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Glossary of Terms
The language of the Court has very specific
and different meanings from words in everyday use. The terms the
Court uses also frequently employs latin as a matter of custom,
practice and brevity. The following definitions are typical of the
terms you might encounter in court documents or briefs. However,
it is only a partial list of the many hundreds of words and phrases
used in law.
A | B | C | D
| E | F | G | H
| I | J | K | L
| M | N | O |
P | Q | R | S
| T | U | V |
W | X | Y | Z
Abandonment
A party may file a notice of abandonment if he decides
not to pursue the appeal or writ. Before
the record is filed, the request or a stipulation to dismiss the
appeal is filed in the superior court.
After the record is filed, the request or stipulation is filed in
the appellate court. The notice of
abandonment operates as a dismissal of the appeal and revests jurisdiction
in the trial court.
The appellate court may grant or deny the request after the record
has been filed. As a practical
matter, parties who request dismissal during the later stages of
an appeal or writ proceeding
risk a greater possibility that the court will deny the request.
Abuse of discretion
Under this standard, the appellate court gives deference
to the lower court's view of the evidence, and reverses its decision
only if it were a clear abuse of discretion. This is usually defined
as a decision outside the bounds of reasonableness. An appellate
court will not disturb a trial court's exercise of discretion simply
because a different ruling would have been better. On the other
hand, the appellate court normally gives less deference to a lower
court's decision on issues of law, and may reverse if it finds that
the lower court applied the wrong legal standard.
Ad litem
A person appointed only for the purposes of prosecuting or defending
an action on behalf of another such as a child or mentally-challenged
person. Also called a guardian ad litem.
Affadavit
A formal sworn statement of fact, signed by the declarant (who is
called the affiant or deponent) and witnessed (as to the veracity
of the affiant's signature) by a taker of oaths, such as a notary
public. The name is Medieval Latin for "he has declared upon
oath.
Affirmed
In the practice of the court of appeals, it means that the court
of appeals has concluded that the lower court decision is correct
and will stand as rendered by the lower court.
Agreed statement
A rarely used alternative to the reporter’s transcript on
appeal, consisting of a narrative description of the trial court
proceedings.
Alternative Writ
Is in the nature of an order to show cause. Commands the respondent
court to either take the action specified in the writ or show cause
why the act has not been performed. See definition of Order
to Show Cause.
Amicus Curiae
Latin for "friend of the court." It is advice formally
offered to the court in a brief filed by an entity interested in,
but not a party to, the case.
Anders Brief
Refers to the requirements established by the United States Supreme
Court in Anders v. California (1967) 386 U.S. 738, for a "no
issue" brief in a criminal appeal. Appointed counsel who finds
an appeal to be wholly frivolous should file a written request to
withdraw accompanied by the filing of a brief citing to anything
in the record that might potentially support the appeal. The brief
must be given to the indigent defendant who is afforded the opportunity
to raise his own contentions. If after a review of the record the
appellate court determines there are no nonfrivilous issues, the
court may decide the case even without the participation of counsel.
See also the description in "Wende Brief."
Appeal
A request made after a trial by a party that has lost on one or
more issues that a higher court review the decision to determine
if it was correct. To make such a request is "to appeal"
or "to take an appeal." One who appeals is called the
"appellant;" the other party is the "appellee."
Appellant
The party who appeals a district court's decision, usually seeking
reversal of that decision.
Appellate
About appeals; an appellate court has the power to review the judgment
of a lower court (trial court) or tribunal. For example, the U.S.
circuit courts of appeals review the decisions of the U.S. district
courts.
Appellate jurisdiction
The power of a court to review the decisions and change the outcomes
of the decisions of previous, lower-level courts. The review process
begins when a party or parties dissatisfied with the decision of
the lower court appeal the decision to an appellate court. Depending
on the court and the type of case, appellate review may consist
of an entirely new hearing on the matter (a trial de novo), or may
be limited to a review of particular legal rulings made by the inferior
tribunal (an appeal on the record).
Appellee
The party who opposes an appellant's appeal, and who seeks to persuade
the appeals court to affirm the district court's decision.
