COMMON TERMS AND PHRASES USED IN CIVIL LITIGATION IN CALIFORNIA

Throughout the litigation process, you’re bound to run into a variety of terms and phrases that you’ve never heard before, or that you may have heard, but don’t really understand. This article seeks to provide you with an easy-to-understand (i.e., plain English) working understanding of the most common terms and phrases with which you are most likely to be exposed within the context of a normal civil litigation case. Italicized words will appear the first time another glossary term is used (letting you know that you can look up that word).

While certainly not an exhaustive list, the terms and phrases included below will go a long way toward helping you better understand the litigation process. At the very least, you’ll have a clearer understanding of what your attorney is talking about.

This article is meant to work in conjunction with the previously published article, “Everything You Need to Know About Civil Litigation in California.”

A

Action — Action is sometimes used as a shorthand term for a lawsuit as a whole (i.e., the parties to the action).

Admissible Evidence — Admissible evidence is evidence that can be used in court to prove a party’s claims or defenses. On the flip side, inadmissible evidence is evidence that is not allowed to be used in court (even though it may be relevant or accurate).

ADR — See Alternative Dispute Resolution.

Affidavit — See Declaration.

Affirmative Defenses — Affirmative defenses are specific defenses that a defendant or cross-defendant will include in an answer that serve to provide a defense and/or mitigation to one or more of the claims alleged (e.g., statute of limitations, impossibility, etc.).

Alter Ego — Alter-ego is a doctrine used by the courts to ignore the corporate status of an entity (e.g., corporation or LLC) and treat the shareholders/members and their entity as one and the same. Alter-ego liability will generally result if a plaintiff (or cross-complainant) can prove that there is a unity of interest and ownership between the entity and its owners and if recognizing the separateness between the two would be unfair, or would otherwise perpetrate a fraud on the court and the entity’s creditors. The consequence of an alter-ego finding is to pierce the corporate veil of the company and hold the shareholders or members liable for the debts and obligations of the entity.

Alternative Dispute Resolution —More commonly referred to as ADR, alternative dispute resolution is a broad term describing different mechanisms (most commonly, arbitration and mediation) aimed to help parties to a dispute resolve or adjudicate their dispute outside of court.

Answer — The answer is a defendant’s (or cross- defendant’s) formal response to a complaint (or cross-complaint). If a defendant/cross- defendant fails to file an answer, they can be defaulted, and judgment can be entered against them. An answer formally puts the case “at issue.”

Anti-SLAPP — See SLAPP.

Appeal — ***An appeal is a formal request for the appellate court to review the decision(s) of a lower court. In most cases (the exceptions of which won’t be discussed in this article), the appellate court sees only the official record produced in the case while it was in the trial court, and thus in most situations no new evidence or facts are considered. That’s why it’s so important to maintain a clear record.

Arbitration — Arbitration is a type of ADR where the parties have agreed to forgo their rights to have disputes heard in court, and instead submit those submits to one or more arbitrators to decide. An arbitration, therefore, takes the place of a trial in state or federal court in that the parties may conduct discovery (subject to rules and limitations), submit evidence, examine witnesses, and present their cases to the arbitrator(s) for a decision, which may ultimately transformed into an enforceable court judgment. Arbitration is almost always less time consuming and less steeped in procedure, and it is almost always binding (i.e., parties who agree to submit disputes to arbitration almost always also agree to make the arbitration decision binding).

At Issue — A case is said to be at issue when: (i) all of the defendants have been served, and proofs of service have been filed with the court; and (ii) when all the defendants have filed an answer.

B

Bench Trial — A trial where the judge acts as both the trier of fact (i.e., there’s no jury) and trier of law. Put more simply, it’s a trial, but without a jury. There’s only the judge.

Bifurcation — Bifurcation means that a trial is separated into two or more mini-trials (but usually only two). The most common example of bifurcation is separation of a trial into a liability phase and a damages phase. Sometimes, two separate juries are empaneled to hear each phase.

Bond — See Undertaking.

Breach — In the context of standard business litigation case, a breach describes a party’s violation or failure to perform some required obligation. For example, if someone fails to pay their mortgage, they can be sued for breach of their obligations under a promissory note. If someone fails to pay for your services under a contract, you could sue for breach of contract.

Burden of Proof — The burden of proof is the required standard that a plaintiff or cross- complainant must meet to prove its case (i.e., to win). The burden of proof, therefore, sets the standard for how convincing the evidence must be to support the claims alleged. In most civil litigation cases, the burden of proof is the “preponderance of evidence” standard, which requires plaintiff to prove that its claims are more likely to be true than not true. A good way to imagine this burden is to think of a set of balance scales. If the scales are tipped even a little bit in favor of the plaintiff, then the plaintiff must win. And if the scales are absolutely level, the plaintiff must lose (because the plaintiff had the burden of proving the allegations were more likely true than not true).

C

CACI — CACI stands for California Jury Instructions, and they are the standard pre-printed and numbered civil trial jury instructions read to juries before deliberations begin.

Case Management Conference — A case management conference, also referred to as a CMC, is a standard hearing set in all civil litigation cases in California (typically 90-120 days after a lawsuit is filed). The hearing’s purpose is to allow the parties to check in with the judge to determine whether everyone’s been served, to select a trial date, and to otherwise address other matters referenced in the Rules of Court. For those judges that permit it, many attorneys choose to appear at CMCs via telephone to save their clients time and money.

Case Management Statement — The case management statement is a pre-printed judicial council form required to be completed and filed prior to the CMC, that addresses the issues to be discussed at the CMC (e.g., whether the parties intend to conduct discovery, file motions, etc.).

Cause of Action — A discreet claim for relief consisting of one or more facts, which if pleaded the correct way, gives a party the right to seek legal redress from another. A complaint (the opening move in a lawsuit) is made up of one or more causes of action. For example, a complaint might state causes of action for breach of contract, fraud, breach of fiduciary duty, discrimination, etc.

Charging Order — A charging order is a tool used in the enforcement of a judgment to aid a judgment creditor in collecting on a judgment against a member of an LLC. A charging order directs a limited liability company to pay any intended distributions to the judgment creditor rather than the member-judgment debtor.

Claim — See Cause of Action.

