At some point in my career, I realized that the meaning of terms used in almost any conversation with a lawyer are not at all self-explanatory. Similarly, articles in the press will often use legal terms on the assumption that the readers know what they mean but actually might not.
At the same time, clients and readers are reluctant to ask about something they may feel they are supposed to know. With that in mind, this installment of PARCEL Counsel will explore some of the most common terms used in legal proceedings.
Nature of Suit or Proceeding
In business matters, a lawsuit for the recovery of monetary damages is the most typical type of legal proceeding. One party, the plaintiff, is attempting to recover money from another party, the defendant. The two basic reasons, causes of action, are either for a breach of contract or for a tort. A tort is a civil wrong not involving a breach of contract, for instance, negligence.
Other proceedings seek equitable or injunctive relief. An injunction is a court order which requires someone either to do something or to stop doing something which they are already doing or threatening to do. The latter is also called a restraining order. Injunctive relief can be either temporary or permanent in nature.
An example of a permanent injunction would be a permanent restraining order prohibiting a company from engaging in interstate motor carrier operations without the proper Federal Motor Carrier Safety Administration (FMCSA) operating authority.
In addition to court proceedings there are also regulatory proceedings before an administrative agency. In transportation, an agency such as the FMCSA could initiate the proceedings to promulgate a new regulation or clarify an existing regulation. Or, one or more carriers, brokers, or shippers could initiate proceedings to resolve a dispute by filing a Petition specifying the relief they are seeking.
Jurisdiction and Venue
Jurisdiction is the term used to describe a particular court’s legal authority to decide a case. A court must have both personal jurisdiction, the authority to decide cases involving the parties to the proceeding, and subject matter jurisdiction, the authority to decide cases involving the issues in the proceeding.
Venue is the term used to describe the particular location and court, tribunal or agency which will decide a case. Although a court might have jurisdiction over a particular proceeding, it does not necessarily mean that the court would be the proper venue for the proceeding. For instance, in a loss and damage claim arising out of an interstate shipment any U.S. District Court would have jurisdiction to hear the matter but only certain ones would be the proper venue. For example, the U.S. District Court located at the origin point of the shipment would be a court where the suit would be properly venued.
INITIATION OF SUIT
In general, court proceedings are initiated by the service of a Summons and Complaint. For State Court matters, the exact procedures vary from state to state. In Federal Court, the attorney for the plaintiff prepares the complaint and files it with the Court who then prepares and issues the summons.
The complaint will specify the claims being made by the plaintiff. The summons will state that the defendant is required to submit a formal Answer in response to the complaint to be served upon the plaintiff and filed with the court by the date specified in the summons.
In the next installment of PARCEL Counsel, we will look at the terms that come into play once the proceedings have been commenced.
All for now!
Brent Wm. Primus, J.D., is the CEO of Primus Law Office, P.A. and the Senior Editor of transportlawtexts, inc. Previous columns, including those of William J. Augello, may be found in the “Content Library” on PARCELindustry.com. Your questions are welcome at email@example.com.
This article originally appeared in the September/October, 2023 issue of PARCEL.