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Glossary of Terms

APPENDIX A: Glossary of Terms

Below is a list of legal terms, phrases, and other words that you may come across in this Handbook or in further research.

Absolute Immunity: A way that certain government officials can avoid, or be “immune,” to any lawsuit for actions they took while doing their job.

Administrative Remedies / Administrative ProcessThis usually refers to a system for requesting something or making a complaint to the prison administration.

Admissible: Evidence that can be used at a trial is known as “admissible” evidence. “Inadmissible” evidence can’t be used at a trial.

Affidavit: A written or printed statement of facts that is made voluntarily by a person who swears to the truth of the statement before a public officer, such as a “notary public.”

Affirm: When the appellate court agrees with the decision of the trial court, the appellate court “affirms” the decision of the trial court. In this case, the party who lost in the trial court and appealed to the appellate court is still the loser in the case. 

Allege: To claim that someone did something, or that something happened, which has not been proven. The thing that you claim happened is called an “allegation.”

Amendment (as in the First Amendment): Any change that is made to a law after it is first passed. In the United States Constitution, an “Amendment” is a law added to the original document that further defines the rights and duties of individuals and the government. Complaints can be amended too, so you may see references in this handbook to an “Amended Complaint.”

Annotation: A remark, note, or comment on a section of writing which is included to help you understand the passage.

Answer: A formal, written statement by the defendant in a lawsuit which responds to each allegation in the complaint.

Appeal: When one party asks a higher court to reverse the judgement of a lower court because the decision was wrong or the lower court made an error. For example, if you lose in the trial court, you may “appeal” to the appellate court.

Brief: A document written by a party in a case that contains a summary of the facts of the case, relevant law and precedent, and an argument of how the law applies to the factual situation. Also called a “memorandum of law.”

Burden of proof: The duty of a party in a trial to convince the judge or jury of a fact or facts at issue. If the party does not fulfill this duty, they will lose their case or claim.

Business Days: Some laws and courts use “business days” to tell you how long you have to file or respond. This means you only count the days Monday through Friday. Weekends and holidays that fall on a weekday are not business days.

Calendar Days: Some laws and courts use “calendar days” to tell you how long you have to file or respond. Each day on a calendar—weekends, holidays, weekdays—is counted as a “calendar day.” So if a court tells you that you must file a response in “thirty calendar days” that means thirty days, counting every day of the week.

Causation: The link between a defendant’s conduct and the plaintiff’s injury or harm. In a civil rights case, the plaintiff must always prove “causation.”

Cause of Action: Authority based on law that allows a plaintiff to file a lawsuit. In this handbook, we explain the “cause of action” called Section 1983.

Cert” or “Writ of Certiorari: An order by the Supreme Court stating that it will review a case already decided by the trial court and the appeals court. When the Supreme Court makes this order, it is called “granting cert.” If they decide not to review a case, it is called “denying cert.” 

Cf.: An abbreviation used in legal writing to mean “compare.” The word directs the reader to another case or article in order to compare, contrast or explain views or statements.

Circuit Court of Appeals: The United States is divided into federal judicial circuits. Each “circuit” covers a geographical area, often called by its circuit number (like “5th Circuit”), and has a court of appeals. The appellate court is called the U.S. Court of Appeals for that particular circuit (for example, the U.S. Court of Appeals for the 5th Circuit).

Citation: A written reference to a book, a case, a section of the constitution, or any other source of authority.

Civil (as in “civil case” or “civil action”): In general, all cases or actions which are not criminal. “Civil actions” are brought by a private party to protect a private right.

Claim: A legal demand made about a violation of one’s rights.

Class Action: A lawsuit in which a few plaintiffs sue on behalf of a larger group of people whose rights are being violated in the same way.

Clearly Established: a right is “clearly established” if a reasonable officer would understand that right. Under the doctrine of “qualified immunity” you may only be able to recover money damages for violation of clearly established rights.

