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A
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Acquittal
A jury
verdict that a criminal defendant is not guilty, or the finding of a judge that
the evidence is insufficient to support a conviction.
verdict that a criminal defendant is not guilty, or the finding of a judge that
the evidence is insufficient to support a conviction.
Active
judge
judge
A judge in
the full-time service of the court. Compare to senior judge.
the full-time service of the court. Compare to senior judge.
Administrative
Office of the United States Courts (AO)
Office of the United States Courts (AO)
The federal
agency responsible for collecting court statistics, administering the federal
courts’ budget, and performing many other administrative and programmatic
functions, under the direction and supervision of the Judicial Conference of
the United States.
agency responsible for collecting court statistics, administering the federal
courts’ budget, and performing many other administrative and programmatic
functions, under the direction and supervision of the Judicial Conference of
the United States.
Admissible
A term used
to describe evidence that may be considered by a jury or judge in civil and
criminal cases.
to describe evidence that may be considered by a jury or judge in civil and
criminal cases.
Adversary
proceeding
proceeding
A lawsuit
arising in or related to a bankruptcy case that begins by filing a complaint
with the court, that is, a “trial” that takes place within the
context of a bankruptcy case.
arising in or related to a bankruptcy case that begins by filing a complaint
with the court, that is, a “trial” that takes place within the
context of a bankruptcy case.
Affidavit
A written
or printed statement made under oath.
or printed statement made under oath.
Affirmed
In the
practice of the court of appeals, it means that the court of appeals has
concluded that the lower court decision is correct and will stand as rendered
by the lower court.
practice of the court of appeals, it means that the court of appeals has
concluded that the lower court decision is correct and will stand as rendered
by the lower court.
Alternate
juror
juror
A juror
selected in the same manner as a regular juror who hears all the evidence but
does not help decide the case unless called on to replace a regular juror.
selected in the same manner as a regular juror who hears all the evidence but
does not help decide the case unless called on to replace a regular juror.
Alternative
dispute resolution (ADR)
dispute resolution (ADR)
A procedure
for settling a dispute outside the courtroom. Most forms of ADR are not
binding, and involve referral of the case to a neutral party such as an
arbitrator or mediator.
for settling a dispute outside the courtroom. Most forms of ADR are not
binding, and involve referral of the case to a neutral party such as an
arbitrator or mediator.
Amicus
curiae
curiae
Latin for
“friend of the court.” It is advice formally offered to the court in
a brief filed by an entity interested in, but not a party to, the case.
“friend of the court.” It is advice formally offered to the court in
a brief filed by an entity interested in, but not a party to, the case.
Answer
The formal
written statement by a defendant in a civil case that responds to a complaint,
articulating the grounds for defense.
written statement by a defendant in a civil case that responds to a complaint,
articulating the grounds for defense.
Appeal
A request
made after a trial by a party that has lost on one or more issues that a higher
court review the decision to determine if it was correct. To make such a
request is “to appeal” or “to take an appeal.” One who
appeals is called the “appellant;” the other party is the
“appellee.”
made after a trial by a party that has lost on one or more issues that a higher
court review the decision to determine if it was correct. To make such a
request is “to appeal” or “to take an appeal.” One who
appeals is called the “appellant;” the other party is the
“appellee.”
Appellant
The party
who appeals a district court’s decision, usually seeking reversal of that
decision.
who appeals a district court’s decision, usually seeking reversal of that
decision.
Appellate
About
appeals; an appellate court has the power to review the judgment of a lower
court (trial court) or tribunal. For example, the U.S. circuit courts of
appeals review the decisions of the U.S. district courts.
appeals; an appellate court has the power to review the judgment of a lower
court (trial court) or tribunal. For example, the U.S. circuit courts of
appeals review the decisions of the U.S. district courts.
Appellee
The party
who opposes an appellant’s appeal, and who seeks to persuade the appeals court
to affirm the district court’s decision.
who opposes an appellant’s appeal, and who seeks to persuade the appeals court
to affirm the district court’s decision.
Arraignment
A
proceeding in which a criminal defendant is brought into court, told of the
charges in an indictment or information, and asked to plead guilty or not
guilty.
proceeding in which a criminal defendant is brought into court, told of the
charges in an indictment or information, and asked to plead guilty or not
guilty.
Article
III judge
III judge
A federal
judge who is appointed for life, during “good behavior,” under
Article III of the Constitution. Article III judges are nominated by the
President and confirmed by the Senate.
judge who is appointed for life, during “good behavior,” under
Article III of the Constitution. Article III judges are nominated by the
President and confirmed by the Senate.
Assets
Property of
all kinds, including real and personal, tangible and intangible.
all kinds, including real and personal, tangible and intangible.
Assume
An
agreement to continue performing duties under a contract or lease.
agreement to continue performing duties under a contract or lease.
Automatic
stay
stay
An
injunction that automatically stops lawsuits, foreclosures, garnishments, and
most collection activities against the debtor the moment a bankruptcy petition
is filed.
injunction that automatically stops lawsuits, foreclosures, garnishments, and
most collection activities against the debtor the moment a bankruptcy petition
is filed.
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Bail
The
release, prior to trial, of a person accused of a crime, under specified
conditions designed to assure that person’s appearance in court when required.
Also can refer to the amount of bond money posted as a financial condition of
pretrial release.
release, prior to trial, of a person accused of a crime, under specified
conditions designed to assure that person’s appearance in court when required.
Also can refer to the amount of bond money posted as a financial condition of
pretrial release.
Bankruptcy
A legal
procedure for dealing with debt problems of individuals and businesses;
specifically, a case filed under one of the chapters of title 11 of the United
States Code (the Bankruptcy Code).
procedure for dealing with debt problems of individuals and businesses;
specifically, a case filed under one of the chapters of title 11 of the United
States Code (the Bankruptcy Code).
Bankruptcy
administrator
administrator
An officer
of the Judiciary serving in the judicial districts of Alabama and North
Carolina who, like the United States trustee, is responsible for supervising
the administration of bankruptcy cases, estates, and trustees; monitoring plans
and disclosure statements; monitoring creditors’ committees; monitoring fee
applications; and performing other statutory duties.
of the Judiciary serving in the judicial districts of Alabama and North
Carolina who, like the United States trustee, is responsible for supervising
the administration of bankruptcy cases, estates, and trustees; monitoring plans
and disclosure statements; monitoring creditors’ committees; monitoring fee
applications; and performing other statutory duties.
Bankruptcy
code
code
The
informal name for title 11 of the United States Code (11 U.S.C. §§ 101-1330),
the federal bankruptcy law.
informal name for title 11 of the United States Code (11 U.S.C. §§ 101-1330),
the federal bankruptcy law.
Bankruptcy
court
court
The
bankruptcy judges in regular active service in each district; a unit of the
district court.
bankruptcy judges in regular active service in each district; a unit of the
district court.
Bankruptcy
estate
estate
All
interests of the debtor in property at the time of the bankruptcy filing. The
estate technically becomes the temporary legal owner of all of the debtor’s
property.
interests of the debtor in property at the time of the bankruptcy filing. The
estate technically becomes the temporary legal owner of all of the debtor’s
property.
Bankruptcy
judge
judge
A judicial
officer of the United States district court who is the court official with
decision-making power over federal bankruptcy cases.
officer of the United States district court who is the court official with
decision-making power over federal bankruptcy cases.
Bankruptcy
petition
petition
A formal
request for the protection of the federal bankruptcy laws. (There is an
official form for bankruptcy petitions.)
request for the protection of the federal bankruptcy laws. (There is an
official form for bankruptcy petitions.)
Bankruptcy
trustee
trustee
A private
individual or corporation appointed in all Chapter 7 and Chapter 13 cases to
represent the interests of the bankruptcy estate and the debtor’s creditors.
individual or corporation appointed in all Chapter 7 and Chapter 13 cases to
represent the interests of the bankruptcy estate and the debtor’s creditors.
Bench
trial
trial
A trial
without a jury, in which the judge serves as the fact-finder.
without a jury, in which the judge serves as the fact-finder.
Brief
A written
statement submitted in a trial or appellate proceeding that explains one side’s
legal and factual arguments.
statement submitted in a trial or appellate proceeding that explains one side’s
legal and factual arguments.
Burden
of proof
of proof
The duty to
prove disputed facts. In civil cases, a plaintiff generally has the burden of
proving his or her case. In criminal cases, the government has the burden of
proving the defendant’s guilt. (See standard of proof.)
prove disputed facts. In civil cases, a plaintiff generally has the burden of
proving his or her case. In criminal cases, the government has the burden of
proving the defendant’s guilt. (See standard of proof.)
Business
bankruptcy
bankruptcy
A
bankruptcy case in which the debtor is a business or an individual involved in
business and the debts are for business purposes.
bankruptcy case in which the debtor is a business or an individual involved in
business and the debts are for business purposes.
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Capital
offense
offense
A crime
punishable by death.
punishable by death.
Case law
The law as
established in previous court decisions. A synonym for legal precedent. Akin to
common law, which springs from tradition and judicial decisions.
established in previous court decisions. A synonym for legal precedent. Akin to
common law, which springs from tradition and judicial decisions.
