D
A flexible term for the
reparation in money which is allowed by law on account of damage. They may be
general, such as necessarily and by implication of law arise from the act
complained of; or special, such as under the peculiar circumstances of the case
arise from the act complained of, but are not implied by law; compensatory,
sufficient in amount to cover the loss actually sustained; exemplary,punitive,
or vindictive, when in excess of the loss sustained and allowed as a punishment for torts committed with fraud,
actual malice, or violence; nominal, when the act was wrong, but the loss sustained
was trifling; substantial, when the loss was serious; liquidated, fixed by
agreement of the parties, as when it is agreed beforehand what amount one shall
receive in case of a breach of contract by the other.
Lat., "anew; afresh."
A trial de novo is a trial which is held for a second time, as if there had
been no former decision.
A determination or decision by a court, which states the
rights of the parties to a dispute, but does not order or coerce any
performance relative to those rights. The procedural and substantive conditions
of the usual action must be present. The relief which the court grants is the
distinguishing characteristic.
A flexible term for the uttering
of spoken or written words concerning someone, which tend to injure that
person's reputation and for which an action for damages may be brought. (2) To
create liability for defamation there must be (a) a false and defamatory
statement concerning another, (b) an unprivileged publication to a third party,
(c) fault amounting at least to negligence on the part of the publisher, and
(d) either actionability of the statement irrespective of special harm or the
existence of special harm caused by the publication. Restatement (Second) of
torts ss 558. See also Libel; Slander.
A flexible term for the omission
of that which a person ought to do. (2) The failure to plead or otherwise
defend an action, by a party against whom a judgment for affirmative relief is
sought.
A person against whom an action
is brought, a warrant is issued or an indictment is found.
A person authorized to act for
another. (2) A person elected to represent others in a deliberative assembly,
such as a political convention.
A written record of oral
testimony, in the form of questions and answers, made before a public officer,
for use in a lawsuit. They are used for
the purpose of discovery of information, or for the purpose of being read as
evidence at a trial, or for both purposes.
Lat., a statement by a judge
concerning a point of law which is not necessary for the decision of the case
in which it is stated. Usually, dictum is not as persuasive as its opposite,
i.e., holding (q.v.).
The initial questioning of a
witness by the party who calls him.
A determination by a jury made
at the direction of the court, in cases where there has been a failure of
evidence, an overwhelming weight of the evidence, or where the law, as applied
to the facts, is for one of the parties.
A flexible term that connotes
finality, e.g., cancellation, rescission, or nullification. (2) The court order
by which a person held to answer a criminal charge is set free (3) The court
order by which a jury is relieved from further consideration of a case.
A pliant method by which the
opposing parties to a lawsuit may obtain full and exact factual information
concerning the entire area of their controversy, via pretrial depositions,
interrogations, requests for admissions, inspection of books and documents,
physical and mental examinations and
inspection of land or other property. The purpose of these pretrial procedures
is to disclose the genuine points of factual dispute and facilitate adequate
preparation for trial. Either party may compel the other party to disclose the
relevant facts that are in his possession, prior to the trail. Fed. R. Civ. P.
26&-37.
The use of private independent
judgment; the authority of a trail court which is not controlled by inflexible
rules, but can be exercised one way or the other as the trial judge believes to
be best in the circumstances. It is subject to review, however, if it is
abused. (2) Ability to distinguish between good and evil.
A principle of law, often
developed through court decisions; a precept or rule.
A person to whom a gift is made
or a power of appointment is given.
Imprisonment; compulsion;
coercion. (2) Threats of injury or imprisonment.
