Our first discussion in Legal Technique and Logic was definition of legal terms. I tried looking up for a comprehensive guide on the internet, but failed. So, to help future law student and non-law students as well, I kept the list that I made. These are collaborated definitions from various sources, both print and online.
Good luck! Hope you will learn something.
--ADMISSION
The
order of a competent court or magistrate
that
a person accused of crime be discharged from
actual
custody upon the taking of bail.
The
act by which attorneys and counsellors become
recognized
as officers of the court and are
allowed
to practice.
Admission
or concession by a party in pleading
or
as evidence.
**The
term "admission" is usually applied to civil transactions
and
to those matters of fact in criminal cases which
do
not involve criminal intent, while the term "confession"
is
generally restricted to acknowledgments of guilt.
An
"admission" as applied in criminal cases is
the
avowal of a fact or of circumstances from
which
guilt may be inferred, but only tending to
prove
the offense charged, and not amounting to
a
confession of guilt.
Direct,
called also express, admissions are those which
are
made in direct terms.
Implied
admissions are those which result from some act
or
failure to act of the party.
Incidental
admissions are those made in some other connection,
or
involved in the admission of some other fact.
Judicial
admissions are those made in court by a person's
attorney
for the purpose of being used as a substitute
for
the regular legal evidence of the facts at the trial.
The
acknowledgment or recognition by one party
of
the truth of some matter alleged by the
opposite
party, made in a pleading, the effect of
which
is to narrow the area of facts or allegations
required
to be proved by evidence.
--ADVERSE
PARTY
An
"adverse party" entitled
to
notice of appeal is every party whose interest
in
relation to the judgment or decree appealed
from
is in conflict with the modification or reversal
sought
by the appeal.
Every
party interested in sustaining the judgment or
decree.
A party who, by the pleadings, is arrayed on the opposite
side.
--AFFIDAVIT
A
written or printed declaration or
statement
of facts, made voluntarily, and confirmed
by
the oath or affirmation of the party
making
it, taken before an officer having authority
to
administer such oath.
--AFFIDAVIT
OF DEFENSE
An
affidavit stating
that
the defendant has a good defense to the
plaintiff's
action on the merits. The statements
required
in such an affidavit vary considerably in
the
different states where they are required.
--AFFIRMATIVE
DEFENSE
In
code pleading. New matter constituting a defense; new matter which, assuming
the complaint to be true, constitutes
a
defense to it.
--ALLEGATA
ET PROBATA
Lat.
Things alleged and proved. The allegations made by a party to a suit, and the
proof adduced in their support.
--AMICUS
CURIAE
Friend
of the court.
A
by-stander (usually a counsellor) who interposes and
volunteers
information upon some matter of law in regard
to
which the judge is doubtful or mistaken.
Also
a person who has no right to appear in a
suit
but is allowed to introduce argument, authority,
or
evidence to protect his interests.
--ANSWER
As
a verb, the word denotes an assumption of liability, as to "answer"
for the debt or default of another.
Strictly
speaking, it is a pleading by which defendant
in
suit at law endeavors to resist the
plaintiff's
demand by an allegation of facts, either
denying
allegations of plaintiff's complaint or
confessing
them and alleging new matter in avoidance,
which
defendant alleges should prevent recovery
on
facts alleged by plaintiff.
Defense
in writing, made by a defendant to the allegations
contained
in a bill or information filed by
the
plaintiff against him.
--APPEAL
In
general terms a resort to an upper court or tribunal.
A
rehearing by a superior court on both law and fact, a process
of
civil law origin, and the usual and appropriate
mode
of review for cases originating in a
court
of equity. The removal of a cause from a court of inferior to one of superior
jurisdiction, for the purpose of
obtaining
a review and retrial.
--APPEARANCE
Apparitio
in judicio, an appearance in court.
--ARRAIGNMENT
In
criminal practice. To bring a prisoner to the bar of the court to answer the matter
charged upon him in the indictment.
In
criminal practice. To bring a prisoner to the bar of the court to answer the matter
charged upon him in the indictment and demanding of him whether he be guilty or
not guilty, and
entering
his plea.
--BURDEN
OF EVIDENCE
Connotes
the burden of going forward with the evidence or that logical necessity which
rests on a party at any particular time during the trial to create a prima
facie case in his favor, or to overthrow one when created against him. Burden
of evidence refers to the duty of a party to proceed with evidence at the beginning,
or at any subsequent stage, of the trial, in order to make or meet a prima
facie case.
--BURDEN
OF PROOF
(Lat.
onus probandi.) In the
law of evidence. The necessity or duty of affirmatively
proving
a fact or facts in dispute on an
issue raised between the parties in a cause. The obligation imposed upon a
party who alleges the existence of a fact or thing necessary in the prosecution
or defense of an action to establish it by proof. Under the Rules, it is the duty of a party to
present evidence on the facts in issue necessary to establish his claim or
defense by the amount of evidence required by law. It means the burden of establishing a case,
whether by a preponderance of the evidence, or beyond a reasonable doubt, or by
substantial evidence.
--CAPACITY
TO ACT
Capacity
to act, which is the power to do acts with legal effect, is acquired and may be
lost. The ability, capability, or fitness to do something; a legal right,
power, or competency to perform some act. An ability to comprehend both the nature
and consequences of one's acts.
--CASE
AT BAR
Before
the court. The case now before the court and under its consideration; the case
being tried or argued.
--CASE
AT BENCH
A
seat of judgment or tribunal for the administration of justice; the seat occupied
by judges in courts; also the court itself, or the aggregate of the judges
composing a court, as in the phrase "before the full bench."
--CHOSE
IN ACTION
A
personal right not reduced into possession, but recoverable by a suit at law. A
right to personal things of which the owner has not the possession, but merely
a right of action for their
possession.
A right to receive or recover a debt, demand, or damages on a cause of action
ex contractu or for a tort or omission of a duty.
--CIVIL
ACTION
An
action wherein an issue is presented for
trial
formed by averments of complaint and denials of answer or replication to new
matter. An adversary proceeding for declaration, enforcement, or protection of
a right, or redress, or prevention of a wrong. A personal action which is
instituted to compel payment, or the doing of some other thing which
is
purely civil.
--CIVIL
CONTEMPT
A
civil contempt is not an offense against the dignity of the court, but against
the party in whose behalf the mandate of the court was issued, and a fine is
imposed for his indemnity.
--CIVIL
LIABILITY
The amenability to civil action
as
distinguished from amenability to criminal
prosecution.
A sum of money assessed either
as
general, special or liquidated damages, eithersingle,
double
or treble for violation such as overcharges.
