Legal Terms You Should Know
1. “Verdict” and “Judgment.”
These
two terms are quite often confused. The “verdict”
is the finding of fact rendered in a case in which the facts are in
dispute. If there is a jury then the
jury is the fact finder, and will render a verdict at the close of the
presentation of the evidence by the lawyers.
The “judgment” (often misspelled, by the way, since in the United States
it only has one “e”) is the judge’s pronouncement at the close of the case as
to which party wins, and this judgment has as its function the application of
the facts found by the fact finder and the rules of law as determined by the
judge to the resolution of the issue at the heart of the case. Appeals can follow, but what is appealed is
not the “verdict” but the “judgment.”
What happened as a matter of fact—the issue the verdict resolves—can be
challenged on appeal but only as part of the appeal of the judgment, and it’s
very rare for the appellate court to overturn the verdict’s findings absent
something like jury tampering or other misbehavior. After all, the appellate court didn’t hear the
evidence on which the finding of fact was based, and will overturn the judgment
because of a bad verdict only if the latter is clearly erroneous.
In
the famous movie “To Kill a Mockingbird,” Atticus Finch (the defense attorney
played by Gregory Peck) loses a criminal case in which his client is found
guilty. Before the appeal can happen the
client commits suicide, and Atticus mutters, “We had a good case for an
appeal.” Well . . . no, he didn’t. Everything depended on who the jury believed
when there was conflicting testimony from the witnesses. That’s a matter of fact, and the appellate
court isn’t likely to second-guess the jury.
Unless Atticus had some procedural matter that was the basis for his
appeal (a question of law), his client was going to be executed.
In
any event, the point is that you never appeal the “verdict”; you appeal the “judgment.” Reporters get this wrong all the time.
2. Pro Se.
This
one is a Latin term (pronounced “pro say”) meaning “for himself,” and is used
whenever the person filing the complaint does not have a lawyer and is
proceeding on his/her own. It may
surprise you to realize that the law does not require that a lawyer be involved
in a lawsuit, and that you can file the suit “pro se” and prosecute the case
yourself. Is this a smart thing to
do? No, unless it’s a minor matter in a
Small Claims Court. Otherwise not even
lawyers should do it. Abraham
Lincoln once said, “A person who represents himself has a fool for a
client." But if you can’t find a
lawyer to represent you, then a pro se action may be your only hope. In that case get as much free advice as you
can from lawyer friends on what you’re doing, go down to the court where you
will file the case, throw yourself on the mercy of the clerk of courts and ask
for help, make sure that the court will have jurisdiction over your matter, ask
for a blank copy of a standard complaint (or look at some in other court cases
and dummy up your own version), and get from the clerk a copy of the court’s
rules of procedure (and study them).
When you sign the complaint, write the words “Pro Se” under your name so
the court will know you’re doing this incredible thing.
3. Habeus Corpus.
Say
you are sitting in your home one night, the door is broken down, government
agents arrest you without explaining why, and cart your off into the
darkness. You’re never heard from
again. When your loved ones protest, the
government denies they have you. What
can be done? Your loved ones should hire
a lawyer on your behalf and he/she will file a writ of habeus corpus with the
local criminal court.
“Habeus
corpus” is another Latin term and this one means “produce the body.” It is a “writ” (a request in the form of a
motion) filed with the court that has jurisdiction over a criminal matter
asking the court to require the government to bring the defendant into court
and begin formal charges against him/her.
This is an important right: the right not to be snatched by the
government and simply hidden away in some prison with no trial in sight. Article 1 Section 9, clause 2 of the United States Constitution
demands that "The privilege of the writ of habeas corpus shall not
be suspended, unless when in cases of rebellion or invasion the public safety
may require it."
During the Civil War Abraham Lincoln suspended the right
of habeus corpus, and sometimes had editors of newspapers who wrote things he
didn’t like thrown in jail until they repented of their views. No trial was allowed. Uproar occurred over this, as you can
imagine, but during a war drastic steps are sometimes required. There has been speculation that Lincoln went
too far and—had he lived—might have faced impeachment over this very issue.
6. Standing.
Before you can bring a lawsuit and prosecute it
successfully you must convince the court that you have “standing” to do
so. What does that mean? It’s basically a reflection of common sense:
only parties that are harmed by the legal problem can come to court and ask for
relief. If someone runs you down in the
car, and I’m no more than your best friend, I will not have standing to sue the
reckless driver for negligence in harming you.
Only you (or your heirs if you were killed) will obviously have standing
to sue.
