A
ABSTRACT OF RECORD: A complete history of the case in abbreviated form, found in the court file.
ADMINISTRATIVE LAW: Law created by government agencies as rules, regulations, orders and decisions, usually to implement legislation.
ALLEGATION: The assertion, declaration, or statement of a party to an action, made in a pleading, setting out what the party expects to prove.
AMICUS CURIAE: A friend of the court; one who volunteers information–usually in a written brief–upon some matter of law; filed by a person or a group with an interest in the legal issue under consideration.
ANCILLARY PROCEEDING: A proceeding or lawsuit growing out of a related suit, such as a proceeding to enforce a court judgment.
ANSWER: A pleading filed by a defendant or respondent in response to the plaintiff’s allegation of facts.
APPEARANCE: The formal proceeding in which a defendant submits to the jurisdiction of the court.
APPELLANT: The party appealing a decision or judgment to a higher court. In an appeal, the appellant usually is listed first in the case. (In an appeal, Doakes v. Jacobs, Doakes is the appellant).
ARRAIGNMENT: When a prisoner is formally brought to the court to answer to a criminal charge.
ARREST WARRANT: Issued by a judicial officer, it allows a law enforcement officer to arrest the person named and bring the person before the court to answer to a specific charge.
ATTACHMENT: A proceeding in which a plaintiff acquires a court order prohibiting the defendant from selling or transferring money or property that might be needed to pay a judgment.
B
BAIL BOND: An obligation signed by the accused to guarantee payment of a specified amount of money if he or she fails to appear in court. The bond may be in cash or in an instrument assuring payment of cash (like a mortgage on a home).
BENCH WARRANT: An order issued by the court for the appearance of a person before the court. The individual may be a defendant or a witness.
BINDING INSTRUCTION: One in which the jury is told that if they find certain conditions to be true they must find for the plaintiff, or defendant, as the case might be.
BIND OVER: To hold a person for trial.
BLACK’S LAW DICTIONARY: The law dictionary used by most judges and lawyers.
BURDEN OF PROOF: The duty of one party to prove a fact in dispute.
BRIEF: A written or printed document prepared by counsel to file in court, usually containing both facts and law in support of a position.
C
CERTIORARI: A discretionary writ issued by an appellate court ordering officers of a lower court to forward records of a proceeding so that the case can be reviewed by the higher court.
CHANGE OF VENUE: The transfer of a suit begun in one court or district to another for trial.
CIRCUIT COURT, EIGHTH: The court to which federal cases in Iowa are appealed. The court has offices in St. Louis and Minneapolis.
CIRCUMSTANTIAL EVIDENCE: Evidence of an indirect nature, often the only evidence available in a case in which there are no eye witnesses.
CIVIL AND CRIMINAL LAW: Civil law does not have prison terms as penalties; criminal law usually does; civil suits usually result in money damages, an injunction or a restraining order. In criminal law, the plaintiff is the state; civil suits may include only private parties, or a private party and a government agency. In criminal cases, the state must prove its case with evidence “beyond a reasonable doubt.” In most civil cases, only a “preponderance of the evidence” is needed.
CODE OF PROFESSIONAL RESPONSIBILITY: The rules established by the Iowa Supreme Court that regulate the conduct and ethics of Iowa attorneys.
CODICIL: An amendment to a will.
COMMON LAW: Law that traces its authority from the usages and customs of English law and is based on precedent from court judgments and decrees.
COMPARATIVE FAULT: A way of assigning fault in civil cases. The acts of the opposing parties are compared and fault is assigned by percentages.
COMPLAINANT: In Iowa, synonymous with plaintiff. (The complainant is listed first in the name of the case; in Jacobs v. Doakes, Jacobs is the complainant or plaintiff).
COMPLAINT: The pleading that begins a civil law suit.
CONDEMNATION: The legal process in which private real estate is taken for public use without an owner’s consent but with payment of just compensation.
CONSERVATOR: One who is approved or appointed by the court to manage the affairs of a minor or incompetent.
CONTEMPT OF COURT: A finding by a judge that a person violated a court order or hindered a court in the administration of justice. Contempt may be imposed as a punishment or in an effort to remedy the actions of the person.
CORROBORATING EVIDENCE: Supplementary evidence that confirms facts already presented.