--CIVIL
OBLIGATION
One
which binds in law, and may be enforced in a court of justice.
--CLASS
SUIT
One
in which one or more members of a class sue either
for
themselves or for themselves and other members
of
a class. A "class action" lawsuit is one in which a group of people
with the same or similar injuries caused by the same product or action sue the
defendant as a group.
--CLEAN
HANDS DOCTRINE
Equitable
relief may be denied
on
ground of deceit or impurity of motive. HE WHO COMES INTO A COURT OF EQUITY MUST
COME WITH CLEAN HANDS. A rule of law that a person coming to court with a
lawsuit or petition for a court order must be free from unfair conduct (have
"clean hands" or not have done anything wrong) in regard to the
subject matter of his/her claim. His/her activities not involved in the legal
action can be abominable since it is considered irrelevant.
--COMPLAINT
In
those states having a Code of Civil Procedure, the complaint is the first or
initiatory pleading on the part of
the
plaintiff in a civil action. Its purpose is to give defendant information of
all material facts on which plaintiff relies
to
support his demand.
In
criminal law. A charge, preferred before
a
magistrate having jurisdiction, that a person named (or an unknown person) has
committed a
specified
offense, with an offer to prove the fact,
to
the end that a prosecution may be instituted.
--CONCLUSIVE
PRESUMPTION
A
conclusive presumption, called also an "absolute" or
"irrebuttable"
presumption, is a rule of law determining
the
quantity of evidence requisite for the support of a
particular
averment which is not permitted to be overcome
by
any proof that the fact is otherwise.
It
is an inference which the court will draw from the proof, which no evidence, however
strong, will be permitted to overturn.
--CONFESSION
AND AVOIDANCE
A
plea in confession and avoidance is one which avows and
confesses
the truth of the averments of fact in the
declaration,
either expressly or by implication, but
then
proceeds to allege new matter which tends
to
deprive the facts admitted of their ordinary
legal
effect, or to obviate, neutralize, or avoid
them.
--CONTEMPT
OF COURT
Any
act which is calculated
to
embarrass, hinder, or obstruct court in
administration
of justice, or which is calculated
to
lessen its authority or its dignity.
Committed
by a person who does any act in willful contravention of its authority or
dignity, or tending
to
impede or frustrate the administration of justice,
or
by one who, being under the court's authority
as
a party to a proceeding therein, willfully
disobeys
its lawful orders or fails to comply
with
an undertaking which he has given.
--COSTS
(OF SUIT)
A pecuniary allowance, made to the successful
party,
(and recoverable from the losing
party,)
for his expenses in prosecuting or defending
a
suit or a distinct proceeding within a suit.
Fees
and charges required by law to be paid
to
the courts or some of their officers, the amount of which is fixed by law.
--CRIMINAL
ACTION
The
proceeding by which a party charged with
a
public offense is accused and brought to trial
and
punishment is known as a "criminal action." A criminal action is (1)
an
action
prosecuted by the state as a party, against
a
person charged with a public offense, for the
punishment
thereof ; (2) an action prosecuted by
the
state, at the instance of an individual, to prevent
an
apprehended crime, against his person
or
property.
--CRIMINAL
CONTEMPT
Criminal
contempts are acts done in disrespect of the court or its process or which
obstruct the administration of
justice
or tend to bring the court into disrespect. Criminal
contempts
are offenses or injuries offered to the
court,
and a fine or imprisonment is imposed upon
the
contemnor for the purpose of punishment.
--CULPA
AQUILIANA
It
is defined under Article 2176 of the Civil Code as the fault or negligence of a
person, whether by act or omission, that causes damage to another, if there is
no pre-existing contractual relation between the parties. However, Article 2176
of the Civil Code is limited to negligent acts or omissions and excludes the
notion of willfulness or intent. It is the wrongful or negligent act or omission
which creates a vinculum juris and gives rise to an obligation between two
persons not formally bound by any other obligation.
Quasi-delict,
known in Spanish legal treatises as culpa aquiliana, is a civil law concept
while torts is an Anglo-American or common law concept.
--CULPA
CONTRACTUAL
It
is the fault or negligence incident in the performance of an obligation which
already existed, and which increases the liability from such already existing
obligation.
--CUSTODIA
LEGIS
In
the custody of the law. In general, when
things are in custodia legis, they cannot be distrained, nor otherwise
interfered with by a private person. A thing is in custodia legis when it is
shown that it has been and is subjected to the official custody of a judicial
executive officer in pursuance of his execution of a legal writ. Only when
property is lawfully taken by virtue of legal process is it considered in the
custody of the law, and not otherwise.
--DECISION
As
a generic term, decision refers to both administrative and judicial
determinations. It includes final judgments, rulings, and inter-locutory or
provisional orders made by the court pending the outcome of the case.
Frequently, a decision is considered the initial step in a rendition by a court
of a judgment in an action.
When
referring to judicial matters, a decision is not the same as an opinion,
although the terms are sometimes used interchangeably. A decision is the
pronouncement of the solution of the court or judgment in a case, while an
opinion is a statement of the reasons for its determination made by the court.
--DISPOSITIVE
PORTION
Refers
to something that settles a conflict or resolves a situation once and for all.
A fact or point of law which brings about the settlement of a contested issue.
In
the context of an appeal, where the appellate court seizes upon a dispositive
issue on which they would allow the appeal for example, they may then decline
to address the other issues because their one finding is conclusive in any
event as to the appeal being successful and a return to the lower courts for a
re-analysis; dispositive.
--DISPUTABLE
PRESUMPTION
A
presumption of law, which may be rebutted or disproved. A species of evidence
that
may be accepted and acted upon when
there
is no other evidence to uphold contention
for
which it stands; and when evidence is introduced
supporting
such contention, evidence takes
place
of presumption, and there is no necessity
for
indulging in any presumption.
The
Rules of Court provides for disputable presumptions, which are satisfactory if
uncontradicted, but may be contradicted and overcome by other evidence.Rules of
Court, Rule 131, Sec. 3.
--DISSENTING
OPINION
A
dissenting opinion (or dissent) is an opinion in a legal case written by one or
more judges expressing disagreement with the majority opinion of the court
which gives rise to its judgment. When not necessarily referring to a legal
decision, this can also be referred to as a minority report.
--EX
PARTE
On
one side only; by or for one
party;
done for, in behalf of, or on the application
of,
one party only. "Ex parte," in the heading of a reported case, signifies
that the name following is that of the
party
upon whose application the case is heard.
