Like many other professions, the legal profession uses words, phrases and terms that are not used in general conversation. Below you can find definitions of commonly used legal terms and proceedings that may be relevant to your legal situation. For additional definitions or information see: http://dictionary.law.com/
We hope that this information can help answer your legal definition questions, however, if you have any questions regarding your case, legal terms or legal proceedings, please contact us or call our office at (650) 347-5010.
GENERAL LITIGATION AND COURT TERMS
Arbitrator: An Arbitrator is a neutral third party, generally an attorney or retired judge, who is agreed to by the parties to help resolve the case in Arbitration. The Arbitrator effectively occupies the same position as a Judge would at trial. The Arbitrator reads any Brief, exhibits or evidence submitted by any party and presides over the Arbitration hearing. Following Arbitration, the Arbitrator will make a decision and mail it to all parties.
Arbitration: Arbitration in a form of Alternate Dispute Resolution (ADR). Each Party submits an Arbitration Brief, or written arguments, to the Arbitrator along with any Exhibits or evidence prior to the Arbitration date. On the date of the Arbitration, the parties, along with their attorneys meet with the Arbitrator and present their case. Following the Arbitration, the Arbitrator will submit a decision to all parties.
Arbitration can be binding or non-binding. A Binding Arbitration means that the Parties are bound by the Decision of the Arbitrator and cannot reject the Arbitrator’s decision. Non-Binding Arbitration means that either Party may reject the Arbitrator’s decision and request a trial date with the Court.
Alternate Dispute Resolution (ADR): Alternate Dispute Resolution involves attempting to resolve a case without a Court trial or hearing. Forms of ADR include mediation and arbitration. Both arbitration and mediation involve the use of a specially trained ad neutral third party, generally an attorney or retired judge familiar with the area of law, who is assigned to help the parties resolve the case.
Case Management Conference (CMC): A Case Management Conference, often abbreviated as “CMC,” is a court-scheduled meeting between the parties to a case (ie: Plaintiff and Defendant) and a Judge. If a Party is represented by an attorney, the attorney attends the CMC. At the CMC, the parties and the Judge may discuss issues of the case, set a schedule for Alternate Dispute Resolution, or set a trial date.
Civil Lawsuit or Civil Action: A Civil action is a lawsuit filed and brought before the Court wherein the Plaintiff, (party claiming injury or damages), assets a claim for damages against the Defendant (party responding to claim of injury or damages).
Complaint: In a Civil action, the Complaint is a legal document filed with the Court that initiates the lawsuit. Generally the person or entity initiating the civil Complaint is called the Plaintiff and the person or entity responding to the Complaint is called the Defendant. Once the Defendant has been served with the Complaint, the Defendant is required to respond to the Complaint by filing a responsive pleading with the Court. There are several types of documents that can be filed including but not limited to an Answer or a Demurrer.
Answer: An Answer is filed with the Court in response to a Complaint and either generally responds to the allegations of the Complaint including admission or denials, and Affirmative Defenses where appropriate. Answers must be filed within the designated time period.
Affirmative Defenses: Affirmative Defenses are allegations that oppose the allegations of the Complaint or assert legal theories, including but not limited to: unclean hands, laches, contributory negligence, anticipatory breach, etc.
Ex Parte Application: An Ex Parte Application is an Application made to the Court in the absence of the other party or parties. Such an application is made for the benefit of the party bringing the Application only without Notice or challenge from any other party. For example, if a Plaintiff to a lawsuit cannot locate the Defendant to serve him/her, the Plaintiff will apply Ex Parte to the Court for an Order to allow service of the Defendant in the newspaper.
Mandatory Settlement Conference (MSC): A Mandatory Settlement Conference, often abbreviated as “MSC” is a court-scheduled conference between the parties to the lawsuit and their attorneys and a Judge. The MSC takes place at the Court. The purpose of the MSC is to attempt to resolve the case without having to go forward to trial. Each party is required to submit a Mandatory Settlement Conference Statement prior to the Conference which outlines their position.
Mediator: A Mediator is a neutral third party, generally an attorney or retired judge, who is agreed to by the parties to help resolve the case. The Mediator will review any Briefs, Exhibits or evidence submitted by any party. At a Mediation, the Mediator will move between the parties, discuss the pros and cons of each position and help the parties move toward a mutually agreeable resolution.