CMC — See Case Management Conference.

Common Count(s) — Common counts are a series of common law, equitable pleadings used to recover debts. They are not used as frequently as they used to be because they aren’t really necessary anymore. Examples of common counts include “money had and received,” “open book account,” and “account stated.”

Compensatory Damages — Compensatory damages is actually a broad category of damages which can be awarded to compensate a party for a loss caused by the wrongful conduct of someone else. Compensatory damages encompass a whole host of other types of damages (e.g., consequential, direct, indirect, special, etc.).

Complaint — Compensatory damages is actually a broad category of damages that can be awarded to compensate a party for a loss caused by the wrongful conduct of someone else. Compensatory damages encompass a whole host of other types of damages (e.g., consequential, direct, indirect, special, etc.) that are beyond the scope of this article.

Consequential Damages — See Special Damages.

Contingency Fee — A contingency fee is a fee arrangement between an attorney and a client that grants the attorney some percentage (typically fixed) of a recovery in exchange for the legal work on the case. Unlike attorneys who are paid by the hour, when it comes to contingency lawyers, the right to collect fees is contingent on whatever was agreed to in the fee agreement. In civil cases, a contingency fee will usually grant an attorney the right to take between 30% and 40% of the sum awarded/collected, although that number can vary for a variety of reasons.

Counterclaim — See Cross-Complaint.

Countersuit — See Cross-Complaint.

Cross-Claim — See Cross-Complaint

Cross-Complainant — A cross-complainant is the same thing as a plaintiff, except that party is typically (but not always) also the defendant in the main lawsuit.

Cross-Complaint —Cross-Complaints are lawsuits within a lawsuit, and are filed by a defendant against the plaintiff and/or another defendant within the confines of an already existing lawsuit. Cross-complaints are often referred to as countersuits, counterclaims, or cross-claims. They’re the same thing as a normal complaint, except for being filed by an existing defendant or cross-defendant.

Cross-Defendant — A cross-defendant is the same thing as a defendant, except that party is the defendant in a cross-complaint. Frequently (but certainly not always), the plaintiff is the one sued in the cross-complaint, and thus the plaintiff will also be called the cross-defendant. Sometimes, however, a third party is brought into the lawsuit as a cross-defendant, and if that new party files its own cross-complaint, then it will be a cross-complainant and cross-defendant. It can get complicated. Keep in mind that if something is true for a plaintiff, then it’s often also true for a cross-complainant.

Cross Examination —The questioning of a witness by another party (usually by the attorney of another party), either at a hearing or at trial.

D

Damages —Damages are an award (almost always in the form of money) granted to a party to compensate them for the wrongful conduct of another. In a broad sense, there are two main types of monetary damages—compensatory damages and punitive damages.

Declaration — A declaration is a written statement of one or more facts made under oath by a witness outside the presence of a court officer or notary. Declarations are used in the context of civil litigation cases to attest to the truthfulness of evidence introduced, often in written motions, as well as to verify the truth of discovery responses or confirm lawful service of legal documents. In California, affidavits are virtually synonymous, but in some jurisdictions, those are made in the presence of a court officer or notary, while a declaration is not.

Declaratory Relief — Declaratory relief is a cause of action that asks the court to make a determination about the respective rights or obligations of the parties to resolve a specific controversy. For example, a plaintiff might plead a cause of action for declaratory relief to obtain an order from the court regarding the interpretation or construction of a contract.

Default — In the context of litigation, a “breach” might refer to breaking the terms of a contract. For example, if you sign a promissory note that says that you’re supposed to pay $500 per month and you fail to send in a payment, the lender can declare that you’ve “breached” the contract.

Default Judgment — See Request for Entry of Default and Request for Entry of Default Judgment.

Defendant — A defendant in a civil suit is the party being sued (e.g., the defendant is the party being accused of committing some wrong against the plaintiff). Keep in mind that if something is true for a defendant, then it’s often also true for a cross-defendant.

Demurrer — A demurrer is a written response to a complaint that basically states that even if everything alleged in the lawsuit is true, there is still no legal basis to support the claims alleged. In other words, filing a demurrer is like asking “so what”? For the purposes of a demurrer, the court must accept as true all facts alleged in the complaint. The court cannot weigh any evidence or make any determination about the truthfulness or falsity of an allegation. There are two types of demurrer—general and special, both of which are discussed in more detail in my previous article.

Deposition — A form of discovery, a deposition is the questioning of a witness under oath, in the presence of a court reporter, who is taking every word of testimony down. Depositions are important both to gather information and evidence, as well as to preserve a witness’s testimony (e.g., such as when a party thinks the witness might not be “available,” legally speaking at least, at the time of trial).

Direct Damages — Direct damages are those damages that flow directly from the wrongful act of another and that a reasonable person would expect might occur as a result of a wrongful act. These typically include things like the cost of repair, medical bills, replacement costs, etc. They’re easy to prove and flow directly and foreseeably from the wrongful act that caused them. For example, if I make a contract to paint someone’s house for $10,000 and after painting the house, the owner refuses to pay me the $10,000, the owner will be liable to me for my direct damages in the amount of $10,000. Or, if a contractor does a bad job fixing something, the costs I incur in finding another contractor to finish/repair the work would also constitute direct damages.

Direct Examination — Direct examination is the questioning of a witness by the party calling that witness. The purpose, therefore, of direct examinations is to obtain evidence in support of the claims being alleged, or the defenses being asserted, depending on what side you’re on. Leading questions are prohibited during direct examination, except in certain limited circumstances (e.g., when used to establish a foundation or, with the court’s permission, when questioning a “hostile” witness).

Directed Verdict (Motion for) — Similar to a motion for nonsuit, a motion for a directed verdict is a trial motion that also operates like a demurrer by accepting all facts presented as true and then saying “so what”? These motions can be brought by either the plaintiff or a defendant and must be brought after both parties rest their cases (unless the court specifies a different time). A plaintiff’s motion for a directed verdict should be granted in cases where the plaintiff presented evidence establishing the elements of each cause of action and the defendant failed to offer any evidentiary support to any of its defenses. A defendant’s motion for a directed verdict should be granted in cases where, after disregarding conflicting evidence of equal weight, and after giving the plaintiff’s case the best possible interpretation supported by the evidence, the court determines that the plaintiff has simply not met its burden of proof. When a judge grants a directed verdict, it’s basically an order to the jury to come back with that verdict.

