Cochise County Justice Courts Information Sheet


Action: In the legal sense, an "action" is a legal matter that is brought before a court. An action can be civil or criminal.

Answer: In a civil lawsuit, once the defendant is served with the Complaint and Summons, the defendant is required to file a responsive pleading called an Answer. The Answer is usually a general denial of the allegations in the Complaint.

Appeal: After a final order or judgment has been entered by a Court, the losing party normally has the right to seek review of that order or judgment by the next higher court. An appeal usually begins by the filing of a Notice of Appeal.

Assigned claim: A person who is the owner of a legal right may give, or assign, that right to another person. For example, a financial institution which has loaned money often sells that note to another financial institution. This is an assignment of all rights and obligations that the original financial institution may have had, and is usually done for consideration, i.e. a price paid by the assignee. An assignment may also be a gift, not supported by consideration. Another example is seen in automobile cases involving insurance payment for damages. The party who receives the insurance payment is required to assign their claim against the other party to the insurance company. The insurance company may then pursue all legal remedies that were available to the assignor.

Attorney of Record: Attorneys can confer with a prospective client and even go so far as to create an attorney-client relationship without becoming the attorney of record for that client. The formal status of "attorney of record" is created by the filing of a Notice of Appearance. Once this Notice is filed, the attorney has a legal and ethical obligation to effectively represent that client until he is relieved of that responsibility by the Court.

Bifurcated: Bifurcation means that a matter has been divided into more than one part, or partitioned. For example, in a complicated matter, the parties may request, or the judge may decide, to separate the presentation of evidence into more than one hearing. Bifurcation is often seen in personal injury litigation. In such cases, the issues of liability and damages are heard separately. Often this separation of issues streamlines the presentation of evidence and can make the scheduling of witnesses a little easier for the parties.

Binding vs. Non-binding Arbitration: This is a term used to indicate finality. It is usually used in reference to a decision that has been made. When a party has made a decision that is final, irrevocable and non-appealable, it is referred to as binding. For purposes of the ADR program, arbitration proceedings are considered non-binding, which means that either litigant may appeal an arbitrator's decision to the trial court. The parties to an arbitration may stipulate that the arbitration be either binding or non-binding.

Breach: Breach is essentially a failure to perform a legally required duty. Breach is synonymous with "break". For example, when a party to a contract fails to do, or refrain from doing something that was promised in the contract, this is considered a breach of contract. That breach gives the aggrieved party (the "victim" of the breach) the right to sue to enforce the contract.

Caption:

CASA: An abbreviation for Court Appointed Special Advocate, usually a volunteer appointed by the court to represent the best interests of a child or impaired adult.

Complaint /Claim: A civil lawsuit usually begins with the plaintiff filing a pleading called a Complaint. There are very specific rules that determine the legal sufficiency of a Complaint. The complaint must contain allegations which establish the jurisdiction and venue of the Court, the conduct (acts or omissions) of the defendant(s) which resulted in damage or harm to the plaintiff and a prayer for relief, usually money damages. The normal responsive pleading to the Complaint is an Answer, (see above).

Consideration: As used in the law, consideration means value. This term is usually found in the context of contract litigation. The promises that the contracting parties exchange are deemed to have value. In order for the contractual promises to be legally enforceable, they must be supported by some value. Interestingly, it is a basic premise of the law that courts will not determine the sufficiency of the consideration. In other words, as long as the promises that the contracting parties made to each other are supported by some "value," a court will not get involved in any determination of whether enough value has been exchanged.

Counterclaim: After a defendant in a civil lawsuit has been served with a Complaint, the Defendant's Answer may contain a Counterclaim. This is a claim against the plaintiff for relief for harm caused by the plaintiff. Essentially the filing of an Answer and Counterclaim creates another lawsuit where the original plaintiff becomes a defendant, referred to as a Counter-Defendant. The same rules of legal sufficiency that govern the filing of a Complaint also apply to a Counterclaim. Once the plaintiff has been served with the Answer and Counterclaim, he is required to file a responsive pleading, usually called an Answer or Reply to Counterclaim. A Counterclaim may be either compulsory or permissive, depending on whether or not the acts or omissions stated in the Counterclaim are connected or related to the acts or omissions stated in the original Complaint.