A
judicial proceeding, order, injunction, etc., is said to be
ex
parte when it is taken or granted at the instance and for
the
benefit of one party only, and without notice to, or
contestation
by, any person adversely interested. In its primary sense, ex parte, as applied
to an application
in
a judicial proceeding, means that it is made by a
person
who is not a party to the proceeding, but who has
an
interest in the matter which entitles him to make the
application.
--EXCESS
OF JURISDICTION
A
case in which court has initially proceeded properly within its jurisdiction but
steps out of jurisdiction in making
of
some order or in the doing of some judicial act.
A
departure by a court from those recognized and established
requirements
of law, however close apparent adherence
to
mere form in method of procedure, which has
the
effect of depriving one of a constitutional right, is an
"excess
of jurisdiction."
Excess
of Jurisdiction is a court's acting beyond the limits of its power, usually. in
one of three ways: (1) when the court has no power to deal with the kind of
matter at issue, (2) when the court has no power to deal with the particular
person concerned, or (3) when the judgment or order issued is of a kind that
the court has no power to issue. 2. A court's departure from recognized and
established requirements of law, despite apparent adherence to procedural form,
the effect of which is a deprivation of one's constitutional right. It is also
termed excess jurisdiction.
--EXECUTION
Carrying
out some act or course of conduct to its completion.
In
Criminal Law, the carrying out of a death sentence.
The
process whereby an official, usually a sheriff, is directed by an appropriate
judicial writ to seize and sell as much of a debtor's nonexempt property as is
necessary to satisfy a court's monetary judgment.
With
respect to contracts, the performance of all acts necessary to render a
contract complete as an instrument, which conveys the concept that nothing
remains to be done to make a complete and effective contract.
--EXHAUSTION
OF ADMINISTRATIVE REMEDIES
The
underlying principle of the rule on exhaustion of administrative remedies rests
on the presumption that the administrative agency, if afforded a complete
chance to pass upon the matter, will decide the same correctly. There are both
legal and practical reasons for the principle. The administrative process is
intended to provide less expensive and more speedy solutions to disputes. Where
the enabling statute indicates a procedure for administrative review and
provides a system of administrative appeal or reconsideration, the courts – for
reasons of law, comity, and convenience – will not entertain a case unless the
available administrative remedies have been resorted to and the appropriate
authorities have been given an opportunity to act and correct the errors committed
in the administrative forum.
The
rule in administrative law is that parties requesting judicial action must
first exhaust their remedies in the executive branch. This is premised not only
on practical considerations but also on the comity existing between different
departments of the government, which comity requires the court to stay their
hands until the administrative processes have been completed.
--FALLO
In
Spanish law. The final decree or judgment given in a controversy at law.
--FINAL
JUDGEMENT
The
final settling of the rights of the
parties to the action beyond all appeal.
The
written determination of a lawsuit by the judge who presided at trial (or heard
a successful motion to dismiss or a stipulation for judgment), which renders
(makes) rulings on all issues and completes the case unless it is appealed to a
higher court. It is also called a final decree or final decision.
Final
judgment refers to a court's last action that settles the rights of the parties
and disposes of all issues in controversy, except for the award of costs (and,
sometimes, attorney's fees) and enforcement of the judgment. This is also
termed as final appealable judgment or final decision or final decree or
definitive judgment or determinative judgment or final appealable order.
--FINAL
ORDER
An
order or judgment of the Court that finally disposes of the rights of the
parties.
A
final order is generally one that ends the litigation on the merits and leaves
nothing for the court to do but execute judgment.
--FORUM
SHOPPING
Forum
shopping is the informal name given to the practice adopted by some litigants
to have their legal case heard in the court thought most likely to provide a
favorable judgment.
There
is forum shopping "when a party repetitively avails of several judicial
remedies in different courts, simultaneously or successively, all substantially
founded on the same transactions and the same essential facts and
circumstances, and all raising substantially the same issues either pending in
or already resolved adversely by some other court."
--HEARSAY
RULE
The
basic rule that testimony or documents which quote persons not in court are not
admissible. Hearsay is "second-hand" information. Because the person
who supposedly knew the facts is not in court to state his/her exact words, the
trier of fact cannot judge the demeanor and credibility of the alleged
first-hand witness, and the other party's lawyer cannot cross-examine (ask
questions of) him or her.
--IMPLEAD
To
sue. To sue (a third party) in a lawsuit that has already been commenced as a
defendant who may be liable for the claim that is the subject of the suit.
--IN
PARI MATERIA
Upon
the same matter or
subject.
Statutes in pari materia are to be construed
together.
A designation applied to statutes or general laws that were enacted at
different times but pertain to the same subject or object.
--IN
RE
In
the affair; in the matter of; concerning;
re.
This is the usual method of entitling a
judicial
proceeding in which there are not adversary
parties,
but merely some res concerning
which
judicial action is to be taken, such as a
bankrupt's
estate, an estate in the probate court,
a
proposed public highway, etc. It is also sometimes
used
as a designation of a proceeding where
one
party makes an application on his own behalf,
but
such proceedings are more usually entitled
"Ex
parte _______."
[Latin,
In the matter of.] Concerning or regarding. The usual style for the name of a
judicial proceeding having some item of property at the center of the dispute
rather than adverse parties.
prep.
short for "in regard to" or concerning. "Re" is a further
abbreviation. Often "in re" is found near the top of lawyers' letters
to identify the subject matter, as "In re Matheson v. Roth," or
"In re Estate of Ruth Bentley." It is also used in naming legal
actions in which there is only one party, the petitioning party, as in "In
re Adoption of Marcus McGillicuddy."
--INDIRECT
CONTEMPT
Constructive
(or indirect) contempts are those
which
arise from matters not occurring in or near
the
presence of the court, but which tend to obstruct
or
defeat the administration of justice,
and
the term is chiefly used with reference to the
failure
or refusal of a party to obey a lawful order,
injunction,
or decree of the court laying upon
him
a duty of action or forbearance.
--IPSO
FACTO
By
the fact itself; by the mere
fact.
By the mere effect of an act or a fact.
This
phrase is frequently employed to convey the idea that something which has been
done contrary to law is void. For example, if a married man, during the life of
his wife, of which he had knowledge, should marry another woman, the latter
marriage would be void ipso facto; that is, on that fact being proved, the
second marriage would be declared void ab initio.
Ipso
facto is a Latin phrase, directly translated as "by the fact itself,"
which means that a certain phenomenon is a direct consequence, a resultant
effect, of the action in question, instead of being brought about by a previous
action.
--IPSO
JURE
By
the law itself; by the mere operation
of
law. It is often used to describe consequences that occur automatically by
operation of legal principles. For example, when a case is decided, by the
legal principle of res judicata, the party is barred ipso jure from refiling
the same case again.