Discovery — Discovery is the process of gathering information in a civil lawsuit. Discovery includes written discovery (e.g., special and form interrogatories, document requests, requests for admissions, and subpoenas) and depositions (live testimony).

Dismissal — A dismissal of a lawsuit, which can be done “with prejudice,” or “without prejudice.”

DOE(s) — DOEs are fictitious defendants (ROEs for a cross-complaint) that could not be named by the plaintiff when the lawsuit was initially filed. Most civil complaints name a certain number of DOES (e.g., 10, 15, or 25) as additional defendants just in case new information is learned during the pendency of the case. Then, if the plaintiff wants to add a new defendant, the plaintiff simply has to substitute one of the DOES for the name of the new defendant, and so forth. Eventually, unused DOE defendants are dismissed from the lawsuit, leaving just the explicitly named defendants.

E

Elements (to Causes of Action) — The elements to a cause of action are those specific items that need to be proved at trial before a defendant will be held liable for that particular cause of action. For example, to win on a cause of action for breach of contract, a plaintiff must prove at trial all of the following elements: (i) the existence of a contract with the defendant; (ii) plaintiff’s performance or excuse for non-performance; (iii) defendant’s breach of the contract; and (iv) plaintiff’s damages resulting from defendant’s breach. If a plaintiff fails to prove even a single required element of a cause of action, that cause of action should fail.

Equity (Courts of) — In terms of most civil litigation cases, the term “equity” often refers to a type of remedy that involves an order for a party to do or not do something (e.g., injunction). In the old days, there were courts of law (who could only order an award of money damages) and courts of equity (who could only order injunctive relief). Today, even though our courts have combined those powers (i.e., they hold the power to decide both issues of law and equity) the distinction is still important. For example, there is no right to a jury trial for purely equitable claims (i.e., no right to a jury if you’re only seeking an injunction).

Evidence — In simple terms, evidence constitutes proof regarding the truthfulness of certain claims or allegations. Evidence can take a variety of forms, including witness testimony, documents, objects, etc. Not all evidence is equal, and in fact, some evidence is considered much stronger than other kinds of evidence. Evidence that can be offered in court is called admissible evidence, while evidence that can’t be offered in court (even if accurate and relevant) is called inadmissible evidence.

Evidentiary Objection(s) — An evidentiary objection is a procedural challenge to the admission of specific items of evidence offered by the other side. Evidentiary objections often accompany oppositions or replies to motions, and usually have to do with challenges relating to issues like relevance, hearsay, capacity, foundation, or standing.

Executed — Most of the time, when you see the word “executed,” you’re seeing it in the context of a document, and in those instances, the word is just a fancy synonym for “signed.” So, if an attorney asks you to execute a verification, you’re just being asked to sign that document.

Exemplary Damages — See Punitive Damages.

Exhibit(s) — Exhibits are supporting documents (e.g., to a complaint, motion, or at trial) or other types of evidence that help support or prove the arguments/claims made. For example, in a breach of contract lawsuit, a copy of the contract at issue, along with any emails showing demands made on the non- paying party, would be typical exhibits. On the defense side, you might include copies of proof of payment (e.g., endorsed checks, bank records) to defend against a claim for breach of contract.

Exhibit List(s) — A list of the exhibits the parties may use during the trial. Items on the list will not necessarily be admitted into evidence (assuming a party offers all the items on its list). For example, some of the documents may be subject to evidentiary objections.

Ex Parte — The term ex parte (Latin for “from one party”) has more than one meaning. For example, ex parte can refer to improper communications with a judge where not all the parties (or their attorneys) are present. Most commonly, however, ex parte refers to extremely shortened notice related to a hearing (typically the day before) that is being brought because of some “emergency” where the regular notice period for a motion or application is not an option.

Expert Witness — An expert witness is a person called to testify regarding issues that the court or law says requires professional or specialized knowledge. Unlike most witnesses, who may only testify about things that they have personal knowledge of (i.e., percipient witnesses), expert witnesses may offer opinions, and may even testify about or rely upon materials which are otherwise inadmissible. In the context of traditional civil litigation cases, certain things require the testimony of expert witnesses (e.g., scientific or medical opinions, future damages, or other types of economic forecasting).

F

Form Interrogatories — A form of written discovery published by the Judicial Council of California. Form interrogatories are pre-printed questions aimed at gathering basic information about the facts, allegations, and defenses in a given case. There are several sets of standard form interrogatories for different types of cases (e.g., employment, regular civil, personal injury, etc.) that parties can require other parties to respond to under oath.

Foundation — Like a foundation of a building, upon which the entire structure rests, “foundation” in the context of civil litigation represents the basis upon which evidence may be admitted (or not admitted) into evidence. On the flip side, “lacks foundation” is common objection intended to prevent a piece of evidence (e.g., testimony or a document) from being admitted into evidence at a hearing or trial. In the case of testimony, for example, the party offering the evidence must prove that the witness is competent to testify and has personal knowledge of the issue being testified to. In the case of a document, the party offering the evidence must prove that the document is what it purports to be. Other types of evidence require different ways of laying a proper foundation.

G

General Appearance — A general appearance, which occurs through the earlier of a physical appearance in court or through the filing of most types of documents with the court, is a tacit acknowledgment to the court that a party is submitting to the jurisdiction of the court in a particular case. Once a party has made a general appearance in a case, that party cannot later contend that the court lacks jurisdiction over that party. For example, if a defendant files an answer or a demurrer to a complaint, that defendant is deemed to have generally appeared in the case. If, however, the defendant files a motion to quash service because the court lacks personal jurisdiction over the defendant, such an appearance will not constitute a general appearance, but instead will be deemed to be a special appearance.

General Demurrer — See Demurrer.

General Denial — A general denial is literally that—a general, formulaic, one sentence statement in an answer where a defendant generally denies all of the facts and claims alleged in a plaintiff’s (or cross-complainant’s) complaint. It’s included in almost every answer to a complaint.

General Verdict — A general verdict involves a jury reaching a decision on all the relevant issues in the case in favor of one side or the other.

