Power of Words Power of Words Of words and words that fill my mind. Thursday, February 18, 2016 Legal Terms and Definitions (Legal Technique and Logic) Our first discussion in Legal Technique and Logic was definition of legal terms. I tried looking up for a comprehensive guide on the internet, but failed. So, to help future law student and non-law students as well, I kept the list that I made. These are collaborated definitions from various sources, both print and online. Good luck! Hope you will learn something. --ADMISSION The order of a competent court or magistrate that a person accused of crime be discharged from actual custody upon the taking of bail. The act by which attorneys and counsellors become recognized as officers of the court and are allowed to practice. Admission or concession by a party in pleading or as evidence. **The term "admission" is usually applied to civil transactions and to those matters of fact in criminal cases which do not involve criminal intent, while the term "confession" is generally restricted to acknowledgments of guilt.

An "admission" as applied in criminal cases is the avowal of a fact or of circumstances from which guilt may be inferred, but only tending to prove the offense charged, and not amounting to a confession of guilt. Direct, called also express, admissions are those which are made in direct terms. Implied admissions are those which result from some act or failure to act of the party. Incidental admissions are those made in some other connection, or involved in the admission of some other fact. Judicial admissions are those made in court by a person's attorney for the purpose of being used as a substitute for the regular legal evidence of the facts at the trial. The acknowledgment or recognition by one party of the truth of some matter alleged by the opposite party, made in a pleading, the effect of which is to narrow the area of facts or allegations required to be proved by evidence. --ADVERSE PARTY to notice of appeal is every party whose interest in relation to the judgment or decree appealed from is in conflict with the modification or reversal sought by the appeal. Every party interested in sustaining the judgment or decree. A party who, by the pleadings, is arrayed on the opposite side.

A written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before an officer having authority to administer such oath. that the defendant has a good defense to the plaintiff's action on the merits. The statements required in such an affidavit vary considerably in the different states where they are required. --AFFIRMATIVE DEFENSE In code pleading. New matter constituting a defense; new matter which, assuming the complaint to be true, constitutes a defense to it. --ALLEGATA ET PROBATA Lat. Things alleged and proved. The allegations made by a party to a suit, and the proof adduced in their support. --AMICUS CURIAE A by-stander (usually a counsellor) who interposes and volunteers information upon some matter of law in regard to which the judge is doubtful or mistaken. Also a person who has no right to appear in a suit but is allowed to introduce argument, authority, or evidence to protect his interests. --ANSWER As a verb, the word denotes an assumption of liability, as to "answer" for the debt or default of another.

Strictly speaking, it is a pleading by which defendant in suit at law endeavors to resist the plaintiff's demand by an allegation of facts, either denying allegations of plaintiff's complaint or confessing them and alleging new matter in avoidance, which defendant alleges should prevent recovery on facts alleged by plaintiff. Defense in writing, made by a defendant to the allegations contained in a bill or information filed by the plaintiff against him. In general terms a resort to an upper court or tribunal. A rehearing by a superior court on both law and fact, a process of civil law origin, and the usual and appropriate mode of review for cases originating in a court of equity. The removal of a cause from a court of inferior to one of superior jurisdiction, for the purpose of obtaining a review and retrial. --APPEARANCE Apparitio in judicio, an appearance in court. --ARRAIGNMENT In criminal practice. To bring a prisoner to the bar of the court to answer the matter charged upon him in the indictment. In criminal practice. To bring a prisoner to the bar of the court to answer the matter charged upon him in the indictment and demanding of him whether he be guilty or not guilty, and entering his plea.

--BURDEN OF EVIDENCE Connotes the burden of going forward with the evidence or that logical necessity which rests on a party at any particular time during the trial to create a prima facie case in his favor, or to overthrow one when created against him. Burden of evidence refers to the duty of a party to proceed with evidence at the beginning, or at any subsequent stage, of the trial, in order to make or meet a prima facie case. --BURDEN OF PROOF (Lat. onus probandi.) In the law of evidence. The necessity or duty of affirmatively proving a fact or facts in dispute on an issue raised between the parties in a cause. The obligation imposed upon a party who alleges the existence of a fact or thing necessary in the prosecution or defense of an action to establish it by proof. Under the Rules, it is the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law. It means the burden of establishing a case, whether by a preponderance of the evidence, or beyond a reasonable doubt, or by substantial evidence.

--CAPACITY TO ACT Capacity to act, which is the power to do acts with legal effect, is acquired and may be lost. The ability, capability, or fitness to do something; a legal right, power, or competency to perform some act. An ability to comprehend both the nature and consequences of one's acts. --CASE AT BAR Before the court. The case now before the court and under its consideration; the case being tried or argued. --CASE AT BENCH A seat of judgment or tribunal for the administration of justice; the seat occupied by judges in courts; also the court itself, or the aggregate of the judges composing a court, as in the phrase "before the full bench." --CHOSE IN ACTION A personal right not reduced into possession, but recoverable by a suit at law. A right to personal things of which the owner has not the possession, but merely a right of action for their possession. A right to receive or recover a debt, demand, or damages on a cause of action ex contractu or for a tort or omission of a duty. --CIVIL ACTION An action wherein an issue is presented for trial formed by averments of complaint and denials of answer or replication to new matter.

An adversary proceeding for declaration, enforcement, or protection of a right, or redress, or prevention of a wrong. A personal action which is instituted to compel payment, or the doing of some other thing which is purely civil. --CIVIL CONTEMPT A civil contempt is not an offense against the dignity of the court, but against the party in whose behalf the mandate of the court was issued, and a fine is imposed for his indemnity. --CIVIL LIABILITY The amenability to civil action as distinguished from amenability to criminal prosecution. A sum of money assessed either as general, special or liquidated damages, eithersingle, double or treble for violation such as overcharges. --CIVIL OBLIGATION One which binds in law, and may be enforced in a court of justice. --CLASS SUIT One in which one or more members of a class sue either for themselves or for themselves and other members of a class. A "class action" lawsuit is one in which a group of people with the same or similar injuries caused by the same product or action sue the defendant as a group. --CLEAN HANDS DOCTRINE Equitable relief may be denied on ground of deceit or impurity of motive.

