Sunday, January 18, 2009

Glossary of Legal Terms Pro Se Litigants Need to Know

Case, cause, suit or controversy disputed or contested before a court of justice.

A written statement of facts confirmed by the oath of the party making it, before a notary or other officer having authority to administer oaths.

In the practice of the appellate courts, the decree or order is declared valid and will stand as rendered in the lower court.

A claim or statement of what a party intends to prove; the facts as one party claims they are.

The correction of an error in any process, pleading, or proceeding.

The formal written statement by a defendant responding to a complaint setting forth the grounds for his defense.

A review by a higher court of the judgment or decision of a lower court.

The party against whom the appeal is taken.

Authentic Legal Resource:
"An authentic text is one whose content has been verified by a government entity to be complete and unaltered when compared to the version approved or published by the content originator. Typically, an authentic text will bear a certificate or mark that conveys information as to its certification, the process associated with ensuring that the text is complete and unaltered when compared with that of the content originator. An authentic text is able to be authenticated, which means that the particular text in question can be validated, ensuring that it is what it claims to be." Source State-by-State Report on Authentication of Online Legal Resources

A written statement of a party's position including a summary of the facts, a statement of the questions of law involved, and the arguments and legal authorities upon which the party relies. It serves as each party's principal submission to the court prior to its decision.

An objection to the seating of a prospective juror for a trial.

Challenge for Cause:
A challenge to a juror for which cause or a reason is alleged.

Peremptory Challenge:
A challenge to a juror without alleging any cause or reason; a limited number of peremptory challenges is allowed each side in any case.

(1) To command the presence of a person; to notify a person of legal proceedings against him and require his appearance in the court, especially to face contempt proceedings.

(2) To read or refer to legal authorities in an argument or submission to a court. For example, to cite a case is to refer to a particular case in an attempt to persuade the Court to be guided by the decision reached in that case.

Civil Action:
Every law suit other than a criminal action; an adversary proceeding for the enforcement or protection of a legal right or the redress or prevention of a wrong.

Clerk of the Court:
An officer appointed by a court of justice who has charge of the clerical work; keeps the records and seal, issues process, enters judgments and orders, and gives certified copies of documents from the record.

A judgment of guild against a criminal defendant.

An amount of money awarded to the successful party (and recoverable from the losing party) solely as reimbursement for certain of the expenses in prosecuting or defending the suit.

Counter Claim:
A claim which a defendant makes against a plaintiff.

Court of Appeals:
An intermediate federal court, inferior to the U.S. Supreme Court but higher than the U.S. District Court. Its function is to review the final decisions of the district courts, if challenged. There is a Circuit Court of Appeals in each of the judicial circuits.

A claim by one party against a co-party (a defendant claiming against another defendant, or a plaintiff against another plaintiff) arising out of the original complaint.

After a witness has given evidence, the attorney for the opposing party examines or questions him about his testimony to verify or refute it or to further develop it.

A monetary compensation which may be recovered in the courts by a person who has suffered a loss or injury through the unlawful act, omission or negligence of another.

The person defending or denying; the party against whom relief or recovery is sought in a civil action or suit; the party who is accused in a criminal suit.

An oral statement made by a person before an officer authorized by law to administer oaths. The attorney for the opposing party is notified to attend the deposition where he may cross-examine the deposed party. The deposition may sometimes be used later at trial, or it may be taken only to obtain discovery.

The disclosure by one party of facts, documents, or information to the opposing party who needs this material to properly prosecute or defend the case.

Diversity of Citizenship:
A phrase used with reference to federal jurisdiction, denoting a case in which the district courts have jurisdiction because all the persons on one side of the case are citizens of the states different from all the persons on the other side. The matter in controversy must also exceed a value of $50,000. See 28 U.S.C. §1332.

Generally refers to writings, drawings, graphs, charts, photographs, phono records, computer records, pictures, maps, etc. Denotes any record such as deeds, agreements, title papers, receipts and other written instruments or data compilations used to prove a fact.

Entry of Judgment:
Recording the judgment; putting into the docket book a statement of the final judgment and entering copies thereof in the record of the case and the judgment book.

Any kind of matter, presented at trial through witnesses, records, or documents for the purpose of persuading the court or the jury of the correctness of the contentions of the parties.

An interrogation or search. The examination of a witness consists of a series of questions asked by a party to the action or his attorney, in order to bring before the court or jury the knowledge which the witness has of the facts or matters in in dispute, or to further probe and sift previously submitted evidence.

Federal Question:
Refers to the jurisdiction of the federal courts to hear cases involving the interprestion and application of Acts of Congress, the U.S. Constitution, and treaties. See 28 U.S.C. §1331.

