party into a lawsuit.

47. NOTICE OF APPEAL

A document filed with a court and served on the other parties stating an intention to appeal a trial court’s judgment or order.

48. NOTICE OF APPEARANCE

A party’s written notice filed with the court or oral announcement on the record informing the court and other parties that the party wants to participate in the case.

49. OBJECTION

A formal statement opposing something that has occurred or is about to occur in court and seeking the judge’s immediate ruling on the point.

50. GENERAL OBJECTION

An objection made without specifying any grounds in support of the objection.

51. SPECIFIC OBJECTION

An objection that is accompanied by a statement of one or more grounds in support of the objection.

52. OFFER OF PROOF

A presentation of evidence for the record usually made after the judge has sustained an objection to the admissibility of that evidence, so that the evidence can be preserved on the record for an appeal of the judge’s ruling. An offer of proof, which may also be used to persuade the court to admit the evidence, consists of three parts: (1) the evidence itself; (2) an explanation of the purpose for which it is offered and (3) an argument supporting admissibility. Such an offer may include tangible evidence or testimony

53. INDISPENSABLE PARTY

A party who having interests that would inevitably be affected by a court’s judgment, must be included in the case. If such a party is not included, the case must be dismissed.

54. NECESSARY PARTY

A party who being closely connected to a lawsuit, should be included in the case if feasible, but whose absence will not require dismissal of the proceedings.

55. NOMINAL PARTY

A party to an action who has no control over it and no financial interest in its outcome especially a party who has some immaterial interest in the subject matter of a lawsuit and who will not be affected by any judgment, but who is nonetheless joined in the lawsuit to avoid procedural defects. An example is the disinterested stakeholder in a garnishment action.

56. PROPER PARTY

A party who may be joined in a case for reasons of judicial economy but whose presence is not essential to the proceeding.

57. REAL PARTY IN INTEREST

A person entitled under the substantive law to enforce the right sued upon and who generally, but not necessarily, benefits from the action’s final outcome.

58. PERPETUATION OF TESTIMONY

The means or procedure for preserving for future use witness testimony that might otherwise be unavailable at trial.

59. PERMISSIVE COUNTERCLAIM

A counterclaim that need not be asserted to be cognizable usually because it does not arise out of the same subject matter as the opposing party’s claim or involves third parties over which the court does not have jurisdiction. Permissive counterclaims may be brought in a later, separate action.

60. PERMISSIVE JOINDER

The optional joinder of parties if (1) their claims or the claims asserted against them are asserted jointly, severally or in respect of the same transaction or occurrence and (2) any legal or factual question common to all of them will arise.

61. PLAIN-VIEW DOCTRINE

The rule permitting a police officer’s warrantless seizure and use as evidence of an item seen in plain view from a lawful position or during a legal search when the officer has probable cause to believe that the item is evidence of a crime.

62. PLEA

An accused person’s formal response of “guilty”, “not guilty” or “no contest” to a criminal charge.

63. CONDITIONAL PLEA

A plea of guilty or nolo contendere entered with the court’s approval and the government’s consent, the defendant reserving the right to appeal any adverse determination on one or more pretrial motions. If an appeal is successful, the plea is withdrawn and a new one entered.

64. GUILTY PLEA

An accused person’s formal admission in court of having committed the charged offense.

65. PLEA BARGAIN

A negotiated agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty to a lesser offense or to one of multiple charges in exchange for some concession by the prosecutor, usually a more lenient sentence or a dismissal of other charges.

66. PLEADING

A formal document in which a party to a legal proceeding sets forth or responds to allegations, claims, denials or defenses.

67. SUPPLEMENTAL PLEADING

A pleading that either corrects a defect in an earlier pleading or addresses facts arising since the earlier pleading was filed.

68. PREPONDERANCE OF EVIDENCE

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

69. PRESUMPTION

A legal inference or assumption that a fact exists, based on the known or proven existence of some other fact or group of facts.

70. PRE TRIAL CONFERENCE

An informal meeting at which opposing attorneys confer, usually with the judge to work toward the disposition of the case by discussing matters of evidence and narrowing the issues that will be tried.

71. PRE TRIAL ORDER

A court order setting out the claims and defenses to be tried, the stipulations of the parties, and the case’s procedural rules, as agreed to by the parties or mandated by the court at a pre trial conference.

72. PRIVILEGE

A privilege grants someone the legal freedom to do or not to do a given act. It immunizes conduct that, under ordinary circumstances, would subject the actor to liability.

73. MARITAL PRIVILEGE

The privilege allowing a spouse not to testify and to prevent another person from testifying about confidential communications between the spouses during the marriage.

74. PRIEST – PENITENT PRIVILEGE

The privilege barring a clergy member from testifying about a confessor’s communications.

75. PROBANDUM

A fact to be proved.

76. PROOF

The establishment or refutation of an alleged fact by evidence; the persuasive effect of evidence in the mind of a fact-finder.

77. PROOF BEYOND REASONABLE DOUBT

Proof that precludes every reasonable hypothesis except that which it tends to support.

78. PUBLIC DOCUMENT

A document of public interest issued or published by a political body or otherwise connected with public business.

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

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