General Verdict Form — The form submitted by a jury when they’re asked to issue a general verdict. In its simplest form, a general verdict form will state who the jury finds in favor of, who they find against, and how much the jury will award the prevailing party.

H

Hearing — An instance where the parties (or more commonly, their attorneys) are in front of the judge to decide one or more discreet legal issues relevant to the case. For example, if a party refuses to comply with a valid discovery request, the party who served the discovery might bring a motion to force compliance. That motion would be resolved by the judge at a hearing. Hearings are among the relatively few times that an attorney appears before a judge outside of the context of the trial.

Hearsay — In almost all movies and TV, the word “hearsay” is misused. You’re probably used to hearing the word “hearsay” thrown around whenever someone says something on TV or in a movie that the listener disagrees with (e.g., “Objection! Hearsay!”). In fact, the term actually refers to any statement made outside of a courtroom used to prove the truth of whatever is being said. All hearsay statements are inadmissible unless a specific exception applies. This would render anything ever said out of court inadmissible. So, obviously there must be several exceptions. And there are. There are numerous exceptions, including dying declarations, business records, admissions by a party, and prior inconsistent statements.

I

Injunction — An injunction is a form of relief where the court has ordered someone else (more frequently, the other party, but not always) to do something, or more commonly, to stop doing something. For example, if you sue a competitor for using your company’s protected trade secrets, you might file a motion for injunctive relief (by seeking a preliminary injunction) so that the court will order the defendant to stop using your company’s trade secrets pending the outcome of the case (where, if you win, the preliminary injunction would become a permanent one). Or, if your neighbor’s trees are destroying your hardscape, you might see an injunction forcing him or her to install a root barrier or remove the trees.

Injunctive Relief — When a party seeks injunctive relief, that party is seeking some sort of injunction from the court.

In Limine (Motion(s)) — Motions in limine are pre- trial evidentiary motions filed to prevent certain evidence (documents or testimony) from being presented during trial. The obvious public policy behind motions in limine is that once the bell’s been rung, you can’t un-ring it.

Impeachment (of a witness) — Impeachment in the context of civil litigation typically refers to impeaching a witness’s credibility or testimony. For obvious reasons, a party always wants to impeach the other side’s witnesses. There a variety of ways to impeach a witness, but the most typical ways are: (i) introducing the witness’s prior inconsistent statements; (ii) demonstrating a witness’s bias; (iii) attacking a witness’s lack of truthfulness in the past; (iv) proving a witness’s deficiencies in their knowledge or recollections; or (v) showing how the witness’s testimony conflicts with various other witnesses.

Interrogatories — Interrogatories, a broad discovery category, are questions asked of the other party to gather information relevant to the case at issue. Interrogatories can take the form of pre-printed questions (i.e., form interrogatories) or questions posed by the parties or their attorneys (e.g., special interrogatories).

J

JNOV — See Judgement Notwithstanding the Verdict.

Judgment — A judgment is a decision by a court (i.e., the judge) that resolves a dispute and determines the rights between the parties. As a physical item, a judgment is simply a piece of paper issued by a court that states which of the parties is the winner and which is the loser of the lawsuit, and what the loser must do (e.g., pay money damages, stop doing something, etc.). A jury’s decision is not a judgment. Juries render verdicts, not judgments, but the judgment will be based on the jury’s verdict.

Judgment Creditor — The party who won the lawsuit or in whose favor the judgment was entered. Judgment creditors are typically owed money as a result of a judgment.

Judgment Debtor — The party who lost the lawsuit or against whom the judgment was entered. Judgment debtors are typically the ones that owe money as a result of a judgment.

Judgment Notwithstanding the Verdict (Motion for) — A judgment notwithstanding the verdict, or a JNOV, is a post-trial motion that challenges the legal sufficiency of the other party’s evidence (either the whole case, or just one or more causes of action). In other words, the evidence submitted was not sufficient to result in the verdict the jury handed down. In theory, JNOVs will be denied where there is substantial evidence supporting the verdict reached by the jury.

Judgment on the Pleadings (Motion for) — A motion for judgment on the pleadings is exactly like a demurrer, except that it’s filed after the defendant has filed an answer.

Jurisdiction — Jurisdiction is a court’s authority over the parties or issues in a case (i.e., the court’s right to hear and decide a case). For example, if I’ve never done business in Utah and never traveled there, a court in Utah would find it virtually impossible to establish jurisdiction over me if someone tried suing me there. Generally speaking, there are several kinds of jurisdiction, including: (i) personal jurisdiction (a courts power over you); (ii) subject matter jurisdiction (a court’s power to hear the case at issue); (iii) territorial jurisdiction (sometimes referred to as “venue,” and describes the geographic boundaries a court can exert its authority over); (iv) general/limited jurisdiction (courts that can hear almost any or only special types of cases, respectively); and (v) exclusive jurisdiction (there is only one court who can hear certain types of cases).

Jury Instructions — Printed instructions that the judge reads to a jury explaining not only the necessary legal elements required to determine liability for each of the causes of action at issue in a case, but also basic instructions about deliberations, determining liability, etc. Most jury instructions come from pre-printed CACI forms, while some are written by the parties’ attorneys (from scratch, or from modified CACI instructions). The parties each submit their jury instructions to the judge, who decides which ones to read.

L

Laches — Laches is an affirmative defense that claims that a plaintiff waited an excessive or unreasonable amount of time before suing to enforce a right.

Lawsuit — See Action or Complaint.

Leading Questions — A leading question is a type of question that suggests the answer. Examples of non-leading questions might be (i) “Were you present at the meeting held on September 1”? or (ii) “Did you hear Mr. Smith admit to embezzling the money”? Examples of leading questions would be (i) “You were present at the meeting held on September 1 weren’t you”? or (ii) “You heard Mr. Smith admit to embezzling the money didn’t you”? Except under limited circumstances (e.g., to lay a foundation or when dealing with a hostile witness), leading questions are not allowed during direct examination, but they are permitted during cross-examination.

