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Glossary of Terms

General Court Glossary

 

ACCOUNTING - The settling of the financial accounts of the estate, indicating gain/loss and disbursement decisions and actions by the fiduciary.

ACCUSATORY INSTRUMENT - A document in which an accusation of crime is set forth, such as an indictment, information or complaint.

ACQUITTAL - In criminal law, a finding of not guilty.

ADVERSARY SYSTEM - The United States resolves both civil and criminal cases by using a system in which each party, with or without the help of a lawyer, presents his or her side of the story to the court. The judge, or in some cases the jury, listens to both sides and decides the case.

AFFIANT - The person who makes an affidavit.

AFFIDAVIT - The written declaration or statement of facts, made voluntarily, and confirmed by oath.

AFFIRMATIVE DEFENSE - In pleading, new matter which, assuming the complaint to be true, constitutes a defense to it.

ALTERNATE DISPUTE RESOLUTION - Rather than going to court, people who have a serious disagreement can go to private community based, or court-connected organizations to help them resolve their differences. These organizations include neighborhood mediation centers, private arbitration, and rent-a-judge arrangements. In addition, the court may direct potential litigants to court annexed mediation or arbitration centers.

ANSWER - Pleading by defendant in a civil case that contests plaintiff's allegations of fact set forth in complaint.

APPEAL - A losing party may ask a higher court to review a lower court's decision. Appellate review is normally limited to questions of law as applied in the case, not the questions of fact. In the criminal case, only the defendant has a right to an appeal in most states.

APPEARANCE - A coming into court as party to a suit, either by person or by attorney; in the appellate courts, appearance is the filing of a document - notice of appeal, motion, or brief.

ARBITRATION - The reference of a dispute to an impartial (third) person chosen by the parties..

ARRAIGNMENT - A hearing held before the trial in a criminal case, at which time the defendant is advised of his or her rights, informed of the charge(s) against him or her, and required to enter a plea of guilty or not guilty. (Not in Coos County)

ARREST - An act by a legal authority, such as the police, taking an individual into custody to answer for criminal charges.

AT ISSUE - The appellate court term used when briefs have been filed and case is ready to be submitted to the court for adjudication of the issues on appeal.

BAIL - An amount of money that an accused person leaves with the court to guarantee that he or she will be present at a trial.

BAILIFF - A court employee responsible for keeping order in the courtroom.

BENCH TRIAL - A court trial where the judge makes the decision. There is no jury in a bench trial.

BILL OF RIGHTS - The first ten amendments to the United States Constitution, originally passed as a list of the basic rights and freedoms belonging to the people. The government must respect these rights. These rights include: a) the right to practice any religion; b) the right to speak freely; c) the right to a jury trial for serious crimes; d) the right not to be tried twice for the same crime; e) the right not to testify against oneself; f) in a criminal case, the right to a speedy, fair, and public trial, to be informed of the nature and cause of the accusation, to confront the witnesses against oneself and to obtain witnesses in one's favor, and to be assisted by a lawyer.

CHIEF JUDGE - Appointed by Chief Justice to exercise administrative authority and supervision of the Court of Appeals.

CHIEF JUSTICE - Presiding justice of the Supreme Court and designated head of the Oregon Judicial Department; elected by and from the justices of the Supreme Court for a six year term, with the justice having greatest seniority traditionally elected as the Chief Justice.

CITATION - A writ issued out of court commanding a person named to appear on a day named and do something, or show cause why he/she should not.

CIVIL LAW - Body of law having to do with private rights and remedies of individuals.

CLAIMING SUCCESSOR - The person who, by affidavit, claims to be the rightful recipient of the assets of the estate.

CLERK - A court employee responsible for maintaining permanent records of all court proceedings and exhibits, and administering the oath to jurors and witnesses.

CODICIL - A supplement or addition to a will that may explain, modify, qualify, restrain, revoke or otherwise alter the provisions of the existing will.

CO-GUARDIAN/CONSERVATORS - When two or more persons are appointed to perform the duties and wield the authority normally assigned to one individual conservator / guardian.