Caseload
The number
of cases handled by a judge or a court.
of cases handled by a judge or a court.
Cause of
action
action
A legal
claim.
claim.
Chambers
The offices
of a judge and his or her staff.
of a judge and his or her staff.
Chapter
7
7
The chapter
of the Bankruptcy Code providing for “liquidation,” that is, the sale
of a debtor’s nonexempt property and the distribution of the proceeds to
creditors. In order to be eligible for Chapter 7, the debtor must satisfy a
“means test.” The court will evaluate the debtor’s income and
expenses to determine if the debtor may proceed under Chapter 7.
of the Bankruptcy Code providing for “liquidation,” that is, the sale
of a debtor’s nonexempt property and the distribution of the proceeds to
creditors. In order to be eligible for Chapter 7, the debtor must satisfy a
“means test.” The court will evaluate the debtor’s income and
expenses to determine if the debtor may proceed under Chapter 7.
Chapter
7 trustee
7 trustee
A person
appointed in a Chapter 7 case to represent the interests of the bankruptcy
estate and the creditors. The trustee’s responsibilities include reviewing the
debtor’s petition and schedules, liquidating the property of the estate, and
making distributions to creditors. The trustee may also bring actions against
creditors or the debtor to recover property of the bankruptcy estate.
appointed in a Chapter 7 case to represent the interests of the bankruptcy
estate and the creditors. The trustee’s responsibilities include reviewing the
debtor’s petition and schedules, liquidating the property of the estate, and
making distributions to creditors. The trustee may also bring actions against
creditors or the debtor to recover property of the bankruptcy estate.
Chapter
9
9
The chapter
of the Bankruptcy Code providing for reorganization of municipalities (which includes
cities and towns, as well as villages, counties, taxing districts, municipal
utilities, and school districts).
of the Bankruptcy Code providing for reorganization of municipalities (which includes
cities and towns, as well as villages, counties, taxing districts, municipal
utilities, and school districts).
Chapter
11
11
A
reorganization bankruptcy, usually involving a corporation or partnership. A
Chapter 11 debtor usually proposes a plan of reorganization to keep its
business alive and pay creditors over time. Individuals or people in business
can also seek relief in Chapter 11.
reorganization bankruptcy, usually involving a corporation or partnership. A
Chapter 11 debtor usually proposes a plan of reorganization to keep its
business alive and pay creditors over time. Individuals or people in business
can also seek relief in Chapter 11.
Chapter
12
12
The chapter
of the Bankruptcy Code providing for adjustment of debts of a “family
farmer” or “family fisherman,” as the terms are defined in the
Bankruptcy Code.
of the Bankruptcy Code providing for adjustment of debts of a “family
farmer” or “family fisherman,” as the terms are defined in the
Bankruptcy Code.
Chapter
13
13
The chapter
of the Bankruptcy Code providing for the adjustment of debts of an individual
with regular income, often referred to as a “wage-earner” plan.
Chapter 13 allows a debtor to keep property and use his or her disposable
income to pay debts over time, usually three to five years.
of the Bankruptcy Code providing for the adjustment of debts of an individual
with regular income, often referred to as a “wage-earner” plan.
Chapter 13 allows a debtor to keep property and use his or her disposable
income to pay debts over time, usually three to five years.
Chapter
13 trustee
13 trustee
A person
appointed to administer a Chapter 13 case. A Chapter 13 trustee’s
responsibilities are similar to those of a Chapter 7 trustee; however, a
Chapter 13 trustee has the additional responsibilities of overseeing the
debtor’s plan, receiving payments from debtors, and disbursing plan payments to
creditors.
appointed to administer a Chapter 13 case. A Chapter 13 trustee’s
responsibilities are similar to those of a Chapter 7 trustee; however, a
Chapter 13 trustee has the additional responsibilities of overseeing the
debtor’s plan, receiving payments from debtors, and disbursing plan payments to
creditors.
Chief
judge
judge
The judge
who has primary responsibility for the administration of a court; chief judges
are determined by seniority.
who has primary responsibility for the administration of a court; chief judges
are determined by seniority.
Claim
A
creditor’s assertion of a right to payment from a debtor or the debtor’s
property.
creditor’s assertion of a right to payment from a debtor or the debtor’s
property.
Class
action
action
A lawsuit in
which one or more members of a large group, or class, of individuals or other
entities sue on behalf of the entire class. The district court must find that
the claims of the class members contain questions of law or fact in common
before the lawsuit can proceed as a class action.
which one or more members of a large group, or class, of individuals or other
entities sue on behalf of the entire class. The district court must find that
the claims of the class members contain questions of law or fact in common
before the lawsuit can proceed as a class action.
Clerk of
court
court
The court
officer who oversees administrative functions, especially managing the flow of
cases through the court. The clerk’s office is often called a court’s central
nervous system.
officer who oversees administrative functions, especially managing the flow of
cases through the court. The clerk’s office is often called a court’s central
nervous system.
Collateral
Property
that is promised as security for the satisfaction of a debt.
that is promised as security for the satisfaction of a debt.
Common
law
law
The legal
system that originated in England and is now in use in the United States, which
relies on the articulation of legal principles in a historical succession of
judicial decisions. Common law principles can be changed by legislation.
system that originated in England and is now in use in the United States, which
relies on the articulation of legal principles in a historical succession of
judicial decisions. Common law principles can be changed by legislation.
Community
service
service
A special
condition the court imposes that requires an individual to work – without pay –
for a civic or nonprofit organization.
condition the court imposes that requires an individual to work – without pay –
for a civic or nonprofit organization.
Complaint
A written
statement that begins a civil lawsuit, in which the plaintiff details the
claims against the defendant.
statement that begins a civil lawsuit, in which the plaintiff details the
claims against the defendant.
Concurrent
sentence
sentence
Prison
terms for two or more offenses to be served at the same time, rather than one
after the other. Example: Two five-year sentences and one three-year sentence,
if served concurrently, result in a maximum of five years behind bars.
terms for two or more offenses to be served at the same time, rather than one
after the other. Example: Two five-year sentences and one three-year sentence,
if served concurrently, result in a maximum of five years behind bars.
Confirmation
Approval of
a plan of reorganization by a bankruptcy judge.
a plan of reorganization by a bankruptcy judge.
Consecutive
sentence
sentence
Prison
terms for two or more offenses to be served one after the other. Example: Two
five-year sentences and one three-year sentence, if served consecutively,
result in a maximum of 13 years behind bars.
terms for two or more offenses to be served one after the other. Example: Two
five-year sentences and one three-year sentence, if served consecutively,
result in a maximum of 13 years behind bars.
Consumer
bankruptcy
bankruptcy
A
bankruptcy case filed to reduce or eliminate debts that are primarily consumer
debts.
bankruptcy case filed to reduce or eliminate debts that are primarily consumer
debts.
Consumer
debts
debts
Debts
incurred for personal, as opposed to business, needs.
incurred for personal, as opposed to business, needs.
Contingent
claim
claim
A claim
that may be owed by the debtor under certain circumstances, e.g., where the
debtor is a cosigner on another person’s loan and that person fails to pay.
that may be owed by the debtor under certain circumstances, e.g., where the
debtor is a cosigner on another person’s loan and that person fails to pay.
Contract
An
agreement between two or more people that creates an obligation to do or not to
do a particular thing.
agreement between two or more people that creates an obligation to do or not to
do a particular thing.
Conviction
A judgment
of guilt against a criminal defendant.
of guilt against a criminal defendant.
Counsel
Legal
advice; a term also used to refer to the lawyers in a case.
advice; a term also used to refer to the lawyers in a case.
Court
Government
entity authorized to resolve legal disputes. Judges sometimes use
“court” to refer to themselves in the third person, as in “the
court has read the briefs.”
entity authorized to resolve legal disputes. Judges sometimes use
“court” to refer to themselves in the third person, as in “the
court has read the briefs.”
Count
An
allegation in an indictment or information, charging a defendant with a crime.
An indictment or information may contain allegations that the defendant
committed more than one crime. Each allegation is referred to as a count.
allegation in an indictment or information, charging a defendant with a crime.
An indictment or information may contain allegations that the defendant
committed more than one crime. Each allegation is referred to as a count.
Creditor
A person to
whom or business to which the debtor owes money or that claims to be owed money
by the debtor.
whom or business to which the debtor owes money or that claims to be owed money
by the debtor.
Credit
counseling
counseling
Generally
refers to two events in individual bankruptcy cases: (1) the “individual
or group briefing” from a nonprofit budget and credit counseling agency
that individual debtors must attend prior to filing under any chapter of the
Bankruptcy Code; and (2) the “instructional course in personal financial
management” in chapters 7 and 13 that an individual debtor must complete
before a discharge is entered. There are exceptions to both requirements for
certain categories of debtors, exigent circumstances, or if the U.S. trustee or
bankruptcy administrator have determined that there are insufficient approved
credit counseling agencies available to provide the necessary counseling.
