Glossary of Tort Law Terms
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Capital Gain: The profit made
from the sale of a capital asset, such as real estate, a house, jewelry or
stocks and bonds.
Capital Loss: The loss that
results from the sale of a capital asset, such as real estate, a house, jewelry
or stocks and bonds.
Caps on Damages: A damages
cap is an arbitrary ceiling on the amount an injured party can receive in
compensation by a judge or jury, irrespective of what the evidence presented at
a trial proves compensation should be. A cap is usually defined in a statute by
a dollar figure or by tying the cap to another type of damages (e.g. two times
compensatory damages). Caps usurp the authority of judges and juries, who listen
to the evidence in a case, to decide compensation based on each specific fact
situation. Several states have declared caps unconstitutional.
Caps on Non-Economic Damages:
Non-economic damages compensate injured consumers for intangible but real
injuries, like infertility, permanent disability, disfigurement, pain and
suffering, loss of a limb or other physical impairment. Caps or limits on
non-economic damages have a disproportionate effect on plaintiffs who do not
have high wages - like women who work inside the home, children, seniors or the
poor, who are thus more likely to receive a greater percentage of their
compensation in the form of non-economic damages if they are injured.
Caps on Punitive Damages:
Punitive damages, also known as "exemplary damages," are assessed
against defendants by judges or juries to punish particularly outrageous,
deliberate or harmful misconduct, and to deter the defendant and others from
engaging in similar misconduct in the future.
Case Law: Also known as
common law. The law created by judges when deciding individual disputes or
Case of First Impression: A
novel legal question that comes before a court.
Caveat Emptor: Latin for
"buyer beware." This rule generally applies to all sales between
individuals. It gives the buyer full responsibility for determining the quality
of the goods in question. The seller generally has no duty to offer warranties
or to disclose defects in the goods.
Certiorari: Latin that means
"to be informed of." Refers to the order a court issues so that it can
review the decision and proceedings in a lower court and determine whether there
were any irregularities. When such an order is made, it is said that the court
has granted certiorari.
Challenge for Cause: Ask that
a potential juror be rejected if it is revealed that for some reason he or she
is unable or unwilling to set aside preconceptions and pay attention only to the
Chambers: A judge's office.
Change of Venue: A change in
the location of a trial, usually granted to avoid prejudice against one of the
Charge to the Jury: The
judge's instructions to the jury concerning the law that applies to the facts of
the case on trial.
Charge: The law that the
police believe the defendant has broken.
Charging Lien: Entitles a
lawyer who has sued someone on a client's behalf the right to be paid from the
proceeds of the lawsuit, if there are any, before the client receives those
Chief Judge: The judge who
has primary responsibility for the administration of a court but also decides
cases; chief judges are determined by seniority.
Indirect evidence that implies something occurred but doesn't directly prove it.
If a man accused of embezzling money from his company had made several
big-ticket purchases in cash around the time of the alleged embezzlement that
would be circumstantial evidence that he had stolen the money.
Class Action Suit: A lawsuit
in which one or more parties file a complaint on behalf of themselves and all
other people who are "similarly situated" (suffering from the same
problem). Often used when a large number of people have comparable claims.
Clear And Convincing Evidence:
The level of proof sometimes required in a civil case for the plaintiff to
prevail. Is more than a preponderance of the evidence but less than beyond a
Clerk of the Court: An
officer appointed by the court to work with the chief judge in overseeing the
court's administration, especially to assist in managing the flow of cases
through the court and to maintain court records.
Closing: In a real estate
transaction, this is the final exchange in which the deed is delivered to the
buyer, the title is transferred, and the agreed-on costs are paid.
Cohabitation Agreement: Also
called a living-together contract. A document that spells out the terms of a
relationship and often addresses financial issues and how property will be
divided if the relationship ends.