COSTS: The expenses of prosecuting or defending a lawsuit. Costs do not include attorney fees.
COUNTERCLAIM: A claim presented by a defendant seeking damages or other remedies from the plaintiff.
CROSS-EXAMINATION: The questioning of a witness in a trial or in a deposition by the adverse party.
D
DAMAGES: Monetary compensation for loss, detriment or injury to a person, property or rights because of the unlawful act or negligence of another.
DE NOVO: Anew, afresh. A “trial de novo” is a retrial of a case.
DECLARATORY JUDGMENT: One that declares the rights of the parties or expresses the opinion of the court on a question of law.
DECREE: A decision or order of the court. A final decree is one that fully and finally disposes of the litigation; an interlocutory decree is a provisional or preliminary decree that is not final.
DEFAULT: A “default” occurs when a litigant fails to perform a mandatory act in the time allowed.
DEFERRED JUDGMENT: A judgment entered by the court in a criminal case in which the penalty is delayed for a period of time, usually with the intent of setting it aside if the defendant fulfills certain court requirements.
DEPOSITION: The testimony of a witness or a party taken under oath and before a court reporter; generally during the discovery phase of a case.
DIRECT EVIDENCE: Testimony of facts by eye witnesses; distinguished from circumstantial, or indirect evidence.
DIRECTED VERDICT: An instruction by the judge to the jury to return a specific verdict.
DISCOVERY: A pre-trial process in which parties to a lawsuit may gather facts and evidence from other parties or witnesses. Depositions and interrogatories are part of the discovery process.
DISMISSAL: A court order dismissing a case without the entry of a decree. The issues of the case can be relitigated. In a case dismissed “with prejudice,” the issues cannot be relitigated. Cases that are settled between the parties usually are dismissed with prejudice.
DOMICILE: A person’s permanent home. A person may have several residences but only one domicile.
DOUBLE JEOPARDY: A constitutional prohibition against more than one criminal prosecution or punishment for the same crime. A criminal prosecution, however, does not prohibit a civil action by persons injured.
DUE PROCESS: The constitutional assurance of a fair and impartial hearing for all those coming before the court. Procedural due process insures that a person receives adequate notice and an opportunity to be heard on a matter that may affect his or her rights.
E
EMINENT DOMAIN: Government’s power to take private property for public use by condemnation.
EN BANC: When all judges of an appellate court hear an appeal, the court is said to be sitting en banc.
ENTRAPMENT: An act by government officers or agents to induce a person to commit a crime not previously contemplated by the person.
EQUITY OR EQUITABLE REMEDIES: A court order or judgment providing non-monetary relief, such as an injunction, a restraining order or a writ of mandamus. Traditionally, plaintiffs sought money damages in a court of law and equitable remedies in a separate court of equity, but Iowa law no longer distinguishes between these two civil courts.
ESCHEAT: The right of the state to property upon which no one can make a valid claim.
ESCROW: The holding of an instrument such as a deed or money by one person until a certain time or until a certain action occurs. At that time, the escrowed item is released according to the terms of the escrow agreement.
ESTOPPEL: A person’s own act, acceptance of facts or inaction that precludes later claims or action to the contrary.
EX PARTE: A court order granted on behalf of one party without a formal hearing or an opportunity for the opposing party to contest the order–for example, an order allowing additional time to file a brief.
EX POST FACTO: After the fact.
EXHIBIT: A paper, document or other article produced and exhibited to a court during trial or hearing. In Iowa, exhibits are public records and may be copied for public or private use.
EXPERT WITNESS: A person qualified to speak authoritatively by reason of special education, training or experience with the subject.
EXTRADITION: The surrender by one state (Missouri) to another (Iowa) of an individual accused or convicted of an offense outside one (Missouri) and within the territorial jurisdiction of the other (Iowa) .
F
FALSE ARREST: Any unlawful restraint of a person’s liberty, whether in prison or elsewhere.
FELONY: A crime more serious than a misdemeanor. Generally, an offense punishable by imprisonment in a penitentiary.
FIDUCIARY: One who stands in a position of trust and confidence to another.
FORCIBLE ENTRY AND DETAINER: A court proceeding for restoring possession of land to one who has been wrongfully deprived of possession–for example, an order allowing a landlord to evict a tenant.