Required as a result of and after the passage of Bankruptcy Reform act of 2005
going in to affect in October of 2005.
refers to two events in individual bankruptcy cases: (1) the “individual
or group briefing” from a nonprofit budget and credit counseling agency
that individual debtors must attend prior to filing under any chapter of the
Bankruptcy Code; and (2) the “instructional course in personal financial
management” in chapters 7 and 13 that an individual debtor must complete
before a discharge is entered. There are exceptions to both requirements for
certain categories of debtors, exigent circumstances, or if the U.S. trustee or
bankruptcy administrator have determined that there are insufficient approved
credit counseling agencies available to provide the necessary counseling.
Required as a result of and after the passage of Bankruptcy Reform act of 2005
going in to affect in October of 2005.
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Damages
Money that
a defendant pays a plaintiff in a civil case if the plaintiff has won. Damages
may be compensatory (for loss or injury) or punitive (to punish and deter
future misconduct).
a defendant pays a plaintiff in a civil case if the plaintiff has won. Damages
may be compensatory (for loss or injury) or punitive (to punish and deter
future misconduct).
Debtor
A person
who has filed a petition for relief under the Bankruptcy Code.
who has filed a petition for relief under the Bankruptcy Code.
Defendant
An
individual (or business) against whom a lawsuit is filed.
individual (or business) against whom a lawsuit is filed.
Debtor’s
plan
plan
A debtor’s
detailed description of how the debtor proposes to pay creditors’ claims over a
fixed period of time.
detailed description of how the debtor proposes to pay creditors’ claims over a
fixed period of time.
Declaratory
judgment
judgment
A judge’s
statement about someone’s rights. For example, a plaintiff may seek a
declaratory judgment that a particular statute, as written, violates some
constitutional right.
statement about someone’s rights. For example, a plaintiff may seek a
declaratory judgment that a particular statute, as written, violates some
constitutional right.
De facto
Latin,
meaning “in fact” or “actually.” Something that exists in
fact but not as a matter of law.
meaning “in fact” or “actually.” Something that exists in
fact but not as a matter of law.
Default
judgment
judgment
A judgment
awarding a plaintiff the relief sought in the complaint because the defendant
has failed to appear in court or otherwise respond to the complaint.
awarding a plaintiff the relief sought in the complaint because the defendant
has failed to appear in court or otherwise respond to the complaint.
Defendant
In a civil
case, the person or organization against whom the plaintiff brings suit; in a
criminal case, the person accused of the crime.
case, the person or organization against whom the plaintiff brings suit; in a
criminal case, the person accused of the crime.
De jure
Latin,
meaning “in law.” Something that exists by operation of law.
meaning “in law.” Something that exists by operation of law.
De novo
Latin, meaning
“anew.” A trial de novo is a completely new trial. Appellate review
de novo implies no deference to the trial judge’s ruling.
“anew.” A trial de novo is a completely new trial. Appellate review
de novo implies no deference to the trial judge’s ruling.
Deposition
An oral
statement made before an officer authorized by law to administer oaths. Such
statements are often taken to examine potential witnesses, to obtain discovery,
or to be used later in trial. See discovery.
statement made before an officer authorized by law to administer oaths. Such
statements are often taken to examine potential witnesses, to obtain discovery,
or to be used later in trial. See discovery.
Discharge
A release
of a debtor from personal liability for certain dischargeable debts. Notable
exceptions to dischargeability are taxes and student loans. A discharge
releases a debtor from personal liability for certain debts known as
dischargeable debts and prevents the creditors owed those debts from taking any
action against the debtor or the debtor’s property to collect the debts. The
discharge also prohibits creditors from communicating with the debtor regarding
the debt, including through telephone calls, letters, and personal contact.
of a debtor from personal liability for certain dischargeable debts. Notable
exceptions to dischargeability are taxes and student loans. A discharge
releases a debtor from personal liability for certain debts known as
dischargeable debts and prevents the creditors owed those debts from taking any
action against the debtor or the debtor’s property to collect the debts. The
discharge also prohibits creditors from communicating with the debtor regarding
the debt, including through telephone calls, letters, and personal contact.
Dischargeable
debt
debt
A debt for
which the Bankruptcy Code allows the debtor’s personal liability to be
eliminated.
which the Bankruptcy Code allows the debtor’s personal liability to be
eliminated.
Disclosure
statement
statement
A written
document prepared by the chapter 11 debtor or other plan proponent that is
designed to provide “adequate information” to creditors to enable
them to evaluate the chapter 11 plan of reorganization.
document prepared by the chapter 11 debtor or other plan proponent that is
designed to provide “adequate information” to creditors to enable
them to evaluate the chapter 11 plan of reorganization.
Discovery
Procedures
used to obtain disclosure of evidence before trial.
used to obtain disclosure of evidence before trial.
Dismissal
with prejudice
with prejudice
Court
action that prevents an identical lawsuit from being filed later.
action that prevents an identical lawsuit from being filed later.
Dismissal
without prejudice
without prejudice
Court
action that allows the later filing.
action that allows the later filing.
Disposable
income
income
Income not
reasonably necessary for the maintenance or support of the debtor or
dependents. If the debtor operates a business, disposable income is defined as
those amounts over and above what is necessary for the payment of ordinary
operating expenses.
reasonably necessary for the maintenance or support of the debtor or
dependents. If the debtor operates a business, disposable income is defined as
those amounts over and above what is necessary for the payment of ordinary
operating expenses.
Docket
A log
containing the complete history of each case in the form of brief chronological
entries summarizing the court proceedings.
containing the complete history of each case in the form of brief chronological
entries summarizing the court proceedings.
Due
process
process
In criminal
law, the constitutional guarantee that a defendant will receive a fair and
impartial trial. In civil law, the legal rights of someone who confronts an
adverse action threatening liberty or property.
law, the constitutional guarantee that a defendant will receive a fair and
impartial trial. In civil law, the legal rights of someone who confronts an
adverse action threatening liberty or property.
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En banc
French,
meaning “on the bench.” All judges of an appellate court sitting
together to hear a case, as opposed to the routine disposition by panels of
three judges. In the Ninth Circuit, an en banc panel consists of 11 randomly
selected judges.
meaning “on the bench.” All judges of an appellate court sitting
together to hear a case, as opposed to the routine disposition by panels of
three judges. In the Ninth Circuit, an en banc panel consists of 11 randomly
selected judges.
Equitable
Pertaining
to civil suits in “equity” rather than in “law.” In English
legal history, the courts of “law” could order the payment of damages
and could afford no other remedy (see damages). A separate court of
“equity” could order someone to do something or to cease to do
something (e.g., injunction). In American jurisprudence, the federal courts have
both legal and equitable power, but the distinction is still an important one.
For example, a trial by jury is normally available in “law” cases but
not in “equity” cases.
to civil suits in “equity” rather than in “law.” In English
legal history, the courts of “law” could order the payment of damages
and could afford no other remedy (see damages). A separate court of
“equity” could order someone to do something or to cease to do
something (e.g., injunction). In American jurisprudence, the federal courts have
both legal and equitable power, but the distinction is still an important one.
For example, a trial by jury is normally available in “law” cases but
not in “equity” cases.
Equity
The value
of a debtor’s interest in property that remains after liens and other creditors’
interests are considered. (Example: If a house valued at $60,000 is subject to
a $30,000 mortgage, there is $30,000 of equity.)
of a debtor’s interest in property that remains after liens and other creditors’
interests are considered. (Example: If a house valued at $60,000 is subject to
a $30,000 mortgage, there is $30,000 of equity.)
Evidence
Information
presented in testimony or in documents that is used to persuade the fact finder
(judge or jury) to decide the case in favor of one side or the other.
presented in testimony or in documents that is used to persuade the fact finder
(judge or jury) to decide the case in favor of one side or the other.
Exclusionary
rule
rule
Doctrine
that says evidence obtained in violation of a criminal defendant’s
constitutional or statutory rights is not admissible at trial.
that says evidence obtained in violation of a criminal defendant’s
constitutional or statutory rights is not admissible at trial.
Exculpatory
evidence
evidence
Evidence
indicating that a defendant did not commit the crime.
indicating that a defendant did not commit the crime.
Executory
contracts
contracts
Contracts
or leases under which both parties to the agreement have duties remaining to be
performed. If a contract or lease is executory, a debtor may assume it (keep
the contract) or reject it (terminate the contract).
or leases under which both parties to the agreement have duties remaining to be
performed. If a contract or lease is executory, a debtor may assume it (keep
the contract) or reject it (terminate the contract).
Exempt
assets
assets
Property
that a debtor is allowed to retain, free from the claims of creditors who do
not have liens on the property.
that a debtor is allowed to retain, free from the claims of creditors who do
not have liens on the property.
Exemptions,
exempt property
exempt property
Certain
property owned by an individual debtor that the Bankruptcy Code or applicable
state law permits the debtor to keep from unsecured creditors. For example, in
some states the debtor may be able to exempt all or a portion of the equity in
the debtor’s primary residence (homestead exemption), or some or all
“tools of the trade” used by the debtor to make a living (i.e., auto
tools for an auto mechanic or dental tools for a dentist). The availability and
amount of property the debtor may exempt depends on the state the debtor lives
in.
property owned by an individual debtor that the Bankruptcy Code or applicable
state law permits the debtor to keep from unsecured creditors. For example, in
some states the debtor may be able to exempt all or a portion of the equity in
the debtor’s primary residence (homestead exemption), or some or all
“tools of the trade” used by the debtor to make a living (i.e., auto
tools for an auto mechanic or dental tools for a dentist). The availability and
amount of property the debtor may exempt depends on the state the debtor lives
in.