COMMON LAW - The law derived from judicial decisions, including judicial decisions made in England dating back to ancient English times.

COMPLAINT-CIVIL - Initial pleading on part of plaintiff in a civil proceeding to inform defendant of all material facts on which plaintiff relies to support demand.

COMPLAINT-CRIMINAL - Written accusation, verified by oath of a person and bearing an endorsement of acceptance by the district attorney having jurisdiction, filed with a magistrate, and charging another person with commission of an offense, other than an offense punishable as a felony.

CONSENT - When a person voluntarily agrees that the contents of one Will is displaced by another, a voluntary yielding to the contents of the other.

CONSENT TO SERVE - An agreement to act or serve as a fiduciary on behalf of the protected person or the protected person's estate.

CONSTITUTION - The Constitution of the United States became the law of the land in 1787 and was the first written document telling how this nation should be organized, what powers the government should have, and what rights individuals should have. The Constitution is the original and supreme law of the United States. The fifty states have their own constitutions which cannot include anything that would contradict the federal Constitution.

CONTRACT - An agreement, oral or written, that binds people to do things. To be legally binding, a contract must result from a clear understanding between two or more people. Leases and agreements to repay loans are examples of written contracts.

CORPORATE BOND - A written promise by a corporation to pay a fixed sum of money at some future time named, with stated interest and stated time intervals, given in return for money or its equivalent received by the corporation, sometimes secured, sometimes not.

COUNTERCLAIM - Claim presented by a defendant in opposition to or deduction from the claim of the plaintiff.

COURT REPORTER - An employee of the court present during proceedings to make a word-for-word written record of all testimony and other oral statements.

COURTS, FUNCTIONS OF - Courts are places where serious disagreements are resolved by determining the facts of the case and applying the law to them. Courts can determine individual rights and responsibilities, protect individual liberties from unreasonable interference by the government, or prosecute individuals for committing a crime. Courts can act only when disputes are brought to them for resolution; they cannot bring cases on their own.

CRIMINAL CASE - A case brought by the government against an individual accused of committing a crime. Acts that are seen as harmful to society are crimes. Only the state can bring a criminal case to court. The state must prove beyond a reasonable doubt that the person accused of the crime is guilty or let the person go. Punishments for committing a crime include: a prison or jail sentence; a fine; probation; community service; house arrest; or restitution.

CRIMINAL LAW - Law which for purpose of preventing harm to society, declares what conduct is criminal and prescribes punishment.

CROSS-CLAIM - Brought by defendant against plaintiff in the same action or against a codefendant or both concerning matters in question in the original petition, to discover facts in aid of defense, or to bring in new matter in aid of defense.

CUSTODIAN - A general term to describe anyone who has the charge or custody of property, papers, etc.

DECLINATION TO SERVE - A decision to decline to act or serve as a fiduciary on the behalf of the protected person or the protected person's estate.

DEFAULT JUDGMENT - Judgment entered by court in a civil case in favor of plaintiff when defendant has failed to file some appearance in response to a summons. Defendant's failure to file is deemed to be an admission that the demands of plaintiff's complaint are valid.

DEFENDANT - In a criminal case, the person accused of committing a crime; in a civil case, the person against whom the case has been brought.

DE NOVO - Trying a matter anew, as if it had not been heard before and as if no decision had previously been rendered.

DEVISEE - A person to whom lands or other real property are given by will. In the case of a trust, the trust or trustees is the devisee and the beneficiaries are not devisees

DIRECTED VERDICT - Instruction by a judge to the jury to return a specific verdict.

DISCOVERY - The process before a trial by which each party may examine the evidence that the other party will use during the trial.

DUE PROCESS - The government must treat all individuals fairly and justly by following certain procedures that limit the government's power and protect the life, liberty and property of the people.

EVIDENCE - Information provided to the court by the parties during the course of a trial to assist in the decision making process. This can include testimony, documents and physical objects.

EXHIBIT - An article marked for identification and shown to the trier of fact during a court proceeding.

FELONY - A serious crime, ordinarily punishable by imprisonment of a year or more.

