Some Terms of the Art
LIKE ALL FIELDS, THE LAW HAS DEVELOPED ITS own phrases that insiders use without a second thought, sometimes forgetting how strange and confusing they sound to the uninitiated. However, the legal tongue can also be fun. Here are a few common terms that, when used appropriately, will give your fiction a sense of authority and realism.
Some common terms and phrases defined
Dismissed with—or without—prejudice: When a civil or criminal complaint is dismissed, the order of dismissal expressly states that dismissal is “with prejudice” or “without prejudice.”
“With prejudice” means the plaintiff or prosecution has no right to refile the case. In civil litigation, that most often occurs after the parties settle and sign releases resolving all disputes between them. The lawyers then sign a stipulation for dismissal, and the judge enters an order. In a criminal case, the prosecution rarely dismisses charges with prejudice.
“Without prejudice” means the claims can be refiled. In either a civil or criminal case, that might happen when it’s clear there’s insufficient evidence against the defendant right now, but discovery and investigation are continuing and the plaintiff or prosecutor wants to protect the right to refile if stronger evidence surfaces, within the time limits allowed by law.
Double indemnity: A provision in a life insurance policy that the insurance company will pay double the policy value or “indemnity” if the named insured dies in an accident. Also called an accidental death clause, the provision might be stated in the policy itself or be added by a “rider,” for a premium. Accidental deaths are not common, so coverage is relatively cheap. Why buy it? It’s a way to increase—double—coverage without doubling the premium, and it can be advantageous to a breadwinner with a risky occupation or hobby.
If the cause of death is unclear, particularly if it looks like suicide or murder, the insurance company may refuse to pay until an autopsy or investigation is complete. Either the insurance company or the policy beneficiaries may file a civil lawsuit to determine whether benefits should be paid.
And, of course, Double Indemnity is the title of the terrific 1944 movie starring Barbara Stanwyck as the woman who lures life insurance salesman Fred MacMurray into helping stage her husband’s death in a fall from a train. The plot unravels as insurance investigator Edward G. Robinson gets closer, and MacMurray turns the tables on Stanwyck. It’s pure noir—Raymond Chandler and director Billy Wilder wrote the screen play, based on James M. Cain’s novel—and great fun.
Double jeopardy: The principle that a person may not be tried twice for the same crime, based on a clause in the Fifth Amendment to the United States Constitution:
… nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb;….
Jeopardy here means risk. The bottom line is that a person who’s been tried and acquitted may not be tried again on the same charges.
Note that the ban only arises when there is a “final judgment.” If a mistrial is declared, e.g., for misconduct by the prosecutor or jurors, or the jury is “hung,” that is, unable to agree, the accused can be retried because no judgment acquitting or convicting him was entered. The second trial is a continuation of the original proceedings. For the same reason, double jeopardy is not an issue if a conviction is reversed on appeal and the case is “remanded” (sent back) for a new trial. A judgment is not final until any appeals are completed.
The bottom line is that a person who’s been tried and acquitted may not be tried again on the same charges.
So what happens if a person is accused, tried, and acquitted, and later, clear evidence of his guilt surfaces? There are no second bites. A prosecutor’s only option is to bring other charges for other crimes. If the defendant was acquitted of murder, does the new evidence establish conspiracy or kidnaping? Did a crime spree cross state lines, allowing prosecution for other crimes in another state? If the first trial was in state court for assault, charge him in federal court with civil rights violations, as with the Los Angeles police officers who beat Rodney King. Cases arising from the Civil Rights Movement, where initial charges were dropped during trial or acquittals resulted from racial bias, have been successfully revived by bringing different charges.
