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Damage

In order to prevail in any lawsuit brought in the courts of our American system, the party bringing the action must prove he suffered some loss or damage in addition to proving that the defendant being sued is liable, i.e., that the defendant is responsible for the legal cause of the plaintiff’s damage. Both liability and damages must be pleaded and then proved in every case by meeting the burden of proof.

De Novo

A Latin term applied typically to trials or hearings that begin from the start, i.e., re-presenting testimony and other evidence. A trial de novo is one that starts from the beginning, presenting all the evidence. An appellate review de novo is one wherein the appellate court agrees to hear evidence that was presented in the trial court (not normally done), perhaps because there was such an abuse of power or abuse of discretion by the trial judge that justice requires the appeals court to hear the entire story before rendering its opinion, since the truth was not permitted to come forth in the lower court.

Decedent

Person who has died, i.e., one who is deceased.

Decision

Any ruling by the court. It could be a final judgment or merely a ruling sustaining a via voce (spoken) motion at a hearing or trial.

Decriminalize

This is not so much a legal term as it is a term used by the media and, therefore, lacking legal specificity. The term is best understood in contrast to legalize (q.v.), a word having a similar but not exactly the same meaning. To decriminalize is to remove the criminal aspect from a previously unlawful behavior (e.g., the repeal of prohibition that allowed people to possess and enjoy alcoholic beverages early in the Twentieth Century) while retaining criminal penalties for related behavior outside legal limits established by the legislation that "decriminalized" the behavior. For example, possession of alcoholic beverages was decriminalized by repeal of prohibition. People (other than minors) are now free from criminal prosecution for possessing liquor, wine, or beer. At the same time, it remains a crime to manufacture alcoholic beverages in quantities greater than the maximum allowable limit set by the decriminalizing statutes. In most jurisdictions one may make home-brew beers or ales, ferment and bottle wine, but not operate a distillery to manufacture whiskey and sell it to his neighbors. See legalize.

Defamation

An actionable injury suffered by communication of lies in either speech or in print. See libel and slander.

Defendant

The defendant is that unlucky fellow who has been served with a summons and complaint, the person who must file some sort of defense or lose by default. How your case is handled from the very start is critical to success for, unlike the plaintiff who may have been planning his lawsuit for many months or even years, the defendant usually has a short time in which to respond to the complaint - in many jurisdictions the time allowed is only 20 days. If the defendant is unable to get the complaint dismissed or stricken, he may be required to file an answer stating whether he admits the allegations of the complaint or not. There may be more than one defendant. Each defendant is a party.

Defense

It’s often been said the best defense is a good offense, and nowhere is this more true than in a civil lawsuit. The plaintiff begins on the offense when he files his complaint. The defendant must then "defend" against the plaintiff’s action, and this he does best by turning the tables against the plaintiff, if he can. For example, as soon as the plaintiff files and serves his case, a wise defendant will attempt to have the complaint stricken or dismissed. He will seek to show the complaint is false or that it fails to state a cause of action worthy of the court’s attention and valuable time. All these actions constitute a defense that is on the offensive, i.e., actively opposing the plaintiff’s case rather than merely attempting to make excuses or otherwise to avoid its effect. Good civil defense attorneys know the best way to defend against a lawsuit is to destroy it if possible. Force the plaintiff to prove his facts. Make the plaintiff state the law he relies upon. Don’t just throw up road-blocks, fight back with every tool the law provides for getting at the truth! Take control of the case and stay in control. The smart defendant takes over the "driver’s seat" early in the case and stays there until the plaintiff gives up or is ruled against by the court’s final judgment. Put your legal rights to work! Bite back!

Demurrer

The demurrer motion is often misused as a motion to dismiss a claim, however technically it admits the claim while alleging the claim is irrelevant, immaterial, without basis. If you encounter this, and the demurrer is technically improper, a motion to strike the demurrer is in order

On the other hand, if the claim does fail to allege facts or law relevant to the issues before the court, or fails to state sufficient facts to support a valid cause of action, or otherwise is improper in some regard, the proper thing is to address the demurrer by filing an amended claim correcting the problem.