Ex parte
A
proceeding brought before a court by one party only, without notice to or
challenge by the other side.
proceeding brought before a court by one party only, without notice to or
challenge by the other side.
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Face
sheet filing
sheet filing
A
bankruptcy case filed either without schedules or with incomplete schedules
listing few creditors and debts. (Face sheet filings are often made for the
purpose of delaying an eviction or foreclosure.)
bankruptcy case filed either without schedules or with incomplete schedules
listing few creditors and debts. (Face sheet filings are often made for the
purpose of delaying an eviction or foreclosure.)
Family
farmer
farmer
An
individual, individual and spouse, corporation, or partnership engaged in a
farming operation that meets certain debt limits and other statutory criteria
for filing a petition under Chapter 12.
individual, individual and spouse, corporation, or partnership engaged in a
farming operation that meets certain debt limits and other statutory criteria
for filing a petition under Chapter 12.
Federal
public defender
public defender
An attorney
employed by the federal courts on a full-time basis to provide legal defense to
defendants who are unable to afford counsel. The judiciary administers the federal
defender program pursuant to the Criminal Justice Act.
employed by the federal courts on a full-time basis to provide legal defense to
defendants who are unable to afford counsel. The judiciary administers the federal
defender program pursuant to the Criminal Justice Act.
Federal
public defender organization
public defender organization
As provided
for in the Criminal Justice Act, an organization established within a federal
judicial circuit to represent criminal defendants who cannot afford an adequate
defense. Each organization is supervised by a federal public defender appointed
by the court of appeals for the circuit.
for in the Criminal Justice Act, an organization established within a federal
judicial circuit to represent criminal defendants who cannot afford an adequate
defense. Each organization is supervised by a federal public defender appointed
by the court of appeals for the circuit.
Federal
question jurisdiction
question jurisdiction
Jurisdiction
given to federal courts in cases involving the interpretation and application of
the U.S. Constitution, acts of Congress, and treaties.
given to federal courts in cases involving the interpretation and application of
the U.S. Constitution, acts of Congress, and treaties.
Felony
A serious
crime, usually punishable by at least one year in prison.
crime, usually punishable by at least one year in prison.
File
To place a
paper in the official custody of the clerk of court to enter into the files or
records of a case.
paper in the official custody of the clerk of court to enter into the files or
records of a case.
Fraudulent
transfer
transfer
A transfer
of a debtor’s property made with intent to defraud or for which the debtor
receives less than the transferred property’s value.
of a debtor’s property made with intent to defraud or for which the debtor
receives less than the transferred property’s value.
Fresh
start
start
The
characterization of a debtor’s status after bankruptcy, i.e., free of most
debts. (Giving debtors a fresh start is one purpose of the Bankruptcy Code.)
characterization of a debtor’s status after bankruptcy, i.e., free of most
debts. (Giving debtors a fresh start is one purpose of the Bankruptcy Code.)
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Grand
jury
jury
A body of
16-23 citizens who listen to evidence of criminal allegations, which is
presented by the prosecutors, and determine whether there is probable cause to
believe an individual committed an offense. See also indictment and U.S.
attorney.
16-23 citizens who listen to evidence of criminal allegations, which is
presented by the prosecutors, and determine whether there is probable cause to
believe an individual committed an offense. See also indictment and U.S.
attorney.
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Habeas
corpus
corpus
Latin,
meaning “you have the body.” A writ of habeas corpus generally is a
judicial order forcing law enforcement authorities to produce a prisoner they
are holding, and to justify the prisoner’s continued confinement. Federal
judges receive petitions for a writ of habeas corpus from state prison inmates
who say their state prosecutions violated federally protected rights in some
way.
meaning “you have the body.” A writ of habeas corpus generally is a
judicial order forcing law enforcement authorities to produce a prisoner they
are holding, and to justify the prisoner’s continued confinement. Federal
judges receive petitions for a writ of habeas corpus from state prison inmates
who say their state prosecutions violated federally protected rights in some
way.
Hearsay
Evidence
presented by a witness who did not see or hear the incident in question but
heard about it from someone else. With some exceptions, hearsay generally is
not admissible as evidence at trial.
presented by a witness who did not see or hear the incident in question but
heard about it from someone else. With some exceptions, hearsay generally is
not admissible as evidence at trial.
Home
confinement
confinement
A special
condition the court imposes that requires an individual to remain at home
except for certain approved activities such as work and medical appointments.
Home confinement may include the use of electronic monitoring equipment – a
transmitter attached to the wrist or the ankle – to help ensure that the person
stays at home as required.
condition the court imposes that requires an individual to remain at home
except for certain approved activities such as work and medical appointments.
Home confinement may include the use of electronic monitoring equipment – a
transmitter attached to the wrist or the ankle – to help ensure that the person
stays at home as required.
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Impeachment
1. The
process of calling a witness’s testimony into doubt. For example, if the
attorney can show that the witness may have fabricated portions of his
testimony, the witness is said to be “impeached;” 2. The
constitutional process whereby the House of Representatives may
“impeach” (accuse of misconduct) high officers of the federal
government, who are then tried by the Senate.
process of calling a witness’s testimony into doubt. For example, if the
attorney can show that the witness may have fabricated portions of his
testimony, the witness is said to be “impeached;” 2. The
constitutional process whereby the House of Representatives may
“impeach” (accuse of misconduct) high officers of the federal
government, who are then tried by the Senate.
In
camera
camera
Latin,
meaning in a judge’s chambers. Often means outside the presence of a jury and
the public. In private.
meaning in a judge’s chambers. Often means outside the presence of a jury and
the public. In private.
Inculpatory
evidence
evidence
Evidence
indicating that a defendant did commit the crime.
indicating that a defendant did commit the crime.
Indictment
The formal
charge issued by a grand jury stating that there is enough evidence that the
defendant committed the crime to justify having a trial; it is used primarily
for felonies. See also information.
charge issued by a grand jury stating that there is enough evidence that the
defendant committed the crime to justify having a trial; it is used primarily
for felonies. See also information.
In forma
pauperis
pauperis
“In
the manner of a pauper.” Permission given by the court to a person to file
a case without payment of the required court fees because the person cannot pay
them.
the manner of a pauper.” Permission given by the court to a person to file
a case without payment of the required court fees because the person cannot pay
them.
Information
A formal
accusation by a government attorney that the defendant committed a misdemeanor.
See also indictment.
accusation by a government attorney that the defendant committed a misdemeanor.
See also indictment.
Injunction
A court
order preventing one or more named parties from taking some action. A
preliminary injunction often is issued to allow fact-finding, so a judge can
determine whether a permanent injunction is justified.
order preventing one or more named parties from taking some action. A
preliminary injunction often is issued to allow fact-finding, so a judge can
determine whether a permanent injunction is justified.
Insider
(of corporate debtor)
(of corporate debtor)
A director,
officer, or person in control of the debtor; a partnership in which the debtor
is a general partner; a general partner of the debtor; or a relative of a
general partner, director, officer, or person in control of the debtor.
officer, or person in control of the debtor; a partnership in which the debtor
is a general partner; a general partner of the debtor; or a relative of a
general partner, director, officer, or person in control of the debtor.
Insider
(of individual debtor)
(of individual debtor)
Any
relative of the debtor or of a general partner of the debtor; partnership
inwhich the debtor is a general partner; general partner of the debtor; or
corporation of which the debtor is a director, officer, or person in control.
relative of the debtor or of a general partner of the debtor; partnership
inwhich the debtor is a general partner; general partner of the debtor; or
corporation of which the debtor is a director, officer, or person in control.
Interrogatories
A form of
discovery consisting of written questions to be answered in writing and under
oath.
discovery consisting of written questions to be answered in writing and under
oath.
Issue
1. The disputed
point between parties in a lawsuit; 2. To send out officially, as in a court
issuing an order.
point between parties in a lawsuit; 2. To send out officially, as in a court
issuing an order.
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Joint
administration
administration
A
court-approved mechanism under which two or more cases can be administered
together. (Assuming no conflicts of interest, these separate businesses or
individuals can pool their resources, hire the same professionals, etc.)
court-approved mechanism under which two or more cases can be administered
together. (Assuming no conflicts of interest, these separate businesses or
individuals can pool their resources, hire the same professionals, etc.)
Joint
petition
petition
One
bankruptcy petition filed by a husband and wife together.
bankruptcy petition filed by a husband and wife together.
Judge
An official
of the Judicial branch with authority to decide lawsuits brought before courts.
Used generically, the term judge may also refer to all judicial officers,
including Supreme Court justices.
of the Judicial branch with authority to decide lawsuits brought before courts.
Used generically, the term judge may also refer to all judicial officers,
including Supreme Court justices.
Judgeship
The
position of judge. By statute, Congress authorizes the number of judgeships for
each district and appellate court.
position of judge. By statute, Congress authorizes the number of judgeships for
each district and appellate court.