To put into files or records of the court; to file a paper is to place it in the official custody of the clerk. The clerk is to endorse upon the paper the date it is received and retain it in the record of the case subject to public inspection.

Habeas Corpus:
A writ that is usually used to bring a prisoner before the Court to determine the legality of his imprisonment. It may also be used to bring a person in custody before the Court to give testimony, or to be prosecuted.

A relatively formal proceeding similar to a trial in which evidence is submitted and witnesses are heard, with one or more legal issues to be determined.

To impeach a witness is to introduce evidence intended to contradict testimony or to question his/her credibility.

In Forma Pauperis:
In the manner of a pauper. The permission given to a poor person to sue without payment of court fees. See complete definition of in forma pauperis.

A temporary or permanent order of the Court prohibiting or requiring the performance of some specific act in order to prevent irreparable damage or injury.

Written questions asked by one party and served on an opposing party who must answer them in writing under oath as a discovery device.

The official and authentic decision of a Court adjudicating with finality the respective rights and claims of the parties to a suit.

Default Judgment:
A judgment rendered because of the defendant's failure to answer or appear.

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

Consent Judgment:
The provisions and terms of the judgment are agreed on by the parties and submitted to the Court for its sanction and approval.

Declaratory Judgment:
A judgment which declares the rights and legal relations of the parties of a case.

The power or legal authority of the Court to hear and decide a case.

A certain number of persons selected according to law and sworn to inquire into matters of fact and declare the truth about matters laid before them.

A party to a lawsuit.

A case, controversy, or lawsuit.

Local Rules:
A particular set of rules for each court governing matters not determined by the Federal Rules of Civil Procedure.

Literally, "We command." It is a command of a higher court to either a lower court or a public officer to perform a lawful duty.

An invalid trial the result of which cannot stand because of some fundamental error. When a mistrial is declared, the trial must start again from the selection of the jury.

A proceeding which seeks a judgment or ruling on a dispute which does not actually exist. For example, when one party brings a motion to compel the other to answer interrogatories and the other has already answered, tho motion is moot.

Information or a warning usually given in writing, informing a person of some fact which it is his legal right to know.

Notice of Appeal:
Notice to the Court and to the other parties to the suit that a party intends to exercise his right to appeal. Filing the notice of appeal in the district court is the first step in making the appeal.

A legal declaration or claim made under penalty of perjury (either orally or through a written document) stating that what you are about to say is true and correct to the best of your abilities. See complete definition of oath or to be under oath.
Online Official Legal Resource:
"An online official legal resource is one that possesses the same status as a print official legal resource." Taken from the State-by-State Report on Authentication of Online Legal Resources. See the report for a complete argument as to what constitutes an official online legal resource and why online documents need to be established as authenticated legal resources prior to their use in court.

A formal judicial statement of the legal reasoning upon which the judgment is based.

The person or entities who prosecute or defend a lawsuit.

Plaintiff (or Complainant):
The one who brings the suit, asking for the enforcement of a right or the recovery of relief from a wrong.

The formal written statements presented by the parties in a civil case forming the basis for the lawsuit and defining the issues.

Pre-Trial Conference:
This is a conference attended by the attorneys for both sides to clarify the issues, set a schedule for discovery, motions and further proceedings and to discuss settlement, with the judge or magistrate judge presiding. See Fed. R. Civ. P. 16.

The summons or any other writ which may be used during the progress of the case.

To send back. The act of the appellate court in sending a case back to the district court for further action.

The act of an appellate court annulling a judgment of a lower court because of an error.

The delivery of a summons, writ, notice, or injunction, by an authorized person to officially notify another party of a proceeding in which he is concerned.

Service of Process:
The service of writs, summonses, complaints or petitions to the party to whom they ought to be delivered.

A command to a witness to appear and give testimony.

Subpoena Duces Tecum:
A command to a witness to produce at a trial or hearing documents or papers in his possession that are pertinent to the issues of a pending case.

A writ to notify the person named that an action has been commenced against him in the court, and that he is required to appear and answer the complaint.

Temporary Restraining Order:
Prohibits a person from an action which is likely to cause irreparable harm. This differs from an injunction in that it may be granted immediately, without notice to the opposing party and without a hearing. It is intended to last until a hearing can be held.

Oral evidence given by a witness under oath.

The typewritten transcription of the court reporter's shorthand notes of the proceedings in a trial, hearing or deposition.

The geographical location in which a case is tried.

The formal decision or finding made by the jury upon the matters or questions submitted to them at the trial.

Voir Dire:
The preliminary examination of a juror to determine his competency or impartiality to serve on a case.

A formal written command, issued from the Court, requiring the performance of a specific act.

