Glossary

  1. Affidavit

    A written or printed statement made under oath.

  2. Agreement

    In law, this is another name for a contract including all the elements of a legal contract: offer, acceptance, and consideration (payment or performance), based on specific terms.

  3. Alternative Dispute Resolution (ADR)

    A procedure for settling a dispute outside the courtroom. Most forms of ADR are not binding, and involve referral of the case to a neutral party such as an arbitrator or mediator.

  4. Answer

    The formal written statement by a defendant in a civil case that responds to a complaint, articulating the grounds for defense.

  5. Arbitration

    A mini-trial, which may be for a lawsuit ready to go to trial, held in an attempt to avoid a court trial and conducted by a person or a panel of people who are not judges. The arbitration may be agreed to by the parties, may be required by a provision in a contract for settling disputes, or may be provided for under statute.

  6. Appeal

    A request made after a trial by a party that has lost on one or more issues that a higher court review the decision to determine if it was correct. To make such a request is “to appeal” or “to take an appeal.” One who appeals is called the “appellant;” the other party is the “appellee.”

  7. Assets

    Property of all kinds, including real and personal, tangible and intangible.

  8. Attorney

    An agent or someone authorized to act for another, who has been qualified by a state or federal court to provide legal services, including appearing in court. Each state has a bar examination which is a qualifying test to practice law.

  9. Breach of Contract

    Failing to perform any term of a contract, written or oral, without a legitimate legal excuse. This may include not completing a job, not paying in full or on time, failure to deliver all the goods, substituting inferior or significantly different goods, not providing a bond when required, being late without excuse, or any act which shows the party will not complete the work (“anticipatory breach”). Breach of contract is one of the most common causes of law suits for damages and/or court-ordered “specific performance” of the contract.

  10. Brief

    A written statement submitted in a trial or appellate proceeding that explains one side’s legal and factual arguments.

  11. Burden of Proof

    The duty to prove disputed facts. In civil cases, a plaintiff generally has the burden of proving his or her case

  12. Case File

    A complete collection of every document filed in court in a case.

  13. Case Law

    The law as established in previous court decisions. A synonym for legal precedent. Akin to common law, which springs from tradition and judicial decisions.

  14. Claim

    A creditor’s assertion of a right to payment from a debtor or the debtor’s property.

  15. Class Action

    A lawsuit in which one or more members of a large group, or class, of individuals or other entities sue on behalf of the entire class. The district court must find that the claims of the class members contain questions of law or fact in common before the lawsuit can proceed as a class action.

  16. Clerk of the Court

    The court officer who oversees administrative functions, especially managing the flow of cases through the court.

  17. Codicil

    A written amendment to a person’s will, which must be dated, signed and witnessed just as a will would be, and must make some reference to the will it amends. A codicil can add to, subtract from or modify the terms of the original will. When the person dies, both the original will and the codicil are submitted for approval by the court (probate) and form the basis for administration of the estate and distribution of the belongings of the writer.

  18. Collateral

    Property that is promised as security for the satisfaction of a debt.

  19. Commercial Law

    All the law which applies to the rights, relations and conduct of persons and businesses engaged in commerce, merchandising, trade and sales. In recent years this body of law has been codified in the Uniform Commercial Code, which has been almost universally adopted by the states.

  20. Consumer Debts

    Debts incurred for personal, as opposed to business, needs.

  21. Contingent Claim

    A claim that may be owed by the debtor under certain circumstances, e.g., where the debtor is a co-signer on another person’s loan and that person fails to pay.

  22. Contract

    An agreement between two or more people that creates an obligation to do or not to do a particular thing.

  23. Counsel

    Legal advice; a term also used to refer to the lawyers in a case.

  24. Court Reporter

    A person who makes a word-for-word record of what is said in court, generally by using a stenographic machine, shorthand or audio recording, and then produces a transcript of the proceedings upon request.

  25. Creditor

    A person to whom or business to which the debtor owes money or that claims to be owed money by the debtor.

