Legal Terminology

Sometimes listening to lawyers talk can sound like Greek.  So you can navigate what is going on, we have provided some basic terminology for you.  The words are in alphabetical order.

Adjournment:  An adjournment is moving a court date from one date to another.

Burden of Proof:  There are two types of burden of proof.  The burden of producing evidence means that you, as a litigant, must put on evidence to sustain your case or it will be dismissed.  Usually the person with the burden of producing evidence goes first in the court room.  For example, in a child custody case, the person asking for a change in custody bears the burden of producing evidence.  In a criminal case, the prosecution or the State of Michigan bears the burden of proof.  And in a civil case, the plaintiff usually bears the burden of proof.

The other type of burden of proof involves the level of evidence needed for a litigant to win the case.  There are three levels.  The lowest level is the preponderance of the evidence standard.  This means that there is evidence that persuades the judge or jury that a fact is probably true (more likely than not).  The next level is clear and convincing evidence.  Clear and convincing evidence means evidence that does more than just merely persuades you that a fact is probably true.  To be clear and convincing, the evidence must be strong enough to cause you to have clear and firm belief that a change in custody is warranted.  This means if the cases are relatively equal, the party with the burden of proof will lose.  The highest and strictest standard is beyond a reasonable doubt.  This is the level of proof required in criminal cases and in some child protective proceedings involving native american children.  The Michigan Model Criminal Jury State define a reasonable doubt.  A reasonable doubt is a fair, honest doubt growing out of the evidence or lack of evidence. It is not merely an imaginary or possible doubt, but a doubt based on reason and common sense. A reasonable doubt is just that—a doubt that is reasonable, after a careful and considered examination of the facts and circumstances of this case.

Caselaw:  When a case is heard and someone is unhappy with the case, they can file an appeal.  This appeal is heard by the Michigan Court of Appeals first.  They will issue an opinion in the case. For consistency, the rule is that cases should be decided in a similar fashion to each other.  The opinion becomes a part of Caselaw, that is that cases in the future should be decided in a similar fashion as cases that have already been decided.  If the parties want to appeal the case further, they can go to the Michigan Supreme Court.  The Michigan Supreme Court can also issue an opinion that overrules the the Michigan Court of Appeals.

Court Rules.  The Michigan Court Rules are are a set of rules published by the Supreme Court that give instructions a litigant must follow when appearing in court.  They cover everything from filing a lawsuit to discovery of evidence, to appeals in a case.

Evidentiary Hearing:  A hearing, much like a trial, where the court takes evidence and usually follows the Michigan Rules of Evidence.  This would look like a traditional trial where the parties would call witnesses to the stand to testify and other evidence, like documents would be presented to the court.

Motion:  A motion is an application to the court for an order in a pending lawsuit.  MCR 2.119.

Objection:  An objection can be something a lawyer or party does in court when they object to evidence being entered that is not within the rules of evidence.  The party must state why the evidence is not within the rules and cite the section of the rules of evidence that it violates.  The party may also be required to explain why their evidence complies with the rules of evidence.  

An objection can also be a document that a party files in response to the ruling of a referee or in response to an order that is signed or presented to the court.  There are specific rules for different kinds of objections that must be followed or the objection may be thrown out of court.

Referee:  A referee is a lawyer or another person appointed by the circuit court judge to hear specific types of domestic relations motion.  Parties have the right to object to a referee’s decision and ask for a de novo hearing.  A de novo hearing where the judge will hearing the evidence and make his own decision. That decision could be different than the decision the referee made.

Rules of Evidence:  The Michigan Rules of Evidence are the rules that the court follows when admitting evidence in a case.  These rules apply in some hearings and not in other hearings.  For example, the rules of evidence apply in child custody hearings, but not at preliminary hearings in child removal cases.  They apply at criminal trials, but not at criminal sentencing.  One rule of evidence that many people are familiar with is the “hearsay” rule, which is a rule that has 32 exceptions and is about 7 pages long itself.  It defines hearsay as follows:

“Hearsay” is a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

The rule is as follows:

Hearsay is not admissible except as provided by these rules.

In other words, hearsay is admissible if it is in accordance with the rules, and therefore if it fits within 1 of 32 exceptions or if according to the rules it is not actually hearsay.

This is one example of how complex the Michigan Rules of Evidence are.  Attorneys spend a lifetime and a career working to master the Rules of Evidence.  It is not a task that is for the faint of heart.

***This web site and article is for informational purposes only and is intended to give you, the viewer, information about the type of services provided by the Doak Law Firm. This is not intended as nor should this web site or article be used as legal advice. Your case should be specifically reviewed by an attorney. Contacting the Doak Law Firm via this web site, Facebook, Twitter, via e-mail, or via phone does not create an attorney-client relationship. An attorney client relationship can only be created by express written agreement with the Doak Law Firm. We offer a free ½ hour consultation which is no risk to you to allow you access to the legal advice you need to know the proper direction to take your case. Start there. That is the smart choice. ***

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