Leave to Amend (with or without) — In the context of most civil litigation cases, leave to amend refers to a ruling by a court that has sustained or granted a demurrer or motion, respectively. For example, if a demurrer is sustained with leave to amend, the plaintiff is afforded an opportunity to amend the relevant cause(s) of action to fix the defects raised in the demurrer. If, however, a demurrer is sustained without leave to amend, the cause(s) of action in question are stricken permanently. If the demurrer in such a case happens to apply to all the causes of action, then the case is over, leaving the defendant as the prevailing party.

LexisNexis — Similar to Westlaw, LexisNexis is a popular legal research and news resource that attorneys use to conduct legal research and otherwise help them prepare their cases.

Liability — In the civil litigation context, when a party has been determined to have liability, that party has been deemed legally responsible for the harm or damages caused in the case.

Lien — A claim on property to prevent the sale or transfer of the property until a debt is paid. Liens can be used to enforce a judgment by forcing the sale of property to pay the debt.

Limitations Period — See Statute of Limitations.

Limited Civil Case — A general civil case where the claimed damages are less than $25,000. Most small claims cases could also be filed as limited civil cases if a plaintiff wanted to do that. The rules governing limited civil cases are geared around moving the cases to trial faster than in unlimited civil cases, and this is done through a variety of means, including much more limited discovery rights.

Lis Pendens — Latin for “pending suit,” a lis pendens is recorded against a parcel of real property to put the world on notice of existing litigation involving a disputed claim to the property. There are strict statutory requirements surrounding the recordation of a lis pendens. If is extremely difficult to sell or refinance a property that has a lis pendens recorded against it.

Liquidated Claim(s) — A liquidated claim usually refers either to an agreed upon amount between a creditor and a debtor regarding a specific sum of money owed, or a claim for money owed that can be explicitly calculated (sometimes referred to as a sum certain).

Litigation — Litigation is a fancy word for the process a party takes to resolve legal disputes through the court system or private arbitration. For a good explanation of the litigation process in California, see my prior article entitled, “Everything You Need to Know About Civil Litigation in California.”

Litigation Privilege — The litigation privilege is a type of statutory immunity offered to participants in litigation, administrative actions, and other enumerated activities that, for public policy reasons, prevents them from being held liable for statements made in the course of activities. For example, the litigation privilege in California would protect someone who alleged in a lawsuit that a defendant did or said something even if the defendant could show that the plaintiff knew the accusation was false when it was alleged. The litigation privilege does not, however, prevent a defendant from suing the plaintiff for malicious prosecution—especially where such intentional misrepresentation can be proven.

M

Mandatory Settlement Conference (MSC) — An MSC is typically set very close to the start of a trial, and is very much like a mediation, except that it’s mandatory and takes place at the courthouse. Although almost never held with the judge assigned to the case, in some cases it is. The purpose of an MSC is to give the parties one last chance to settle the case before the actual trial begins.

Marital Communications Privilege (or Marital Privilege) — The marital communications privilege is one of the two marital privileges recognized in California. The privilege affords a party who is married the right to refuse to disclose, or prevent their spouse from disclosing, confidential communications between them made during their marriage.

Mediation — Mediation is just another word for formal settlement talks. It does not involve any decisions as to the facts or law of the case, and it does not result in any decision, ruling, order, or judgment. Rather, the parties will typically select a mutually agreeable mediator (often a retired judge or experienced attorney working through an ADR company like AAA or JAMS) and provide the mediator with confidential briefs outlining the facts and law supporting their cases. The mediator will then attempt to convince the parties to compromise and reach a settlement, although neither side is required to agree to anything presented during a mediation.

Minute Order — A minute order is an order of the court, typically issued following a hearing. Minute orders contain the courts findings/decision as to the relevant issues presented at the hearing.

Mistrial — In civil litigation, a mistrial is a trial that is rendered invalid because of some serious problem in the proceedings. Such problems can results from errors on the parts of judges, jurors, parties, or their attorneys, or from things like the death of a juror, attorney, or the judge. In criminal trials, a mistrial can also occur when the jury is unable to reach a unanimous verdict.

Motion — In simple terms, a motion is a formal request to a court that it do something or decide some aspect of fact or law regarding the case. Most motions will result in a hearing before the judge where the parties can engage in oral argument (having already filed their papers). In most cases, the party bringing the motion will file the motion, which is followed by an opposition from the other side, and then a reply to the opposition filed by the moving party.

N

New Trial (Motion for) — A motion for new trials is a post-trial motion asking the court to reexamine one or more issues of fact or law following a verdict. Such motions seek to vacate all or part of a verdict rendered and instead permit a new trial on the issue(s) challenged. In short, a motion for a new trial is a request for a do-over.

Nonsuit (Motion for) — A motion for nonsuit is a motion brought during trial after the plaintiff (or cross-complainant) completes their opening statement or rests their case. It is very much like a demurrer in that it is conceding the facts offered by plaintiff and still saying “so what”? A plaintiff facing a motion for nonsuit has the right to “re-open” to remedy any defects in evidence presented.

Notice — In the context of civil litigation, notice is a legal notification that something has happened or was filed with the court. Almost all motions, orders, and other things filed in a case require notice be provided to all parties.

Nunc Pro Tunc — Latin meaning “now for then,” a nunc pro tunc order is a retroactive order. Although issued on a certain date, the order is effective retroactively to a particular date in the past.

O

Opinion — In the context of civil litigation, an “opinion” is generally synonymous with a decision by a court. For example, if a judge writes out his or her reasons for deciding a case a certain way, that decision is often described as the judge’s “opinion.”

P

Papering (a Judge) — See Peremptory Challenge (Against a Judge).

Peremptory Challenge (Against a Judge) — A peremptory challenge against a judge affords each party, within the time frame required by the Rules of Court, a one-time opportunity to exclude a judge assigned to a case without having to provide cause or reason. Such challenges are colloquially called “170.6 motions” (so named after Code of Civil Procedure section 1706, which spells out the peremptory rights) or “papering a judge.”

Peremptory Challenge (Against a Juror) — A peremptory challenge against a juror affords the parties (during jury selection) the right to object and exclude a potential juror without having to provide cause or reason. Each side gets a set number of peremptory challenges, so they have to be used strategically.

Perjury — Perjury is the act of knowingly making false statements while under oath. A witness can perjure him or herself verbally (e.g., while giving untruthful testimony at a deposition, hearing, or trial), or in writing (e.g., by signing a false declaration or affidavit).