--JUDGEMENT
The
official and authentic decision of a court of justice upon the respective
rights and claims of the parties to an action or suit therein litigated and
submitted to its determination.
A
sense of knowledge sufficient to
comprehend
nature of transaction.
The
conclusion in a syllogism having for its
major
and minor premises issues raised by the
pleadings
and the proofs thereon.
A
judgment is the final part of a court case. A valid judgment resolves all the
contested issues and terminates the lawsuit, since it is regarded as the
court's official pronouncement of the law on the action that was pending before
it. It states who wins the case and what remedies the winner is awarded.
Remedies may include money damages, injunctive relief, or both. A judgment also
signifies the end of the court's jurisdiction in the case.
--JUDGEMENT
ON THE MERITS
The
decision of a court that is based on the facts that have been presented.
A
judgment on the merits is one rendered after argument and investigation, and
when there is determination which party is right, as distinguished from a
judgment rendered upon some preliminary or formal or merely technical point, or
by default and without trial. Thus, a judgment on the merits is one wherein
there is an unequivocal determination of the rights and obligations of the
parties with respect to the causes of action and the subject matter of the
case.
The
doctrine of res judicata prevents a litigant from getting yet another day in
court after the first lawsuit is concluded by giving a different reason than he
gave in the first for recovery of damages for the same invasion of his
right. The rule provides that when a
court of competent jurisdiction has entered a final judgment on the merits of a
cause of action, the parties to the suit and their privies are bound "not
only as to every matter which was offered and received to sustain or defeat the
claim or demand, but as to any other admissible matter which might have been
offered for that purpose." A final
judgment on the merits bars further claims by the same parties based on the
same cause of action.
Res
judicata prevents a plaintiff from suing on a claim that already has been
decided and also prevents a defendant from raising any new defense to defeat
the enforcement of an earlier judgment.
It also precludes relitigation of any issue, regardless of whether the
second action is on the same claim as the first one, if that particular issue
actually was contested and decided in the first action. Former adjudication is an analogue of the
criminal law concept of double jeopardy.
--JUDICIAL
NOTICE
The
authority of a judge to accept as facts certain matters which are of common
knowledge from sources which guarantee accuracy or are a matter of official
record, without the need for evidence establishing the fact. Examples of
matters given judicial notice are public and court records, tides, times of
sunset and sunrise, government rainfall and temperature records, known historic
events or the fact that ice melts in the sun.
A
doctrine of evidence applied by a court that allows the court to recognize and
accept the existence of a particular fact commonly known by persons of average
intelligence without establishing its existence by admitting evidence in a
civil or criminal action.
When
a court takes judicial notice of a certain fact, it obviates the need for
parties to prove the fact in court. Ordinarily, facts that relate to a case
must be presented to the judge or jury through testimony or tangible evidence.
However, if each fact in a case had to be proved through such presentation, the
simplest case would take weeks to complete. To avoid burdening the judicial
system, all legislatures have approved court rules that allow a court to
recognize facts that constitute common knowledge without requiring proof from
the parties.
--JUDICIAL
REVIEW
A
court's authority to examine an executive or legislative act and to invalidate
that act if it is contrary to constitutional principles.
The
power of courts of law to review the actions of the executive and legislative
branches is called judicial review. Though judicial review is usually
associated with the U.S. Supreme Court, which has ultimate judicial authority,
it is a power possessed by most federal and state courts of law in the United
States. The concept is an American invention. Prior to the early 1800s, no
country in the world gave its judicial branch such authority.
The
1987 Philippine Constitution explicitly vests in the Supreme Court the power of
judicial review which is the authority to examine an executive or legislative
act and to invalidate that act if it is contrary to constitutional principles.
Like
almost all powers conferred by the Constitution, the power of judicial review
is subject to limitations, to wit: (1) there must be an actual case or
controversy calling for the exercise of judicial power; (2) the person
challenging the act must have the standing to question the validity of the
subject act or issuance; otherwise stated, he must have a personal and substantial
interest in the case such that he has sustained, or will sustain, direct injury
as a result of its enforcement; (3) the question of constitutionality must be
raised at the earliest opportunity; and (4) the issue of constitutionality must
be the very lis mota of the case.
--JURIDICAL
CAPACITY
Juridical
capacity is the same in every person. No one has more juridical capacity than
others. It is inherent in natural persons. On the other hand, it arises in
artificial persons when such artificial persons are created. Juridical capacity
is the fitness tobe the subject of legal relations.
--JURISDICTION
Power
of a court to adjudicate cases and issue orders.
Territory
within which a court or government agency may properly exercise its power.
Jurisdiction
(from the Latin ius, iuris meaning "law" and dicere meaning "to
speak") is the practical authority granted to a legal body to administer
justice within a defined area of responsibility.
The
geographic area over which authority extends; legal authority; the authority to
hear and determine causes of action.
Jurisdiction
also may refer to the origin of a court's authority. A court may be designated
either as a court of general jurisdiction or as a court of special
jurisdiction. A court of general jurisdiction is a trial court that is
empowered to hear all cases that are not specifically reserved for courts of
special jurisdiction. A court of special jurisdiction is empowered to hear only
certain kinds of cases.
Subject
matter jurisdiction is the court's authority to decide the issue in controversy
such as a contracts issue, or a civil rights issue. Territorial jurisdiction is
the court's power to bind the parties to the action. This law determines the
scope of federal and state court power.
--JUSTICIABLE
CONTROVERSY
An
actual case or controversy — one which involves a conflict of legal rights, an
assertion of opposite legal claims susceptible of judicial resolution; the case
must not be moot or academic or based on extra-legal or other similar considerations
not cognizable by a court of justice. The controversy must be justiciable —
definite and concrete, touching on the legal relations of parties having
adverse legal interests. In other words, the pleadings must show an active
antagonistic assertion of a legal right, on the one hand, and a denial thereof
on the other; that is, it must concern a real and not a merely theoretical
question or issue. There ought to be an actual and substantial controversy
admitting of specific relief through a decree conclusive in nature, as
distinguished from an opinion advising what the law would be upon a
hypothetical state of facts.
Courts
accord the presumption of constitutionality to legislative enactments, not only
because the legislature is presumed to abide by the Constitution but also
because the judiciary in the determination of actual cases and controversies
must reflect the wisdom and justice of the people as expressed through their
representatives in the executive and legislative departments of the government.
--JUSTICIABLE
ISSUE
A
controversy involving a real issue that can be settled by a court, involving a
present claim made by one party and another party disputing it.