Appendix
The most common alternative to a clerk’s transcript. Prepared
by the parties instead of the clerk, it consists of copies of the
desired superior court documents. It avoids the cost of a clerk’s
transcript, allows the parties to select only pertinent superior
court documents to include in the record, and avoids the delay of
having the clerk prepare the transcript. The party must file a notice
of election within 10 days of filing the notice of appeal to proceed
by appendix rather than a clerk’s transcript. The “appendix”
also refers to portions of the appellate record a party wants to
highlight for the court by inclusion at the end of a brief.
Association of counsel
A trial attorney who desires to remain the attorney of record in
a case may associate appellate counsel to handle the appeal by filing
a notice of association of counsel in the appellate court.
Augment
A party seeking to include exhibits, documents, or reported hearings
in the appellate record that are not part of the normal record on
appeal as set forth in the rules of court may file a written motion
to the presiding justice requesting augmentation of the appellate
record to include the exhibits or documents in the clerk's transcript
or the reported hearings in the reporter's transcript. See "Sample
Motions" portion of this website for an example.
Bench Trial
A trial without a jury, in which the judge serves as the fact-finder.
Bifurcation
Bifurcated determinations, such as negligence and damages issues
tried separately. There is no appealable final judgment until all
phases of the trial have concluded, except to the extent otherwise
provided by statute.
Brief
A written statement submitted in a trial or appellate proceeding
that explains one side's legal and factual arguments.
Case File
A complete collection of every document filed in court in a case.
Case Law
The law as established in previous court decisions. A synonym for
legal precedent. Akin to common law, which springs from tradition
and judicial decisions.
Certiorari (Writ of Certiorari)
Latin for "to be informed of." A writ of common law origin
issued by a reviewing court to an inferior court to produce a certified
record of a particular case tried in that court. The writ issues
to correct a completed judicial act in excess of jurisdiction. The
writ is also the means by which an appellant requests appellate
review in the United States Supreme Court.
Civil case information statement
The appellant in a civil appeal must file a “civil case information
statement” in a form prescribed by the Judicial Council. Cal.
Rules of Court, 8.100(f). The main purpose of the statement is to
all the appellate court to identify defects relating to timeliness
and appealability before the appellate record is prepared.
Clear and convincing evidence
A judgment awarding punitive damages must be supported by clear
and convincing evidence of defendant’s “oppression,
fraud, or malice.” Civil Code section 3294. Real world meaning:
it is the intermediate level of burden of persuasion sometimes employed
in the U.S. civil procedure. To prove something by "clear and
convincing evidence", the party with the burden of proof must
convince the trier of fact that it is substantially more likely
than not that the thing is in fact true. This is a lesser requirement
than "proof beyond a reasonable doubt",
which requires that the trier of fact be close to certain of the
truth of the matter asserted, but a stricter requirement than proof
by "preponderance of the evidence,"
which merely requires that the matter asserted seem more likely
true than not.
Clear Error
A finding is clearly erroneous when although there is evidence to
support it, the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been committed.
Clerk of the Court
The court officer who oversees administrative functions, especially
managing the flow of cases through the court. The clerk's office
is often called a court's central nervous system.
Common law
The legal system that originated in England and is now in use in
the United States that relies on the articulation of legal principles
in a historical succession of judicial decisions. Common law principles
can be changed by legislation.
Coram nobis (trial court)
A coram nobis (latin meaning: "the error before us") petition
applies to persons who have already been convicted and have served
their sentence. It may seek to remove probation requirements or
restrictions, eliminate payment or obtain refund of court imposed
fines, restore voting rights and gun ownership, improve employment
and credit potential, remove a public stigma, and so forth, in order
to restore so far as possible the erroneously convicted party to
a pre-conviction state. Motions may be filed by heirs at law even
after the original person is deceased.
Coram vobis (appellate court)
Latin for "before you." A writ of error directed by a
reviewing court to the trial court to correct an error of fact.
When during the course of an appeal the appellant discovers new
evidence that would have supported the granting of a new trial or
reconsideration, the appellate court is empowered to issue a writ
of coram vobis commanding the trial court to reconsider its decision
in light of the new evidence. The writ is considered a "drastic
remedy" which is available only if there is no other legal
recourse to the appellant and the appellant demonstrates extrinsic
fraud or the type of fraud that prohibited the appellant from having
a meaningful hearing on the issue. Some reviewing courts relax the
extrinsic fraud requirement if an injustice would result.