Color of State Law: When a state or local government official is carrying out their job or acting like they are carrying out their job. Acting “under color of state law” is one of the requirements of a Section 1983 action.

Compensatory Damages: When you receive “compensatory damages,” it means you are getting money to compensate you for injury or any type of loss, such as loss of property.

Complaint: The legal document filed in court by the plaintiff that begins a civil lawsuit. A “complaint” sets out the facts and the legal claims in the case and requests some action by the court.

Consent: Agreement; voluntary acceptance of the wish of another.

Consent Order / Consent Decree: An order for an injunction (to change something the defendant is doing) that is agreed on by the parties in a settlement and given to the court for approval and enforcement.

Constitution: The supreme law of the land. The U.S. Constitution applies to everyone in this country. Each state also has a State Constitution, which can provide more rights that the U.S. Constitution, but cannot take U.S. Constitutional rights away.

Constitutional law: Law set forth in the Constitution of the United States or a state constitution.

Counsel: A lawyer.

Criminal (as in “criminal case” or “criminal trial”): When the state or federal government charges a person with committing a crime. The burden of proof and the procedural rules in a criminal trial are different from those in a civil trial.

Cross-examination: At a trial or hearing, the questioning of a witness by the lawyer for the other side. Cross-examination takes place after the party that called the witness has questioned them. Each party has a right to “cross-examine” the other party’s witnesses.

Damages: Money awarded by a court to a person who has suffered some sort of loss, injury, or harm.

Declaration: A statement made by a witness under penalty of perjury.

Declaratory Judgment: A court order that sets out the rights of the parties or expresses the opinion of the court about a certain part of the law, without ordering any money damages or other form of relief for either side.

Default judgment: A judgment entered against a party who fails to appear in court or respond to the charges.

Defendant: The person against whom a lawsuit is brought.

Defense: A reason, stated by the defendant, why the plaintiff should lose a claim.

Deliberate Indifference: The level of intent required for a defendant in an Eighth Amendment claim. It requires a plaintiff to show that a defendant (1) actually knew of a substantial risk of serious harm, and (2) failed to respond reasonably.

De Minimis: Very small or not big enough. For example, in an Eighth Amendment excessive force claim, you need to prove an injury that is more than de minimis.

Denial: When the court rejects an application or petition. Or, when someone claims that a statement offered is untrue.

De novo: In the legal world, to review something “de novo” means to review an issue or case, taking a fresh look at it. When a court uses “de novo” review it does not defer to the determination of the lower court.

Deposition: One of the tools of discovery. It involves a witness giving sworn testimony in response to oral or written questions.

Dictum: An observation or remark made by a judge in their opinion, about a legal issue that is not necessary to the court’s actual decision. Future courts do not have to follow the legal analysis found in “dictum.” It is not “binding” because it is not the legal basis for the judge’s decision. Plural: “Dicta”

Direct Examination: At a trial or hearing, the questioning of a witness by the lawyer or party that called the witness. The lawyer conducts “direct examination” and then the lawyer for the other side gets the chance to “cross examine” that same witness.

Discovery: The process of getting information which is relevant to your case in preparation for a trial.

Discretion: The power or authority of a legal body, such as a court, to act or decide a situation one way or the other, where the law does not dictate the decision.

Disposition: The result of a case; how it was decided.

District Court: The trial courts within the federal court system. There are District Courts in each federal circuit and their decisions can be appealed to the Circuit Courts of Appeal.

Document Request: One of the tools of discovery, allows one party to a lawsuit to get papers or other evidence from the other party.

Due process: A constitutional right that guarantees everyone in the United States a certain amount of protection for their life, liberty, and property.

Element: A fact that one must prove to win a claim.

Enjoining: When a court orders a person to perform a certain act or to stop performing a specific act. The order itself is called an “injunction.”

Evidence: Anything that proves, or helps to prove, the claim of a party. “Evidence” can be testimony by witnesses and experts, documents, physical objects, and anything else admissible in court that will help prove a point.