--LAW
OF THE CASE DOCTRINE
When
a court decides upon a rule of law, that decision should continue to govern the
same issues in subsequent stages in the same case.
As
generally used, the term law of the case designates the principle that if an
appellate court has passed on a legal question and remanded the cause to the
court below for further proceedings, the legal question thus determined by the
appellate court will not be differently determined on a subsequent appeal in
the same case where the facts remain the same.[3]The doctrine provides that an
appellate court’s determination on a legal issue is binding on both the trial
court on remand and an appellate court on a subsequent appeal given the same
case and substantially the same facts.
--LEX
LOCI
The
law of the country in which a transaction is performed, a tort is committed, or
a property is situated. The principle that the law of the place giving rise to
particular rights is the law that governs the rights of parties to a legal
proceeding.
--LIS
MOTA
Lis
mota is a Latin term meaning the cause or motivation of a legal action or
lawsuit. The literal translation is "litigation moved".
Lis
Mota-the fourth requirement to satisfy before this Court will undertake
judicial review — means that the Court will not pass upon a question of
unconstitutionality, although properly presented, if the case can be disposed
of on some other ground, such as the application of the statute or the general
law. The petitioner must be able to show that the case cannot be legally resolved
unless the constitutional question raised is determined. This requirement is
based on the rule that every law has in its favor the presumption of
constitutionality; to justify its nullification, there must be a clear and
unequivocal breach of the Constitution, and not one that is doubtful,
speculative, or argumentative.
--MAJORITY
DECISION
The
opinion joined by a majority of the court (generally known simply as the
opinion). The statement by a judge or court of the decision reached in regard
to a cause tried or argued before them, expounding the law as applied to the
case,
and detailing the reasons upon which the
judgment
is based.
The
holding of a court consisting of multiple members, typically an appellate
court, issued together by the majority of the members, and establishing the formal legal result of
the case, as opposed to a dissenting opinion.
--MANDAMUS
The
name of a writ, the principal word of which when the proceedings were in Latin,
was mandamus, we command.It is a command issuing in the name of the sovereign
authority from a superior court having jurisdiction, and is directed to some
person, corporation, or, inferior court, within the jurisdiction of such
superior court, requiring them to do some particular thing therein specified,
which appertains to their office and duty, and which the superior court has
previously determined, or at least supposes to be consonant to right and
justice.
Latin
for "we order," a writ (more modernly called a "writ of
mandate") which orders a public agency or governmental body to perform an
act required by law when it has neglected or refused to do so. Examples: After
petitions were filed with sufficient valid signatures to qualify a proposition
for the ballot, the city refuses to call the election, claiming it has a legal
opinion that the proposal is unconstitutional. The backers of the proposition
file a petition for a writ ordering the city to hold the election. The court
will order a hearing on the writ and afterwards either issue the writ or deny
the petition. Or a state agency refuses to release public information, a school
district charges fees to a student in violation of state law, or a judge will
not permit reporters entry at a public trial. All of these can be subject of
petitions for a writ of mandamus.
In
order that a writ of mandamus may aptly issue, it is essential that, on the one
hand, the person petitioning for it has a clear legal right to the claim that
is sought and that, on the other hand, the respondent has an imperative duty to
perform that which is demanded of him. Mandamus will not issue to enforce a
right, or to compel compliance with a duty, which is questionable or over which
a substantial doubt exists. The
principal function of the writ of mandamus is to command and to expedite, not
to inquire and to adjudicate; thus, it is neither the office nor the aim of the
writ to secure a legal right but to implement that which is already
established. Unless the right to the
relief sought is unclouded, mandamus will not issue.
--MITTIMUS
A
writ enclosing a record sent to be tried in a county palatine; it derives its
name from the Latin word mittimus, "we send."
A
court order directing a sheriff or other police officer to escort a convict to
a prison.
A
mittimus is a written document. It can command a jailer to safely keep a felon
until he or she can be transferred to a prison. A mittimus also refers to the
transcript of the conviction and sentencing stages, which is duly certified by
a clerk of court.
--MOTION
A
written or oral application made to a court or judge to obtain a ruling or
order directing that some act be done in favor of the applicant. The applicant
is known as the moving party, or the Movant. A written motion may contain
citations to case law or statutes that support the motion. A motion almost
always contains a recitation of the facts of the case or the situation
prompting the movant to make the request.
A
motion is a written request to the court. When a party asks the court to take
some kind of action in the course of litigation, other than resolving the
entire case in a trial, the request is made in the form of a motion. Motions
are often made before trials to resolve procedural and preliminary issues, and
may be made after trials to enforce or modify judgments. Motions may also be
made to resolve legal issues in the case if there is no disagreement about the
facts. Usually called a motion for summary judgment or a motion for summary
adjudication of the issues, these motions can resolve all or most of the issues
in a case without the need for a trial.Normally, one side submits a motion, the
other side submits a written response, and the court holds a hearing at which
the parties give brief oral arguments. (Some motions are considered only on the
basis of the writings.) Then the court approves or denies the motion.
--MOTU
PROPRIO
Lat.
Of his own motion. The
commencing
words of a certain kind of papal rescript. It is used to refer to a document
that is issued and personally signed by the Pope. It may be contain
instructional matter, administrative matters of church law or governing bodies,
or used to grant a special favor. Article 15 (of the Rome Treaty which established
the International Criminal Court) ... provides the Prosecutor with an
unfettered power to trigger the Court's jurisdiction proprio motu, which means
at his or her own initiative
without
any formal referral act or formal duty to initiate.
--MUTATIS
MUTANDIS
The
necessary changes. This is a phrase of frequent practical occurrence, meaning
that matters or things are generally the same, but to be altered, when
necessary, as to names, offices, and the like.
Latin:
with changes on points of detail. This Latin phrase simply means that the
necessary changes in details, such as names and places, will be made but
everything else will remain the same.
However,
it is more often translated or understood to mean “the necessary changes having
been made”. It essentially indicates that new terms have been substituted or
that the reader should note any differences from the original and take them
into consideration.
--NEGATIVE
DEFENSE
Negative
Defense refers to a defendant's outright denial of the plaintiff's allegations
without there being any additional facts pleaded by way of avoidance. A defense
is a denial, or answer or plea in opposition to the truth or validity of a
claim by a plaintiff.
Requires the
prosecution to prove the
guilt of the
accused beyond reasonable doubt.
Accused claims that
one of the elements
of the offense
charged is not present.It is
incumbent upon the prosecution to
prove the existence of this element.