Mediation: Mediation is a form of Alternate Dispute Resolution. Each Party submits a Mediation Brief, or written arguments to the Arbitrator along with any Exhibits or evidence prior to the Mediation date. At Mediation, each party’s attorney generally makes an opening statement and then the parties are separated into different rooms. The Mediator meets with each party and their attorney individually. The Mediator will move between the parties, discuss the pros and cons of each position and help the parties move toward a mutually agreeable resolution.
Motion: A Motion is generally a document, called a Motion, which is filed with the Court asking for the Court to rule on a specific issue related to a case. Generally, a Motion will be given a Motion Hearing date (see below). The party requesting the Court to rule on the Motion is called the Movant or Moving Party. Generally, if a Motion is filed by one party, the other parties may prepare and file an Opposition to the Motion. The Moving Party then can make a Reply to Opposition. (See also: Motion Hearing, Opposition, Reply, Tentative Ruling).
Discovery Motions: There are multiple types of discovery motions, including, but not limited to: Motion to Compel Production of Documents, Motion to Compel Responses, Motion to Have Admissions Deemed Admitted. Each of these Motions is intended to require the party to whom the discovery requests were sent either to respond to the discovery requests if they have failed to do so, or to have the issues raised in the discovery responses found to be determined against them.
Motion for Summary Judgment: A Motion for Summary Judgment is a very involved and labor intensive motion, both for the party bringing the Motion and the party responding to it. A Motion for Summary Judgment is a request that a Judge make a ruling on the entire case, or some pivotal issue, without a trial on the merits. The Motion must be supported by evidence and a statement of undisputed facts.
Motions in Limine: Motions in Limine are motions made prior to trial. These motions generally seek to have evidence or testimony that is prejudicial to the party bringing the Motion excluded from the trial. The Judge will generally rule on these motions prior to commencing the trial.
Motion Hearing: A Motion Hearing is a Court hearing before a Judge. A Party may make a Motion to resolve a specific issue related to a case. The Court will set the Motion for a Hearing date. On the hearing date the attorneys for each party will appear and argue their position to the Judge. The Judge will make a ruling following the hearing. The ruling will be binding on all parties. (See also Motion, Opposition, Reply, Tentative Ruling).
Opposition: If a Party to a case makes a Motion and another Party disagrees with the Motion, that Party will file an Opposition with the court outlining their position and the reasons they believe the request made in the Motion is not correct. (See also: Motion, Motion Hearing, Reply).
Party: A Party is a person or entity who is directly involved in a legal proceeding, transaction or contract. For example the Party who files a Complaint in a legal action is generally called the Plaintiff and the Party sued is called the Defendant.
Reply: Following the filing of a Motion, the opposing party may file an Opposition to the Motion. After receiving the Opposition, the original moving party may file a Reply to the Opposition which addresses the issues raised in the Opposition. (See also: Motion, Motion Hearing, and Opposition)
Trial: A trial is a formal judicial examination of a case. A trial may either be a Bench Trial of a Jury Trial. Generally, for a trial each arty will prepare a Trial Brief outlining their position on the case, Motions in Limine, Trial Exhibits (evidence), and a Witness List. All parties to a case must be present at Trial. The attorneys will generally make an opening statement to the Court and then put witnesses on the stand to testify and present evidence. Once each side has presented all their witnesses and evidence, the Trial will be concluded and the Judge or Jury will deliberate and return to the parties with a Verdict.
Bench Trial: For a Court Trial (or Judge Trial), the Judge will decide all questions of fact and law for the case. The Judge will hear all witnesses and receive the evidence. The Judge will then deliberate and return a verdict.
Jury Trial: For a Jury Trial, the appointed Jury will weight the evidence and witness testimony and decide all questions of fact while the Judge will decide all questions of law.
Tentative Ruling: A Tentative Ruling is a ruling made by a Judge before the hearing date for a Motion. Generally, the Tentative Ruling is available the day prior to the hearing. If any party to the case does not agree with the Tentative Ruling, that party must notify all other parties and the Court that they intend to appear at the motion hearing and oppose the Tentative Ruling. If no party opposes the Tentative Ruling, the Tentative Ruling will become final and all parties will be bound by it.
Deeds: There are different types of Deeds. In real property issues, a Deed is written legal document that conveys a right to ownership of Property from the old owner, or Grantor to the new owner, or Grantee.
Quitclaim Deed: A Quitclaim Deed transfers or relinquishes any interest of the Seller to the Buyer, regardless of the size of the Seller’s interest. This type of Deed is less secure that a General Warranty Deed because there is no guarantee from the Seller to the Buyer that there are no liens or encumbrances on the Property.