  26. Damages

    Money that a defendant pays a plaintiff in a civil case if the plaintiff has won. Damages may be compensatory (for loss or injury) or punitive (to punish and deter future misconduct).

  27. Debtor’s Plan

    A debtor’s detailed description of how the debtor proposes to pay creditors’ claims over a fixed period of time.

  28. Declaratory Judgment

    A judge’s statement about someone’s rights. For example, a plaintiff may seek a declaratory judgment that a particular statute, as written, violates some constitutional right.

  29. De Facto

    Latin, meaning “in fact” or “actually.” Something that exists in fact but not as a matter of law.

  30. Default Judgment

    A judgment awarding a plaintiff the relief sought in the complaint because the defendant has failed to appear in court or otherwise respond to the complaint.

  31. Defendant

    In a civil case, the person or organization against whom the plaintiff brings suit. An individual (or business) against whom a lawsuit is filed.

  32. Deposition

    An oral statement made before an officer authorized by law to administer oaths. Such statements are often taken to examine potential witnesses, to obtain discovery, or to be used later in trial.

  33. Divorce

    The termination of a marriage by legal action, requiring a petition or complaint for divorce or dissolution ( in some states).

  34. Docket

    A log containing the complete history of each case in the form of brief chronological entries summarizing the court proceedings. Also the court calendar is commonly referred to as a docket.

  35. Due Process

    In civil law, the legal rights of someone who confronts an adverse action threatening liberty or property.

  36. Durable Power of Attorney Health Care

    Attorney-in-fact or proxy appointed and authorized to make medical decisions in any situation where a person is unable to communicate. The Durable Power of Attorney Health Care is not just limited to the event of becoming permanently unconscious or terminally ill and unable to communicate.

  37. Equitable

    Pertaining to civil suits in “equity” rather than in “law.” In English legal history, the courts of “law” could order the payment of damages and could afford no other remedy (see damages). A separate court of “equity” could order someone to do something or to cease to do something (e.g., injunction). In American jurisprudence, the federal courts have both legal and equitable power, but the distinction is still an important one. For example, a trial by jury is normally available in “law” cases but not in “equity” cases.

  38. Equity

    The value of a debtor’s interest in property that remains after liens and other creditors’ interests are considered. (Example: If a house valued at $60,000 is subject to a $30,000 mortgage, there is $30,000 of equity.)

  39. Estate

    Commonly, all the possessions of one who has died and are subject to probate (administration supervised by the court) and distribution to heirs and beneficiaries, all the possessions which a guardian manages for a ward (young person requiring protection and administration of affairs), or assets a conservator manages for a conservative (a person whose physical or mental lack of competence requires administration of his/her affairs).

  40. Evidence

    Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case in favor of one side or the other.

  41. Executor

    The person appointed to administer the estate of a person who has died leaving a will which nominates that person. Unless there is a valid objection, the judge will appoint the person named in the will to be executor. The executor must insure that the person’s desires expressed in the will are carried out. Practical responsibilities include gathering up and protecting the assets of the estate, obtaining information in regard to all beneficiaries named in the will and any other potential heirs, collecting and arranging for payment of debts of the estate, approving or disapproving creditor’s claims, making sure estate taxes are calculated, forms filed and tax payments made, and in all ways assisting the attorney for the estate (which the executor can select).

  42. Executory Contract

    Contracts or leases under which both parties to the agreement have duties remaining to be performed. If a contract or lease is executory, a debtor may assume it (keep the contract) or reject it (terminate the contract).

  43. Exempt Assets

    Property that a debtor is allowed to retain, free from the claims of creditors who do not have liens on the property.

  44. File

    To place a paper in the official custody of the clerk of court to enter into the files or records of a case.

  45. Guardian

    A person who has been appointed by a judge to take care of a minor child or incompetent adult (both called “ward”) personally and/or manage that person’s affairs. To become a guardian of a child either the party intending to be the guardian or another family member, a close friend or a local official responsible for a minor’s welfare will petition the court to appoint the guardian. In the case of a minor, the guardianship remains under court supervision until the child reaches majority at 18. Naming someone in a will as guardian of one’s child in case of the death of the parent is merely a nomination. The judge does not have to honor that request, although he/she usually does. While the term “guardian” may refer to someone who is appointed to care for and/or handle the affairs of a person who is incompetent or incapable of administering his/her affairs, this is more often called a “conservator” under a conservatorship.