A strange case from Illinois, Aleman v. Judges of the Circuit Court (1998), shows the limits of double jeopardy protection. Harry Aleman was tried in 1977 for the 1972 murder of William Logan. Aleman waived his right to a jury, bribed the judge, and was acquitted. In 1993, two men in the Federal Witness Protection Program—a former Chicago cop and a former lawyer—testified that Aleman killed Logan and another man, and bribed the judge with $10,000. Aleman was a Mafia tax collector, and the victims had refused to pay street taxes for protection of their illegal bookmaking operations. Based on this testimony and other evidence, Illinois indicted Aleman for both murders. Aleman claimed he could not be retried on Logan’s murder based on double jeopardy. The courts rejected his argument, holding that the bribery made his first trial a sham. Because the trial was fixed, Aleman had never been “in jeopardy.” There had never been a risk of conviction, so the Fifth Amendment protection did not apply.
On a side note, the former lawyer testified that, during trial, the judge learned that an eyewitness had also been bribed with $10,000, and demanded more money, with no luck. In 1989, after an FBI agent informed the then-retired judge that the lawyer had become an informant and given the FBI a recording of their conversation discussing the bribery, the judge shot and killed himself.
Writers of historicals should take note that the Fifth Amendment guarantee against double jeopardy was not extended to state courts until 1969, although your story state’s constitution may have provided the same protection.
Habeas corpus: This Latin phrase (HAY-bee-us KOR-pus) means “bring me the body,” and it is the process allowing a person held by the government to challenge the legality of his or her custody. The right to habeas corpus is an important check on governmental power. It is guaranteed by the United States Constitution, Art. I, Sect. 9:
The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.
Historically termed “The Great Writ,” habeas originated in English common law and arose from the rights to personal freedom recognized in the Magna Carta (1215). Parliament adopted the Habeas Corpus Act in 1679. President Lincoln suspended habeas during the Civil War, in order to permit the detention of rebel soldiers.
Habeas is commonly used to assert constitutional violations at trial, such as inadequate counsel or violation of the right to due process. Some states allow habeas challenges when bail is denied, if the denial cannot be appealed. Prisoners use it to challenge denial of good time, loss of jailhouse privileges, or lack of access to medical treatment, and in some extradition proceedings.
Habeas is used to challenge detention where there has been no criminal conviction and sentence, or to challenge the physical conditions of detention. It may not be used to attack the validity of an indictment, conviction, or sentence, unless constitutional issues are raised.
Habeas may also be used in civil proceedings involving child custody, though this is rare.
The procedure generally goes something like this:
• A person in custody files a petition seeking a writ—which is a court order commanding a government official to take specific action.
• The court reviews the petition for legal sufficiency, that is, whether the restraint would be illegal if the facts alleged are proven.
• If so, the writ is issued and the custodian must bring the petitioner to court for a hearing on the facts.
• The judge determines whether detention is illegal or conditions are unreasonable.
• The judge may order release or modify any restrictions on custody.
There may be statutory time limits for filing petitions. Abuses such as raising the same issues repeatedly have led some courts to limit the exercise of the right.
A state prison inmate participated in a demonstration and disobeyed direct orders from corrections officers. Restrictions were imposed as discipline. He petitioned for habeas corpus, seeking to lift the restrictions. Although he got his hearing, relief was denied because the restrictions were not “cruel and unusual” under the circumstances and officials had latitude in policies used to preserve order and discipline among inmates.
Habeas corpus petitions were filed in two much-publicized cases arising after 9/11. Both ultimately reached the U.S. Supreme Court. In Hamdi v. Rumsfield (2004), an American citizen taken into custody in Afghanistan challenged his detention as an “enemy combatant.” The Court held that he was denied due process of the law when he was not told the grounds for his detention or given a fair opportunity to challenge it. Similarly, in Rasul v. Bush (2004), the Court held that non-citizens from countries not at war with the United States have the right to challenge their detention and assert constitutional violations through petitions for habeas corpus.
Habeas has also been sought by reporters jailed for contempt of court for refusing to disclose their sources to law enforcement or other government officials.
Habeas has also been sought by reporters jailed for contempt of court for refusing to disclose their sources to law enforcement or other government officials.
Negligence and breach of duty: In a civil case, negligence simply means failure to use reasonable care, by acts or omissions. What is “reasonable care”? It’s what an ordinarily prudent person would do under the circumstances. For example, a person may have an obligation to act in a particular way—such as the duty a driver owes his passenger to drive safely. If he fails to do so, he “breaches” his duty.