Source: Definitions taken from A Manual for Pro Se Litigants Appearing Before the United States District Court for the Southern District of New York which was published by the District Executive's Office United States District Court for the Southern District of New York.

Friday, January 16, 2009

How the Government is Using Fear Mongering to Pass Bad Bills in Congress

Representative Brad Sherman (D. California) unveils how Congress is psychologically manipulated into passing Bad Bills which become law without being studied or truly analyzed.

Congressman Sherman affirms that the only way they can pass a bad bill is by creating a panic atmosphere that is not justified. Unfortunately, it looks like this panic atmosphere is more common than we would like to believe.

Congressman Brad Sherman says and I quote:

"Many of us were told in private conversations, that if we voted against this bill, on Monday the sky would fall, the market would fall 2 or 3 thousand points the first day, another couple of thousand the second day. A few members were even told that there would be Martial Law in America if we voted No!"

"That's what I call fear mongering. Unjustified! Proven wrong! We've got a week, we've got 2 weeks to write a good bill. The only way to pass a bad bill: keep the panic pressure on."

Saturday, January 10, 2009

5 Essential Questions That Must Be Answered Before Beginning Any Type of Legal Research

Every legal case is different. However, many aspects of the law are common to all. The following set of questions will help you determine how to best approach your legal research, what type of process you should pursue, where to do so and why. Therefore, before beginning your research first ask yourself the following:

1. What is the exact legal question (or series of questions) that needs to be answered in your case?

Writing down this question or set of questions will help you narrow down the exact legal subject(s) or matter(s) that need to be addressed and examined.

Let's say you just underwent a divorce process and have a son or a daughter that will have to live with either you or your ex-spouse. You will need to look at both divorce law and child custody law in order to fight a child custody battle. Some potential questions that need to be addressed would be:

  • Is it legally in the best interest of the child to live with you or with your ex-spouse?
  • What is the procedure for claiming your child's custody?
  • What are your legal responsibilities as a parent and what are your ex-spouse's?
  • In the event that you are not given legal custody, what rights and responsibilities do you have concerning your child?
  • If you are given custody, what rights and responsibilities does your ex-spouse have concerning the child?

2. Does your case involve a civil or a criminal matter?

This question is pretty much self evident. If you were arrested or charged with a crime, be it a petty crime, misdemeanor or something more serious such as a Felony, then the case obviously falls under the criminal category.

If you are being sued or plan on suing a person, company, agency, institution, etc., or are fighting for child custody or any other family or business law matter then it is safe to assume that the case is civil.

3. Does your case concern Federal or State Law (or both)?

This is not always a simple question to answer and may not always be as obvious as you may think.

In the child custody case above for example, you could reasonably consider that a child custody case involves State Law. And under most normal circumstances it would. However, a child custody case could become a Federal Case if it could legally be established that the case involves interstate legal issues or commerce.

Keep in mind that there are an entirely different set of laws for both Federal and individual States. Any one particular case may have a more favorable set of laws in either Federal or State proceedings. So it is important to research both possibilities in order to establish the most beneficial setting for your particular purpose.

In other words, just because a type of case is normally handled by a State Court doesn't mean you can't pursue it in a Federal setting.

4. If you determine that your case involves State Laws, what State's law is in question? If your case involves Federal Law, what Federal Circuit has jurisdiction over your case.

This may seem obvious as well, however it is not always so. Taking the child custody battle example used above, if parents live in different states then deciding what state has jurisdiction over your case may be tricky.

This is also true in a Federal setting. There are currently 13 Federal Circuits and determining which one has jurisdiction over any particular case may involve many aspects.

This is especially true in contract law, whereby many companies force customers to sign a contract stating that a dispute will be handled under any one particular State's court system. However, certain laws may allow you to file a case under a different state's court system than the one mentioned in the contract. Or a case may become Federal when it was stated that state courts had jurisdiction.

