4.3

Terms for Civil Liability

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INTRODUCTION

Take a deep breath, because here we go!



Paralegal Perspectives . . .

TALKING LIKE A LAWYER Being able to understand the "legalese" in a law firm will make more of a difference in your comfort level than you think. It's also important that the terms and phrases be taught in the context in which they would be used. Instead of just providing a dictionary of terms listed alphabetically, the manual tells you a story of a legal matter, and defines the terms in the context of that story.



Lecture Notes . . .

Civil Liability The majority of terms in the Essential Skills for Paralegals manual are found under civil liability. There are two reasons for this. First, most paralegals will engage in civil paralegal practice as opposed to criminal. Second, most of the terms defined under Civil Liability are transferable to Criminal Liability, and are not repeated there. For instance, the term Court is applicable to both civil and criminal law. But it would be redundant to define that term both here, and later in the Criminal Liability portion of the terms.

The italicized portions of the text in this section of the manual details the story of the Near-sighted Owl. The terms or phases in bold face are then defined following the story.

Now, a few comments about some of the terms in this section:

Civil Law
Civil law differs from criminal law in two major facets. First, the entity that seeks court action in civil law is the individual that was damaged, whereas in criminal cases, the government (also called the state) pursues the court action. Second, a violation of civil law does not hold the penalty of jail time. Only a violation of criminal law may be punished by imprisonment.

Damages
To a lawyer, damages means dollar signs! Think money!

Doctrine
A doctrine is a line of legal thinking that a series of courts follows even though it is not statutory in nature. In other words, no legislature has passed a law regarding the subject matter contained in the doctrine.

For instance, for many years state legislatures did not have laws specifically relating to dog bites, or had laws that did not contemplate certain circumstances. One question that would often come up was whether a dog owner should be held liable for a bite his or her dog inflicts on a person, when there had never been an indication that the dog had an aggressive nature, and had never bitten anyone before. Courts began ruling that owners under such circumstances could not be held accountable, since they had no "notice" as to the dog's aggressive tendencies. They could, however, be held accountable for any subsequent bites.

This is often referred to as the Doctrine of First Bite Free. Many courts follow this doctrine in their opinions. Some state legislatures have codified the doctrine. A few have passed laws "in derogation of the common law." This means they have specifically passed laws instructing the courts not to follow the First Bite Free Doctrine. As we will see later, statutes can supersede opinions of the court.

Venue
The venue is the physical location of the trial. It is often confused with jurisdiction, which will be discussed later. While the venue is usually within the jurisdiction of the court, in unusual cases the venue can be changed to another location, such as when too much publicity makes a fair trial impossible. In such a case, the venue may be changed, but the jurisdiction remains with the same court.

Diversity of Citizenship
If a person from Boston gets in an accident in New York with a person from New York, the Bostonian may be concerned that the court in New York would rule in the New Yorker's favor. (Probably a Yankee fan!) If the amount being sought is in excess of $75,000 the Bostonian can have the matter heard in federal court instead of the state courts in New York. The federal judges are considered to be of higher quality than state judges, and are not paid by the state, but by the federal government. One interesting aspect is that the federal court will then apply the laws of New York.

Cause of Action
Also called a Claim for Relief, the Cause of Action must exist in order to sue. (To sue is to file civil litigation.) The cause of actions in a complaint are the specific facts that are going to be alleged at trial. They are not proven in the complaint. The proving of the alleged facts will occur at trial.

Pleading
The following are pleadings:

- Complaint
- Answer
- Affirmative Defense
- Counterclaim
- Cross Claim (Third Party Complaint)
- Reply

A pleading states a party's position in litigation. For instance,

- the Complaint says the Defendant harmed the Plaintiff.
- the Answer is the Defendant responding, "No, I didn't!"
- the Affirmative Defense is the Defendant saying, "Nobody can be blamed."
- the Counterclaim is where the Defendant says, "The Plaintiff hurt me!"
- the Cross Claim is the Defendant saying, "It wasn't my fault. It was someone else's fault!"
- the Reply is the Plaintiff responding to the Counterclaim, saying, "I didn't hurt the Defendant!"


Ad Damnum Clause
This is the part of the complaint that tells the court what it is exactly that the party is asking the court to do. You will learn much more about this when you draft a complaint later in the program.