Personal Jurisdiction — See Jurisdiction.

Personal Service — Personal service refers to situations where a party or witness is personally served legal documents. In cases where personal service is required (as opposed to mail or electronic service), the person serving the papers must be 18 years or older, not a party to the case, and must leave the papers with the person to be served. A person to be served does not have to sign anything or even outwardly accept the documents. It’s enough, in fact, to leave the documents at that person’s feet.

Petitioner — In the context of a civil litigation case, a petitioner is either the party who filed a demand for ADR, or the party who is appealing a decision from a trial court or arbitrator. In other words, a “petitioner” is comparable to a plaintiff, or the party who is filing a claim in arbitration or on appeal.

Pierce(ing) the Corporate Veil — Piercing the corporate veil occurs when a court holds the owners of a company (for the most part, a privately held one) with limited liability (e.g., a corporation or LLC) personally liable for some or all of the debts of the entity. In other words, when a court pierces a company’s corporate veil, the shareholders/members lose the limited liability afforded to them by virtue of their entity. Typically, courts will pierce the corporate veil when the company and its owners are alter-egos of each other.

Plaintiff — The plaintiff is the party who files a lawsuit.

Pleading(s) — A pleading is formal, legal “statement” that’s filed with the court. Pleadings must adhere to a variety of formatting and content requirements established by state and local laws. Complaints, answers, motions, and briefs are all examples of pleadings.

Points and Authorities — Often referred to as P’s and A’s (or “P&As”), the points and authorities refer to the argument portion of a motion or opposition to a motion. Points and authorities are usually preceded by a Notice, and succeeded by one or more declarations and exhibits.

Prayer (for Relief) — The prayer is the part of a complaint (located at the end) or answer where the plaintiff or defendant, respectively, describes what its seeking from the other party. On the plaintiff’s side, a prayer often includes a demand for money or injunctive relief, while the prayer for a defendant might include a finding by the court that the defendant is not in breach of an agreement. Prayers can also include demands for the court to make a ruling regarding the parties’ respective rights/obligations about something (e.g., declaratory relief), or claims for attorneys’ fees and costs (if a statute or contract explicitly permits such a remedy).

Preliminary Injunction — A preliminary injunction is a short-term form of injunctive relief issued by the court against a party that orders the party to do (or not do) something during the pendency of the lawsuit. It’s purpose is to preserve the status quo until the lawsuit can be decided on its merits. If the case ends in favor of the party who sought the preliminary injunction, the judgment might transform the preliminary injunction into a permanent injunction. Preliminary injunctions frequently follow the granting of a temporary restraining order (often referred to as a TRO). This definition does not apply to injunctions granted as part of domestic violence restraining orders (often called “DVROs”).

Preponderance of Evidence — A burden of proof standard that simply requires that it be more likely than not that whatever is to be proved is true (i.e., the amount of proof necessary to win). The best way to look at this standard of proof is to imagine a balance scale. If the scale dips even minutely to the side of the party who has the burden of proof, then that party should win.

Privilege(d) — In the context of civil litigation, something that is privileged is protected from disclosure or action. There are different kinds of privilege, including the attorney-client privilege, priest-penitent privilege, spousal privilege, and litigation privilege.

Proof of Service — A document that declares under oath that the documents described in the proof of service were served on certain parties. Complaints, answers, motions, discovery, and other types of documents always require proofs of service.

Propounding Party — In the context of civil litigation, the propounding party usually refers to the party who served discovery on another party or witness. The party responding to discovery would, therefore, be referred to as the “responding party.” Propounding party can also technically describe the party that filed something, although usage in that way is not too common.

Protective Order — In the context of civil litigation, a protective order is an order (usually agreed to ahead of time by the parties) that prevents the disclosure of certain confidential information except to specified people under a specific set of conditions during the course of a case. For example, if, during the pendency of a lawsuit for violation of California’s uniform trade secrets act, a plaintiff was trying to prove that the defendant stole certain confidential information, the plaintiff might request certain business documents from the defendant. If those documents included information the defendant held confidential, the parties (through their attorneys) might sign a stipulation for a protective order (which would become an order when signed by the court). Such protective orders can include a requirement that the documents are for “attorneys eyes only,” or that the documents can be viewed by the attorneys or parties, but only in presence of the court, and without making copies, etc.

Punitive Damages — Damages available in certain causes of action to punish a party where the applicable party was found to be guilty of oppression, fraud, or malice. For example, defendants proven to have committed fraud or other serious business torts are often assessed punitive damages to punish them and set an example to others.

Q

Quash (Motion to) — A motion to quash is filed by a defendant to challenge the service of a complaint either because service was not properly done, or because the defendant is challenging the court’s jurisdiction. A failure by a defendant to file a motion to quash will result in a waiver of that defendant’s right to challenge the court for lack of personal jurisdiction or claim inadequate service. Motions to quash constitute special appearances.

Quiet Title — Quiet title is a cause of action seeking to clear up the ownership interests and rights of the parties over a particular parcel of land. A plaintiff in a quiet title action will often record a lis pendens to provide notice of the dispute.

R

Real Property — Real property is land and the structures contained on land. Your house, a building, or an undeveloped plot are all examples of real property.

Rebuttal — Evidence offered by a party to overcome evidence presented by another party.

Record — This is actually two separate words, a noun and a verb, each with a separate meaning relevant to civil litigation. The noun (pronounced rek-erd) is a written record of the entire case, including transcripts of the entire trial, exhibits offered at trial, pleadings, rulings, orders, etc. The verb (pronounced ri-kawrd) describes the act of filing a document with the county recorder’s office (such as a deed to a property or a lis pendens).

Release — In the context of civil litigation, a release refers to a party’s release from liability, and is almost always an integral part of any settlement agreement. A general release is a release of all claims against another. A general release does not, however, extend to claims that a party does not know (or suspect) to exist, and which if known by that party, would’ve materially affected that party’s willingness to enter into the settlement. For purposes of releasing those types of claims, parties can, in addition to including a general release in their settlement agreements, also include a 1542 release (which refers to Civil Code § 1542), which functions to provide a waiver of such unknown claims (i.e., the ones normally excluded from just a general release).