Judgment
The
official decision of a court finally resolving the dispute between the parties
to the lawsuit.
official decision of a court finally resolving the dispute between the parties
to the lawsuit.
Judicial
Conference of the United States
Conference of the United States
The
policy-making entity for the federal court system. A 27-judge body whose
presiding officer is the Chief Justice of the United States.
policy-making entity for the federal court system. A 27-judge body whose
presiding officer is the Chief Justice of the United States.
Jurisdiction
The legal
authority of a court to hear and decide a certain type of case. It also is used
as a synonym for venue, meaning the geographic area over which the court has
territorial jurisdiction to decide cases.
authority of a court to hear and decide a certain type of case. It also is used
as a synonym for venue, meaning the geographic area over which the court has
territorial jurisdiction to decide cases.
Jurisprudence
The study
of law and the structure of the legal system.
of law and the structure of the legal system.
Jury
The group
of persons selected to hear the evidence in a trial and render a verdict on
matters of fact. See also grand jury.
of persons selected to hear the evidence in a trial and render a verdict on
matters of fact. See also grand jury.
Jury
instructions
instructions
A judge’s
directions to the jury before it begins deliberations regarding the factual
questions it must answer and the legal rules that it must apply.
directions to the jury before it begins deliberations regarding the factual
questions it must answer and the legal rules that it must apply.
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Lawsuit
A legal
action started by a plaintiff against a defendant based on a complaint that the
defendant failed to perform a legal duty which resulted in harm to the
plaintiff.
action started by a plaintiff against a defendant based on a complaint that the
defendant failed to perform a legal duty which resulted in harm to the
plaintiff.
Lien
A charge on
specific property that is designed to secure payment of a debt or performance
of an obligation. A debtor may still be responsible for a lien after a
discharge.
specific property that is designed to secure payment of a debt or performance
of an obligation. A debtor may still be responsible for a lien after a
discharge.
Litigation
A case,
controversy, or lawsuit. Participants (plaintiffs and defendants) in lawsuits
are called litigants.
controversy, or lawsuit. Participants (plaintiffs and defendants) in lawsuits
are called litigants.
Liquidation
The sale of
a debtor’s property with the proceeds to be used for the benefit of creditors.
a debtor’s property with the proceeds to be used for the benefit of creditors.
Liquidated
claim
claim
A
creditor’s claim for a fixed amount of money.
creditor’s claim for a fixed amount of money.
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Magistrate
judge
judge
A judicial
officer of a district court who conducts initial proceedings in criminal cases,
decides criminal misdemeanor cases, conducts many pretrial civil and criminal matters
on behalf of district judges, and decides civil cases with the consent of the
parties.
officer of a district court who conducts initial proceedings in criminal cases,
decides criminal misdemeanor cases, conducts many pretrial civil and criminal matters
on behalf of district judges, and decides civil cases with the consent of the
parties.
Means
test
test
Section
707(b)(2) of the Bankruptcy Code applies a “means test” to determine
whether an individual debtor’s chapter 7 filing is presumed to be an abuse of
the Bankruptcy Code requiring dismissal or conversion of the case (generally to
chapter 13). Abuse is presumed if the debtor’s aggregate current monthly income
(see definition above) over 5 years, net of certain statutorily allowed
expenses is more than (i) $10,000, or (ii) 25% of the debtor’s nonpriority
unsecured debt, as long as that amount is at least $6,000. The debtor may rebut
a presumption of abuse only by a showing of special circumstances that justify
additional expenses or adjustments of current monthly income.
707(b)(2) of the Bankruptcy Code applies a “means test” to determine
whether an individual debtor’s chapter 7 filing is presumed to be an abuse of
the Bankruptcy Code requiring dismissal or conversion of the case (generally to
chapter 13). Abuse is presumed if the debtor’s aggregate current monthly income
(see definition above) over 5 years, net of certain statutorily allowed
expenses is more than (i) $10,000, or (ii) 25% of the debtor’s nonpriority
unsecured debt, as long as that amount is at least $6,000. The debtor may rebut
a presumption of abuse only by a showing of special circumstances that justify
additional expenses or adjustments of current monthly income.
Mental
health treatment
health treatment
Special
condition the court imposes to require an individual to undergo evaluation and
treatment for a mental disorder. Treatment may include psychiatric,
psychological, and sex offense-specific evaluations, inpatient or outpatient
counseling, and medication.
condition the court imposes to require an individual to undergo evaluation and
treatment for a mental disorder. Treatment may include psychiatric,
psychological, and sex offense-specific evaluations, inpatient or outpatient
counseling, and medication.
Misdemeanor
An offense
punishable by one year of imprisonment or less. See also felony.
punishable by one year of imprisonment or less. See also felony.
Mistrial
An invalid
trial, caused by fundamental error. When a mistrial is declared, the trial must
start again with the selection of a new jury.
trial, caused by fundamental error. When a mistrial is declared, the trial must
start again with the selection of a new jury.
Moot
Not subject
to a court ruling because the controversy has not actually arisen, or has
ended.
to a court ruling because the controversy has not actually arisen, or has
ended.
Motion
A request
by a litigant to a judge for a decision on an issue relating to the case.
by a litigant to a judge for a decision on an issue relating to the case.
Motion
to lift the automatic stay
to lift the automatic stay
A request
by a creditor to allow the creditor to take action against the debtor or the
debtor’s property that would otherwise be prohibited by the automatic stay.
by a creditor to allow the creditor to take action against the debtor or the
debtor’s property that would otherwise be prohibited by the automatic stay.
Motion
in Limine
in Limine
A pretrial
motion requesting the court to prohibit the other side from presenting, or even
referring to, evidence on matters said to be so highly prejudicial that no
steps taken by the judge can prevent the jury from being unduly influenced.
motion requesting the court to prohibit the other side from presenting, or even
referring to, evidence on matters said to be so highly prejudicial that no
steps taken by the judge can prevent the jury from being unduly influenced.
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No-asset
case
case
A Chapter 7
case in which there are no assets available to satisfy any portion of the
creditors’ unsecured claims.
case in which there are no assets available to satisfy any portion of the
creditors’ unsecured claims.
Nolo
contendere
contendere
No contest.
A plea of nolo contendere has the same effect as a plea of guilty, as far as the
criminal sentence is concerned, but may not be considered as an admission of
guilt for any other purpose.
A plea of nolo contendere has the same effect as a plea of guilty, as far as the
criminal sentence is concerned, but may not be considered as an admission of
guilt for any other purpose.
Nondischargeable
debt
debt
A debt that
cannot be eliminated in bankruptcy. Examples include a home mortgage, debts for
alimony or child support, certain taxes, debts for most government funded or
guaranteed educational loans or benefit overpayments, debts arising from death
or personal injury caused by driving while intoxicated or under the influence
of drugs, and debts for restitution or a criminal fine included in a sentence
on the debtor’s conviction of a crime. Some debts, such as debts for money or
property obtained by false pretenses and debts for fraud or defalcation while
acting in a fiduciary capacity may be declared nondischargeable only if a creditor
timely files and prevails in a nondischargeability action.
cannot be eliminated in bankruptcy. Examples include a home mortgage, debts for
alimony or child support, certain taxes, debts for most government funded or
guaranteed educational loans or benefit overpayments, debts arising from death
or personal injury caused by driving while intoxicated or under the influence
of drugs, and debts for restitution or a criminal fine included in a sentence
on the debtor’s conviction of a crime. Some debts, such as debts for money or
property obtained by false pretenses and debts for fraud or defalcation while
acting in a fiduciary capacity may be declared nondischargeable only if a creditor
timely files and prevails in a nondischargeability action.
Nonexempt
assets
assets
Property of
a debtor that can be liquidated to satisfy claims of creditors.
a debtor that can be liquidated to satisfy claims of creditors.
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Objection
to dischargeability
to dischargeability
A trustee’s
or creditor’s objection to the debtor being released from personal liability
for certain dischargeable debts. Common reasons include allegations that the
debt to be discharged was incurred by false pretenses or that debt arose
because of the debtor’s fraud while acting as a fiduciary
or creditor’s objection to the debtor being released from personal liability
for certain dischargeable debts. Common reasons include allegations that the
debt to be discharged was incurred by false pretenses or that debt arose
because of the debtor’s fraud while acting as a fiduciary
.
Objection
to exemptions
to exemptions
A trustee’s
or creditor’s objection to the debtor’s attempt to claim certain property as
exempt from liquidation by the trustee to creditors.
or creditor’s objection to the debtor’s attempt to claim certain property as
exempt from liquidation by the trustee to creditors.