Criminal negligence, appropriately, demands proof of a higher standard. It occurs when a person consciously disregards a risk that certain things will happen—for example, if he pulls kids on an inner tube behind his truck on an icy street, the tube will hit a bump and a child will fall off and be seriously injured. Disregard for the risk becomes criminal when, by the nature of risk, disregarding it is a “gross deviation” from the standard of conduct that a reasonable person would observe in that situation. In other words, it’s far greater than lack of ordinary care, the standard for civil negligence.
Pro bono: Short for pro bono publico, “for the public good,” meaning free or reduced-fee legal services. Most state bars encourage lawyers to provide twenty to fifty hours a year of pro bono legal services to low-income people or groups that serve them. Some large law firms keep pro bono lawyers on staff, or give lawyers leave to handle significant cases pro bono. For example, several firms provided lawyers and staff assistance to work for the release of Guantanamo Bay detainees. Others assist projects that aid applicants for asylum or prisoners seeking exoneration for wrongful convictions. Pro bono work also includes activities to improve the legal system and profession and to educate the public.
Some large law firms keep pro bono lawyers on staff, or give lawyers leave to handle significant cases pro bono.
Pro se or pro per: Meaning “for one’s self,” or representing yourself. Civil plaintiffs and civil or criminal defendants can always represent themselves. Only lawyers can represent other people in judicial proceedings, although some tribal courts allow trained advocates in certain types of cases. Alternate terms are pro per and in propria persona. Check the usage in your story state.
Why do it? In civil cases, the motive is usually lack of money, or unwillingness to part with it. Often, a pro se plaintiff has not been able to find a lawyer who believes in the case, and the cause it espouses, as much as he does. And, sometimes, a client chooses to go it alone when he disagrees with his lawyer’s advice, or thinks he’s smarter.
In civil cases with a low dollar value, as in small claims court, self-representation makes sense. Judges in those courts are used to dealing with the parties directly. Think of Judge Judy’s courtroom, without the cameras or melodrama.
In criminal cases, a defendant who can’t afford a lawyer is entitled to a public defender. But some defendants choose to represent themselves for philosophical reasons. In the late 1980s and 1990s, anti-government folks and militia members like “the Freemen” frequently chose to represent themselves, grinding their axes by refusing to cooperate with a system they opposed.
However, in higher value disputes and in criminal cases, self-representation can be a minefield. The biggest drawback is that lay people often don’t understand important legal points or some of the law’s finer distinctions. As a result, making cogent arguments can be tough. Pro se parties get more emotional than lawyers—a good potential source of drama for writers. Imagine a custody dispute where a father pleading for a change of custody makes his own case, or a child welfare proceeding where a pro se mother argues that she’s conquered her drug addiction and is now rehabilitated and should get her children back.
Widespread cutbacks in county law libraries make research difficult, and official on-line sources can be hard to navigate. Non-official on-line sources abound, but are not always reliable. Some sources aimed at adherents of a particular philosophy perpetuate misinformation that resurfaces over and over. Persons representing themselves often don’t recognize the differences between states’ laws. They may not understand that a 1937 Vermont decision interpreting a then-current statute is virtually meaningless to a modern day court in, say, California or Florida, because the law has evolved and state statutes and precedents differ. Many state bars, law libraries, and court systems now provide paid staff who help guide pro se litigants to the resources they need, or provide forms and other basic information online.
Pro se briefs tend to be ramble, but they can be entertaining. My personal favorite remains a brief submitted to the Washington State Court of Appeals while I clerked there. The case involved an easement and boundary line dispute. The only authorities cited were definitions from an antiquated edition of Black’s Law Dictionary and the Bible. Of course, Ezekiel may be an authoritative source, but before a different judge.
