Legal Terms All Law Students And Lawyers Should Know
During my first semester of law school, a visiting professor offered to assist our class with developing our legal writing skills. After hours of drafting and redrafting, I submitted my first writing sample, feeling satisfied I had covered the material well and in what I considered a very lawyerlike fashion. Much to my disappointment, the professor returned my submission with large, red letters that read, “Too much legal mumbo jumbo.”
Upon reading my writing critique, my back stiffened, my forehead furrowed, and my eyes narrowed. Instead of receiving what I expected to be a complimentary summary of my erudite legal analysis, the professor who read my writing sample only made a reference to mumbo jumbo. Under my breath, I sniffed, "I don't even know what legal mumbo jumbo is."
However, once I stepped away from emotion and took time to understand what she told me, I realized that writing in a lawyerlike manner is not the same as throwing around legalese in an attempt to impress. What she really said is there are no points for crafting a legal word salad. Words have meaning. They must be selected carefully, and then used correctly.
Avoid Being Corrected In Class and In The Courtroom
Years later, as a seasoned attorney, the same lesson came to bear. While sitting in the courtroom, waiting for my case to be called, I watched as a judge repeatedly corrected an inexperienced attorney when she stated she "filed" a default package when she should have stated that she "submitted" a default package. The error was slight, but the judge picked up on it.
My initial sensitivities were with the new attorney. I mused - what possible harm could such a slight error cause? However, the judge was a stickler for language. He was not pleased with such an elementary error. He spent court time chastising this new attorney instead of concentrating on her case. As this example illustrates, there are judges and other recipients of your work who will do as this judge did, which is never to your advantage. Many audiences, including court judges, are not tolerant when law students or attorneys use words incorrectly - they will let you know it when you least expect it.
Choose Words Carefully - Use Them Correctly
You do not get a second chance to make a first impression, so you never want to be cavalier with language. I encourage all of my law students and the new attorneys with whom I work to choose words carefully and always use them properly because not all audiences are forgiving of those who transgress. It is also exceedingly embarrassing to be upbraided in a law school class or in open court by a crabby judge who is looking for a reason to make an example of an attorney making an appearance.
Just last week, I was sitting in court, waiting for my case to be called. The clerk called the matter on the docket in front of me. What appeared to be a new attorney stepped up to be heard. He was obviously nervous. The slight quiver in his voice gave him away. He introduced himself, and then addressed the court as “Your Majesty.” The judge, who was rifling through briefs submitted by the parties, peered up over the top of his glasses. Without moving his head, he responded dryly, “Your Honor will do, Counselor.”
As you can see, the exchange described above between the judge and the new attorney is amusing, but it painfully illustrates how first impressions are created. I, and everyone in the court, will never forget it – and neither will the targeted attorney. Words matter.
Common Legal Terms To Know
There are legal terms that are relatively common in law school and to the overall practice of law that all law students and lawyers should know and understand. The following are some that are beneficial to know and use correctly.
1. Administrative Law
Administrative law regulates the operation and procedures of government agencies. This area of law tends to have very special rules for each agency.
After a case ends, a party can file for an appeal. If the case is in a state court in California, it is filed with the County Court of Appeal. In federal court, it is filed with the Ninth Circuit Court of Appeal.
Should you lose on appeal in the state Court of Appeal, you can file a Petition for Review with the California Supreme Court. Should you lose on appeal in the Ninth Circuit, you can file a Writ of Certiorari with the United States Supreme Court. Review by both Supreme Courts is discretionary and not a matter of right.
When the Appellate and Supreme Courts make a ruling, they will affirm or reverse and remand. When the courts affirm, they agree with the decision of the lower. When they reverse and remand, they agree with one or more of the appellant's (party that files the appeal) arguments. As such, they will reverse the ruling of the lower court in part or in full. They will then remand (send) the case back to the lower court with directions on how to implement their decision.
In a criminal matter, the district attorney will cause to be filed a complaint with the charges. An arraignment is a court hearing where the judge will read the charges to the defendant and the defendant will enter a plea of "guilty" or "not guilty."
Bankruptcy is a legal proceeding where an individual, married couple, or business cannot repay their debts. There are different types of bankruptcies based on the income, assets, and liabilities of the person(s) or entity filing for bankruptcy.
5. Community Property
California is a community property state which means that property accrued by a married couple belongs to both partners of the marriage.
A counterclaim is when a defendant in a lawsuit sues (files a complaint) against the plaintiff.
A cross-claim is when a party to a lawsuit sues a party on the same side of the litigation. It commonly will be a defendant suing another defendant in the case.
8. Dispositive Motion
A dispositive motion is one that seeks to end part or all of a case by attacking a cause of action or the entire complaint. These types of motions are very dangerous and should be taken seriously.
Infra denotes in a written document something that will be addressed below or further on in the writing.
An injunction is an equitable remedy in which a party is seeking an order from the court to prohibit someone from doing something. Seeking a restraining order is a form of injunction.
A lien is a means of securing an interest for the payment of a debt or the performance of an obligation. A deed of trust for a mortgage is a lien on the real property recorded with the county recorder to secure the payment of the mortgage. A judgment from a court can be recorded as a lien against real property to secure the payment of the judgment.
A motion is a request to the court. When a party wants some form of action or relief from the court once a case is pending, the party can file a motion to "move" the court to act. Generally, the filing party, known as the moving party, files the motion, and then the opposing party files a response. In civil law, the filing party then gets to file a reply to the response. Most courts will have a hearing where the parties can engage in oral argument. The court then rules on the motion and issues an order.
13. Retainer Agreement
A retainer agreement is a contract between an attorney and his/her client(s). It must express all the terms and conditions of the attorney/client relationship including the financial obligations of the client. A retainer is the amount of money a client is required to pay prior to an attorney commencing work on the matter. Based on the retainer agreement, if the retainer is depleted, the attorney may require a replenished retainer or allow the client to make monthly payments.
14. Separate Property
In California, a married couple can keep their property separate if they do not commingle the property. The couple must maintain separate bank accounts as well as pay all of their bills separately including mortgage payments. For couples that have community property, an inheritance is considered separate property unless it is commingled with the community property.
Supra denotes in a written document something that was addressed above or previously in the writing.
Build Your Legal Vocabulary While In Law School
An attorney is a wordsmith. As a law student and a lawyer, you are expected to be an expert in the language of law. You begin learning important legal terms and words from Day 1 in law school. Law school substantive law outlines, like those provided by Fleming’s Fundamentals of Law, can assist with learning the legal terms relevant to each course you are taking in law school. Black's Law Dictionary is also an excellent resource for law students and attorneys regarding comprehension and understanding of legal terms.
Work hard in law school. Be sure to learn the correct legal terms so you can turn your legal mumbo jumbo into a comprehensive legal vocabulary that will impress your law professors and the judges when you start appearing in court as a licensed attorney.