Joyce F. Glucksman - Glossary of Terms

Glossary of Terms

COMPLAINT/PETITION: This is the document that begins a lawsuit. While you may have a charge filed with the Equal Employment Opportunity Commission or an internal grievance with your employer, an agreement with a spouse to change custody or support or other matter not filed with a Court, only a Complaint or Petition filed in Court starts a lawsuit. If you work for the federal government an appeal filed with the Merit Systems Protection Board can start an administrative proceeding. If you have any one of the other matters pending advise your attorney or prospective attorney of that but don’t use the term lawsuit, suit or in some situations “case” if you really mean something other than a matter filed in Court.

ANSWER: The Answer is a document filed by the “defendant” or “respondent”. It is a paragraph by paragraph response to each of the paragraphs in a Complaint or Petition. It must include some defenses if the defendant is going to raise those defenses. It may include other defenses as well as a “Counterclaim”

COUNTERCLAIM: A counterclaim is a claim against the person who filed the lawsuit. If it involves the same factual information as the Complaint it must be filed with the Answer. If it contains other allegations against the Plaintiff or person filing the lawsuit, not necessarily concerning the same facts as the complaint, it may also be included as a Counterclaim. You should tell your attorney about any claims you may have against the person filing the lawsuit.

In divorce actions it is common for the defendant to file an Answer and Counterclaim for divorce. This is to insure that the defendant or respondent is served with any matter that the Plaintiff or Petitioner files. Without this, it is possible that the spouse who files the divorce petition can go to Court, present evidence and argument and get a judgment against you all without your knowledge. When the parties reach an agreement as to all matters including custody of the minor children, if any, visitation, child support, spousal support also known as alimony and the division of real and personal assets and liabilities only one party need to go to court to obtain the final divorce. At that time, the other party will dismiss their counterclaim or claim.

There is no counterclaim to a Merit Systems Protection Board or Equal Employment Opportunity Commission matter for federal government employees.

AMENDMENT: Either side may amend their claims, as a matter of right or by permission of the Court depending upon the stage of the lawsuit. You should not depend on amending your position as there are legal reasons for denying your right to amend. This is especially true for adding new parties to the lawsuit. Always tell your lawyer all the facts and claims you have or may have against the other party and he/she can make a decision whether to include the claim in the Complaint or Counterclaim.

DISCOVERY: Most trials are not “trial by ambush”. Rather, by the time you are actually in Court for trial there should be no surprises. Each side should have seen every document that will be introduced into evidence, know about all the witnesses who will testify, except in rare circumstances witnesses for rebuttal, and know all facts and all issues to be heard by the Court. The means for finding out what evidence the other party has, including witnesses to support their position. It is also used to narrow the issues and to encourage settlement. There are four basic types of discovery. Your lawyer may use any or all of these in preparing your case. He/she may use them in the order he/she feels is best. Formal Discovery includes Interrogatories, Requests for Production and/or Inspection, Requests to Admit and Depositions. Interrogatories and Requests for Admission are not used for information held by non-parties.

INTERROGATORIES: Interrogatories are used to obtain the name of people with knowledge of the facts, the names of expert witnesses, identification of documents and other questions you want the other side to answer. Some Courts such as the Federal Courts and Family Court in Fulton County have mandatory disclosures or interrogatories which must be answered along with or shortly after filing the Complaint or the Answer to the complaint. Many Courts limit other Interrogatories to a specific number of questions including subparts. Interrogatories, whether mandatory or discretionary are answered under oath sworn by the party.

REQUESTS FOR DOCUMENTS: A written request served upon a party, witness, or other person or entity for production of specific documents and/ or things for review which are relevant or could lead to the discovery of relevant information. These documents may be produced in the way they are maintained in the ordinary course of business including on computer. A medical release is required to get medical or psychological records.

REQUEST TO ADMIT: A request to admit is a written statement of a specific fact concerning the case which is submitted to an adverse party. The receiving party must object, file for a protective order or must admit, deny or respond that the party has insufficient information to admit or deny the statement. Requests for Admission must be answered within 30 days or an agreed upon or court ordered date or they are deemed admitted. If a party must prove a fact that should have been admitted, the judge is authorized to assess fees against the party for the time necessary to prove the fact that should have been admitted. Requests to admit are often used to get agreement that a document is a true and genuine copy of the original.

REQUEST TO INSPECT: This is a written expression of a right to inspect, review or have reviewed tangible property. It may also be used to obtain an independent medical or psychological opinions or to have an expert test something tangible.

DEPOSITIONS: This is a procedure used to find out what a witness or party will say about your case. It is normally used to discover facts or views held by the deponent, the person whose testimony is being sought. It can be used for discovery, to preserve testimony if the witness may become unavailable due to death or other serious condition or because a witness will be unavailable at the time of trial. Physicians often have their testimony presented by deposition rather than going to court during the trial.