Service of Process
When an attorney says process, he or she means "Summons and Complaint." So, when a lawyer asks whether process has been served, s/he is asking whether the summons and complaint have been delivered to the Defendant. So understand this: Process = Summons and Complaint.

Personal Service
If a Defendant is served with legal documents, such as the summons and complaint, in person, it is, obviously, personal service.

If a Defendant has a person or company that has been hired to accept service for him/her/it, that is called substitute service. The person or company that accepts service is usually called a registered agent or resident agent. Most companies have registered agents. You can find the registered agent for a company by contacting the Secretary of State's office. The company must list the registered agent on its Articles of Incorporation.

Jurisdiction
This is the legal power a court has to determine the outcome of a legal dispute. Venue is the physical location of the trial. The address.

In personam jurisdiction
If either party lives in the authorized area of the court in question, that court could hear the case through in personam jurisdiction.

In rem jurisdiction
If the property exists, or the controversy occurred within the authorized area of the court, it can hear the matter under in rem jurisdiction.

Quasi in rem jurisdiction
This kind of jurisdiction is usually invoked in order to help a party who has won a judgment obtain damages awarded by the court. For instance, if the person who lost at trial (called the judgment debtor) owes $100,000, but has no money to pay the judgment, any property owned by the judgment debtor could be attached by the court. If the property is outside the jurisdiction where the original trial took place, the winner at trial (called the judgment creditor) would have to file a motion in the county where the property was. That court would not have in personam jurisdiction since neither party lived in the county, and would not have in rem jurisdiction since the controversy occurred in a different county. The court would, however, have quasi in rem jurisdiction, which is jurisdiction over the property even though the property was not the original controversy.

Lis Pendens
A paralegal may at some point be asked to file a notice with the county that a property may be the subject of a lien if a pending litigation is successful. While this does not technically prevent the sale of property, anyone buying the property is on notice that it may be seized as a result of that litigation.

Lien
Once a judgment is obtained, a lien may be attached to the title preventing its sale or transfer.

Affirmative Defense
An affirmative defense is usually found in the Answer, but is considered a separate legal entity. You will learn much more about it when you draft an Answer later. While it is being referred to here as a pleading, it is different from other pleadings in that it could never be a separate, stand-alone document. But there is no where else to classify it, so consider it a pleading.

Motion
If you are confused about the difference between a motion and a pleading, it means you are understanding both! That's because they are very similar. As a paralegal, you will rarely need to know the difference. But if you want to know, here is the answer:

A pleading states a party's position in the litigation, while a motion is a request to the court to attend to a procedural matter involving the trial. Some common motions include:

-Motion for Dismissal With Prejudice
-Motion for Dismissal Without Prejudice
-Motion to Enlarge (or Motion to Extend)
-Motion for Summary Judgment
-Motion in Limine
-Motion to Compel Discovery
-Motion for Directed Verdict
-Motion for Oral Arguments
-Motion for Judgment NOV


Basically, if it says "motion," it's a motion!

Litigation
The process of going to trial. While a litigation attorney may practice in both criminal and civil courts, the majority of litigation attorneys practice civil law.

Discovery
Very important. Discovery is basically a fact-finding tool. Almost part of investigation. The goal is to lay out all relevant facts before going to trial. Discovery also encourages settlement, because after all the facts have been laid out, the parties are more likely to know how they might fare at a trial. While pleadings are filed with the court, discovery documents are usually not filed. The discovery responses may be used as an exhibit later at trial, however.

You will be preparing discovery documents later in the course, but for now you need to know the definition of discovery and the five tools of discovery:

-Interrogatories
-Request for Admissions
-Request for Production of Documents
-Request for Mental or Physical Examination
-Depositions


At this point you do not need to know the detailed definitions for the above discovery tools. You will study these tools at greater length later in the manual.

Certificate of Mailing
This is a simple paragraph at the end of many pleadings, motions, and discovery documents that states which other parties have been sent copies of the document. Click here to view an example within a set of interrogatories and go to the very end of the document.

Privilege
Some examples of privileges include:

-Self Incrimination (5th Amendment)
-Attorney/Client
-Doctor/Patient
-Governmental Information
-Husband/Wife (Spousal Communications)

Note that there is no Paralegal/Client privilege. The only communication protected is that deriving from the Attorney/Client privilege. This means that as long as the communication occurred within the scope of the paralegal performing his/her job under the supervision of an attorney, the paralegal can not be forced to testify as to that communication.