  46. Guardian Ad Litem

    Guardian ad litem A person appointed by the court only to take legal action on behalf of a minor or an adult not able to handle his/her own affairs. Duties may include filing a lawsuit for an injured child, defending a lawsuit or filing a claim against an estate.

  47. Hearsay

    Evidence presented by a witness who did not see or hear the incident in question but heard about it from someone else. With some exceptions, hearsay generally is not admissible as evidence at trial.

  48. Impeachment

    The process of calling a witness’ testimony into doubt. For example, if the attorney can show that the witness may have fabricated portions of his testimony, the witness is said to be “impeached.”

  49. Incorporate

    To obtain an official charter or articles of incorporation from the state for an organization, which may be a profit-making business, a professional business such as a law office or medical office or a non-profit entity which operates for charitable, social, religious, civic or other public service purposes. The process includes having one or more incorporators (most states require a minimum of three for profit-making companies) choose a name not currently used by (nor confusingly similar to) any corporation, prepare articles, determine who will be responsible for accepting service of process, decide on the stock structure, adopt a set of bylaws, file the articles with the Secretary of State of the state of incorporation, and hold a first meeting of incorporators to launch the enterprise. Other steps follow such as electing a board of directors, selecting officers, issuing stock according to state laws and, if there is going to be a stock offering to the public, following the regulations of the Securities and Exchange Commission and/or the State Corporations Commissioner. If the corporation is non-profit, it will have to apply for non-profit status with the home state, and may, if desired, also apply to the Internal Revenue Service for federal non-profit recognition, both of which require detailed explanations of the intended operation of the organization.

  50. Injunction

    A court order preventing one or more named parties from taking some action. A preliminary injunction often is issued to allow fact-finding, so a judge can determine whether a permanent injunction is justified.

  51. Insider (of corporate debtor)

    Director, officer, or person in control of the debtor; a partnership in which the debtor is a general partner; a general partner of the debtor; or a relative of a general partner, director, officer, or person in control of the debtor.

  52. Insider (of individual debtor)

    Any relative of the debtor or of a general partner of the debtor; partnership in which the debtor is a general partner; general partner of the debtor; or corporation of which the debtor is a director, officer, or person in control.

  53. Interrogatories

    A form of discovery consisting of written questions to be answered in writing and under oath.

  54. Intestate

    Referring to a situation where a person dies without leaving a valid will. This usually is voiced as “he died intestate,” “intestate estate,” or “intestate succession.”

  55. Intestate Succession

    The distribution when a person dies without leaving a valid will and the spouse and heirs will take (receive the possessions) by the laws of descent and distribution and marital rights in the estate which may apply to a surviving spouse. Collectively these are called the laws of intestate succession.

  56. Issue

    The disputed point between parties in a lawsuit.

  57. Judgment

    The official decision of a court finally resolving the dispute between the parties to the lawsuit.

  58. Jurisdiction

    The legal authority of a court to hear and decide a certain type of case. It also is used as a synonym for venue, meaning the geographic area over which the court has territorial jurisdiction to decide cases.

  59. Jurisprudence

    The study of law and the structure of the legal system.

  60. Jury

    The group of persons selected to hear the evidence in a trial and render a verdict on matters of fact.

  61. Jury Instructions

    A judge’s directions to the jury before it begins deliberations regarding the factual questions it must answer and the legal rules that it must apply.

  62. Lawsuit

    A legal action started by a plaintiff against a defendant based on a complaint that the defendant failed to perform a legal duty which resulted in harm to the plaintiff.

  63. Letters of Administration

    A document issued by the court clerk which states the authority of the administrator of an estate of a person who has died, when there is no will or no available executor named by a will and an administrator has been appointed by the court. It is issued during probate of the estate as soon as the court approves the appointment of the administrator, who files a security bond if one is required. Certified copies of the letters are often required by banks and other financial institutions, the federal government, stock transfer agents or other courts before transfer of money or assets to the administrator of the estate.

