Motion definitions
Motion for a new trial
n. a request made by the loser for the case to be tried again on the basis that
there were significant legal errors in the way the trial was conducted and/or
the jury or the judge sitting without a jury obviously came to an incorrect
result. This motion must be made within a few days after the judgment is formally
entered and is usually heard by the same judge who presided at the trial. Such
a motion is seldom granted (particularly if the judge heard the case without
a jury) unless there is some very clear error which any judge would recognize.
Some lawyers feel the motion helps add to the record of argument leading to
an appeal of the case to an appeals court.
Appeal
1) v. to ask a higher court to reverse the decision of a trial court after final
judgment or other legal ruling. After the lower court judgment is entered into
the record, the losing party (appellant) must file a notice of appeal, request
transcripts or other records of the trial court (or agree with the other party
on an "agreed-upon statement"), file briefs with the appeals court
citing legal reasons for over-turning the ruling, and show how those reasons
(usually other appeal decisions called "precedents") relate to the
facts in the case. No new evidence is admitted on appeal, for it is strictly
a legal argument. The other party (Respondent or appellee) usually files a responsive
brief countering these arguments. The appellant then can counter that response
with a final brief. If desired by either party, they will then argue the case
before the appeals court, which may sustain the original ruling, reverse it,
send it back to the trial court, or reverse in part and confirm in part. For
state cases there are Supreme Courts (called Courts of Appeal in New York and
Maryland) which are the highest appeals courts, and most states have lower appeals
courts as well. For Federal cases there are Federal Courts of Appeal in ten
different "circuits," and above them is the Supreme Court, which selectively
hears only a few appeals at the highest level. 2) n. the name for the process
of appealing, as in "he has filed an appeal."
Relief from judgement
A court order relieving a party from the effect of a judgment (generally for
support or property distribution) based on such things as fraud, duress, perjury,
and the like.
Rule 26(b). Discovery scope and limits. Unless otherwise
limited by order of the court in accordance with these rules, the scope of discovery
is as follows:
(1) In general. Parties may obtain discovery regarding any matter, not privileged,
which is relevant to the subject matter involved in the pending action, whether
it relates to the claim or defense of the party seeking discovery or to the claim
or defense of any other party, including the existence, description, nature, custody,
condition and location of any books, documents, electronically stored information,
or other tangible things and the identity and location of persons having knowledge
of any discoverable matter. It is not ground for objection that the information
sought will be inadmissible at the trial if the information sought appears reasonably
calculated to lead to the discovery of admissible evidence.
A party need not provide discovery of electronically stored information from sources
that the party identifies as not reasonably accessible because of undue burden
or cost. On motion to compel discovery or for a protective order, the party from
whom discovery is sought must show that the information is not reasonably accessible
because of undue burden or cost. If that showing is made, the court may nonetheless
order discovery from such sources if the requesting party shows good cause, considering
the limitations of this subdivision. The court may specify conditions for the
discovery.
The frequency or extent of use of the discovery methods set forth in subdivision
(a) shall be limited by the court if it determines that: (i) the discovery sought
is unreasonably cumulative or duplicative, or is obtainable from some other source
that is more convenient, less burdensome, or less expensive; (ii) the party seeking
discovery has had ample opportunity by discovery in the action to obtain the information
sought; or (iii) the discovery is unduly burdensome or expensive, taking into
account the needs of the case, the amount in controversy, limitations on the parties'
resources, and the importance of the issues at stake in the litigation. The court
may act upon its own initiative after reasonable notice or pursuant to a motion
under subdivision (c).
(2) Insurance agreements. A party may obtain discovery of the existence and contents
of any insurance agreement under which any person carrying on an insurance business
may be liable to satisfy part or all of a judgment which may be entered in the
action or to indemnify or reimburse for payments made to satisfy the judgment.
Information concerning the insurance agreement is not by reason of disclosure
admissible in evidence at trial. For purposes of this paragraph, an application
for insurance shall not be treated as part of an insurance agreement.
(3) Trial preparation: Materials. Subject to the provisions of subdivision (b)(4)
of this rule, a party may obtain discovery of documents and tangible things otherwise
discoverable under subdivision (b)(1) of this rule and prepared in anticipation
of litigation or for trial by or for another party or by or for that other party's
representative (including the other party's attorney, consultant, surety, indemnitor,
insurer, or agent) only upon a showing that the party seeking discovery has substantial
need of the materials in the preparation of the party's case and that the party
is unable without undue hardship to obtain the substantial equivalent of the materials
by other means. In ordering discovery of such materials when the required showing
has been made, the court shall protect against disclosure of the mental impressions,
conclusions, opinions, or legal theories of an attorney or other representative
of a party concerning the litigation.
A party may obtain without the required showing a statement concerning the action
or its subject matter previously made by that party. Upon request, a person not
a party may obtain without the required showing a statement concerning the action
or its subject matter previously made by that person. If the request is refused,
the person may move for a court order. The provisions of Rule 37(a)(4) apply to
the award of expenses incurred in relation to the motion. For purposes of this
paragraph, a statement previously made is (A) a written statement signed or otherwise
adopted or approved by the person making it, or (B) a stenographic, mechanical,
electrical, or other recording, or a transcription thereof, which is a substantially
verbatim recital of an oral statement by the person making it and contemporaneously
recorded.