Cross-claim: When a civil lawsuit involves more than one defendant, the defendants may find themselves in adversary positions to each other. In other words, the plaintiff has a cause of action and claim for damages against defendants A and B. Defendant B may believe that, if he is found liable to the plaintiff, that the other defendant, defendant A, is also liable to him (defendant B). Defendant B then files a Cross-claim against defendant A. Defendant B then becomes a Cross-Claimant and defendant A then becomes a Cross-defendant and must respond to the Cross-claim by filing an Answer or Reply to the Cross-claim.

Default: In a civil lawsuit there are strict deadlines imposed by statute or court rules for a party to file a responsive pleading. If that party fails to file the required responsive pleading, then he loses by default. For example, if a defendant is effectively served with a Complaint and Summons, but fails to file an Answer within the time permitted by law, the plaintiff begins the default process by filing a request with the Court that alleges that the time to file an answer has elapsed and asking the Court to enter Judgment for the relief requested in the Complaint.

Default hearing: The hearing scheduled for cases in which the defendant has failed to appear or answer.

Default Judgment: When a Judgment is awarded to the plaintiff because the defendant has failed to appear or Answer.

De Novo: This is a Latin term that indicates that a proceeding, usually a hearing or trial, will be conducted again, as if there had been no previous hearing or trial. Just think of any matter that is "de novo" as a do-over.

Disclosure: The court Rules, both civil and criminal, require that the parties exchange information relevant to the case. The old days of trial by ambush (remember the Perry Mason show?) are over and the court Rules are designed to ensure that both sides are in possession of all the necessary information to be able to try their case and to promote a just outcome. Failure to comply with the disclosure requirements usually results in sanctions. Those sanctions can be as minor as the imposition of fines or fees made necessary to secure compliance with the disclosure rules, or they can be as severe as the entry of judgment against the non-complying party.

Execution of Judgment: After litigation has concluded and a judgment has been entered by the court, the prevailing party will need to take the necessary steps to obtain the relief that is ordered in the judgment. For example, after a contract dispute has been concluded and the court has entered a judgment in favor of the plaintiff for a sum certain, the defendant is not likely to just hand over the amount of money ordered by the court. Post-judgment proceedings are usually necessary to give effect to the judgment of the court. Some of the ways the plaintiff can execute, or satisfy, his judgment include garnishment of wages, or filing a lien on property of the defendant.

Garnish / garnishment: When a party is successful in a civil lawsuit, whether as the plaintiff, the counterclaimant, or cross-claimant, and is granted a formal judgment by the Court and the judgment is for money damages, the prevailing party may pursue the remedy of Garnishment. In order for the prevailing party to avail himself of this remedy, the losing party must be gainfully employed and be receiving a periodic paycheck. If the prevailing party complies with all legal requirements for a garnishment, the Court issues an Order to the losing party's employer which obligates the employer to pay a portion of the losing party's wages to the prevailing party. The amount of the wages which may be paid to the prevailing party is controlled by statute, and takes into consideration the losing party's income and expenses.

Injunctive relief: A civil litigant can obtain a court order which prohibits a person or group from carrying out a given action, or commands that a given action be done. Injunctive relief can be granted by the court at the conclusion of a civil case, or it can be granted by the court during the pendency of a lawsuit, if appropriate. Intermediate or interlocutory injunctions usually require that very strict procedural rules be observed and the burden of proof is normally higher. For example, a party seeking a Temporary Restraining Order, especially if the request is made "ex-parte" (without notice to the other side), must satisfy the court that unless the Temporary Restraining Order is granted, the Petitioner will suffer irreparable harm. Even if this Temporary Order is granted, the court must hold a hearing within 10 days to determine whether the Order should have been granted and whether or not the Order should continue with or without modification.