HE WHO COMES INTO A COURT OF EQUITY MUST COME WITH CLEAN HANDS. A rule of law that a person coming to court with a lawsuit or petition for a court order must be free from unfair conduct (have "clean hands" or not have done anything wrong) in regard to the subject matter of his/her claim. His/her activities not involved in the legal action can be abominable since it is considered irrelevant. --COMPLAINT In those states having a Code of Civil Procedure, the complaint is the first or initiatory pleading on the part of the plaintiff in a civil action. Its purpose is to give defendant information of all material facts on which plaintiff relies to support his demand. In criminal law. A charge, preferred before a magistrate having jurisdiction, that a person named (or an unknown person) has committed a specified offense, with an offer to prove the fact, to the end that a prosecution may be instituted. --CONCLUSIVE PRESUMPTION A conclusive presumption, called also an "absolute" or "irrebuttable" presumption, is a rule of law determining the quantity of evidence requisite for the support of a particular averment which is not permitted to be overcome by any proof that the fact is otherwise.

It is an inference which the court will draw from the proof, which no evidence, however strong, will be permitted to overturn. --CONFESSION AND AVOIDANCE A plea in confession and avoidance is one which avows and confesses the truth of the averments of fact in the declaration, either expressly or by implication, but then proceeds to allege new matter which tends to deprive the facts admitted of their ordinary legal effect, or to obviate, neutralize, or avoid them. Any act which is calculated to embarrass, hinder, or obstruct court in administration of justice, or which is calculated to lessen its authority or its dignity. Committed by a person who does any act in willful contravention of its authority or dignity, or tending to impede or frustrate the administration of justice, or by one who, being under the court's authority as a party to a proceeding therein, willfully disobeys its lawful orders or fails to comply with an undertaking which he has given. --COSTS (OF SUIT) A pecuniary allowance, made to the successful party, (and recoverable from the losing party,) for his expenses in prosecuting or defending a suit or a distinct proceeding within a suit.

Fees and charges required by law to be paid to the courts or some of their officers, the amount of which is fixed by law. --CRIMINAL ACTION The proceeding by which a party charged with a public offense is accused and brought to trial and punishment is known as a "criminal action." A criminal action is (1) an action prosecuted by the state as a party, against a person charged with a public offense, for the punishment thereof ; (2) an action prosecuted by the state, at the instance of an individual, to prevent an apprehended crime, against his person or property. --CRIMINAL CONTEMPT Criminal contempts are acts done in disrespect of the court or its process or which obstruct the administration of justice or tend to bring the court into disrespect. Criminal contempts are offenses or injuries offered to the court, and a fine or imprisonment is imposed upon the contemnor for the purpose of punishment. --CULPA AQUILIANA It is defined under Article 2176 of the Civil Code as the fault or negligence of a person, whether by act or omission, that causes damage to another, if there is no pre-existing contractual relation between the parties.

However, Article 2176 of the Civil Code is limited to negligent acts or omissions and excludes the notion of willfulness or intent. It is the wrongful or negligent act or omission which creates a vinculum juris and gives rise to an obligation between two persons not formally bound by any other obligation. Quasi-delict, known in Spanish legal treatises as culpa aquiliana, is a civil law concept while torts is an Anglo-American or common law concept. --CULPA CONTRACTUAL It is the fault or negligence incident in the performance of an obligation which already existed, and which increases the liability from such already existing obligation. --CUSTODIA LEGIS In the custody of the law. In general, when things are in custodia legis, they cannot be distrained, nor otherwise interfered with by a private person. A thing is in custodia legis when it is shown that it has been and is subjected to the official custody of a judicial executive officer in pursuance of his execution of a legal writ. Only when property is lawfully taken by virtue of legal process is it considered in the custody of the law, and not otherwise. --DECISION As a generic term, decision refers to both administrative and judicial determinations.

It includes final judgments, rulings, and inter-locutory or provisional orders made by the court pending the outcome of the case. Frequently, a decision is considered the initial step in a rendition by a court of a judgment in an action. When referring to judicial matters, a decision is not the same as an opinion, although the terms are sometimes used interchangeably. A decision is the pronouncement of the solution of the court or judgment in a case, while an opinion is a statement of the reasons for its determination made by the court. --DISPOSITIVE PORTION Refers to something that settles a conflict or resolves a situation once and for all. A fact or point of law which brings about the settlement of a contested issue. In the context of an appeal, where the appellate court seizes upon a dispositive issue on which they would allow the appeal for example, they may then decline to address the other issues because their one finding is conclusive in any event as to the appeal being successful and a return to the lower courts for a re-analysis; dispositive. --DISPUTABLE PRESUMPTION A presumption of law, which may be rebutted or disproved.

A species of evidence that may be accepted and acted upon when there is no other evidence to uphold contention for which it stands; and when evidence is introduced supporting such contention, evidence takes place of presumption, and there is no necessity for indulging in any presumption. The Rules of Court provides for disputable presumptions, which are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence.Rules of Court, Rule 131, Sec. 3. --DISSENTING OPINION A dissenting opinion (or dissent) is an opinion in a legal case written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment. When not necessarily referring to a legal decision, this can also be referred to as a minority report. --EX PARTE On one side only; by or for one party; done for, in behalf of, or on the application of, one party only. "Ex parte," in the heading of a reported case, signifies that the name following is that of the party upon whose application the case is heard.