  64. Lein

    A charge on specific property that is designed to secure payment of a debt or performance of an obligation. A debtor may still be responsible for a lien after a discharge.

  65. Limited Partnership

    A special type of partnership which is very common when people need funding for a business, or when they are putting together an investment in a real estate development. A limited partnership requires a written agreement between the business management, who is (are) general partner or partners, and all of the limited partners. Each limited partner makes an investment of funds into the partnership and is supposed to receive a pre-stated share of the profit, which is ordinarily greater than that of each of the general partners up to a point (such as return of the investment), and, thereafter, the limited partners will receive a lesser share than the general partner(s). The limited partners also will receive the tax benefit of a “passed through” loss (a personal income tax deduction for part of the loss) during the development stages of the partnership when the expenses exceed any receipts. Quite often there is also a provision for eventual buy-out of the limited partners by the general partner(s). The limited partners may not participate in the management decisions of the partnership or they will lose their limited partnership status. They do have the power to vote to remove the general partner(s), although usually the partnership agreement is structured so that such removal is virtually impossible unless the general partner in question has committed fraud.

  66. Litigation

    A case, controversy, or lawsuit. Participants (plaintiffs and defendants) in lawsuits are called litigants.

  67. Living Will

    Also called “a durable power of attorney,” it is a document authorized by statutes in all states in which a person appoints someone as his/her proxy or representative to make decisions on maintaining extraordinary life-support if the person becomes too ill, is in a coma or is certain to die. In most states the basic language has been developed by medical associations or other experts and may provide various choices as to when such maintenance of life can be terminated. The decision must be made in consultation with the patient’s doctor. The living will permits a terminal patient to die in dignity and protects the physician or hospital from liability for withdrawing or limiting life support.

  68. Living Trust

    A trust created by a declaration of trust executed by the trustor or trustors (also called settlor or settlors) during his/her/their lifetime, as distinguished from a “testamentary trust,” which is created by a will and only comes into force upon the death of the person who wrote the will. A living trust should not be confused with a “living will,” which provides for medical care decisions when a person is terminally ill. While a living trust is a generic name for any trust which comes into existence during the lifetime of the person or persons creating the trust, most commonly it is a trust in which the trustor(s) or settlor(s) receive benefit(s) from the profits of the trust during their lifetimes, followed by a distribution upon the death of the last trustor (settlor) to die, or the trust continues on for the benefit of others (such as the next generation) with profits distributed to them. There are other types of living trusts including irrevocable trust, insurance trust, charitable remainder trust and some specialized trusts to manage some parts of the assets of a person or persons.

  69. Mediation

    The attempt to settle a legal dispute through active participation of a third party (mediator) who works to find points of agreement and make those in conflict agree on a fair result. Mediation differs from arbitration, in which the third party (arbitrator) acts much like a judge in an out-of-court, less formal setting but does not actively participate in the discussion. Mediation has become very common in trying to resolve domestic relations disputes (divorce, child custody, visitation) and is often ordered by the judge in such cases. Mediation also has become more frequent in contract and civil damage cases.

  70. Mistrial

    An invalid trial, caused by fundamental error. When a mistrial is declared, the trial must start again with the selection of a new jury.

  71. Motion

    A request by a litigant to a judge for a decision on an issue relating to the case.

  72. Net Estate

    The remaining estate of a person who has died, calculated by taking the value of all assets and subtracting all debts of the person who died, including funeral costs, expenses of administering the estate and any other allowable deductions. The federal estate tax (and/or state inheritance tax where it exists) is then based on the net estate value.