FIDUCIARY - Refers to a person acting as a trustee, or a character analogous to trustee. A person having duty, created by his undertaking, to act primarily for another's benefit including managing money or property for another.

GRAND JURY - An investigating jury that decides whether there is enough evidence to hold a criminal trial. Grand juries can also conduct investigations of criminal activity in general.

HABEAS CORPUS - Name given to a variety of writs used to bring a person before a judge so that a hearing may be held to determine whether that person is being lawfully held in custody.

HEIR - A person (successor) appointed by law to succeed to the estate in case of intestacy, upon the death of his ancestor, by descent and right of relationship. One who inherits property, whether real or personal.

IMPANEL - Act of the clerk of the court in making a list of jurors who can be selected for the trial of a particular case.

INDICTMENT - A grand jury's written statement charging an individual with a crime.

INDIGENT - Individual who is needy, or does not have sufficient property, money or resources to furnish said individual a living.

INITIAL APPEARANCE - Within a reasonable time after arrest, the suspect must be brought before a judge to be notified of the charge(s) against him or her, advised of his or her rights and, if applicable, to have bail set.

IN PROPRIA PERSONA (PRO SE) - In one's own proper person; an individual who does not retain a lawyer and appears for him or herself in court.

INTERPRETER - In most criminal courts, interpreters are provided by the government from the initial appearance through sentencing. However, many of these same courts do not provide them for lawyer-client conferences. In civil matters, courts generally do not supply interpreters. Interpreters are available only to interpret, not to give advice.

INTESTATE - Having made no valid will; Person who dies without a will is considered intestate.

INVENTORY - A detailed list of articles of the property of an estate compiled by the executor, administrator or assignee of the estate. It will contain a description of each item with their estimated or actual values.

JUDGE, ROLE OF - The tradition role of the judge in the adversarial system is to be a neutral observer and to make sure that the proceedings are orderly. When there is no jury, the judge decides the question of guilt in criminal cases and that of liability, or responsibility and damages, in civil cases. When there is a jury, the judge is there to insure that the procedure is fair and to instruct the jury on the relevant law. When the jury finds a criminal defendant guilty, the judge imposes the sentence.

JUDGMENT - A final decision by the court in a criminal or civil case.

JUDGE PRO TEMPORE - Judge appointed to serve temporarily.

JUDGMENT NOTWITHSTANDING THE VERDICT - When, under certain circumstances, a verdict is rendered against the applicant, the court sets aside any judgment which may have been entered and renders another judgment as the case may require.

JUDICIAL DISTRICTS - For purposes of administration of courts, a designated geographical area consisting of one or more counties.

JUDICIAL INDEPENDENCE - An important concept that means that judges should disregard outside influences and should make judgments based on legal principles and the facts presented in a given case. The judicial branch is separate from the legislative and executive branches, which are intended to be influenced by public pressure.

JUDICIAL REVIEW - The courts may review the laws made and actions taken by the federal and state governments and may stop any law or action that does not follow the state or federal constitution.

JUDICIAL SELECTION - Judges are selected in a variety of ways. For the federal courts, they are appointed by the president, with the advice and consent of the Senate. The states use a number of methods, including appointment by the governor; merit selection, where the governor appoints a judge from a list of names submitted by a special nominating commission; appointment by the legislature; partisan election, where the candidates' political affiliations are mentioned on the ballot; and nonpartisan election, where no political party is mentioned.

JURISDICTION - Generally, it means authority to act, such as authority to decide cases in a particular geographic area; the authority to decide certain kinds of cases; and the authority to grant certain kinds of relief.

JURY - Traditionally, a group of twelve individuals from the community selected to hear evidence in a court case and decide the case based on the facts presented. Today a jury may consist of as few as six individuals. The right to a jury trial in civil cases is limited by state law. However, in any criminal case where the accused person could be jailed for longer than six months if found guilty, he or she has the right to a jury trial.

The jury pool (group of potential jurors) may be called from a list of registered voters, from licensed drivers or a number of other sources. Names are selected at random, and those whose names are chosen are summoned to come to court on a certain day.

