Summary: This is a glossary of legal terms appearing in the Guide to Strategic Litigation report.
This guide has been produced to help those working for children's rights to understand what strategic litigation is and consider this as an option for effecting change for children by using the law. The guide is aimed at legal and non legal NGO staff and can be adapted to local settings and procedures.
Glossary of legal terms
Amicus curiae means “friend of the court,” and many jurisdictions permit interested organizations to prepare and file legal papers in support of one of the parties in the case as amicus curiae.
Appeals are cases where a lower trial court has already made a determination and the losing party has asked a higher court to review that decision. Appeals can be key to strategic litigation, both in terms of ensuring that your case will be fairly heard and in terms of getting access to higher, more prominent courts to raise the profile of the case and offer a deeper impact.
Civil cases are generally brought by individuals or organizations seeking remedies from the court to cease or compensate for damage caused by the defendants.
Civil law. See Legal systems.
Common law. See Legal systems.
In a Contingency fee arrangement, your lawyers would not charge up front or hourly for their services; instead, their payment would be contingent on their success. If the lawyers win your case, they will get to keep a percentage of the plaintiffs’ damages, the amount of money the judge, tribunal or jury awards the plaintiffs to compensate them for the harm they suffered at the hands of the defendants. If the lawyers lose, they may get nothing.
Criminal cases are usually filed by government or tribunal lawyers (often called prosecutors) to punish or otherwise sanction a defendant for breaking the jurisdiction’s criminal laws or codes of conduct, although some jurisdictions may allow for privately-filed criminal cases in certain circumstances.
Damages are the amount of money that judges, tribunals or juries award the plaintiffs to compensate them for the harm they suffered at the hands of the defendants.
Defendants. Once a case is filed, the parties being sued are usually known as a defendants, although in some courts they may also be referred to as respondents.
Dualist systems: see Monist and Dualist systems.
Evidence is information that you submit to the court to prove your case.
An exhaustion of remedies requirement means that you must first go through other judicial channels available before a court will hear your claim. For instance, before appealing to an international court, you are usually expected to go through the national court system first.
In a group action lawsuit, also known as a class action, collective action or group litigation, a small group of people or a representative organization sues on behalf of a much larger group.
Jurisdiction. If you file your case in a local, state or national court, the place where you file will be known as your jurisdiction.
Legal systems. The three major legal systems in the world are common law, civil law and religious law:
In Common law systems, most prominent in the United Kingdom and former British colonies, the law is determined not only by written laws, but by court decisions. This means that when a judge looks at your case, he or she will not only look to the statutes, regulations, guidance, code, or other written laws you reference, but will also look for any past court decisions that might relate to your case. In common law systems, precedent – the body of past court decisions – plays a much larger role than in other legal systems.
Civil law is the most widespread system of law, and is in place across most of the continent of Europe and many former European colonies. Civil law relies more heavily on written codes than common law. As a result, precedent plays less of a role and judges are less likely to give weight to past decisions in civil law jurisdictions.
In Religious legal systems, religious doctrines or texts take a primary role in the crafting, interpretation and application of the jurisdiction’s laws. The importance of court decisions and precedent varies depending on the predominant religion and the precise legal system in place, but judges in many jurisdictions do give at least some weight to both previous court decisions or orders and the opinions of respected religious legal scholars.
Monist and Dualist systems. In general, there are two ways jurisdictions approach treaties and other international agreements. In what are called monist systems, international laws and agreements can be enforced directly by national authorities and in national courts once a treaty or agreement has been signed, ratified, and entered into force. In dualist systems, however, treaties or agreements cannot be enforced by the authorities or in the courts until there are national laws passed to incorporate the principles behind those treaties or agreements.
Plaintiffs, also called complainants, claimants and petitioners, are people who can bring the case to court that supports your goal or cause.
Precedent represents the body of past court decisions, and is often most relevant in common law systems.
Pro bono legal services are provided free of charge.
Provisional measures, also called provisional remedies, interim measures, interim injunctions, and preliminary injunctions, are designed to prevent any further harm to the parties while the case is being decided, so the court or tribunal may order the defendants to cease certain actions at the outset of the case or prevent a potentially harmful law or policy from going into effect.
Religious law. See legal systems.
The Rules of Evidence determine what kind of proof you will be allowed to present to the court.
Serving the papers you file with a court to begin a lawsuit means formally delivering a copy to the defendants to give them notice that you are suing them.
Standing is just another way to figure out who should bring a lawsuit. For example, in some countries, in order to have standing to bring a lawsuit, you must have been directly damaged or victimized by the person, organization, or government you are suing.
A Statute of limitations or prescriptive period is a law that sets out how long you have to file your lawsuit. Different types of claims or lawsuits usually have different time requirements, so it is important to know the nature of the claims you are hoping to bring in order to determine how long you have to file them with the court.
Strategic litigation: sometimes also called impact litigation, involves selecting and bringing a case to the courtroom with the goal of creating broader changes in society. People who bring strategic litigation want to use the law to leave a lasting mark beyond just winning the matter at hand.
Third parties are people or organizations who were not directly damaged by actions or behavior of the person, organization, or government you are suing, but retain a strong interest in the outcome of the litigation.
The full report is available to download here: http://www.crin.org/docs/Childrens_Rights_Guide_to_Strategic_Litigation.pdf
- WHAT is strategic litigation: an introduction
- WHEN would you bring strategic litigation?
- WHO can bring strategic litigation?
- WHERE would you bring strategic litigation?
- HOW would you bring strategic litigation?
- WHY would you bring strategic litigation
- Legal database
- Guide to international mechanisms