  73. Non-Profit Corporation

    An organization incorporated under state laws and approved by both the state’s Secretary of State and its taxing authority as operating for educational, charitable, social, religious, civic or humanitarian purposes. A non-profit corporation (also called “not for profit corporation”) is formed by incorporators, has a board of directors and officers, but no shareholders. These incorporators, directors and officers may not receive a distribution of (any money from) profits, but officers and management may be paid reasonable salaries for services to the corporation. Upon dissolution of a nonprofit corporation its assets must be distributed to an organization existing for similar purposes under the “cy pres doctrine.” In order for contributions to the corporation to be deductible as charitable gifts on federal income taxes, the corporation must submit a detailed application (with a substantial fee) for an Internal Revenue Service ruling that it is established for one of the specific nonprofit purposes spelled out in the Internal Revenue Code. Informational tax returns must be filed annually with the IRS and the state taxing body.

  74. Opinion

    A judge’s written explanation of the decision of the court. Because a case may be heard by three or more judges in the court of appeals, the opinion in appellate decisions can take several forms. If all the judges completely agree on the result, one judge will write the opinion for all. If all the judges do not agree, the formal decision will be based upon the view of the majority, and one member of the majority will write the opinion. The judges who did not agree with the majority may write separately in dissenting or concurring opinions to present their views. A dissenting opinion disagrees with the majority opinion because of the reasoning and/or the principles of law the majority used to decide the case. A concurring opinion agrees with the decision of the majority opinion, but offers further comment or clarification or even an entirely different reason for reaching the same result. Only the majority opinion can serve as binding precedent in future cases.

  75. Oral Argument

    An opportunity for lawyers to summarize their position before the court and also to answer the judges’ questions.

  76. Partnership

    A business enterprise entered into for profit which is owned by more than one person, each of whom is a “partner.” A partnership may be created by a formal written agreement, but may be based on an oral agreement or just a handshake. Each partner invests a certain amount (money, assets and/or effort) which establishes an agreed-upon percentage of ownership, is responsible for all the debts and contracts of the partnership even though another partner created the debt or entered into the contract, has a share in management decisions, and shares in profits and losses according to the percentage of the total investment. Often a partnership agreement may provide for certain division of management, shares of investment, profit and/or rights to buy out a partner upon leaving the partnership or death. Each partner owes the other partners a duty of full disclosure of information which affects the business and cannot commandeer for himself/herself business opportunities which rightfully belong to the partnership. A partnership which does business under a trade name must file with the county or state a certificate of “doing business under a fictitious name,” which gives notice to the public of the names of partners and the business address.

  77. Plaintiff

    A person or business that files a formal complaint with the court.

  78. Pleadings

    Written statements filed with the court that describe a party’s legal or factual assertions about the case.

  79. Power of Attorney

    A written document signed by a person giving another person the power to act in conducting the signer’s business, including signing papers, checks, title documents, contracts, handling bank accounts and other activities in the name of the person granting the power. The person receiving the power of attorney (the agent) is “attorney in fact” for the person giving the power. There are two types of power of attorney: a) general power of attorney, which covers all activities, and b) special power of attorney, which grants powers limited to specific matters, such as selling a particular piece of real estate, handling some bank accounts or executing a limited partnership agreement. A power of attorney may expire on a date stated in the document or upon written cancellation. Usually the signer acknowledges before a notary public that he/she executed the power, so that it is recordable if necessary, as in a real estate transaction.

  80. Precedent

    A court decision in an earlier case with facts and legal issues similar to a dispute currently before a court. Judges will generally “follow precedent” – meaning that they use the principles established in earlier cases to decide new cases that have similar facts and raise similar legal issues. A judge will disregard precedent if a party can show that the earlier case was wrongly decided, or that it differed in some significant way from the current case.

  81. Pretrial Conference

    A meeting of the judge and lawyers to plan the trial, to discuss which matters should be presented to the jury, to review proposed evidence and witnesses, and to set a trial schedule. Typically, the judge and the parties also discuss the possibility of settlement of the case.

  82. Probate

    The process of proving a will is valid and thereafter administering the estate of a dead person according to the terms of the will. The first step is to file the purported will with the clerk of the appropriate court in the county where the deceased person lived, along with a petition to have the court approve the will and appoint the executor named in the will (or if none is available, an administrator) with a declaration of a person who had signed the will as a witness. If the court determines the will is valid, the court then “admits” the will to probate.