Jurors are selected from the jury pool by a process known as voir dire. During voir dire, both parties, through their lawyers or the judge, have the opportunity to question potential jurors. Potential jurors may be excused from service in two ways. Some may be "challenged for cause," such as obvious bias, conflict of interest, etc. Parties also have the right to exercise a limited number of "peremptory challenges," and dismiss a potential juror without stating a reason.

LAWS, MAKING OF - Ideas for laws come from the President or a state's governor, members of Congress or a state legislature, special interest groups, and the public. The idea for a law is written up as a plan or proposal, called a bill. A bill is introduced by a member of one of the two houses of Congress or a state legislature. The bill is sent to a committee in the first house. The committee may discard, rework, amend, or recommend the bill. After full review, the bill is voted on by members of the first house. If a majority votes for the bill, the bill is sent to the second house where it goes through the same committee process. If the bill in final form is voted for by a majority of the second house, it is sent to the President or a governor. The President or the governor may sign the bill or veto it. If the bill is vetoed, the veto can only be overridden if two-thirds of the legislators vote to save the bill. Few bills actually become law.

LAWYER, RIGHT TO A - In any criminal case where a jail sentence is the possible punishment and the accused person cannot afford a lawyer, the accused has a right to be represented by a court appointed lawyer, paid for by the state.

In civil cases there is no such right to be represented at the expense of the state, but an individual can hire a lawyer at his or her expense. (There are exceptions to this in some states where lawyers are not allowed in small claims court.) In many areas there are legal aid offices where lawyers are provided for the poor in civil matters.

MANDAMUS - Name of writ which issues from a court directed to a judge of a court of inferior jurisdiction or other public officer commanding the judge or officer to perform or to cease performing an act required by law.

MAGISTRATE - A public civil officer with power to administer or enforce the law.

MIRANDA WARNING - A special safeguard that requires the police to advise a person under arrest of his or her constitutional rights before questioning begins. These rights include: the right to remain silent; the right to consult with a lawyer before being questioned and to have a lawyer present during questioning; the right to have a lawyer appointed if the person cannot afford one; the right to stop answering questions at any time.

MISDEMEANOR - A less serious criminal offense, generally punishable by a sentence of a year or less.

MOTION - Application to a judge or magistrate for an order or ruling.

NORMAL WEAR AND TEAR - Amount of damage to a place or possession that comes about from regular usage.

OATH - Any form of attestation by which a person signifies that the person is bound in conscience to perform an act faithfully and truthfully.

ORDINANCE - A law passed by a city, town, village or county.

ORDER - Direction of a magistrate or judge to a person, made or entered in writing and not included in a judgment.

OREGON JUDICIAL DEPARTMENT (OJD) - Created by the 1981 Oregon Legislative Assembly to unify the courts of Oregon into one entity.

OREGON JUDICIAL INFORMATION NETWORK (OJIN) - Statewide computer fiscal and case-tracking system.

OREGON REVISED STATUTES (ORS) - Laws of the state of Oregon enacted by the Legislative Assembly.

OREGON STATE BAR - Created by statute, a public corporation and instrumentality of the Oregon Judicial Department to carry out procedures relative to admission, discipline, resignation and reinstatement of persons admitted to the practice of law.

PEREMPTORY CHALLENGE - Challenge which a party at trial is allowed to have against a certain number of potential jurors, without needing any legal or other sound basis. Such a challenge disqualifies a person from serving on the jury in that particular case.

PERSONAL REPRESENTATIVE - Person appointed by the court to represent and act on the behalf of the decedent and the decedent's estate

PERSONAL SURETY BOND - An amount of money required by the court to be held by the court from the fiduciary, conservator, or trustee indicating he or she has formally recognized an obligation to pay the money or perform a specific act and that upon failure to perform that act will forfeit the amount of the bond.

PLAINTIFF - A person who brings a lawsuit against another person.

PLEA - Statement of defendant as to either guilt or innocence to the charge made.