5. What Category of Law Does your case fall into?

  • Administrative Law
  • Admiralty Law
  • Appeals and Writs
  • Aviation Law
  • Banking Law
  • Bankruptcy Law
  • Business Law
  • Civil Rights Law
  • Computer or Technology Law
  • Constitutional Law
  • Construction Law
  • Consumer Law
  • Credit, Debt and Collections Law
  • Criminal Law (This category has a huge set of sub-categories)
  • Disability Discrimination Law (ADA)
  • Drunk Driving & DUI Law
  • Education Law
  • Elder Law
  • Entertainment & Sport Law
  • Environmental Law
  • Family Law, Divorce, Child Custody and Adoption
  • Family Medical Leave Act
  • Federal Tort Claims Act Litigation
  • General Civil Litigation
  • Health Care Law
  • Immigration Law
  • Insurance Law
  • Intellectual Property
  • International Law
  • Investment Law
  • Juvenile Dependency
  • Labor and Employment Law
  • Landlord & Tenants
  • Legal Ethics & Professional Responsibility
  • Legal Malpractice Law & Ineffective Assistance of Counsel
  • Mediation
  • Medical Malpractice Law
  • Military Law
  • Native American Law
  • Discrimination Law (Age, Race, Sex, Gender)
  • Personal Injury Law and Tort Law
  • Probate, Trusts, Wills & Estates
  • Products Liability
  • Real Estate and Real Property
  • Securities Law
  • Sexual Harassment Law
  • Social Security Law
  • Tax and Taxation Law
  • Telecommunications Law
  • Traffic Law
  • Veterans Law
  • Workers' Compensation Law

The Butte County Public Law Library

Photo of The Butte County Public Law Library in California


Answering the above 5 questions will get you well under way to beginning a much more effective approach to the legal research process.

Tuesday, January 6, 2009

What is an Oath or to be Under Oath?

Under OathLet's define: To Be Under Oath

An "Oath" is basically a legal or official, solemn declaration made before a Court, a judge, a magistrate, or a duly authorized "official" like a Notary Public. It is basically a claim signed under penalty of perjury that the statement you just made, or are about to make, either orally or through a written document such as a sworn statement is true and correct to the best of your abilities.

Unsworn statements or testimony that has not been made under oath cannot be accepted as evidence by a court of law. Not even if it comes from a police officer or from another government official.

Making an OathToday, since many Courts require the filing of documents electronically, filing them under oath may be a little tricky. In many cases only scanned documents are allowed. You must therefore always research the specific rules for filing in any particular situation. As a pro se litigant you may probably be exempted from electronic filling requirements however it is good to review the Second Amended Order Establishing Standards For The Electronic Filing, Signing and Verification of Documents.

The Instructions for Filing a Civil Action on Your Own Behalf in the United States District Court for the District of Maryland is also a useful document with the rules that governs pro se civil action filings including under oath requirements for most Federal District Courts. However please find the instructions for your particular District to make sure you are following the correct procedures.

Friday, January 2, 2009

Define: In Forma Pauperis

The word Pauper is Latin for Poor so in forma pauperis simply means filing in court in the form of a pauper or poor person. Simply put, if you are poor, you have the right to sue or defend yourself without prepayment of fees.poor man taken from microsoft office clip art

In order to proceed in Court without funds you must first file a motion to proceed in forma pauperis. That motion must be accompanied by an attached affidavit or declaration stating that you lack the funds to pay for filing fees and/or other costs associated with the legal proceedings.

Federal Rules and laws governing In Forma Pauperis proceeding

Different rules and statutes have been adopted by different States and different Courts of Law in order to handle in forma pauperis proceedings.

If you are filing for a Writ of Certiori before the US Supreme Court for example, you are governed by Rule 39. When filing a Writ of Certiori for example you can use this guide for indigent petitioners filing writs of certiori. Keep in mind that you will be asked to provide all your financial information (including your spouses financial information) under oath.
The Balance of Justice
You can find the rules for proceeding in forma pauperis in an appeal, a habeas corpus petition or other appelate proceeding at the Federal Rules of Appellate Procedure page from Cornell University.

Some lawyers even claim that a Corporation appearing before a Federal Court could be considered a Poor Person if it lacks the funds to proceed.

Defending Yourself in Court - When Does Becoming a Pro Se (Self Representative) Litigant Really Make Sense?

Pro Se Litigant

They say that he who has himself for a lawyer has a fool for a client. This may indeed be true, however, I personally believe that a well informed "fool" as they would like to call him, can actually be more effective in Court under certain circumstances, especially if he puts all his heart into it.

Under What Circumstances is Self Representation a Wise Move

  • When you believe in your abilities more than in your lawyer's
  • If you possess enough confidence in yourself and are willing to make mistakes, even if they could represent a potentially unpleasant ending.
  • If you are willing to spend long hours, days, months and even years in the law library working harder than you have ever worked in your entire life.
  • When a lawyer refuses to ask for something, file a motion or submit any petition that you believe is essential to making your case in court.
  • If you don't have enough money to pay for effective legal representation. The word "Effective" should be the focus here.
The Hammer of Justice

Keep in mind that many times you can ask for free or low cost expert legal assistance by filing an in forma pauperis petition requesting government appointed legal representation. There are many good lawyers at the public defenders office. There are also many bad ones who just try to flip cases like if they were flipping burgers without really caring what happens to their client, so you have to be the judge.