Affidavit -An affidavit is a written or printed declaration or statement of facts, made voluntarily, and confirmed by oath or affirmation of the party making it, taken before a person having the authority to administer an oath or affirmation, such as a Notary Public. (Black's Law Dictionary.) Occasionally, the term is used interchangeably with the term declaration. An affidavit customarily is a statement or declaration, sworn to before a Notary Public and notarized. The certification of the Notary Public is a jurat, as distinguished from an acknowledgment. The jurat is recognized by the words "Sworn to before me, a Notary Public, on [date], at [the place where the affidavit is sworn to, signed and Notarized.
Brief - A written statement arguing a point in a case. Usually a summary or a condensed statement made in support of a Motion.
Complaint - The initial pleading in Montana in which an action is commenced, and sets forth a claim for relief. [Black's Law Dictionary]. The filing of the complaint is a charge against a defendant or several defendants and sets forth a cause or causes of actions against them. It may specify how the defendants are culpable, and will set forth the claim for damages sought. The filing of the complaint does not give the court jurisdiction over the defendant or defendants.
Complaint & Order - Common terms given to a small claims filing in which the Small Claims Court sets a date and time for the initial appearance of both parties in an action.
Certificate of Service - A term given to the return of service filed with the court by a sheriff or a registered process server in which the written statement and signature of the sheriff or registered process server that does not require a notary.
Declaration - An unsworn statement or narrative of facts made by an attorney, a party, a witness, or a person having an interest to assert facts or representations. A declaration is customarily one made under penalty of rather than sworn to before a Notary Public, but serves a similar function. [See Affidavit.]
Interrogatories - A series of written questions sent or served to a party in an action during the discovery period of a civil action. Definitions of Common Legal Documents & Terms
Motion - An oral or written application made to a court to obtain a ruling in regards to some aspect of a case. When submitted in writing a motion will frequently be accompanied by a brief in support of the motion.
Notice to Pay Rent or Quit -A notice to a tenant of a rental property, informing him or her that the rent, or a portion of the rent, is due. Service on the tenant directs the tenant in writing that the rent is due, usually within three days after the date of service, and that if the rent is not paid, the tenant is requested to "quit" (leave) the premises. If the rent is not paid in the days specified in the notice, the owner of the premises may file a complaint for "Unlawful Detainer." The following are variations of this type of notice: Notice to Pay or Quit, Notice to Pay Rent or Surrender Possession, Notice to Pay Rent or Surrender Possession of the Premises. The title of the notice may specify the days the notice is giving, such as Three Day Notice to Pay Rent or Quit. There are other types of notices to tenants that satisfy a variety of alternative legal requirements. A Notice to Cure or Quit would give the tenant notice that he or she is in breach of a covenant, and if the tenant does not cure the breach, he or she will be requested to leave. A Notice to Perform or Quit would give the tenant notice to perform an act required under the rental agreement. For instance, the agreement may require that the tenant give the landlord evidence of premises liability insurance. A Notice to Inspect the Premises gives the tenant notice that the landlord will be entering and inspecting the premises on a particular date and time.
Notice to Quit - This notice is given to tenants to terminate the tenancy of the premises. The notice states that at the end of a specified date, usually thirty days, the tenancy is terminated and directs that the tenant must move out. Alternative titles of this document are Notice to Terminate Tenancy or Termination Notice, or Thirty Day Notice to Quit.
Order for Appearance of Judgment Debtor - Upon application of the plaintiff to testify as to the location and amount of assets he or she has available to satisfy the judgment. The order, once served, places a lien on all of the judgment debtor's assets until the judgment is paid. Process servers commonly refer to this document as a `Debtors Exam'. Since this is a court order that compels a personal appearance of the judgment debtor, disobedience of the order by not appearing could subject the judgment debtor to a citation of contempt, and ultimately lead to an arrest. Definitions of Common Legal Documents & Terms
Order to Show Cause -An order [...] to appear as directed, and present to the court such reasons or considerations as one has to offer why a particular order should not be confirmed, take effect or be executed. [Black's Law Dictionary]. The order customarily does not hold the person in contempt if he or she does not appear at court to "show cause," but disobedience of the directives in the order could bring the person into contempt.
