10 Common Legal Terms
Anyone who pays attention to legal proceedings, be it attorney, client, or merely an interested citizen, will seem some common legal terms thrown around. Since I’ve found a lot of people don’t understand or misapply these terms, here’s a brief overview of ten of the more common ones. Plus a bonus!
1. Discovery: Discovery is the evidence gathering phase of a case, as well as the actual fruits of the investigation. I usually use it to mean the collective information obtained from the prosecutor or opposing party. For example, on a new criminal charge, the initial discovery I receive from the prosecutor includes the police reports, photos, interview statements, 911 tapes, and other items specifically revolving around the charge. If there’s more information I want from the other side, and there often is, I file a document called a “supplementary discovery request.”
2. Burden: The burden, or burden of proof, is what a party needs to overcome to get their desired result. Because our system respects the status quo, the side that wants a change (transfer of money, put a person in jail, prevent a person from taking an action) almost always has the burden.
The degree of burden depends on the issue. I described the burden of making an arrest here. The burden of prevailing in a civil matter is a “preponderance of the evidence,” or “more likely than not,” or 50.01%. The burden of finding someone guilty is “beyond a reasonable doubt.” This doesn’t have a strict numerical analog, but is definitely higher than 50.01%.
Identifying who has the burden is extremely important. It’s more professional, and far more effective, to instead of saying “that side is wrong,” but instead “that side has not met its burden.” Our legal system heavily revolves around overcoming or undermining someone’s burden.
3. Subpoena and Subpoena Duces Tecum: A regular subpoena is issued by a court for a person to appear at trial or hearing. By contrast, a subpoena duces tecum is a formal request for tangible information about the case from third parties, like police and insurance companies. If I wanted a particular witness I would get a subpoena. If I wanted a particular witness’s phone records, I would get a subpoena duces tecum for the phone company. These are both rather powerful since the person who refuses to provide what’s requested is subject to contempt penalties. The flip side is that the subpoenas need to have some legitimate basis to be issued, can’t be used to harass someone, and the requesting party may be responsible for costs associated with witnesses or voluminous documents.
4. Motion: A motion is a request for the court to take an action or resolve a dispute. The side who files the motion is called the moving party. A motion generally encompasses the official request as well as legal argument why the court should or should not act in a certain way (called memorandum of law). A motion can be dispositive, which means if won the case is over. Summary judgment is a popular dispositive motion.
Motions are the bread-and-butter of legal practice, which is why research and writing skills are so coveted. If a case goes to trial, you can bet there have been plenty of motions filed by both sides beforehand.
5. Ex Parte: Ex Parte is communication with the court out of the view or knowledge of the other side. Ex parte is heavily discouraged, since it deprives the other side an opportunity to respond, and as such ex parte contact can get a person into serious trouble. It’s regularly labeled as an ethical violation.
In rare circumstances ex parte contact is permitted, although still discouraged. Those situations are basically emergencies. One example is requesting a temporary restraining order, if someone has made threats against someone else. Another is an emergency motion to preserve evidence if, for example, crucial documents were about to be destroyed. In all cases though, the other side should be notified of the contact as soon as possible.
6. Pro Se: Meaning “For Self,” it refers to a person who represents themselves in a legal proceeding. Our system permits anyone to represent themselves in any legal proceeding, civil or criminal, although there are some specialized requirements for divorce cases and criminal matters.
On the one hand, there is something admirable about putting your fate in your own hands. On the other hand, the old saying applies: “An attorney who represents himself has a fool for a client.” Except for small claims court, which require pro se, I would never represent myself in a court proceeding. But for those who are interested, plenty of resources exist to give you a fighting chance. An example.
7. Affirmative Defense: An affirmative defense is a powerful tool that takes all of the complaining party’s statements as true, but negates your liability/culpability. My old torts professor described it as the “Yeah, but…” defense.
A well-known affirmative defense is duress. If you were charged with robbing a bank, you would have the affirmative defense of duress available if you could prove that people held a gun to your head and forced you to rob that bank. You agree you committed the actions of bank robbery, but for these reasons you cannot be held culpable. There are plenty others.
There are a couple disadvantages of affirmative defenses. For one, the burden is on you to prove the affirmative defense applies. The other side has no obligation to disprove if you can’t make that initial showing. Secondly, an affirmative defense requires a general agreement if the underlying facts. It’s technically possible, but not particularly effective, to say “I did not rob that bank, but if I did, they held a gun to my head.” In other words, relying on an affirmative defense can diminish the effectiveness of actual defenses.
8. Alford Plea/No Contest: A guilty plea alternative where instead of admitting you committed the crime, you acknowledge the evidence is overwhelming and submit to the judgment of the court. For the criminal case there’s no difference in final outcome: you get a conviction and you get exactly the same sentence.
The advantage is in the civil arena. For an actual guilty plea, the civil court can admit the admission of guilt as evidence. For an Alford plea, the facts of the crime must be independently established. For example, on a charge of Reckless Driving that involved an accident, a guilty plea would expose the defendant to civil liability, whereas an Alford plea would not. In practice some courts do not allow them, and often the pleas require restitution anyway. But in some situations they’re quite important.
9. Bailment: Bailments are the process of one person possessing, but not owning, the property of another. A bailor is the original owner of the property and a bailee is the temporary possessor.
A bailment can occur under a variety of circumstances, including dropping off dry cleaning, loaning art to a museum, or borrowing someone’s lawnmower. The level of liability to the bailee for lost or damaged goods depends why the bailment occurred in the first place. For example, if your neighbor loaned their lawnmower to you as a friendly gesture, and you damaged the blades on a rock, you may owe for a repair. On the other hand, if you gave them some money to borrow the lawnmower, you may not be liable for the exact same damage. It’s very fact specific.
10. Accomplice: The definition of accomplice varies by jurisdiction, but in Washington an accomplice is defined as someone who either aids or agrees to aid another in the commission of a crime; or solicits, commands, or encourages another to commit a crime. An accomplice is just as liable as the person who does the act, even if the accomplice is nowhere near the scene. In fact, the accomplice can still be prosecuted even if the actor isn’t prosecuted or acquitted.
Interestingly, Washington has a provision to avoid accomplice liability. If someone would be culpable as an accomplice, they can avoid liability if they discontinue assistance, and either try to prevent the crime or notify law enforcement.
Bonus! Three Unnecessary and Slightly Pretentious Latin Phrases
Legalese is simply a fancy way of saying jargon. For good or ill, every industry in the world uses jargon. But for lawyers, where their lifeblood is communication, being fancy can come back to bite you. Since I share everything I file with my clients, it doesn’t help me or my clients if I’m throwing in Latin left and right; I want the people who read my writings to understand them. Plain English is usually best. But if you want to show off at your next cocktail party:
1. Arguendo: “For the sake of argument.” Used for a hypothetical, or to address and defeata point made by an adversary. “Assuming, arguendo, you did not receive my email, you should still have the document since I also faxed you a copy.”
2. Inter Alia: “Among other things.” Used to sound more formal when making a list. “I went to the store for, inter alia, milk and eggs.”
3. Sua Sponte: “On the judge’s initiative.” Unlike the others, this has a technical meaning that’s not strictly replaceable by English. The issue is that there’s never a real instance to use it. Asking a judge to take an action sua sponte is an oxymoron. It comes up once in a while in the appellate sphere, but generally there’s no use for it in day-to-day practice. “The judge said it was such a nice day that court should be held outside, sua sponte. Then I woke up.”