Costs
The prevailing party on appeal is entitled to recover “costs.”
Court
Government entity authorized to resolve legal disputes. Judges sometimes
use "court" to refer to themselves in the third person,
as in "the court has read the briefs."
Damages
Money that a defendant pays a plaintiff in a civil case if the plaintiff
has won. Damages may be compensatory (for loss or injury) or punitive
(to punish and deter future misconduct).
Death knell order
An order denying certification to an entire class is an appealable
final judgment because it finally disposes of the entire class action.
Declaratory Judgment
A judge's statement about someone's rights. For example, a plaintiff
may seek a declaratory judgment that a particular statute, as written,
violates some constitutional right.
De Facto
Latin, meaning "in fact" or "actually." Something
that exists in fact but not as a matter of law.
Default Judgment
A judgment awarding a plaintiff the relief sought in the complaint
because the defendant has failed to appear in court or otherwise
respond to the complaint.
De Jure
Latin, meaning "in law." Something that exists by operation
of law.
Demurrer
A pleading by the defendant that contests the legal sufficiency
of the complaint without admitting or denying the allegations therein.
Demurrers are usually filed at the beginning of a case. It is filed
before the answer and can be characterized as the defendant’s
way of saying “so what?” after reading a plaintiff's
complaint. A demurrer is not a challenge to the ultimate merits
of a case or claim. When ruling on a demurrer a judge is required
by law to assume as true facts alleged in the complaint. Subject
to very few exceptions, the Judge cannot rule on a demurrer based
on the Judge's perception of a plaintiff's credibility.
Denial
The response to the "return" to an order to show cause
in the trial court. See "Traverse" for
a complete description.
De Novo
Also known as independent review. In cases where the lower court
made errors of law or procedure that, absent that mistake, would
have materially changed the verdict or judgement, the Court of Appeal
can review the record as "new"– as if there was
never a lower court ruling. Purely legal issues are usually reviewed
independently by the appellate court because the trial court is
in no better position than the appellate court to determine what
the law is.
Depublication
Where the California Supreme Court directs that a published Court
of Appeal opinion not be published in the official reports. Any
person may request the Supreme Court to depublish an opinion certified
for publication. CRC 8.1125(a)(1). The request must be made by a
maximum 10-page letter to the Supreme Court within 30 days of the
decision becoming final in the Court of Appeal. Any person may oppose
the depublication request by submitting a maximum 10-page response
within 10 days after receipt of the depublication request in the
Supreme Court.
Deposition
An oral statement made before an officer authorized by law to administer
oaths. Such statements are often taken to examine potential witnesses,
to obtain discovery, or to be used later in trial.
Dictum
Those statements that are not necessary to the holding in the case
and therefore have no precedential value.
Discharge of writ
Occasionally, after issuing an alternative writ, the reviewing court
may determine that there was a defect in the petition and discharge
the alternative writ without a hearing.
Discovery
Procedures used to obtain disclosure of evidence before trial.
Dismissal with Prejudice
Court action that prevents an identical lawsuit from being filed
later.
Dismissal without Prejudice
Court action that allows the later filing.
Diversity jurisdiction
A federal district court has jurisdiction where the two parties
are from different states or different countries where the case
is worth more than $75,000.
Due Process
In criminal law, the constitutional guarantee that a defendant will
receive a fair and impartial
trial. In civil law, the legal rights of someone who confronts an
adverse action threatening
liberty or property.
En Banc
French, meaning "on the bench." All judges of an appellate
court sitting together to hear a case, as opposed to the routine
disposition by panels of three judges. In the Ninth Circuit, an
en banc panel consists of the Chief Justice and 10 randomly selected
judges. In the absence of the Chief Justice, an active judge shall
be drawn by lot, and the most senior active judge on the panel shall
preside.
Equitable
Pertaining to civil suits in "equity" rather than in "law."
In English legal history, the courts of "law" could order
the payment of damages and could afford no other remedy. See damages.