Personal Service - Service of process directly to the party named on the summons, complaint or petition. In most lawsuits in the United States, personal service is required to prove service. Most states allow substituted service in almost all lawsuits unless you are serving a corporation, LLC, LLP, or other business entity; in those cases, personal service must be achieved by serving (in hand) the documents to the "Registered Agent" of a business entity. In California, the documents do no have to touch the individual, nor does the individual have to accept the documents for service to be complete. In California, the documents must be visible to the person being served, i.e., not in a sealed envelope. If the individual refuses to accept service, flees, closes the door, etc., and the individual has been positively identified as the person to be served, documents may be "drop" served, and it is considered a valid service.
Petition - A formal, written application to a court to a court requesting judicial action on a certain matter. [Black's Law Dictionary]. A petition for dissolution of marriage is the initial document filed in a divorce action and is similar to a complaint in a civil action.
Preliminary Injunction - An interlocutory injunction issued after notice and hearing which restrains a party pending trial on the merits. [It is] [a] Procedural device [...], which is designed to preserve the existing status of the litigants until a determination, can be made on the merits of the controversy. [Black's Law Dictionary.]
Process Server - A person who serves or "delivers" legal documents. In California, anyone serving more than 10 papers per year must be registered and bonded with the state.
Proof of Service - Once service of process has been effected, the responsible officer or process server must file a return of service or proof of service or "Affidavit of Service" with the court (or convey one to the plaintiff to file with the court). The return of service indicates the time and place at which service was effected, the person served, and any additional information needed to establish that service was properly made. It is signed by the process server, and operates as prima facie evidence that service of process was effectively made.
Restraining Order or Temporary Restraining Order - An order in the nature of an injunction, [prohibiting and] forbidding the defendant to do the threatened act until a hearing on the application [for the order] can be obtained. [This order] is distinguishable from an injunction, in that the [restraining order] is intended only as a restraint until the propriety of granting an injunction can be determined. [Black's Law Dictionary.]
Signed - Includes any symbol executed or adopted by a party with present intention to authenticate a writing. U.C.C. 1-201(43) [Black Law Dictionary]
Subpoena - A command to appear at a certain time and place to give testimony as a witness. [Black's Law Dictionary.] The witness is compelled to attend or respond to the subpoena on the date and time stated and may be subject to a citation for contempt if he or she does not appear. Subpoenas may be issued by a clerk of the court, a judge, or by an attorney of record.
Subpoena Duces Tecum -A command to appear at a certain time and place to give testimony as a witness. Duces Tecum is Latin and roughly defined as "to bring with", indicating that the subpoena requires the witness to bring or produce documents designated and described in the Subpoena or an attachment. Definitions of Common Legal Documents & Terms
Substituted Service -When an individual party to be served is unavailable for personal service, many instances allow for substituted service. Substituted service allows the process server to leave service documents with another responsible individual, called a person of suitable age and discretion, such as a cohabiting adult. Under the Federal Rules, substituted service may only be made at the home or abode of the defendant. In California, if substituted service is made, the documents must also be mailed to the recipient. Substituted service often requires a serving party show that ordinary service is impracticable, that due diligence has been made to attempt to make personal service by delivery, and that substituted service will reach the party and effect notice.
Summons - A writ of process [issued by the clerk of the court and served on the defendant], notify[ing] the person named that an action has been commenced against him in the court from where the process issues, and that he is required to appear [...] and answer the complaint in such action. [Black's Law Dictionary.]
Trespassing - In California, "Registered Process Servers are granted a limited exemption against trespassing. This allows servers to enter a private property for a reasonable period of time to attempt service of process. Similarly, in California, gated communities which are staffed by a security guard or where access is controlled, must allow a Registered Process Server to enter for service of process upon presenting valid identification, and indicating to which address the process server is going. This does not prevent the security guard from contacting the resident and alerting them that a process server is on his way to their residence.
Writ - A writ is a written order of a judge requiring specific action by the person or entity to which the writ is directed.
Writ of Attachment - A writ employed to enforce obedience to an order [...] of the court. [Black's Law Dictionary.] A writ of attachment is a document issued under the authority of a court order (Right to Attach Order), directing the levying officer to serve and attach and encumber assets of the defendant to ensure that the assets will be available if the plaintiff prevails at trial. A variety of methods of attachment are available to the plaintiff and may involve registered process servers.
Writ of Execution - A writ to put in force the judgment or decree of a court. [Black's Law Dictionary.] A writ of execution is a document issued directing the levying office to serve and take the assets of the judgment debtor. There are a variety of methods of levy available to a judgment creditor and may involve registered process servers.