A judicial proceeding, order, injunction, etc., is said to be ex parte when it is taken or granted at the instance and for the benefit of one party only, and without notice to, or contestation by, any person adversely interested. In its primary sense, ex parte, as applied to an application in a judicial proceeding, means that it is made by a person who is not a party to the proceeding, but who has an interest in the matter which entitles him to make the application. --EXCESS OF JURISDICTION A case in which court has initially proceeded properly within its jurisdiction but steps out of jurisdiction in making of some order or in the doing of some judicial act. A departure by a court from those recognized and established requirements of law, however close apparent adherence to mere form in method of procedure, which has the effect of depriving one of a constitutional right, is an "excess of jurisdiction." Excess of Jurisdiction is 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. 2. A court's departure from recognized and established requirements of law, despite apparent adherence to procedural form, the effect of which is a deprivation of one's constitutional right. It is also termed excess jurisdiction. --EXECUTION Carrying out some act or course of conduct to its completion. In Criminal Law, the carrying out of a death sentence. The process whereby an official, usually a sheriff, is directed by an appropriate judicial writ to seize and sell as much of a debtor's nonexempt property as is necessary to satisfy a court's monetary judgment. With respect to contracts, the performance of all acts necessary to render a contract complete as an instrument, which conveys the concept that nothing remains to be done to make a complete and effective contract.

--EXHAUSTION OF ADMINISTRATIVE REMEDIES The underlying principle of the rule on exhaustion of administrative remedies rests on the presumption that the administrative agency, if afforded a complete chance to pass upon the matter, will decide the same correctly. There are both legal and practical reasons for the principle. The administrative process is intended to provide less expensive and more speedy solutions to disputes. Where the enabling statute indicates a procedure for administrative review and provides a system of administrative appeal or reconsideration, the courts – for reasons of law, comity, and convenience – will not entertain a case unless the available administrative remedies have been resorted to and the appropriate authorities have been given an opportunity to act and correct the errors committed in the administrative forum. The rule in administrative law is that parties requesting judicial action must first exhaust their remedies in the executive branch. This is premised not only on practical considerations but also on the comity existing between different departments of the government, which comity requires the court to stay their hands until the administrative processes have been completed. --FALLO In Spanish law. The final decree or judgment given in a controversy at law. --FINAL JUDGEMENT The final settling of the rights of the parties to the action beyond all appeal.

The written determination of a lawsuit by the judge who presided at trial (or heard a successful motion to dismiss or a stipulation for judgment), which renders (makes) rulings on all issues and completes the case unless it is appealed to a higher court. It is also called a final decree or final decision. Final judgment refers to 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, sometimes, attorney's fees) and enforcement of the judgment. This is also termed as final appealable judgment or final decision or final decree or definitive judgment or determinative judgment or final appealable order. --FINAL ORDER An order or judgment of the Court that finally disposes of the rights of the parties. A final order is generally one that ends the litigation on the merits and leaves nothing for the court to do but execute judgment. --FORUM SHOPPING Forum shopping is the informal name given to the practice adopted by some litigants to have their legal case heard in the court thought most likely to provide a favorable judgment.

There is forum shopping "when a party repetitively avails of several judicial remedies in different courts, simultaneously or successively, all substantially founded on the same transactions and the same essential facts and circumstances, and all raising substantially the same issues either pending in or already resolved adversely by some other court." --HEARSAY RULE The basic rule that testimony or documents which quote persons not in court are not admissible. Hearsay is "second-hand" information. Because the person who supposedly knew the facts is not in court to state his/her exact words, the trier of fact cannot judge the demeanor and credibility of the alleged first-hand witness, and the other party's lawyer cannot cross-examine (ask questions of) him or her. --IMPLEAD To sue. To sue (a third party) in a lawsuit that has already been commenced as a defendant who may be liable for the claim that is the subject of the suit. --IN PARI MATERIA Upon the same matter or subject. Statutes in pari materia are to be construed together. A designation applied to statutes or general laws that were enacted at different times but pertain to the same subject or object. --IN RE In the affair; in the matter of; concerning; re.

This is the usual method of entitling a judicial proceeding in which there are not adversary parties, but merely some res concerning which judicial action is to be taken, such as a bankrupt's estate, an estate in the probate court, a proposed public highway, etc. It is also sometimes used as a designation of a proceeding where one party makes an application on his own behalf, but such proceedings are more usually entitled "Ex parte _______." [Latin, In the matter of.] Concerning or regarding. The usual style for the name of a judicial proceeding having some item of property at the center of the dispute rather than adverse parties. prep. short for "in regard to" or concerning. "Re" is a further abbreviation. Often "in re" is found near the top of lawyers' letters to identify the subject matter, as "In re Matheson v.

Roth," or "In re Estate of Ruth Bentley." It is also used in naming legal actions in which there is only one party, the petitioning party, as in "In re Adoption of Marcus McGillicuddy." --INDIRECT CONTEMPT Constructive (or indirect) contempts are those which arise from matters not occurring in or near the presence of the court, but which tend to obstruct or defeat the administration of justice, and the term is chiefly used with reference to the failure or refusal of a party to obey a lawful order, injunction, or decree of the court laying upon him a duty of action or forbearance. --IPSO FACTO By the fact itself; by the mere fact. By the mere effect of an act or a fact. This phrase is frequently employed to convey the idea that something which has been done contrary to law is void. For example, if a married man, during the life of his wife, of which he had knowledge, should marry another woman, the latter marriage would be void ipso facto; that is, on that fact being proved, the second marriage would be declared void ab initio.

Ipso facto is a Latin phrase, directly translated as "by the fact itself," which means that a certain phenomenon is a direct consequence, a resultant effect, of the action in question, instead of being brought about by a previous action. --IPSO JURE By the law itself; by the mere operation of law. It is often used to describe consequences that occur automatically by operation of legal principles. For example, when a case is decided, by the legal principle of res judicata, the party is barred ipso jure from refiling the same case again. --JUDGEMENT The official and authentic decision of a court of justice upon the respective rights and claims of the parties to an action or suit therein litigated and submitted to its determination. A sense of knowledge sufficient to comprehend nature of transaction. The conclusion in a syllogism having for its major and minor premises issues raised by the pleadings and the proofs thereon. A judgment is the final part of a court case. A valid judgment resolves all the contested issues and terminates the lawsuit, since it is regarded as the court's official pronouncement of the law on the action that was pending before it. It states who wins the case and what remedies the winner is awarded.