A separate court of "equity" could order someone to do
something or to cease to do something. See, e.g., injunction. In
American jurisprudence, the federal courts have both legal and equitable
power, but the distinction is still an important one. For example,
a trial by jury is normally available in "law" cases but
not in "equity" cases.
Evidence
Information presented in testimony or in documents that is used
to persuade the fact finder (judge or jury) to decide the case in
favor of one side or the other.
Exclusionary Rule
Doctrine that says evidence obtained in violation of a criminal
defendant's constitutional or statutory rights is not admissible
at trial.
Exculpatory Evidence
Evidence indicating that a defendant did not commit the crime.
Exhibits
Exhibits are not included in the clerk’s transcript. Instead,
a party may request the superior court clerk to separately transmit
the exhibits to the Court of Appeal shortly after the respondent’s
brief is filed. The original exhibits when lodged in the Court of
Appeal are considered part of the clerk’s transcript.
Ex Parte
A proceeding brought before a court by one party only, without notice
to or challenge by the
other side.
Federal question jurisdiction
Jurisdiction given to federal courts in cases involving the interpretation
and application of the U.S. Constitution, acts of Congress, and
treaties.
File
To place a paper in the official custody of the clerk of court to
enter into the files or records
of a case.
Finality
There is a common law “one final judgment” rule; i.e.
an appeal lies only from a final judgment that terminates the trial
court proceedings by completely disposing of the matter in controversy.
The rule is premised on the theory that multiple appeals from judgments
are costly and time consuming. Griset v. Fair Political Practices
Comm’n (2001) 25 Cal.4th 688, 697.
Habeas Corpus
Latin, meaning "you have the body." A writ of habeas corpus
(also known as the "great writ") generally is a judicial
order forcing law enforcement authorities to produce a prisoner
they are holding, and to justify the prisoner's continued confinement.
In cases originating in state court, the habeas petitions may not
be filed in federal court to challenge a criminal conviction until
state court remedies are exhausted by appeal or habeas petition
and there has been a request for discretionary review or a habeas
petition to the state supreme court. California courts (trial and
appellate) have original jurisdiction over habeas petitions. It
is also the statutorily preferred remedy with respect to some orders
in juvenile dependency cases where an appeal would delay a dependent
child's progress towards permanency and stability. In addition,
contempt judgments are not reviewable by appeal, but are reviewable
by writ of habeas corpus.
Hearsay
Evidence presented by a witness who did not see or hear the incident
in question but heard
about it from someone else. With some exceptions, hearsay generally
is not admissible as
evidence at trial.
Impeachment
The process of calling a witness's testimony into doubt. For example,
if the attorney can show
that the witness may have fabricated portions of his testimony,
the witness is said to be
"impeached;"
In Camera
Latin, meaning in a judge's chambers. Often means outside the presence
of a jury and the
public. In private.
Inculpatory Evidence
Evidence indicating that a defendant did commit the crime.
Indigence
The superior court may waive the $100 transcript deposit for indigent
appellants. Cal. Rules of Court, rule 8.1009b)(2). In a narrow category
of civil appeals involving state controls or intrusions on family
relationships, an indigence waiver of the transcript deposit is
constitutionally required.
In forma pauperis
"In the manner of a pauper." Permission given by the court
to a person to file a case without payment of the required court
fees because the person cannot pay them.
Judge
An official of the judicial branch with authority to decide lawsuits
brought before courts. Used generically, the term judge may also
refer to all judicial officers, including Supreme Court justices.
Judgment
The official decision of a court finally resolving the dispute between
the parties to the lawsuit.
Jurisdiction
The legal authority of a court to hear and decide a certain type
of case. It also is used as a synonym for venue, meaning the geographic
area over which the court has territorial jurisdiction
to decide cases.
Jury
The group of persons selected to hear the evidence in a trial and
render a verdict on matters
of fact. See also grand jury.
Jury instructions
A judge's directions to the jury before it begins deliberations
regarding the factual questions it
must answer and the legal rules that it must apply.
Lawsuit
A legal action started by a plaintiff against a defendant based
on a complaint that the defendant failed to perform a legal duty
which resulted in harm to the plaintiff.
