Legal Terms - A Glossary

Memorandum Law and Legal Definition

A memorandum, in general, is a brief writing, note, summary or outline. It is an informal record or outline of something which may or may not be detailed later.

A "memorandum of law" may be prepared by an attorney to support a legal argument, which is similar to a brief but with less attention to legal writing formalities. It contains legal arguments based upon the lawyer's understanding of the law applicable to the issues and is often supported by citations to legal authority. A "memorandum of decision," or "memorandum opinion," is a short statement by a judge announcing his/her ruling without explanation or giving detailed reasons, which may or may not be followed by a more thorough written decision.

Evidentiary Hearing Law and Legal Definition

An evidentiary hearing is a formal examination of charges by the receiving of testimony from interested persons, irrespective of whether oaths are administered, and receiving evidence in support or in defense of specific charges which may have been made. Where an evidentiary hearing is held, the parties are entitled to know the charges and claims involved, have a right to meet such charges or claims by competent evidence, and the right to be heard by counsel upon the force of evidence put forth and upon the applicable law.

Plea in Bar Law and Legal Definition

Plea in bar is a pleading introduced by the defendant in an action as a complete defense, designed to defeat the action for all time. A plea by an accused in a criminal case, asserting any matter in confession and avoidance not admissible under the plea of not guilty is a plea in bar.

In the common law plea in bar is a plea that set out special reasons for which a trial cannot go ahead. They are the plea of autrefois convict, the plea of autrefois acquit, and the plea of pardon.

Circuit Court Law and Legal Definition

A circuit court is an intermediate appellate court of the United States federal court system. A circuit court sits in one of the 11 circuits the country is divided into. A circuit court decides appeals from the district courts within its federal judicial circuit, as well as certain other federal courts and administrative agencies.

Historically, circuit courts were originally courts that would hold sessions in multiple locations within its judicial district. Circuit judges would travel long distances to hear cases in far-flung areas. Most of these local judicial circuits have disappeared now that local areas have a large enough caseload to establish a judiciary system.

Motion to Dismiss Law and Legal Definition

A motion to dismiss is a party’s request to a court to dismiss a case because of settlement, voluntary withdrawal, procedural defect or claim is one for which the law provides a remedy.

Under the Federal Rules of Civil Procedure, Rule 41(a) [USCS Fed Rules Civ Proc R 41] a plaintiff may voluntarily dismiss the case.

Similarly a defendant may ask the court to dismiss a case, based on one of the defenses listed in Rule 12(b) [ USCS Fed Rules Civ Proc R 12]. These defenses include

Lack of personal jurisdiction
Lack of subject-matter jurisdiction
Improper venue
Insufficient process
Insufficient service of process
Plaintiff's failure to state a claim on which relief can be granted, and
Failure to join an indispensable party.

Often a defendant will file a motion to dismiss for failure to state a claim, which is governed by Rule 12(b)(6), claiming that even if all the plaintiff's allegations are true, they would not be legally sufficient to state a claim on which relief might be granted.

Hearsay Rule Law and Legal Definition

The hearsay rule is a rule of evidence which prohibits admitting testimony or documents into evidence when the statements contained therein are offered to prove their truth and the maker of the statements is not able to testify about it in court. Hearsay is "second-hand" information. Because the person who supposedly knew the facts is not in court to give testimony, the trier of fact cannot judge the demeanor and credibility of the alleged first-hand witness, and the other party's lawyer cannot cross-examine him or her. Therefore, there is a constitutional due process danger that it deprives the other side of an opportunity to confront and cross-examine the "real" witness who originally saw or heard something.

However, there are numerous exceptions to the hearsay rule. Exceptions include:

a statement by the opposing party in the lawsuit which is inconsistent with what he/she has said in court
business entries made in the regular course of business, when a qualified witness can identify the records and tell how they were kept
official government records which can be shown to be properly kept
a writing about an event made close to the time it occurred, which may be used during trial to refresh a witness's memory about the event
a "learned treatise" (historical works, scientific books, published art works, maps and charts)
judgments in other cases
a spontaneous excited or startled utterance
) contemporaneous statement which explains the meaning of conduct if the conduct was ambiguous
a statement which explains a person's state of mind at the time of an event
a statement which explains a person's future intentions
prior testimony under oath
a declaration by the opposing party in the lawsuit which was contrary to his/her best interest if the party is not available at trial
a dying declaration by a person believing he/she is dying
a statement made about one's mental set, feeling, pain or health, if the person is not available-most often applied if the declarant is dead
a statement about one's own will
other exceptions based on a judge's discretion that the hearsay
testimony has surrounding circumstances indicating that it must be reliable.