The Lingo Of Litigation
The legal profession uses all kinds of words and phrases that are quite mysterious to most people who have not been involved in the process. I will attempt to demystify some of these words and concepts:
Legal action or proceeding:
These are the words used to describe a dispute that is referred to the courts for resolution. Every action or proceeding is assigned a number when it is filed with a court. Once an action or proceeding is filed it is often referred to as a Case.
Statement of Claim/Notice of Claim, Petition:
These are all various methods of starting a legal action and are often referred to as initiating documents. These documents succinctly state the facts and legal principles supporting the claim.
Ironically there is no fun involved in being a party. A party is either the person initiating the action or defending or responding to the action. Parties are referred to by various other descriptions. Initiators of legal proceedings can be referred to as Plaintiffs, Petitioners, Claimants or Complainants depending on the type of proceeding. Defenders of legal proceedings are usually referred to as Defendants or Respondents. If a Defendant believes that there is another party who is responsible for the claim against him he can legally "point his finger" to that other person and make him a party to the action. This person would be referred to as a Third-Party.
All initiating documents need to be delivered to the other parties named. This usually requires the documents being personally handed to the party, although service can sometimes be accomplished by registered mail, email or fax. When it is impractical or burdensome to achieve service because a person can’t be found, a court can direct “substitutional service” by way of publication, posting on a door, or service on a family member.
Statement of Defense/Response:
A Party who has been served with an initiating document, must, within a certain time, file a response with the court, which, in an uncharacteristically plain fashion, is called a Response. The initiating and responding documents are rather quaintly collectively referred to as the “Pleadings”.
This Latin word describes a document frequently used in court containing sworn statement of facts. "Sworn" in this context means that the document is signed in the presence of a person authorized to take sworn statements (this is usually a lawyer or notary). It does not mean that the deponent (the person signing the affidavit) curses at the lawyer or notary. That is to be discouraged.
Chambers and Trials
Cases are resolved either by abandonment, settlement, or determination by the court. The court must usually hear evidence before determining a case. The evidence is either oral or written by way of an affidavit. A case that is decided in whole or in part relying on affidavits and argument is heard in Chambers. Chambers is not a judge’s office but rather refers to a small courtroom, which like most courtrooms, is open to the public for most cases.
Stay tuned for my next installment in which the terms Costs, Discoveries, Arbitration, and Mediation will be demystified. I will also explain the various ways to (properly) address a judge.
Alf Kempf is the Chair of Pushor Mitchell’s Employment Law Group. He can be reached by phone at (250) 869-1215, or by email at email@example.com.