Remedies may include money damages, injunctive relief, or both. A judgment also signifies the end of the court's jurisdiction in the case. --JUDGEMENT ON THE MERITS The decision of a court that is based on the facts that have been presented. A judgment on the merits is one rendered after argument and investigation, and when there is determination which party is right, as distinguished from a judgment rendered upon some preliminary or formal or merely technical point, or by default and without trial. Thus, a judgment on the merits is one wherein there is an unequivocal determination of the rights and obligations of the parties with respect to the causes of action and the subject matter of the case. The doctrine of res judicata prevents a litigant from getting yet another day in court after the first lawsuit is concluded by giving a different reason than he gave in the first for recovery of damages for the same invasion of his right.

The rule provides that when a court of competent jurisdiction has entered a final judgment on the merits of a cause of action, the parties to the suit and their privies are bound "not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose." A final judgment on the merits bars further claims by the same parties based on the same cause of action. Res judicata prevents a plaintiff from suing on a claim that already has been decided and also prevents a defendant from raising any new defense to defeat the enforcement of an earlier judgment. It also precludes relitigation of any issue, regardless of whether the second action is on the same claim as the first one, if that particular issue actually was contested and decided in the first action. Former adjudication is an analogue of the criminal law concept of double jeopardy. --JUDICIAL NOTICE The authority of a judge to accept as facts certain matters which are of common knowledge from sources which guarantee accuracy or are a matter of official record, without the need for evidence establishing the fact.

Examples of matters given judicial notice are public and court records, tides, times of sunset and sunrise, government rainfall and temperature records, known historic events or the fact that ice melts in the sun. A doctrine of evidence applied by a court that allows the court to recognize and accept the existence of a particular fact commonly known by persons of average intelligence without establishing its existence by admitting evidence in a civil or criminal action. When a court takes judicial notice of a certain fact, it obviates the need for parties to prove the fact in court. Ordinarily, facts that relate to a case must be presented to the judge or jury through testimony or tangible evidence. However, if each fact in a case had to be proved through such presentation, the simplest case would take weeks to complete. To avoid burdening the judicial system, all legislatures have approved court rules that allow a court to recognize facts that constitute common knowledge without requiring proof from the parties. --JUDICIAL REVIEW A court's authority to examine an executive or legislative act and to invalidate that act if it is contrary to constitutional principles. The power of courts of law to review the actions of the executive and legislative branches is called judicial review. Though judicial review is usually associated with the U.S.

Supreme Court, which has ultimate judicial authority, it is a power possessed by most federal and state courts of law in the United States. The concept is an American invention. Prior to the early 1800s, no country in the world gave its judicial branch such authority. The 1987 Philippine Constitution explicitly vests in the Supreme Court the power of judicial review which is the authority to examine an executive or legislative act and to invalidate that act if it is contrary to constitutional principles. Like almost all powers conferred by the Constitution, the power of judicial review is subject to limitations, to wit: (1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have the standing to question the validity of the subject act or issuance; otherwise stated, he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must be the very lis mota of the case. --JURIDICAL CAPACITY Juridical capacity is the same in every person.

No one has more juridical capacity than others. It is inherent in natural persons. On the other hand, it arises in artificial persons when such artificial persons are created. Juridical capacity is the fitness tobe the subject of legal relations. --JURISDICTION Power of a court to adjudicate cases and issue orders. Territory within which a court or government agency may properly exercise its power. Jurisdiction (from the Latin ius, iuris meaning "law" and dicere meaning "to speak") is the practical authority granted to a legal body to administer justice within a defined area of responsibility. The geographic area over which authority extends; legal authority; the authority to hear and determine causes of action. Jurisdiction also may refer to the origin of a court's authority. A court may be designated either as a court of general jurisdiction or as a court of special jurisdiction. A court of general jurisdiction is a trial court that is empowered to hear all cases that are not specifically reserved for courts of special jurisdiction. A court of special jurisdiction is empowered to hear only certain kinds of cases. Subject matter jurisdiction is the court's authority to decide the issue in controversy such as a contracts issue, or a civil rights issue.

Territorial jurisdiction is the court's power to bind the parties to the action. This law determines the scope of federal and state court power. --JUSTICIABLE CONTROVERSY An actual case or controversy — one which involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial resolution; the case must not be moot or academic or based on extra-legal or other similar considerations not cognizable by a court of justice. The controversy must be justiciable — definite and concrete, touching on the legal relations of parties having adverse legal interests. In other words, the pleadings must show an active antagonistic assertion of a legal right, on the one hand, and a denial thereof on the other; that is, it must concern a real and not a merely theoretical question or issue. There ought to be an actual and substantial controversy admitting of specific relief through a decree conclusive in nature, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.

Courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government. --JUSTICIABLE ISSUE A controversy involving a real issue that can be settled by a court, involving a present claim made by one party and another party disputing it. --LAW OF THE CASE DOCTRINE When a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case. As generally used, the term law of the case designates the principle that if an appellate court has passed on a legal question and remanded the cause to the court below for further proceedings, the legal question thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case where the facts remain the same.[3]The doctrine provides that an appellate court’s determination on a legal issue is binding on both the trial court on remand and an appellate court on a subsequent appeal given the same case and substantially the same facts.