--NEGATIVE
PREGNANT
A
denial of an allegation in which a person actually admits more than he/she
denies by denying only a part of the alleged fact. Example: Plaintiff alleges
Defendant "misused more than a hundred thousand dollars placed in his
trust in 1994." Defendant denies the amount was more than a hundred
thousand, and denies it was given to him in 1994." Thus, the defendant did
not deny the misuse, just the amount and the date.
Such
form of negative expression, in pleading, as may imply or carry within it an
affirmative. Implicitly accepting
culpability while explicitly denying the charge is what this type of ambiguous
negative statement is.
--NOTATU
DIGNUM
Notatu
dignum is the presumption of regularity in the performance of a judges
functions, hence, bias, prejudice and even undue interest cannot be presumed,
especially weighed against a judges sacred allegation under oath of office to
administer justice without respect to any person and do equal right to the poor
and the rich. In a long line of cases decided by this Court, it was held that
bare allegations of bias are not enough in the absence of clear and convincing
evidence to overcome the presumption that the judge will undertake his noble
role to dispense justice according to law and evidence and without fear or
favor.
it
is a matter of public policy that in the absence of fraud, dishonesty or
corruption, the acts of a judge in his judicial capacity are generally not
subject to disciplinary action, even though such acts are erroneous. For a
judge may not be held administratively accountable for every erroneous order or
decision he renders. To hold otherwise would be to render judicial office
untenable, for no one called upon to try the facts or interpret the law in the
process of administering justice can be infallible in his judgment.
--NUNC
PRO TUNC
[Latin,
Now for then.] When courts take some action nunc pro tunc, that action has
retroactive legal effect, as though it had been performed at a particular,
earlier date.
The
most common use of nunc pro tunc is to correct past clerical errors, or
omissions made by the court, that may hinder the efficient operation of the
legal system. For example, if the written record of a trial court's judgment
failed to correctly recite the judgment as the court rendered it, the court has
the inherent power to change the record at a later date to reflect what
happened at trial. The decision, as corrected, would be given legal force from
the time of the initial decision so that neither party is prejudiced, or
harmed, by the error. The purpose of nunc pro tunc is to correct errors or
omissions to achieve the results intended by the court at the earlier time.
This
refers to changing back to an earlier date of an order, judgment or filing of a
document. Such a retroactive re-dating requires a court order which can be
obtained by a showing that the earlier date would have been legal, and there
was error, accidental omission or neglect which has caused a problem or
inconvenience which can be cured. Often the judge will grant the nunc pro tunc
order ex parte (with only the applicant appearing and without notice).
Examples: a court clerk fails to file an answer when he/she received it, and a
nunc pro tunc date of filing is needed to meet the legal deadline (statute of
limitations); a final divorce judgment is misdirected and, therefore, not
signed and dated until the day after the re-marriage of one of the parties-the
nunc pro tunc order will prevent the appearance or actuality of a bigamous
marriage.
--OBITER
DICTUM
[Latin,
By the way.] Words of an opinion entirely unnecessary for the decision of the
case. A remark made or opinion expressed by a judge in a decision upon a cause,
"by the way", that is, incidentally or collaterally, and not directly
upon the question before the court or upon a point not necessarily involved in
the determination of the cause, or introduced by way of illustration, or
analogy or argument. Such are not binding as precedent.
--PENDENTE
LITE
[Latin,
Pending the litigation.] During the actual progress of a lawsuit.
Latin
for awaiting the litigation (lawsuit). It is applied to court orders (such as
temporary child support) which are in effect until the case is tried, or rights
which cannot be enforced until the lawsuit is over.
It
is often used in divorce law to refer to to court orders such as temporary
child support or alimony which are in effect until the case is tried, or rights
which cannot be enforced until the lawsuit is over. Pendente lite matters are
contingent on the outcome of the underlying litigation. Sometimes a party is
required to deposit funds with the court pending the outcome of the lawsuit. If
the depositing party loses the lawsuit, the funds are paid to the opposing
party.
Pendente
lite should not be confused with lis pendens. Lis pendens also means pending
lawsuit. But lis pendens is a document filed in the public records of the
county where particular real property is located stating that a pending lawsuit
may affect the title to the property. Because nobody wants to buy real estate
if its ownership is in dispute, a lis pendens notice effectively ties up the
property until the case is resolved. Lis pendens notices are often filed in
divorce actions when there is disagreement about selling or dividing the family
home.
--PER
CURIAM
Latin
for "by the court." An opinion
from an appellate court that does not identify any specific judge who may have
written the opinion.
A
phrase used to distinguish an opinion of the whole court from an opinion
written by any one judge.
Sometimes
per curiam signifies an opinion written by the chief justice or presiding
judge; it can also refer to a brief oral announcement of the disposition of a
case by the court that is unaccompanied by a written opinion.
It
is the opinion of the court as a single body. Most decisions on the merits by
the Supreme Court and other appellate courts in the U.S. are signed by
individual justices. Even when such signed opinions are unanimous, they are not
termed "per curiam." Per curiam decisions usually deal with issues the
court views as relatively non-controversial.
--PLAIN
MEANING RULE
The
Plain meaning rule is a type of statutory construction by which statutes are to
be interpreted using the ordinary meaning of the language of the statute. This
applies when there is no ambiguity in a will. In such a situation, the court
should refuse admission of extrinsic evidence to overturn the plain meaning of
the Will. The soft plain meaning rule means that the statute is to be
interpreted according to the ordinary meaning of the language, unless the
result would be cruel or absurd. The plain meaning rule requires that words are
given their ordinary meaning, technical terms are given their technical
meaning, and local, cultural terms are recognized as applicable. Additionally,
the plain meaning rule prevents courts from taking sides in legislative or
political issues.
A
cardinal rule in statutory construction is that when the law is clear and free
from any doubt or ambiguity, there is no room for construction or
interpretation. There is only room for application. As the statute is clear,
plain, and free from ambiguity, it must be given its literal meaning and
applied without attempted interpretation. This is what is known as the
plain-meaning rule or verba legis. It is expressed in the maxim, index animi
sermo, or "speech is the index of intention." Furthermore, there is
the maxim verba legis non est recedendum, or "from the words of a statute
there should be no departure."
--PLEADING(S)
Asking
a court to grant relief. The formal presentation of claims and defenses by
parties to a lawsuit. The specific papers by which the allegations of parties
to a lawsuit are presented in proper form; specifically the complaint of a
plaintiff and the answer of a defendant plus any additional responses to those
papers that are authorized by law.
Different
systems of pleading have been organized generally to serve four functions: (1)
to give notice of the claim or defense; (2) to reveal the facts of the case;
(3) to formulate the issues that have to be resolved; and (4) to screen the
flow of cases into a particular court. Different systems may rely on the
pleadings to accomplish these purposes or may use the pleadings along with
other procedural devices, such as discovery, Pretrial Conference among the
parties, or Summary Judgment.
