Glossary of Terms

Whether in civil litigation, appeals, or part of the administrative and licensing law practice, Simas & Associates, Ltd. deals with a unique, complicated process. This involves terms that are not in common use by most of our clients – whether they are business owners, employees, or professional licensees. This page is our attempt to define some of these terms and lift the veil of confusion for clients and potential clients alike.   

Below, please find a non-exhaustive list of some of the terms common to our legal practice. Please check back often, as additional glossary entries are added on a regular basis. 

In addition, please use the legal dictionary at Law.com to find definitions of other words that may come up in the course of the representation. 

Accusation

Official charging document in many administrative law and licensing actions. The equivalent of the complaint in civil litigation. Also known as the statement of issues.

At Will Employment 

An employment arrangement in which the employee may quit at any time, and the employer may fire the employee for any reason that is not illegal. For example, an employer may fire an at-will employee for poor performance, to cut costs, or because the employer simply doesn't like the employee, but may not fire an at-will employee for discriminatory reasons, to retaliate against the employee for reporting harassment, or because the employee exercised a legal right.

Combination of Function

When an agency’s decision must be based on a closed record, as required in formal adjudication, the decider cannot be biased by off the record considerations. A claim of bias might involve the combination of the functions of prior investigation and subsequent deciding. All errors must be shown with specificity. Absent the showing of substantial prejudice, this claim of combination of function will be rejected by the reviewing court. If the prior investigation can be shown to have resulted in the use of non-record information in making the formal adjudication decision, the court may find error.

Essential Job Functions

The fundamental duties of a position -- those things that the person holding the job absolutely must be able to do. An employee with a disability must be able to perform the essential job functions, with or without a reasonable accommodation, to be protected by the Americans with Disabilities Act.

Exculpatory

A description of evidence that serves to justify, excuse, or introduce a reasonable doubt about the accused party’s alleged actions or intentions. Exculpatory evidence may ultimately show that the accused is not guilty or at-fault for the underlying allegations. Police, prosecutors, and the charging party must, to uphold the accused's constitutional right to due process, tell the defense about any exculpatory evidence they've discovered.

Exhaustion of Remedies

Doctrine of law that requires that procedures established by statute, Common Law, contract, or custom must be initiated and followed in certain cases before an aggrieved party may seek relief from the courts. After all other available remedies have been exhausted, a lawsuit may be filed.

Most commonly, exhaustion of remedies applies where an Administrative Agency has been established by the Legislature to handle grievances that occur under its purview. Only after the parties have satisfied each requirement of the grievance process, and the Agency has reached its final decision, can they appeal the decision to a higher tribunal.

The rationale behind requiring parties to exhaust their administrative remedies is that the agencies have the specialized personnel, experience, and expertise to sort and decide matters that arise under their jurisdiction. Also, the doctrine of Separation of Powers dictates that an agency created by the legislature should be allowed to carry out its duties without undue interference from the judiciary.

Ex Parte

Latin meaning "for one party," referring to motions, hearings, or orders granted on the request of and for the benefit of one party only. This is an exception to the basic rule of court procedure that both parties must be present at any argument before a judge, and to the otherwise strict rule that an attorney may not notify a judge without previously notifying the opposition. Ex parte matters are usually temporary orders (like a restraining order or temporary custody) pending a formal hearing, or an emergency request for a continuance.