Exclude from evidence: The use of legal means to keep certain evidence from being considered in deciding a case.

Excessive Force: more force than is justified in the situation.

Exhaustion of Administrative Remedies: the requirement that a prisoner use the prison grievance system to make (and appeal) a complaint before filing a lawsuit. One of the requirements of the Prison Litigation Reform Act.

Exhibit: Any paper or thing used as evidence in a lawsuit.

Extrinsic Evidence: Evidence which is not part of a document or is offered to explain or contradict the meaning of another piece of evidence. Extrinsic evidence is not always admissible in court.

Federal law: A system of courts and rules organized under the United States Constitution and statutes passed by Congress; different than state law.

File: When you officially send or give papers to the court in a certain way, it is called “filing” the papers.

Finding: Formal conclusion by a judge or jury on an issue of fact or law.

Footnote: More information about a subject indicated by a number in the body of a piece of legal writing which corresponds to the same number at the bottom of the page. The information at the bottom of the page is the “footnote.”

Frivolous: Something that is groundless, an obviously losing argument or unbelievable claim.

Grant: To allow or permit. For example, when the court “grants a motion,” it allows what the motion was asking for.

Habeas Corpus (Habeas): An order issued by a court to release a prisoner from prison or jail. For example, a prisoner can petition (or ask) for “habeas” because a conviction was obtained in violation of the law. The “habeas writ” can be sought in both state and federal courts.

Hear: To listen to both sides on a particular issue. For example, when a judge “hears a case,” they consider the validity of the case by listening to the evidence and the arguments of the lawyers from both sides in the litigation.

Hearing: A legal proceeding before a judge or judicial officer, in some ways similar to a trial, in which the judge or officer decides an issue of the case but does not decide the whole case.

Hearsay: Testimony that includes a written or verbal statement that was made out of court that is being offered in court to prove the truth of what was said. Hearsay is often “inadmissible.”

Holding: The decision of a court in a case and the accompanying explanation.

Immunity: When a person or governmental body cannot be sued, they are “immune” from suit.

Impartial: Even-handed or objective; favoring neither side.

Impeach: When one party presents evidence to show that a witness is lying or unreliable.

Inadmissible evidence: Evidence that cannot legally be introduced at a trial. Opposite of “admissible” evidence.

Injunction: An order by a court that a person or persons should stop doing something or should begin to do something.

Injury: A harm or wrong done by one person to another person.

Interrogatories: A set of questions in writing. One of the tools of discovery

Irreparable Harm: a type of injury that would cause permanent harm or damage that cannot be fixed by money or some other form of relief.

Judge: A court officer who is elected or appointed to hear cases and make decisions about them.

Judgment: The final decision or holding of a court that resolves a case and determines the parties’ rights and obligations.

Jurisdiction: The authority of a court to hear a particular case.

Jury: A group of people called to hear a case and decide issues of fact.

Law: Rules and principles of conduct set out by the constitution, the legislature, and past judicial decisions.

Lawsuit: A legal action that involves at least one plaintiff, making one or more claims, against at least one defendant.

Liable: To be held responsible for something. In civil cases, plaintiffs must prove that the defendants are “liable” for unlawful conduct.

Litigate: To participate in a lawsuit. All the parts of a lawsuit are called “litigation” and sometimes lawyers are called “litigators.”

Majority: More than half. For example, an opinion signed by more than half the judges of a court is the “majority opinion” and it is the official decision of the court.

Material evidence: Evidence that is relevant and important to the legal issues being decided in a lawsuit.

Memorandum of law: A written document that includes a legal argument, also called a “brief.”

Mistrial: If a fundamental error occurs during trial that cannot be corrected, a judge may decide that the trial should not continue and declare a “mistrial.”

Moot: A legal claim that is no longer relevant is “moot” and must be dismissed.

Motion: A request made by a party to a judge for an order or some other action.

Municipality: A city or town.