Do not to ignore it, for it will not go away of its own accord.

Depose

Strictly speaking, the word means to "make come down" or to "remove from another place".

The term is sometimes used to describe the process by which kings and other rulers are removed from power and, in this sense, to depose a person in the scope of a civil lawsuit is to remove that person from the place of comfort and repose he previously occupied, to make him liable to the court’ penalties for perjury by prescribing the oath, and by asking him questions (whether or not he might care to answer willingly) pertaining to pretty much any matter you wish to inquire into, so long as the questions are reasonably calculated to lead to the discovery of admissible evidence.

Questions may be asked of deponents that could not be asked of a witness at trial, because the rules are looser with regard to taking depositions. The scope of examination at a deposition may inquire into facts that would be beyond the scope of admissible evidence at trial (i.e., a deposition may inquire into facts that could not be presented at trial) so long as the questions are reasonably calculated to lead to discovery of evidence that would be admissible at trial.

The deposition is a powerful tool for getting at the truth.

It can also be misused. It is improper to depose another merely for the purpose of harassing him or her; such actions before civil courts on this planet generally make the bad actor liable to court penalties called sanctions.

The act of deposing is carried out at a deposition, where an officer of the state, duly authorized to administer oaths and take acknowledgments by law, is employed to record every word that is said (i.e., verbatim) and to transcribe same into printed pages called deposition transcripts to which the officer (a notary or official court reporter) affixes his or her sworn affidavit that the words printed in the transcript are a true and accurate recording of all that was actually said.

Depositions may be used in lieu of live testimony at trial in certain circumstances, e.g., when the deponent resides at great distance from the court, when the deponent dies before trial, and when the deponent later called as a witness at trial contradicts the testimony given at the earlier deposition.

Since the court may sustain your opponent’s objections if you attempt to depose a person more than once, it is wise to know as much as possible about your case and your opponent’s position before taking depositions. Some lawyers believe the taking of depositions is all that’ needed before proceeding to trial. In most cases, written discovery should be used to get a clear idea of the facts of the case before taking depositions.

If a proposed deponent is leaving the court’s jurisdiction or threatened with grave illness, prudence will depose such person as soon as practicable. In some cases the court may grant a party leave to depose such persons even before the case is filed. The court’s order granting permission, of course, is obtained by making a timely motion.

Deposition

The legal proceedings at which a party acts to depose another party or third person by asking questions of such party or person under penalties of perjury. Some sloppy thinking lawyers use the term to describe the printed material that re-states all the questions and answers, however the proper term for the written transcription prepared by the court reporter or notary is deposition transcript. The deposition is a court proceeding at which questions are asked and answered. The transcript is a sworn printed statement of everything that was said at the deposition; it is not the deposition. See depose.

Direct Evidence

Evidence based on direct facts as opposed to circumstantial evidence based on inferences surmised from direct facts (or, God save us, from other inferences surmised from yet other inferences or one person’s intuition based on the opinion of yet another person). Direct evidence is evidence that is believed by reasonable people without having to jump to any conclusions. Facts that cannot be disputed by reasonable persons. Direct evidence does not require any stretch of imagination. Circumstantial evidence is not direct evidence.

Direct Fact

Facts that are not disputed by reasonable persons. A direct fact may be best explained by saying what in-direct facts are, i.e., facts inferred or surmised from other facts. A direct fact requires no inference. A direct fact is not surmised. A direct fact is a fact that any reasonable person would believe to be true without conjecture, without imagination, without relying on a hunch in any way. Pure speculation founded solely on conjecture, hypothesis, or inference should not be given the same weight for determining the outcome of a case as facts that are clearly evident. Direct facts are clearly evident. Direct facts are, therefore, good evidence if they are relevant to the issues in your case. Circumstantial evidence is not direct evidence.

Direct Question

See Cross-Examination.

Discovery

The process of finding facts that may lead to admissible evidence to be placed in the court file or presented at hearings or trial. The five primary discovery methods include: requests for admissions, requests for production, interrogatories, depositions, and subpoena power.