  83. Procedure

    The rules for conducting a lawsuit; there are rules of civil procedure, criminal procedure, evidence, bankruptcy, and appellate procedure.

  84. Record

    A written account of the proceedings in a case, including all pleadings, evidence, and exhibits submitted in the course of the case.

  85. Sanction

    A penalty or other type of enforcement used to bring about compliance with the law or with rules and regulations.

  86. Settlement

    Parties to a lawsuit resolve their dispute without having a trial. Settlements often involve the payment of compensation by one party in at least partial satisfaction of the other party’s claims, but usually do not include the admission of fault.

  87. Statute

    A law passed by a legislature.

  88. Statute of Limitations

    The time within which a lawsuit must be filed or a criminal prosecution begun. The deadline can vary, depending on the type of civil case.

  89. Subordination

    The act or process by which a person’s rights or claims are ranked below those of others.

  90. Subpoena

    A command, issued under a court’s authority, to a witness to appear and give testimony.

  91. Summary Judgment

    A decision made on the basis of statements and evidence presented for the record without a trial. It is used when it is not necessary to resolve any factual disputes in the case. Summary judgment is granted when – on the undisputed facts in the record – one party is entitled to judgment as a matter of law.

  92. Summons

    A document issued by the court at the time a lawsuit is filed, stating the name of both plaintiff and defendant, the title and file number of the case, the court and its address, the name and address of the plaintiff’s attorney, and instructions as to the need to file a response to the complaint within a certain time (such as 30 days after service), usually with a form on the back on which information of service of summons and complaint is to be filled out and signed by the process server. A summons differs from a subpoena, which is an order to a witness to appear.

  93. Temporary Restraining Order

    Akin to a preliminary injunction, it is a judge’s short-term order forbidding certain actions until a full hearing can be conducted. Often referred to as a TRO.

  94. Testacy

    Dying with a will (a testament). It is compared to “intestacy,” which is dying without a will.

  95. Testimony

    Evidence presented orally by witnesses during trials or before grand juries.

  96. Tort

    A civil, not criminal, wrong. A negligent or intentional injury against a person or property, with the exception of breach of contract.

  97. Transcript

    A written, word-for-word record of what was said, either in a proceeding such as a trial, or during some other formal conversation, such as a hearing or oral deposition.

  98. Venue

    The geographic area in which a court has jurisdiction. A change of venue is a change or transfer of a case from one judicial district to another.

  99. Verdict

    The decision of a trial jury or a judge that determines the final outcome of a civil case.

  100. Voir Dire

    Jury selection process of questioning prospective jurors, to ascertain their qualifications and determine any basis for challenge.

  101. Wage Garnishment

    A nonbankruptcy legal proceeding whereby a plaintiff or creditor seeks to subject to his or her claim the future wages of a debtor. In other words, the creditor seeks to have part of the debtor’s future wages paid to the creditor for a debt owed to the creditor.

  102. Will

    A written document which leaves the estate of the person who signed the will to named persons or entities (beneficiaries, legatees, divisees) including portions or percentages of the estate, specific gifts, creation of trusts for management and future distribution of all or a portion of the estate (a testamentary trust).

  103. Will Contest

    A will contest is a lawsuit challenging the validity of a will and/or its terms. Bases for contesting a will include the competency of the maker of the will (testator) at the time the will was signed, the “undue influence” of someone who used pressure to force the testator to give him/her substantial gifts in the will, the existence of another will or trust, challenging illegal terms or technical faults in the execution of the will, such as not having been validly witnessed. A trial of the will contest must be held before the will can be probated, since if the will is invalid, it cannot be probated.

  104. Writ

    A writ is a written court order directing a person to take, or refrain from taking, a certain act.


CONTACT   |   DISCLAIMERS

April M. Burt is a transactional lawyer. Katherine Langley and Chad Anderson are trial lawyers. These Asheville-based attorneys focus their practice in the areas of business law, employment law, estate planning, and transactional law. They serve clients in the Western North Carolina communities located in Buncombe, Henderson, Haywood, Madison, and surrounding counties.


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