Judgment
This is the final determination of the court. It is usually the last act during the trial phase.

Motion for Summary Judgment
There are three motions that do basically the same thing: They ask the judge to decide the case instead of the jury. The difference between the three motions is when they occur. Those motions are:

-Motion for Summary Judgment (Pretrial)
-Motion for Directed Verdict (Trial)
-Motion for Judgment NOV (Post Trial)

We will study the last two later. A Motion for Summary Judgment asks the court to determine that since no material (relevant) facts are disputed by parties, there is no need for a jury (which determines facts). And since there is no need for a jury, the court may apply the law without the need of a trial.

Evidence
Don't worry too much about these terms at this point. Later chapters deal with Evidence and Investigation, and these terms will be discussed much more thoroughly later on.

Stipulation
Stipulations make a trial more efficient. They mean that the parties do not have to call witnesses or present evidence as to those facts agreed upon. In many cases, it is frustrating to the court that parties do not stipulate to more facts.

Voir dire (Pronounced: Vwaw-deer)
Voir dire can mean two things: Jury selection, or the questioning of a potential witness. Here we discuss Jury selection.

Once there is a jury panel, the jurors will be selected from that panel. The questioning eliminates undesirable jurors. There are two ways to keep a panel member off the jury: Challenges for Cause, which means that there is a valid reason to keep the person off the jury, and Peremptory Challenge, where the attorney can keep a person off the jury without having to provide a reason.

Challenges for Cause are unlimited. Peremptory Challenges are limited in number. Typically 3 or 6, but each side gets the same amount unless the court determines there is just cause to award more to one side or the other.

Burden of Proof
The burden is on the plaintiff in a civil trial, and the prosecutor in a criminal trial. The burden of proof in a civil trial (preponderance of the evidence) is less than the burden of proof in a criminal trial (beyond a reasonable doubt).

Probative Value
If the probative value (informative value) of a piece of evidence is outweighed by the prejudicial effect, the evidence should not be admitted. For instance, if a photograph of a sexual abuse case showed the result of the abuse, but did not help to establish the person who caused the abuse, the prejudicial effect would probably outweigh the probative value and should not be admitted. The theory is that the jury would want to punish someone for what happened to the victim.

Admissible Evidence
To be considered by a jury, evidence must be admissible. Being relevant is not enough. Even if a piece of evidence is relevant, there are circumstances that can make the evidence inadmissible. For instance, if the evidence was obtained illegally, or if there is a privilege that would prevent its admission, the jury will not be allowed to consider it.

Preserving the Record and Preserving the Right of Appeal
Objections by an attorney at trial are very often an effort to preserve the record thereby preserving the right to later appeal.

Competency and Examination
Don't worry too much about these terms now. They will be covered in greater detail when we get to later chapters.

Proximate Cause
Where proximate cause lies, there lies liability. When you go to court in civil litigation, the question is usually, "What was the proximate cause of the damages?"

Related Term: Doctrine of Last Clear Chance
This doctrine holds that the person who had the last clear opportunity to avoid the damages is the most liable. For instance, in a car accident case involving a drunk driver, if a police officer pulled the driver over a few minutes before the accident and failed to give a breath test, the claim could be made that the officer, and therefore the city, had the "Last Clear Chance" to avoid the damages, and is therefore liable.

Strike from the record
Of course the problem with a judge striking something from the record is that the jury has already heard the information. In other words, "You can't un-ring a bell."

Move
Motion is a noun. A document. Move is a verb. A motion moves that something be done by the court.

Prima Facie Case (Pronounced: prime-uh faysh-uh)
The best definition I have heard of a prima facie case is: No gaps. If the facts being alleged are eventually proven at trial those facts would contain no gaps in the claim being alleged and the Plaintiff would deserve to be awarded damages.

Motion for Directed Verdict
As mentioned earlier, this is similar to a Motion for Summary Judgment, but it occurs during the trial. In essence, however, they do the same thing. They ask the judge to decide the case without consulting the jury.

Voir Dire (for witnesses)
Sometimes an attorney wants to question a potential witness to determine whether the individual is competent to testify as an expert. Sometimes the witness is voir dired in order to limit the questions that will be asked of that witness once the jury is present. Most common for expert witnesses.