Litigation
A case, controversy, or lawsuit. Participants (plaintiffs and defendants)
in lawsuits are
called litigants.
Magistrate judge
A judicial officer of a district court who conducts initial proceedings
in criminal cases, decides criminal misdemeanor cases, conducts
many pretrial civil and criminal matters on behalf of district judges,
and decides civil cases with the consent of the parties.
Mandate
Also known as the writ of mandamus, is the most commonly used writ
in civil cases. The writ lies to correct an abuse in the exercise
of discretion by the respondent court or to enforce a nondiscretionary
duty to act on the part of the court, administrative agency, or
officers of a corporate or administrative agency.
Moot
Not subject to a court ruling because the controversy has not actually
arisen, or has ended.
Motion
A request by a litigant to a judge for a decision on an issue relating
to the case.
Motion in Limine
Any motion before or during a trial requesting the court to bar
the other side from mentioning or presenting issues that could be
prejudicial.
Nolo contendere
No contest. A plea of nolo contendere has the same effect as a plea
of guilty, as far as the criminal sentence is concerned, but may
not be considered as an admission of guilt for any
other purpose.
Opinion
A judge's written explanation of the decision of the court. Because
a case may be heard by three or more judges in the court of appeals,
the opinion in appellate decisions can take several forms. If all
the judges completely agree on the result, one judge will write
the opinion for all. If all the judges do not agree, the formal
decision will be based upon the view of the majority, and one member
of the majority will write the opinion. The judges who did not agree
with the majority may write separately in dissenting or concurring
opinions to present their views.
A dissenting opinion disagrees with the majority opinion because
of the reasoning and/or the principles of law the majority used
to decide the case. A concurring opinion agrees with the decision
of the majority opinion, but offers further comment or clarification
or even an entirely different reason for reaching the same result.
Only the majority opinion can serve as binding precedent in future
cases. See also precedent.
Oral argument
An opportunity for lawyers to summarize their position before the
court and also to answer the judges' questions.
Order to Show Cause
A command from the reviewing court to the respondent court to show
cause why the relief requested in the writ should not be granted.
An order to show cause issued by the reviewing court requires the
respondent to file what is known as a "return" to the
writ petition alleging facts that justify the judgment or a prisoner's
incarceration.
Palma notice
The reviewing court must give what is known as "Palma
notice" (Palma v. United States Industrial Fasteners, Inc.
(1984) 36 Cal.3d 171, 180) notifying the real party in interest
that the court is considering a peremptory writ.
Panel
In appellate cases, a group of judges (usually three) assigned to
decide the case.
Party in interest
A party who has standing to be heard by the court in any matter
to be decided in an appeal.
Per Curiam
Latin, meaning "for the court." In appellate courts, often
refers to an unsigned opinion.
Peremptory writ
Is the reviewing court's ultimate determination that the respondent
court is to grant the relief requested. A peremptory writ may issue
in the first instance in mandamus or prohibition or after hearing
on an alternative writ. Normally, a peremptory writ will not issue
in the first instance unless there is unusual urgency or the entitlement
to relief is obvious, and the reviewing court must give Palma
notice.
Petition
The "petition" also refers to the request by the petitioning
party (known as the "petitioner") to the reviewing court
to issue a writ. The petition sets forth the factual and legal circumstances
for which writ relief is an appropriate remedy and why remedies
at law are inadequate. The petition consists of the petition itself,
a supporting memorandum, and exhibits.
Plain Error
Plain error is defined as (1) an error; (2) that is clear or plain;
(3) that affects the defendants' substantial rights; and (4) that
seriously affects the fairness, integrity, or public reputation
of the judicial proceeding.
Pleadings
Written statements filed with the court which describe a party's
legal or factual assertions about the case.
Precedent
A court decision in an earlier case with facts or legal issues similar
to a dispute currently before a court. Judges will generally "follow
precedent" — meaning that they use the principles established
in earlier cases to decide new cases that have similar facts or
legal issues. Lower courts are bound by an intermediate appellate
court opinion where there is no conflicting precedent. In California,
Supreme Court decisions are considered the "law of the land"
and cannot be disregarded by any (California) state court.