Negligent or Negligence: To be “negligent” is to do something that a reasonable person would not do, or to not do something that a reasonable person would do. Sometimes a party needs to prove that the opposing party in the suit was “negligent.” For example, if you do not shovel your sidewalks all winter when it snows, you may be negligent.

Nominal Damages: Small amount of money awarded to people whose legal rights were violated but who cannot get compensatory damages because they have not suffered any “loss.” Usually one dollar.

Notary or Notary Public: A person who is authorized to stamp their seal on certain papers in order to verify that a particular person signed the papers. This is known as “notarizing the papers.”

Notice or Notification: “Notice” has several meanings in the law. First, the law often requires that “notice” be given to an individual about a certain fact. For example, if you sue someone, you must give them “notice” through “service of process.” Second, “notice” is used in cases to refer to whether an individual was aware of something.

Objection: During a trial, an attorney or a party who is representing themself pro se may disagree with the introduction of a piece of evidence. They can voice this disagreement by saying “I object” or “objection.” The judge decides after each objection whether to “sustain” or “overrule” the objection. If the judge sustains an objection it means the judge, based on their interpretation of the law, agrees with the attorney raising the objection that the evidence cannot be presented. If an objection is “overruled,” it means the judge disagrees with the attorney raising the objection and the evidence can be presented.

Opinion: When a court decides a case, a judge writes an explanation of how the court reached its decision. This is an “opinion.”

Order: The decision by a court to prohibit or require a particular thing.

Oral arguments: Live, verbal arguments made by the parties of a case that a judge may hear before reaching a decision and issuing an opinion.

Overrule: To reverse or reject.

Party: A plaintiff or defendant or some other person who is directly involved in the lawsuit.

Per se: A Latin phrase meaning “by itself” or “in itself.”

Permanent Injunction: A court order that a person or entity take certain actions or stop certain actions for a certain amount of time.

Perjury: The criminal offense of making a false statement under oath.

Penological: Something having to do with prisons.

Petition: A written request to the court to take action on a particular matter. The person filing an action in a court or the person who appeals the judgment of a lower court is sometimes called a “petitioner.”

Plaintiff: The person who brings a lawsuit.

Precedent: A case decided by a court that serves as the rule to be followed in similar cases later on. For example, a case decided in the United States Supreme Court is “precedent” for all other courts.

Preliminary Injunction: A court order that temporarily stops a person or an entity (like a prison) from taking certain actions, or orders that person or entity to take certain actions. Preliminary injunctions usually take place before the end of a lawsuit.

Preponderance of evidence: This is the standard of proof in a civil suit. It means that more than half of the evidence in the case supports your explanation of the facts.

Presumption: Something that the court takes to be true without proof according to the rules of the court or the laws of the jurisdiction. Some presumptions are “rebuttable.” You can overcome a “rebuttable presumption” by offering evidence that it is not true.

Privilege: People may not have to testify about information they know from a specific source if they have a “privilege.” For example, “attorney-client privilege” means that the information exchanged between an attorney and their client is confidential, so an attorney may not reveal it without the client’s consent.

Proceeding: A hearing or other occurrence in court that takes place during the course of a dispute or lawsuit.

Pro se: A Latin phrase meaning “for oneself.” Someone who appears in court “pro se” is representing themselves without a lawyer.

Punitive Damages: Money awarded in a lawsuit in order to punish a defendant for the harm they caused.

Question of fact: A dispute as to what actually happened. It can be contrasted to a “question of law.”

Qualified Immunity: a doctrine that protects government officials from liability for acts they couldn’t have reasonably known were illegal.

Reckless: To act or fail to act despite the fact that one is aware of a substantial and unjustifiable risk.

Record (as in the record of the trial): A written account of all the proceedings of a trial, as transcribed by the court reporter.

Regulation: A rule or order that manages or governs a situation. One example is a “prison regulation.”