Opinion
A judge’s
written explanation of the decision of the court. Because a case may be heard
by three or more judges in the court of appeals, the opinion in appellate
decisions can take several forms. If all the judges completely agree on the
result, one judge will write the opinion for all. If all the judges do not
agree, the formal decision will be based upon the view of the majority, and one
member of the majority will write the opinion. The judges who did not agree
with the majority may write separately in dissenting or concurring opinions to
present their views. A dissenting opinion disagrees with the majority opinion
because of the reasoning and/or the principles of law the majority used to
decide the case. A concurring opinion agrees with the decision of the majority
opinion, but offers further comment or clarification or even an entirely
different reason for reaching the same result. Only the majority opinion can
serve as binding precedent in future cases. See also precedent.
written explanation of the decision of the court. Because a case may be heard
by three or more judges in the court of appeals, the opinion in appellate
decisions can take several forms. If all the judges completely agree on the
result, one judge will write the opinion for all. If all the judges do not
agree, the formal decision will be based upon the view of the majority, and one
member of the majority will write the opinion. The judges who did not agree
with the majority may write separately in dissenting or concurring opinions to
present their views. A dissenting opinion disagrees with the majority opinion
because of the reasoning and/or the principles of law the majority used to
decide the case. A concurring opinion agrees with the decision of the majority
opinion, but offers further comment or clarification or even an entirely
different reason for reaching the same result. Only the majority opinion can
serve as binding precedent in future cases. See also precedent.
Oral
argument
argument
An opportunity
for lawyers to summarize their position before the court and also to answer the
judges’ questions.
for lawyers to summarize their position before the court and also to answer the
judges’ questions.
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Panel
1. In
appellate cases, a group of judges (usually three) assigned to decide the case;
2. In the jury selection process, the group of potential jurors; 3. The list of
attorneys who are both available and qualified to serve as court-appointed
counsel for criminal defendants who cannot afford their own counsel.
appellate cases, a group of judges (usually three) assigned to decide the case;
2. In the jury selection process, the group of potential jurors; 3. The list of
attorneys who are both available and qualified to serve as court-appointed
counsel for criminal defendants who cannot afford their own counsel.
Parole
The release
of a prison inmate – granted by the U.S. Parole Commission – after the inmate
has completed part of his or her sentence in a federal prison. When the parolee
is released to the community, he or she is placed under the supervision of a
U.S. probation officer.
of a prison inmate – granted by the U.S. Parole Commission – after the inmate
has completed part of his or her sentence in a federal prison. When the parolee
is released to the community, he or she is placed under the supervision of a
U.S. probation officer.
The
Sentencing Reform Act of 1984 abolished parole in favor of a determinate
sentencing system in which the sentence is set by sentencing guidelines. Now,
without the option of parole, the term of imprisonment the court imposes is the
actual time the person spends in prison.
Sentencing Reform Act of 1984 abolished parole in favor of a determinate
sentencing system in which the sentence is set by sentencing guidelines. Now,
without the option of parole, the term of imprisonment the court imposes is the
actual time the person spends in prison.
Party in
interest
interest
A party who
has standing to be heard by the court in a matter to be decided in the
bankruptcy case. The debtor, U.S. trustee or bankruptcy administrator, case
trustee, and creditors are parties in interest for most matters.
has standing to be heard by the court in a matter to be decided in the
bankruptcy case. The debtor, U.S. trustee or bankruptcy administrator, case
trustee, and creditors are parties in interest for most matters.
Petition
preparer
preparer
A business
not authorized to practice law that prepares bankruptcy petitions.
not authorized to practice law that prepares bankruptcy petitions.
Per
curiam
curiam
Latin,
meaning “for the court.” In appellate courts, often refers to an
unsigned opinion.
meaning “for the court.” In appellate courts, often refers to an
unsigned opinion.
Peremptory
challenge
challenge
A district
court may grant each side in a civil or criminal trial the right to exclude a
certain number of prospective jurors without cause or giving a reason.
court may grant each side in a civil or criminal trial the right to exclude a
certain number of prospective jurors without cause or giving a reason.
Petit
jury (or trial jury)
jury (or trial jury)
A group of
citizens who hear the evidence presented by both sides at trial and determine the
facts in dispute. Federal criminal juries consist of 12 persons. Federal civil
juries consist of at least six persons.
citizens who hear the evidence presented by both sides at trial and determine the
facts in dispute. Federal criminal juries consist of 12 persons. Federal civil
juries consist of at least six persons.
Petition
The
document that initiates the filing of a bankruptcy proceeding, setting forth
basic information regarding the debtor, including name, address, chapter under
which the case is filed, and estimated amount of assets and liabilities.
document that initiates the filing of a bankruptcy proceeding, setting forth
basic information regarding the debtor, including name, address, chapter under
which the case is filed, and estimated amount of assets and liabilities.
Petty
offense
offense
A federal
misdemeanor punishable by six months or less in prison.
misdemeanor punishable by six months or less in prison.
Plaintiff
A person or
business that files a formal complaint with the court.
business that files a formal complaint with the court.
Plan
A debtor’s
detailed description of how the debtor proposes to pay creditors’ claims over a
fixed period of time.
detailed description of how the debtor proposes to pay creditors’ claims over a
fixed period of time.
Plea
In a
criminal case, the defendant’s statement pleading “guilty” or
“not guilty” in answer to the charges. See also nolo contendere.
criminal case, the defendant’s statement pleading “guilty” or
“not guilty” in answer to the charges. See also nolo contendere.
Pleadings
Written
statements filed with the court that describe a party’s legal or factual
assertions about the case.
statements filed with the court that describe a party’s legal or factual
assertions about the case.
Postpetition
transfer
transfer
A transfer
of the debtor’s property made after the commencement of the case.
of the debtor’s property made after the commencement of the case.
Prebankruptcy
planning
planning
The arrangement
(or rearrangement) of a debtor’s property to allow the debtor to take maximum
advantage of exemptions. (Prebankruptcy planning typically includes converting
nonexempt assets into exempt assets.)
(or rearrangement) of a debtor’s property to allow the debtor to take maximum
advantage of exemptions. (Prebankruptcy planning typically includes converting
nonexempt assets into exempt assets.)
Precedent
A court
decision in an earlier case with facts and legal issues similar to a dispute
currently before a court. Judges will generally “follow precedent” –
meaning that they use the principles established in earlier cases to decide new
cases that have similar facts and raise similar legal issues. A judge will
disregard precedent if a party can show that the earlier case was wrongly
decided, or that it differed in some significant way from the current case.
decision in an earlier case with facts and legal issues similar to a dispute
currently before a court. Judges will generally “follow precedent” –
meaning that they use the principles established in earlier cases to decide new
cases that have similar facts and raise similar legal issues. A judge will
disregard precedent if a party can show that the earlier case was wrongly
decided, or that it differed in some significant way from the current case.
Preferential
debt payment
debt payment
A debt
payment made to a creditor in the 90-day period before a debtor files
bankruptcy (or within one year if the creditor was an insider) that gives the
creditor more than the creditor would receive in the debtor’s chapter 7 case.
payment made to a creditor in the 90-day period before a debtor files
bankruptcy (or within one year if the creditor was an insider) that gives the
creditor more than the creditor would receive in the debtor’s chapter 7 case.
Presentence
report
report
A report
prepared by a court’s probation officer, after a person has been convicted of
an offense, summarizing for the court the background information needed to
determine the appropriate sentence.
prepared by a court’s probation officer, after a person has been convicted of
an offense, summarizing for the court the background information needed to
determine the appropriate sentence.
Pretrial
conference
conference
A meeting
of the judge and lawyers to plan the trial, to discuss which matters should be
presented to the jury, to review proposed evidence and witnesses, and to set a
trial schedule. Typically, the judge and the parties also discuss the
possibility of settlement of the case.
of the judge and lawyers to plan the trial, to discuss which matters should be
presented to the jury, to review proposed evidence and witnesses, and to set a
trial schedule. Typically, the judge and the parties also discuss the
possibility of settlement of the case.
Pretrial
services
services
A function
of the federal courts that takes place at the very start of the criminal
justice process – after a person has been arrested and charged with a federal
crime and before he or she goes to trial. Pretrial services officers focus on
investigating the backgrounds of these persons to help the court determine
whether to release or detain them while they await trial. The decision is based
on whether these individuals are likely to flee or pose a threat to the
community. If the court orders release, a pretrial services officer supervises
the person in the community until he or she returns to court.
of the federal courts that takes place at the very start of the criminal
justice process – after a person has been arrested and charged with a federal
crime and before he or she goes to trial. Pretrial services officers focus on
investigating the backgrounds of these persons to help the court determine
whether to release or detain them while they await trial. The decision is based
on whether these individuals are likely to flee or pose a threat to the
community. If the court orders release, a pretrial services officer supervises
the person in the community until he or she returns to court.
Priority
The
Bankruptcy Code’s statutory ranking of unsecured claims that determines the
order in which unsecured claims will be paid if there is not enough money to
pay all unsecured claims in full.
Bankruptcy Code’s statutory ranking of unsecured claims that determines the
order in which unsecured claims will be paid if there is not enough money to
pay all unsecured claims in full.
Priority
claim
claim
An
unsecured claim that is entitled to be paid ahead of other unsecured claims
that are not entitled to priority status. Priority refers to the order in which
these unsecured claims are to be paid.
unsecured claim that is entitled to be paid ahead of other unsecured claims
that are not entitled to priority status. Priority refers to the order in which
these unsecured claims are to be paid.
Probation
Sentencing
option in the federal courts. With probation, instead of sending an individual
to prison, the court releases the person to the community and orders him or her
to complete a period of supervision monitored by a U.S. probation officer and
to abide by certain conditions.
option in the federal courts. With probation, instead of sending an individual
to prison, the court releases the person to the community and orders him or her
to complete a period of supervision monitored by a U.S. probation officer and
to abide by certain conditions.
