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OP-ED: Legal Term Review: Litigation Terminology Cheat Sheet

December 26, 2017

Overview

The good news is the construction business is booming. The bad news is that so is litigation. The legal world is complex to navigate. Below is a quick and dirty list of basic litigation terminology for those of you finding yourself in the legal world for the first time or the first time in a long time.

Litigation: Formal legal proceedings where one side makes allegations and the other side responds. Litigation is generally filed in a court of law, but not always decided by a
judge. Litigation includes arbitration, which is explained more thoroughly below.

Complaint: A legal document filed in a court of law stating that a party (the “plaintiff”) is entitled to specific legal relief against another party (the “defendant”) and often an award of money (called “damages”).

Answer: The response of the defendant to the complaint. The defendant may state why the plaintiff shouldn’t get what he or she is asking for, including providing “defenses” or legal reasons explaining why.

Trial: What you see on the courtroom drama shows, although they are not usually as interesting to watch in real life, unless, of course, it is your money or business on the line. A trial is the formal legal process, with a judge, where each party is allowed to present its story to either the judge alone (bench trial) or a jury (jury trial). Trials generally consist of opening statements, witness presentation, closing statements, and deliberation by the judge or jury.

Voir dire: In a jury trial, when lawyers for each side have a chance to ask jurors questions about their potential biases against the parties.

Arbitration: Like a trial, but there is no appointed or elected judge hearing the matter. An
arbitrator or group of arbitrators, generally agreed upon by both parties or designated by contract, decides what should happen in a particular case. Arbitration, especially in the construction world, can be more cost effective than a trial because the parties can agree to have construction experts hear the case as opposed to a judge who may not have any construction experience.

Mediation: Constantly confused with arbitration, mediation is nothing of the sort. Mediation is a private event, sometimes required by a contract, where the parties attempt to resolve their dispute. There is usually a paid mediator, or a judge, who listens to each side’s story and then attempts to craft a resolution to satisfy all parties. It is said that a good mediation is when everyone walks away unhappy.

Deposition: In order to figure out the facts of a case, a lawyer is allowed to ask witnesses (i.e., people with information about the facts in the complaint) questions under oath. That deposition is sworn testimony as to the case and can be referred to at trial. What is said in deposition will forever be deemed an admission by the deponent (person who is asked questions).

Discovery: Discovery is a pretrial procedure that allows each party to request evidence,
including documents, depositions, and site inspections from the other party or parties in a case. This allows the parties to determine which evidence to present at trial in support of each party’s legal claims and defenses.

Summary Judgment: If the facts of a particular case are clear and undisputed, then a judge may decide a case on the law alone. If the judge decides that the law favors one party or another, he or she grants summary judgment and the case is over. The cases that generally go to trial are not obvious one way or another, so a jury is tasked with sorting out the facts and deciding which witnesses have the most persuasive information.

Motions: Motions are requests to a judge to make a decision on a case. Generally, motions are written and may be made at any point during the proceeding. The right to file a motion with the court is regulated by court rules that vary from place to place. Some common types of motions include: (1) motions in limine, which are requests to exclude certain types of evidence and testimony from being heard by the jury; (2) motions to compel, which ask the court to order the opposing party or a third party to take a particular action. These are typically filed in relation to discovery disputes when one party claims the other party should provide access to certain information; and (3) motions to dismiss, which ask the court to dismiss the case in its entirety based only on the allegations in the complaint because those allegations fail as a matter of law.

Of course, those are just the basics, and we didn’t get into things like evidence, which is often misunderstood. Juries in particular want to know why they didn’t hear certain pieces of information. We’ll save that for another day.

Column first appeared in the Daily Journal of Commerce on December 26, 2017.

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