Most judges give pro se parties some leeway and guidance with procedural aspects of trial. For example, the judge may point out that a pro se defendant is asking his own witness impermissible leading questions and suggest another way to phrase them. However, the judge is less likely to warn against a line of questioning or suggest a topic the defendant hadn’t considered. Judges may suggest that the case may be more complicated than the pro se party thinks and that he or she really ought to consult with a lawyer; judges often continue (that is, postpone or reschedule) a hearing to give a party time to find representation.
However, no judge will ever tolerate a pro se party obstructing the proceedings. If your fictional pro se litigant disobeys a judge’s order and asks prohibited questions, raises his voice once too often, or blatantly violates decorum, a warning is likely, with a threat of contempt.
Most pro se defendants are well-behaved, though nervous and worried about missteps. Lawyers should take extra care communicating with pro se parties, and most do, but the seriously hard-nosed or ill-intentioned could take unfair advantage of an unrepresented opponent. In a suit that a pro se backhoe operator brought against our client, a homeowner who refused to pay in full a bill triple the written estimate, I sat in the hallway outside the courtroom after a hearing and explained the details of the judge’s ruling to the plaintiff. I wanted him to understand why he lost, and not blame it on “a stacked system” or say “the defendant had a slick lawyer.” The next time I saw him in town, in a coffee shop, he insisted on buying my coffee as thanks.
In felonies, especially death penalty cases, courts often appoint experienced defense counsel to assist the pro se defendant. In U.S. v. Moussaoui (aka the Twentieth Hijacker), the defendant initially accepted defense at public expense, then fired his attorneys. The judge found Moussaoui competent to represent himself—he was mentally competent and of sufficient intelligence, understanding, and language skills—and appointed his former counsel to assist him. The lawyers could help him outside the courtroom with writing briefs and planning arguments and witness examination, but their role inside the courtroom was strictly limited. They sat behind him, not at counsel table. Hence the term “standby counsel.”
Ted Kaczynski, the Unabomber, also accepted public defense initially, but fired his counsel when they insisted on presenting an insanity defense. The judge found that he had the requisite intelligence and understanding, but based on several psychiatric exams, was not mentally competent to represent himself. The judge’s refusal to allow Kaczynski to fire his counsel and represent himself led directly to his agreement to plead guilty in exchange for not receiving the death penalty.
You’ve heard the old saw “a lawyer who represents himself has a fool for a client.” Does the same hold true for a non-lawyer? Your story, your call. But what possibilities!
Res ipsa loquitur: Pronounced “race” or “rez” “IP-suh LO-kwit-ur,” meaning “the thing speaks for itself.” This is a concept in civil claims where there is no evidence of negligence (a breach of the standard of care) but negligence can be inferred because the event ordinarily does not occur without negligence and other causes have been ruled out.
A typical example: A car flies off the road and hits a power pole, killing the passenger and injuring the driver so badly that he can’t remember the accident. The passenger’s widow sues. There is no evidence of physical defects in the car that would have caused it to veer off the road. The only other explanation is negligence—e.g., the driver taking his eyes off the road or speeding and missing a curve—which cannot be proven without witnesses or physical evidence. That the accident happened speaks for itself, and establishes negligence. On the other hand, if the front bumper was bloody and troopers found a freshly killed buck in the road, there is evidence of the cause of the accident. Res ipsa would not apply, and the jury would be asked to decide whether the driver’s apparent loss of control while swerving to avoid a deer was negligence.
Res judicata: Pronounced “race” or “rez” “ju-duh-KAH-ta,” the phrase means “a thing adjudged.” Once a matter has been decided, it cannot be litigated again. A person who has had a full opportunity to litigate an issue, whether he took the opportunity or not, may not raise the issue in a separate case against the same parties, hoping a second bite of the apple will taste better. The rule protects persons who have been sued once from repeated suits and multiple judgments over the same matter. The rule also avoids an unnecessary waste of judicial resources, sometimes described as “promoting judicial economy.”
The doctrine could be used in a mystery or crime story involving an old case that’s reopened after a person has already been held liable for monetary damages. The rule has some technical limits, so check further before letting your fictional characters make a career out of a lawsuit, as in Dickens’ Bleak House.