Every
legal document filed in a lawsuit, petition, motion and/or hearing, including
complaint, petition, answer, demurrer, motion, declaration, and memorandum of
points and authorities (written argument citing precedents and statutes).
Laypersons should be aware that, except possibly for petitions from prisoners,
pleadings are required by state or federal statutes and/or court rules to be of
a particular form and format: typed, signed, dated, with the name of the court,
title and number of the case, name, address and telephone number of the
attorney or person acting for himself/herself (in pro per) included. 2) the act
of preparing and presenting legal documents and arguments. Good pleading is an
art: clear, logical, well-organized, comprehensive, and including all essential
facts.
--PONENTE
The
ponente is the Member to whom the Court, after its deliberation on the merits
of a case, assigns the writing of its decision or resolution in the case.
--PRECEDENT
A
court decision that is cited as an example or analogy to resolve similar
questions of law in later cases.
The
Anglo-American common-law tradition is built on the doctrine of Stare Decisis
("stand by decided matters"), which directs a court to look to past
decisions for guidance on how to decide a case before it. This means that the
legal rules applied to a prior case with facts similar to those of the case now
before a court should be applied to resolve the legal dispute.
The
use of precedent has been justified as providing predictability, stability,
fairness, and efficiency in the law. Reliance upon precedent contributes
predictability to the law because it provides notice of what a person's rights
and obligations are in particular circumstances. A person contemplating an
action has the ability to know beforehand the legal outcome. It also means that
lawyers can give legal advice to clients based on settled rules of law.
Legal
principle, created by a court decision, which provides an example or authority
for judges deciding similar issues later. Generally, decisions of higher courts
(within a particular system of courts) are mandatory precedent on lower courts
within that system--that is, the principle announced by a higher court must be
followed in later cases.
--PREJUDICIAL
QUESTION
A
prejudicial question is defined as that which arises in a case the resolution
of which is a logical antecedent of the issue involved therein, and the
cognizance of which pertains to another tribunal. The prejudicial question must
be determinative of the case before the court but the jurisdiction to try and
resolve the question must be lodged in another court or tribunal. It is a
question based on a fact distinct and separate from the crime but so intimately
connected with it that it determines the guilt or innocence of the accused.
The
elements of a prejudicial questions are enumerated under Section 7, Rule 111 of
the 2000 Revised Rules of Criminal Procedure, these are: (a) the previously
instituted civil action involves an issue similar or intimately related to the
issue raised in the subsequent criminal action, and (b) the resolution of such
issue determines whether or not the
criminal action may proceed.
Doctrine
of stare decisis et non quieta movere, which means "to adhere to
precedents, and not to unsettle things which are established." Under the
doctrine, when this Court has once laid down a principle of law as applicable
to a certain state of facts, it will adhere to that principle, and apply it to
all future cases, where facts are substantially the same; regardless of whether
the parties and property are the same.
--PRIMA
FACIE
Latin
for "at first sight." Prima
facie may be used as an adjective meaning "sufficient to establish a fact
or raise a presumption unless disproved or rebutted;" e.g., prima facie
evidence. It may also be used as an
adverb meaning "on first appearance but subject to further evidence or
information;" e.g., the agreement is prima facie valid. A fact presumed to
be true unless it is disproved.
A
prima facie case is the establishment of a legally required rebuttable
presumption. It is generally understood
as a flexible evidentiary standard that measures the effect of evidence as
meeting, or tending to meet, the proponent's burden of proof on a given
issue. In that sense, a prima facie case
is a cause of action or defense that is sufficiently established by a party's
evidence to justify a verdict in his or her favor, provided such evidence is
not rebutted by the other party.
--PRO
BONO
The
term pro bono is short for the Latin "pro bono publico," which means
"for the public good." The term generally refers to free services
that a professional provides to poverty-stricken clients, non-profit groups or
charitable organizations. In the financial world, the term applies to free
services or advice provided by a financial professional.
The
term pro bono is short for the Latin "pro bono publico," which means
"for the public good." The term generally refers to free services
that a professional provides to poverty-stricken clients, non-profit groups or
charitable organizations. In the financial world, the term applies to free
services or advice provided by a financial professional.
"Pro
bono" gained popularity in the legal profession, as lawyers are bound by
ethical rules to charge reasonable rates for their services and to serve public
interest by providing free legal services to those in need.
The
designation given to the free legal work done by an attorney for indigent
clients and religious, charitable, and other nonprofit entities.
--PRO
HAC VICE
Latin
meaning "for this one particular occasion." The phrase usually refers
to an out-of-state lawyer who has been granted special permission to
participate in a particular case, even though the lawyer is not licensed to
practice in the state where the case is being tried.
When
a lawyer wishes to practice pro hac vice, a formal “motion to appear pro hac
vice” must be filed with the court, usually by a sponsoring lawyer who has been
admitted to the bar in the state or region where the court is located. The
application may need to include a statement from the lawyer's local bar,
stating that he or she is a member in good standing, and a filing fee may need
to be paid for the court to consider the motion.
--PRO
SE
"Pro
Se" is Latin for "For Self" or in one's own behalf. You appear
"Pro Se" in a legal action when you represent yourself directly in a
legal action (in or out of court) and do not have an attorney speaking or
writing for you.“Pro-Se” refers to representing yourself in any type of legal
matter without the benefit of legal counsel.
"In
Pro Per" is a short form of the Latin phrase, "In Propria
Persona", or "in the person of yourself." The full term of
"In Propria Persona" is hardly ever used in court. A person who is
acting In Pro Per is called a Pro Per. The terms Pro Per and Pro Se are
equivalent in court.
--QUESTION
OF FACT
There
is a question of fact when the doubt arises as to the truth or falsity of the
alleged facts. Once it is clear that the issue invites a review of the evidence
presented, the question posed is one of fact.
A
question of fact is a question as to what "happened" in a given legal
matter.
--QUESTION
OF LAW
A
question of law arises when there is doubt as to what the law is on a certain
state of facts. For a question to be one of law, the same must not involve an
examination of the probative value of the evidence presented by the litigants
or any of them. The resolution of the issue must rest solely on what the law
provides on the given set of circumstances.
A
question of law is generally more of a procedural question
--RATIO
DECIDENDI
Latin:
reasons for a decision. The underlying principle is called the ratio decidendi,
namely the general reasons given for the decision or the general grounds upon
which it is based, detached or abstracted from the specific peculiarities of
the particular case which gives rise to the decision.