G
GARNISHMENT: A proceeding in which property or money of a debtor can be obtained by a creditor–typically, getting part of a person’s wages from an employer.
GUARDIAN: One who is approved or appointed by the court to look after the physical well-being of a minor or incompetent.
GUARDIAN AD LITEM: One who is appointed by the court to look after the interests of a minor or incompetent involved in litigation.
H
HABEAS CORPUS: “You have the body.” The name given a variety of writs whose purpose is to bring a person before a court. It is usually directed to an official, such as a sheriff, commanding him to bring a prisoner before the court.
HARMLESS ERROR: An error committed by a trial court that does not prejudice the rights of either party. An appellate court will not reverse a judgment where the error was harmless.
HEARING: A judicial or quasi-judicial proceeding to determine definite issues of fact or law. Generally less formal than a trial.
HEARSAY: Evidence not based on the personal knowledge of the witness but rather from what others have said.
HOLOGRAPHIC WILL: A will written, dated and signed by a person in his or her own handwriting.
I
IMPUTED NEGLIGENCE: Negligence that is indirectly attributable to a person, such as the negligence of an employee is often attributable to an employer.
INADMISSIBLE: Evidence that cannot be submitted at trial.
IN CAMERA: In the judge’s chambers.
INCOMPETENT EVIDENCE: Another term for inadmissible evidence.
INDICTMENT: A written accusation by a grand jury, charging a person with a crime.
INFORMATION: A criminal accusation against a person; filed by a public official instead of by a grand jury.
INJUNCTION: A court-ordered equitable remedy either prohibiting or requiring a certain act or thing.
INSTRUCTION: A direction given by the judge to the jury concerning the law of the case.
INTER ALIA: Among other things or matters.
INTERLOCUTORY: An adjective that means a court order or decree is provisional or temporary, not final, or an appeal taken before there is a final order by the trial court.
INTERROGATORIES: Part of the discovery process; written questions given by one party and to another who must then provide written answers under oath.
INTERVENTION: A process in which a third party is permitted by the court to join into a lawsuit or legal action; constitutes greater involvement than amicus curiae.
INTESTATE: One who dies without a will. The state then decides how the estate is distributed.
IRRELEVANT: Evidence that does not relate to, support or apply to the matter at issue.
J
JUDGMENT: See “Verdict”.
JUDICIAL NOTICE: Acceptance or recognition of certain facts of common knowledge that judges and jurors may properly take and act upon without formal proof.
JURISDICTION: The ability of the court to exercise its power over either a person or the issues of a lawsuit.
JURY: Grand–A jury of inquiry that receives complaints and accusations in criminal cases, hears the evidence and issues indictments in the cases in which the jury is satisfied that a trial should be held. Only evidence from the prosecution’s side is presented. Pettit–The ordinary jury of 12 or fewer persons for the trial of a civil or criminal case.
L
LETTERS ROGATORY: A request by one court of another in a separate jurisdiction that a witness be examined upon interrogatories that accompany the request.
LEVY: The obtaining of money by legal process through seizure and sale of property.
M
MALFEASANCE: The commission of an act prohibited by law. Misfeasance is improper performance of a legal act.
MALICIOUS PROSECUTION: An action without probable cause that is instituted to injure the defendant.
MANDAMUS: A writ from a court that directs a public official or a lower court to perform a particular act.
MATERIAL EVIDENCE: Evidence that addresses the substantial issues in a dispute.
MISDEMEANOR: Criminal offenses less than felonies; generally those punished by a fine or imprisonment other than in penitentiaries. In Iowa, misdemeanors may be simple, serious or aggravated–in terms of increasing severity of penalties: 30 days in jail or a fine of $100 for a simple misdemeanor, a year and/or a fine of $1,000 for a serious misdemeanor and two years and/or a fine of $5,000 for an aggravated misdemeanor.
MISTRIAL: A trial that cannot stand because of errors in jurisdiction or proceedings or the failure of a jury to reach a verdict.
MITIGATION OF DAMAGES: A plaintiff’s duty to try to lessen the damage or harm done by a defendant’s wrongful action. For example, if a defendant vacates an apartment with 10 months remaining on the lease, the landlord has a duty to try to rent the apartment during that period and cannot keep it empty, expecting the defendant to pay the full cost.
MOOT: A point or issue that is not or cannot be decided judicially, perhaps because circumstances in the case have changed and a substantive legal issue no longer exists.
