When reading documents from your lawyer, you may find a number of legal terms that you don’t recognize. Some of the legal terms you’re most likely to encounter when involved in a legal dispute are:
Mediation, Arbitration and Trial
Mediation is an attempt to settle a legal dispute with the help of an impartial mediator (or referee), who tries to help those involved in a dispute find common ground and resolve the dispute through mutual agreement. Mediation is completely voluntary and, if you aren’t able to agree on a resolution even with the mediator’s help, you can move ahead with arbitration or litigation.
Arbitration is also a method of resolving disputes out of court with the assistance of an independent third party. Unlike a mediator, though, an arbitrator acts like a judge, hearing arguments and evidence and making a legally binding decision that usually cannot be appealed. You may be required, either by contract or court order, to arbitrate a dispute instead of litigating it through the court system.
In a trial, the judge or jury makes a legally binding decision after hearing arguments and evidence in a formal proceeding in court. These decisions can usually be appealed to a higher court. There are a number of factors to be considered when determining whether arbitration or litigation is the best route for resolving a particular dispute.
Plaintiff, Defendant and Parties
A plaintiff is the individual or legal entity that files a lawsuit. The defendant is the person who is sued. Together, the plaintiff and defendant are called the parties.
Complaint, Answer, and Counterclaims
These documents are all pleadings, which are formal documents filed with a court.
A complaint is the document the plaintiff files with the court to begin a lawsuit. The complaint describes the causes of action, such as copyright infringement, malpractice or breach of contract, and what relief the plaintiff is seeking, such as damages and/or an injunction.
The defendant responds to those claims by filing a document called an answer.
A defendant can also bring claims against the plaintiff. Similar to a complaint, these claims are called counterclaims and are generally found in the same document as the answer.
Damages
Compensatory damages are damages that are recovered for injury and/or economic loss. Punitive damages are awarded over and above compensatory damages and are intended to serve not only as a punishment, but as a deterrent to others.
Discovery
Each party in a lawsuit can ask the other parties to furnish information related to the claims involved in the case. This is known as discovery. Some discovery may be available in arbitration as well, though it is usually quite limited. There are several types of discovery, but not all are used in every jurisdiction.
Interrogatories: questions asked in writing, seeking written answers;
Requests for production: requests for documents or things that might relate to the case;
Requests for admission: requests that a party admit or deny various statements; and
Depositions: formal oral interviews – usually in person but occasionally by telephone – in which the witness testifies under oath and a court reporter produces a written record of the deposition or a videographer records the deposition.
Injunction
An injunction is a court order requiring someone to either take a specific action or refrain from taking a certain action. For example, the court might require someone to stop making defamatory statements or require someone to destroy infringing copies of a book.
Pro Se
Pro se is pronounced “pro say,” and it is the term used when someone, whether a plaintiff or a defendant, chooses to proceed in court on their own, without a lawyer.
Continuance
A continuance is simply postponement of a hearing, trial or other court proceeding.
Motion to Make More Definite
When a complaint or counterclaim contains allegations that are so indefinite or uncertain that the precise nature of the claim is not apparent, a party may file a Motion to Make More Definite and Certain.
In Oregon state court, this motion is made under Rule 21D, and in federal court, this motion is made under Rule 12E. You will often hear this type of motion referred to by the relevant rule number.
Motion for Summary Judgment
A motion for summary judgment (“MSJ”) is a request by one party for the court to rule – before trial – that the case should be resolved on the pleadings. In some instances, the MSJ applies only to one part of the case, not the entire case.
For example, if a plaintiff sues for fraud and breach of contract, the defendant may file a motion for summary judgment only on the fraud claim. If the defendant wins, only the fraud claim will be dismissed and the lawsuit will continue with respect to the breach of contract claim.
Dismissal With or Without Prejudice
When a lawsuit is dismissed, it might be dismissed with prejudice, in which case the plaintiff is not permitted to refile the case. Dismissal without prejudice allows the same case to be filed again.
Please feel free to contact us if you have any questions about these terms or any other legal terminology.
Photo by Pisit Heng on Unsplash