Judgment: A civil lawsuit concludes with the entry of a formal Order signed by the Judge. If the Plaintiff is the prevailing party, the Judgment usually grants all or part of the relief sought by the Plaintiff, including money damages. If the Defendant is the prevailing party, the Judgment usually orders the dismissal of the lawsuit and that the Plaintiff is not granted relief. The entry of the Judgment triggers the ability of the losing party to seek appellate review.

Judgment Creditor /Debtor: The party who owes a debt is the debtor and the party to whom a debt is owed is the creditor. When litigation has concluded and one party is ordered to pay any sum of money to the other party, then the party who is entitled to collect the amount ordered in the judgment is the Judgment Creditor, and the party who is required to pay the amount ordered is the Judgment Debtor.

JVOC: An abbreviation for Juvenile Victim-Offender Conferencing, an alternative to traditional trial process for juveniles involved in minor criminal activity.

Judicial days: Judicial days are normally "business days" or the days when the Court is required to conduct business. Usually excluded are Saturdays, Sundays and national holidays. However, see Rule 77 of the Rules of Civil Procedure, which states that "The Superior Court shall be deemed always open for the purpose of filing any pleading or other proper paper, of issuing and returning mesne and final process, and of making and directing interlocutory motions, orders, and rules". Occasionally the Court will conduct business on an excluded day, like Saturday, for good cause. Refer to Rule 6 of the Rules of Civil Procedure if you have a question about what days are included or excluded in the computation of time for filing required or permitted pleadings. Rule 6 excludes Saturdays, Sundays and national holidays from the time required or permitted for filing if that time is less than 11 days, but includes Saturdays, Sundays and national holidays if the time required or permitted is 11 days or more.

Levy:

Motion: A motion is a pleading requesting some form of relief during the pendency of a case. Motions are filed in both civil and criminal cases. When a motion is filed the opposing party must be served and given an opportunity to respond (object). If the opposing party does not respond or object, the Court normally grants the motion, although the Court is not required to do so. If the opposing party does object, the Court will normally conduct a hearing to allow the presentation of evidence and argument prior to making a decision.

Notice: As used in the legal sense, notice is usually notification, in writing, to an opposing party of some legal action, either proposed or accomplished. Some examples of the kinds of notices we usually see are; Notice of AppearanceNotice of Appeal and Notice of Hearing.

Pendency: When any legal matter is not yet completed, it is "pending". Pending simply means unfinished.

Petition: This is a legal form of pleading used to raise an issue to the court; a written request to the court for an order after notice. It may take many forms, but the ultimate goal is the issuance of an order requiring the parties to appear to litigate the issues identified in the petition.

Process Server: A person who is legally authorized to deliver court papers to a litigant or interested party in a court case. Process servers must be registered and licensed by the State. Among the kinds of papers they serve are Complaints, Answers and all kinds of pleadings. The Civil Division of the Sheriff's Office in each county is also authorized to serve process.

Real party:

Relief: When parties come before any court, they are required to present a valid cause of action and a prayer for relief. In civil litigation, a prayer for relief often takes the form of a request for money damages. When a money award is not sufficient to make the aggrieved party whole, relief can take other forms, such as injunctive relief.

Responsive pleading: Whenever a request is made for court action which will result in some adverse consequence to another person, that person is either required or permitted to file a responsive pleading. Such responsive pleadings can be Answers, Responses or Replies, including Objections. In order to be effective, any responsive pleading must be filed within the time permitted or required.

Satisfaction of Judgment: When a lawsuit has been completed and all relief ordered by the Court has been accomplished, the successful party files aSatisfaction of Judgment. Essentially this is a formal document which declares that the losing party has done all that was required by the Court.