N
NEGLIGENCE: Doing something that a reasonable person, guided by ordinary considerations, would not do; or not doing something that a reasonable person would do.
NEXT FRIEND: One acting for the benefit of an infant or other person without being formally appointed as guardian.
NOLO CONTENDERE: Literally, “I will not contest it.” Rather than pleading innocent or guilty, a person does not contest the charge and accepts a sentence. There is, however, no admission of guilt. Iowa law does not use this plea, although federal courts do.
NOMINAL PARTY: One who is named as a party or defendant in a lawsuit only because the technical rules of pleading require it.
NON-OBSTANTE VEREDICTO (Judgment NOV): Notwithstanding the verdict. A judgment entered by order of court for one party, although there has been a jury verdict to the contrary.
NORTHWESTERN REPORTER: The official series of books containing the published opinions of the Iowa Supreme Court and the Iowa Court of Appeals. Cases at the district level are “not reported” because they do not appear in the Northwestern Reporter.
O
OBJECTION: Asking the court to rule that certain evidence or procedure is improper.
OF COUNSEL: A phrase commonly applied to a lawyer employed to assist in the preparation or management of a case or its presentation on appeal, but who is not the principle attorney of record.
OPINION EVIDENCE: What an expert witness thinks, believes or infers in regard to facts in dispute, as opposed to personal knowledge of the facts.
OUT OF COURT SETTLEMENT: A case that is compromised, settled or withdrawn by private agreement of the parties involved after litigation has begun.
P
PAROLE: The release of a prisoner before the expiration of his sentence but requiring that certain terms and conditions be satisfied, including rules for the parolee’s behavior.
PER CURIAM: An unsigned opinion issued by an entire appellate court as opposed to one written by a specific justice on behalf of the court.
PEREMPTORY CHALLENGE: The challenge that the prosecution or defense may use to reject a certain number of prospective jurors without saying why.
PLAINTIFF: A person who begins a legal action.
PLEADING: The process in which the parties in a suit or action alternately present written statements of their contentions. The petition, answer, counterclaim and reply are the most common pleadings.
POWER OF ATTORNEY: Authorization of another to act as one’s agent or attorney. Authorization may be either specific or general.
PREJUDICIAL ERROR: The opposite of “harmless error.” Synonymous with “reversible error” in that it warrants the appellate court to reverse the judgment before it.
PRELIMINARY HEARING: A hearing to determine if an accused should be held over for trial in a criminal case.
PREPONDERANCE OF THE EVIDENCE: Generally the burden of proof in civil cases.
PROBATE: The act or process of proving a will.
PROBATION: Allowing a person convicted of some offense to remain free of jail or prison but under the supervision of a probation officer.
PUNITIVE DAMAGES: Money awarded to punish a defendant and deter others from committing similar acts.
R
REASONABLE DOUBT: In a criminal case, the level of doubt that must be overcome by the prosecution for jurors to reach a guilty verdict.
REBUTTAL: A lawyer’s argument that challenges, or rebuts, the arguments or statements of opposing counsel. Also, testimony that contradicts testimony already presented.
RECORD: The complete history of a case, including all written documents filed by the attorneys, all orders of judgments filed by the judge, all exhibits received into evidence and all testimony of witnesses, arguments of counsel and comments of the judge recorded by the court reporter.
REFEREE: A person the court appoints in a case to take testimony, hear the parties and report back to the court. The referee is an officer exercising judicial powers and is an arm of the court for further action. In Iowa, referees are commonly used in probating estates and in child welfare matters.
REMAND: An action by an appellate court returning a case to a lower court for further action.
REPLY: The pleading filed in response to the Answer filed by the defendant. At trial, the argument presented by the plaintiff’s lawyer that responds to statements made by the defendant’s lawyer.
RESTRAINING ORDER: A court order prohibiting a person from engaging in a particular act usually for a specified time period. These often are obtained “ex parte”, or by one party. For example, a wife may obtain a restraining order preventing her spouse from harassing or threatening her.
RULE NISI OR RULE TO SHOW CAUSE: A court order demanding that one party show cause why certain requested relief should not be granted.
RULES OF PROCEDURE: Formal published rules that in Iowa govern civil and criminal cases, and the appeals of those cases. Federal courts have separate published rules.