Motion for Judgment NOV
NOV stands for Non Obstante Verdicto. (You don't have to know that!) It means "not withstanding the verdict" or "in spite of the verdict." Each letter of NOV is pronounced. In other words, Judgment N.O.V.

Additur and Remittitur
Some would consider this judicial extortion (at least the losing side would!) The court says to one of the parties, "I've got an offer you can refuse, but if you do, the other side gets a new trial!"

Notice of Appeal
In every case there is one automatic right of appeal. Generally, the loser may ask the next highest court to determine whether the trial court erred (made a mistake). The document that is filed is the Notice of Appeal. Examine the word "Notice." The person appealing is not asking for permission, but is "noticing," or informing, the court that s/he is appealing. The person appealing is not asking for the court's approval.

After that appeal, any subsequent appeal must be granted by the next highest court. As we will see later, the document which requests the second appeal is the Writ of Certiorari.

Record
In order to appeal, the appellate level court must be able to review the transcripts from the trial, the evidence, the motions, the pleadings, and the exhibits. This material is collected by the court and is called the record. When a party appeals, the record must be "transmitted," (in other words, sent) to the appellate level court. It is usually the responsibility of the appealing party to ensure that the record is transmitted in a timely manner.

Res Judicata
This is the civil equivalent of double jeopardy. A party who has been sued and won at trial may not be sued again over the same legal matter.

Appeal
As mentioned previously, in every case there is one automatic right of appeal. Either party has the right to have a higher court review the decision of the trial court to make sure the trial was fair and the outcome appropriate.

Appellant or Petitioner and Appellee or Respondent
Know these terms! The titles are important! The appellant appeals because either he lost at trial, or he won but the amount of money awarded was not sufficient.

En banc and Panel of justices (or judges)
If the appellate level court thinks the matter is of importance, or is a new area of law, the entire court will hear the case (en banc). If the issues presented on appeal have been dealt with by the court before, the case will probably be heard by a portion of the court, usually three judges (a panel of justices).

En banc is pronounced: en bank

Opinion
When the court provides a written decision for publication in a report or reporter, it is called an opinion. There are three kinds of opinions: Majority, Concurring, and Dissenting. Some cases will only have a majority opinion. Some will have the majority and one of the other forms of opinions, as well. Some will have all three. But it is the majority opinion that has the force of law. When researching, it is the majority opinion that matters.

Petition
A petition can be a verb or a noun. When an attorney petitions the court, s/he is asking the court to take some action (similar to a pleading or motion). Or the attorney can file a Petition with the court. (For example: a Petition for Adoption.)

Petition for a Writ of Certiorari
Pronounced: sersh-or-are-ee
The document that asks permission to appeal. Closely related to the Notice of Appeal, the Writ of Cert (as it is often called) could be thought of as a Request to Appeal.

Bonus Terms
There are three terms mentioned later in the manual, or are briefly covered on this site, that you may want to be aware of. They are:

Interlocutory Appeal
This is an appeal during or before the trial. While a regular appeal asks the court to review the final decision of the court, an interlocutory appeal asks the court to rule on a single procedural issue, usually a ruling by the trial court regarding the admission of evidence. The party wanting to engage in an interlocutory appeal must ask the trial court's permission to do so. It is a fairly rare maneuver and is a step usually taken only when the evidence in question is crucial to the case.

Impeach
When an attorney asks questions of a witness aimed at discrediting that witness's earlier given testimony. Note that an attorney is usually prevented from attempting to impeach his or her own witness.

Motion in limine
This is a motion requesting that information which might be prejudicial not be allowed to be heard in a case. It is not arguing that the evidence is irrelevant, but that its relevance is outweighed by its prejudicial effect.

Please note that these are fair game for exams!

An interesting note about Settlements
Ninety-seven percent of complaints filed in court never get to trial. Think about it. That means the overwhelming majority of cases are settled, dismissed, or dropped during the pretrial stage. During what stage is the paralegal most involved? That's right: Pretrial! You are just as likely as a paralegal to affect the success of your client's case whether it goes to trial or not. In fact, the better job you do, the stronger your client's position will be during the settlement process!



Commonly Asked Questions

OK! Review the Commonly Asked Questions, try some exercises. Then let's move on to Criminal Liability!



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Exercises
Civil Terms 1 | Civil Terms 2 | Civil Terms 3 | Civil Terms 4 | Civil Terms 5 | Civil Terms 6