(4) Trial preparation: Experts. Discovery of facts known and opinions held by
experts, otherwise discoverable under the provisions of subdivision (b)(1) of
this rule and acquired or developed in anticipation of litigation or for trial,
may be obtained only as follows:
(A)(i) A party may through interrogatories require any other party to identify
each person whom the other party expects to call as an expert witness at trial,
to state the subject matter on which the expert is expected to testify, and to
state the substance of the facts and opinions to which the expert is expected
to testify and a summary of the grounds for each opinion. (ii) Upon motion, the
court may order further discovery by other means, subject to such restrictions
as to scope and such provisions, pursuant to subdivision (b)(4)(C) of this rule,
concerning fees and expenses as the court may deem appropriate.
(B) A party may discover facts known or opinions held by an expert who has been
retained or specially employed by another party in anticipation of litigation
or preparation for trial and who is not expected to be called as a witness at
trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances
under which it is impracticable for the party seeking discovery to obtain facts
or opinions on the same subject by other means.
(C) Unless manifest injustice would result, (i) the court shall require that the
party seeking discovery pay the expert a reasonable fee for time spent in responding
to discovery under subdivisions (b)(4)(A)(ii) and (b)(4)(B) of this rule; and
(ii) with respect to discovery obtained under subdivision (b)(4)(A)(ii) of this
rule the court may require, and with respect to discovery obtained under subdivision
(b)(4)(B) of this rule the court shall require the party seeking discovery to
pay the other party a fair portion of the fees and expenses reasonably incurred
by the latter party in obtaining facts and opinions from the expert.
Ballistic fingerprinting, a sub-category of firearms examination, is a forensic
method that is intended to help find the gun that was used in a crime by matching
the bullet's striations (or striae) with the rifled barrel through which it was
fired, or by matching marks on the cartridge case to marks in the chamber and
breech. The technique is part of the science of forensic ballistics, and it is
an application of toolmark identification. The term ballistic fingerprinting,
a comparison to the use of fingerprints in forensics, is more commonly encountered
by the public.
Ballistic fingerprinting, a sub-category of firearms
examination, is a forensic method that is intended to help find the gun that
was used in a crime by matching the bullet's striations (or striae) with the
rifled barrel through which it was fired, or by matching marks on the cartridge
case to marks in the chamber and breech. The technique is part of the science
of forensic ballistics, and it is an application of toolmark identification.
The term ballistic fingerprinting, a comparison to the use of fingerprints in
forensics, is more commonly encountered by the public.
Petition for Writ of Certiorari. (informally
called "Cert Petition.") A document which a losing party files with
the Supreme Court asking the Supreme Court to review the decision of a lower
court. It includes a list of the parties, a statement of the facts of the case,
the legal questions presented for review, and arguments as to why the Court
should grant the writ.
Writ of MANDAMUS - The name of a writ, the principal
word of which when the proceedings were in Latin, was mandamus, we command.
It is a command issuing in the name of the sovereign authority from a superior
court having jurisdiction, and is directed to some person, corporation, or,
inferior court, within the jurisdiction of such superior court, requiring them
to do some particular thing therein specified, which appertains to their office
and duty, and which the superior court has previously determined, or at least
supposes to be consonant to right and justice.
Mandamus is not a writ of right, it is not consequently granted of course,
but only at the discretion of the court to whom the application for it is made;
and this discretion is not exercised in favor of the applicant, unless some
just and useful purpose may be answered by the writ.
This writ was introduced io prevent disorders from a failure of justice; therefore
it ought to be used upon all occasions where the law has established no specific
remedy, and where in justice and good government there ought to be one. Mandamus
will not lie where the law has given another specific remedy.
The 13th section of the act of congress of Sept. 24, 1789, gives the Supreme
Court power to issue writs of mandamus in cases warranted by the principles
and usages of law, to any courts appointed or persons holding office, under
the authority of the United States. The issuing of a mandamus to courts, is
the exercise of an appellate jurisdiction, and, therefore constitutionally vested
in the supreme court; but a mandamus directed to a public officer, belongs to
original jurisdiction, and by the constitution, the exercise of original jurisdiction
by the supreme court is restricted to certain specified cases, which do not
comprehend a mandamus. The latter clause of the above section, authorizing this
writ to be issued by the supreme court to persons holding office under the authority
of the United States, is, therefore, not warranted by the constitution and void.
The circuit courts of the United States may also issue writs of mandamus, but
their power in this particular is confined exclusively to those cases in which
it may be necessary to the exercise of their jurisdiction
En banc review
(on bonk) French for "in the bench," it signifies a decision by the
full court of all the appeals judges in jurisdictions where there is more than
one three- or four-judge panel. The larger number sit in judgment when the court
feels there is a particularly significant issue at stake or when requested by
one or both parties to the case and agreed to by the court.