PLEA BARGAINING - The process by which a prosecutor and a defendant (ordinarily through his or her lawyer) make an arrangement to handle the case in a certain way. Many defendants plead guilty in exchange for a reduction in charge(s) and / or the prosecutor's recommendation to the court of a more lenient sentence. Plea bargaining is used to lessen the courts' load and to give parties some control over the outcome.

POLLING THE JURY - To call the names of the persons who compose a jury and require each juror to declare what his/her verdict is before it is recorded; practice whereby jurors are asked individually whether he/she agreed, and still agrees, to the verdict.

PRELIMINARY HEARING - A hearing held in criminal felony cases to determine if there are reasonable grounds to believe the defendant committed the crime with which he or she has been charged. If such grounds exist, the case can then proceed through the criminal process. If they do not, the case is dismissed.

PRESIDING JUDGE - In circuit and district courts, appointed by the Chief Justice, has general administrative authority and supervision of the court to apportion workload, make rules, and issue orders.

PROBATE - The court procedure by which a will is proved to be valid or invalid; expanded to include procedures pertaining to the administration of estates guardianship, conservatorship, etc.

PROSECUTOR - A lawyer who brings criminal cases to court for the government.

PRESUMPTION OF INNOCENCE - After an arrest and up until the time of a conviction, it is officially presumed that the accused is innocent of any criminal charges. In other words, a person should be thought of as innocent until he or she is proven guilty in a court of law. Therefore, as long as bail is paid, the accused usually will remain free until the final outcome of the trial. To get a conviction, during the trial the prosecutor must prove beyond a reasonable doubt that the accused is guilty.

PUBLIC DEFENDER - A lawyer provided by the government (federal, state or local) to represent criminal defendants who cannot afford to hire a private lawyer. Public defenders are not provided in civil cases.

QUO WARRANTO - A proceeding to challenge the authority of a public officer to hold that office.

RECEIPT - A written acknowledgement of having received money, or a thing of value, without containing any obligation upon either party to the money or item. An admission of fact, in writing.

RECORD - A precise history of civil, criminal or administrative proceedings from commencement to termination.

REPLY - In trial court, plaintiff's answer to a counterclaim; on appeal, appellant's brief filed after respondent's answering brief.

RIGHTS AND RESPONSIBILITIES - Along with the rights (powers or privileges) guaranteed by the Constitution and the laws of the United States, people are given responsibilities. For example, they must know and obey the law, pay taxes, attend school up to a certain age, and appear as a witness in court if summoned to do so.

RULE OF LAW - All government officials and all private citizens must follow the laws of the nation and must be treated equally under the law. The government is created by and for the people and is answerable to the people.

SANCTION - To assent, concur, confirm or ratify; a penalty or punishment provided as a means of enforcing obedience to a law.

SENTENCE - Judgment formally pronounced by court or judge upon a defendant after conviction in a criminal prosecution, specifying the punishment to be imposed.

SEPARATION OF POWERS/CHECKS AND BALANCES - The government is divided into three branches, or parts. Each branch has part of the power, and no branch has all of the power. Each branch stands guard over the others so that no branch can misuse its power. The legislative branch makes laws. The executive branch enforces laws. The judicial branch makes judgments according to the law and can nullify laws that conflict with the Constitution. The government is also divided by levels. There is a central government called the federal government. There are separate governments for each of the fifty states, called the state governments, which are organized much like the federal government. There are also local governments for counties, towns and villages.

SETTLEMENT - An agreement that resolves a dispute between parties in a lawsuit without having to go through a full trial.

SMALL CLAIMS COURT - A special court designed to provide quick, informal and inexpensive resolution of relatively small civil suits (usually valued at $5,000 or less). Often lawyers are not allowed.

SPECIAL ADMINISTRATOR - A person assigned or appointed to act for a specific/special reason or to perform a specific duty for a particular time, person, object or class.

SPECIAL REPRESENTATIVE - A person assigned or appointed to act for a specific/special reason or to perform a specific duty for a particular time, person, object or class.

SPECTATORS - Members of the public observing court proceedings. The Sixth Amendment to the Constitution guarantees a defendant the right to a public trial.