Probation
officer
officer
Officers of
the probation office of a court. Probation officer duties include conducting
presentence investigations, preparing presentence reports on convicted
defendants, and supervising released defendants.
the probation office of a court. Probation officer duties include conducting
presentence investigations, preparing presentence reports on convicted
defendants, and supervising released defendants.
Procedure
The rules
for conducting a lawsuit; there are rules of civil procedure, criminal
procedure, evidence, bankruptcy, and appellate procedure.
for conducting a lawsuit; there are rules of civil procedure, criminal
procedure, evidence, bankruptcy, and appellate procedure.
Proof of
claim
claim
A written
statement describing the reason a debtor owes a creditor money, which typically
sets forth the amount of money owed. (There is an official form for this purpose.)
statement describing the reason a debtor owes a creditor money, which typically
sets forth the amount of money owed. (There is an official form for this purpose.)
Pro per
A slang
expression sometimes used to refer to a pro se litigant. It is a corruption of
the Latin phrase “in propria persona.”
expression sometimes used to refer to a pro se litigant. It is a corruption of
the Latin phrase “in propria persona.”
Property
of the estate
of the estate
All legal
or equitable interests of the debtor in property as of the commencement of the case.
or equitable interests of the debtor in property as of the commencement of the case.
Pro se
Representing
oneself. Serving as one’s own lawyer.
oneself. Serving as one’s own lawyer.
Prosecute
To charge
someone with a crime. A prosecutor tries a criminal case on behalf of the
government.
someone with a crime. A prosecutor tries a criminal case on behalf of the
government.
Pro tem
Temporary.
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Reaffirmation
agreement
agreement
An
agreement by a debtor to continue paying a dischargeable debt after the
bankruptcy, usually for the purpose of keeping collateral or mortgaged property
that would otherwise be subject to repossession.
agreement by a debtor to continue paying a dischargeable debt after the
bankruptcy, usually for the purpose of keeping collateral or mortgaged property
that would otherwise be subject to repossession.
Record
A written
account of the proceedings in a case, including all pleadings, evidence, and
exhibits submitted in the course of the case.
account of the proceedings in a case, including all pleadings, evidence, and
exhibits submitted in the course of the case.
Redemption
A procedure
in a Chapter 7 case whereby a debtor removes a secured creditor’s lien on
collateral by paying the creditor the value of the property. The debtor may
then retain the property.
in a Chapter 7 case whereby a debtor removes a secured creditor’s lien on
collateral by paying the creditor the value of the property. The debtor may
then retain the property.
Remand
Send back.
Reverse
The act of
a court setting aside the decision of a lower court. A reversal is often
accompanied by a remand to the lower court for further proceedings.
a court setting aside the decision of a lower court. A reversal is often
accompanied by a remand to the lower court for further proceedings.
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Sanction
A penalty
or other type of enforcement used to bring about compliance with the law or
with rules and regulations.
or other type of enforcement used to bring about compliance with the law or
with rules and regulations.
Schedules
Lists
submitted by the debtor along with the petition (or shortly thereafter) showing
the debtor’s assets, liabilities, and other financial information. (There are
official forms.)
submitted by the debtor along with the petition (or shortly thereafter) showing
the debtor’s assets, liabilities, and other financial information. (There are
official forms.)
Secured
creditor
creditor
A secured
creditor is an individual or business that holds a claim against the debtor
that is secured by a lien on property of the estate. The property subject to
the lien is the secured creditor’s collateral.
creditor is an individual or business that holds a claim against the debtor
that is secured by a lien on property of the estate. The property subject to
the lien is the secured creditor’s collateral.
Secured
debt
debt
Debt backed
by a mortgage, pledge of collateral, or other lien; debt for which the creditor
has the right to pursue specific pledged property upon default. Examples
include home mortgages, auto loans and tax liens.
by a mortgage, pledge of collateral, or other lien; debt for which the creditor
has the right to pursue specific pledged property upon default. Examples
include home mortgages, auto loans and tax liens.
Senior
judge
judge
A federal
judge who, after attaining the requisite age and length of judicial experience,
takes senior status, thus creating a vacancy among a court’s active judges. A
senior judge retains the judicial office and may cut back his or her workload
by as much as 75 percent, but many opt to keep a larger caseload.
judge who, after attaining the requisite age and length of judicial experience,
takes senior status, thus creating a vacancy among a court’s active judges. A
senior judge retains the judicial office and may cut back his or her workload
by as much as 75 percent, but many opt to keep a larger caseload.
Sentence
The
punishment ordered by a court for a defendant convicted of a crime.
punishment ordered by a court for a defendant convicted of a crime.
Sentencing
guidelines
guidelines
A set of
rules and principles established by the United States Sentencing Commission
that trial judges use to determine the sentence for a convicted defendant.
rules and principles established by the United States Sentencing Commission
that trial judges use to determine the sentence for a convicted defendant.
Service
of process
of process
The
delivery of writs or summonses to the appropriate party.
delivery of writs or summonses to the appropriate party.
Settlement
Parties to
a lawsuit resolve their dispute without having a trial. Settlements often
involve the payment of compensation by one party in at least partial
satisfaction of the other party’s claims, but usually do not include the
admission of fault.
a lawsuit resolve their dispute without having a trial. Settlements often
involve the payment of compensation by one party in at least partial
satisfaction of the other party’s claims, but usually do not include the
admission of fault.
Sequester
To
separate. Sometimes juries are sequestered from outside influences during their
deliberations.
separate. Sometimes juries are sequestered from outside influences during their
deliberations.
Small
business case
business case
A special
type of chapter 11 case in which there is no creditors’ committee (or the
creditors’ committee is deemed inactive by the court) and in which the debtor
is subject to more oversight by the U.S. trustee than other chapter 11 debtors.
The Bankruptcy Code contains certain provisions designed to reduce the time a
small business debtor is in bankruptcy.
type of chapter 11 case in which there is no creditors’ committee (or the
creditors’ committee is deemed inactive by the court) and in which the debtor
is subject to more oversight by the U.S. trustee than other chapter 11 debtors.
The Bankruptcy Code contains certain provisions designed to reduce the time a
small business debtor is in bankruptcy.
Statement
of financial affairs
of financial affairs
A series of
questions the debtor must answer in writing concerning sources of income,
transfers of property, lawsuits by creditors, etc. (There is an official form a
debtor must use.)
questions the debtor must answer in writing concerning sources of income,
transfers of property, lawsuits by creditors, etc. (There is an official form a
debtor must use.)
Statement
of intention
of intention
A
declaration made by a chapter 7 debtor concerning plans for dealing with
consumer debts that are secured by property of the estate.
declaration made by a chapter 7 debtor concerning plans for dealing with
consumer debts that are secured by property of the estate.
Standard
of proof
of proof
Degree of
proof required. In criminal cases, prosecutors must prove a defendant’s guilt
“beyond a reasonable doubt.” The majority of civil lawsuits require
proof “by a preponderance of the evidence” (50 percent plus), but in
some the standard is higher and requires “clear and convincing”
proof.
proof required. In criminal cases, prosecutors must prove a defendant’s guilt
“beyond a reasonable doubt.” The majority of civil lawsuits require
proof “by a preponderance of the evidence” (50 percent plus), but in
some the standard is higher and requires “clear and convincing”
proof.
Statute
A law
passed by a legislature.
passed by a legislature.
Statute
of limitations
of limitations
The time
within which a lawsuit must be filed or a criminal prosecution begun. The
deadline can vary, depending on the type of civil case or the crime charged.
within which a lawsuit must be filed or a criminal prosecution begun. The
deadline can vary, depending on the type of civil case or the crime charged.
Sua
sponte
sponte
Latin,
meaning “of its own will.” Often refers to a court taking an action
in a case without being asked to do so by either side.
meaning “of its own will.” Often refers to a court taking an action
in a case without being asked to do so by either side.
Subordination
The act or
process by which a person’s rights or claims are ranked below those of others.
process by which a person’s rights or claims are ranked below those of others.
Subpoena
A command,
issued under a court’s authority, to a witness to appear and give testimony.
issued under a court’s authority, to a witness to appear and give testimony.
Subpoena
duces tecum
duces tecum
A command
to a witness to appear and produce documents.
to a witness to appear and produce documents.
Substance
abuse treatment
abuse treatment
A special
condition the court imposes that requires an individual to undergo testing and
treatment for abuse of illegal drugs, prescription drugs, or alcohol. Treatment
may include inpatient or outpatient counseling and detoxification.
condition the court imposes that requires an individual to undergo testing and
treatment for abuse of illegal drugs, prescription drugs, or alcohol. Treatment
may include inpatient or outpatient counseling and detoxification.
Substantial
abuse
abuse
The
characterization of a bankruptcy case filed by an individual whose debts are
primarily consumer debts where the court finds that the granting of relief
would be an abuse of chapter 7 because, for example, the debtor can pay its
debts.
characterization of a bankruptcy case filed by an individual whose debts are
primarily consumer debts where the court finds that the granting of relief
would be an abuse of chapter 7 because, for example, the debtor can pay its
debts.
