It’s A Moo Point

In today’s post, we thought we would go over some commonly misunderstood legal terms.  The idea developed after re-watching the series Friends with our teenage daughter.   In Season 7, Episode 8, Joey misunderstands the term “moot” when discussing Rachel’s assistant and instead uses “moo” to great comedic effect.  Like many professions and jobs, the law uses some terms that don’t arise in everyday conversation so here are some of the terms most commonly Googled by Americans along with our explanations as to their meanings.

Let’s start with “moot”.  Joey’s understanding is fairly correct (“it doesn’t matter”).  Here is an example of how it might arise in the law.  Imagine that you are going through a divorce and your spouse takes the dog that had been yours before the marriage.  In the divorce proceedings, one of the things that you sue for is the return of the dog.  After being served with the divorce papers and consulting with a lawyer, your spouse returns the dog.   The issue of whether the court should order your spouse to return the dog is now a “moot point” because the dog has already been returned.  While other issues may remain in the case such as division of assets, child custody, etc., the dog issue is moot, which means the court will not rule or decide that issue.

Here are some other words that are frequently researched online:

1.  Affidavit – An affidavit is simply a written document setting for facts and/or opinions and signed under oath and notarized.  In some situations, lawyers can use the affidavit in lieu of having a witness come to testify.  For example, in civil litigation in the context of a motion for summary judgment, the Rules of Civil Procedure permits affidavits instead of live testimony or depositions.  Lawyers can also use affidavits to lock-in a witnesses testimony.  For example, in a trucking accident case, a lawyer may ask a witness to sign an affidavit about what they saw at the time of the accident.  This helps prevent the witness from changing his testimony or it can be used if the witnesses memory begins to dim due to the passage of time.
2. Class action – a lawsuit filed by an individual or a small group of people who seek to represent a much larger group.  For example, a hotel’s computer system is breached and thieves steal the identifies of the hotel guests.  One of the hotel guests can file a class action against the hotel seeking compensation for all of the guests who were involved in the data breach.
3. Deposition – This is simply a question and answer session under oath in the presence of a court reporter who records verbatim all that is said.  The parties to a lawsuit often participate in depositions but witnesses, experts and others can be subpoenaed for a deposition.  The deposition can then be used at trial either as substantive evidence, under certain circumstances, or for cross examination.
4. Tort – This is simply a general classification of certain types of lawsuits.  Injury and wrongful death cases of all types including medical malpractice, auto accidents, slip and falls, injuries caused by products, etc. are torts.  Other types of cases such as defamation, trespass, assault, conversion, etc. are also considered torts.   Think of it like this: there are all types of desserts ranging from ice cream to cookie to cake.  Likewise, there are all types of lawsuits that fall under the general category of Torts.
5. Appellate – After a trial and post-trial motions, if one side or the other is unhappy with the result, generally, they can appeal.   Appeals are filed in “appellate” courts, either the court of appeals or the supreme court.  The parties will be asked to file “appellate” briefs to assist the court in understanding the case.  Later, the court of appeals or the supreme court will issue an “appellate” decision.  As you can see, appellate is generally used to quickly help the reader or listener understand at what stage the proceeding is in i.e. on appeal.
6. Burden of Proof – this references who is responsible for proving a claim or defense.  For example, if you claim that someone defamed you, you have the burden of proving that they negligently or intentionally made an untrue statement to another person (either in writing or verbally) and it caused you damages such as being fired from your job.  On the other hand, if the person that you sue for defamation claims in their defense that the statement was actually true, then they have the burden of proof for that defense.  They must produce evidence to prove their statement was true.
7. Sanction – a sanction is generally some form of punishment administered by the court for improper behavior during litigation.  It can take many forms.  The court can fine a party, a lawyer or both for misconduct.  Or, for example, during a trial, the court can exclude certain evidence if proper protocols were not followed.  The court can also completely strike a party’s claim or defense if the misconduct is severe enough.

If you have more questions, we have answers.  Our experienced team of attorneys provides free, no-obligation consultations in any type of injury or death case.  All you have to do is give us a call at 615-742-4880.