Remand — A case is said to be on remand when an appellate court has ruled on an appeal and then sent the matter back to the trial court to make a decision in conformity with the appellate court’s ruling.

Remedy — The remedy in a civil case is typically what the plaintiff is looking to get out of the lawsuit (i.e., their damages). Not all remedies are available to a plaintiff. It depends upon the nature of the claim(s) alleged. For example, damages for emotional distress in a breach of contract case are not recoverable, so such damages wouldn’t be available to a plaintiff. Remedies can be described in terms of money (e.g., monetary damages) or an order to force someone to do (or not do) something (e.g., injunctive relief).

Remittitur — This word has two meanings in the context of jury verdict. First, a remittitur (Latin for “to send back”) is a post-trial procedure where a judge can order a reduction of a judgment awarded by a jury that either exceeds the amount that the plaintiff actually asked for in the prayer, or that the judge deems as too excessive. A defendant might demand a remittitur in lieu of making a motion for a new trial. The second meaning refers to the document from the appellate court that returns jurisdiction of the case back to the trial court.

Request for Admissions (RFAs) — A Request for Admissions is a type of written discovery that demands that an opposing side admit or deny various factual contentions. A Request for Admissions can be a very powerful tool in civil litigation. Such discovery can clarify the issues/facts that are not in dispute in a case, including issues/facts that are material to one or more elements of one or more causes of action.

Request for Entry of Default — A request for entry of default is a document filed with the court when a defendant fails to timely respond to a lawsuit (e.g., by filing a demurrer, motion to quash, or answer). It represents the first of two steps in obtaining a default judgment, although in some cases, a request for entry of default can be filed simultaneously with a request for entry of default judgment. The filing of a request for entry of default will prevent the defendant from filing an answer, or otherwise defending itself, without first going to the court to request relief from the default.

Request for Entry of Default Judgment — A request for entry of default judgment is a document filed with the court after (or in some cases, simultaneously with) the filing of a request for entry of default. In most situations, the judgment obtained has the same force and effect as any judgment obtained after a trial.

Request for Production of Documents (RPDs) — Also referred to as RPDs, a Request to Produce or a Document Request, RPDs are a form of written discovery that requires the other party to produce documents (either physical or electronically stored) and other things relevant to a lawsuit. Such requests are used both to gather evidence and determine what evidence the other party is relying upon.

Respondent — The flip side of the petitioner. This is the party who responds to an ADR demand or an appeal.

Responding Party — The flip side of the petitioner. This is the party who responds to an ADR demand or an appeal.

Responses — The flip side of the propounding party. This is the party who is responding to a pleading or discovery.

Rest — During trial, a party will “rest” when it has completed presented its case (or defense).

ROE(s) — See DOE(S), except these are used by a cross-complainant rather than the plaintiff.

S

Sanctions — A penalty (often monetary), ordered by the court, and issued against a party, attorney, or witness following a violation of a statute, order, or rule. For example, a party might be sanctioned for refusing to respond in a reasonable fashion to interrogatories, forcing the propounding party to file a motion to compel. In granting such a motion, the court will often sanction the responding party.

Service — “Service” describes the delivery of legal papers to other parties (or witnesses) in a lawsuit. There are strict rules governing how court documents, discovery, and other case- related materials must be “served” on other parties/witnesses, and these statutes are often very strictly construed to protect the due process rights of the parties/witnesses.

Settlement Agreement — A settlement agreement is an agreement reached by the parties to a dispute (often a lawsuit, but also frequently as part of negotiations before a lawsuit is filed) that almost always contains both a general and “1542 release,” and which releases the parties from liability for all claims relevant to the dispute. Settlement agreements may have provisions requiring a party to pay the other party, or requiring a party to take some action (or not to take some action). In the context of civil litigation, settlement agreements almost always end the case, at least as to the parties of the settlement, and result in dismissal of the lawsuit with prejudice.

Special Appearance — A special appearance is an appearance (either in writing or at a hearing) by a defendant solely for the purpose of challenging the court’s jurisdiction over the defendant or the issues relevant in the case. All other appearances constitute general appearances.

Special Damages — Special damages, sometimes also referred to as consequential damages, are damages that result from a party’s failure to abide by obligations in a contract. The thing that makes special damages so special is that they go beyond just the types of damages one might expect would result directly from a breach. Common examples of special damages include things like lost profits, increased interest rates resulting from delays, etc. For example, if I hired a contractor to install a roof for me and it blew off during a typical winter storm, the costs of repair, etc. would be direct damages because those damages are completely foreseeable and relatively easy to calculate. But what if I had made a deal to sell the building for a huge profit because it reminded the buyer of a building he saw as a kid and the deal fell through because of the roof blowing off. The money I lost in that sale might constitute special damages. The negligent work on the roof did in fact cause my loss of profit, but that loss was much more indirect and harder to predict.

Special Demurrer — See Demurrer.

Special Interrogatories —A form of written discovery, special interrogatories are a list of questions written by the propounding party and posed to another party. Special interrogatories are used to gather information and evidence necessary to prove or defend a party’s case, as well as to determine the extent of evidence the other side is relying upon.

Special Verdict —A special verdict, as opposed to a general verdict, is one where the jury makes a determination on specific facts, issues, elements, or damages of a case (rather than simply determining the winner).

Specific Performance — Specific performance is a legal remedy that forces a defendant to perform on a contract. Specific performance is used when money damages won’t be adequate. For example, if two parties enter into a purchase and sale agreement to purchase a building and the seller decides to breach the contract by backing out, the buyer can sue the seller for specific performance and obtain a judgment that requires the seller to complete the transaction. Specific performance in real estate contracts is more common because all real property is considered unique, and thus money damages are almost always deemed inadequate.

Spousal Privilege — Spousal privilege (shortened from spousal testimony privilege) is one of the two marital privileges recognized in California, and affords a spouse the right to refuse to testify against his or her spouse.

Standing — Standing describes whether a party has a right to bring the lawsuit or claim. If a party lacks standing, that party doesn’t have a right to pursue the lawsuit, which will likely end up getting dismissed by the court.

Statement of the Case — A written statement prepared by each party prior to trial describing the matters to be litigated.