Preponderance of the evidence
Proof which is of greater weight or more convincing than the proof
that is offered in opposition
to it; that is, proof which as a whole shows that the fact sought
to be proved is more probable
than not. The standard in civil actions, and prima facia hearings.
If the plaintiff's proof is 51% stronger or more convincing than
that of the defending party, their complaint will be upheld by the
court. While this is a relatively low standard of proof, Plaintiff
must still affirmatively prove the allegations it is asserting by
the preponderance of the evidence.
Prohibition
The writ of prohibition is the process by which a reviewing court
prohibits an inferior court from acting in excess of its jurisdiction.
In practice, the writ will lie to prevent the inferior court from
exercising any unauthorized use of power contrary to the constitution,
statutes, or established case law. Examples of situations where
the writ will lie are when a party has failed to to exhaust administrative
remedies, a court's granting of an unauthorized cost award, judicial
action taken after the lapse of a jurisdictional time limit, and
the improper grant or denial of a jury trial.
Pro per
A slang expression sometimes used to refer to a pro se litigant.
It is a corruption of the Latin phrase "in propria persona."
Pro Se
Representing oneself. Serving as one's own lawyer.
Published Opinion
An opinion that meets the standards for publication. An interested
party may file a letter with the appellate court requesting publication
of an opinion that meets the standards for publication set out in
the appellate court rules. There are deadlines for requesting publication
of a decision. In California, the deadline is 20 days after the
opinion is filed. CRC 8.1120(a)(2).
Reasonable Doubt
This is the standard required by the prosecution in most
criminal cases within our adversarial court system. This means that
the proposition being presented by the government must be proven
to the extent that there is no "reasonable doubt" in the
mind of a reasonable person that the defendant is guilty. There
can still be a doubt, but only to the extent that it would not affect
a "reasonable person's" belief that the defendant is guilty.
If the doubt that is raised does affect a "reasonable person's"
belief that the defendant is guilty, the jury is not satisfied beyond
a "reasonable doubt". In the United States, it is usually
reversible error to instruct a jury that they should find guilt
on a certain percentage of certainty (such as 90% certain). Usually,
reasonable doubt is defined as "any doubt which would make
a reasonable person hesitate in the most important of his or her
affairs."
Rehearing
Also known as a petition for rehearing. The process by
which a party requests a reviewing court to reconsider its opinion.
Remand
Send back. This is one possible remedy or action the Court of Appeal
may take.
Reply
Also know as replication. The petitioner's response to the "return"
to an order to show cause or alternative writ is known as the reply
or replication. If the reviewing court has not set a briefing schedule,
the reply must be filed within 15 days after the return is filed.
Cal. Rules of Court, rule 8.490(h)(2) & (3).
Restitution after reversal
Following a reversal of modification, the appellate court
can order return or property or money lost by a judgment, and payment
of interest on money that is returned.
Return
What the real party in interest files in response to an
order to show cause or an alternative writ issued by the reviewing
court. The return may be a demurrer, verified answer, or both. The
factual allegations in the return are normally accompanied by a
Memorandum of Points and Authorities setting forth the real party
in interest's legal argument why writ relief should not be granted.
With the filing of the return, the matter becomes a "cause"
and a written opinion must be filed whether or not relief is granted.
The return must normally be verified.
Reversible error per se
Errors for which the appellant is not required to prove
prejudice in order to obtain a reversal of the judgment.
Reverse
The act of a court setting aside the decision of a lower court.
A reversal is often accompanied by a remand to the lower court for
further proceedings.
Sanctions
Sanctions are available on appeal if the appellate court deems that
the appeal is frivolous or taken for purposes of harassment or delay.
Senior Judge
A federal judge who, after attaining the requisite age and length
of judicial experience, takes senior status, thus creating a vacancy
among a court's active judges. A senior judge retains the judicial
office and may cut back his or her workload by as much as 75 percent,
but many opt to keep a larger caseload.
Settled Statement
Is a "condensed narrative of the oral proceedings that the
appellant believes necessary for the appeal." Cal. Rules of
Court, rule 8.137(b)(1). It is rarely used to replace the reporter's
transcript on appeal, but is more often used to replace or supplement
the reporter's transcript when the proceedings cannot be transcribed
through no fault of the appellant. An example of when a settled
statement can be used to supplement the reporter's transcript is
to make a record of discussions between counsel and the court at
the bench that are unreported.