Collateral Source Rule: The
collateral source rule prevents a wrongdoer from reducing its financial
responsibility for the injuries it causes by the amount an injured party
receives (or could later receive) from outside sources. Payments from outside
sources are those unrelated to the wrongdoer, like health or disability
insurance, for which the injured party has already paid premiums or taxes. The
rule also prevents juries from learning about such collateral payments, so as
not to unfairly influence with verdict. States that have modified this rule have
either completely repealed it, mandating that payments received from health
insurance, social security or other sources be used to reduce the wrongdoer's
liability. Or, they allow juries to hear during trial about collateral payments.
Collateral: An asset that a
borrower agrees to give up if he or she fails to repay a loan.
Collective Bargaining Agreement: The
contract that spells out the terms of employment between a labor union and an
Comity: A code of etiquette
that governs the interactions of courts in different states, localities and
foreign countries. Courts generally agree to defer scheduling a trial if the
same issues are being tried in a court in another jurisdiction. In addition,
courts in this country agree to recognize and enforce the valid legal contracts
and court orders of other countries.
Common Law: The legal system
that originated in England and is now in use in the United States. It is based
on judicial decisions rather than legislative action.
Community Property: Property
acquired by a couple during their marriage. Refers to the system in some states
for dividing the couple's property in a divorce or upon the death of one spouse.
In this system, everything a husband and wife acquire once they are married is
owned equally (fifty-fifty) by both of them, regardless of whom provided the
money to purchase the asset or whose name the asset is held in.
Comparative Negligence: Also
called comparative fault. A system that allows a party to recover some portion
of the damages caused by another party's negligence even if the original person
was also partially negligent and responsible for causing the injury. Not all
states follow this system.
Compensatory Damages: Money
awarded to reimburse actual costs, such as medical bills and lost wages. Also
awarded for things that are harder to measure, such as pain and suffering.
Complaint: In a civil action,
this is a document that initiates a lawsuit. The complaint outlines the alleged
facts of the case and the basis for which a legal remedy is sought.
Conflict of Interest: Refers
to a situation when someone, such as a lawyer or public official, has competing
professional or personal obligations or personal or financial interests that
would make it difficult to fulfill his duties fairly.
Consideration: Something of
value that is given in exchange for getting something from another person.
Contempt of Court: An action
that interferes with a judge's ability to administer justice or that insults the
dignity of the court. Disrespectful comments to the judge or a failure to heed a
judge's orders could be considered contempt of court. A person found in contempt
of court can face financial sanctions and, in some cases, jail time.
Contingency Fee Limits: Under
a contingency fee arrangement, a lawyer agrees to take a case on behalf of an
injured client without obtaining any money up front from the client. This system
provides injured consumers who could not otherwise afford legal representation
with access to the courts. Typically, states limit contingency fees by capping
them sometimes way below one-third, sometimes along a sliding scale so fee
percentages decrease, sometimes drastically, as judgments increases. The
principal impact of contingency fee limits is to make it less likely attorneys
can afford to risk bringing many cases, particularly the more costly and complex
ones, providing practical immunity for many wrongdoers
Continuance: Put off trial
until another time.
Contract: An agreement
between two or more parties in which an offer is made and accepted, and each
party benefits. The agreement can be formal, informal, written, oral or just
plain understood. Some contracts are required to be in writing in order to be
Prevents a party from recovering for damages if he or she contributed in any way
to the injury. Not all states follow this system.
Copyright: A person's right
to prevent others from copying works that he or she has written, authored or
Corporation: An independent
entity created to conduct a business. It is owned by shareholders.
Counsel: Legal advice; a term
used to refer to lawyers in a case.
Counterclaim: A claim that a
defendant makes against a plaintiff.
Court Reporter: A person who
makes a word-for-word record of what is said in court and produces a transcript
of the proceedings upon request.
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
Creditor: A person (or
institution) to whom money is owed.
Cross Examination: The
questioning of an opposing party's witness about matters brought up during