motion for a new trial
n. a request made by the loser for the case to be tried again on the basis that there were significant legal errors in the way the trial was conducted and/or the jury or the judge sitting without a jury
obviously came to an incorrect result. This motion must be made within a few days after the judgment is formally entered and is usually heard by the same judge who presided at the trial. Such a
motion is seldom granted (particularly if the judge heard the case without a jury) unless there is some very clear error which any judge
would recognize. Some lawyers feel the motion helps add to the record of argument leading to an appeal of the case to an appeals court.
motion for a summary judgment
n. a written request for a judgment in the moving party's favor before a lawsuit goes to trial and based on testimony recorded
outside court, affidavits (declarations under penalty of perjury), depositions, admissions of fact and/or answers to written
interrogatories, claiming that all factual and legal issues can be decided in the moving party's favor. These alleged facts are
accompanied by a written legal brief (points and authorities) in support of the motion. The opposing party needs to show by
affidavits, written declarations or points and authorities (written legal argument in support of the motion) that there are "triable
issues of fact" and/or of law by points and authorities. If there are any triable issues the motion must be denied and the case can go to
trial. Sometimes, if there are several claims (causes of action) such a motion may cause the judge to find (decide) that some causes of
action can be decided under the motion, leaving fewer matters actually to be tried. The paper- work on both sides is complex,
burdensome and in many states, based on strict procedures.See also: motion
n. carelessness which is in reckless disregard for the safety or lives of others, and is so great it appears to be a conscious
violation of other people's rights to safety. It is more than simple inadvertence, but it is just shy of being intentionally evil. If one
has borrowed or contracted to take care of another's property, then gross negligence is the failure to actively take the care one would
of his/her own property. If gross negligence is found by the trier of fact (judge or jury), it can result in the award of punitive damages
on top of general and special damages.
adj. Latin for "in fact." Often used in place of "actual" to show that the court will treat as a fact authority being exercised or an
entity acting as if it had authority, even though the legal requirements have not been met.
n. dishonesty, fraudulent conduct, false statements made knowing them to be untrue, by which the liar intends to deceive a party receiving
the statements and expects the party to believe and rely on them. This is a civil wrong (tort) giving rise to the right of a person to
sue the deceiver if he/she reasonably relied on such dishonesty to the point of his/her injury.
n. the act of misleading another through intentionally false statements or fraudulent actions.
See also: deceit fraud
v. to use deceit, falsehoods or trickery to obtain money, an object, rights or anything of value belonging to another.
See also: fraud
n. reasonable care or attention to a matter, which is good enough to avoid a claim of negligence, or is a fair attempt (as in due
diligence in a process server's attempt to locate someone).
n. scientifically, deoxyribonucleic acid, a chromosomal double chain (the famous "double helix") in the nucleus of each living cell, the
combination of which determines each individual's hereditary characteristics. In law, the importance is the discovery that each
person's DNA is different and is found in each living cell, so blood, hair, skin or any part of the body can be used to identify and
distinguish an individual from all other people. DNA testing can result in proof of one's involvement or lack of involvement in a
crime scene. While recent DNA tests have proved a convicted killer on death row did not commit a crime and resulted in his release, current
debate concerns whether DNA evidence is scientifically certain enough to be admitted in trials. The trend is strongly in favor of admission.
duty of care
n. a requirement that a person act toward others and the public with the watchfulness, attention, caution and prudence that a reasonable person in the circumstances would use. If a person's actions do not meet this standard of care, then the acts are considered negligent, and any damages resulting may be claimed in a lawsuit for negligence.
n. reported decisions of appeals courts and other courts which make new interpretations of the law and, therefore, can be cited as
precedents. These interpretations are distinguished from "statutory law," which is the statutes and codes (laws) enacted by legislative
bodies; "regulatory law," which is regulations required by agencies based on statutes; and in some states, the common law, which is the
generally accepted law carried down from England. The rulings in trials and hearings which are not appealed and not reported are not
case law and, therefore, not precedent or new interpretations. Law students principally study case law to understand the application of
law to facts and learn the courts' subsequent interpretations of statutes.
case of first impression
n. a case in which a question of interpretation of law is presented
which has never arisen before in any reported case. Sometimes, it is
only of first impression in the particular state or jurisdiction, so
decisions from other states or the federal courts may be examined as
n. (sersh-oh-rare-ee) a writ (order) of a higher court to a lower
court to send all the documents in a case to it so the higher court
can review the lower court's decision. Certiorari is most commonly
used by the U.S. Supreme Court, which is selective about which cases
it will hear on appeal. To appeal to the Supreme Court one applies to
the Supreme Court for a writ of certiorari, which it grants at its
discretion and only when at least three members believe that the case
involves a sufficiently significant federal question in the public
interest. By denying such a writ the Supreme Court says it will let
the lower court decision stand, particularly if it conforms to
accepted precedents (previously decided cases).
n. those rights guaranteed by the Bill of Rights, the 13th and 14th
Amendments to the Constitution, including the right to due process,
equal treatment under the law of all people regarding enjoyment of
life, liberty, property, and protection. Positive civil rights
include the right to vote, the opportunity to enjoy the benefits of a
democratic society, such as equal access to public schools,
recreation, transportation, public facilities, and housing, and equal
and fair treatment by law enforcement and the courts.
See also: Bill of Rights civil civil liberties