STATUTE - An act of the legislature declaring, commanding or prohibiting something; the written will of the legislature according to the forms necessary to constitute it the law of the state.

STIPULATION - An agreement between counsel and parties respecting business before the court; it is not binding unless agreed to by the parties or their representatives and usually required to be in writing.

SUBPOENA - A court order requiring an individual to appear and testify in court. Subpoenas are also used to obtain documentary evidence like that contained in papers and books.

SUMMARY JUDGEMENT - A judgment which is rendered on motion of one of the parties when the pleadings show there is no real issue to be decided or that no valid defense has been offered.

SUPPLEMENTARY LOCAL RULES (SLR) - Rules promulgated by each judicial district to supplement the Uniform Trial Court Rules (UTCR).

SUMMONS - A legal notice that informs an individual that someone has brought a lawsuit against him or her. It includes the reasons for the suit, and the date and location where it will be heard. In a criminal case, a summons requires the accused to appear in court on a given date to answer the charge(s) against him or her.

TEMPORARY GUARDIANS/CONSERVATORS - The fiduciary appointed by the court to administer the affairs and/or estate of an individual for a short period of time before an administrator or executor can be appointed and qualified to assume full responsibilities.

TESTIMONY - Evidence given by a witness under oath.

TRIAL - Formal court proceeding at which evidence is heard and a case is decided. Almost all trials are open to the public.

TRUSTEE - A person holding property in trust. A person appointed, or required by law, to execute a trust; one whom an estate, interest, or power is vested under an express or implied agreement to administer or act on the behalf or for the benefit or the use of another.

TRUSTOR - One who creates a trust.

VENUE - Place or county in which an injury is declared to have been done, or fact declared to have happened.

VERDICT - A jury's decision. In a criminal case, the jury decides guilt or innocence. In a civil case, the jury decides liability and whether to award money damages and, if so, the amount of damages to be awarded. In a bench trial, the judge makes those decisions, which are called judgments.

VICTIM - A person who suffered physical injury, mental suffering or loss of property because of an attempted or actual criminal act by another person. The government brings the case against the defendant, but the victim often will become a witness if there is a trial.

VOUCHER - A written receipt, acquittance, or release which may serve as evidence of payment or discharge of a debt, or to certify the correctness of accounts.

WARRANT OF DETENTION/TRANSPORT - A warrant issued to law enforcement personnel to detain and/or transport a person as indicated by the court.

WITNESS - A person who testifies under oath in a criminal or civil case as to what he or she knows or has observed.

Chart A: Civil, Criminal, and Ordinance Violation Cases.

 

 

Civil

Ordinance Violations

Criminal

Who starts court action

Any group or individual

Local government

Government

Reason for court action

To decide the rights and duties of parties in a dispute

To get compensation for a wrong

To punish violators

To deter others from committing crimes

To punish or rehabilitate a criminal

To deter others from committing crimes

To protect society

Types of cases

Contract disputes, negligence, divorce/child custody, discrimination, small claims

Traffic, disorderly conduct, building code

Robbery, murder, vandalism, assault, embezzlement

Standard of proof

Preponderance of the evidence

Varies depending on the nature of the violation and consequences

Beyond a reasonable doubt

 

Steps in the civil process

Steps in the ordinance violation process

Steps in the criminal process

 

  1. Complaint filed by plaintiff
  2. Complaint served on defendant
  3. Response filed by defendant
  4. Discovery
  5. Pretrial conference
  6. Jury selection (if it is a jury trial)
  7. Trial
  8. Judgment / Verdict
  9. Appeal
  1. Citation
  2. Initial appearance
  3. Discovery
  4. Pretrial conference
  5. Trial
  6. Judgment
  7. Sentence
  8. Appeal
  1. Arrest
  2. Initial appearance
  3. Preliminary hearing and / or grand jury
  4. Arraignment
  5. Discovery
  6. Jury Selection (if it is a trial jury)
  7. Trial
  8. Judgment / Verdict
  9. Sentencing
  10. Appeal