--LEX LOCI The law of the country in which a transaction is performed, a tort is committed, or a property is situated. The principle that the law of the place giving rise to particular rights is the law that governs the rights of parties to a legal proceeding. --LIS MOTA Lis mota is a Latin term meaning the cause or motivation of a legal action or lawsuit. The literal translation is "litigation moved". Lis Mota-the fourth requirement to satisfy before this Court will undertake judicial review — means that the Court will not pass upon a question of unconstitutionality, although properly presented, if the case can be disposed of on some other ground, such as the application of the statute or the general law. The petitioner must be able to show that the case cannot be legally resolved unless the constitutional question raised is determined. This requirement is based on the rule that every law has in its favor the presumption of constitutionality; to justify its nullification, there must be a clear and unequivocal breach of the Constitution, and not one that is doubtful, speculative, or argumentative. --MAJORITY DECISION The opinion joined by a majority of the court (generally known simply as the opinion).

The statement by a judge or court of the decision reached in regard to a cause tried or argued before them, expounding the law as applied to the case, and detailing the reasons upon which the judgment is based. The holding of a court consisting of multiple members, typically an appellate court, issued together by the majority of the members, and establishing the formal legal result of the case, as opposed to a dissenting opinion. --MANDAMUS The name of a writ, the principal word of which when the proceedings were in Latin, was mandamus, we command.It is a command issuing in the name of the sovereign authority from a superior court having jurisdiction, and is directed to some person, corporation, or, inferior court, within the jurisdiction of such superior court, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the superior court has previously determined, or at least supposes to be consonant to right and justice. Latin for "we order," a writ (more modernly called a "writ of mandate") which orders a public agency or governmental body to perform an act required by law when it has neglected or refused to do so.

Examples: After petitions were filed with sufficient valid signatures to qualify a proposition for the ballot, the city refuses to call the election, claiming it has a legal opinion that the proposal is unconstitutional. The backers of the proposition file a petition for a writ ordering the city to hold the election. The court will order a hearing on the writ and afterwards either issue the writ or deny the petition. Or a state agency refuses to release public information, a school district charges fees to a student in violation of state law, or a judge will not permit reporters entry at a public trial. All of these can be subject of petitions for a writ of mandamus. In order that a writ of mandamus may aptly issue, it is essential that, on the one hand, the person petitioning for it has a clear legal right to the claim that is sought and that, on the other hand, the respondent has an imperative duty to perform that which is demanded of him. Mandamus will not issue to enforce a right, or to compel compliance with a duty, which is questionable or over which a substantial doubt exists.

The principal function of the writ of mandamus is to command and to expedite, not to inquire and to adjudicate; thus, it is neither the office nor the aim of the writ to secure a legal right but to implement that which is already established. Unless the right to the relief sought is unclouded, mandamus will not issue. --MITTIMUS A writ enclosing a record sent to be tried in a county palatine; it derives its name from the Latin word mittimus, "we send." A court order directing a sheriff or other police officer to escort a convict to a prison. A mittimus is a written document. It can command a jailer to safely keep a felon until he or she can be transferred to a prison. A mittimus also refers to the transcript of the conviction and sentencing stages, which is duly certified by a clerk of court. --MOTION A written or oral application made to a court or judge to obtain a ruling or order directing that some act be done in favor of the applicant. The applicant is known as the moving party, or the Movant. A written motion may contain citations to case law or statutes that support the motion.

A motion almost always contains a recitation of the facts of the case or the situation prompting the movant to make the request. A motion is a written request to the court. When a party asks the court to take some kind of action in the course of litigation, other than resolving the entire case in a trial, the request is made in the form of a motion. Motions are often made before trials to resolve procedural and preliminary issues, and may be made after trials to enforce or modify judgments. Motions may also be made to resolve legal issues in the case if there is no disagreement about the facts. Usually called a motion for summary judgment or a motion for summary adjudication of the issues, these motions can resolve all or most of the issues in a case without the need for a trial.Normally, one side submits a motion, the other side submits a written response, and the court holds a hearing at which the parties give brief oral arguments. (Some motions are considered only on the basis of the writings.) Then the court approves or denies the motion. --MOTU PROPRIO Lat. Of his own motion. The commencing words of a certain kind of papal rescript.

It is used to refer to a document that is issued and personally signed by the Pope. It may be contain instructional matter, administrative matters of church law or governing bodies, or used to grant a special favor. Article 15 (of the Rome Treaty which established the International Criminal Court) ... provides the Prosecutor with an unfettered power to trigger the Court's jurisdiction proprio motu, which means at his or her own initiative without any formal referral act or formal duty to initiate. --MUTATIS MUTANDIS The necessary changes. This is a phrase of frequent practical occurrence, meaning that matters or things are generally the same, but to be altered, when necessary, as to names, offices, and the like. Latin: with changes on points of detail. This Latin phrase simply means that the necessary changes in details, such as names and places, will be made but everything else will remain the same. However, it is more often translated or understood to mean “the necessary changes having been made”. It essentially indicates that new terms have been substituted or that the reader should note any differences from the original and take them into consideration.

--NEGATIVE DEFENSE Negative Defense refers to a defendant's outright denial of the plaintiff's allegations without there being any additional facts pleaded by way of avoidance. A defense is a denial, or answer or plea in opposition to the truth or validity of a claim by a plaintiff. Requires the prosecution to prove the guilt of the accused beyond reasonable doubt. Accused claims that one of the elements of the offense charged is not present.It is incumbent upon the prosecution to prove the existence of this element. --NEGATIVE PREGNANT A denial of an allegation in which a person actually admits more than he/she denies by denying only a part of the alleged fact. Example: Plaintiff alleges Defendant "misused more than a hundred thousand dollars placed in his trust in 1994." Defendant denies the amount was more than a hundred thousand, and denies it was given to him in 1994." Thus, the defendant did not deny the misuse, just the amount and the date. Such form of negative expression, in pleading, as may imply or carry within it an affirmative. Implicitly accepting culpability while explicitly denying the charge is what this type of ambiguous negative statement is.