Relevant / irrelevant: A piece of evidence which tends to make some fact more or less likely or is helpful in the process of determining the truth of a matter is “relevant.” Something that is not at all helpful to determining the truth is “irrelevant.”

Relief: The remedy or award that a plaintiff or petitioner seeks from a court, or a remedy or award given by a court to a plaintiff or petitioner.

Remand: When a case is sent back from the appellate court to the trial court for further action or proceedings.

Remedy: Same as “relief.”

Removal (or when a case is “removed”): When a defendant transfers a case from state court to federal court.

Respondent: The person against whom a lawsuit or appeal is brought.

Retain: To hire, usually used when hiring a lawyer.

Reverse: When an appellate court changes the decision of a lower court. The party who lost in the trial court and then appealed to the appellate court is now the winner of the case. When this happens, the case is “reversed.”

Right: A legal entitlement that one possesses. For example, people in prison have the “right” to be free from cruel and unusual punishment.

Sanction: A penalty the court can impose when a party disobeys a rule or order.

Service, “service of process” or “to serve”: The physical act of handing something over, or delivering something to a person, as in “serving legal papers” on a person.

Settled, as in “the law is not settled”: If the law is “settled” then courts have generally agreed on its interpretation. If it is “not settled” then different courts have interpreted a law in different ways.

Settlement: When both parties agree to end the case without a trial.

Shepardizing: Method for determining if a case is still “good law” that can be relied upon.

Standing: A requirement that the plaintiff in a lawsuit has an actual injury that is caused by the defendant’s alleged action and that can be fixed by the court.

Statute: A law passed by the U.S. Congress or a state legislature.

Statute of limitations: A law that sets out time limitations within which different types of lawsuits must be brought. After the “statute of limitations” has run on a particular type of lawsuit, the plaintiff cannot bring that lawsuit.

Stipulation: An agreement between the plaintiff and the defendant as to a particular fact in a case.

Subpoena: An official court document that requires a person to appear in court at a specific time and place. A particular type of “subpoena” requires an individual to produce books, papers, and other things.

Suit: Short for lawsuit.

Summary judgment: A judgment given on the basis of pleadings, affidavits or declarations, and exhibits presented for the record without any need for a trial. It is used when there is no dispute as to the facts of the case and one party is entitled to a judgment as a matter of law.

Suppress: To prevent evidence from being introduced at trial.

Testimony: The written or oral evidence given by a witness under oath. It does not include evidence from documents or objects. When you give testimony, you “testify.”

Third Party: A person or an entity that is not directly involved in a lawsuit but has a small role in part of your litigation. For example, if you win money in a lawsuit, you may need assistance from a bank to access your money. The bank would be a third party. The term “third party” is also used in other situations not involving lawsuits as well.

Tort: A “wrong” or injury done to someone. Someone who destroys your property or injures you may have committed a “tort.”

Trial: A proceeding that takes place before a judge or a judge and a jury. In a trial, both sides present arguments and evidence.

v. or vs. or versus: Means “against,” and is used to indicate opponents in a case, as in “Joe Prisoner v. Charles Corrections Officer.

Vacate: To set aside, as in “vacating the judgment of a court.” An appellate court, if it concludes that the decision of the trial court is wrong, may “vacate” the judgment of the trial court.

Vague: Indefinite, or not easy to understand.

Venue: The specific court where a case can be filed. For example, if you are in prison in upstate New York, your venue might be the Western District of New York.

Verdict: A conclusion, as to fact or law, that forms the basis for the court's judgment.

Verify: To confirm the authenticity of a legal paper by affidavit or oath.

Waive or waiver: To give up a certain right. For example, when you “waive” the right to a jury trial or the right to be present at a hearing you give up that right.

Witness: A person who knows something which is relevant to your lawsuit and testifies at trial or in a deposition about it.

Writ: An order written by a judge that requires a specific act to be performed or gives someone the power to have the act performed. For example, when a court issues a writ of habeas corpus, it demands that the person who is detaining you release you from custody.