Discretion

In every jurisdiction judges are given a certain latitude within which they are permitted to exercise their own "judgment", i.e., according to their private view of what is right or reasonable based on the law and facts presented on the court’s record. This is called judicial discretion. Judges must, however, abide by the reasonableness test. See also abuse of discretion.

Dismissal

When a pleading fails to comply with the law or lacks sufficient factual grounds to go forward, the court may enter an order dismissing the pleading. If the dismissal is with prejudice, the case is over, and the plaintiff cannot bring his case again on the same argument of law and fact. If the dismissal is without prejudice, the plaintiff may re-file his or her pleading after amending it to fix the problem(s) that resulted in the dismissal.

Dispositive

Tending to dispose of an issue. A dispositive fact is one which, if proved, will decide the case. See relevant, material, pertinent.

Doctrine

In the field of law, a doctrine is a principle generally followed or a set of rules intended to accomplish a particular aspect of justice.

Donee

One who receives a gift. The donee has no obligation to return the gift. It is his own as soon as he receives possession (but not until, since a gift is not complete until the donor has released it).

Donor

One who gives a gift.

Duces Tecum

When this Latin term appears in legal papers it means, simply, "Bring it with you." A subpoena duces tecum, for example, requires not only attendance of the witness at a hearing, trial, or deposition as set forth in the body of the subpoena but also that the witness bring along whatever documents or things that may be listed in the subpoena or attached papers appended to the subpoena. Failure to comply may expose the witness to contempt penalties.

Due Diligence

Here is a term of art seldom understood but frequently seen in the papers of civil lawsuits. In its plain meaning due diligence is the diligence due to a particular matter (hence the term). Due diligence is the reasonable attention a reasonable man would pay to the matter under the circumstances. Due diligence is a duty imputed to all of us to observe the protocols of civil obedience to the extent doing so does not deprive us unjustly. For example, if Green hires White to supervise Black, and White takes naps in the afternoon while Black leans on the broom handle, White is said to have failed to exercise due diligence. If a guardian undertakes the care of his ward then permits the ward to die of malnutrition at the nursing home, there has been a lack of due diligence. Ultimately, in a civil lawsuit, the determination of whether or not a party exercised due diligence or not is one for the trier of fact (i.e., the jury if a jury is trying the facts, or the judge if there is no jury). The test, again, is the diligence a reasonable man would deem to be due under the circumstances.

Due Process

Due process is the right of individuals and the obligation of the government’s courts to see that any action by one party is made known to the other party in a timely and reasonable manner so the other party may prepare for and defend against the action brought by his adversary. In short, due process is the right to receive notice and an opportunity to be heard before the court enters any order or takes any action that might restrict your rights or grant another party any right against you. Due process is also the right to be left alone, free from unreasonable search and seizure, as guaranteed to Americans under the Fourth Amendment of the United States Constitution. A more complete explanation of due process is given in the tutorials.

Durable Power of Attorney

See Power of Attorney.

Duty

Duty is the obligation one owes to another that gives courts the right to order enforcement of that obligation. Duties give rise to causes of action, because every cause of action arises from the breach of a duty. In our society, everyone owes a duty not to cause injury to others ... either with intent or negligence. If one breaches his duty to another, he may be liable in either a civil court or, if the duty is serious enough, in criminal court. Not all duties, however, give rise to a cause of action. For example, if Billy promises Sue that they will marry on June 4th and gets cold feet at the last moment, our courts will not enforce the obligation he took upon himself by making that promise, for all such promises are "contracts in contemplation of marriage" and no longer enforceable under the laws of any state in the nation. If Billy promised Sue he’d take her to the movies if she baked him a cake, and she bakes the cake but he backs out of taking her to the movies, she would have a cause of action to at least recover the price of her ticket (though, of course, it would cost more to bring her lawsuit than the ticket would be worth). The point is that duty gives rise to obligation, and enforcement of obligation is what courts are all about.