--NOTATU DIGNUM Notatu dignum is the presumption of regularity in the performance of a judges functions, hence, bias, prejudice and even undue interest cannot be presumed, especially weighed against a judges sacred allegation under oath of office to administer justice without respect to any person and do equal right to the poor and the rich. In a long line of cases decided by this Court, it was held that bare allegations of bias are not enough in the absence of clear and convincing evidence to overcome the presumption that the judge will undertake his noble role to dispense justice according to law and evidence and without fear or favor. it is a matter of public policy that in the absence of fraud, dishonesty or corruption, the acts of a judge in his judicial capacity are generally not subject to disciplinary action, even though such acts are erroneous. For a judge may not be held administratively accountable for every erroneous order or decision he renders. To hold otherwise would be to render judicial office untenable, for no one called upon to try the facts or interpret the law in the process of administering justice can be infallible in his judgment.

--NUNC PRO TUNC [Latin, Now for then.] When courts take some action nunc pro tunc, that action has retroactive legal effect, as though it had been performed at a particular, earlier date. The most common use of nunc pro tunc is to correct past clerical errors, or omissions made by the court, that may hinder the efficient operation of the legal system. For example, if the written record of a trial court's judgment failed to correctly recite the judgment as the court rendered it, the court has the inherent power to change the record at a later date to reflect what happened at trial. The decision, as corrected, would be given legal force from the time of the initial decision so that neither party is prejudiced, or harmed, by the error. The purpose of nunc pro tunc is to correct errors or omissions to achieve the results intended by the court at the earlier time. This refers to changing back to an earlier date of an order, judgment or filing of a document.

Such a retroactive re-dating requires a court order which can be obtained by a showing that the earlier date would have been legal, and there was error, accidental omission or neglect which has caused a problem or inconvenience which can be cured. Often the judge will grant the nunc pro tunc order ex parte (with only the applicant appearing and without notice). Examples: a court clerk fails to file an answer when he/she received it, and a nunc pro tunc date of filing is needed to meet the legal deadline (statute of limitations); a final divorce judgment is misdirected and, therefore, not signed and dated until the day after the re-marriage of one of the parties-the nunc pro tunc order will prevent the appearance or actuality of a bigamous marriage. --OBITER DICTUM [Latin, By the way.] Words of an opinion entirely unnecessary for the decision of the case. A remark made or opinion expressed by a judge in a decision upon a cause, "by the way", that is, incidentally or collaterally, and not directly upon the question before the court or upon a point not necessarily involved in the determination of the cause, or introduced by way of illustration, or analogy or argument.

Such are not binding as precedent. --PENDENTE LITE [Latin, Pending the litigation.] During the actual progress of a lawsuit. Latin for awaiting the litigation (lawsuit). It is applied to court orders (such as temporary child support) which are in effect until the case is tried, or rights which cannot be enforced until the lawsuit is over. It is often used in divorce law to refer to to court orders such as temporary child support or alimony which are in effect until the case is tried, or rights which cannot be enforced until the lawsuit is over. Pendente lite matters are contingent on the outcome of the underlying litigation. Sometimes a party is required to deposit funds with the court pending the outcome of the lawsuit. If the depositing party loses the lawsuit, the funds are paid to the opposing party. Pendente lite should not be confused with lis pendens. Lis pendens also means pending lawsuit. But lis pendens is a document filed in the public records of the county where particular real property is located stating that a pending lawsuit may affect the title to the property. Because nobody wants to buy real estate if its ownership is in dispute, a lis pendens notice effectively ties up the property until the case is resolved.

Lis pendens notices are often filed in divorce actions when there is disagreement about selling or dividing the family home. --PER CURIAM Latin for "by the court." An opinion from an appellate court that does not identify any specific judge who may have written the opinion. A phrase used to distinguish an opinion of the whole court from an opinion written by any one judge. Sometimes per curiam signifies an opinion written by the chief justice or presiding judge; it can also refer to a brief oral announcement of the disposition of a case by the court that is unaccompanied by a written opinion. It is the opinion of the court as a single body. Most decisions on the merits by the Supreme Court and other appellate courts in the U.S. are signed by individual justices. Even when such signed opinions are unanimous, they are not termed "per curiam." Per curiam decisions usually deal with issues the court views as relatively non-controversial. --PLAIN MEANING RULE The Plain meaning rule is a type of statutory construction by which statutes are to be interpreted using the ordinary meaning of the language of the statute. This applies when there is no ambiguity in a will.

In such a situation, the court should refuse admission of extrinsic evidence to overturn the plain meaning of the Will. The soft plain meaning rule means that the statute is to be interpreted according to the ordinary meaning of the language, unless the result would be cruel or absurd. The plain meaning rule requires that words are given their ordinary meaning, technical terms are given their technical meaning, and local, cultural terms are recognized as applicable. Additionally, the plain meaning rule prevents courts from taking sides in legislative or political issues. A cardinal rule in statutory construction is that when the law is clear and free from any doubt or ambiguity, there is no room for construction or interpretation. There is only room for application. As the statute is clear, plain, and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation. This is what is known as the plain-meaning rule or verba legis. It is expressed in the maxim, index animi sermo, or "speech is the index of intention." Furthermore, there is the maxim verba legis non est recedendum, or "from the words of a statute there should be no departure." --PLEADING(S) Asking a court to grant relief.

The formal presentation of claims and defenses by parties to a lawsuit. The specific papers by which the allegations of parties to a lawsuit are presented in proper form; specifically the complaint of a plaintiff and the answer of a defendant plus any additional responses to those papers that are authorized by law. Different systems of pleading have been organized generally to serve four functions: (1) to give notice of the claim or defense; (2) to reveal the facts of the case; (3) to formulate the issues that have to be resolved; and (4) to screen the flow of cases into a particular court. Different systems may rely on the pleadings to accomplish these purposes or may use the pleadings along with other procedural devices, such as discovery, Pretrial Conference among the parties, or Summary Judgment. Every legal document filed in a lawsuit, petition, motion and/or hearing, including complaint, petition, answer, demurrer, motion, declaration, and memorandum of points and authorities (written argument citing precedents and statutes).