Substantive
consolidation
consolidation
Putting the
assets and liabilities of two or more related debtors into a single pool to pay
creditors. (Courts are reluctant to allow substantive consolidation since the
action must not only justify the benefit that one set of creditors receives,
but also the harm that other creditors suffer as a result.)
assets and liabilities of two or more related debtors into a single pool to pay
creditors. (Courts are reluctant to allow substantive consolidation since the
action must not only justify the benefit that one set of creditors receives,
but also the harm that other creditors suffer as a result.)
Summary
judgment
judgment
A decision
made on the basis of statements and evidence presented for the record without a
trial. It is used when it is not necessary to resolve any factual disputes in
the case. Summary judgment is granted when – on the undisputed facts in the
record – one party is entitled to judgment as a matter of law.
made on the basis of statements and evidence presented for the record without a
trial. It is used when it is not necessary to resolve any factual disputes in
the case. Summary judgment is granted when – on the undisputed facts in the
record – one party is entitled to judgment as a matter of law.
Supervised
release
release
Term of
supervision served after a person is released from prison. The court imposes
supervised release during sentencing in addition to the sentence of
imprisonment. Unlike parole, supervised release does not replace a portion of
the sentence of imprisonment but is in addition to the time spent in prison.
U.S. probation officers supervise people on supervised release.
supervision served after a person is released from prison. The court imposes
supervised release during sentencing in addition to the sentence of
imprisonment. Unlike parole, supervised release does not replace a portion of
the sentence of imprisonment but is in addition to the time spent in prison.
U.S. probation officers supervise people on supervised release.
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Temporary
restraining order
restraining order
Akin to a
preliminary injunction, it is a judge’s short-term order forbidding certain
actions until a full hearing can be conducted. Often referred to as a TRO.
preliminary injunction, it is a judge’s short-term order forbidding certain
actions until a full hearing can be conducted. Often referred to as a TRO.
Testimony
Evidence
presented orally by witnesses during trials or before grand juries.
presented orally by witnesses during trials or before grand juries.
Toll
See statute
of limitations.
of limitations.
Tort
A civil,
not criminal, wrong. A negligent or intentional injury against a person or
property, with the exception of breach of contract.
not criminal, wrong. A negligent or intentional injury against a person or
property, with the exception of breach of contract.
Transfer
Any mode or
means by which a debtor disposes of or parts with his/her property.
means by which a debtor disposes of or parts with his/her property.
Transcript
A written,
word-for-word record of what was said, either in a proceeding such as a trial,
or during some other formal conversation, such as a hearing or oral deposition.
word-for-word record of what was said, either in a proceeding such as a trial,
or during some other formal conversation, such as a hearing or oral deposition.
Trustee
The
representative of the bankruptcy estate who exercises statutory powers,
principally for the benefit of the unsecured creditors, under the general
supervision of the court and the direct supervision of the U.S. trustee or
bankruptcy administrator. The trustee is a private individual or corporation
appointed in all chapter 7, chapter 12, and chapter 13 cases and some chapter
11 cases. The trustee’s responsibilities include reviewing the debtor’s
petition and schedules and bringing actions against creditors or the debtor to
recover property of the bankruptcy estate. In chapter 7, the trustee liquidates
property of the estate, and makes distributions to creditors. Trustees in
chapter 12 and 13 have similar duties to a chapter 7 trustee and the additional
responsibilities of overseeing the debtor’s plan, receiving payments from
debtors, and disbursing plan payments to creditors.
representative of the bankruptcy estate who exercises statutory powers,
principally for the benefit of the unsecured creditors, under the general
supervision of the court and the direct supervision of the U.S. trustee or
bankruptcy administrator. The trustee is a private individual or corporation
appointed in all chapter 7, chapter 12, and chapter 13 cases and some chapter
11 cases. The trustee’s responsibilities include reviewing the debtor’s
petition and schedules and bringing actions against creditors or the debtor to
recover property of the bankruptcy estate. In chapter 7, the trustee liquidates
property of the estate, and makes distributions to creditors. Trustees in
chapter 12 and 13 have similar duties to a chapter 7 trustee and the additional
responsibilities of overseeing the debtor’s plan, receiving payments from
debtors, and disbursing plan payments to creditors.
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U.S.
attorney
attorney
A lawyer
appointed by the President in each judicial district to prosecute and defend
cases for the federal government. The U.S. Attorney employs a staff of
Assistant U.S. Attorneys who appear as the government’s attorneys in individual
cases.
appointed by the President in each judicial district to prosecute and defend
cases for the federal government. The U.S. Attorney employs a staff of
Assistant U.S. Attorneys who appear as the government’s attorneys in individual
cases.
U.S.
trustee
trustee
An officer
of the U.S. Department of Justice responsible for supervising the
administration of bankruptcy cases, estates, and trustees; monitoring plans and
disclosure statements; monitoring creditors’ committees; monitoring fee applications;
and performing other statutory duties.
of the U.S. Department of Justice responsible for supervising the
administration of bankruptcy cases, estates, and trustees; monitoring plans and
disclosure statements; monitoring creditors’ committees; monitoring fee applications;
and performing other statutory duties.
Undersecured
claim
claim
A debt
secured by property that is worth less than the amount of the debt.
secured by property that is worth less than the amount of the debt.
Undue
hardship
hardship
The most
widely used test for evaluating undue hardship in the dischargeability of a
student loan includes three conditions: (1) the debtor cannot maintain – based
on current income and expenses – a minimal standard of living if forced to
repay the loans; (2) there are indications that the state of affairs is likely
to persist for a significant portion of the repayment period; and (3) the
debtor made good faith efforts to repay the loans.
widely used test for evaluating undue hardship in the dischargeability of a
student loan includes three conditions: (1) the debtor cannot maintain – based
on current income and expenses – a minimal standard of living if forced to
repay the loans; (2) there are indications that the state of affairs is likely
to persist for a significant portion of the repayment period; and (3) the
debtor made good faith efforts to repay the loans.
Unlawful
detainer action
detainer action
A lawsuit
brought by a landlord against a tenant to evict the tenant from rental property
– usually for nonpayment of rent.
brought by a landlord against a tenant to evict the tenant from rental property
– usually for nonpayment of rent.
Unliquidated
claim
claim
A claim for
which a specific value has not been determined.
which a specific value has not been determined.
Unscheduled
debt
debt
A debt that
should have been listed by the debtor in the schedules filed with the court but
was not. (Depending on the circumstances, an unscheduled debt may or may not be
discharged.)
should have been listed by the debtor in the schedules filed with the court but
was not. (Depending on the circumstances, an unscheduled debt may or may not be
discharged.)
Unsecured
claim
claim
A claim or
debt for which a creditor holds no special assurance of payment, such as a
mortgage or lien; a debt for which credit was extended based solely upon the
creditor’s assessment of the debtor’s future ability to pay.
debt for which a creditor holds no special assurance of payment, such as a
mortgage or lien; a debt for which credit was extended based solely upon the
creditor’s assessment of the debtor’s future ability to pay.
Uphold
The appellate
court agrees with the lower court decision and allows it to stand. See
affirmed.
court agrees with the lower court decision and allows it to stand. See
affirmed.
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Venue
The
geographic area in which a court has jurisdiction. A change of venue is a
change or transfer of a case from one judicial district to another.
geographic area in which a court has jurisdiction. A change of venue is a
change or transfer of a case from one judicial district to another.
Verdict
The
decision of a trial jury or a judge that determines the guilt or innocence of a
criminal defendant, or that determines the final outcome of a civil case.
decision of a trial jury or a judge that determines the guilt or innocence of a
criminal defendant, or that determines the final outcome of a civil case.
Voir
dire
dire
Jury
selection process of questioning prospective jurors, to ascertain their
qualifications and determine any basis for challenge.
selection process of questioning prospective jurors, to ascertain their
qualifications and determine any basis for challenge.
Voluntary
transfer
transfer
A transfer
of a debtor’s property with the debtor’s consent.
of a debtor’s property with the debtor’s consent.
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Wage
garnishment
garnishment
A
nonbankruptcy legal proceeding whereby a plaintiff or creditor seeks to subject
to his or her claim the future wages of a debtor. In other words, the creditor
seeks to have part of the debtor’s future wages paid to the creditor for a debt
owed to the creditor.
nonbankruptcy legal proceeding whereby a plaintiff or creditor seeks to subject
to his or her claim the future wages of a debtor. In other words, the creditor
seeks to have part of the debtor’s future wages paid to the creditor for a debt
owed to the creditor.
Warrant
Court
authorization, most often for law enforcement officers, to conduct a search or
make an arrest.
authorization, most often for law enforcement officers, to conduct a search or
make an arrest.
Witness
A person
called upon by either side in a lawsuit to give testimony before the court or
jury.
called upon by either side in a lawsuit to give testimony before the court or
jury.
Writ
A written
court order directing a person to take, or refrain from taking, a certain act.
court order directing a person to take, or refrain from taking, a certain act.
Writ of
certiorari
certiorari
An order
issued by the U.S. Supreme Court directing the lower court to transmit records
for a case which it will hear on appeal.
issued by the U.S. Supreme Court directing the lower court to transmit records
for a case which it will hear on appeal.
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