Specific performance: In a civil contract lawsuit, the harm done to the plaintiff can usually be compensated by the payment of money damages. In some cases the harm done by the defendant(s) is so unique or unusual that the payment of money is not sufficient to make the plaintiff whole. A request for specific performance is a prayer for relief that asks that the defendant be ordered to do exactly what he originally agreed to do in the contract. This is most often seen in contracts for the purchase and sale of real property. All too often the seller will sign a sales contract which specifies a certain price. Prior to closing, the seller receives a higher offer from another prospective purchaser and then notifies the first purchaser that he will not sell at the agreed upon price. In this type of case, the law recognizes that no two parcels of real property are exactly alike, and that the original purchaser is entitled to demand that the contract be honored (specifically performed). The determination that the subject of the contract is unique is not limited to real property. For example, a buyer and seller could enter into a contract for the sale of a very valuable coin collection which contained very rare, one-of-a-kind coins. Same scenario, seller finds another buyer who is willing to pay more and refuses to sell pursuant to the original contract. The fact that the coin collection is rare and irreplaceable makes the imposition of specific performance appropriate. The Court then orders the breaching party to do what he agreed to do.

Stay execution:

Stipulation: A stipulation is basically an agreement. In both civil and criminal cases, the parties often agree that certain facts are true and need not be litigated. In such a case, the parties will advise the trier of fact (the Judge or arbitrator) that they stipulate to those facts. The stipulated facts are deemed to be true and both parties are bound by the stipulation. A stipulation does not have to be in writing, but a prudent party or attorney will reduce any stipulation to writing or at least announce it in open court for the record so that there will be no question about the stipulation.

Summary Judgment:

Summons: A summons is a legal document that requires the person served to appear before the court, or to file a responsive pleading. A summons is usually served together with a Complaint on a Defendant in a civil lawsuit. Summonses are also issued in criminal cases. Those of us who have been unfortunate enough to receive a speeding ticket are familiar with the piece of paper the police officer asks us to sign. It is a civil traffic complaint and summons and tells us when we have to be in court.

Supersedeas bond: If the losing party in a civil case wishes to stay execution of the judgment while he pursues an appeal, he will be required to post a supersedeas bond. The amount of this bond is determined by the Court, and usually is in an amount that will guarantee that the non-appealing party will be able to collect his judgment and court costs if the appeal is not successful. See Rule 7 Rules of Civil Appellate Procedure.

Third-party claim: After a civil lawsuit has been filed, and prior to the trial, the discovery process often reveals that someone not named in the pleadings may be responsible for some or all of the damages caused. In such a case one of the parties will seek leave of the court to add that other person or persons, in order to achieve a just result.

Waive: A waiver is the relinquishment of a right. For example, a defendant in a criminal case can enter into a plea agreement with the State. By pleading guilty, the defendant waives several of his constitutional rights; the right to a trial by jury, the right to be presumed not guilty until the State proves his guilt beyond a reasonable doubt, etc. In a civil case, the parties may waive a jury trial and elect to try the case to the judge. In order to be effective, a waiver must usually be knowing, intelligent and voluntary. Simply put, this means that someone who waives any right must understand that right and the consequences of relinquishing that right. The waiver must be voluntary and not the product of coercion or duress.

With Prejudice / Without Prejudice: These terms are usually used when a court has decided that it is appropriate to dismiss a matter. If the order of dismissal is entered with prejudice, it means that the matter is over and cannot be pursued any further. If the order of dismissal is entered without prejudice, it usually means that some legal defect exists which prevents the matter from being concluded, but if, and when, the legal defect is cured, the matter may be re-filed and pursued. The only way a matter may continue to be pursued after an order of dismissal has been entered with prejudice, is to seek appellate relief.

Writ: Writs are formal written court orders that require or prohibit the performance of some action. Although the term "writ" is not used that often these days, there are still some writs that are often seen. Probably the most recognized among them is the Writ of Habeas Corpus, which is a court order requiring that the body of a person be brought before the court to determine the legality of his custodial status. This writ is still often used when a criminal defendant has exhausted his state appeal rights, or the time has run to pursue any state appeal remedies, a Petition for Writ of Habeas Corpus is filed in Federal District Court. Some of the other writs include the Writ of Mandamus (ordering that something be done) and the Writ of Prohibition (prohibiting some action.)

 

GTranslate