In the
United States Supreme Court decision this past June that considered the
constitutionality of California’s Proposition 8 (which was passed by voters to amend
the California constitution so as to deny gays the right to marry) standing was
the very basis of the Court’s resolution of the case. At the federal trial court level the
plaintiffs were gay couples wishing to marry and thus had standing to attack Proposition
8. Plaintiffs sued the State of
California, but state officials agreed with the plaintiffs that this part of
the state constitution was invalid under federal law, and so the state declined
to defend the lawsuit. Up jumped
potential defenders in the form of the original proponents of Proposition 8,
and though their defense was so bad that the trial court judge begged them to
do a better job, in the end he ruled against them and the State of California,
holding that the Proposition 8 part of the California Constitution was
unconstitutional under the 14th Amendment of the United States
Constitution (which guarantees equal protection of the law to all). The proponents appealed to the Ninth Circuit
Court of Appeals, which first ruled that they did have standing for the appeal
and then went on to uphold the trial court opinion on the substantive grounds
that the state could take away existing gay marital rights only if it had a
rational basis for doing so, which it did not.
The United States Supreme Court disagreed with the standing ruling. It held that private citizens had no standing
to appeal the trial court decision, so neither the Ninth Circuit nor the
Supreme Court had jurisdiction. Thus the
trial court decision prevailed, meaning that the portion of the California
constitution forbidding gay marriage was invalid. Gays promptly began marrying in California
once again.
5. Jurisdiction.
The idea here is simple: courts can only try cases that
some law authorizes them to try. If a
court hears a case without having the legal right to do so, the court is said
to have no “jurisdiction,” and any judgment it renders is null and void. Say for example, you want to sue the
President of Russia for some outrageous thing he’s done. It’s unlikely that the local county court has
jurisdiction to render a judgment that would bind a Russian who has no
connection with this venue and is not required by law to respond to a complaint
filed in this venue. You’ll have to go
to Russia and file your suit in a Russian court that truly does have
jurisdiction over the President of Russia (and good luck with that).
Courts only have jurisdiction if some law, state or
federal, grants them the ability to hear and resolve the legal matter at issue. That leads us to the final topic.
Our
judicial system divides the courts into federal courts and state ones. In both systems there are trial courts
(called by various names depending on the state, and called “District Courts”
in the federal system), intermediate appellate courts in which typically three
judges hear the appeal and write an opinion explaining their decision, and a
supreme court.
In
the federal system the judges are appointed by the president for life and
confirmed by the Senate. As just noted,
the trial courts are called District Courts, and there are currently 94 of them
in the country. The intermediate appellate
courts are divided into thirteen different Circuit Courts of Appeal. When appeal is had from the District Court’s
judgment in any given case it will go to the relevant Circuit Court of Appeals
(see diagram), where usually it is heard by a panel of three judges. Their decision can be appealed to the entire
Circuit Court (called an “en banc” hearing) or to the United States Supreme
Court. It you look at the charts below
you can see which Circuit you live in (assuming you are in the United States).
 |
| I live in Ohio, so I'm in the Sixth Circuit Court of Appeal's jurisdiction |
The
United States Supreme Court has nine members.
Currently there are three women and six men, and, interestingly, the
Court (the word is usually capitalized for this particular court) currently
houses three Jews and six Catholics, but no Protestants, Muslims, or Atheists. The Court is split philosophically between
four liberals (Ginsbury, Breyer, Sotomayor, Kagan), four conservatives
(Roberts, Scalia, Thomas, Alito), and the swing vote of Anthony Kennedy, the
most powerful judge in the world. Not
only does the Court hear appeals from the Circuit Courts, but also from state
courts if the case raises a significant federal question. It takes four votes for the Court to agree to
hear a case. Around 10,000 cases are
appealed to the Court in any given term, but the Court refuses to hear most of
them, actually deciding only 140 or so each term (which runs from October until
the end of June).
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http://douglaswhaley.blogspot.com/2011/04/i-threaten-to-sue-apple-over-ipad2.html
“The Payment-In-Full Check: A Powerful Legal Maneuver,” April 11, 2011; http://douglaswhaley.blogspot.com/2011/04/payment-in-full-check-powerful-legal.html
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“How To Win Arguments and Change Someone’s Mind,” August 5, 2012;
http://douglaswhaley.blogspot.com/2012/08/howto-win-argument-and-change-someones.html
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“How To Respond to a Legal Threat.” March 29, 2014; http://douglaswhaley.blogspot.com/2014/03/how-to-respond-to-legal-threat.html
“Clicking on 'I Agree': Sticking Your Head in the Lion's Mouth?” September 27, 2014;
http://douglaswhaley.blogspot.com/2014/09/clicking-on-i-agree-sticking-your-head.html
“My Battle with
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http://douglaswhaley.blogspot.com/2015/07/my-battle-with-sony-to-get-refund-on.html
http://douglaswhaley.blogspot.com/2015/07/my-battle-with-sony-to-get-refund-on.html
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