VARIOUS MOTIONS WHICH MAY BE FILED BY THE PARTIES

MOTION TO COMPEL: When a party or witness refuses to answer discovery, objects to a particular question or request for document or fails to appear for a deposition the party seeking the discovery may apply to the Court for an order or rule directing the requested party to answer discovery or produce something tangible. If the Court grants the motion the moving party may request attorneys fees for having to make the motion. If a party fails to respond to discovery after an order to do so, the Court may take an adverse inference, ie. assume the response would be favorable to the party seeking the discovery, or impose other sanctions such restricting the respondent’s ability to enter evidence on the particular issue for which the discovery was sought. In more severe cases of abuse, the Judge may dismiss a complaint in its entirety or striking the answer so that the recalcitrant party can not contest liability and can only defend damages.

SUMMARY JUDGEMENT OR SUMMARY DISPOSITION: A motion for summary judgment is a method of disposing of an action without further proceedings including a trial. Under the Federal Rules of Civil Procedure, and the rules of civil procedure of many states, a party who can show there are no material issues of fact to be resolved may ask the Court to decide the case in that party’s favor as a matter of law. If summary judgement is granted there will not be a trial.

SETTLEMENT CONFERENCE: In Federal Court actions there is one or more mandatory settlement conferences. There may also be settlement conferences at any time in Federal or State Courts.

PRETRIAL HEARING: There may be one or more pretrial hearings to define issues and dispose of any unheard motions. Usually the Judge or Magistrate to whom your case is assigned will require this. In Fulton County Family Court a pretrial hearing may be heard by a Judicial Officer.

PRETRIAL ORDER: In most cases that will be going to trial, the parties have to submit a proposed pretrial order to the Judge. It will include things such as the parties’ names, attorneys for the parties, a list of stipulations, if any, a list of proposed witnesses, a list of proposed exhibits and any information about motions which are still pending. If the trial is before a jury most Courts ask for a list of people and things for which the prospective juror will be screened. The jury will be qualified as to parties, counsel and other major factors such as ownership of stock in any corporation which is a defendant. Once a Pretrial Order is signed by the Judge it can not be amended except by Court Order and only for an exceedingly good reason as to why the proposed amendment was not put in the original Order.

LIST OF WITNESSES: A witness may be either an expert or lay witness. Expert witnesses must be disclosed as soon as they are retained. Lay witnesses can usually only testify about what they personally saw or heard. They could testify that “I heard something which sounded like a crash” but could not testify as to what someone else told them if the purpose of the testimony is to establish a fact. If the purpose of the testimony is just to establish something was said it is usually admissible.

FINDINGS OF FACT AND CONCLUSIONS OF LAW: In non-jury trials Judges may issue Findings of Fact and Conclusions of Law. A party has the right to get this from court. A finding of fact is a determination by the court, averred by one party and denied by the other, and founded on evidence in case. The Judge will often have to make credibility determinations in their Findings of Fact. Conclusions of Law is the conclusion by the trier of fact based on reasonable inferences from the evidence applied to the law.

VERDICT: The formal decision of a jury concerning questions of fact submitted to it by the court for determination in the trial of a case. In a civil case, the jury may be required to return either a general verdict or a special verdict. A general verdict says something like “We find in favor of the plaintiff in the amount of $_____. A special verdict or verdict with interrogatories asks specific questions to be decided by the jury in coming up with their ultimate verdict.

JUDGMENT: The decision of the Court. The final determination by a court of the rights of the parties, based upon the pleadings and the evidence. One can only appeal from a judgment not a verdict.

APPEAL: Not all matters are appealable as a matter of right. In certain cases such as divorce one must ask the appellate court to grant permission to appeal. This is done by a “Writ of Certiorari” or “Petition for Cert”. In order to have a successful appeal you must have a transcript of the trial. Without a transcript to overturn the judgment it must be defective on it’s face. If there is any evidence to support the judgment, it may be affirmed. In many cases the Appellant (the person who is appealing the lower Court rulings) must also prove that the trial court made an error which would have caused the trier of fact to decide adverse to what was decided. A case will not be reversed if there is only “harmless error”.

ADR: Sometimes referred to as “alternative dispute resolution” or ADR, “ mediation, arbitration, early and late case evaluations are alternatives to the use of lawsuits or may be used in conjunction with a Court proceeding. In many cases Courts will order the parties attempt to mediate their disputes. This does not mean that the Court is mandating a specific outcome or that the parties have to settle however, in some cases it can affect payment of attorneys fees by one who is “stubbornly litigious” and refuses to accept a reasonable offer.

ARBITRATION: A method of settling disputes by submitting a disagreement to a neutral third person (an arbitrator) for decision instead of going to court. If the parties are required to comply with the decision of the arbitrator, the process is called binding arbitration; if there is no such obligation, the arbitration is referred to as nonbinding arbitration. Many companies are having their employees sign agreements to arbitrate disputes rather than taking them to Court. Should a party try to file a complaint in Court where there is an arbitration clause the other party can file a suit to compel arbitration.

MEDIATION: The voluntary resolution of a dispute in an amicable manner through the use of trained neutral mediator. The mediator will try to help the parties craft their own agreement rather than have a verdict which may not satisfy either party imposed on them by a judge or jury. Mediation differs from arbitration in that a mediator, unlike an arbitrator, dose not render a decision.

NEUTRAL EVALUATION: Another form of ADR is neutral evaluation where an experienced lawyer or judge who is not assigned to the case gives his or her opinion concerning the probable outcome of a matter. It may be done early in a case or shortly before trial. It is used to facilitate an agreement between the parties.