S
SCHEDULING CONFERENCE: A conference among the parties and the court where a trial date is determined and discovery deadlines are set. Scheduling conferences may be held before a court administrator, unless there is disagreement between the parties on deadlines.
SEARCH AND SEIZURE, UNREASONABLE: Evidence that is obtained in an unlawful search cannot be used in an any criminal proceeding. Usually, allegations that evidence was obtained through an illegal (unreasonable) search and seizure are heard by the court prior to trial.
SEARCH WARRANT: An order in writing by a justice or magistrate, in the name of the state, directing an officer to search a specified house or other premises. Usually required for a legal sear
SENTENCES: Concurrent– Sentences served at the same time for more than one crime. Consecutive–Sentences one after the other. Indeterminate–in felony cases, a sentence of up to 25 years. The parole board is given authority to decide the final length of sentence.
SEPARATE MAINTENANCE: Allowance granted to a spouse, usually the wife, for support for the spouse and children while living apart from the spouse but not divorced.
SEQUESTER: A court order requiring the jury in a case to be kept apart from all persons but court officers during the conduct of and deliberations upon a trial. A device to prevent interference with the conduct of the trial.
SPECIFIC PERFORMANCE: An equitable relief ordering the performance of a certain act, often the completion of a contract. In order to obtain specific performance of a contract, the plaintiff must show that money damages cannot compensate for a loss.
STARE DECISIS: “The decision stands.” An issue that has been decided by case law precedent.
STAY: A court order stopping a court proceeding.
STIPULATION: An agreement by opposing parties, usually in writing, about any fact or matter pertaining to the case.
SUBPOENA: A court order to cause a witness to appear and give testimony. Witnesses can be subpoenaed to give a deposition during the process of discovery, as well as at trial.
SUBPOENA DUCES TECUM: A subpoena that demands that the witness bring certain documents or records when called to give testimony.
SUMMARY JUDGMENT: Judgment granted by a court when there is no genuine issue of material fact in dispute.
SUMMONS: An order issued by the clerk of court informing a defendant that a suit has been filed against her or him, and summoning the defendant to appear before the court and file an Answer to the complaint.
SUPERSEDEAS: A court order halting the effect of a trial court judgment during the appeal process. When money damages have been awarded, the court can require the defendant to file a supersedeas bond sufficient to guarantee payment of the judgment if it is affirmed by the appeals court.
T
THIRD-PARTY CLAIM: A claim by a defendant against a party not already in the lawsuit.
TORT: A civil injury or wrong committed against the person or property of another. Personal injury suits, such as those arising from car accidents, plane crashes, etc., are tort actions, as are suits alleging product liability, libel, invasion of privacy, wrongful death, or medical malpractice.
TRANSCRIPT: The court reporter’s official record of words spoken at a hearing or a trial.
TRUE BILL: When a grand jury finds sufficient evidence to warrant a criminal charge, it returns to the court a “true bill” of indictment against the wrongdoer.
U
UNDUE INFLUENCE: Any attempt to influence someone to do or say something he would not otherwise do or say.
V
VENIRE: A term used to refer to a group, or pool, of persons summoned for jury duty.
VENUE: The particular county, city or place where a case will be tried.
VERDICT: The conclusion rendered by a jury. Decision–The written opinion of an appellate court. Judgment–A court order finally disposing of all aspects of the case. In a criminal case, it is the order of the court imposing a sentence, or releasing the defendant from the custody of the court. In civil cases, it is the order of the court imposing damages, if any, and assessing costs. Order– A court administrative order determining some aspect of the conduct of the case, such a setting bail, setting a time for a hearing, or scheduling the filing of briefs. Ruling–A court’s decision in response to a motion filed by a party. A ruling usually interprets a question of law.
VOIR DIRE: The questioning of potential jurors in a case by the lawyers for both parties and, occasionally, by the court itself.
W
WAIVER: Voluntarily giving up a known right.
WEIGHT OF EVIDENCE: The balance of credible evidence in favor of one party over another.
WILLFUL: Intentional misconduct on the part of a person. Distinguished from that done negligently or carelessly.
WITH/WITHOUT PREJUDICE: See “Dismissal”.
WITNESS: One who testifies to what he or she has done, seen, heard or otherwise observed.
WRIT: A court order requiring the performance of a specified act.