General Warranty Deed: A General Warranty Deed transfers or relinquishes any interest of the Seller to the Buyer with the additional assurance that the Property is unencumbered. Specifically this means that there are no encumbrances or liens attached to the Property. This is a safer type of transfer than a Quitclaim Deed because it ensures that the title is clear and also because it provides for specific remedies for the Buyer if there are any encumbrance issues.
Default: In a real property setting, a Default occurs when a person or entity with a loan fails to make payments as they come due or violates some other of the loan covenants. Default of mortgage payments can lead to a foreclosure proceeding.
Encumbrance: An Encumbrance is legal term used to identify anything that may limit or affect the title of real property. Types of encumbrances include, but are not limited to: mortgages, leases, easements or liens.
Foreclosure: A Foreclosure is a legal proceeding wherein the mortgagee (or other lien holder), obtains a Court Order that terminates the mortgagor’s equitable right of redemption. If a foreclosure is granted by the Court, the Mortgagee can repossess the Property.
Lien: Generally, a lien in a real property matter refers to a security interest, either recorded or unrecorded on the title of real property, used to secure payment of a debt or loan. A lien can include any type of encumbrance or mortgage or some other type of debt or loan secured by real property.
Lis Pendens: Lis Pendens is a Latin term meaning “suit pending.” In the real estate setting, it is a public notice recorded in the same location as the title to real property. The Lis Pendens secures the holder’s claim on the real property so that a mortgage, sale or other encumbrance will not diminish the holder’s rights. The holder must still prevail on their case in order to collect the claim amount,
Mechanic’s Lien: In a real estate matter, a Mechanic’s Lien is a security interest in recorded against the title of real property for the benefit of the person or entity who provided labor, materials or supplies that improved the real property but was not paid for said labor or materials. Once recorded, a lawsuit must be filed to enforce the Mechanic’s Lien.
Mortgage: A Mortgage is the transfer of interest in real property from the real property owner to a lender as security for a debit, generally a loan of money.
Beneficiary: Beneficiary is a term of broad use. This term covers any person or entity that is designated to receive assets or profits from an estate, trust or insurance policy.
Bequest: Bequest is a general term uses to describe a gift of personal property under a Will. There are different types of Bequests including: (1) Specific, (2) Conditional, (3) Executory, and (4) Residual. Specific Bequests designate a specific item of property to a specific person. Conditional Bequests rely on the occurrence or non-occurrence of an event prior to the death of the testator. Executory Bequests are rely on the occurrence of a future event. Residual Bequests are those that are made after all Specific Bequests have been distributed.
Trusts: Generally, a Trust is a legal arrangement whereby a person or entity, the Trustor manages property, including real property, intangible property, etc., for the benefit of another person or entity, the Beneficiary. The person/entity designated to manage the Trust is a Trustee. The Trustee holds the legal title to the property in the Trust but has a fiduciary and legal obligation to hold and administer the Property in the Trust for the benefit of the beneficiary. There are many different types of trusts, including but not limited to: Living (Inter Vivos) Trusts, Constructive Trusts and Testamentary Trust. Trusts can either be revocable or irrevocable.
Wills: Generally, a Will is a document whereby a person, the Testator, names a person(s), the Executor/Executrix, to manage his/her estate upon his/her death. A Will provides for the transfer of Property or other assets to specific persons or entities by way of a Bequest. A popular Will for use in conjunction with a trust is a “pour-over will.” A “pour-over will” provides for all property owned by the Testator upon his/her death that is not in the Testator’s Trust to “pour-over” into the Trust upon the Testator’s death.
Bankruptcy: When a person’s debts and liabilities exceed their ability to pay the obligations, Bankruptcy is a federal system which allows the person (Debtor) to place his/her financial affairs under the control of the Bankruptcy Court. There are several types of Bankruptcy filings available depending on the Debtor’s financial condition. The three main types of filing are Chapter 7, Chapter 11, and Chapter 13.
Debtor: A Debtor is the person or entity whose financial affairs are the subject of the bankruptcy.
Adversary Proceeding: An Adversary Proceeding is a Complaint filed by a Plaintiff against a Defendant in the Bankruptcy Court.
Trustee: The Trustee in a Bankruptcy Proceeding is the person appointed by the Court to supervise the affairs of the Debtor, to identify assets and debts, marshall assets and report to the Court.