Ratio
decidendi refers to the legal, moral, political and social principles on which
a court’s decision rests. It is the rationale for reaching the decision of a
case. It is binding on lower courts through the principle of Stare decisis.
Ratio decidendi is a helpful tool for a lawyer.
Ratio
is a ruling on a point of law and the decision on a point of law depends on
facts of a case. Culling out ratio from a judgment is difficult. A thorough
reading of an entire judgment is required to identify a ratio. Ration decidendi
can be determined or identified in the following ways:
By
distinguishing material facts from unimportant facts.
By
discovering the precedents applied to identify the court’s approach.
By
restricting analysis to the majority opinions.
By
reading out subsequent decisions and considering it at several levels.
--RATIO
LEGIS
Ratio
legis est anima (The reason of law is the soul of law), meaning that the words
of the Constitution should be interpreted in accordance with the intent of its
framers.
The
reason or occasion of a law; the occasion of making a law.
--RECUSAL
To
disqualify or remove oneself as a judge over a particular proceeding because of
one's conflict of interest. Recusal, or the judge's act of disqualifying
himself or herself from presiding over a proceeding, is based on the Maxim that
judges are charged with a duty of impartiality in administering justice.
When
a judge is assigned to a case, she reviews the general facts of the case and
determines whether she has any conflict of interest concerning the case. If a
conflict of interest exists, the judge may recuse herself on her own
initiative. In addition, any party in a case may make a motion to require the
judge to recuse herself from hearing the case. The initial presiding judge
usually determines whether or not the apparent conflict requires her recusal,
and the judge's decision is given considerable deference. Some jurisdictions,
however, require another judge to decide whether or not the presiding judge
should be disqualified. If a judge fails to recuse himself when a direct
conflict of interest exists, the judge may later be reprimanded, suspended, or
disciplined by the body.
--REJOINDER
The
answer made by a defendant in the second stage of Common-Law Pleading that
rebuts or denies the assertions made in the plaintiff's replication. The second
pleading on the part of the defendant, being his answer of matter of fact to
the plaintiff’s replication.
The
rejoinder allows a defendant to present a more responsive and specific
statement challenging the allegations made against him or her by the plaintiff.
--RES
IPSA LOQUITOR
[Latin,
The thing speaks for itself.] A rebuttable presumption or inference that the
defendant was negligent, which arises upon proof that the instrumentality or
condition causing the injury was in the defendant's exclusive control and that
the accident was one that ordinarily does not occur in the absence of
Negligence.
Res
ipsa loquitur is one form of circumstantial evidence that permits a reasonable
person to surmise that the most Probable Cause of an accident was the
defendant's negligence.
--RULING
Any
decision made by a judge during the course of litigation is called a ruling.
For example, if a court grants a father custody after a trial on the custody
issue, that is a ruling. Also, if a court sustains or overrules an objection to
evidence raised during a trial, that is a ruling.
A
judicial or administrative interpretation of a provision of a statute, order,
regulation, or ordinance. The judicial determination of matters before the
court such as the admissibility of evidence or the granting of a motion, which
is an application for an order.
--SEPARATE
OPINION
An
opinion written by a judge separately from other judges, which can either agree
or disagree with the opinion written by the majority of judges.
--SHARI'A
Shari'ah,
also spelled Sharia, the fundamental religious concept of Islam, namely its
law, systematized during the 2nd and 3rd centuries of the Muslim era. The term
means "way" or " path"; it is the legal framework within
which the public and some private aspects of life are regulated for those
living in a legal system based on Islam. The term sharia means a body of moral
and religious law derived from religious prophecy, as opposed to human
legislation. There is not a strictly codified uniform set of laws that can be
called Sharia. It is more like a system of several laws, based on the Qur'an,
Hadith and centuries of debate, interpretation and precedent.
--SIN
PERJUCIO JUDGEMENT
A
sin perjuicio decision is a judgment without statement of facts in support of
its conclusion and is null and void. Under the Constitution, “no decision shall
be rendered by any court without expressing therein clearly and distinctly the
facts and the law on which it is based.”
--STARE
DECISIS
Lat.
To abide by, or adhere
to,
decided cases. Doctrine that, when court
has
once laid down a principle of law as applicable
to
a certain state of facts, it will adhere to
that
principle, and apply it to all future cases,
where
facts are substantially the same.
--SUBJUDICE
Under
or before a judge or court;
under
judicial consideration; undetermined.
The
sub judice rule regulates the publication of matters which are under
consideration by the court.
In
essence, the sub judice rule restricts comments and disclosures pertaining to
pending judicial proceedings. The restriction applies not only to participants
in the pending case, i.e., to members of the bar and bench, and to litigants
and witnesses, but also to the public in general, which necessarily includes
the media. Although the Rules of Court does not contain a specific provision
imposing the sub judice rule, it supports the observance of the restriction by
punishing its violation as indirect contempt under Section 3(d) of Rule 71. n
so far as criminal proceedings are concerned, two classes of publicized speech
made during the pendency of the proceedings can be considered as contemptuous:
first, comments on the merits of the case, and second, intemperate and
unreasonable comments on the conduct of the courts with respect to the case.
Publicized speech should be understood to be limited to those aired or printed
in the various forms of media such as television, radio, newspapers, magazines,
and internet, and excludes discussions, in public or in private, between and
among ordinary citizens. The Constitution simply gives the citizens the right
to speech, not the right to unrestricted publicized speech.
--TRAVERSE
In
the language of pleading, a traverse signifies a denial. Thus, where a
defendant denies any material allegation of fact in the plaintiff’s
declaration, he is said to traverse it. and the plea itself is thence
frequently termed a “traverse.”
For
example, a plaintiff could bring a lawsuit in order to collect money that he
claimed the defendant owed him. If the defendant answered the plaintiff's claim
by stating in answer that she did not fail to pay the money owed on the date it
was due, this is a denial of a fact essential to the plaintiff's case. The
defendant can be said to traverse the plaintiff's declaration of an outstanding
debt, and her plea itself could be called a traverse.
This
is a technical term, which means to turnover: it is applied to an issue taken
upon an indictment for a misdemeanor, and means nothing more than turning over
or putting off the trial to a following sessions or assize; it has, perhaps
with more propriety, been applied to the denying or taking issue upon an
indictment, without reference to the delay of trial.pleading. This term, from
the French traverser, signifies to deny or controvert anything which is alleged
in the declaration, plea, replication or other pleadings. There is no real
distinction between traverses and denials, they are the same in substance
however, a traverse, in the strict technical meaning, and more ordinary
acceptation of the term, signifies a direct denial in formal words,
"without this that," etc.