Laypersons should be aware that, except possibly for petitions from prisoners, pleadings are required by state or federal statutes and/or court rules to be of a particular form and format: typed, signed, dated, with the name of the court, title and number of the case, name, address and telephone number of the attorney or person acting for himself/herself (in pro per) included. 2) the act of preparing and presenting legal documents and arguments. Good pleading is an art: clear, logical, well-organized, comprehensive, and including all essential facts. --PONENTE The ponente is the Member to whom the Court, after its deliberation on the merits of a case, assigns the writing of its decision or resolution in the case. --PRECEDENT A court decision that is cited as an example or analogy to resolve similar questions of law in later cases. The Anglo-American common-law tradition is built on the doctrine of Stare Decisis ("stand by decided matters"), which directs a court to look to past decisions for guidance on how to decide a case before it. This means that the legal rules applied to a prior case with facts similar to those of the case now before a court should be applied to resolve the legal dispute.

The use of precedent has been justified as providing predictability, stability, fairness, and efficiency in the law. Reliance upon precedent contributes predictability to the law because it provides notice of what a person's rights and obligations are in particular circumstances. A person contemplating an action has the ability to know beforehand the legal outcome. It also means that lawyers can give legal advice to clients based on settled rules of law. Legal principle, created by a court decision, which provides an example or authority for judges deciding similar issues later. Generally, decisions of higher courts (within a particular system of courts) are mandatory precedent on lower courts within that system--that is, the principle announced by a higher court must be followed in later cases. --PREJUDICIAL QUESTION A prejudicial question is defined as that which arises in a case the resolution of which is a logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal. The prejudicial question must be determinative of the case before the court but the jurisdiction to try and resolve the question must be lodged in another court or tribunal. It is a question based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused.

The elements of a prejudicial questions are enumerated under Section 7, Rule 111 of the 2000 Revised Rules of Criminal Procedure, these are: (a) the previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action, and (b) the resolution of such issue determines whether or not the criminal action may proceed. Doctrine of stare decisis et non quieta movere, which means "to adhere to precedents, and not to unsettle things which are established." Under the doctrine, when this Court has once laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle, and apply it to all future cases, where facts are substantially the same; regardless of whether the parties and property are the same. --PRIMA FACIE Latin for "at first sight." Prima facie may be used as an adjective meaning "sufficient to establish a fact or raise a presumption unless disproved or rebutted;" e.g., prima facie evidence. It may also be used as an adverb meaning "on first appearance but subject to further evidence or information;" e.g., the agreement is prima facie valid.

A fact presumed to be true unless it is disproved. A prima facie case is the establishment of a legally required rebuttable presumption. It is generally understood as a flexible evidentiary standard that measures the effect of evidence as meeting, or tending to meet, the proponent's burden of proof on a given issue. In that sense, a prima facie case is a cause of action or defense that is sufficiently established by a party's evidence to justify a verdict in his or her favor, provided such evidence is not rebutted by the other party. --PRO BONO The term pro bono is short for the Latin "pro bono publico," which means "for the public good." The term generally refers to free services that a professional provides to poverty-stricken clients, non-profit groups or charitable organizations. In the financial world, the term applies to free services or advice provided by a financial professional. The term pro bono is short for the Latin "pro bono publico," which means "for the public good." The term generally refers to free services that a professional provides to poverty-stricken clients, non-profit groups or charitable organizations. In the financial world, the term applies to free services or advice provided by a financial professional.

"Pro bono" gained popularity in the legal profession, as lawyers are bound by ethical rules to charge reasonable rates for their services and to serve public interest by providing free legal services to those in need. The designation given to the free legal work done by an attorney for indigent clients and religious, charitable, and other nonprofit entities. --PRO HAC VICE Latin meaning "for this one particular occasion." The phrase usually refers to an out-of-state lawyer who has been granted special permission to participate in a particular case, even though the lawyer is not licensed to practice in the state where the case is being tried. When a lawyer wishes to practice pro hac vice, a formal “motion to appear pro hac vice” must be filed with the court, usually by a sponsoring lawyer who has been admitted to the bar in the state or region where the court is located. The application may need to include a statement from the lawyer's local bar, stating that he or she is a member in good standing, and a filing fee may need to be paid for the court to consider the motion. --PRO SE "Pro Se" is Latin for "For Self" or in one's own behalf.

You appear "Pro Se" in a legal action when you represent yourself directly in a legal action (in or out of court) and do not have an attorney speaking or writing for you.“Pro-Se” refers to representing yourself in any type of legal matter without the benefit of legal counsel. "In Pro Per" is a short form of the Latin phrase, "In Propria Persona", or "in the person of yourself." The full term of "In Propria Persona" is hardly ever used in court. A person who is acting In Pro Per is called a Pro Per. The terms Pro Per and Pro Se are equivalent in court. --QUESTION OF FACT There is a question of fact when the doubt arises as to the truth or falsity of the alleged facts. Once it is clear that the issue invites a review of the evidence presented, the question posed is one of fact. A question of fact is a question as to what "happened" in a given legal matter. --QUESTION OF LAW A question of law arises when there is doubt as to what the law is on a certain state of facts.

For a question to be one of law, the same must not involve an examination of the probative value of the evidence presented by the litigants or any of them. The resolution of the issue must rest solely on what the law provides on the given set of circumstances. A question of law is generally more of a procedural question --RATIO DECIDENDI Latin: reasons for a decision. The underlying principle is called the ratio decidendi, namely the general reasons given for the decision or the general grounds upon which it is based, detached or abstracted from the specific peculiarities of the particular case which gives rise to the decision. Ratio decidendi refers to the legal, moral, political and social principles on which a court’s decision rests. It is the rationale for reaching the decision of a case. It is binding on lower courts through the principle of Stare decisis. Ratio decidendi is a helpful tool for a lawyer. Ratio is a ruling on a point of law and the decision on a point of law depends on facts of a case. Culling out ratio from a judgment is difficult. A thorough reading of an entire judgment is required to identify a ratio.