When a law school or bar association sponsors a 10K run, it’s often called Res Judicata. Who says lawyers don’t have a sense of humor?
Voir dire: Pronounced “vwahr deer” or “vwahr dyer,” the phrase means “to see and speak.” The first phase of jury selection, voir dire is the process of questioning potential jurors. Lawyers meld the responses with other information and their own gut reactions to decide whether to challenge or accept a potential juror.
Voir dire is also the jurors’ first glimpse of the facts of a case. The judge or lawyers introduce the case with a brief summary, then start their questions, which reveal some evidence and issues. A skillful lawyer selects the facts given to subtly influence the jury, using the doctrine of primacy, the tendency to remember and believe what we heard first.
Voir dire has two core purposes:
• to root out prejudgments that might prevent a fair hearing; and
• to detect beliefs and perspectives that might affect how jurors view the evidence.
A skillful lawyer selects the facts given to subtly influence the jury, using the doctrine of primacy, the tendency to remember and believe what we heard first.
Naturally, each side wants to seat jurors likely to sympathize with their position and tailors questions accordingly. In a vehicular homicide case fueled by alcohol, both prosecutor and defender want to know if potential jurors have been convicted of alcohol-related driving offenses, or have lost friends or relatives to drunk drivers, but they phrase their questions differently. Prosecutors look for a sense of indignation and anger. Defense lawyers often remind jurors of reasonable doubt and the presumption of innocence. Either side may engage jurors in a conversation about beliefs and attitudes.
Jurors can be “challenged” for cause, meaning a lawyer asks the judge to determine that a juror is biased and should be dismissed. Each side also gets several “peremptory” challenges—how many varies by state—that can be used to dismiss a juror without explanation. Under Batson v. Kentucky (1986), peremptory challenges may not be used to dismiss a juror solely because of race.
TIP: Lawyers test their arguments by viewing them from the other side. Show your prosecutor speculating about the defense perspective of the facts, or vice versa.
In some courts, potential jurors are sent questionnaires with their summons, asking general information such as age, occupation, past jury experience, and whether they’ve ever been a party to a case. Customized questionnaires may be sent for complex or lengthy trials, such as a product liability suit where potential jurors were asked about their experience with plumbing failures and insurance claims, or a class action suit involving an employee stock ownership plan, where jurors were questioned in advance about their knowledge of the much-publicized dispute.
In recent years, some judges, especially in federal court, have taken more control of voir dire. Judges often ask general questions themselves, allowing lawyers to follow up on individual responses. The move is an attempt to control the length of trial and prevent invasive or wandering questions.
In many cases, voir dire is complete the first morning of trial. In complex cases, jury selection takes longer. Pretrial publicity affects the length of the process: The more attention a case receives, the more jurors will be called, and the more closely they will be questioned about their knowledge of the case. The goal is not to find jurors who know nothing about the case, but to find jurors who can keep an open mind until they’ve heard all the evidence and seen all the witnesses. And, if a trial is expected to be lengthy, alternate jurors are also selected.
Voir dire can be daunting to conduct, but fun to watch, and it is fascinating for a writer who wants to get the details right.
Note: Voir dire also refers to a short Q&A, conducted by the judge or counsel, to determine a witness’s competence to testify. For example, before a witness testifies about something she saw, opposing counsel may be allowed to ask foundation questions about where the witness was standing, the lighting, and her vision. Before a young child testifies, the judge may ask questions to determine his ability to understand and tell the truth.
Why is legal terminology sprinkled with Latin phrases?
For centuries in Europe, Latin was the language of scholarship. As other languages gained importance, succinct phrases not easily translated into the vernacular were left in Latin. Pronunciation differs depending on historical influences on a particular usage, so the same words or syllables may be said differently in classical Latin than in church Latin or the Latin used in law, medicine, and science—sometimes called Anglo-Latin because it reflects the influence of English pronunciation over time.
Plus, it’s cool.
Illegitimi non carborundum—don’t let the bastards get you down.