Standard of Review
In California, the three
main standards of review are abuse of discretion,
substantial evidence, and de novo
or independent review. Federal decisions add what is known as
"clear error" and "plain
error."
Standing to Appeal
Parties have standing to appeal only if they have been
legally injured by the appealable judgment or order. The test for
determining whether a party has been aggrieved is to ask the question:
"Would the party have had the thing, if the erroneous judgment
had not been given?" Estate of Kouba (2002) 95 Cal.App.4th
1194, 1201.
Strike
May be a motion to strike a brief for failing to follow
appellate rules.
Sua Sponte
Latin, meaning "of its own will." Often refers to a court
taking an action in a case without being asked to do so by either
side.
Substantial Evidence
California appellate courts are bound by the substantial evidence
rule in reviewing the sufficiency of the evidence to support any
disputed fact question. The reviewing court must determine on the
entire record whether there is substantial evidence, contradicted
or uncontradicted, that will support the appealed judgment or determination.
Substantial evidence is evidence that is of ponderable legal significance.
It must be reasonable, credible, and of solid value. So long as
there is substantial evidence, the appellate court must affirm,
even if the justices personally would have ruled differently if
they had presided over the proceedings below, and even if other
substantial evidence would have supported a different result. In
contrast, mere speculation cannot support a finding.
Supersedeas (Writ of Supersedeas)
Also known as the writ of supersedeas and is used to suspend the
trial court's power to compel execution of an appealed judgment
or order pending review of the appeal and a ruling on the merits
in the appeal. The writ of supersedeas does not pass upon the merits
of the appeal.
Traverse
The petitioner's reply to the return to a writ of habeas corpus
in the reviewing court. The traverse is equivalent to an answer
to the complaint in civil proceedings and contains denials of the
allegations in the return, alleges facts entitling the petitioner
to relief, and a memorandum of points and authorities setting out
the petitioner's legal argument. The traverse must normally be verified.
In the reviewing court the response to the return is known as a
"traverse." If the writ is filed in the trial court it
is called the "Denial."
Uphold
The appellate court agrees with the lower court decision and allows
it to stand.
Venire (facias)
"(you)cause to come anew". Venire facias (literally
"(you) cause to come") is a writ issued by an official
of the court summoning prospective jurors. Venire facias de novo
is a legal term which the court uses when there has been some impropriety
or irregularity in the jury, or where the verdict is so imperfect
or ambiguous that no judgment can be given upon it, and so a new
jury must be chosen.
Venue
The geographic area in which a court has jurisdiction. A change
of venue is a change or transfer of a case from one judicial district
to another.
Verdict
The decision of a trial jury or a judge that determines the guilt
or innocence of a criminal defendant, or that determines the final
outcome of a civil case.
Voir Dire
Generally refers to the process by which prospective jurors are
questioned about their backgrounds and potential biases before being
invited to sit on a jury. It is also used in questioning the credentials
of an expert being proffered to the Court to testify.
Wende Brief
A brief filed by counsel pursuant to People v. Wende (1979)
25 Cal.3d 436, in a criminal defendant's first appeal in which appellate
counsel informs the appellate court that there are no arguable issues
on appeal and requests the appellate court to make an independent
review of the record. Appointed counsel is not required to withdraw
as long as he does not inform the reviewing court that the appeal
is frivolous and appointed counsel informs the client of his right
to have appellate counsel relieved. Counsel is required to file
a brief with the reviewing court presenting a complete statement
of the case and facts, and a request for the reviewing court to
conduct its own independent review of the record. The appellant
must be informed by appellate counsel that the intention is to file
a Wende brief and that the appellant may submit his own supplemental
brief to the court if he so desires. The appellate court is required
to issue a written opinion disposing of the possible issues mentioned.
Several cases have purported to extend Wende requirements to non-civil
appeals in juvenile delinquincy appeals, termination of parental
rights, and paternity cases.
Writ
A written court order directing a person to take, or refrain from
taking, a certain act.
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