Ration decidendi can be determined or identified in the following ways: By distinguishing material facts from unimportant facts. By discovering the precedents applied to identify the court’s approach. By restricting analysis to the majority opinions. By reading out subsequent decisions and considering it at several levels. --RATIO LEGIS Ratio legis est anima (The reason of law is the soul of law), meaning that the words of the Constitution should be interpreted in accordance with the intent of its framers. The reason or occasion of a law; the occasion of making a law. --RECUSAL To disqualify or remove oneself as a judge over a particular proceeding because of one's conflict of interest. Recusal, or the judge's act of disqualifying himself or herself from presiding over a proceeding, is based on the Maxim that judges are charged with a duty of impartiality in administering justice. When a judge is assigned to a case, she reviews the general facts of the case and determines whether she has any conflict of interest concerning the case. If a conflict of interest exists, the judge may recuse herself on her own initiative. In addition, any party in a case may make a motion to require the judge to recuse herself from hearing the case.

The initial presiding judge usually determines whether or not the apparent conflict requires her recusal, and the judge's decision is given considerable deference. Some jurisdictions, however, require another judge to decide whether or not the presiding judge should be disqualified. If a judge fails to recuse himself when a direct conflict of interest exists, the judge may later be reprimanded, suspended, or disciplined by the body. --REJOINDER The answer made by a defendant in the second stage of Common-Law Pleading that rebuts or denies the assertions made in the plaintiff's replication. The second pleading on the part of the defendant, being his answer of matter of fact to the plaintiff’s replication. The rejoinder allows a defendant to present a more responsive and specific statement challenging the allegations made against him or her by the plaintiff. --RES IPSA LOQUITOR [Latin, The thing speaks for itself.] A rebuttable presumption or inference that the defendant was negligent, which arises upon proof that the instrumentality or condition causing the injury was in the defendant's exclusive control and that the accident was one that ordinarily does not occur in the absence of Negligence.

Res ipsa loquitur is one form of circumstantial evidence that permits a reasonable person to surmise that the most Probable Cause of an accident was the defendant's negligence. --RULING Any decision made by a judge during the course of litigation is called a ruling. For example, if a court grants a father custody after a trial on the custody issue, that is a ruling. Also, if a court sustains or overrules an objection to evidence raised during a trial, that is a ruling. A judicial or administrative interpretation of a provision of a statute, order, regulation, or ordinance. The judicial determination of matters before the court such as the admissibility of evidence or the granting of a motion, which is an application for an order. --SEPARATE OPINION An opinion written by a judge separately from other judges, which can either agree or disagree with the opinion written by the majority of judges. --SHARI'A Shari'ah, also spelled Sharia, the fundamental religious concept of Islam, namely its law, systematized during the 2nd and 3rd centuries of the Muslim era.

The term means "way" or " path"; it is the legal framework within which the public and some private aspects of life are regulated for those living in a legal system based on Islam. The term sharia means a body of moral and religious law derived from religious prophecy, as opposed to human legislation. There is not a strictly codified uniform set of laws that can be called Sharia. It is more like a system of several laws, based on the Qur'an, Hadith and centuries of debate, interpretation and precedent. --SIN PERJUCIO JUDGEMENT A sin perjuicio decision is a judgment without statement of facts in support of its conclusion and is null and void. Under the Constitution, “no decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based.” --STARE DECISIS Lat. To abide by, or adhere to, decided cases. Doctrine that, when court has once laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle, and apply it to all future cases, where facts are substantially the same. --SUBJUDICE Under or before a judge or court; under judicial consideration; undetermined.

The sub judice rule regulates the publication of matters which are under consideration by the court. In essence, the sub judice rule restricts comments and disclosures pertaining to pending judicial proceedings. The restriction applies not only to participants in the pending case, i.e., to members of the bar and bench, and to litigants and witnesses, but also to the public in general, which necessarily includes the media. Although the Rules of Court does not contain a specific provision imposing the sub judice rule, it supports the observance of the restriction by punishing its violation as indirect contempt under Section 3(d) of Rule 71. n so far as criminal proceedings are concerned, two classes of publicized speech made during the pendency of the proceedings can be considered as contemptuous: first, comments on the merits of the case, and second, intemperate and unreasonable comments on the conduct of the courts with respect to the case. Publicized speech should be understood to be limited to those aired or printed in the various forms of media such as television, radio, newspapers, magazines, and internet, and excludes discussions, in public or in private, between and among ordinary citizens.

The Constitution simply gives the citizens the right to speech, not the right to unrestricted publicized speech. --TRAVERSE In the language of pleading, a traverse signifies a denial. Thus, where a defendant denies any material allegation of fact in the plaintiff’s declaration, he is said to traverse it. and the plea itself is thence frequently termed a “traverse.” For example, a plaintiff could bring a lawsuit in order to collect money that he claimed the defendant owed him. If the defendant answered the plaintiff's claim by stating in answer that she did not fail to pay the money owed on the date it was due, this is a denial of a fact essential to the plaintiff's case. The defendant can be said to traverse the plaintiff's declaration of an outstanding debt, and her plea itself could be called a traverse. This is a technical term, which means to turnover: it is applied to an issue taken upon an indictment for a misdemeanor, and means nothing more than turning over or putting off the trial to a following sessions or assize; it has, perhaps with more propriety, been applied to the denying or taking issue upon an indictment, without reference to the delay of trial.pleading.

This term, from the French traverser, signifies to deny or controvert anything which is alleged in the declaration, plea, replication or other pleadings. There is no real distinction between traverses and denials, they are the same in substance however, a traverse, in the strict technical meaning, and more ordinary acceptation of the term, signifies a direct denial in formal words, "without this that," etc.

Question: What Latin phrase, which translates as "by the fact itself", is taken to mean that a certain phenomenon is a direct consequence, a resultant effect, of the action in question?
Answer: Ipso facto