Sometimes when you feel you know a lot about the law, you get thrown a curve ball. An action is not a motion, prejudice is not really prejudice, standing has nothing to do with the body, and prayer is just plain weird. Indeed, it’s sometimes difficult to understand legal terms or concepts, especially when you’ve had years of using those terms or concepts in a different way.
In civil law, an action and a motion are different. You wouldn’t call an action a motion or a motion an action. We’ll look at these and other legal terms that might be baffling for pro se litigants.
Action v. Motion
Dictionary.com’s definition of motion is “the action or process of moving or being moved”. It defines action as “something done or performed; act; deed”. The two words have enough commonality that they’re often used as synonyms for each other. But leave it to the legal profession to muddy the waters on a term. In legal terms, motion and action are two different concepts. They may have the essence of things flowing, but you can’t use one in place of the other.
An action is an entire lawsuit brought by a person against another for harm done. A motion, on the other hand, is a written request to a judge for an order on a particular issue or argument.
A complaint is an action. A motion to dismiss is a request for a judge to dismiss a complaint or a count in the complaint. If the defendant is successful in having the motion granted and the case dismissed, the plaintiff likely can amend or refile their action. Motions help move the action to its final outcome, settlement, judgment, or dismissal.
Ruling v. Finding v. Holding v. Opinion v. Order
In common use, all these terms mean completely different things. You hold a baby. You find a dollar. A king rules over a kingdom. Everyone has an opinion, and you order food at a restaurant or order a child to go to bed. How can these terms possibly mean similar concepts? Well, you know, the legal profession will make a way.
By now you know where I’m going with this. Holding, finding, ruling, opinion, and order have more similar meaning in legal terms to each other than action does to motion. They’re related, differing slightly based on how, when, and what was said and done.
A ruling is a judge’s oral decision or conclusion, usually during a hearing. The judge will follow this up with a written order. You can’t typically appeal a judge’s oral ruling, but you can appeal his written order.
Similarly, a finding is a judge’s or jury’s decision or conclusion about what the facts are in a trial or hearing. A judge may even set out a numbered list of separate facts (findings). The findings are made part of the judge’s ruling and subsequent order. Findings are often critical to whether a case can be successfully appealed.
A holding is a court’s written theory or conclusion of the law based on the particular set of facts presented. For instance, if a trial judge just granted your motion to dismiss, he may simply say that the motion is granted. He may also state whether the dismissal is with or without prejudice, and he may even state the reasons why he made his decision (findings). He will not pontificate about the finer points of the law nor try to draw conclusions about the meaning of the law outside of cases presented at the hearing. Therefore, you rarely have a holding in a trial court.
When a court has made its decision an opinion is drawn up. Similar to a holding, an opinion is the written rationale for a particular decision or ruling.
In legal terms, an order is a written directive issued by a judge (court) telling someone what they can or cannot do. A certified copy of an order, judgment or court’s opinion is called a mandate. If you’re in an appeal, you’ll get an order or opinion. Then weeks later, the appellate court will issue a mandate, an official copy of the opinion/order.
Prayer v. Demand
In everyday life, a prayer and a demand have distinct meanings. The Dictionary.com definition of prayer is “a spiritual communion with God or an object of worship, as in supplication, thanksgiving, adoration, or confession.” That definition is far from the meaning of demand, which is an authoritative request that someone else do something. In the law, however, the two are similar.
A prayer for relief tells the court what one party seeks as a remedy for the harm that was caused him or her. The prayer is usually placed at the end of a complaint or petition. A demand is a less genteel request with the force of entitlement. It can appear in a settlement offer, counteroffer, a motion, or even a demand letter. You will often see a prayer for relief or a demand in the form of a wherefore paragraph at the end of a motion.
Demand–“Wherefore, the defendant moves this court for dismissal of this case with prejudice.”
Prayer for Relief–Petitioner prays this Court accepts jurisdiction in this matter.
Prejudice v. Bias
Prejudice and bias. Similar terms right? Depends.
Prejudice has two meanings in legal terms. The first, we all know about. It’s prejudging something, usually in a negative way. It’s synonymous with bias. The two terms are often used to define each other. So, in legal terms, prejudice can mean just what you think it means. An opening argument can be deemed prejudicial. The bringing in of a certain witness or subject matter can be prejudicial.
However, there is another use for the term prejudice in the law. Prejudice can also be defined as the disposition or dismissal of a case by a judge. A dismissal with prejudice ends the case. It’s final. The plaintiff cannot refile the lawsuit. A dismissal without prejudice is one where the plaintiff is allowed to amend the complaint or refile it.
As for bias. In some fields, like engineering, it might mean something completely different from prejudice, but in the legal field, it’s just that–bias.
This is a fun one. A dictionary definition for standing can include, having an erect or upright position or having rank or status. According to the American Bar Association, however, standing means “The legal right to bring a lawsuit. Only a person with something at stake has standing to bring a lawsuit.”
The legal field is chock full of everyday terms like these. We think we know the meaning of them, but we often don’t. Terms that seem synonymous with others may not be. As a pro se litigant, it’s okay to handle unfamiliar legal terms and concepts as they come at you. Get an understanding of them, and use them to benefit your case.
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