Statement of Decision — A statement of decision is a document in which a judge, following a bench trial, explains the legal and factual basis for his or her decisions with respect to each controverted fact or issue in the case. The judge is not required to issue a statement of decision unless a party makes a timely request for the court to do so.

Statute — Statute is just another word for a law that is on the books.

Statute of Limitations — The period of time in which a lawsuit must be filed to allow the plaintiff the right to obtain relief. Any claim alleged after the applicable statute of limitations has run will preclude the plaintiff from having a right to proceed with a lawsuit or obtain a judgment. For example, a lawsuit alleging a breach of a written contract must be brought within four years from the date of the breach. If a person waits five years and then files a lawsuit, even the though the debt might be valid, the plaintiff will lose. Calculating when a statute of limitations has started to run can prove tricky because certain events can toll the running of the clock.

Subpoena —In the context of civil litigation, subpoenas are a form of written discovery intended for non-parties (because parties receive different types of discovery, such as special interrogatories or requests for admission). A subpoena requires a third party’s appearance and/or production of documents at a deposition, hearing, or trial. Subpoenas can be issued by the court or by attorneys, and if ignored, can result in monetary penalties or even jail time (although the latter is exceedingly rare).

Summary Adjudication (Motion for) — See Summary Judgment (Motion for).

Summary Judgment (Motion for) — A Motion for Summary Judgment, often referred to as an “MSJ,” is a motion filed by a party in a lawsuit seeking judgment without a trial because there are no material facts in dispute. MSJs are called dispositive motions because they dispose of the entire case (either the plaintiff’s or the defendant’s defenses). The difference between a motion for summary judgment and a motion for summary adjudication is that in a motion for summary judgment, the party bringing the motion seeks to end the entire lawsuit, while in a motion for summary adjudication, the party bringing the motion seeks a final determination of one or more discrete causes of action or issues, leaving the rest of the lawsuit intact.

Summons — A summons, which is almost always served on a defendant simultaneously with the complaint itself, provides formal notice to a defendant that the defendant has been sued. Along with other information, a summons contains the case number and names of all the plaintiffs and all the defendants in a case. Until a defendant is properly served with a summons, the court does not have personal jurisdiction over the defendant.

Sustained — In the context of civil litigation, you usually see this word used in response to an objection about a party’s attempt to introduce evidence. If an objection is sustained, then it means that the judge is not allowing the proffered evidence into evidence. If the objection is denied, then the evidence gets in. The word “sustain” is also used in the context of a demurrer. Courts don’t “grant” demurrers; they sustain them (which means that they’re granted).

T

Temporary Restraining Order (TRO) — ***

Tentative Ruling — ***

Terminating Sanctions — Terminating sanctions are a more drastic form of sanctions that a court might impose on a party (usually in the context of discovery abuses—e.g., as called for in Code of Civ. Proc., § 2023.010) for willful and continuing wrongful conduct. Terminating sanctions can take several forms, including striking out entire pleadings or portions of pleadings, resulting in a default judgment against the offending party (hence the “terminating” part of the phrase).

Toll(ing) (as in Statute of Limitations) — Tolling describes the stopping of the clock when dealing with statutes of limitations. Most often, the instances when the running of an applicable statute of limitations is tolled is specified in a statute. For example, certain statutes of limitations don’t start to run until a plaintiff discovers (or should’ve reasonably discovered) the harm done to the plaintiff.

Tort(s) — A tort is an injury to another person (or another person’s property) for which the wrongdoer is legally liable to the injured party. Torts can be intentional (e.g., fraud) or unintentional (e.g., negligence).

Trailing — If the trial court is not ready to commence a trial on the date previously set for trial, the case will be trailed. Basically, this means that it will be offered to any judge that has time in his or her schedule to hear the case. Many counties have rules regarding how long a case will trail for before a new trial date gets assigned. Some counties require parties who are trailing to remain in the courthouse during business hours for a set time period (e.g., three days). This often fosters settlement.

Trial — A trial is the actual adjudication of a lawsuit by a judge or jury in a court of law. Trials commonly include opening and closing statements and witness examinations, and they always include the introduction of evidence and a verdict.

U

Undertaking — In the context of civil litigation, an undertaking is a promise offered in the form of security to guarantee performance of something. Typically, the term undertaking is used to describe the payment of a bond. For example, a party seeking a TRO might be required to post an undertaking in the form of a bond in return for the court’s granting of the TRO.

Unlawful Detainer — Unlawful detainers are civil lawsuits brought to evict people from someone else’s real property.

Unlimited Civil Case — A general civil case where the claimed damages are at least $25,000. Most business litigation cases are unlimited civil cases.

V

Verdict — A verdict is a decision rendered by a jury. It does not become a judgment until the court (i.e., the judge) signs a judgment (which is based on the verdict).

Verification — A verification is a document that is signed under oath by a party or witness that attests to the truth of the statements/documents contained in another document (usually to which the verification is attached). For example, discovery responses must be “verified,” which means that they contain verification pages signed by the party providing the responses. Sometimes, a plaintiff might verify a complaint, in which case the plaintiff is swearing under oath that the allegations contained in the complaint are true.

Voire Dire — Latin for “to speak the truth,” voire dire is a preliminary examination of a prospective juror or witness to determine if they’re fit or qualified to serve/testify.

W

Westlaw — Westlaw, like LexisNexis, is a legal research and news resource that attorneys use to conduct legal research and otherwise help them prepare their cases.

With Prejudice / Without Prejudice — These terms refer to the dismissal of a case or the denial of a motion, but in both instances the meanings are similar. In the context of a case, when a lawsuit is dismissed with prejudice, it means that the claims alleged can never be brought again. If, however, a lawsuit is dismissed without prejudice, the plaintiff is free to refile the same claims (provided that the statute of limitations hasn’t expired on any of those claims). With respect to a motion, when a court denies a motion with prejudice, it means the moving party may not bring that motion again. If, however, a court denies a motion without prejudice, the party is free to refile that motion at a later date in the case.

Witness List — A witness list is a joint list of witnesses that each side reserves the right to call to testify during a trial. A joint witness list is typically provided to the court at the same time as the other pre-trial documents (e.g., motions in limine, exhibit list, etc.).